Legal Theory Blog

Legal Theory Bookworm: "The Right to Do Wrong" by Osiel

The Legal Theory Bookworm recommends The Right to Do Wrong: Morality and the Limits of Law by Mark Osiel.  Here is a description:

Common morality―in the form of shame, outrage, and stigma―has always been society’s first line of defense against ethical transgressions. Social mores crucially complement the law, Mark Osiel shows, sparing us from oppressive formal regulation.

Much of what we could do, we shouldn’t―and we don’t. We have a free-speech right to be offensive, but we know we will face outrage in response. We may declare bankruptcy, but not without stigma. Moral norms constantly demand more of us than the law requires, sustaining promises we can legally break and preventing disrespectful behavior the law allows.

Mark Osiel takes up this curious interplay between lenient law and restrictive morality, showing that law permits much wrongdoing because we assume that rights are paired with informal but enforceable duties. People will exercise their rights responsibly or else face social shaming. For the most part, this system has worked. Social order persists despite ample opportunity for reprehensible conduct, testifying to the decisive constraints common morality imposes on the way we exercise our legal prerogatives. The Right to Do Wrong collects vivid case studies and social scientific research to explore how resistance to the exercise of rights picks up where law leaves off and shapes the legal system in turn. Building on recent evidence that declining social trust leads to increasing reliance on law, Osiel contends that as social changes produce stronger assertions of individual rights, it becomes more difficult to depend on informal tempering of our unfettered freedoms.

Social norms can be indefensible, Osiel recognizes. But the alternative―more repressive law―is often far worse. This empirically informed study leaves little doubt that robust forms of common morality persist and are essential to the vitality of liberal societies.

And from the reviews:

“Mark Osiel's book offers the first comprehensive account of the idea of wrongful exercises of rights. The topic is crucial for understanding the right to freedom of expression, the right to freedom of religion, the right to privacy, and the rights of those who are charged with crimes, among others. The Right to Do Wrong will become essential reading for anyone interested in the theory and the practice of rights in general.”―Frederick Schauer, author of The Force of Law

“In this wide-ranging and deeply interdisciplinary book, Osiel turns his sharp analytical lens to fundamental problems of law and society. His approach is original and impressive, integrating theory, empirics, and everyday experience into a forceful argument.”―Tom Ginsburg, University of Chicago Law School

“Osiel updates and defends against recent critics the claim that an effective legal system depends on an infrastructure of ordinary morality. He challenges conceptions of legal rights that insist that their exercise is by definition not subject to public accountability. And he has interesting things to say about many specific controversies, including abortion, end-of-life care, and military actions that put civilians at risk. Osiel suggests plausibly that understanding such issues simultaneously in legal and moral terms reduces some of the tension they often generate in popular discussion.”―William H. Simon, Columbia Law School

“In The Right to Do Wrong, Mark Osiel addresses a classic problem of jurisprudence and social theory: the relation of legal commands to common morality and social mores. Does law simply enforce moral norms? Does it presuppose moral norms and non-legal sanctions, and merely supplement them? Does it sometimes weaken and erode them? Lucid and precise in analysis, rich in examples from sociology and history, this brilliant book revives and refreshes for our time Montesquieu's great treatise on laws, manners, and morals.”―Robert W. Gordon, Stanford Law School

“The right to do wrong is the foundation of any free society. Mark Osiel demonstrates that the implications of this turn on whether, and how frequently, actors use these rights. In a brilliant exposition of the connection―and disconnection―between morality and law, Osiel shows how legal thinking and sociological theorizing illuminate one another’s perspectives. This is a book that will change how both lawyers and sociologists understand law.”―John Levi Martin, University of Chicago

Download of the Week: "Ethics and Public Health of Driverless Vehicle Collision Programming" by Samantha Godwin

The Download of the Week is  Ethics and Public Health of Driverless Vehicle Collision Programming by Samantha Godwin.  Here is the abstract:

Driverless vehicles present a core ethical dilemma: there is a public health necessity and moral imperative to encourage the widespread adoption of driverless vehicles once they become demonstrably more reliable than human drivers, given their potential to dramatically reduce automobile fatalities, increase autonomy for disabled people, and improve land use and commutes. However, the very technologies that could enable autonomous vehicles to drive more safely than human drivers also imply greater moral responsibility for adverse outcomes. While human drivers must make split-second decisions in automobile collision scenarios, driverless car programmers have the luxury of time to reflect and choose deliberately how their vehicles should behave in collision scenarios. This implies greater responsibility and culpability, as well as the potential for greater scrutiny and regulation. Programmers must make premeditated decisions regarding whose safety to prioritize in inevitable collision scenarios—situations where a vehicle cannot avoid a collision altogether but can choose between colliding into different vehicles, objects, or persons.

With the recent bipartisan passage of the SELF DRIVE Act in the House and the rapid development of driverless vehicle technology, we are now entering a critical time frame for considering what priorities should govern driverless car inevitable collision behavior. This Article shall argue that prescribed “ethics” programing must be regulated by law in order to avoid the likely collective action problem of a marketplace that will reward “occupant-favoring” designs, despite a probable public preference (and arguable moral necessity) for occupant indifferent designs. This Article then considers a variety of different options for systems of driverless vehicle ethics programming. The most justifiable ethics programing system would be one where road users are discouraged from externalizing the dangers incurred by their transportation choices onto those whose transportation choices, if more widely adopted, would comparatively improve aggregate safety. This ethical programing system, which I term “incentive-weighted programing,” would promote public safety while also striking the most equitably justifiable balance between different road users’ interests.

Highly recommended.

Velasco on Fiduciary Duty in Corporate Law

Julian Velasco (Notre Dame Law School) has posted Fiduciary Principles in Corporate Law (Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff, eds., THE OXFORD HANDBOOK OF FIDUCIARY LAW (New York: Oxford University Press, 2018)) on SSRN.  Here is the abstract:

This chapter examines fiduciary duty in corporate law. Fiduciary duty is pervasive as well as all encompassing in corporate law. One common misconception about fiduciary duty in corporate law is that it is merely aspirational. Fiduciary duties are not simply moral requirements, they are legal ones. They are not merely suggestions, they represent the demands of the law. Corporate law has often compromised rather than insisting upon strict enforcement of fiduciary law principles. It compromises due to practical considerations that are entirely consistent with the goals of fiduciary law. In corporate law, general fiduciary law principles are balanced with practical considerations concerning the profit motive in order to achieve the best overall result for the shareholders. Understanding this tension between ambition and practicality is key to understanding fiduciary duty in corporate law. This chapter first considers the triggers for fiduciary duty in corporate law before discussing the role that the duty of loyalty plays in corporate law. It then explores the duty of care in corporate law, along with other fiduciary duties such as good faith, takeover situations and contests for control, shareholder voting rights, and the duty to monitor and the duty to disclose. The chapter proceeds by analyzing mandatory and default rules regarding the extent to which fiduciary duties can be waived in corporate law and concludes with an overview of remedies for breach of fiduciary duty.

Sharon on Economic Democracy & NIMBY

Ori Sharon (Duke University, School of Law) has posted Fields of Dreams: An Economic Democracy Framework for Addressing NIMBYism (Environmental Law Reporter, Vol. 49, No. 3, 2019) on SSRN.  Here is the abstract:

Local opposition to the development of socially desirable facilities is one of the most important policy challenges in the United States. Despite decades of effort, a policy formula to reduce “Not in My Back Yard” (NIMBY) political opposition is yet to be found. Cash payments, inclusive deliberation, benefits negotiations, and statutory mandates are only a few of the policy and legislative measures that have been attempted at diffusing NIMBY sentiments, mostly to no avail.

This Article offers a different approach to NIMBY conflicts. I argue that disempowerment is one of the main drivers of NIMBY sentiments. People oppose certain developments largely because they feel a lack of control over decisionmaking procedures that directly affect their lives. Applying theories of participatory democracy, I develop a property-based framework to mitigate NIMBY sentiments. Ownership, I explain, empowers. It confers the power to determine and control a resource. When a resource is owned by a community, the community possesses the power to set the agenda for the resource. It follows that if communities own, develop, and manage socially desirable facilities, NIMBY sentiments will be attenuated. To test this hypothesis, I explore two recent successful examples of communal ownership — the development model for windfarms and the U.K.’s Community Right to Build reform. Both case studies demonstrate the potential of communal development to mitigate NIMBY sentiments and provide valuable legal and policy lessons for broader implementation of communal models.

Kaplow on Balancing versus Structured Decisionmaking & Title VII

Louis Kaplow (Harvard Law School; National Bureau of Economic Research (NBER)) has posted Balancing Versus Structured Decision Procedures: Antitrust, Title VII Disparate Impact, and Constitutional Law Strict Scrutiny (Forthcoming, University of Pennsylvania Law Review, Vol. 167, 2019) on SSRN.  Here is the abstract:

Important doctrines in diverse areas of law employ structured decision procedures requiring, in rough terms, that the plaintiff first make some demonstration of harm; if but only if that is done, the defendant must make some showing of benefit; and if but only if that occurs, balancing is performed. In-depth analysis of such protocols reveals them to be inferior to unconstrained balancing with respect to the quality of final decisions and the guidance they provide for the collection of information and, accordingly, the conduct of adjudication. This article applies this analysis to the rule of reason and merger regulation under antitrust law, Title VII disparate impact law, and the practices of strict scrutiny and proportionality analysis in constitutional law. Longstanding controversies are addressed and unappreciated deficiencies are discovered. In all three domains, existing law is cast in a substantially different light, both descriptively and normatively.

Godwin on the Ethics of Driverless Vehicle Programming

Samantha Godwin (Yale University - Law School) has posted Ethics and Public Health of Driverless Vehicle Collision Programming (86 Tenn. L. Rev. 135 (2018)) on SSRN.  Here is the abstract:

Driverless vehicles present a core ethical dilemma: there is a public health necessity and moral imperative to encourage the widespread adoption of driverless vehicles once they become demonstrably more reliable than human drivers, given their potential to dramatically reduce automobile fatalities, increase autonomy for disabled people, and improve land use and commutes. However, the very technologies that could enable autonomous vehicles to drive more safely than human drivers also imply greater moral responsibility for adverse outcomes. While human drivers must make split-second decisions in automobile collision scenarios, driverless car programmers have the luxury of time to reflect and choose deliberately how their vehicles should behave in collision scenarios. This implies greater responsibility and culpability, as well as the potential for greater scrutiny and regulation. Programmers must make premeditated decisions regarding whose safety to prioritize in inevitable collision scenarios—situations where a vehicle cannot avoid a collision altogether but can choose between colliding into different vehicles, objects, or persons.

With the recent bipartisan passage of the SELF DRIVE Act in the House and the rapid development of driverless vehicle technology, we are now entering a critical time frame for considering what priorities should govern driverless car inevitable collision behavior. This Article shall argue that prescribed “ethics” programing must be regulated by law in order to avoid the likely collective action problem of a marketplace that will reward “occupant-favoring” designs, despite a probable public preference (and arguable moral necessity) for occupant indifferent designs. This Article then considers a variety of different options for systems of driverless vehicle ethics programming. The most justifiable ethics programing system would be one where road users are discouraged from externalizing the dangers incurred by their transportation choices onto those whose transportation choices, if more widely adopted, would comparatively improve aggregate safety. This ethical programing system, which I term “incentive-weighted programing,” would promote public safety while also striking the most equitably justifiable balance between different road users’ interests.

Highly recommended.

Call for Papers: Thirteenth Amendment and Racial Justice at Chicago-Kent

Papers Being Accepted for the Thirteenth Amendment and Racial Justice Conference
Wednesday, April 10, 2019
Chicago-Kent College of Law at Illinois Institute of Technology is hosting the Thirteenth Amendment and Racial Justice Conference on November 9–10, 2019. The conference focuses on the ways that the Thirteenth Amendment can be used in legislation and litigation, or in the context of social movements, to promote racial justice in the United States.

The conference organizing committee invites Thirteenth Amendment scholars from all disciplines—including law, politics, and history, as well as practitioners and activists in the field of racial justice—to submit papers that interrogate the relationship of race and other markers of identity such as class, gender, sexual orientation, disability, religion, and immigration status; to forms of subordination both past and present; and strategies for challenging them. The committee is interested in international perspectives and invite scholars from beyond the United States to participate.

This conference will be the third event of the Thirteenth Amendment Project, an interdisciplinary association of scholars of labor, class, race, caste, and poverty at law schools and universities throughout the United States and the wider world. For more information about the Thirteenth Amendment Project, please visit its website at scholars.law.unlv.edu/amend13/.

The committee is seeking publication opportunities in a variety of outlets for papers presented at the conference. It extends a special invitation to scholars new to the field (including junior faculty and senior scholars) to submit proposals for works in progress. Senior scholars who have written extensively in this field will provide feedback and detailed commentary for planned publication.

To submit a paper for consideration, please email an abstract of no more than 300 words by May 15, 2019, to 13thamendproj@gmail.com. The conference organizing committee will notify applicants of its decisions by June 30, 2019. A preliminary program will be posted by September 15, 2019.

Information about registration and hotel costs will be provided at the time that the organizing committee selects the papers for the conference. Please email the committee with any questions at 13thamendproj@gmail.com.

Conference Organizing Committee
William M. Carter Jr., University of Pittsburgh
Ruben Garcia, University of Nevada, Las Vegas
María Ontiveros, University of San Francisco
James Pope, Rutgers University
César F. Rosado Marzán, Chicago-Kent College of Law
Aviam Soifer, University of Hawai’i at Mānoa
Lea VanderVelde, University of Iowa
Rebecca Zietlow, University of Toledo

Conference Location
Illinois Institute of Technology
Chicago-Kent College of Law
565 West Adams Street
Chicago, IL 60661

Kramer on Hohfeld on No-Rights

Matthew H. Kramer (University of Cambridge) has posted On No-Rights and No Rights on SSRN.  Here is the abstract:

As is well known to everyone familiar with the analytical table of legal and moral relationships propounded by the American jurist Wesley Hohfeld, one of the eight positions in the table is that of the no-right.

In most discussions of Hohfeld’s overall framework, no-rights have received rather little attention. Doubtless, one reason for the relative dearth of scrutiny is that Hohfeld devised a hyphenated neologism to designate no-rights. Each of the other positions in the Hohfeldian table is designated by a term with a solid grounding in everyday discourse and juristic discourse, whereas the hyphenated term “no-right” – in contrast with the unhyphenated phrase “no right” – does not have any comparable grounding either in ordinary discourse or in juristic discourse. That neologism is almost never employed by anyone outside the confines of discussions of Hohfeld’s categories, and it is often not employed even within those confines. Notwithstanding the enormous amount of philosophical and juristic attention bestowed on Hohfeld’s analytical framework since its elaboration in the second decade of the twentieth century, the term “no-right” has found little favor in philosophical or juristic circles. Moreover, on the rather rare occasions when the term is used rather than merely mentioned, it is almost always misused. The exploration of the correct use of that term in the first half of this paper may seem rather fussy, but the importance of that exploration for a satisfactory understanding of legal and moral relationships will become apparent in the second half of the paper.

Highly recommended.

Rothchild on the Extension of U.S. Copyright to Foreign Authors

John Rothchild (Wayne State University Law School) has posted How the United States Stopped Being a Pirate Nation and Learned to Love International Copyright (39 Pace Law Review 361 (2018)) on SSRN.  Here is the abstract:

From the time of the first federal copyright law in 1790 until enactment of the International Copyright Act in 1891, U.S. copyright law did not apply to works by authors who were not citizens or residents of the United States. U.S. publishers took advantage of this lacuna in the law, and the demand among American readers for books by popular British authors, by reprinting the books of these authors without their authorization and without paying a negotiated royalty to them.

This Article tells the story of how proponents of extending copyright protections to foreign authors—called international copyright—finally succeeded after more than fifty years of failed efforts. Beginning in the 1830s, the principal opponents of international copyright were U.S. book publishers, who were unwilling to support a change in the law that would require them to pay negotiated copyright royalties to British authors and, even worse from their perspective, would open up the American market to competition from British publishers. U.S. publishers were quite content with the status quo—a system of quasi-copyright called “trade courtesy.” That system came crashing down in the 1870s, when non-establishment publishers who did not benefit from trade courtesy decided to ignore its norms, publishing their own cheap, low-quality editions of books by British authors in competition with the editions published by the establishment publishers. As a result, most U.S. publishers came to support extending copyright to foreign authors as a means of preventing competition from publishers of the cheap editions.

Once the publishers withdrew their opposition, another powerful interest group came to the fore: typesetters, bookbinders, printers, and other workers in the book-manufacturing industries. These groups opposed international copyright unless it were accompanied by rules assuring that they would not be thrown out of work by a transfer of book manufacturing from the United States to England. In the 1891 Act, the typesetters achieved what they sought: a provision requiring books to be typeset in the United States as a condition of copyright. In this way, U.S. copyright law implemented an element of U.S. trade policy.

The manufacturing clause, as this requirement was called, was gradually watered down over the succeeding decades and lingered in the copyright law until 1986. Yet the entanglement of copyright law with trade policy continued, in the World Trade Organization treaty system and elsewhere.

As a major exporter of books, software, movies, and other articles embodying copyrighted works, the United States has sought in multiple forums to strengthen the protections those works receive under the laws of other nations, sometimes provoking pushback from countries that are net importers of intellectual property goods. When pursuing these goals in the twenty-first century, U.S. policymakers would do well to bear in mind this country’s forgotten history as the greatest copyright pirate nation of the nineteenth century.

Depoorter on Copyright Enforcement

Ben Depoorter (University of California Hastings College of Law) has posted Copyright Enforcement in the Digital Age: When the Remedy is the Wrong (UCLA Law Review, Vol. 66, 2019) on SSRN.  Here is the abstract:

Statutory damage awards are controversial in copyright law. To some, statutory damages are indispensable to enable the pursuit of meritorious copyright infringement claims that otherwise are too costly to pursue. Others are convinced that the availability of statutory damages tempts plaintiffs into asserting dubious infringement claims in order to obtain generous settlement concessions from risk averse defendants. In light of these contrasting viewpoints, we face the important policy question whether statutory damages should be redesigned for the digital age or, to the contrary, be retained in their current form, given the difficulties of enforcing copyrights online.

This Article conducts a comprehensive empirical study of copyright statutory damages. An extensive examination of docket entries and case law reveals a widespread practice of overclaiming of remedies in copyright litigation. Although 80 percent of plaintiffs in all disputes claim that they suffered conduct that constitutes willful infringement, courts find willful infringement in just 2 percent of cases where plaintiffs obtain a favorable verdict.

The findings suggest that remedy overclaiming in copyright serves strategic purposes. For instance, by highlighting the outer range of enhanced statutory awards in complaints, plaintiffs leverage the risk aversion of defendants to induce generous settlement concessions. In order to curb opportunistic uses of the statutory damages, I provide policy suggestions that would make remedy overclaiming more costly to plaintiffs and less threatening to defendants.

Bustamante & Decat on Hurd on Perspectivalism

Thomas Bustamante and Thiago Decat (Federal University of Minas Gerais (UFMG) and Department of Propedeutic and Critical Disciplines of the Faculdade de Direito Milton Campos) have posted Incommensurability, Social Practices and Moral Dilemmas: A Rejoinder to Heidi Hurd’s Anti-Perspectivalism on SSRN.  Here is the abstract:

This paper offers a response to Heidi Hurd's argument against legal perspectivalism and the existence of role-relative reasons in adjudication. The core of Hurd's argument is that if perspectivalism is true, morality can drive us to gladiatorial combats. If there are role-relative reasons, a judge may have a role-relative obligation to punish a person who acted in a morally justified way. But this possibility is, on Hurd's judgment, untenable. To avoid the so called "dilemma of perspectivalism", we should advocate a correspondence between an agent's moral rights and the duties of judges and officials. In response to Hurd, w argue that there are role-relative reasons for incommensurability of moral obligations. On the basis of Joseph Raz's account of autonomy and freedom, we try to show that Hurd underestimate the possibility of moral conflict, and that a good theory of adjudication should be aware of that possibility.

Here is a link to Heidi Hurd's Moral Combat.  Both the book and paper are highly recommended.

Tuerkheimer on Informal Accusation & Sexual Misconduct

Deborah Tuerkheimer (Northwestern University - Pritzker School of Law) has posted Beyond #MeToo (New York University Law Review, Forthcoming) on SSRN.  Here is the abstract:

The #MeToo movement has ushered in a new kind of sexual misconduct accusation — accusation leveled through informal channels of communication. A functional analysis shows that unofficial reporting can advance important ends. But the rise of informal accusation should be of special concern to legal scholars and lawyers, who generally proceed from certain assumptions regarding the primacy of formal systems of accountability. These basic assumptions need revision if, by aiming to satisfy goals that our laws and legal institutions fail to achieve, informal reporting channels are serving as substitutes for the officially sanctioned mechanisms of accountability that monopolize scholarly attention. Unofficial reporting pathways are imperfect legal workarounds; their prevalence means that the law of sexual misconduct has been consigned to a relative state of quiescence. Over time, survivors, long disserved by the criminal law, by campus disciplinary processes, and by workplace complaint structures, have mostly turned away from the systems that have forsaken them. A needed redesign of official complaint channels should be informed by the benefits of informal reporting, along with a commitment to awakening law.

Wurman on Substantive Due Process

Ilan Wurman (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted The Origins of Substantive Due Process (University of Chicago Law Review, Forthcoming) on SSRN.  Here is the abstract:

In the antebellum nineteenth century, courts often voided legislative acts for substantive unreasonableness or for exceeding the scope of legitimate police powers. Contrary to the assertions of a number of modern scholars, however, this tradition does not support the concept of economic substantive due process. Courts voided municipal acts exceeding the scope of legitimate police powers on two grounds — the law of delegation and the law of municipal corporations — that did not apply to acts of state legislatures. The states themselves were limited to reasonable exercises of the police power only when their asserted authority came into potential collision with federal constitutional requirements, namely the commerce and contracts clauses.

It was only late in the century, after the adoption of the Fourteenth Amendment, that a police-power version of substantive due process emerged as a limitation on state legislatures as courts began conflating, under the guise of “due process of law,” earlier doctrines that had used a similar vocabulary but for distinct purposes. Police-power limitations on state legislatures regulating purely internal matters therefore probably cannot be justified by any antebellum legal conception of due process of law. It is possible, however, that such limitations could find support in the privileges or immunities clause by analogy to antebellum commerce clause and contracts clause jurisprudence.

Highly recommended.

Solum on Fallon on Constitutional Theory

Lawrence B. Solum (Georgetown University Law Center) has posted Themes from Fallon on Constitutional Theory on SSRN.  Here is the abstract:

Professor Richard Fallon’s Law and Legitimacy in the Supreme Court is a deep, original, and important contribution to constitutional theory. Fallon’s book is extraordinary, ranging across fundamental issues in normative constitutional theory and connecting to important ideas from political philosophy, metaethics, and the philosophy of language. This Essay explores three themes from Fallon and reflects on the significance of Fallon’s work for contemporary constitutional theory.

The first theme concerns the idea of constraint by the constitutional text: Fallon develops a challenge to the claim that the legitimacy of judicial review requires that judges be constrained by the constitutional text. Part I of this Essay situates Fallon’s challenge in the context of contemporary originalist constitutional theory. Discussion of the first theme aims to reveal difficulties with Fallon’s claim that the existence of multiple kinds of meaning undermines certain forms of constitutional originalism.

The second theme derives from Fallon’s exploration of the foundational role of the idea of reflective equilibrium in normative constitutional theory. Part II of this Essay suggests that the role of constitutional theory requires that reflective equilibrium be reconceptualized in terms of intersubjective agreement among citizens who affirm a plurality of moral, religious, and ideological perspectives: in other words, it is a we and not an I that should aim for a relationship of consistency and mutual support between our considered constitutional judgments. Exploration of the second theme aims to reveal a difficulty with a first-person singular approach to reflective equilibrium.
The third theme is prompted by Fallon’s exploration of the idea of legitimacy. Part III of this Essay suggests that constitutional legitimacy has a complex structure, including both multiple dimensions and functions. Investigation of the third theme aims to uncover the ways in which constitutional legitimacy constrains the options available to normative constitutional theory.

The three themes are woven together in the final Part of the Essay, which reflects the implications of Fallon’s work for the great debate between originalism and living constitutionalism. Part IV of the Essay suggests the ways in which originalists might respond to Fallon’s important, deep, and learned challenges to the case for constitutional originalism.

Vlahoplus on Foreign-Born Children of Disloyal Parents

John Vlahoplus has posted Foreign-Born Children of Disloyal Parents: Adam Muthana, Mary Arcedeckne and the Natural Born (St. John's Law Review , Forthcoming) on SSRN.  Here is the abstract:

The collapse of the Islamic State of Iraq and Syria has left thousands of foreign ISIS adherents and their children in refugee camps controlled by irregular forces. The United States faces the question whether its emigrants' disloyalty affected their citizenship and that of their children born in the self-proclaimed caliphate. This article frames the American citizenship issues in light of common and statutory law from which American law developed, with particular regard to the 1730 House of Lords decision in Arcedeckne v. Horan. That case determined whether a British derivative nationality statute deemed the foreign-born child of disloyal subjects to be natural born and therefore capable of inheriting real property in Ireland. This article is the first extended analysis of Arcedeckne and appends transcriptions of previously unpublished primary source materials from the case.

The article applies the principles of Arcedeckne, the common law, and American constitutional and statutory law to the case of Hoda Muthana, a New Jersey-born ISIS adherent, and her foreign-born son Adam. It identifies potential challenges to the federal government's argument that neither is a citizen as well as to Adam Muthana's claim to derivative citizenship. In particular it identifies textual and historical issues with the federal government's arguments, including historical controversy over the natural allegiance of children born to foreign diplomats under common law incorporated in the U.S. Constitution. The article suggests that the federal government relies on a consequentialist argument in the case based on the evolving threat of global terrorism rather than on textual or historical methods of legal interpretation that many in the executive branch espouse.

Revkin on Displacement During Rebel Governance

Mara Redlich Revkin (Yale University, Department of Political Science) has posted To Stay or to Leave? Displacement Decisions During Rebel Governance on SSRN.  Here is the abstract:

What are the conditions under which civilians living in territory captured by a rebel group will prefer its system of governance to that of the incumbent state? Given the opportunity to leave rebel-held territory, who stays and why? Through an original survey of 1,458 residents of Mosul, an Iraqi city governed by the Islamic State (IS) for more than three years, I compare the characteristics of “stayers” (those who remained in Mosul for the duration of IS rule) against “leavers” (those who fled). I test and find some support for a theory of “competitive governance”: Civilians who perceived improvements in the quality of governance under IS rule—in comparison with the Iraqi state—were more likely to stay than those who perceived no change or a deterioration. This finding suggests that weak rule of law and ineffective governance in Iraq may have contributed to civilian cooperation with IS.

Cunningham-Parmeter on Independent Contractors & Platform Work

Keith Cunningham-Parmeter (Willamette University - College of Law) has posted Gig-Dependence: Finding the Real Independent Contractors of Platform Work (Symposium, 29 N. ILL. U. L. REV. (Forthcoming)) on SSRN.  Here is the abstract:

Platforms such as Uber and TaskRabbit avoid employment obligations by categorizing their workers as “independent contractors.” Declining to follow overtime, antidiscrimination, and other workplace mandates, these platforms claim to employ no one. Applied on a grand scale, the entire project of platform labor threatens to destabilize our contemporary understanding of employment law.

But not all platform workers possess the characteristics of genuine independent contractors, as courts first envisioned that category. Judges did not originally formulate the independent contractor distinction to define the boundaries of workplace protections; rather, the independent contractor classification was designed to limit the liability of masters for their servants’ torts. Courts in these early cases identified certain workers — independent contractors — who possessed the skill, autonomy, and financial strength to pay for their own tortious misconduct and, accordingly, stand alone in the marketplace.

Today, when judges evaluate whether gig workers are “independent contractors,” they should look for the same hallmarks of commercial self-determination that originally prompted the independent contractor distinction. Fortunately, a few recent judicial decisions have embraced a simplified standard—the so-called “ABC test” — to assess whether contemporary workers are bona fide independent contractors. In contrast to more popular tests that have produced indeterminate results, the ABC standard begins with the presumption that workers who provide labor to firms are employees. If businesses want to overcome this presumption, they must prove three separate elements to show that their workers possess the marketplace strength of legitimate independent contractors. By sorting workers based on their economic autonomy, courts can more effectively distinguish between normal employees and the genuine independent contractors of platform work.

Dill on McMahan on the Moral Acceptability of War

Janina Dill (University of Oxford) has posted Should International Law Ensure the Moral Acceptability of War? (Leiden Journal of International Law (2013), 26, pp. 253–270) on SSRN.  Here is the abstract:

Jeff McMahan’s challenge to conventional just-war theory is an attempt to apply to the use of force between states a moral standard whose pertinence to international relations (IR) is decreasingly contestable and the regulation of which international law (IL) is, therefore, under pressure to afford: the preservation of individual rights. This compelling endeavour is at an impasse given the admission of many ethicists that it is currently impossible for international humanitarian law (IHL) to regulate killing in war in accordance with individuals’ liability. IHL’s failure to consistently protect individual rights, specifically its shortfall compared to human rights law, has raised questions about IHL’s adequacy also among international lawyers. This paper identifies the features of war that ground the inability of IL to regulate it to a level of moral acceptability and characterizes the quintessential war as presenting what I call an ‘epistemically cloaked forced choice’ regarding the preservation of individual rights. Commitment to the above moral standard, then, means that IL should not prejudge the outcome of wars and must, somewhat paradoxically, diverge from morality when making prescriptions about the conduct of hostilities. In showing that many confrontations between states inevitably take the form of such epistemically cloaked forced choices, the paper contests the argument by revisionist just- war theorists like McMahan that the failure of IL to track morality in war is merely a function of contingent institutional desiderata. IHL, with its moral limitations, has a continuing role to play in IR.

Tamanaha on Legal Pluralism

Brian Z. Tamanaha (Washington University in St. Louis - School of Law) has posted The Promise and Conundrums of Pluralist Jurisprudence (Modern Law Review 2019, Nicole Roughan and Andrew Halpin, (eds), In Pursuit of Pluralist Jurisprudence, Cambridge, Cambridge University Press (2017)) on SSRN.  Here is the abstract:

Legal pluralism involves the proposition that more than one manifestation of law exists in many social arenas. The legal pluralist paradigm is propagating across academic fields. In the 1970s, jurists and legal anthropologists working in colonial and post-colonial societies wrote about the coexistence of state law in various relationships with customary law, religious law, and indigenous law. The paradigm was taken in a different direction in the 1980s when a group of sociologically oriented jurists argued pervasive legal pluralism exists in all societies, now identifying law in terms of institutionalized rule systems and concrete patterns of normative ordering. An overview at the close of the decade declared, ‘Legal pluralism is a central theme in the reconceptualization of the law/society relation.’ Thereafter the notion continued to travel. In the past decade, ‘legal pluralism has become a standard fare in international and comparative law circles.’

Jurisprudence is the latest field to take up legal pluralism. In Pursuit of Pluralist Jurisprudence (2017), edited by Nicole Roughan and Andrew Halpin, is a collection of essays on the topic by a stellar cast of jurisprudents.

A fresh breeze is sweeping through legal theory, shaking old verities, opening new vistas. The ‘exclusive concentration on state law was, it now turns out, never justified, and is even less justified today,’ Joseph Raz declared in this volume. Bringing theoretical attention to bear on multiple forms of law unsettles everything. ‘Instead of law we have laws, instead of methodology we have methodologies, and even plurality itself is observed and analyzed pluralistically,’ write Roughan and Halpin.

The publication of In Pursuit of Pluralist Jurisprudence provides an occasion to convey key insights offered by legal pluralism and to expose confusions that threaten to impede fruitful engagement by jurisprudents. There are two major sources of confusion. First, legal pluralism encompasses three distinct clusters of ideas, blurred together by the same label and repeated narratives that portray them as continuous, though the differences are substantial. I label them manifest legal pluralism, sociological legal pluralism, and supranational legal pluralism. Second, analyses of legal pluralism have been dominated by theoretical groundwork articulated in ‘What is Legal Pluralism?’ by John Griffiths; though he later repudiated his core position owing to insurmountable conceptual flaws, it continues to shape and distort the discussion. Unpacking these sources of confusion will facilitate the jurisprudential analysis of legal pluralism. The topics covered in this essay are: Why Pursue Pluralism Jurisprudence?; Manifest Legal Pluralism; Sociological Legal Pluralism; Supranational Legal Pluralism; Promise and Conundrums of Pluralist Jurisprudence.

Highly recommended.  Download it while it's hot!

Sultany on Arab Constitutionalism

Nimer Sultany (University of London - School of Oriental and African Studies; Harvard University - Law School - Alumni) has posted Arab Constitutionalism and the Formalism of Authoritarian Constitutionalism (Helena Alvar Garcia and Gunter Frankenberg, "Authoritarian constitutionalism: analysis and critique" (Forthcoming)) on SSRN.  Here is the abstract:

This chapter challenges different manifestations of a “formalist” approach to constitutional theory. The formalist approach deploys several labels and distinctions (constitutions without constitutionalism, authoritarian, ideological, instrumentalist, and temporary) that question the constitutional legitimacy of non-North American and non-Western European constitutions because these are considered as merely political instruments lacking the supremacy and rigidity of higher law. This approach is formalist in two senses: it is overly focused on the text (or constitutional form), and it assumes that abstract categories determine the constitutional content or practice. Ottoman and Arab constitution-making, the subject of this chapter, illustrate that this formalist approach is deficient because it is impervious to constitutional and political practice. As such, and while “ideological” is often used in the “positive sense” to convey a system of ideas, it has negative “ideological” effects because it juxtaposes these constitutions to an idealised version of liberal constitutions (understood as “normative”, supra-political constitutions) and discounts constitutional experiences that fall outside the orbit of North America and Europe.

Brooks on the Capabilities Approach & Severe Poverty

Thom Brooks (Durham University) has posted Capabilities, Freedom and Severe Poverty ((Forthcoming in Thom Brooks (ed.), The Oxford Handbook of Global Justice. Oxford University Press.)) on SSRN.  Here is the abstract:

Severe poverty is a key challenge for theorists of global justice. Most theorists have approached this issue primarily by developing accounts for understanding which kinds of duties have relevance and how responsibilities for tackling severe poverty might be assigned to agents, whether individuals, nations or states. All such views share a commitment to ending severe poverty as a wrongful deprivation with profoundly negative impact on affected individuals.

While much attention has prioritised identifying reasons for others to provide relief, this chapter will examine the nature of the wrongful deprivation that characterises severe poverty. One influential view is championed by Martha Nussbaum in her distinctive capabilities approach. An individual might be considered to experience severe poverty where she is unable to enjoy the use of her capabilities which should be available to her. But this position raises several questions. Take the fact that about 1 billion people are unable to meet their basic needs today. Would the capabilities approach claim the number is much higher given its wider grasp of human flourishing beyond mere material subsistence – and what implications would flow from this? Or would the capabilities approach claim only a portion of those unable to meet their basic needs are in a wrongful state because their circumstances are a result of free choice – and what would this mean? These questions indicate a potential concern about whether the approach is over- or under-inclusive and why.

This chapter will proceed by first providing a general overview of Nussbaum’s capabilities approach providing an indication about how her list of ten capabilities might be reformulated differently. The next section applies this approach to severe poverty in a critical discussion of how such poverty is best understood within the capabilities framework. The penultimate section considers the importance of freedom and choice that underpins the approach and its implications for how we apply it to severe poverty. The chapter ends with some concluding remarks about the broad limitations for understanding severe poverty as a kind of capabilities deprivation.

Recommended.

Matthew J. Lister (Deakin University School of Law) has posted Contract, Treaty, and Sovereignty (Sovereignty and the New Executive Authority, Claire Finkelstein and Michael Skerker, eds., Oxford University Press 2019) on SSRN.  Here is the abstract:

It is a common charge that treaties, perhaps especially recent treaties relating to economic activity, provide unreasonable restrictions on the sovereignty of the state parties. While this charge has been made most forcefully by smaller states, it is sometimes raised with justification by larger states or state-like bodies such as the E.U. as well. When a tribunal judging a dispute on an economic treaty tells a state that it may no longer make decisions such as to accept or reject genetically modified foods, allow internet gambling, or produce generic drugs for domestic consumption, the citizens of the state may rightfully think they have lost important aspects of sovereignty to bodies that do not have legitimate authority to govern. This, in turn, makes negotiating treaties, despite their obvious value, much harder than it otherwise would be, leading to decreased cooperation and the forgoing of potentially significant gain. In this paper, I argue that by importing certain ideas from contract theory to the interpretation of treaties, these worries may be significantly reduced. Contracts have the seemingly paradoxical ability to increase the autonomy of the signers by allowing them to bind themselves to perform certain future actions. But, the ability of contracts to perform this function would be greatly reduced if the only possible remedy for breach were specific performance. Yet, an analogous approach to treaties is common among many important theorists of international law, who demand the equivalence of specific performance in the case of treaties. I will show how importing ideas from contract law can help ensure that treaties, especially economic treaties, are sovereignty-enhancing for states in a way that is similar to the way that contracts may be autonomy-enhancing for individuals, and will show that importing these elements from contract law will strengthen, not undermine, the legitimacy and fairness of international law.

Very interesting and highly recommended.

Dill on International Humanitarian Law, Human Rights Law, & Armed Conflict

Janina Dill (University of Oxford) has posted Towards a Moral Division of Labour between IHL and IHRL during the Conduct of Hostilities (In: Ziv Bohrer, Janina Dill, Helen Duffy: Law Applicable to Armed Conflict (Cambridge University Press, Max Planck Trialogues on the Law of Peace and War, Forthcoming)) on SSRN.  Here is the abstract:

When should International Humanitarian Law (IHL) prevail over, when give way to International Human Rights Law (IHRL)? IHL and IHRL give diverging answers to the crucial question of when it is permissible to kill during an armed confrontation. This paper contends that when two bodies of law make diverging substantive demands – as IHRL and IHL do – that which better discharges the law’s moral tasks should displace the other. The law’s two moral tasks, the paper argues, are to guide its subjects’ conduct, as often as possible, towards the course of action that conforms to their moral obligations (task one) and to secure the fullest feasible protection of rights in the outcome of conduct (task two).

IHL permits conduct that further diverges from our fundamental moral obligations of non-interference with the individual right to life. Yet, the law that more faithfully reflects underlying moral principles is not always the law that better discharges its moral tasks. Epistemic barriers to identifying the morally right course of action account for why a law that further diverges from moral principles might better guide the individual towards what is typically the morally right course of action (task one). Volitional defects may mean that a law that asks for a course of action other than the morally right one, generates better aggregate moral consequences (task two). Whether IHRL or IHL should prevail, depends on the epistemic and volitional context of decision-making during the conduct of hostilities.

The paper raises the question of whether IHL or IHRL should govern the conduct of hostilities for six types of non-international and international armed conflicts (NIACs and IACs). One of two characteristics distinguishes them from confrontations that do not count as armed conflicts: either the intensity of hostilities or a state’s (non-authorised) use of armed force outside its own territory. The paper analyses how the intensity and territorial scope of hostilities affect the epistemic and volitional context of decision-making on the battlefield and thereby IHRL’s and IHL’s respective ability to discharge the law’s two moral tasks.

This analysis leads to the following proposal for a moral division of labour between IHRL and IHL: As the morally prima facie better law IHRL should govern the conduct of hostilities in law enforcement operations. In non-protracted IACs, ‘symmetrical IHRL’ – applied as if both parties had a lawful aim - should govern the permissibility of killing. Above the threshold of intensity at which hostilities count as protracted, hence during NIACs and protracted IACs, we face a choice between affording individuals a guide towards what is typically the course of action that conforms to their moral obligations (task one) and reducing individual rights violations in the outcome of warfare (task two). ‘Symmetrical IHRL’ better discharges task one; IHL better discharges task two. It depends on the relative moral costs of prioritizing one task over the other, which body of law should prevail. I argue that IHL currently offers a better, but far from morally ideal law for governing the permissibility of killing during the conduct of hostilities, once these hostilities reach the crucial threshold of being protracted. From a moral point of view, IHL should therefore displace IHRL and govern, on its own, the conduct of hostilities during NIACs and protracted IACs.

Charles on the Basic RIght to Transport Firearms for Lawful Purposes

Patrick J. Charles (Government of the United States of America - Air Force) has posted The Second Amendment and the Basic Right to Transport Firearms for Lawful Purposes (Charleston Law Review, Vol. 13, p. 125 (2019)) on SSRN.  Here is the abstract:

This article addresses the central constitutional issue before the Supreme Court of the United States in New York State Rifle & Pistol Association, Inc. v. City of New York, New York--that is whether the Second Amendment protects a basic right to transport firearms for certain lawful purposes. This article is comprised of three parts. Part I discusses why New York State Rifle & Pistol Association, Inc. v. City of New York, New York should be decided on narrow grounds, particularly if the Supreme Court should adopt a history-in-law approach to adjudicating the case. Part II examines the history of regulating the transportation of firearms and other deadly weapons. Lastly, Part III makes the brief case for striking down New York City’s transportation restriction as unconstitutional per se.

Seligman on Moral Diversity & Efficient Breach

Matthew Seligman (Cardozo School of Law) has posted Moral Diversity and Efficient Breach (117 Mich. L. Rev. 885 (2019)) on SSRN.  Here is the abstract:

Most people think it is morally wrong to breach a contract. But sophisticated commercial parties, like large corporations, have no objection to breaching contracts and paying the price in damages when doing so is in their self-interest. The literature has ignored the profound legal, economic, and normative implications of that asymmetry between individuals’ and firms’ approaches to breach. To individuals, a contract is a promise that cannot be broken regardless of the financial stakes. For example, millions of homeowners refused to breach their mortgage contracts in the aftermath of the housing crisis even though doing so could have saved them tens or even hundreds of thousands of dollars. Their moral beliefs led homeowners to forgo opportunities for efficient breach that firms would have seized, thus exacerbating already swelling wealth inequalities.

This Article explains this phenomenon, identifies its consequences and examines strategies to address it. Neither ex post judicial interventions (such as adjusting the remedies for breach) nor traditional ex ante regulatory interventions (such as disclosure requirements) will effectively address the problem. Instead, the most promising approach is a novel solution based on the framework of choice architecture: requiring contracts to include an express term creating an option to exit the contract and pay a fee equivalent to expectation damages. An express exit term elevates an implicit legal option into an explicit contractual option, reframing the moral choice so individuals would perceive exiting the contract as a morally permissible performance of their promise rather than a morally forbidden breaking of it. The presence of that exit term thereby aligns individuals’ perceptions of their moral obligations under the contract with sophisticated firms’ approaches to breach.

The Article concludes with new empirical evidence that demonstrates the practical impact of an exit clause. It presents the results of two experimental studies I performed that demonstrate the effectiveness of a mandatory exit clause in reducing the effects of the asymmetry between individuals and firms. Those results show that exit clauses could have substantial practical implications for the regulation of contracts in contexts like consumer and mortgage contracts.

Highly recommended.  Download it while it's hot!

Sunstein on LIberalism

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School (HKS)) has posted Ismism, Or Has Liberalism Ruined Everything? on SSRN.  Here is the abstract:

There has been considerable recent discussion of the social effects of “liberalism,” which are said to include (among other things) a growth in out-of-wedlock childbirth, repudiation of traditions (religious and otherwise), a rise in populism, increased reliance on technocracy, inequality, environmental degradation, sexual promiscuity, deterioration of civic associations, a diminution of civic virtue, political correctness on university campuses, and a general sense of alienation. There is good reason for skepticism about these claims. Liberalism is not a person, and it is not an agent in history. Claims about the supposedly adverse social effects of liberalism are best taken not as causal claims at all, but as normative objections that should be defended on their merits. These propositions are elaborated with reference to three subordinate propositions: (1) liberalism, as such, does not lack the resources to defend traditions; (2) liberalism, as such, hardly rejects the idea of “constraint,” though the domains in which liberals accept constraints differ from those of antiliberals, and vary over time; (3) liberalism, as such, does not dishonor the idea of “honor.” There is a general point here about the difficulty of demonstrating, and the potential recklessness of claiming, that one or another “ism” is causally associated with concrete social developments

Highly recommended.

Charters on New Zealand & Constitutional Pluralism

Claire Charters (University of Auckland) has posted Recognition of Tikanga Māori and the Constitutional Myth of Monolegalism: Reinterpreting Case Law on SSRN.  Here is the abstract:

Since the end of the 19th Century New Zealand’s prevailing constitutional narrative has been that New Zealand is monolegal in the sense that only state law has authority, with legislation at the pinnacle as an expression of Parliament’s sovereignty. Under this presumption, tikanga Māori only has authority when it is incorporated into state law via the rules of state law regulating accommodation. [has independent authority as a matter of tikanga but that independent authority is not recognized by the state]. In this chapter, I attempt to illustrate that it is more accurate to read cases involving tikanga Māori in accordance with a more pluralist constitutional narrative, one in which state law recognises tikanga Māori as an independent authoritative source of law in Aotearoa.

Kidd on Uber

Jeremy Kidd (Mercer University - Walter F. George School of Law) has posted Who's Afraid of Uber (Nevada Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Ride sharing has disrupted the transportation-for-hire industry, breaking down barriers to entry that have protected incumbents in the industry for decades. The disruption has led to calls for increased regulation, along with criticisms about the effect of innovation on consumer safety, market stability, rule of law, and others. And yet, that disruption has also led to tremendous benefits to consumers, as they are freed from a regulatory regime that limited their transportation choices and forced them to pay higher prices for lower quality service. The same type of disruptive innovation is upon us in almost every area of our economy, and how we deal with it will determine whether the law will finally free consumers from the grasp of entrenched and privileged incumbents, or whether the combined forces of those incumbents and their erstwhile allies in academia will lead to a regulatory retrenchment. The article concludes that opposition to innovation rests on a Galbraithian foundation that holds a dim view of human nature, and that greater reliance on Smithian assumptions would serve us better as we decide how to deal with innovation and its disruption. The article also concludes that innovation is inevitable; if the law seeks to inhibit it, it merely guarantees a greater disruption when it finally arrives.

Garrett on Driver's License Suspension in North Carolina

Brandon L. Garrett (Duke University School of Law) & William Crozier (Duke University School of Law) have posted Driver's License Suspension in North Carolina on SSRN.  Here is the abstract:

In this Article, we analyze data concerning driver's license suspension for traffic offenses. The interest of a person in a driver’s license is “substantial,” and the suspension of a license by the state can result in “inconvenience and economic hardship suffered,” as the U.S. Supreme Court has observed, including because a license may “essential in the pursuit of a livelihood.” However, in this analysis of North Carolina data, we found that there are 1,225,000 active driver’s licenses suspensions in North Carolina for non-driving related reasons, relating to failure to pay traffic fines and court courts, and failure to appear in court for traffic offenses. These suspensions constitute about 15% of all adult drivers in the state. Of those, 827,000 are for failure to appear in court, 263,000 for failure to comply with orders to pay traffic costs, fines, and fees, and 135,000 for both. These suspensions are disproportionately imposed on minority residents. Of those with driver’s license suspensions, 33% of those with failure to appear suspensions are black and 24% Latinx, while 35% were white. The demographics for all North Carolina residents who are of driving age include: 65% white, 21% black, and 8% Latinx. Still more severe consequences, DWLR charges, also disproportionately fall on minority residents. We also conducted a series of mixed-model linear regressions on North Carolina driver’s license suspensions from 2010-2017, analyzing the effects of race, poverty, population size, traffic court cases and traffic stops on suspensions per county. Overall, population accounts for most of the variation in suspensions: the more people in the county, the more people have suspended licenses. When we control for population, we see little evidence that traffic stops or traffic cases are driving suspensions. We find that the relationship between the number of people in poverty and the number of suspensions in a county is dependent on race. Put another way, increasing a county’s population by one white individual below poverty increases the number of suspensions by a greater amount than increasing the county’s population by one white above poverty. However, increasing the population by one black individual below poverty increases the number of suspensions by less than increasing the county population by one black individual above poverty. This suggests that poverty functions differently for whites than it does for blacks. We conclude by setting out questions for future research, and describing both law and policy responses to driver’s license suspensions in other jurisdictions, including: constitutional challenges, restoration efforts, dismissals of charges, and legislative efforts to restore licenses and end the suspension of driver’s licenses for non-driving related traffic offenses.

Lowenstein & Kisska-Schulze on the Constitutionality of the Estate Tax

Henry Lowenstein, Ph.d. and Kathryn Kisska-Schulze (Coastal Carolina University and Clemson University College of Business) have posted A Historical Examination of the Constitutionality of the Federal Estate Tax (William & Mary Bill of Rights Journal, Vol. 27, No. 1, 2018) on SSRN. Here is the abstract:

During the 2016 presidential debate, Hillary Clinton vowed to raise the estate (death) tax to 65%, while Donald Trump pledged to abolish it as part of his overall tax reform proposal. An interesting question resonates as to whether the tax is even constitutional. This paper takes a fresh look at the Estate Tax, appropriate in an era of a U.S. Supreme Court consisting of a majority of adherents to a more “strict constructionist” view of constitutional interpretation. Although historically regarded by the U.S. Supreme Court as being a constitutional excise tax, it can be theorized that the estate tax is an unconstitutional overreach of taxing power by the Federal government and constitutes a “taking” of private property banned by the 5th Amendment. This article directly confronts the constitutionality of the federal Estate Tax from a purely bedrock perspective. To meet this objective, were review the enumerated powers of Federal taxation as allowed by the U.S. Constitution; dissect the scope of the estate tax, to include an analysis of the judicial and legislative history supporting its constitutionality; theorize that the tax does not have a constitutional basis legitimizing its inclusion in the Federal tax code; and conclude that the estate tax violates the U.S. Constitution and should therefore be repealed.

Wasserman on Constitutional Litigation

Howard Wasserman (Florida International University (FIU) - College of Law) has posted Precedent, Particularized Injunctions, and Judicial Departmentalism: A Model of Constitutional Adjudication (Lewis & Clark Law Review, Forthcoming (2020)) on SSRN.  Here is the abstract:

This article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles: 1) An actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself; 2) the remedy when a law is constitutionally invalid is for the court to halt enforcement; 3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” injunctions; 4) a judgment controls the parties to the case, while the opinion of a court creates precedent to resolve future cases; and 5) rather than judicial supremacy, federal courts operate on a model of “judicial departmentalism,” in which executive and legislative officials must abide by judgments in particular cases, but exercise independent interpretive authority as to constitutional meaning, even where those interpretations conflict with judicial understanding. The synthesis of these five principles produces a constitutional system defined by the following features: 1) the judgment in one case declaring a law invalid prohibits enforcement of the law as to the parties to the case; 2) the challenged law remains on the books; 3) the challenged law may be enforced as to non-parties to the original case, but systemic and institutional incentives weigh against such enforcement efforts and push towards compliance with judicial understandings.

Dana & Wiseman on Fracking & Property Rights

David A. Dana (Northwestern University - Pritzker School of Law) & Hannah Jacobs Wiseman (Florida State University - College of Law) have posted Fracking as a Test of the Demsetz Property Rights Thesis on SSRN.  Here is the abstract:

Since its introduction in 1967, the account of property rights formation by Harold Demsetz has pervaded the legal and economic literature. Demsetz theorized that as a once-abundant, commonly-shared resource becomes more valuable and sought-after, users will move to more clearly define property rights in the resource. Despite the high transaction costs of this approach, the costs of organizing and enforcing a rights regime become worthwhile in the face of scarcity. And privatization, in turn, leads to more efficient use of the resource by the individuals holding the property rights, with less externalization of the harmful effects of resource use. Modified accounts provide a more nuanced story, in which “governance” — broadly speaking — emerges to address scarcity concerns. This governance can include traditional regulation that draws clearer property rights in the resource and forces cost internalization as well as innovative, less formal regimes such as monitoring and reporting of resource use, voluntary agreements to internalize certain harms, and other commons management tools. But a conundrum remains: in some cases, scarcity does not generate regulation or innovative governance, and the legal scholarship has called for more empirical testing of the reasons for this anti-Demsetzian response.

Hydraulic fracturing, or fracking, presents a perfect case study for this sort of test. This oil and gas extraction technique, which has recently boomed in the United States, has identifiable, substantial negative externalities, including, for example, air pollution and overwithdrawals of freshwater during droughts. Yet states and industry actors have not consistently responded with regulations or innovative governance strategies to internalize these externalities. In this Article we explore the responses in three states experiencing a fracking boom and theorize the reasons for the diverse responses of these states to greater fracking externalities, including responses that do not track Demsetz. We conclude that traditional political explanations, often pejoratively referred to as “capture” or “rent seeking,” political culture, and legal institutions — particularly courts — account for the divergence between what we observe empirically and Demestz’s theory.

Yoo on the Electoral College

John Yoo (University of California at Berkeley School of Law) has posted A Defense of the Electoral College in the Time of Trump (Pepperdine Law Review, Vol. 46, No. 4, 2019) on SSRN.  Here is the abstract:

In the 2016 Presidential Election, Donald J. Trump lost the popular vote by nearly 3 million votes but still secured victory in the Electoral College. The second election in the last 16 years to yield a President without a popular majority has renewed efforts to alter or abolish the Electoral College system. Some legal scholars suggest that the Electoral College lacks legitimacy because the Framers designed it to advantage the slave states.

This Essay responds to these criticisms of the Electoral College by providing a historical perspective on the Framers’ decision-making. The drafting and ratification process demonstrate that the Electoral College was not designed to be “racist,” and that it was a conscious mix of federalism and majoritarianism that provides benefits today. The Essay cautions against an overreaction to the 2016 election despite the Electoral College’s failure to filter out a candidate such as Trump. It argues that the alternative to the Electoral College – a system of direct election that would not benefit from the state structure to dissipate and diffuse rash popular movements – could present a higher risk of danger of tyranny by the majority.

Legal Theory Lexicon: Hypotheticals

Introduction

The hypothetical (or "hypo") is so familiar to anyone who has received a legal education in the United States that you might ask, "Can there possibly be anything of theoretical interest in the hypothetical?" And in the same vein, "We all know what hypos are." The purpose of this post is to reflect on the "hypothetical," with the special purpose of equipping law students with an interest in legal theory for the task of thinking rigorous and analytically about hypotheticals, what they are, what they can and can't accomplish, how to construct them, and how to maneuver around them.

What is a hypothetical?

Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and hypothesis as "an assumption or concession made for the sake of argument" or "a tentative assumption made in order to draw out and test its logical or empirical consequences," from the Greek from hypotithenai, "to put under."

In American law schools, the pure hypothetical is a counterfactual variation on the fact pattern of an actual case. The hypothetical plays an important role in the Socratic style of law school teaching.

Here is a very simple example. If the actual case involved a contract between Ben and Alice, in which Alice agreed in writing to fix Ben's roof, and Ben agreed to pay Alice $100, Alice did not perform, and Ben had to pay $200 to another roofer, we might get hypos like the following:

• What if the agreement had been oral instead of in writing?
• What if the contract price had been $300?
• What if Alice had been a minor?
• What if the contract had not specified a price?
• What if Alice did the job, but the roof still leaked?

And so on.

The Purposes of Hypotheticals

Why do law professors use hypotheticals?

• As a tool for the explication of legal doctrine.
• As a tool for exploring the moral underpinnings of legal rules
• As a tool for exploring the consequences of legal rules.

Law students quickly become familiar with the first of the three kinds of hypotheticals. They read a case and learn a rule. The professor then poses hypothetical variations on the case to test the student's knowledge of the rule. Typically, the hypo is followed with a question like, "What result?" But legal education is also about the normative analysis of legal doctrine, and hypotheticals can also be used to explore our intuitions about the morality of the law. Such hypos are frequently end with, "What should the result be?" And the follow-up question, "That's the rule, but do you think that is the right result?" Finally, contemporary legal education incorporates a healthy dose of economic analysis. So, we can add information about prices to hypos and then ask what consequences a rule will produce if the various actors are "rational" in the economic sense.

"Beware the hypothetical, my son. The laws that catch, the facts that bite."

Hypos can be fun, but many law students don't have a good time, when they are led to contradict themselves by a series of hypos. Having learned not to contradict yourself, you may then find that by remaining consistent, you can be led, step by step, to an answer that is consistent but absurd. If you can adopt a Zen-like attitude to this process, there is nothing wrong with going along for the ride. Socratic dialog is not a game, and law professors actually need students to make certain common mistakes in order to get certain points across. However, there are a number of techniques that law students can learn to become more effective at the hypothetical game.

Lesson Number One: Fight the hypothetical, lose the war!

The first and most important lesson to learn about hypotheticals is that you can't get anywhere by fighting the set up. (I will modify this rule of thumb later on.) One of the first ways that law students begin to fight back against hypotheticals to resist the "hypothesis." One way to do this is to fight the facts. "That wouldn't happen." Or "In the real world, it would happen differently." Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, "O.K., but for the sake of argument, assume these facts." At the best, you get another version of the same hypo that works around your factual objection." As a general rule, don't fight the facts.

Lesson Number Two: Watch for Slippery Slopes

Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn't seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, "I see were are on a slippery slope here." Then just go along for the ride, and when you read the bottom, just say, "Well, I see we are at the bottom of the slippery slope now!" You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, "My answer is still "Yes, but we are starting to enter the gray zone." (If you want to be fancy, say ". . . but we are starting to enter the penumbra of the rule." When you think that you've hit a truly hard case, say "Now, we are definitely in the gray zone. It's really a judgment call which could go either way." And then when you get to the bottom of the slippery slope, you can say, "Now, it's clear, the answer is no." This second strategy is simply the way to make the point that there are lot's of legal rules that require a "Yes" or "No" answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor's way of getting you to see this phenomenon.

Lesson Number Three: Watch Out for Cold Rules and Hot Facts

This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. "Starving babies" are a common device. But should Alice have to pay Ben damages if Alice has a "starving baby!" Of course not, you say to yourself, but in fact whether or not Alice's baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense." Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of "necessity." Obviously, these two strategies can be combined: "Well, morally speaking, it seems repugnant to make Alice pay, but I don't see how her financial needs provide her with a legal defense. Maybe, should could argue that there is a defense of "necessity" to actions for breach of contract."

Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:

Easy cases involve a straightforward application of a legal rule. Most hypos are easy cases. You may make a mistake and learn something about the rule, but there is nothing funny going on here. Easy cases are the bread and butter of legal education.

Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn't. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided--"novel questions" where not precedent or rule is binding; (2) Rules sometimes have "gaps," places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a "hard case." When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:

(1) Arguments of fit. You can argue for a rule or result on the grounds that it best fits the legal landscape. Arguments of fit are about consistency or coherence. Frequently, you make arguments of fit based on analogies between the rule in situation A (that is settled) and the rule that should obtain in situation B (where the law is unclear).

(2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body.

(3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) savings lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted.

Hard cases are the meat and potatoes of law school.

Wild Cases involve fanciful fact patters or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren't punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus, can a 32 year serve as President, even though the Constitution sets a minimum age of 35. Wild cases are frequently constructed to serve as "intuition pumps." That is, the wild case is constructed so as to generate a particular reaction--an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating--they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work--pumping the intuition. When you are questioned about a wild case, you should simply give your reaction--your gut instinct. But it is also fair to qualify your answer: "My answer is yes, but this case is so wild that I really don't feel very sure about my intuitions." Wild cases are the desert of law school.

Conclusion

There is a lot more to learn about hypotheticals (perhaps in a second installment in the Legal Theory Lexicon, but these four lessons should get you started.

Related Lexicon Entries

• Legal Theory Lexicon 005: Holdings
  
• Legal Theory Lexicon 026: Rules, Standards, and Principles

Resources on the Internet

• James Robert Brown & Yiftach Fehige, Thought Experiments, Stanford Encyclopedia of Philosophy (2014).

Bibliography

• Daniel Dennett, Elbow Room: The Varieties of Free Will Worth Wanting (MIT Press 1984).
• Daniel Dennett, Intuition Pumps And Other Tools for Thinking > (W.W. Norton & Co. 2013).
• James Robert Brown & Yiftach Fehige, Thought Experiments, Stanford Encyclopedia of Philosophy, http://plato.stanford.edu/entries/thought-experiment/ (2011).

(Last updated on April 14, 2019.)

Legal Theory Bookworm: "Legal Directives and Practical Reasons" by Gur

The Legal Theory Bookworm recommends Legal Directives and Practical Reasons by Noam Gur.  Here is a description:

This book investigates law's interaction with practical reasons. What difference can legal requirements-e.g. traffic rules, tax laws, or work safety regulations-make to normative reasons relevant to our action? Do they give reasons for action that should be weighed among all other reasons? Or can they, instead, exclude and take the place of some other reasons? The book critically examines some of the existing answers and puts forward an alternative understanding of law's interaction with practical reasons. 

At the outset, two competing positions are pitted against each other: Joseph Raz's view that (legitimate) legal authorities have pre-emptive force, namely that they give reasons for action that exclude some other reasons; and an antithesis, according to which law-making institutions (even those that meet prerequisites of legitimacy) can at most provide us with reasons that compete in weight with opposing reasons for action. These two positions are examined from several perspectives, such as justified disobedience cases, law's conduct-guiding function in contexts of bounded rationality, and the phenomenology associated with authority. 

It is found that, although each of the above positions offers insight into the conundrum at hand, both suffer from significant flaws. These observations form the basis on which an alternative position is put forward and defended. According to this position, the existence of a reasonably just and well-functioning legal system constitutes a reason that fits neither into a model of ordinary reasons for action nor into a pre-emptive paradigm-it constitutes a reason to adopt an (overridable) disposition that inclines its possessor towards compliance with the system's requirements. 

Recommended.

Download of the Week: "The Spectrum of Congressional Authority Over Elections" by Tolson

The Download of the Week is The Spectrum of Congressional Authority Over Elections by Franita Tolson.  Here is the abstract:

Congress routinely fails to articulate the source of authority pursuant to which it enacts federal statutes. This oversight forces the Supreme Court to sustain the constitutionality of these regulations based on powers that find no mention in the legislative record. The shortcomings of the record have not prevented the Court from interpreting congressional power quite broadly when a federal statute can be sustained as a lawful exercise of authority pursuant to more than one substantive constitutional provision. In the context of elections, however, the Court has been decidedly more opportunistic about whether it will examine the constitutionality of federal law within the broader spectrum of congressional authority.

In Shelby County v. Holder, for example, the Court held that section 4(b) of the Voting Rights Act of 1965 violated the equal sovereignty principle by forcing certain states to seek federal approval before implementing laws that they are otherwise constitutionally authorized to enact. Sections 4(b) and 5 suspended all changes to state election laws in covered jurisdictions, including nondiscriminatory voter qualification standards and procedural regulations that govern state elections. In prioritizing federalism over all other equally valid considerations, the Court ignored whether the Voting Rights Act was valid because congressional power could be derived, in part, from the Elections Clause. The Elections Clause gives Congress final policymaking authority over setting the times, places, and manner of federal elections. Unlike the Fourteenth and Fifteenth Amendments, a context in which the Court imposes some federalism limitations on the exercise of federal power, the Clause allows Congress to legislate without regard for state sovereignty.

The unique nature of the Elections Clause highlights the importance of applying a theoretical framework to Congress’s authority over elections that properly accounts for the presence of multiple, and sometimes conflicting, sources of federal power. Not only does the Clause allow the federal government to disregard state sovereignty, but the line between voter qualification standards, on one hand, and time, place, and manner regulations, on the other, is significantly more blurred than the caselaw indicates, resulting in the existence of hybrid regulations of uncertain constitutional mooring. This Article concludes that Congress’s sovereign authority under the Elections Clause is broad enough to reach restrictive and oppressive voter qualification standards that affect federal elections, a category that the Court has held falls squarely within the province of state authority. The uncertainty surrounding the boundaries of these regulations, as well as the presence of multiple sources of constitutional authority, means that, in some limited instances, Congress can aggressively police state action under the Elections Clause to protect the fundamental right to vote.

Highly recommended.

Margalit on Legal Parentage

Yehezkel Margalit (Netanya Academic College; New York University School of Law) has posted Determining Legal Parentage - Between Family Law and Contract Law (Cambridge University Press, 2019) on SSRN.  Here is the abstract:

The last few decades have witnessed dramatic changes affecting the institutions of family and parenthood. If, in the past, the classic family was defined sociologically as a pair of heterosexual parents living together under one roof along with their children, different sociological changes have led to a rapid and extreme transformation in the definitions of family, marital relations, parenthood, and the relationship between parents and children. Dr. Yehezkel Margalit explores whether and to what extent there is room, legally and ethically, for the use of modern contractual devices and doctrines to privately regulate the establishment of legal parentage. This book offers intentional parenthood as the most appropriate and flexible normative doctrine for resolving the dilemmas which have surfaced in the field of determining legal parentage. By using the certainty of contract law, determining the legal status of parenthood will be seen as the best method to sort out ambiguities and assure both parental and children rights.

Fields on Policing Arizona

Shawn Fields (Campbell University - Norman Adrian Wiggins School of Law) has posted Guns, Knives, and Swords: Policing a Heavily Armed Arizona (Arizona State Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Arizona is widely recognized as the most permissive state in the country for public weapons possession. In 2010, then-Governor Jan Brewer famously removed all permitting requirements for public concealed carry of firearms, making Arizona only the third “constitutional carry” state in the nation. Also in 2010, and to much less fanfare, Arizona became the first state to prohibit local governments from enacting any regulations restricting the sale or possession of knives of any kind, including swords, maces, and other exotic blades. Today, Arizona remains the only state in the country with virtually no restrictions on the public concealed carry of any type of bladed weapon. In part owing to this deregulatory environment, as many as twelve percent of all Arizonans report publicly carrying a concealed deadly weapon on their person or in their vehicle.

But these laws have also created confusion for Arizona police officers charged with protecting the public. For over a century, Arizona officers could justifiably initiate an investigatory stop of a publicly armed individual based on little more than a reasonable suspicion that such possession was unlawful. But in a state where a significant percentage of the population lawfully possesses weapons in public, Arizona police must now discern which lethal weapons carriers are law abiding citizens and which ones pose true criminal threats to the public. Increasing the confusion for Arizona law enforcement, the Ninth Circuit and Arizona Supreme Court have recently authored conflicting opinions regarding whether a lawfully stopped individual can be frisked solely because he is armed or whether he must also give the officer reasonable suspicion that he is “presently dangerous.”

This Article examines three distinct aspects of Arizona law and policy as it relates to this growing confusion. First, it challenges the efficacy and constitutionality of Arizona’s “duty toinform” law, which seeks to clarify this reasonable suspicion quandary by requiring concealed weapons possessors to affirmatively disclose the presence of weapons to police officers when asked. As a matter of federal constitutional law, officers can only require citizens to cooperate with inquiries if reasonable suspicion already existed to justify the stop. In contrast, by requiring citizens to voluntarily disclose information to officers, “duty to inform” laws arguably place these encounters with law enforcement outside the traditional Terry v. Ohio stop context, thus rendering the encounter consensual and failing to solve the reasonable suspicion issue.

Second, the Article considers the competing case law in Arizona regarding the “armed and dangerous” prong of stop and frisk for lawful gun carriers. The Arizona Supreme Court in State v. Serna held that lawful weapons carriers cannot automatically be considered dangerous for purposes of a protective frisk. The Ninth Circuit, in United States v. Orman, held otherwise, and
focused on characteristics of gun ownership not explicitly considered by the Arizona Supreme Court. But both cases involved consensual encounters and not involuntary investigative stops. The Article surveys case law from other jurisdictions to offer a balanced approach to frisks of lawfully stopped, lawfully armed Arizonans.

Third, the Article highlights policy considerations relevant to resolving these competing perspectives, as well as the competing interests of Arizonans in exercising their statutory possession rights and of officers in protecting themselves and others when faced with a public weapon carrier. In doing so, the Article explores for the first time in scholarly literature what, if any, parallels can be drawn from the experience of officers stopping and frisking lawful gun carriers and officers stopping and frisking lawful knife carriers.

Williams on Multidistrict LItigation

Margaret S. Williams (Federal Judicial Center) has posted The Effect of Multidistrict Litigation on the Federal Judiciary over the Past 50 Years on SSRN.  Here is the abstract:

Looking over the first 50 years of decisions by the Judicial Panel on Multidistrict Litigation (Panel), this article considers how the work of the Panel has shaped the nature of the dockets of federal courts across the country as well as the individual judges serving on them. Beginning with the proceedings they create, and the hundreds of thousands of cases reassigned by their decision making, this article considers how the type and size of the proceedings have changed and what these changes mean for civil litigation generally. After looking at the number and size of proceedings created, the analysis then moves to a look at the districts assigned these proceedings, considering both the number of proceedings and the number of cases moved across the country. Most importantly, this article assesses the districts (transferee and transferor) most affected by the decisions of the Panel. Lastly, the article examines the judges who have been assigned these proceedings—how many they are assigned, how many cases they manage, and how they have changed as the judiciary evolved over this 50-year period.

Highly recommended.

Schauer on the Interpretation-Construction Distinction

Frederick Schauer (University of Virginia School of Law) has posted A Critical Examination of the Distinction between Interpretation and Construction on SSRN.  Here is the abstract:

The distinction between interpretation and construction, with its roots in the law and theory of contracts, has become a central theme in contemporary debates about constitutional theory. According to the distinction, advanced and elaborated by Lawrence Solum, Keith Whittington and many others, interpretation is the process of locating the linguistic meaning of an authoritative text in a statute, in the Constitution, or in any other authoritative legal item. But at the heart of the distinction is the idea that identifying the linguistic meaning of a legal text does not answer the question of how that text should be applied to specific facts and specific legal controversies. This is construction, so it is said, and it necessarily goes beyond the process of interpretation.

Although the distinction is a valuable precaution against those who would seek to claim that the application of law is entirely or mostly a question of meaning, it runs into trouble when it confronts the existence of technical legal language in the law. Interpreting such language, especially when it is constitutive or evaluative, requires recourse to legal values, legal goals, and the purposes of legal institutions, but in doing so it requires recourse to law at interpretation stage. As a result, the basic insight of the distinction between interpretation and construction – that semantic content and legal values are different, and that law enters the process only at the construction stage – is of limited value when the language at issue is legally technical.

Highly recommended.