Legal Theory Blog

Zamboni on Constitutionalism in Sweden

Mauro Zamboni (Stockholm University - Faculty of Law) has posted The Role of Constitution in Sweden: Its Normative Patchy Floor and Its (Half-Way) Journey From Political to Legal Constitutionalism on SSRN.  Here is the abstract:

If one thinks about the constitution in a well-established democracy, he or she certainly contemplate it as being the most important legal, political, and (to some extent) social document according to which the life of an entire national community has to be mold. Constitutions not only contain the basic structuring of a state in its fundamental components; they also indicate the fundamental values according to which (and for the fulfillment of which) both public and private actors have to operate. In a metaphorical sense, the constitution is the ground floor which each democracy is built upon.

However, if one starts to look around the realities, he or she can easily notice how this ideal-typical picture is exactly ideal-typical. In this respect, also Sweden can be said to belong to those well-established democracies which present an idea of constitution as “divergent” from the ideal-typical one of being the legal floor upon which the regulation of the entire national community should be built upon. In particular, the Swedish constitutional ground floor appears to have a nature of legal normativity of an uneven or “patchy” character. For various reasons, constitutional documents (or parts thereof) which should normally be considered as the bearing floor of a well-established and well-functioning Western-style democracy, they are instead generally perceived and used by both the Swedish legal and political actors more as “aspirational” policy documents, not really binding them and offering them a rather broad space of legal and political maneuver.

The purpose of this work is to present both this perception (and use) of the constitutional charters in Sweden which appears to deviate from the ideal-typical one and the factors behind such a “political” (rather than legal) role played by the parts of the constitutional provisions in the national legal discourse. At the same time, this work will also point out how some of these factors have recently changed and therefore it is maybe possible to detect nowadays tendencies pushing the Swedish major legal actors into a more “legal” vision of the constitution as “per se” fundamental floor for every legal and political discourse.

Ali on Cultural Divergence in International Arbitration Practice

Shahla F. Ali (The University of Hong Kong - Faculty of Law) has posted Fluidity of Culture: Convergence and Informed Divergence in Cross Border Arbitration on SSRN.  Here is the abstract:

The theme of sustainable diversity in international arbitration necessarily calls for an examination of the broader question of cultural convergence and divergence in international arbitration practice. Examining both the convergence and divergence of approaches to arbitration in diverse settings provides an avenue to understanding the impact of globalization on the international practice of law.

Lixinski, McAdam, & Tupou on Oceans, Cultural Heritage, and Mobility Law

Lucas Lixinski (University of New South Wales (UNSW)), Jane McAdam (University of New South Wales (UNSW) - Faculty of Law & Justice), & Patricia Tupou (Australian National University (ANU) - Crawford School of Public Policy) have posted Ocean Cultures, the Anthropocene, and International Law: Cultural Heritage and Mobility Law as Imaginative Gateways (23(1) Melbourne Journal of International Law (2022)) on SSRN.  Here is the abstract:

This article argues that international legal responses to the Anthropocene cannot be adequately designed or implemented unless peoples’ cultural relationships with the oceans are taken into account. Drawing on the voices of Pacific peoples and their descriptions of the ocean as territory and a source of identity, we debunk the idea of the ocean as a static or transient place, arguing instead that it is a core element of ‘territory’, place and belonging. International cultural heritage law offers a pathway for leveraging these narratives into international legal regimes, including the development of international mobility regimes. To the extent that Pacific peoples are set to bear the brunt of the costs of the Anthropocene, and because their relationships with the oceans provide innovative ways of rethinking the design and implementation of international law, it is imperative that their voices are brought to the fore.

Shechter on Pareto-Optimal Multi-Objective Congressional Reapportionment

Steven Shechter (University of British Columbia (UBC) - Sauder School of Business) has posted Congressional Apportionment: A Multi-Objective Optimization Approach on SSRN.  Here is the abstract:

Two events, with major implications for U.S. voters, occur after each decennial census. First, congressional ``apportionment'' takes place, followed by congressional ``districting.'' Apportionment determines how to allocate the 435 seats in the House of Representatives across the 50 states, whereas districting determines the geographic boundaries assigned to representatives within each state. While districting and the practice of gerrymandering often receive great attention in the media and courts, the best way to apportion representatives across states has been debated for nearly 250 years. Historical methods (including the present method) each satisfy some desirable optimality criteria that the others are not guaranteed to satisfy. Moreover, none are guaranteed to optimize certain reasonable fairness measures (e.g., minimum range). To our knowledge, we are the first to formulate and analyze a multi-objective optimization approach to apportionment, allowing policy makers to identify Pareto-optimal allocations and quantify their tradeoffs between several competing criteria. Pareto curves from historical censuses and simulations suggest opportunities for improvement in some objectives at little sacrifice to others.

Hortal on Virtue Nudges

Alejandro Hortal (University of North Carolina (UNC) at Greensboro; Wake Forest University - Department of Philosophy) has posted Virtue Nudges: Using Choice Architecture to Form Virtuous Citizens on SSRN.  Here is the abstract:

Nudges are policy interventions intended to change people’s behaviors and habits by organizing the choice environment. They aim to facilitate the right behavior as judged by people themselves according to some objective or consensual version of wellbeing. Nudges are utilized to boost vaccinations, increase contributions to retirement accounts, or improve healthy habits in citizens. Considering the increasing number of governments and agencies employing them, some authors (Iyer 2016; Niker 2018) have wondered about the possibility of using them to help develop virtues. This paper aims to answer that question, arguing that nudges are interventions that have the potential to assist in the formation of virtuous people efficiently. They do so by inculcating or helping maintain habits in individuals, respecting their freedom to choose while guaranteeing deliberation. This paper also claims that when those habits are related to virtues, they can be classified as virtue nudges. This new category includes precisely the types of nudges that seek behavioral change through habit formation tied to virtues. Consequently, considering their low cost, potential effectiveness, and libertarian approach, the article claims that governments and other institutions should seek ways to use them in conjunction with different types of interventions to promote and form a virtuous life.

Mann on the Right to Science

Sebastian Porsdam Mann (University of Oxford) has posted The Right to Science or to Wissenschaft? A Chronology and Five Lessons from the Travaux Préparatoires on SSRN.  Here is the abstract:

Based on a detailed chronology, I argue that the drafting history of the right to science (Article 15 of the International Covenant on Economic, Social and Cultural Rights) contains important lessons for contemporary scholarship. The drafters understood ‘science’ broadly as a serious search for truth, worth protecting and promoting because it contributes to human wellbeing and to the full development and expression of the human personality. To ensure these benefits of scientific progress for all (Article 15(1)b), the drafters included a series of specific implementation measures modelled on UNESCO’s constitution (Article 15(2-4)) and intended to facilitate the free exchange of persons, equipment, ideas, and information. This exchange was seen as essential for the ability of science to progress. The drafters distinguished between the development of science itself, which must be as free as possible, and the applications of scientific development, on the uses of which aims and purposes may legitimately be imposed to prevent abuses. On the basis of this historical understanding, I argue that one object and purpose of the right to science is to facilitate, and encourage participation in, the search for truth for the benefit of all, and call for further discussion of the scope of ‘science’.

Kelsall on Critical Approaches to International Law

Michelle Staggs Kelsall (SOAS University of London) has posted Disordering International Law on SSRN.  Here is the abstract:

This article examines critical approaches to liberal internationalism in international law. It argues that, despite ongoing disavowals of the liberal international legal order, most critical international lawyers are yet to let go of liberal vocabularies in order to re-imagine how order might be constituted anew. The article proposes a disordering critique of international law. Disordering international law comprises a process of reflective discernment. Through this process, norms, conventions and principles are determined with reference to a multiplicity of spatial and temporal orders and reframe any understanding of how legal order is constituted internationally. Drawing from the concept of non-duality proposed by Ratna Kapur and the writings of Justice Cançado Trindade, it then conceptualizes a disordering sensibility. Scholars embarking on international legal disordering would ask: how do I understand the arrangement or disposition of people or things in relation to each other? How is ‘order’ determined as a result? What sequence, pattern or method am I imposing and how does that affect any characterization of ‘legal’ ordering? Whose knowledge is included, whose knowledge is excluded and why? The analysis, however, does not stop there. The further and final questions to ask are: how does this change any conception of legal ordering that remains central to the practice of international law? And how might we begin to conceptualize that order and practice differently? The return to practice provides a path towards change, which the article argues is urgently needed. I commence with some answers to these questions and hope to open a space for further disordering, premised on a turning away from dominant liberal frames.

Legal Theory Lexicon: Issue-Level and Meta-Level Questions

Introduction

There is a fundamental distinction between two kinds of questions that lawyers and judges ask.  Let's begin with some examples of what we can call "issue-level questions":

• What is the standard of care in a negligence action?
• What is the proper test for federal question jurisdiction under 28 USC §1331?
• Are laws that classify on the basis of sexual orientation subject to heightened scrutiny under the Equal Protection Clause?

These issue-level questions can be contrasted with what we can call "meta-level questions."  Here are some examples:

• Should tort law be based on ex post considerations of fairness or ex ante assessment of welfare?
• Should the interpretation of statutes be guided by the plain mean of the text, the objective purpose of the statute, or the subjective intent of the legislature?
• Should the interpretation of the constitutional text be guided by originalism or by some form of living constitutionalism?

In the first year of law school, students encounter countless issue-level questions, usually explored by discussing the cases in which they arise. Frequently, one aspect of the discussion concerns the normative question: "what should the law be?"  In common law courses, that discussion might focus on ex post considerations of fairness or ex ante consideration of policy consequences.  Those discussions are about issue-level questions. 

What about the meta-level?   At many law schools, the meta-level questions are rarely discussed explicitly, although they may be lurking in the background.  If there is a required course in Legislation and Regulation, there might be a unit on statutory interpretation and construction.  Some constitutional law courses spend a class session or two on originalism versus living constitutionalism.  Common law courses frequently include some cursory discussion of the question whether common law is discovered or made.

This entry in the Legal Theory Lexicon provides a brief introduction to the distinction between issue-level questions and meta-level questions.  As always, the Lexicon is written for law students, especially first year law students, with an interest in legal theory.

The Basic Distinction

The intuitive idea of the distinction between issue-level questions and meta-level questions is not difficult to grasp.  When the word "meta" is attached to some other word, it usually indicates conceptual ascent--going up a level of abstraction.  But "meta" indicates something else as well.  Metaethics is about fundamental assumptions in normative ethics.  Meta-level questions are about the resolution of issue-level questions. Thus, a meta-level theory of statutory interpretation aims to guide the resolution of issue-level questions about the interpretation and construction of particular statutes.  A meta-level theory of constitutional interpretation and construction tells us how to resolve issue-level questions of constitutional doctrine.  A meta-level theory of the common law instructs judges as to how they are to engage in common-law decisionmaking.

The Domains of Meta-Level Theorizing

Some meta-level theorizing takes place at a very high level of abstraction.  For example, the phrases "legal formalism" and "legal realism" (or "legal instrumentalism") are sometimes used as labels for very abstract normative legal theories.  When the words are used in this way, legal formalism combines a preference for rules over standards with the view that judges ought to consider themselves bound by written constitutional provisions, statutes, and precedent.  Legal realism is harder to pin down, but some strands of legal realism endorse standards over rules and counsel judges to attend to considerations of policy and principle; other strands of realism counsel judges to attend to the particular facts of the cases that are before them and eschew grand theories.  Many realists or instrumentalists reject the idea that judges should consider themselves bound by constitutional and statutory texts or by the formal doctrine of stare decisis.  So, normative legal formalism and normative legal realism are meta-level theories at a very high level of generality.

Other meta-level theories are less general because they focus on specific domains of law.  Here are some examples:

Meta-Level Constitutional Theories:  There are so many different views in constitutional theory!  Simplifying, we might distinguish between originalism and living constitutionalism--both of which are really families that include many members.  These days, the predominant originalist theory is "public meaning originalism," but a few decades ago, "original intentions originalism" was more common and today there is talk for "original methods originalism" and "original law originalism"--and "living originalism" as well.  Living constitutionalist views include common-law constitutionalism, constitutional pluralism, the moral readings theory, and various forms of Thayerianism (views that emphasize deference to elected officials and therefore affirm a very restrictive view of judicial review). 
"Which constitutional theory should guide judges?" is a meta-level question.

Meta-Level Statutory Theories: There are three basic approaches to statutory interpretation and construction: textualism, intentionalism, and purposivism, but there are other approaches as well, including the ad hoc pragmatism advocated by Richard Posner.  Debates about which approach to statutory interpretation is best take place at the meta-level.

Meta-Level Theories of the Common Law: Theoretical work on the common law is more difficult to organize than is the work on statutes and constitutions.  One line of meta-level disagreement concerns the question whether common-law ought to be judge-made law or whether judges should limit themselves to the discovery of preexisting social norms and customs.  Another disagreement concerns the respective roles of principle (or deontological reasoning) and policy (consequentialist reasoning).  Ronald Dworkin's theory of law as integrity posits that common-law judges ought to decide individual issues and cases in accord with the moral theory that best fits and justifies the law as a whole.  The choice between normative theories of the common law takes place at the meta-level.

Theory and Anti-Theory at the Meta-Level

The discussion so far has assumed that meta-level questions can be distinguished from issue level questions and that meta-level questions ought to be addressed from some theoretical perspective.  But this assumption is not universally shared.  Some legal theorists have anti-theoretical views about meta-level questions.  The most well-known group of anti-theorists are the pragmatists, including RIchard Posner as well as the so-called "prairie pragmatists," Daniel Farber and Suzanna Sherry.  Another strand of anti-theory draws on "particularism"--a view that is well developed in moral philosophy.  Some of the legal realists may have had particularist views.  What pragmatists and particularists have in common is an aversion to theories that abstract away from particular issues and cases.  In one sense, the antitheorists deny that there is a true distinction between issue-level and meta-level questions, but in another sense pragmatists and particularists have meta-level theories themselves.  Pragmatism is the meta-level theory that recommends pragmatic, consequence focused decisionmaking.  Particularism is the meta-level theory that counsels judges to decide each case on the basis of its particular facts.

The Role of Meta-Level Questions in Legal Practice

Much of the work of lawyers and judges is like "normal science."  There is an agreed upon framework for analyzing issue-level questions.  Lawyers make arguments within that framework.  Judges decide cases using the framework.  Meta-level questions simply don't come up.  But it isn't always like that.  Judicial agreement that statutory interpretation should be guided by legislative intent is questions; another theory, textualism, gains adherents on the bench.  Once this happens, meta-level questions arise.  There is a particular statute that raises an issue level question.  The legislative history of the statute indicates that Congress wanted the question to come out one way, but the plain meaning of the statutory text suggests a different answer.  The case now hinges on a meta-level question: which approach to statutory interpretation and construction should the court use?

In recent years, meta-level questions of constitutional theory have have arisen in the Supreme Court on a regular basis.  One of the consequences of the appointment of a significant number of originalist judges to the lower federal courts is that meta-level disputes between originalist and living constitutionalist judges have begun to surface explicitly in judicial opinions at the Court-of-Appeals level.

Conclusion

Once you become aware of the distinction between issue-level and meta-level questions, it becomes apparent that both kinds of questions are pervasive, both in law school and in legal practice.  Many of the most controversial issues in American law are controversial precisely because of a meta-level disagreement.

Related Lexicon Entries

• Legal Theory Lexicon 001: Ex Ante/Ex Post
• Legal Theory Lexicon 008: Utilitarianism
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 032: Fit and Justification
• Legal Theory Lexicon 043: Formalism and Instrumentalism
• Legal Theory Lexicon 067: The Priority of the Particular
• Legal Theory Lexicon 077: Living Constitutionalism
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction
• Legal Theory Lexicon 095: Open and Contested Questions of Law

Bibliography

Although there distinction between "issue-level questions" and "meta-level questions" is well understood by legal theorists, there is, so far as I know, no literature on the distinction itself.  There are analogous terminological issues in philosophy.

• Geoff Sayre-McCord, Metaethics, Stanford Encyclopedia of Philosophy (2012).

(Last modified on November 27, 2022.)

Legal Theory Bookworm: "Ignorance and Moral Responsibility" by Zimmerman

The Legal Theory Bookworm recommends Ignorance and Moral Responsibility by Michael J. Zimmerman.  Here is a description:

Michael J. Zimmerman investigates the relation between ignorance and moral responsibility. He begins with the presentation of a case in which a tragedy occurs, one to which many people have unwittingly contributed, and addresses the question of whether their ignorance absolves them of blame for what happened. Inspection of the case issues in the Argument from Ignorance, whose conclusion is that, to be blameworthy for one's behaviour and its consequences, one must at some time in the history of that behaviour have known that one was engaged in wrongdoing-a thesis that threatens to undermine many everyday ascriptions of responsibility. This argument is examined and refined in ensuing chapters by way of, first, a detailed inquiry into the nature of moral responsibility, ignorance, and control, all of which play a crucial role in the argument, and then an application of the fruits of this investigation to the question of whether and how someone might be to blame for behaviour that
stems from either culpable ignorance, negligence, recklessness, or the kind of fundamental moral ignorance that often characterizes evildoers. The Argument from Ignorance implies that in a great many such cases the agent has an excuse for the wrongdoing in question. This is a disturbing verdict, and in the final chapter challenges to the argument are entertained. Despite the merits of some of these challenges, it is held that the argument, revised one last time, survives them.

 

Download of the Week: "Luck Egalitarianism and the Spirit of Capitalism" by Spector

The Download of the Week is Luck Egalitarianism and the Spirit of Capitalism by Horacio Spector.  Here is the abstract:

This paper is organized in six sections. In the following section, I discuss Dworkin’s and Cohen’s views regarding the function of markets in providing a method of social assessment. I suggest that their treatment of social valuation is of limited use because it is restricted to rudimentary economic systems like the immigrants’ island and the camping trip. In section III, I argue that the principle of responsibility is indeterminate in that it lacks a criterion of social value. I also claim that a Paretian interpretation of social value is the most plausible way to give concrete meaning to the idea of responsibility defended by luck egalitarians. Section IV contends that market prices’ information and motivational functions are empirically inseparable in any large feasible or sustainable society. In Section V, I take the argument from social valuation to its conclusion that the inequalities of condition caused by market prices are a necessary feature of the Paretian interpretation of the principle of responsibility in any feasible or sustainable economic system. In other words, under the assumption that market prices are the only available method of social valuation in large societies, the principle of responsibility presupposes the adoption of a system of social valuation that runs afoul of the principle of equality. Finally, I conclude in Section VI.

Highly recommended.

Kotani on Regulation of Sexual Imagery in Japan

Junko Kotani (Shizuoka University) has posted Regulation of Sexual Expression in Japan: Criminalisation of Non-Consensual Distribution of Private Sexual Images and Beyond (Australian Journal of Asian Law, Vol. 23, No. 2, Article 9, 125-138, 2022) on SSRN.  Here is the abstract:

Sexually explicit images are regulated in Japan for different reasons. For example, obscene expression is prohibited to protect society’s minimum standards of sexual morality and ‘harmful books’ are regulated to preserve healthy environments for youth. In recent years, the non-consensual dissemination of sexual images has become a serious social problem, which disproportionately harms women in society. In response, Japan enacted the Act on Prevention of Damage Caused by Provision of Private Sexual Image Records to address this problem and protect the reputations and peaceful private lives (私生活の平穏) of victims. The Act represents a stark contrast to the traditional prohibition of sexual images intended to protect sexual morality or healthy environments in society. This article focuses on the regulation of sexually explicit images in Japan. First, it provides an overview of the history of the regulation of sexual images and explains how the problem of the non-consensual distribution of sexual images previously fell through the gaps of the legal scheme. It then examines the Private Sexual Images Act and the concept of sexual privacy protected by the Act. Finally, it discusses the controversial 2022 legislation that has challenged the country’s adult entertainment video industry.

Lee, Schoenherr, & Starmans on Legal Uncertainty and Economic Activity

Jiwon Lee (Princeton University), David Schoenherr (Princeton University, Bendheim Center for Finance; European Corporate Governance Institute (ECGI)), & Jan Starmans (Department of Finance, Stockholm School of Economics) have posted The Economics of Legal Uncertainty on SSRN.  Here is the abstract:

In this paper, we study how legal uncertainty affects economic activity. We develop a parsimonious model that generates different types of legal uncertainty, which reduce economic activity and which can be classified as idiosyncratic (i.e., diversifiable) or systematic (i.e., nondiversifiable). We test the prediction of the model using micro-level data on bankruptcy judges and corporate loans from Korea. Exploiting differences in judges' debtor-friendliness combined with random judge assignment to restructuring cases and exogenous judge rotations in the judicial system, we compute time-varying court-level measures of debtor-friendliness and legal uncertainty. We first document that firms are more likely to file for restructuring in more debtor-friendly courts with lower legal uncertainty. We further show that legal uncertainty reduces the size of credit markets. The effects are driven by high-risk firms that are most sensitive to bankruptcy law. On examining interest rates, we find that credit supply is relatively more sensitive to systematic than to idiosyncratic sources of legal uncertainty relative to credit demand.

Kim on Expectations and Corporate Prosociality

Hajin Kim (The University of Chicago Law School) has posted Expecting Corporate Prosociality on SSRN.  Here is the abstract:

Teaching people that corporations must exclusively maximize profits can reduce “win-wins”—what is both profitable and good for society. If everyone believes that corporations must maximize profits only, nobody will protest when corporate pursuits of profits harm society—the firms were fulfilling their duty and meeting investor and consumer expectations. But what if people instead believed that corporations should consider their social impacts, even sometimes at the expense of profits? Consumers, employees, and investors might be more willing to object to corporate harms by changing their purchasing, job choice, and investing behaviors or by petitioning corporate leaders for redress. Those objections would change firm incentives. And in response to those tangible incentives, even purely profit-maximizing firms would try to do more good and less harm because doing so would be more profitable.

This paper develops and empirically tests this theory of stakeholder expectations and corporate prosociality. Two preregistered studies with nearly 1300 participants provide initial empirical support for the idea that stakeholder expectations (of exclusive profit maximization or of the possibility of corporate prosociality) affect their protest decisions. Amazon Mechanical Turk workers had the opportunity to sign a real Greenpeace petition against Amazon, the platform that runs Mechanical Turk. Those randomly assigned to learn an exclusive profit maximization norm were less likely to sign the petition than those randomly assigned to learn that firms can and should care about society. Exclusive profit maximization led participants to believe it less appropriate and effective for employees to push for social change, and that fewer firms would care and fewer others would protest. Expecting corporate prosociality instead could thus plausibly make it easier for firms to do well by doing good.

Grunwald on Racial Bias in Criminal Records

Ben Grunwald (Duke University School of Law) has posted Racial Bias in Criminal Records on SSRN.  Here is the abstract:

Objectives: Government officials use criminal records as proxies for past conduct to decide who and how to investigate, arrest, charge, and punish. But those records may be racially biased measures of individual behavior. This paper develops a theoretical definition of bias in criminal records in terms of measurement error. It then seeks to provide empirical estimates of racial bias in official arrest records for a broad swath of offenses.

Method: I use official arrest and self-reported crime data from the Pathways to Desistance study to estimate Black-to-white and Hispanic-to-white crime ratios conditional on arrest. I also develop a novel, theory-based empirical test of differential reporting across racial and ethnic groups.

Results: Compared to white subjects with the same number of arrests, Black subjects committed 53, 30, 23, and 56% fewer property, violent, drug, and DUI offenses, respectively, and Hispanic subjects committed 19 and 46% fewer drug and DUI offenses. The analysis finds relatively little evidence of differential reporting that would bias my estimates upwards, with the possible exception of drug trafficking offenses.

Conclusion: The results provide evidence that Pathways subjects’ arrest records are racially biased measures of their past criminal behavior, which could bias decisions of criminal justice officials and risk assessment algorithms that are based on arrest records.

Recommended.

Patel on Fraud on the Crypto Market

Menesh S. Patel (University of California, Davis - School of Law) has posted Fraud on the Crypto Market (Harvard Journal of Law & Technology, Forthcoming) on SSRN.  Here is the abstract:

Crypto asset trading markets are booming. Traders in the United States presently can buy and sell hundreds of crypto assets on dozens of crypto exchanges, and this trading is expected to further intensify in the coming years. While investors are increasingly turning to crypto asset trading as a vehicle for portfolio appreciation and diversification, the popularization of secondary crypto asset trading risks significant investor harm through increased incidents of fraud. False or misleading statements by crypto asset sponsors or third parties have the prospect of financially impairing traders in crypto asset trading markets, including everyday traders who are ill-equipped to sustain significant investment losses. These significant investment losses will occur alongside and exacerbate any losses that traders may sustain through inherent changes in relatively volatile crypto asset prices.

As traders seek judicial redress for their fraud-related injuries, courts will be asked to make doctrinal determinations that will be pivotal to injured traders’ ability to recover. A primary issue that courts will need to confront is whether crypto asset traders can avail themselves of Fraud on the Market in connection with claims asserted under SEC Rule 10b-5 or CFTC Rule 180.1. This Article addresses that question and has as its intended audience not just academics, but also courts, practitioners, and market participants.

The Article shows that as a doctrinal matter Fraud on the Market is available in securities and commodities fraud cases involving crypto assets that trade on crypto exchanges, especially in light of the Supreme Court’s decision in Halliburton II, which resolved that Fraud on the Market is predicated on just a generalized notion of market efficiency, rather than a strict financial economic notion of efficiency. Drawing on how courts apply the doctrine to fraud cases involving stock transactions, the Article articulates a framework for how Fraud on the Market should be applied to the crypto asset context and explores methodological issues relevant to the framework’s application in a given crypto asset case.

Christensen on Justice Sites and International Criminal Law

Mikkel Jarle Christensen (iCourts, Faculty of Law, University of Copenhagen) has posted Justice Sites and the Fight against Atrocity Crimes on Cambridge Core.  Here is the abstract:

This article develops a new conceptual framework designed to critically study how locality and transversal power relations structure activity and developments in the global field of international criminal justice. The framework is built around the concept of “justice sites,” defined as localities in which organized and social labor—in this case, working with international criminal justice—takes place. The potential effects of social labor performed in specific sites of justice are structured partly by their locality and the resources to which it gives access and partly by their structural position in wider transversal chains of cooperation and competition that cut across different globalized and national fields. In addition to structuring the connections between justice sites, transversal power relations link sites of justice to “practice sites” embedded in other fields in which localized, social labor is not routinely engaged with international criminal justice. Such linkages demonstrate how the framework, developed to study how locality and transversal relations shape the fight against atrocity crimes, can also be used to investigate sites engaged in and across other globalized and national fields of justice, law, governance, and security.

Giving Thanks

It is my custom to mark Thanksgiving each year on Legal Theory Blog by giving thanks.  In the past, I have thanked my own teachers both in law and philosophy.  This year, I want to thank my students.  There have been thousands, starting 37 years ago at Loyola Law School, followed by students at the University of Southern California, Boston University, the University of San Diego, the University of Illinois at Champagne-Urbana, Georgetown University, and the University of Virginia.

As the years go by, I have come to realize that teaching is truly a two-way street--and that over the years my colleagues in the classroom have taught me much more than I have ever taught them.

One student, from my very first year of teaching, David Meadows, has been in touch for all of these years.  Thank you, David, and thanks to each and every student with whom I have shared a classroom.

Stazi on Smart Contracts

Andrea Stazi (European University of Rome - Faculty of Law; National University of Singapore (NUS) - Faculty of Law) has posted Smart Contracts: Elements, Pathologies and Remedies (Forthcoming in: Law and Change: An Asian Perspective, edited by J. Loo & N. Remolina Leon, SMU, 2022) on SSRN.  Here is the abstract:

In reviewing the characteristics of “smart contracts”, above all their peculiarities of automatic execution and resistance to tampering, the paper aims to define the characteristics and peculiarities of their binding force, legal effectiveness and regulation. Thus, the paper examines the elements, pathologies and contractual remedies for smart contracts, and the related main issues that emerge in comparative contract law.

Patrick on Trial by Jury and the Australian Constitution

Jeremy Patrick (University of Southern Queensland School of Law) has posted Trial by Jury, the Great Constitutional Bait-and-Switch on SSRN.  Here is the abstract:

Section 80 of the Australian Constitution provides for trial by jury of all Federal crimes tried by indictment. However, careless framing of the provision and over-literal interpretation by the High Court of Australia has rendered the provision a nullity. Who should bear the brunt of the blame: the framers or the High Court? This draft chapter is part of a manuscript in progress that examines provisions of the Australian Constitution that have little to no operative legal effect: either through poor drafting or poor interpretation.

Here is Section 80:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Recommended!

Begadze on Opposition Led Subnational Governments in Hungary, Poland, and Turkey

Mariam Begadze (Central European University; Central European University - Democracy Institute) has posted Playbook of Subnational Illiberalism: Autocrats face the Opposition-led Local Governments (The Hague Journal on the Rule of Law (Forthcoming)) on SSRN.  Here is the abstract:

Recognizing the growing tensions between autocrats in the center and opposition-led local governments in Hungary, Poland and Turkey since 2018-2019 local elections, the article contributes to existing literature on illiberal democracies with a subnational portion of illiberal playbook. Tactics identified through the detailed study of the European context and brief review of Latin American experience leaves us with the following categories in the playbook: abuse of (existing) supervisory and accountability mechanisms; generating of financial vulnerability; centralization (outright and indirect) and deconcentration. Each of these categories assemble various means evolving through application and reinterpretation of traditional rules pertaining to local government, as well as crisis-induced innovations. While the Polish account carries the optimism still that antecedent robust guarantees and popular support matter even when illiberals rule the center, the playbook proved successful in Hungary and Turkey. Although certain incrementalism stayed as the most vulnerable actors were the first victims of soon-to-be normalized measures, crisis in Hungary and Poland did stretch the limits to the point that ulterior motives of undermining opposition-led local governments became publicly observable. Reflecting on this phenomenon, in the end, the article poses a theoretical question whether such pretextual instrumentalization of law can itself be judicially manageable, at least in situations when clear political opponents are targeted.

Mökander, Juneja, Watson, & Floridi on U.S. Algorithmic Accountability Act of 2022 & the European Artificial Intelligence Act

Jakob Mökander (University of Oxford - Oxford Internet Institute), Prathm Juneja, David Watson (King's College London), & Luciano Floridi (University of Oxford - Oxford Internet Institute; University of Bologna- Department of Legal Studies) have posted The US Algorithmic Accountability Act of 2022 vs. The EU Artificial Intelligence Act: What can they learn from each other? (Minds & Machines (2022)) on SSRN.  Here is the abstract:

On the whole, the U.S. Algorithmic Accountability Act of 2022 (US AAA) is a pragmatic approach to balancing the benefits and risks of automated decision systems. Yet there is still room for improvement. This commentary highlights how the US AAA can both inform and learn from the European Artificial Intelligence Act (EU AIA).

Lewis on Precedent in General and a Duty to Advance the Rule of Law

Sebastian Lewis (University of Oxford) has posted Towards a General Practice of Precedent (Jurisprudence, forthcoming 2023) on SSRN.  Here is the abstract:

A general practice of precedent is one that can plausibly apply to any well-functioning legal system. This practice, which can be grounded in the Rule of Law, needs to make it the case that courts always have a legal reason for following relevant precedent -- even if the precedent is morally suboptimal, so long as it is not evil. Without this reason, a precedent may be treated as having no legal influence for the later court (‘the Null Model’), and this runs counter to the Rule of Law. On top of this reason, courts may have a general legal obligation to follow precedent -- stare decisis -- but this risks entrenching morally bad decisions in the law. We need, therefore, a type of reason that lies in between the Null Model and stare decisis as a necessary step for any future justification of stare decisis. But how can courts have a legal reason for following morally suboptimal precedent? They can have that reason, I argue, in virtue of a specific judicial duty, positively laid down in a legal source, which aims to advance the Rule of Law in an institutionalised way. In this article, I aim to explain and justify that judicial duty.

Eskauriatza on Complete Labeling and Domestic Prosecutions for Crimes Against Humanity

Javier Eskauriatza (University of Nottingham) has posted 'Complete Labelling' and Domestic Prosecutions for Crimes against Humanity (32 Criminal Law Forum (2021) 473–509) on SSRN.  Here is the abstract:

Fair labelling is an established principle of criminal justice that scrutinises the way that States use language in labelling criminal defendants and their conduct. I argue that “complete labelling” is a related but separate principle which has not received any explicit attention from commentators. Whereas fair labelling focuses, usually, on the protection of defendant’s rights, the principle of complete labelling explains and justifies whether the labels attached appropriately represent the nature and scale of the wrong done to the community. As a case study, I apply this lens in the context of regional (U.S./Mexican) criminal justice responses to crimes against humanity perpetrated by “drug-cartels” in the context of the Mexican Drug War. Successive administrations in Mexico and the U.S. have tended to charge cartel leaders (and/or their political supporters) with so-called “transnational crimes” (for example, drug-trafficking, money-laundering, bribery/corruption). This is despite the fact that many of the most powerful cartels have controlled territory, attacked entire towns, carried out acts of terror, and disappeared thousands of people. The principle of complete labelling is useful in normative terms because it helps in the critical examination of a State’s prosecutorial practices, exposing problems that might otherwise be missed. In relation to the case study discussed, for example, a focus on complete labelling helps to expose the regional prosecutorial policy as either an unjustified exercise in selectivity or, at worst, an expression of collective denial. After considering certain counteracting reflexions which speak to some of the foundational anxieties of international criminal justice, the article concludes that domestic prosecutions for crimes against humanity in the context of drug-cartels may, sometimes, be justified.

Alexander on Perry on Disproportionate Racial Impact

Larry Alexander (University of San Diego School of Law) has posted Michael Perry and Disproportionate Racial Impact (Journal of Contemporary Legal Issues, Vol. 23, No. 2, 2022) on SSRN.  Here is the abstract:

I am delighted to be contributing to this festschrift honoring Michael Perry. He and I go back a long way. He may not remember how far back, but I do. In 1980, when Michael was a faculty member at Ohio State’s law school, he organized a symposium on John Ely’s recent Democracy and Distrust, and he invited me to contribute to it, which I did. (The contributions were published in the 1981 volume of the Ohio State Law Journal.) I am not sure Michael knew me then, or why he invited me, but we have known each other and had both an intellectual and personal relationship ever since. Indeed, even as I was writing this, I was looking forward to receiving Michael’s contribution to a symposium I had organized and, COVID willing, to seeing him in person at that symposium. (Unfortunately, family matters prevented him from coming.)

I am assuming that most of the contributors to this festschrift will focus their remarks on Michael’s human rights literature. After all, international human rights, and how they should bear on constitutional adjudications in the United States, has been Michael’s preoccupation for many years and the subject of his many books. And surely it is a topic, or set of topics, that merits the attention I expect it to receive in this festschrift. Nonetheless, human rights and how they relate to the U.S. Constitution will not be my focus. I intend to look at Michael’s early work, and in particular, his work on equal protection. I think some of what Michael wrote on this topic was misguided. But I focus on it, not to find a bone to pick somewhere in Michael’s impressive body of work, but because his error in that early work has an analogue in today’s political discourse, which makes that error of many years past of contemporary importance.

Evans on a Prison Tax

Sheldon Evans (St. John's University - School of Law) has posted Punishment Externalities and the Prison Tax (California Law Review, Vol. 111, Forthcoming) on SSRN.  Here is the abstract:

Punishment as a social institution has failed to live up to the quixotic ideals of theory and has descended into the practice of mass incarceration, which is one of the defining failures of this generation. Scholars have traditionally studied punishment and incarceration as parts of a social transaction between the criminal offender, whose crime imposes a cost to society, and the state that ensures the offender repays this debt by correcting past harms and preventing future offenses. But if crime has a cost that must be repaid by the offender, punishment also has a cost that must be repaid by the state. These social costs of punishment start by impacting the offender, but inevitably ripple out into the community.

While the costs of crime remain a predominant theme in criminal justice, scholars have also recorded the economic, political, and social costs of punishment. This Article contributes to this literature by proposing a paradigm shift in punishment theory that reconceptualizes punishment as an industry that produces negative externalities. The externality framework recognizes punishment and its practice of mass incarceration as an institution that purports certain benefits, but also must be balanced with the overwhelming social costs it produces in the community.

Viewing punishment and the carceral state as an externality problem that accounts for community costs creates a unique synergy between law & economics and communitarianism that deepens punishment theory while carrying the practical value of exploring externality-based solutions. This Article argues for a Pigouvian prison tax, among other externality solutions, that will gradually lower the prison population while reinvesting revenue in the most impacted communities to mitigate punishment’s social costs in future generations.

Spector on Luck Egalitarianism and Capitalism

Horacio Spector (University of San Diego School of Law; Universidad Torcuato Di Tella) has posted Luck Egalitarianism and the Spirit of Capitalism (Journal of Contemporary Legal issues, Vol. 23, No. 2, 2022) on SSRN.  Here is the abstract:

This paper is organized in six sections. In the following section, I discuss Dworkin’s and Cohen’s views regarding the function of markets in providing a method of social assessment. I suggest that their treatment of social valuation is of limited use because it is restricted to rudimentary economic systems like the immigrants’ island and the camping trip. In section III, I argue that the principle of responsibility is indeterminate in that it lacks a criterion of social value. I also claim that a Paretian interpretation of social value is the most plausible way to give concrete meaning to the idea of responsibility defended by luck egalitarians. Section IV contends that market prices’ information and motivational functions are empirically inseparable in any large feasible or sustainable society. In Section V, I take the argument from social valuation to its conclusion that the inequalities of condition caused by market prices are a necessary feature of the Paretian interpretation of the principle of responsibility in any feasible or sustainable economic system. In other words, under the assumption that market prices are the only available method of social valuation in large societies, the principle of responsibility presupposes the adoption of a system of social valuation that runs afoul of the principle of equality. Finally, I conclude in Section VI.

Highly recommended.

Bronsther & Krishnamurthi on Optional Legislation

Jacob Bronsther (Michigan State University - College of Law) & Guha Krishnamurthi (University of Oklahoma College of Law) have posted Optional Legislation (107 Minnesota Law Review (forthcoming 2022)) on SSRN.  Here is the abstract:

Not since the 19th Century has partisanship been this intense. The only thing that Democrats and Republicans can agree upon, it seems, is that “Washington is broken.” Beyond the chimeras of bipartisanship or enduring one-party rule, this Article proposes a new solution to legislative dysfunction in Washington: optional legislation. Imagine that states could opt in to a federal program—say, universal basic income or Medicare for All—on the condition that they alone foot a higher tax bill to pay for the plan. States that opt out are completely unaffected because they do not have to contribute funds. Given that each party controls its own set of states, optional legislation enables each party to govern at the federal level with a degree of independence from the other. By comparison to nationwide bills that have the support of a single party, optional legislation would not only be more politically viable and resilient, but would also lead to more innovative and democratic policies. Optional bills hypercharge the “laboratories of democracy” afforded by our federal system, given that they enable states to experiment with programming that they would be unable or unwilling to administer on their own. This Article thus presents a new form of federalism engineered for eras of extreme partisan discord. Washington is indeed broken, and optional legislation can help fix it.

Interesting and recommended.

Kirchner on the Arctic Council and the Second Cold War

Stefan Kirchner (University of Lapland, Arctic Centre) has posted 'Enduring Value': Preserving the Arctic Council in the Second Cold War on SSRN.  Here is the abstract:

The escalation of Russia’s war against Ukraine since 24 February 2022 has impacted the international cooperation in the Arctic to a point at which the future of the Arctic Council (AC), the premier forum for international cooperation in the Arctic, is in doubt, at least as long as Russia holds the rotating chairmanship, which it is due to pass over to Norway in spring of 2023. The new U.S. Arctic Strategy that was published in October 2022 aims to preserve the Arctic Council as a forum, in line with earlier statements by the seven Western Arctic states (A7). This text aims to put these efforts into the wider context of Arctic governance, discussions on the role of hard security questions in the context of Arctic governance, and the reality of the new Cold War that has also reached the Arctic. Looking at these issues from the perspective of public international law, it is shown that the current situation, in particular the war of aggression and crimes of genocide committed by Russia against the civilian population of Ukraine, means that the conditions for a continued cooperation with the Russian Federation are currently not present. The task at hand, for those in the A7 that are tasked with Arctic diplomacy in fora such as the AC, is to remain steadfast in the defence of international law. As Arctic governance in Russia is entering a dark age, it is up to the West to preserve the tools necessary for a hypothetical return to a more complete approach to Arctic governance. This includes in particular the achievements that have been made in the field of International Arctic Law since the end of the first Cold War. This text aims to contribute to these long-term efforts, while emphasizing the importance of the protection of international legal standards in the present.

Akech on the Basic Structure Doctrine in Kenya

Migai Akech (University of Nairobi) has posted The Basic Structure 'Doctrine' and the Politics of Constitutional Change in Kenya: A Case of Judicial Adventurism? on SSRN.  Here is the abstract:

This paper has two objectives. First, it evaluates the application of the basic structure doctrine by three Kenyan courts to determine the constitutionality of the Constitution of Kenya Amendment Bill 2020. It contends that while the High Court and the Court of Appeal were unduly adventurous and wrongfully asserted that the basic structure doctrine was applicable in Kenya thereby frustrating an arguably necessary process of constitutional change, the Supreme Court adopted a restrained approach that appreciated that courts should limit their role to facilitating such political processes and ensuring that they are participatory and deliberative. From this perspective, courts should only invalidate constitutional amendments where they are enacted through processes that do not adhere to a constitution’s amendment provisions. Second, the paper evaluates how the three courts dealt with the question of public participation in constitutional amendment initiatives. In this respect, the paper argues that the Supreme Court’s test for the adequacy of public participation in such initiatives is unclear and could be used to frustrate arguably participatory constitutional amendment processes or approve amendment processes that are not sufficiently participatory, depending on the inclination of the judges. In either case, the test, therefore, enables the courts to inappropriately approve or decline amendments to the Constitution.

Das on Customary Law in Nagaland

N. K. Das (Former Deputy Director, Anthropological Survey of India (ASI)) has posted Legacy of Indirect Rule and Legal Pluralism: Informal Governance through Customary Law in Nagaland on SSRN.  Here is the abstract:

With the help of ethnographic data collected among the ‘Zounuo-Keyhonuo’ tribe (Southern Angamis), intermittently during 1977-2011, this article discusses how informal governance through customary laws based on kinship principles remains relevant. Even during 2011-12, the villagers acknowledged the enduring primacy of the elders and headmen in shaping public opinion, buttressed by both “moral” and legal/ jural values which link them together. Thanks to special ‘constitutional’ provisions not much have changed in the political/legal/administrative spheres of Naga life. Naga tribes avail the special rights under Article 371(A) of the Constitution (in respect of religious/ social practices, customary law and procedure, administration of civil and criminal justice according to customs, and ownership and transfer of land and its resources), even though Naga women find such rights as a hindrance to seeking political equality. In the Zounuo-Keyhonuo tribe, both the descent principle and the territorial principle contribute to the determination of the politico-jural field. Thus, the villagers maintain kinship-economy nexus customarily and carry out farming by depending on both terrace rice cultivation and jhum (shifting cultivation). The descent groups, clan/lineage territories, and customary laws which define the core elements of the Naga societies could not be tormented or weakened by colonial interventions or modern transformations. Clan elders remained crucial and often conducted dispute settlement, including the peaceful compromise mechanism called Kezekevizhonu. Today, the village/clan ‘headmen’, gaon-bura, and Dobhashis continue to function as they did under colonial ‘indirect rule’. During the 1990s and later more and more challenges to ‘customary’ laws were reported in Zounuo-Keyhonuo villages. Naga customary laws are constitutionally safeguarded, yet appeals were made in the district magistrate court’ and Gauhati high court by ambitious individuals to reconsider the conventional norms in their own favour. Legal pluralism is becoming the standard of day-to-day village affairs increasingly, yet the larger sections of the villagers concede that the customary laws provide lasting “justice” to tribes people.

Lord on Dobbs & Proportionality

Phil Lord (Lakehead University - Bora Laskin Faculty of Law) has posted Trumping Dobbs on SSRN.  Here is the abstract:

This Essay draws upon Canadian constitutional law to analyze the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. In his Foreword to the 2018 Harvard Law Review Supreme Court issue, Jamal Greene analogously draws upon Canadian constitutional law to illuminate aspects of U.S. constitutional law we often oversee and take for granted. He argues that rights are construed as “trumps”: they are absolute. Greene contrasts this framework to Canada’s, under which rights are subject to reasonable limitations pursuant to a “proportionality analysis.” This Essay builds upon that work. It argues that proportionality analysis is indeed central to constitutional adjudication in Canada and most other developed countries. The Essay shows how the framework for the protection of reproductive rights set out in Roe v. Wade and modified in Planned Parenthood v. Casey incorporates key aspects of proportionality analysis. It allows for varying limitations to a constitutional right. Because these precedents significantly moved away from the existing framework of constitutional review, and did not acknowledge that they sought to fundamentally change that framework, they were uniquely vulnerable. Unsurprisingly, the Dobbs majority sharply criticizes the balancing of values and goals that defines proportionality analysis as impracticable and inconsistent with U.S. constitutional review. More broadly, these precedents, and the Dobbs opinion, illustrate how U.S. constitutional law lacks the necessary tools to mediate and reconcile conflicting rights – unlike countries which adopt proportionality analysis. Its rigid framework, which many Americans tightly hold on to as a hallmark of democracy and judicial minimalism, amplifies the role of courts in fundamental, charged sociopolitical debates. It is inherently bound to politicize the intervention of courts and undermine their legitimacy.

Saiger on Chevron Deference in State Courts

Aaron J. Saiger (Fordham University School of Law) has posted Derailing the Deference Lockstep (Boston University Law Review, Vol. 102, No. 1879, 2022) on SSRN.  Here is the abstract:

Key voices, most prominently that of Justice Neil Gorsuch, have embraced the position that the Chevron doctrine, under which federal courts defer to an agency’s reasonable interpretation of its organizing statutes, is incompatible with the judicial duty to “say what the law is.” These voices include several state supreme courts, which have held (often citing Justice Gorsuch) that state-court deference to state agency interpretations likewise impinges upon the fundamental duty of state judges to decide, on their own, what state law is.

This Article urges states to resist the uncritical importation into state law of anti-deference arguments based on the nature of judicial power in the federal context—that is, to resist the temptation to move deference rules in “lockstep” with federal doctrine. In state court, “saying what the law is” is essentially different than doing so in federal court. State courts are common-law courts whose judges not only interpret the law but declare it, often based on policy concerns—just as agencies do. And the law that state courts find is subject to federal supremacy, which makes courts’ law-declaration function contingent rather than final. This contingency requires them, even as they say what the law is, to cooperate with agencies in achieving state goals in the face of federal regulatory power.

These differences drain the applicability to state constitutional law of most of the arguments now centered in the federal deference debate, both for and against. State courts do not need to decide between Chevron deference and de novo review. Instead, they should seek to build a judicial relationship to agency statutory interpretation consistent with their own particular role as common-law courts, as creators of common-law precedent, and as joint participants with both state and federal agencies in federal regulatory systems.

Kuerbis & Mueller on Data Enclosure

Brenden Kuerbis (Georgia Institute of Technology - School of Public Policy) & Milton Mueller (Georgia Institute of Technology) have posted Making Data Private - and Excludable: A new approach to understanding the role of data enclosure in the digital political economy on SSRN.  Here is the abstract:

This exploratory paper links the economics of privacy and data (e.g., Acquisti et al, 2016; Jones & Tonetti, 2020) to an analysis of the industrial organization and governance of the internet (e.g., Kuerbis, Mueller and Panday, 2020). Its goal is to understand the impact of market-driven encryption and privacy initiatives on the political economy of data. Our work highlights how DNS encryption and the mobile platforms’ limitations on adtech are part of a much broader competitive struggle over the economic value of data. Encrypting DNS queries, for example, is not only a privacy-enhancing move, but also a means by which service providers compete with each other over the value and security of data. Enclosing data turns what was once a data commons (and a privacy problem) into a resource that a defined set of actor(s) in the digital ecosystem have more control over, and from which competitors can be excluded. The paper proceeds by first situating our analysis in the institutional economics literature on property rights, enclosures, and data. We then describe 1) some historical cases of enclosure using encryption; 2) the introduction of the DoH protocol as a way of enclosing DNS query data; 3) the enclosure of Apple and Google mobile identifiers used for mobile advertising. The institutional economic framework is shown to provide analytical traction for understanding and anticipating the public policy problems associated with this trend.

Van Hoek on Declaratory Judgments

Aukje A.H. Van Hoek (University of Amsterdam Institute for Private Law) has posted The Declaratory Judgment - Between Remedy and Procedural Technique (Pre-edit version of a contribution to M. Pfeiffer, Liber Amicorum Monika Pauknerová, Wolters Kluwer CR 2021, p. 505-514) on SSRN.  Here is the abstract:

This contributions discussed a very technical issue of private international law that turned out to be crucial in several class actions held in the Netherland regarding torts committed in common law countries: Should the question whether courts in the Netherlands can issue a purely declaratory judgment on the tortiousness of certain behaviour or the liability of the defendant be considered to fall under the lex causae (the declaration being considered as a type of remedy), or rather be governed by lex fori (as being a procedural issue)? The author prefers a classification as procedural, but acknowledges that the case law on this issue doesn’t fully support this outcome. The question lost some of its relevance under the new law on class actions, but is still pertinent.