Legal Theory Blog

Legal Theory Bookworm: "From Free to Fair Markets" by Holden & Dixon

The Legal Theory Bookworm recommends From Free to Fair Markets: Liberalism after Covid by Richard Holden & Rosalind Dixon.  Here is a description:

Liberalism--and its promise of market-led prosperity--was in crisis well before COVID-19. Recent decades have seen a rise in concentrated unemployment and long-term stagnation in real wages in many of the world's leading economies. At the same time, the world has witnessed a dramatic rise of
corporate power, concentration of wealth. and the failure of liberal societies to address some of the most pressing challenges of our time. To survive, liberalism will need a radical reboot-to find new ways of tackling the current challenges posed by corporate power, inequality, and climate change.


In this book, Rosalind Dixon and Richard Holden argue this reboot means moving beyond recent neo-liberal versions of liberalism toward a more truly democratic form-from the idea of free markets to a vision of fair markets. The book offers a new vision of fair markets as well as the concrete
policies and practical steps to make this ideal a reality. It proposes a universal green jobs-guarantee, a significant increase in the minimum wage and government support for wages, universal healthcare based on a two-track model of public and private provision, a new critical infrastructure policy
for nation states to sit alongside a commitment to global free trade, and universal pollution taxes, with all proceeds returned directly to citizens by way of a green dividend. All of these policies combine a commitment to markets with democratic commitments to dignity for all citizens, and the
regulation of markets in line with majority interests. By addressing underlying systemic problems of liberal societies and simultaneously emphasizing the importance of markets in ensuring the efficiency and sustainability of these policy solutions, Dixon and Holden present a vision of markets that
are free, fair, and well-functioning, not simply free.

With clear-headed analysis of how to pay for these ideas and the kind of democratic politics needed to make them a reality, From Free to Fair Markets is an accessible articulation of a new economic path for liberal societies coming out of the COVID-19 pandemic.

And from the reviews:

"At a time when many are pessimistic about the future of capitalism, Holden and Dixon provide a penetrating analysis of what is wrong and what to do about it. Their proposals are creative, insightful, provocative, and valuable." ―Oliver Hart, Harvard University, Nobel Laureate in Economics, 2016

"Holden and Dixon provide a compelling vision of how modern democracies can respond to the challenges of inequality, automation, and climate change, without sacrificing economic efficiency and individual choice. It is a work of great clarity, creativity, and critical importance." ―Christina D. Romer, Garff B. Wilson Professor of Economics, University of California, Berkeley

"Holden and Dixon have identified one of the most pressing research topics of our time. Proposing solutions requires scholars with fertile imaginations who are willing to think big." ―Justin Wolfers, Professor of Economics and Public Policy, University of Michigan

 

Download of the Week: "Textualism, Judicial Supremacy, and the Independent State Legislature Theory" by Litman & Shaw

Leah Litman (University of Michigan Law School) & Katherine Shaw (Yeshiva University - Benjamin N. Cardozo School of Law) have posted Textualism, Judicial Supremacy, and the Independent State Legislature Theory (Wisconsin Law Review, No. 5, 2022) on SSRN.  Here is the abstract:

This piece offers an extended critique of one aspect of the so-called “independent state legislature” theory. That theory, in brief, holds that the federal constitution gives to state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal constitution: Article I’s Elections Clause, which provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” and Article II’s Presidential Electors Clause, which provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Proponents defend the theory as consistent with the text and structure of the constitution, as well as some nineteenth-century practice.

At base, however, the independent state legislature theory (ISLT) is best understood as primarily a claim of authority on the part of federal courts. While the doctrine purports to elevate state legislatures in the name of popular sovereignty and democracy, in fact it dramatically expands the power of the federal judiciary at the expense of both. Indeed, the ISLT, properly understood, inverts a core principle of judicial federalism and maintains that the federal constitution empowers federal courts to override the judgments of state courts, state executive-branch officials, and state voters about the meaning of state law. And, in the hands of the current Supreme Court, this assertion of interpretive supremacy imposes on the states a narrow mode of statutory interpretation—textualism—whose key justifications are largely inapplicable to the states, with their myriad and varied institutional arrangements.

The ISLT is fatally inconsistent with basic precepts of both federalism and the separation of powers. But more than that, the ISLT is a lawless power grab by the federal courts masquerading as deference to a romanticized vision of the state legislature that fails to take state institutional design choices seriously on their own terms.

Highly recommended.

Capps on the Intention Requirement for Accomplice Liability

Charles F. Capps (U.S. Court of Appeals for the Eighth Circuit) has posted Upfront Complicity (Nebraska Law Review, Forthcoming) on SSRN.  Here is the abstract:

In most American jurisdictions, accomplice liability requires a mens rea of intention with respect to the conduct that constitutes the principal’s commission of the crime. Scholars have criticized the intention requirement on the ground that some accomplices, such as those who were paid upfront for their assistance, do not care whether the principal’s criminal conduct occurs and therefore do not intend to bring it about that the principal’s criminal conduct occurs. This Article defends the intention requirement against this criticism. Drawing on insights from the philosophy of action, it argues that all who are genuinely complicit in a crime, including those who were paid upfront for their assistance, do intend to bring it about that the principal’s criminal conduct occurs. The Article then critiques the alternative mens rea standards that scholars have proposed as replacements for the intention requirement. Finally, the Article explains why its argument supports the use of intention requirements in torts and areas of criminal law other than accomplice liability. It concludes that the law should resist calls to jettison intention as a condition for criminal and civil liability.

Jiménez on "The Making of Constitutional Democracy" by Sandro

Felipe Jiménez (USC Gould School of Law) has posted Book Review: Paolo Sandro, The Making of Constitutional Democracy: From Creation to Application of Law (Forthcoming in American Journal of Jurisprudence 68 (1) (2023)) on SSRN.  Here is the abstract:

A book review of Paolo Sandro's The Making of Constitutional Democracy.

And from the conclusion:

Sandro engages carefully with multiple views, intellectual traditions, and scholarly perspectives. The breadth of research and the bibliographical apparatus are impressive, and evidence of Sandro’s academic rigor and willingness to build upon other thinkers’ insights instead of starting from scratch—a rare and important intellectual virtue. Yet this sometimes prevents Sandro from fully articulating his view as the distinctive and original position it is. It is my hope, thus, that this book is just the first step in the full development and articulation of Sandro’s distinctive jurisprudential perspective.

Link to the book in the abstract.

Song on Medical Professionals & Police Investigations

Ji Seon Song (University of California, Irvine School of Law) has posted Cops in Scrubs (Florida State University Law Review, Vol. 48, No. 4, 2021) on SSRN.  Here is the abstract:

An encounter with police often involves more than just the police officer and the individual person. This Article highlights one particular actor integral to police investigations: the medical professional. Medical professionals, whether they be physicians, nurses, nurse practitioners, or other healthcare providers, become part of investigations in many ways. They notify police of crimes. They facilitate police questioning. They provide information gleaned from patient conversations, patient belongings, and their bodies.

The intertwined relationship between medical professionals and law enforcement is embedded in the legal and regulatory framework. A constellation of laws directs medical professionals to cooperate with law enforcement with very little countervailing authority or guidance on when they should not. These laws force medical professionals—even when they act with good intentions—to move away from medical judgment and be coopted as “cops in scrubs.” Ultimately, the existing legal and regulatory regimes are insufficient in guarding against overbroad police and medical authority. I explore three categories of overlap between medical professionals and law enforcement: crime reporting, questioning of patients, and evidence procured through medical procedures. This exploration reveals a spectrum of how medical professionals act in response to their responsibilities to public safety. Medical professionals may be acting in their role as healthcare providers in the face of difficult ethical, legal, and moral obligations or acting in concert with police. This wide spectrum results in part from courts broadly construing medical professionals’ duties to public safety, the insufficient accounting of the particular potency of medical professionals as aid-to or part of police investigations, and the inadequacies of existing criminal procedure safeguards.

The relationship between medical professionals and law enforcement must be viewed against the backdrop of historical and contemporary racial discrimination and bias by law enforcement and medical institutions. The inadequate regulation of the over-lap of medical professionals and law enforcement puts poor and racial minorities groups at risk of experiencing an amplified and compounded bias. This Article highlights that potential aggregated effect where people may experience not only worse medical outcomes but also criminal punitiveness because of their race and class. The Article concludes by suggesting doctrinal and statutory changes and other prescriptions as countervailing authority that would allow medical professionals to push back against overbroad police authority.

Litman & Shaw on the Independent State Legislature Theory

Leah Litman (University of Michigan Law School) & Katherine Shaw (Yeshiva University - Benjamin N. Cardozo School of Law) have posted Textualism, Judicial Supremacy, and the Independent State Legislature Theory (Wisconsin Law Review, No. 5, 2022) on SSRN.  Here is the abstract:

This piece offers an extended critique of one aspect of the so-called “independent state legislature” theory. That theory, in brief, holds that the federal constitution gives to state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal constitution: Article I’s Elections Clause, which provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” and Article II’s Presidential Electors Clause, which provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Proponents defend the theory as consistent with the text and structure of the constitution, as well as some nineteenth-century practice.

At base, however, the independent state legislature theory (ISLT) is best understood as primarily a claim of authority on the part of federal courts. While the doctrine purports to elevate state legislatures in the name of popular sovereignty and democracy, in fact it dramatically expands the power of the federal judiciary at the expense of both. Indeed, the ISLT, properly understood, inverts a core principle of judicial federalism and maintains that the federal constitution empowers federal courts to override the judgments of state courts, state executive-branch officials, and state voters about the meaning of state law. And, in the hands of the current Supreme Court, this assertion of interpretive supremacy imposes on the states a narrow mode of statutory interpretation—textualism—whose key justifications are largely inapplicable to the states, with their myriad and varied institutional arrangements.

The ISLT is fatally inconsistent with basic precepts of both federalism and the separation of powers. But more than that, the ISLT is a lawless power grab by the federal courts masquerading as deference to a romanticized vision of the state legislature that fails to take state institutional design choices seriously on their own terms.

Highly recommended.

Mortenson & Bagley on Critics of "Delegation at the Founding"

Julian Davis Mortenson (University of Michigan Law School) & Nicholas Bagley (University of Michigan Law School) have posted Delegation at the Founding: A Response to the Critics (Columbia Law Review, Forthcoming) on SSRN.  Here is the abstract:

This essay responds to the wide range of commentary on "Delegation at the Founding," which is available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3512154. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both.

As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective of the authorizing principal) at the same time. As a formalist matter, the separation of powers objection is thus evanescent—subject to trivial reframing. In making rules pursuant to congressional instruction, administrative agencies are simultaneously exercising both legislative power (by promulgating authoritative legal commands) and also executive power (by implementing Congress’s authoritative instructions). This is *not* a functionalist argument; it is an insistent demand to take formalism seriously: the same government action was understood as both executive and legislative—and always was.

As a matter of eighteenth-century governance practice, late eighteenth-century Anglo-American law was awash in legislative delegations. Nor did the adoption of the Constitution mark a change in that practice: its text does not specify new limits on delegation; no one in the ratification process suggested it might be read to do so; and vesting clauses in state constitutions with identically tripartite structures (and explicit separation-of-powers clauses) were understood to permit broad delegations. Early practice, in fact, suggests the Founders harbored no such belief. The First Congress passed dozens of laws delegating wide discretion to the President, to cabinet secretaries, to federal judges, to territorial governors, and to tax officials. No meaningful nondelegation objection was raised to any of these laws—and this at a time when legislators were inventing dubious constitutional arguments at the drop of a hat. The originalist argument for nondelegation doctrine fails on its own terms.

Diamantis on Corporate Identity

Mihailis Diamantis (University of Iowa - College of Law) has posted Corporate Identity on SSRN.  Here is the abstract:

Certain types of collectives count as people under the law. These “legal people” can do things—like pollute the environment or mislabel addictive medications—that subject them to sanction. Any effort to pair harms in the world with responsible collectives must draw on a theory of collective identity. The fact that collectives can be so dynamic—routinely exchanging parts, splitting and merging, changing ownership, and reworking basic operating procedures—complicates any effort to give a principled account. This chapter focuses on business corporations as a salient collective whose identity conditions have far-reaching impact. The law implicitly encodes one vision of corporate identity. Experimental philosophy suggests that common intuition endorses a different one. This chapter discusses the extent and significance of the discrepancy.

Mills on Territoriality in Private International Law

Alex Mills (University College London, Faculty of Laws) has posted Justifying and Challenging Territoriality in Private International Law (Roxana Banu, Michael Green and Ralf Michaels (eds), Philosophical Foundations of Private International Law (OUP, 2023 Forthcoming)) on SSRN.  Here is the abstract:

Private international law essentially deals with the question of how we should regulate relationships and resolve disputes which have connections with more than one legal system, distinguishing between the institutional aspects of regulation (jurisdiction) and the substantive aspects (applicable law). Traditionally, a decision is made about which legal system (or systems) should govern based on a range of connecting factors. Among these factors, territorial connections have historically had the most significant influence, reflecting an approach to private international law which understands the subject as concerned with the division and allocation of state authority and adopts a ‘spatial’ conception of that authority. Private international law theory and practice has also, however, explored a range of alternatives which might be relied on, including the characteristics or wishes of the parties themselves, as well as other approaches which reject altogether the idea that private international law should focus on allocational questions. This chapter asks why territoriality plays such an important role in private international law, and considers whether it should. The chapter begins with an examination of the role of territoriality in private international law history and theory. It then considers various arguments which might be raised to justify territoriality in private international law, suggesting that they may also justify traditional private international law techniques. The chapter also, however, addresses the question of whether these justifications hold up against the challenges presented to territoriality by modern globalisation, in particular, whether territoriality can provide certainty, coherence, and effective regulatory constraint.

Cunningham on "Justice Alito’s Question" by Miller & Bacallao

Clark D. Cunningham (Georgia State University College of Law) has posted "Abortion" in the Founding Era: A Reply to Methodological Critiques of Miller & Bacallao, Justice Alito's Question (Georgia State University College of Law, Legal Studies Research Paper Forthcoming) on SSRN.  Here is the abstract:

On May 18, 2022, the Harvard Journal of Law & Public Policy published online an essay by Stephanie Nicole Miller and Mary Kay Bacallao. Miller is a current student at the Georgia State University College of Law; Bacallao graduated in 2022. After both had completed a course on Linguistic Analysis of Legal Texts at the GSU College of Law, they conducted independent research during the Spring 2022 semester prompted by the question posed by Justice Samuel Alito on December 1, 2021, at oral argument in Dobbs v Jackson’s Women’s Health: “[C]an it be said that the right to abortion is deeply rooted in the history and traditions of the American people?”

Using the methods of corpus linguistics Miller and Bacallao researched 18th century use of the word “abortion.” They found that “abortion” was generally used differently in the Founding Era, to refer to involuntary termination of pregnancy, much as “miscarriage” would be used today. They further looked for phrases referring to voluntary termination of pregnancy and concluded nothing they found showed that abortion was described as a right or privilege at the time of Founding.

Publication of the Miller & Baccalao essay was publicized by the GSU College of Law on Twitter. On June 24, 2022, within an hour of release of the Supreme Court’s decision in Dobbs, a number of questions, comments and critiques appeared on Twitter regarding Justice Alito’s Question directed specifically at the author as the teacher and supervisor of Miller and Bacallao. Prompted by these comments, the methodology used for Justice Alito’s Question is explained along with replies to some of the critiques posted on Twitter.

Vandenbergh on Private Environmental Governance & Climate Adaptation

Michael P. Vandenbergh (Vanderbilt University - Law School) & Bruce M. Johnson (Doctorate Student/Research Assistant Vanderbilt University- Law School) have posted The Role of Private Environmental Governance in Climate Adaptation (Front. Clim., 10 September 2021) on SSRN.  Here is the abstract:

This Article examines the role of private environmental governance (PEG) in climate change adaptation. PEG occurs when private organizations perform traditionally governmental functions such as providing public goods and reducing negative externalities. PEG initiatives that target climate change mitigation have expanded rapidly in the last decade and have been the subject of research in multiple fields, but PEG initiatives that target climate change adaptation have received less attention. As a first step, the Article develops a definition of private governance regarding climate adaption, identifies several types of PEG adaptation initiatives, and briefly identifies research gaps.

Wotherspoon on Classifying Nonhuman Animals as Property

Anna Wotherspoon has posted Unravelling Incoherence: Utilizing Property Theory to Challenge the Classification of Animals as Chattels ((2021) 46(2) Journal of Legal Philosophy 81-119) on SSRN.  Here is the abstract:

In law, domesticated animals are chattels, the object of property rights. This classification does not reflect the characteristics and capacities of nonhuman animals that make them unlike other objects of property. The categorization also fails to reflect widely held beliefs that animals deserve some moral consideration. In recognition of these difficulties, a literature has developed to advance the case for animal rights and alternative frameworks for animal protection. Yet the literature has neglected one logically antecedent issue: the normative suitability of property status itself. The property paradigm provides a straightforward legal mechanism for the exercise of control over others, as seen in its historical influence over the treatment of children and married women; yet in the animal context, its suitability has remained unscrutinized. This article does not rely on moral objections to the classification of animals as property. It focuses instead on reasons of legal theory that challenge this hegemony. Consideration of animal welfare legislation provides a preliminary indication that animals’ property status is unsuitable. Regardless of whether property is conceived as the right to exclude or a ‘bundle’ of rights, protection of the interests of objects is inconsistent with other frameworks that regulate proprietary relations. Moreover, a comprehensive examination of traditional justifications for the private property institution reveals that animal property does not serve the purposes for which the institution was established. These analyses expose the normative incoherence of the classification of animals as chattels.

Sunstein on Dobbs

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School (HKS)) has posted Dobbs and the Travails of Due Process Traditionalism on SSRN.  Here is the abstract:

The Court’s opinion in Dobbs v. Jackson Women’s Health Organization embraces a form of due process traditionalism. More specifically, it is founded on Burkean arguments, emphasizing the importance of respect for traditions and (secondarily) Thayerian arguments, emphasizing the need to give the democratic process room to maneuver, at least in the domain of “substantive due process.” With Burkean and Thayerian arguments at work, the Court offers a distinctive understanding of the Due Process Clause, which allows substantive protection of rights only if they are vindicated by tradition and essential to “ordered liberty” as the United States has long understood it. Rooted in due process traditionalism, the Court’s opinion is not an “originalist” opinion, and it would not be simple to defend it in originalist terms. Within the opinion’s own logic, the major challenge is to accept due process traditionalism without simultaneously throwing a variety of emphatically nontraditional or anti-traditionalist substantive due process cases into doubt, even though they have nothing to do with abortion (including the right to engage in same-sex sexual relations and the right to same-sex marriage). There are uneasy relationships between the traditionalist thrust of the Court’s opinion and the Court’s nontraditional or antitraditionalist jurisprudence in other areas of constitutional law, including free speech, takings, and equal protection, where the Court has repudiated multiple traditions, understanding itself as a kind of “forum of principle,” in a way that produces far more expansive understandings of rights than could be justified by an inquiry into tradition and ordered liberty. For example, the Court has rejected free speech traditionalism (in protecting libel), takings clause traditionalism (in protecting against regulatory takings), and equal protection traditionalism (in protecting against sex discrimination). A central reason must be that the Court believes in some forms of moral progress, and has at least some faith in the judicial capacity to incorporate certain forms of moral progress into constitutional law. The central weakness of the Dobbs opinion – and plausibly, its fatal flaw – is its rejection of the idea that moral progress can and should play a role in the understanding of constitutional rights.

Highly recommended.

Jiménez on Experimental Jurisprudence

Felipe Jiménez (USC Gould School of Law) has posted The Limits of Experimental Jurisprudence (Cambridge Handbook of Experimental Jurisprudence, Forthcoming) on SSRN.  Here is the abstract:

This chapter offers a critique of experimental jurisprudence. While experimental jurisprudence can make an important contribution to legal knowledge and legal theory, theorists and practitioners of experimental should also be aware of its limitations. Experimental jurisprudence cannot, by itself, resolve legal theoretical debates. It is just one limited tool, with an important but partial role to play in the collective project of understanding and evaluating law and legal rules, institutions, and practices. This chapter explores some of the limitations of experimental jurisprudence in special jurisprudence (i.e., legal theories concerned with specific legal concepts or areas of law) and general jurisprudence (i.e., legal theories concerned with the nature of law, legal rules, and institutions). It also argues that, if we want to fully understand law and legal concepts, practices, and institutions, experimental jurisprudence needs to be supplemented with other perspectives - such as those provided by anthropology, qualitative research, and the humanities - that can capture precisely what experimental jurisprudence must necessarily ignore: the fact that law is a complex institutional social practice.

Highly recommended.

Bronsteen, Leiter, Masur, & Tobia on the Folk Theory of Well-Being

John Bronsteen (Loyola University Chicago School of Law), Brian Leiter (University of Chicago), Jonathan S. Masur (University of Chicago - Law School), & Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy) have posted The Folk Theory of Well-Being (Oxford Studies in Experimental Philosophy, Volume 5) on SSRN.  Here is the abstract:

What constitutes a “good” life—not necessarily a morally good life, but a life that is good for the person who lived it? In response to this question of “well-being," philosophers have offered three significant answers: A good life is one in which a person can satisfy their desires (“Desire-Satisfaction” or “Preferentism”), one that includes certain good features (“Objectivism”), or one in which pleasurable states dominate or outweigh painful ones (“Hedonism”). To adjudicate among these competing theories, moral philosophers traditionally gather data from thought experiments and intuition. In this chapter, we supplement that traditional approach with a pair of experimental studies that examine whether the three theories reflect laypeople’s intuitions about well-being. The empirical studies yield two primary findings. First, they provide evidence for lay "well-being pluralism": laypeople treat desire satisfaction, positive objective conditions, and happiness as all constitutive of well-being. Second, the studies provide evidence of "hedonic dominance": laypeople evaluate an individual’s happiness as more important to an individual’s overall well-being than desire satisfaction or objective conditions.

Highly recommended.

Hashimy on US Liability for War Crimes in Afghanistant

Sayed Qudrat Hashimy (University of Mysore) has posted Analysis of the United States’ Liability for War Crime in Afghanistan on SSRN.  Here is the abstract:

There is no statistical report about the war crime committed in Afghanistan from 1978 to 2021. This paper analyzes the United States’ liability for war crimes in Afghanistan. This issue has been in public for over 20 years but has gained relevance in 2021 due to their decision to withdraw troops from the country. The Article analyzes what the ICC deems a war crime per the Rome statute. It involves a jurisprudential overview of various decisions of the ICC to develop a working understanding of war crimes. Similarly, it inquiries into specific actions carried out by the United States Government since the war in Afghanistan. Temporally this analysis is limited to the movement of the US since 2001 and will not account for actions before this date. This temporal limitation has been imposed owing to the widespread claim that the United States’ formal involvement in the “War Against the Terror” began after the attack on 11 September 2001. Henceforth, the critical research question is whether the United States can be held responsible for carrying out war crimes in Afghanistan.

Sybblis on Regulatory Competition & Offshore Financial Centers

Martin Sybblis (Emory University School of Law) has posted Regulatory Competition and State Capacity (13 William & Mary Business Law Review 189 (2021)) on SSRN.  Here is the abstract:

This Article explores an underlying tension in the regulatory competition literature regarding why some jurisdictions are more attractive to firms than others. It pays special attention to offshore financial centers (OFCs). OFCs court the business of nonresidents, offer business friendly regulatory environments, and provide for minimal, if any, taxation on their customers. On the one extreme, OFCs are theorized as merely products of legislative capture— thereby lacking any meaningful agency of their own. On the other hand, OFCs are conceptualized as well-governed jurisdictions that attract investment because of the high quality of their laws and legal institutions—indicating some ability to manage legislative capture. This Article argues that the prevailing explanatory frameworks for OFC development and success overlook deeper institutional structures within these jurisdictions. Drawing on the political sociology literature on state development, this Article offers a new theoretical framework. It suggests that some OFCs may have experienced more success than others because of how they developed “state capacity”—i.e., their ability to formulate and implement specific kinds of policy choices skillfully and effectively. This Article makes two important contributions to the regulatory competition and OFC literatures. First, it places the institutional quality of jurisdictions at the center of the discourse and analysis of OFC achievements in the business law arena. Second, it introduces the interdisciplinary concept of “state capacity” into the growing scholarly debate concerning the rise of OFCs.

Skinner on Capturing the Federal Reserve Board

Christina Parajon Skinner (University of Pennsylvania - The Wharton School) has posted Capture the Fed (Populism and the Future of the Fed (Jim Dorn ed.), Forthcoming) on SSRN.  Here is the abstract:

There is today a palpable struggle for control of the Fed’s vast power. There are those in Congress, academia, and the executive branch that now seek to capture the Fed’s balance sheet, or its regulatory and supervisory might, to accomplish various social and economic policy goals—concerning climate change, inequality in the labor market, financial inclusion, and U.S. competitiveness with China. As this chapter will argue, those who wish to push the Fed beyond its classic technocratic purview appear to perceive the Fed’s power as a valuable commodity ripe for capture.

While I have elsewhere written about popular pressure on the Fed to engage in activism, and the risks such pressure presents to the Fed’s independence, I have yet to offer a theory of what precisely incentivizes or invites such pressure in the first place. Why does the Fed’s power seem capable of capture? This chapter takes that step back and offers a theory of what makes the Fed susceptible to ongoing popular efforts at capture. Specifically, it argues that Congress h

Miller on Nonviolence & Political Change

Darrell A. H. Miller (Duke University School of Law) has posted Estoppel by Nonviolence (Law and Contemporary Problems, Vol. 85) on SSRN.  Here is the abstract:

There are two traditions of political change in America, violent and non-violent; but one group—African Americans—have found the most success by using non-violence, even though they, as a group, have the most historical and moral justification to take freedom by force. But perhaps that’s not so bad. For in pursuing a successful political strategy committed to non-violence—despite every moral right to use violence—African Americans have delegitimized any lesser claim to force as a weapon in American politics. The blood of Martin Luther King Jr., John Lewis, Lamar Smith, Fannie Lou Hamer, and Viola Liuzzo have nourished the tree of liberty. They supplanted the tradition of John Locke. Because of them, non-violence sets the baseline for fundamental constitutional change in America.

Trachtman on Global Governance & Platforms

Joel P. Trachtman (Tufts University - The Fletcher School of Law and Diplomacy) has posted Platforms and Global Governance: Globalization on Steroids on SSRN.  Here is the abstract:

Platforms constitute a novel context for social interaction. Physical distance makes little to no difference to interaction, and so the frequency and intensity of cross-territorial border interaction grows dramatically. This growth in interaction will be globalization on steroids. Platforms increase both collision among national rules (jurisdictional collision) and collision at the international level among functional rules (fragmentation). Revised normative and organizational tools will be needed to manage the increased globalization and fragmentation resulting from the rise of platform commerce. These tools may include modifications and extensions of existing rules of trade law, but they will embrace other areas of regulation in a much more nuanced manner than has been necessary up until now. The existing fragmentation, or “siloed” nature of our international trade and regulatory systems will need to be modified to allow a more coherent approach.

Saprai on Gardner on Private Law & Conservatism

Prince Saprai (University College London - Faculty of Laws) has posted Never Let Me Go: Private Law and the Conservative Impulse (Michelle Madden Dempsey and François Tanguay-Renaud (eds), From Morality to Law and Back Again: Liber Amicorum for John Gardner (Oxford University Press, Forthcoming)) on SSRN.  Here is the abstract:

In his recent work on private law, John Gardner argues that private law has conservative leanings, which explain its central features. He argues that private law is designed to protect or promote the security interests of victims or likely victims of legal wrongs. Gardner appeals to the thinly conservative value of preserving the lives that people already have to justify this conception. This chapter expresses doubts about whether this thin version of conservativism plays a characteristic or organising role in private law. Instead, it is argued that a thicker or more deeply conservative outlook according to which the purpose of private law is the preservation of social virtue, or our existing forms of civility, reveals much more about private law. It is the value of these social relations rather than security severally considered which private law refuses to let go.

Pradhan on Regulating AI

Prajakta Pradhan (National Law University, Lucknow (RMLNLU)) has posted Towards Intelligent Regulation of AI (University of San Francisco Law Review Forum, March 2021) pn SSRN.  Here is the abstract:

Artificial Intelligence (AI) is a disruptive technology aiming to provide innovative and effective solutions to meet the challenges facing the world today. It is essential that such a global methodology having far-reaching effects should be crafted and supervised for public and societal well-being.

Pioneering the regulatory framework of this emerging technology and it's derivatives is the European Union (EU), followed by China, USA, and India; all having initiated plans for tech policy amendments and guidelines. However, where do we start and what are the key elements of Regulating AI?

Wendel on Punitive Damages & Organizational Culture

W. Bradley Wendel (Cornell University - School of Law) has posted Malice or Snafu? Punitive Damages and Organizational Culture Defects (DePaul Law Review, Forthcoming) on SSRN.  Here is the abstract:

This paper was written for the annual Clifford Symposium on Tort Law and Policy at DePaul Law School. The theme for this year is tort law as a response to corporate wrongdoing. The paper was part of a panel on the Boeing 737-MAX disasters.

In engineering or risk-management (not tort) terms, the root cause of the Lion Air and Ethiopian Airlines crashes involving 737-MAX aircraft can be understood as a failure of Boeing’s organizational culture. A certain narrative has become accepted as conventional wisdom, described in journalistic accounts, reports of House and Senate investigative committees, and the Netflix documentary Downfall. For the purposes of this paper, let’s stipulate to the story: Boeing enjoyed a well-deserved decades-long reputation as a solid, engineering-driven company in which safety concerns were always paramount. Then came the merger with McDonnell-Douglas in 1996 which led to the adoption of an organizational culture that prioritized maximizing stock prices and shareholder value, subordinated engineering values to cost-cutting concerns, and reoriented internal reporting relationships to place bean-counting MBAs in charge of teams of engineers. Then the company was confronted by a market shock when Airbus introduced a fuel-efficient variant on its popular A320 narrowbody jetliner, risking a further loss of market share to Boeing’s European rival. Rather than develop a clean-sheet design to compete with the A320neo, Boeing hastily updated its venerable 737 airframe by adding new fuel-efficient engines. In order to attract customers who had an existing fleet of 737NG aircraft, Boeing committed itself to a goal of a redesign that would not require extensive additional training for flight crews. Thus, when a relatively minor aerodynamic issue – one that would not arise during normal airline operations – was discovered during flight testing, Boeing adopted a software fix known as MCAS for the purpose of certifying the design. However, it decided not to disclose the operation of the system in the Flight Operation Manual for the aircraft, for fear that the FAA would require simulator training for pilots transitioning from the 737NG to the MAX. The MCAS system proved to have significant design defects (in products liability terms), and these defects were the proximate cause of the Lion Air and Ethiopian Airlines accidents.

The dynamics of organizational cultural failures are by now fairly well understood. In some cases the failure is the result of top-down directives from senior leadership, sometimes driven by market pressures. Other situations, however, are more subtle, and sometimes are the result of the unintended consequences of either neutral or well-intentioned organizational decisions. There is a folklore version of the Challenger launch story, in which an engineer for Thiokol, one of the contracting firms, heroically tried to prevent the launch, but was shot down by managers at NASA and Thiokol, one of whom notoriously told the engineers to take off their engineering hat and put on their management hat. In fact the story is quite a bit more complicated, involving subtle psychological factors at work at the level of both individual and collective decisionmaking. As detailed in a report by Jenner and Block commissioned by company’s board of directors, the GM ignition switch response is almost entirely a story of dysfunctions in the company’s organizational culture that were the result of well-intended procedures and reporting structures that had the unintended effect of diffusing responsibility so thoroughly within the organization that no one really had any ability to respond effectively.

In my judgment Boeing is an intermediate case between GM, which I would characterize as a true SNAFU (emphasis on “situation normal” in a gigantic, decentralized organization), and the conscious imposition by upper management of unrealistic goals that foreseeably would reorient lower-level managers and employees away from goals like safety and social responsibility. Even granting the truth of some of the most damning allegations, such as reports by flight-test crews that MCAS behaved in surprisingly aggressive ways and calls by some engineers to include information about MCAS in the FAA-approved Flight Operation Manual for the plane, the ultimately fatal decisions did not arise from a state of mind that traded lives for dollars or ignored safety concerns. Rather, there were mistakes, miscommunications, perhaps excessive optimism (e.g. that flight crews would handle an inadvertent MCAS firing as an ordinary trim runaway), failures to be more proactive in managing risks, and above all a kind of blinkered obsession with not having to retrain flight crews which may have led to unconscious framing of some of the judgments regarding MCAS. In order words, the explanation is more in line with the findings of behavioral psychology, beginning with Kahneman and Tversky, than with an assumption that Boeing was a rogue actor that was consciously indifferent to safety. The damage is real – both the lives lost and the financial and reputational losses to the company. However, the underlying explanation bears more similarities to the Challenger launch decision or the GM ignition switch recall than to cases like Enron or Wells Fargo.

In doctrinal terms, the argument of this paper is that Boeing’s conduct, in the conventional wisdom story recounted above, does not rise to the level of malice, as required by the common law of punitive damages, or the reprehensibility required by the constitutional test from Gore and Campbell. The theoretical argument is that most defects in organizational cultures, although capable of producing serious harms, are not private wrongs that can justify the imposition of punitive damages in tort. They are governance failures or occasions for regulation, but not private wrongs. Obviously the second argument takes a position on a much-debated issue, so I will address briefly the New Private Law approach, with which I have some sympathy.

The company definitely screwed up and squandered a reputation earned, at least since World War II, for being a pilot’s and engineer’s kind of company. The conclusions of the paper should have implications beyond the case study of Boeing, however. To me at least, the most interesting question is how to understand the common law malice standard as applied to corporate actors where the explanation for wrongdoing rests largely on subtle effects known to social psychologists but very difficult to counteract. Good organizational cultures are extremely difficult to maintain, given the often-unconscious tendencies that underlie cultural declines. NASA and Thiokol weren’t bad actors in the Challenger case; they were pretty good organizations full of conscientious engineers and managers who just happened to get caught by some very sneaky psychological effects. Most failures of organizational cultures do not count as reprehensible private wrongs, however devastating the consequences of these failures.

Mowbray, Chung, & Greenleaf on Legislative Rules as Code

Andrew Mowbray (University of Technology Sydney, Faculty of Law), Philip Chung (University of New South Wales (UNSW Sydney), Faculty of Law and Justice), & Graham Greenleaf (University of New South Wales, Faculty of Law) have posted Representing Legislative Rules as Code: Reducing the Problems of ‘Scaling Up’ on SSRN.  Here is the abstract:

We propose an approach to analysing the nature of existing legal rules, particularly legislative rules, that regards legislation as fundamentally a set of related propositions. We propose a method for representing these rules, using a coding language developed for the project that uses a quasi-natural language representation. It enables the interpreter program for that coding language to process these rules so as to produce ‘consultations’ to determine the values of goals which the legislation is capable of determining, with dialogues and explanations generated ‘on the fly’.Progress that has been made in automating this coding process to create rules in that coding language directly from existing legislation, using a pre-processor program developed for the project. This can also be described as ‘scaling up’ the production of ‘Rules as Code’ or ‘Law as Code’. If successfully developed further this has potential to make a significant contribution toward realising the practical potential of Rules as Code.We conclude there is now evidence that these processes can be generalised (‘scaled up’) to deal with the conversion or production of large bodies of legislation, and that this has considerable value. The pre-processor software is evolving rapidly, in the variety of structural forms of legislation that it can convert into the coding language, and this work will continue.Based on this experience, we also demonstrate how the drafting of legislation could be changed so that appropriately drafted legislation is directly readable and understandable by humans and also directly usable by machines. To be effective, laws drafted in this way will need to be simultaneously authoritative legislative rules and code.

Pangle on Public Rights & Copyright

Matthew Pangle (University of Richmond - School of Law) has posted A Modern Reconceptualization of Copyrights as Public Rights (Vanderbilt Journal of Entertainment & Technology Law, Vol. 24, No. 3, 2022) on SSRN.  Here is the abstract:

Copyright law is at a crossroads. In the wake of Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, the patent, copyright, and intellectual property regimes as a whole, are primed for a modern reconceptualization. At the heart of this reconceptualization is the distinction between public rights, those vindicated by public offices for the public good, and private rights, those vindicated by private citizens for their exclusive government-granted monopolies. Thanks to Oil States, patent rights now exist in two separate bundles—a public bundle including the patent grant itself and a private bundle consisting of a patent owner’s exclusivity rights.

Similar to patents, copyrights exist between a nuanced and delicate tug of war between creator incentive and public benefit. Necessarily, Congress continually legislates around potential market failures that threaten to thwart that delicate balance to keep both creators incentivized to create and the public able to access those creations. Reshaping the current copyright regime into two separate bundles would help Congress continue their market-correcting efforts. Just as with patents, a private bundle would include a copyright owner’s exclusivity rights. However, in addition to copyright grants, copyright’s public bundle of rights would also include conceptualizing copyrights as public rights under the Takings Clause of the Fifth Amendment. While seemingly chipping away at a copyright holder’s exclusive rights over their creative monopoly, conceptualizing copyrights as public rights under the Takings Clause ensures that copyright holders see guaranteed economic incentives to create while allowing the public to access those creations at the copyright holder’s discretion.

Belt on Fat Incarcerated People

Rabia Belt (Stanford Law School) has posted The Fat Prisoners’ Dilemma: Slow Violence, Intersectionality, and a Disability Rights Framework for the Future (Georgetown Law Journal, Vol. 110, No. 3, 786 (2022)) on SSRN.  Here is the abstract:

Law has ignored the problems of fatness in prisons and jails and regularly fails to address much-needed accommodations for fat incarcerated people due to flaws in incarceration law and applications of disability law.

The dilemma of fat incarcerated people extends beyond litigation difficulties, however. It is a heuristic that illustrates the depth of the harm of mass incarceration and the need to take disability seriously—and how complicated taking disability seriously is. Attention to the social inequities that produce and maintain the population of fat people in prisons exposes a profound tension in disability scholarship and activism. Typically, disability scholarship and advocacy seek to unite a disability community of people with varying bodily impairments by focusing on stigma and stereotyping. While people’s bodies are different, all disabled people experience ableism. This Article contends that disability scholars and advocates can and should augment their focus on stigma and stereo- typing to emphasize the social inequities such as environmental poisoning, racism, poverty, and violence that produce many debilitating impairments. This proposal is an uncomfortable proposition for disability scholarship and advocacy wary of eugenic treatment and “cures.” Reducing social inequities would reduce the population of disabled people, and advocacy to improve the environmental predecessors to impairment could be viewed as a condemnation of the state of disability itself.

However, proper attention to intersectional injustice in conjunction with respect for disabled people requires thoughtful consideration of the production of impairments. Although not all disabilities are the result of social injustice, knitting together social inequality and disability would reorient the field on those who are most marginalized, redirect it toward a greater reliance on intersectional principles, and link it to other political and legal campaigns that challenge injustice.

Vats & Keller on Critical Race IP

Anjali Vats (University of Pittsburgh - School of Law; University of Pittsburgh - Department of Communication) & Deidre A. Keller (Florida A & M University College of Law) have posted Critical Race Theory as Intellectual Property Methodology (Intellectual Property Research, Oxford University Press, 2021, edited by Irene Calboli and Maria Lilla Montagnani) on SSRN.  Here is the abstract:

This chapter traces the emergence of Critical Race Intellectual Property (CRTIP) as a distinct area of study and activism that builds on the work of Critical Legal Studies and Critical Intellectual Property scholars. Invested in the workings of power - but with particular intersectional attentiveness to race - Critical Intellectual Property works to imagine new, often more socially just, forms of knowledge produce. In this brief chapter, we lay out the origins of Critical Race Theory (CRT) and its central methods, articulate a vision of CRT, and contemplate how CRT's interdisciplinary and transnational methods might apply to intellectual property. In accomplishing the latter, we use India's commitments to access to knowledge in the recent Delhi University copyshop case and controversy over Novartis's drug Gleevec to show how CRT's central insights can open possibilities for reading intellectual property law with attunement to structures of racial power.

Schmidt on Egalitarian Voice, History, & Brown

Christopher W. Schmidt (Chicago-Kent College of Law; American Bar Foundation) has posted Brown, History, and the Fourteenth Amendment (Notre Dame Law Review, Vol. 97, No. 4, 2022) on SSRN.  Here is the abstract:

Legal scholars and historians in recent years have sought to elevate Reconstruction to the stature of a “second Founding,” according it the same careful inquiry and legitimating function as the first. Their work marks the latest iteration of a decades-long campaign to displace the far more dismissive attitude toward Reconstruction that permeated historical scholarship and legal opinions in the first half of the twentieth century. In this Article, I present the flurry of engagement with the history of the Fourteenth Amendment during the litigation of Brown v. Board of Education (1954) as a key transition point in how historians and legal scholars have approached the constitutional history of Reconstruction. I highlight in particular the efforts of the lawyers for the NAACP, who advocated a reading of the Equal Protection Clause that most scholars at the time believed conflicted with the Fourteenth Amendment’s original meaning. With the aid of a group of historians sympathetic to their cause, the NAACP lawyers prepared a brief that presented a bold (if often tendentious) revisionist history of the Fourteenth Amendment that advanced an originalist justification for striking down segregation laws. The Supreme Court did not accept the NAACP’s reading of history; in his Brown opinion, Chief Justice Earl Warren concluded the historical record was “inconclusive” on the question of school segregation. Yet the basic assumption about Reconstruction history on which the NAACP legal brief turned—that the aspirations of the most egalitarian voices of the day deserve special weight in assessing the meaning of the Reconstruction amendments—has today become a core tenet of legal and historical scholarship.

Kapczynski on Political Economy & Trade Secrets

Amy Kapczynski (Yale University - Law School) has posted The Public History of Trade Secrets (UC Davis Law Review, Vol. 55, 2022) on SSRN.  Here is the abstract:

Rising inequality and increasing concentration of corporate power have brought renewed attention to questions of political economy, and to how law helps to construct private power and encase it from democratic rearrangement. This Article brings a political economy perspective to the law of commercial secrets, to show that changes in the scope and justification for trade secret law, operating in a context of rising importance of data and information, have set this law on a collision course with our democracy. An area of law that was once understood as focused on fair competition and commercial morality has been retheorized as a kind of “intellectual property,” following prevailing neoliberal arguments about the economics of information. Earlier limits on the scope of the law have been dissolved, so that companies today can claim that almost any confidential corporate information is a trade secret. The law has also been constitutionalized, so that a legislature disclosing corporate information — from the ingredients in cigarettes to the price of a drug — now face powerful challenges from corporations on the basis of the Takings Clause.

Some of the most basic functions of the modern regulatory state, including many mandated disclosures about commercial products to the public, would not have been possible if this view had reigned in earlier decades. Unsurprisingly, it did not. Several Supreme Court cases that have largely been forgotten show that courts even at the height of laissez faire were clear about the categorical priority of the public, and rejected trade secret claims when they conflicted with the public’s right to know. These cases, and earlier logics of trade secrecy that see it as an expression of values of fair competition and commercial morality, together form what I call the “public history of trade secrets.” Recalling this history can help us to defend a more democratic relation between the political and the economic in our age of informational capitalism. These cases also point to a clear legal principle that would, if recovered, reshape what legislatures and regulators are able to reveal to the public: The disclosure of corporate secrets can be made a condition of participation in markets whenever the information helps illuminate the nature of a product or service. Recognizing this would enable vastly more public insight into companies and their products — for example, enabling states to mandate disclosure of the algorithms that shape our social media feeds, and the secret data companies hold about the risks and benefits of consumer products.

Sérafin on the Transfer Theory of Contract

Stéphane Sérafin (University of Ottawa) has posted Transfer Theory and the Assignment of Contractual Rights on SSRN.  Here is the abstract:

The possibility of assigning contractual rights to third parties has often been taken to suggest that they amount to a form of "property" or "asset". This point has been seized upon by proponents of transfer-based accounts of contract law, which understand contract as a means of transferring existing rights instead of creating new rights and duties between its parties. In this article, I set out to critically examine the extent to which this assumed compatibility between transfer theories of contract and the assignment of contractual rights can truly be sustained. As I argue, only one version of transfer theory is able to properly account for the way in which assignment actually operates within the common law tradition, corresponding to the version that most closely resembles more orthodox promise theories of contract law by understanding contract as a transfer of rights directly against the person of the promisor. By contrast, I suggest that the dominant version of transfer theory, according to which contract amounts to a transfer of rights over external things, is unable to draw a full distinction between contract and a completed assignment of contractual rights, and so is unable to explain the rules that govern the latter class of transaction at common law and in equity.

Priel on Legal Realism

Dan Priel (York University - Osgoode Hall Law School) has posted The Myth of Legal Realist Skepticism on SSRN.  Here is the abstract:

Here are some things everyone knows about the legal realists: They didn’t believe in legal rules, they thought—and demonstrated—that law is inherently indeterminate, and they taught us that it is the personality of the judge that decided cases. To the extent that they studied legal doctrine, it was in order to demonstrate its incoherence. This is why they “vociferously objected” to the Restatements. It is the victory of their ideas that killed the doctrinal legal treatise as a respectable form of scholarship in the United States. In addition to this jurisprudential radicalism, the legal realists were also politically radical. Their work burst the myth of legal objectivity by mercilessly exposing the political ideology of Lochner v. New York. More generally, their skepticism about legal rules exposed the inherent contradictions of liberal legalism.

Now for some inconvenient facts: Most legal realists believed legal rules existed and mattered for legal decisions, they believed the law is mostly determinate, and worked to make it more so. Most of them never mentioned Lochner in their writings; the few who did dismissed the idea that the majority was driven by laissez faire ideology. What did they stand for, then? I argue in this Article that one way of getting a sense of what the realists believed is by looking at who they considered their intellectual allies. This exercise yields some surprising results. Rather than seeing the writing of a legal treatise as inconsistent with legal realism, they praised Arthur Corbin’s treatise for its realism. Benjamin Cardozo was described as one of the most sophisticated “anti-realist” judges of the last century, and yet virtually all the legal realists admired him. The realists similarly admired the work of Wesley Hohfeld, not because it revealed law’s reactionary politics, but because, as Llewellyn put it, it “cuts very close to the atomic structure of the law on its conceptual side.” Almost all legal realists spoke in favor of the Restatements, and many were involved in them.

Does this mean the familiar narrative of the realists’ opposition to the ideas of Langdell and Beale is also mistaken? Not quite. The realists did object to their ideas, but—and here comes another surprise—theirs was not a modernist challenge to the “classical” ideas of their predecessors. Rather, legal realists like Llewellyn and Frank were traditionalists who sought to revive old ideas being lost due to the modernistic project spearheaded by Langdell’s Harvard.

Sure to be controversial.  Highly recommended.  It is important to remember that there were many figures we now call "realist" with different and sometimes opposing ideas.  The meaning of the phrase "legal realism" may have been transformed by the influence of CLS in the 1980s.

Gutierrez on Procurement & AI Governance

Carlos Ignacio Gutierrez (RAND Corporation, Pardee RAND Graduate School, Students; Arizona State University (ASU) - Sandra Day O'Connor College of Law; Future of Life Institute) has posted Procurement as an AI Governance Change Agent on SSRN.  Here is the abstract:

The multiple ways that artificial intelligence (AI) affects society has captured significant global attention. An area of growing interest is the role that AI procurement can play in addressing the effects of this technology within the public and private sector.

One means of evaluating developments in AI procurement is to analyze the text of soft law programs, which reveal the positions expressed about this technology by many entities—private sector, nonprofits, and government— in the form of strategies, recommendations, principles, and best practices, among others. An analysis of a global database of AI soft law programs from 2001 to 2019, found a total of 86 statements relevant to procurement. Each of these was assessed based on two dimensions.

The first dimension identified the directionality of influence. In other words, statements can either be meant to guide stakeholders within the sphere of influence of the entity making them (internal), direct individuals or groups outside of it (external), or target both internal and external stakeholders (both). The second dimension describes the substantive purpose of the soft law text. For this dimension, relevant statements were categorized into four groups: improvement of processes, acceleration of technology development, creation of soft law, and protection of rights.

Overall, this research reveals the extent to which the conversation about procurement exists within the world of soft law AI governance. Predominantly, government is the main participant in and target of these discussions. This protagonism is well-deserved. Public entities have a variety of powers for setting the optimal marketplace conditions in the AI field. As large customers, they can design incentives for the creation and growth of responsible AI use by firms. As arbiters of social norms, they can push for beneficial soft laws that spread throughout the rest of the country. As stewards of public resources, they can improve their own operations through AI deployment.

The bespoke procurement database generated for this piece reflects growing interest in the relationship between this field and AI. Attention to the relevance of this relationship will undoubtedly increase in importance as AI technology gains more capabilities to serve humanity.

Phillips on Identifying the "Public" for Public Meaning Originalism (Link Fixed)

James Cleith Phillips (Chapman University, The Dale E. Fowler School of Law) has posted Which Original Public? (Chapman Law Review, Vol. 25, No. 2, 2022) on SSRN.  Here is the abstract:

Original public meaning originalism seeks to know what the Constitution would have meant to an ordinary person at the time a specific provision was enacted. So originalist scholars tend to look to see what the Constitution’s words would have meant to an ordinary, average, or competent user of American English at the time a specific constitutional provision was adopted. In District of Columbia v. Heller, however, Justice Scalia’s majority opinion took a more specific view of exactly who qualified as the ordinary person of interest. At one point Heller declares that the “Constitution was written to be understood by the voters.” Yet in the very next sentence, Heller notes that “meanings that would not have been known to ordinary citizens in the founding generation” are excluded. However, these are not the same populations—or, as linguists would say, speech communities —in two ways. First, many citizens could not vote, with voting limited in some states based on requirements such as property ownership, and with few women, able to vote. Second, some voters were not “ordinary,” either generally or in their language use. Most, if not all, of the Founders would not fit this description.

This raises an important methodological question for original public meaning originalism. Performing original public meaning originalism requires looking at how the general public used and understood language. But which portion of the public is the correct one for determining the Constitution’s meaning? Heller proposes two possibilities: voters and “ordinary” citizens. If we go with the latter group, how would we define “ordinariness?” Yet there are other possibilities besides these two populations. What about all citizens, regardless of their “ordinariness?” Alternatively, we could look to the Constitution itself. Its preamble declares that “We the People” ordained and established it. Who would have been understood to be “We the People” in 1789, and are they the proper public for originalism’s inquiry? One could imagine other publics, such as everyone permanently in the United States, regardless of their ability to vote or citizenship status. Originalism has been theoretically fuzzy as to who qualifies as the original public from which meaning must be sought. This essay seeks explore the possibilities in hopes of further theoretical refinement to enable more focused originalist methodology.

I've fixed the link and moved to the top of the blog.

Highly recommended. For a different take on this question, see The Public Meaning Thesis.

Tanguay-Renaud on Gardner & State Crimes

François Tanguay-Renaud (Osgoode Hall Law School, York University) has posted State Crimes (Michelle Madden Dempsey and François Tanguay-Renaud (eds.), From morality to law and back again: Liber Amicorum for John Gardner (Oxford University Press, Forthcoming)) on SSRN.  Here is the abstract:

Is a category of state crimes theoretically sound and important? This chapter defends the view that it is, based on some of John Gardner’s key theoretical commitments about the possibility of state agency and wrongdoing. The central contention is that the category of state crimes is useful as a means of singling out those condemnable state wrongdoings that warrant punishment. Other existing normative categories such as state injustices and violations of human rights are not sufficiently discerning to pick out this important subset of state wrongs. The category also helps focus inquiries about the justification of the more deliberately burdensome responses that may be imposed on states—be it internationally or domestically, institutionally or popularly—for their morally graver legal wrongs. Punishments of states for such wrongs must be considered, I argue, as they may be justified in terms of their deterrence effect, but also as symbolically marking these wrongs and, to a lesser (and more questionable) extent, as giving states their just desert.

Legal Theory Lexicon: Restraint and Constraint in Constitutional Theory

Introduction

The idea that judges should not unduly interfere in decisions made by the political branches is a familiar trope in both popular discourse about the Constitution and in constitutional theory.  One aspect of this idea connects with the notions of "judicial activism" and "strict construction" that are discussed in a previous Legal Theory Lexicon entry.  Another aspect of this discourse concerns the ideas of judicial restraint and constraint.

One of the difficulties with discussion of restraint and constraint is that these ideas have been imprecise and ambiguous.  Is restraint simply inaction?  Or does constraint have to do with the idea that courts should be bound by the constitution?  These two notions are not the same.  The constitution might require action that interferes with the political branches, but it might require inaction as well.

Thomas Colby has made a metalinguistic proposal to sort out the potential confusion.  Here is the way he put the suggestion:

(“[A]lthough originalism in its New incarnation no longer emphasizes judicial restraint--in the sense of deference to legislative majorities--it continues to a substantial degree to emphasize judicial constraint--in the sense of promising to narrow the discretion of judges. New Originalists believe that the courts should sometimes be quite active in preserving (or restoring) the original constitutional meaning, but they do not believe that the courts are unconstrained in that activism. They are constrained by their obligation to remain faithful to the original meaning.”).

Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011).  Colby's idea is that we can stipulate that "restraint" refers to deference and that "constraint" refers to the a requirement of consistency with the constitutional text.

The remainder of this Lexicon entry develops Colby's proposal.

The Restraint-Constraint Distinction

Let's begin with stipulated definitions of "restraint" and "constraint."  We can stipulate as follows:

• Restraint: A judicial decision is stipulated to be “restrained” if and only if the decision defers to decisions made by executive officials or statutes enacted by a legislative body.  Example: Refusing to strike down a statute would be an instance of restraint.
• Constraint: Constitutional practice (by judges or other officials) is stipulated to be “constrained” if and only if the actions taken by officials are consistent with the communicative content of the constitutional text.  Example: Striking down a statute because it violates the original meaning of the First Amendment would be an instance of constraint.

Notice that only judicial decisions can be restrained in the stipulated sense, but that the actions of any official can be constrained by a requirement of consistency with the communicative content of the constitutional text. We can represent the possible interactions between constraint and restraint via the following table:

 

The stipulated version of the restraint-constraint distinction allows us to disentangle some of the confusions in discourse about the proper role of the courts.  Critics of the Warren Court were especially concerned about cases that they saw as properly classified in the lower-right quadrant of the two-by-two matrix.  For example, some critics of the Warren Court may have believed that the Court's privacy decisions (e.g., Griswold v. Connecticut) were cases in which the had acted in a way that was both unrestrained (interfering with an action by the state legislature) and unconstrained (not based on the constitutional text).  But what about actions that fall in the lower left quadrant--cases in which the Court upholds legislation but in a way that is inconsistent with constitutional text?  For example, some constitutional lawyers believe that many of the New Deal cases should be classified as restrained but unconstrained.  The decision in Wickard v. Filburn might be an example: the Court deferred to Congress but acted in a way that is inconsistent with the constitutional text--by assumption for the purposes of the example.  On such cases, critics of the Court may split, with some agreeing that  these New Deal cases are praiseworthy because they illustrate judicial restraint, but others complaining that these decisions are contrary to the text and hence unconstrained.

Connection with Judicial Activism

The  restraint-constraint distinction enables us to understand why "judicial activism" became an ambiguous concept.  "Activism" became a contrast word for both restraint and constraint and sometimes for just a lack of restraint or just a lack of constraint.  When applied to cases in the lower right quadrant of the matrix (unrestrained and unconstrained), everyone could agree that the label "judicial activism" properly applies, but when the case fell into either the upper right quadrant (unrestrained but constrained) or the lower-left quadrant (restrained but unconstrained), the ambiguity in the meaning of "judicial activism" is revealed.

This leads to a proposal for the disambiguation of "judicial activism": we can reserve this term for decisions that unrestrained and hence are in the left-hand column of the two-by-two matrix.  This would end confusion about the meaning of "judicial activism" and hence improve the quality of discourse about constitutional theory.

Stipulation versus Metalinguistic Negotiation

So far, I have been suggesting the constitutional theorists stipulate the meaning of "judicial restraint" and "judicial constraint" along the lines suggested by Colby.  So long as the stipulations are clearly presented and understood, that should be sufficient to reduce the level of confusion in academic writing about constitutional theory.  But we can go one step further and engage in what philosophers of language have called "metalinguistic negotiation."  That is, we can try to change the way that the words are used so that the stipulated definitions become the accepted meanings.

Engaging in explicit metalinguistic negotiation requires that we present reasons for our metalinguistic proposal.  Why should we use the phrases "judicial restraint" and "judicial constraint" in the way that Colby proposed (and I endorse)?  That is, we need to advance arguments of conceptual and linguistic ethics--arguments about what concepts we should employ and what words we should use to represent those concepts.  The conceptual advantages of the restraint-constraint distinction have already been explored: the distinction makes debates in constitutional theory clearer and more precise.  And I think there are linguistic advantages as well.  The ordinary meaning of "constraint" is well adapted to the role that word plays in the concept of judicial constraint that Colby proposes.  The ordinary meaning of "restraint" serves well to express the deference-related concept of judicial restraint.

Conclusion

As always, this entry in the Legal Theory Lexicon is addressed to students (and especially first-year law students) who are interested in legal theory.  There are many further complications that take off from this introduction, including conceptual issues about the precise definitions and possible variations of restraint and constraint and theoretical issues about the very idea of metalinguistic negotiation.  But I hope that this simplified introduction is sufficient to enable readers to think further about these issues.

One final point.  Constitutional theory is a highly impacted field of discourse.  Saying something genuinely new is rare; saying something that is both new and useful is even rarer.  I do not know for sure that Thomas Colby was the first to use the restraint-constraint distinction, but I think he was.  We all owe him thanks.

Related Lexicon Entries

• Legal Theory Lexicon 035: Strict Construction and Judicial Activism
• Legal Theory Lexicon 071: The New Originalism

Bibliography

• Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 751 (2011).
• David Plunkett and Timothy Sundell, Antipositivist Arguments from Legal Thought and Talk: The Metalinguistic Response in Pragmatism, Law, and Language 56-75. (G. Hubb and D. Lind eds. 2014).

(Last revised, July 26, 2022)

Legal Theory Bookworm: "Shared and Institutional Agency" by Bratman

The Legal Theory Bookworm recommends Shared and Institutional Agency: Toward a Planning Theory of Human Practical Organization by Michael E. Bratman.  Here is a description:

Our human lives involve remarkable forms of practical organization-- diachronic organization of individual activity; small-scale organization of shared action; and the organization of institutions. In this book, Michael Bratman argues that the key to these multiple, inter-related forms of human practical organization is our capacity for planning agency. Drawing on earlier work on the roles of planning agency in our human, cross-temporal and small-scale social organization, it focuses on the role of planning agency within our organized institutions, whether a religious congregation, a small business, a professional association, a city council, a university, a non-profit organization, a corporation, a political party, a legal system, or a democratic state.

Shared and Institutional Agency draws on ideas, inspired by H.L.A. Hart, that our organized institutions are rule-guided, and that to understand this, we need a theory of social rules. This book develops a planning theory of social rules and puts forth an organized institution as involving authority-according social rules of procedure. This supports a model of organized institutions that makes room for pluralistic divergence and leads to a model of institutional intention and institutional intentional agency. The view that emerges sees our capacity for planning agency as a core
capacity that underlies not only string quartets and informal social rules, but also the rule-guided structure of organized institutions and institutional agency.

An important book with implications for many discrete problems in legal theory.

Download of the Week: "Puzzles of Progressive Constitutionalism" by Gould

Jonathan Gould (University of California, Berkeley - School of Law) has posted Puzzles of Progressive Constitutionalism (Harvard Law Review, Vol. 135, No. 8, p. 2054, 2022) on SSRN.  Here is the abstract:

This Review examines the relationship between progressivism and constitutionalism. In doing so, it considers three different ways of thinking about a constitution’s role in a political system. First is constitutionalism as a distinct ideology of governance in which an apex court plays a major role in deciding issues of public policy and articulating national values. Second is the way constitutional culture prompts political actors to argue for their preferred policies in constitutional terms, even when calling for legislative rather than judicial action. Third is constitutional design, the rules of the political game that dictate how lawmaking takes place. Each of these three lenses reveals distinctive costs that confront progressives engaged in constitutional politics. Courts that play an outsized role in policymaking can impede progressive agendas. A narrow band of acceptable constitutional arguments can make it hard for progressives to make the best case for their preferred policies. And efforts at institutional reform are made challenging by conflicting progressive commitments and fear of how a less restrained government could be deployed by conservatives. While progressives have no practical choice but to engage in constitutional politics, that reality should not obscure the difficulties that constitutional politics, as currently practiced in the United States, pose for progressive agendas.

Highly recommended.

Antognini & Appleton on Sexual Agreements

Albertina Antognini (University of Arizona James E. Rogers College of Law) & Susan Frelich Appleton (Washington University in St. Louis - School of Law) have posted Sexual Agreements (Washington University Law Review, Vol. 99, No. 6, 2022) on SSRN.  Here is the abstract:

Few would find it surprising that an agreement for sex falls outside the bounds of contract law. Prostitution—defined as an exchange of sex for money—has long been a crime, a point that courts often make in declining to enforce agreements between unmarried partners. In fact, courts routinely invalidate contracts when sex forms the basis of a couple’s bargain, whether married or not, and whether the sex is explicit or inferred from the relationship itself.

A closer look at the legal treatment of sexual agreements, however, tells a more complicated story. Although courts reject sex as consideration for being “meretricious” or “immoral” and invoke the illegality of prostitution as the reason for this limit, sex not only can form a part of some contracts, it is inherent to the very definition of certain relationships. While courts reject private agreements between spouses regarding sex, they nonetheless deem sex “essential” to the existence of marriage, and they quantify just how much sex matters when considering loss of consortium claims. Moreover, several contemporary developments cast doubt on the proposition that sex, or a perceived similarity to prostitution, must always doom agreements. In the parentage context, for example, legislatures and courts increasingly treat paid surrogacy arrangements as enforceable contracts, rejecting earlier arguments that emphasized the parallels to illegal sex work. Courts have also become more willing to acknowledge parentage agreements that involve sexual conception, and surrogate partner sex therapy and adult entertainment employment have escaped legal sanction. Beyond the incipient recognition of sexual arrangements as legal contracts, contract-based ideas have become salient in contemporary sexual regulation. Modern understandings of crimes like rape and sexual assault emphasize sexual autonomy and make consent and its absence the pivotal considerations, displacing earlier elements of force, resistance, gender, and nonmarriage.

This Article juxtaposes the traditional approach to sexual contracts with the emerging convergence of sex and contract. In so doing, this Article argues that what is frustrating couples’ contracts, both in and out of marriage, is neither sex, nor prostitution, but rather marriage itself. Given that sex is not actually differentiating the contracts that courts enforce from those they do not and given the various inequities that result from the current system, this Article ends by considering what it would mean to carry the contractual approach to its logical conclusion by recognizing sex itself as subject to contract.

Ni Aolain, Haynes, & Cahn on "On the Frontlines: Gender, War and the Post-Conflict Process"

Fionnuala D. Ni Aolain (University of Minnesota Law School; The Queens University of Belfast), Dina Francesca Haynes (New England Law | Boston), & Naomi Cahn (University of Virginia School of Law) have posted Revisiting On the Frontlines (in LEADING WORKS IN INTERNATIONAL LAW (Donna Lyons, ed. 2022)) on SSRN.  Here is the abstract:

This chapter, a contribution to the forthcoming edited volume Leading Works in International Law, revisits our book On the Frontlines: Gender, War and the Post-Conflict Process (2011). The chapter discusses our collective effort to capture the diverse stories, experiences and viewpoints of women and girls in conflicted societies, because we were deeply dissatisfied with the ways in which international law theorization and analysis failed to recognize the breadth and complexity of those experience and failed to appreciate their relevance to the legal regulation of war and peace. At that time, although the international community was using the language of “women, peace and security,” based on the formative 2000 Security Council Resolution, we identified both theoretical and policy gaps in the international law and transitional justice literatures and wanted to draw together critical discussions on gender (broadly defined) in the context of war, post war transitional justice and “nation building” efforts. The chapter concludes by reflecting on the book’s legacy.

Goldenziel on Lawfare & the Russia-Ukraine Conflicts

Jill I. Goldenziel (Marine Corps University-Command and Staff College; University of Pennsylvania) has posted An Alternative to Zombieing: Lawfare between Russia and Ukraine and the Future of International Law on SSRN.  Here is the abstract:

Lawfare, the purposeful use of law as a weapon of war, has been an integral feature of the Russia-Ukraine conflict. Russia has used lawfare to complicate Ukraine’s response to its invasion of Crimea and the Donbas, most famously through use of “little green men” to create plausible deniability for its military actions. Ukraine has launched a novel and highly public “Lawfare Project,” filing cases before the International Court of Justice, European Court of Human Rights, International Tribunals on the Law of the Sea, and World Trade Organization, with an investigation by the International Criminal Court also underway. This lawfare strategy has bolstered the legitimacy of Ukraine’s cause, delegitimized Putin, garnered Western support for the war, cost Russia billions, and helped keep China on the sidelines. Lawfare between Russia and Ukraine has tremendous implications for the use of lawfare in armed conflict and the future of international law itself.

Gluck, Nabavi-Noori, & Wang on Gun Violence Litigation

Abbe R. Gluck (Yale University - Law School), Alexander Nabavi-Noori (Government of the United States of America - Senate), & Susan Wang have posted Gun Violence in Court (Journal of law, medicine & ethics 2020) on SSRN.  Here is the abstract:

Litigation cannot solve a public health crisis. But litigation can be an effective complementary tool to regulation by increasing the salience of a public health issue, eliciting closely guarded information to move public opinion, and prompting legislative action. From tobacco to opioids, litigants have successfully turned to courts for monetary relief, to initiate systemic change, and to hold industry accountable. For years, litigators have been trying to push firearm cases into their own litigation moment. The recent success of the opioid litigation provides a tantalizing model for those who would turn to courts for gun control. But litigation against the gun industry poses special challenges. Not only has the regulatory regime failed to prevent a public safety hazard, Congress has consistently underfunded and understaffed the relevant regulatory actors. And in 2005, it legislatively immunized the gun industry from suit with the Protection of Lawful Commerce in Arms Act (PLCAA) — a protection not replicated in any other field. Over the last several decades, victims and stakeholders suing the gun industry have had limited success; victories remain confined to individual actors and unlike high-impact public litigations in other areas, aggregate class actions and major public litigation led by state attorneys general are noticeably absent in the firearm context. Industry-wide, high leverage lawsuits have been critical turning points in suits involving other high-risk products. Why not for guns?