Legal Theory Blog

Thomas & Diamantis on Corporate Criminal Law

W. Robert (Will) Thomas (University of Michigan Ross School of Business) & Mihailis Diamantis (University of Iowa - College of Law) have posted A Marketing Pitch for Corporate Criminal Law (1 Stetson Business Law Review __ (forthcoming)) on SSRN.  Here is the abstract:

Corporate criminal law needs a marketing makeover. In the public relations frenzy that follows a corporate criminal investigation, authorities are outgunned and outmaneuvered. Judging by the pastiche of '90s era design choices on the website the Department of Justice uses to announce corporate penalties, authorities are either unaware of the important of marketing or do not care. Prosecutors aren’t marketing professionals. Nor, for that matter, are most scholars writing about corporate misconduct.

Humdrum publicity dilutes corporate sanctions and dulls the edge of criminal justice. Criminal dispositions should single out truly contemptible practices from merely sharp, unproductive, or undesirable ones. In this way, criminal law gives victims the recognition they deserve and deters wrongdoers who would preserve their good name. Corporate punishment today falls far short of these communicative ambitions. It is a fleeting affair diluted by civil and administrative alternatives, PR spin, and a frenetic media environment. It can be hard even to identify after the fact who the corporate criminals are. Unsurprisingly, corporations view criminal charges as inconvenient economic uncertainties and criminal sanctions as mere costs of doing business. Public perceptions have largely followed suit.

For punishment to convey its intended message, society must hear it. Some marketing savvy could help. Yet legal scholars working to improve corporate criminal justice (let alone government functionaries enacting it) rarely seek the advice of colleagues in marketing departments. This paper lays the groundwork for dialogue about how to market corporate criminal law better and thereby make it more effective.

Conkle on Perry on Constitutional Rights, Human Rights, and Judicial Review

Daniel O. Conkle (Indiana University Maurer School of Law) has posted Human Rights, Constitutional Rights, and Judicial Review: Comparing and Assessing Michael Perry's Early and Contemporary Arguments (Emory Law Journal, Vol. 71, pp. 1365–96, 2022) on SSRN.  Here is the abstract:

In this Essay, I explore, compare, and evaluate two theoretical models of judicial review in individual rights cases, each proposed by Professor Michael J. Perry, albeit in books separated by three and a half decades. In his 1982 book, The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary, Early Perry embraced an aggressive form of judicial activism, urging the Supreme Court to test political judgments through an open-ended search for political-moral truth. Contemporary Perry, by contrast, takes a very different approach. In his 2017 book, A Global Political Morality: Human Rights, Democracy, and Constitutionalism, Contemporary Perry advocates an originalist, but novel and nuanced, model of judicial review. Notably, he contends that there is a global political morality of human rights and that this global morality should influence the interpretation of American constitutional law. I am critical of Early Perry but find Contemporary Perry’s theory attractive, albeit with caveats.

I begin the Essay by identifying three criteria for evaluating competing models of judicial review in individual rights cases: (1) majoritarian self-government, (2) judicial objectivity and competence, and (3) functional justification. Using these criteria, I then assess Early and Contemporary Perry in turn. I conclude that Early Perry’s posited search for political-moral truth provided a compelling functional justification for his model of judicial review but that, conversely, the model faltered badly under my remaining criteria—majoritarian self-government and judicial competence and objectivity. Turning to Contemporary Perry, I find that the model of judicial review that he proposes, viewed in the abstract, would appear to serve a powerful function—bringing American constitutional law into closer alignment with the political morality of human rights—even while also accommodating majoritarian self-government and the need for judicial objectivity and competence, thus satisfying each of my three criteria to a substantial degree. Moving from an abstract account to a more fine-grained analysis, however, I go on to argue that Contemporary Perry’s model, as elaborated and applied, might not be as objective as it seems, a weakness that also tends to undermine the model’s compliance with the criterion of majoritarian self-government. Accordingly, my overall assessment of Contemporary Perry is positive but qualified.

Shachar on Citizenship & Mobility

Ayelet Shachar (University of Toronto - Faculty of Law; Max Planck Society for the Advancement of the Sciences - Max Planck Institute for the Study of Religious and Ethnic Diversity) has posted Gated Citizenship (Citizenship Studies 26 (2022), 625-637) on SSRN.  Here is the abstract:

In The Birthright Lottery, I explored the multiple ways in which birthright access to citizenship operates as a distributor (or denier) of opportunity on a global scale. And what a significant distributor it is. Today, 97 percent of the global population gains access to citizenship solely by virtue of where or to whom they were born. In this article, I shift the gaze from the automatic transmission of citizenship, which I refer to as the initial allocation, to deciphering the code, or underlying logic, governing the secondary allocation: the process of naturalization. Counter to predictions of waning sovereignty, tremendous investment is placed on regulating mobility, migration, and access to membership. This article identifies three core sorting mechanisms that produce overt and covert inequalities in the acquisition of citizenship. We may refer to these as the trinity of the territorial, the cultural, and the economic. These intersecting yet analytically distinct dimensions allow governments to develop sophisticated sorting mechanisms to “filter” admission in reference to different target populations, placing a heavy burden on those seeking it. This contribution, which will appear in the 25th Anniversary Special Issue of Citizenship Studies, lays bare the mistaken assumption that we live in a world wherein mobility is purely chosen and easily available—irrespective of race, gender, class, power, and legal regulation. It further suggests ways of reinvigorating the political imagination for rewriting the rules governing access to membership.

Thompson et al on Wikipedia's Influence on Judges

Neil Thompson (MIT Computer Science and Artificial Intelligence Lab (CSAIL); MIT Initiative on the Digital Economy), Brian Flanagan (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law), Edana Richardson (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law), Brian McKenzie (Maynooth University), Xueyun Luo (Cornell University, Dyson School of Applied Economics and Management) have posted Trial by Internet: A Randomized Field Experiment on Wikipedia’s Influence on Judges’ Legal Reasoning (Forthcoming in Cambridge Handbook of Experimental Jurisprudence, editor Kevin Tobia, Cambridge University Press) on SSRN.  Here is the abstract:

In the common law tradition, legal decisions are supposed to be grounded in both statute and precedent, with legal training guiding practitioners on the most important and relevant touchstones. But actors in the legal system are also human, with the failings and foibles seen throughout society. This may lead them to take methodological shortcuts, even to relying on unknown internet users for determinations of a legal source’s relevance.

In this chapter, we investigate the influence on legal judgments of a pervasive, but unauthoritative source of legal knowledge: Wikipedia. Using the first randomized field experiment ever undertaken in this area—the gold standard for identifying causal effects—we show that Wikipedia shapes judicial behavior. Wikipedia articles on decided cases, written by law students, guide both the decisions that judges cite as precedents and the textual content of their written opinions. The information and legal analysis offered on Wikipedia led judges to cite the relevant legal cases more often and to talk about them in ways comparable to how the Wikipedia authors had framed them.

Collectively, our study provides clear empirical evidence of a new form of influence on judges’ application of the law—easily accessible, user-generated online content. Because such content is not authoritative, our analysis reveals a policy-gap: if easily-accessible analysis of legal questions is already being relied on, it behooves the legal community to

Nourse on the 2020-22 Supreme Court

Victoria Nourse (Georgetown University Law Center) has posted The Promise and Paradox of a Unified Judicial Philosophy: An Empirical Study of the New Supreme Court, 2020-2022 on SSRN.  Here is the abstract:

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile in the courts’ opinions. History appears in at least one opinion in a majority of cases and in a significant minority of unanimous cases, text is the end of the matter. However, there is also cause for worry. We found significant evidence of what Prof. Adrian Vermeule (2022) has called “disruption,” meaning that history and text are used to disrupt prior doctrines despite claims that originalism seeks stability and neutrality. Call this the “disruption” paradox. Similarly, we found that the self-described textualist Justices—presumably the best textualists in the world—do not agree upon the text most of the time. And when they disagree about text, they end up doing what they say that they should not do, engaging in policy reasoning. Call this the “consequentialist paradox.” The paper argues that proponents and critics of the court's new interpretive philosophy should seek to resolve these quandaries. [An 80 page appendix supporting these claims is posted separately]

Interesting and recommended.

Roughan on Legal Pluralism, Conflicts of Laws, & Indigenous Legalities

Nicole Roughan (University of Auckland - Faculty of Law) has posted Plurality of Laws and Conflict of Laws: Reconciling Through Recognition? (This is a draft of a chapter that has been accepted for publication by Oxford University Press in the forthcoming book Philosophical Foundations of Private International Law edited by Roxana Banu, Michael Green, and Ralf Michaels due for publication in 2023) on SSRN.  Here is the abstract:

Advocates of the flexibility and adaptability of conflict of laws models have articulated renewed potential for its institutions, methods, doctrines to be part of the toolkit for operating relations between state and Indigenous legal orders. However, at a time when pluralist jurisprudence grapples with new ways of realizing inter-sovereign or at least inter-authority relationships between Indigenous and state orders,, such a relational turn in conflicts theory, away from sovereigntist and statist orientations, may (perhaps perversely, put it on the wrong side of efforts to realise legitimate relative authority.

When private claims to Indigenous legalities invoke the very public character that the state also claims, then the demand made to the state differs from those of the foreigner as well as from others within the state. Treating them together risks reducing claims to Indigenous legalities to claims of private persons within a monistic public (state) authority, rather than as challenges to the state’s authority in ways that reveal its interdependence with the Indigenous legal order. These are not mere representations of inside/outside dualities in the person or in our social/political institutions. They are positions claimed, held, and defended at the expense of the other. If conflict of laws is to be redrawn to offer a mode of recognition and relating legal orders to another, then it needs to be redrawn so as to institutionally recognise the interaction and interdependence of legitimate authorities.

Highly recommended.

Reid on Common Carriage Law

Blake E. Reid (University of Colorado Law School) has posted The Incoherence of Common Carriage Law on SSRN.  Here is the abstract:

As debates over the regulation of “Big Tech” Internet platforms— social media, search, and more—have swirled, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Common carriage is increasingly invoked as a talisman—particularly around proposals from conservative scholars, policymakers, and judges aimed at purported political discrimination by platforms—to justify the imposition of non-discrimination rules.

This Article questions the coherence of applying common carriage law to Internet platforms. It explains that the talismanic invocation of “common carriage” routinely conflates distinct questions around the designation of common carriers, the imposition of common carriage rules, and the First Amendment limitations thereon. Juxtaposing contemporary common carriage scholarship against a survey of the post-Civil War history of common carriage regimes in telecommunications law, it explains that, contrary to popular assertion, common carriage law encompasses a diverse collection of widely differing and difficult- to-reconcile classifications of “carriers,” “carriage” rules, and First Amendment doctrine.

Together, these classifications, rules, and doctrine provide an uncertain and incoherent base for developing and assessing regulatory regimes for Internet platforms. Applying this novel three-part framework, this Article makes a case for an alternative, context-sensitive approach to Internet regulations that evaluates the designation of carriers, the imposition of rules, and the role of the First Amendment on a granular basis that considers the vast degree of diversity that manifests across the Internet’s layer stack.

Very interesting and recommended.

Reinert on Qualified Immunity

Alex Reinert (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Qualified Immunity's Flawed Foundation (California Law Review, Forthcoming) on SSRN.  Here is the abstract:

Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine – fundamental errors that have never before been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction – namely that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common-law immunity defenses. As this Article shows, the Derogation Canon has no appropriate role to play in interpreting Section 1983. Its viability has been continuously called into question for more than a century. Even when it has been applied, the canon has been used as a reason to disfavor displacement of common-law claims, not common-law defenses. And it is always operating in tension with a contrary canon that remedial statutes, like Section 1983, should be given a broad reading.

This Article also identifies a second significant failing in the Court’s qualified immunity law. For even if the Derogation Canon were valid, the Reconstruction Congress that passed Section 1983 meant to explicitly displace common-law protections. Most critically, scholars and courts have overlooked the originally-enacted version of Section 1983, which contained a provision that specifically disapproved of any state law limitations on the new cause of action. For unknown reasons, that provision was not included by the Reviser of the Federal Statutes in the first compilation of federal law in 1874. This Article is the first to unearth the lost text of Section 1983 and demonstrate its implications.

Taken together, these twin insights show that the problems with the Court’s immunity doctrine run deeper than prior scholarly criticism has imagined. Much of current qualified immunity scholarship has addressed, in compelling fashion, how the Court has taken immunity doctrine too far from its common-law origins. But this Article shows that qualified immunity is flawed from the ground up. In other words, the problem with current qualified immunity doctrine is not just that it departs from the common law immunity that existed in 1871. The problem is that the Court has failed to grapple with the strong arguments that no immunity doctrine at all should apply in Section 1983 actions.

Three Options for our Constitutional Order

In this 20 part tweet storm: https://twitter.com/lsolum/status/1557360263581650945?s=20&t=1IggLEqd2ScCoFZi7SLJzQ.

Lukina on Evil Law

Anna Lukina (University of Cambridge, Faculty of Law) has posted Making Sense of Evil Law on SSRN.  Here is the abstract:

In this paper I introduce, define, and ultimately defend the term ‘evil law’. Firstly, I argue that ‘evil law’ is distinct from merely ‘bad’ or ‘unjust’ law and can be defined as law, which, if interpreted according to its best purpose, will enable intolerable harm (including atrocities). Secondly, I claim that ‘evil law’ is law despite objections from both its ‘external’ (Radbruch and Finnis) and ‘internal’ (Fuller) immorality. Instead of eschewing legality, evil regimes benefit from it in a number of ways. Thirdly, I answer Cole’s challenge that using the vocabulary of ‘evil law’ is at best reductive and at worst dangerous. Correctly defined, ‘evil law’ does not hinder but instead aids us in asking further questions such as why it is created and sustained. Even more so, proper use of the vocabulary of ‘evil’ helps articulate the horror evil law inflicts on those marginalized and corrupted by it.

Highly recommended.

Foran on the Common Good and Separation of Powers

Michael P. Foran (University of Glasgow) has posted Rights, Common Good, and The Separation of Powers (The Modern Law Review (Forthcoming)) on SSRN.  Here is the abstract:

The classic natural law tradition is seeing a revival within constitutional theory. The emerging framework of common good constitutionalism seeks to ground and legitimate choices of constitutional design and interpretation in a manner committed to pursuing the flourishing of all members of the community. This raises important questions relating to the separation of powers and fundamental rights protection. This paper seeks to advance and defend an account of rights-based judicial review from within a common good constitutional framework. It will argue that rights and the common good are co-constitutive: a genuinely common good will ensure the protection of fundamental rights and genuinely fundamental rights will help constitute and further the common good. With this in mind, a conception of the separation of powers will be advanced wherein different organs of state act collaboratively to ensure both that fundamental rights are protected and that the state can pursue goals which help to further the common good. As a justificatory lens of constitutional theory, the common good has capacious room for different approaches to institutional design; what matters is that such questions are approached with the common good in mind as the ultimate end of any constitutional order.

Recommended.

Siegel on Originalism & Dobbs

Reva Siegel (Yale University - Law School) has posted Memory Games: Dobbs’s Originalism As Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance (Texas Law Review, Forthcoming) on SSRN.  Here is the abstract:

This Article examines originalism’s role in Roe’s overruling in Dobbs v. Jackson Women’s Health Organization. Through this case study the Article explores competing understandings of originalism. It shows that originalism is not simply a value-neutral method of interpreting the Constitution. Originalism is also a political practice, whose long-term goal has been the overturning of Roe. On this account, executive branch appointments politics matter critically to originalism’s authority, as do originalism’s appeals to constitutional memory to legitimate the exercise of public power. The Article shows that originalism is a practice of living constitutionalism that makes the constitutional order less democratic in several important ways.

To demonstrate why this is so, the Article returns to originalism’s roots in the Reagan years, and examines originalism’s origins in a backlash to the decisions of the Warren and Burger Courts. In 1980, for the first time—and continuously ever since—the Republican Party’s platform promised that “[w]e will work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” I examine the family-values politics from which the quest to overturn Roe emerged, the judicial screening practices developed to pursue it, and the talk of law and politics employed to justify it.

The Article reads Dobbs through a double lens. I first consider how originalists have evaluated the originalism of the opinion (some term Dobbs “living constitutionalist”), and then go on to show how Dobbs depends on the appointments politics and constitutional memory claims I have identified as part of the political practice of originalism. Dobbs’s living constitutionalism serves contemporary movement goals: I show how the history-and-traditions standard that Dobbs employs to overturn Roe threatens many of the same lines of cases targeted for reversal by the architects of originalism in the Reagan administration.

The deepest problem with Dobbs, however, is that its originalism is living constitutionalism that makes our constitutional order less democratic. Dobbs restricts and threatens rights that enable equal participation of members of historically marginalized groups; Dobbs locates constitutional authority in imagined communities of the past, entrenching norms, traditions, and modes of life associated with old status hierarchies; and Dobbs presents its contested value-judgments as expert claims of law and historical fact to which the public owes deference. A concluding Part focuses on constitutional memory as a terrain of constitutional conflict and begins to ask questions about how claims on our constitutional past might be democratized, both inside and outside of originalism, in the aspiration to take back the Constitution from the Court.

Weisberg on Cover

Richard Weisberg (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Robert Cover's Love of Stories: Ruminations on his Wanting to Discuss The Brothers Karamazov with Me Across Five Conversations During the Last Five Years of His Life, with an Application to the Chauvin Murder Trial of 2021 (Touro Law Review, Vol. 37, 2022) on SSRN.  Here is the abstract:

The field of Law and Literature, perhaps more than any other area of legal studies, has been touched deeply by Robert Cover’s life and work. My interactions with Bob over the last half dozen years of his tragically short life provide an insight, recounted in a somewhat personal vein here, into his profound engagement with stories, with the most enduring part of that revitalized inter-discipline. I specify and illustrate five conversations I had with him during conferences, family interactions, or long New Haven walks beginning in 1981 and ending the day before his untimely death in the Summer of 1986. On each occasion, Bob wanted to spin out ideas we were developing together about Dostoevsky’s last masterpiece, The Brothers Karamazov (“The Brothers”), and in these pages, I want to engage the largest issues provoked in Bob’s mind by that text: law, religion, and the potential undermining of sound traditions through “revolutionary” interpretive distortions.

Zhou on Constitutional Principles

Han-Ru Zhou (University of Montreal) has posted Legal Principles, Constitutional Principles and Judicial Review ((2019) 67 American Journal of Comparative Law 899) on SSRN.  Here is the abstract:

Principles form part and parcel of our law and legal discourse, so much so that we seldom think of what they are and what they entail. For centuries they have been invoked daily to interpret and argue about the law. But when it comes to matters of constitutional law, principles are further called upon to perform a perennially controversial function: to help police the boundaries of State action. In most common law jurisdictions with a written constitution, this function of principles runs against the generally accepted view that the exercise of judicial review must ultimately be governed and restricted by the terms of the national constitution. This Article argues that the exercise of judicial review based on principles is not confined to that view, once the relationship between principles and the constitution is unpacked and re-contextualized.

While the literature on principles in English over the past half-century has been dominated by a select group of Anglo-American scholars, there is a wealth of untapped insights developed in other parts of the world. One of the major contributions by continental legal theorists even predates the earliest modern Anglo-American writings on the subject by more than a decade. Overall, the law literature in common law and civil law systems reveals a significant degree of commonalities in the basic characters of principles despite the absence of initial evidence of transsystemic borrowings. The wider conceptual inquiry also displays a shift in the focus of the debate, from the protracted search for a clear-cut distinction between rules and principles towards a redefinition of principles’ relationship with “written” law, be it in the form of a civil code or a constitutional instrument. From this inquiry re-emerge “unwritten” principles not deriving from codified or legislated law although they have been used to develop the law. Translated into the constitutional domain, these unwritten principles bear no logical connection with the terms of the constitution. Their main functions cover the entire spectrum from serving as interpretive aids to making law by filling gaps. The theoretical framework fits with an ongoing four-century-old narrative of the evolution of constitutional principles and judicial review across most common law-based systems. Constitutional principles are another area where Anglo-American law and legal discourse is less exceptional and more universal than what many assume. Throughout modern Western history, legal battles have been fought and ensuing developments have been made on the grounds of principles. Our law and jurisprudence remains based on them.

Reinert on Qualified Immunity

Alex Reinert (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Qualified Immunity's Flawed Foundation (California Law Review, Forthcoming) on SSRN.  Here is the abstract:

Qualified immunity has faced trenchant criticism for decades, but recent events have renewed focus on this powerful defense to liability for constitutional violations. This Article takes aim at the roots of the doctrine – fundamental errors that have never before been excavated. First, this Article demonstrates that the Supreme Court’s qualified immunity jurisprudence is premised on a flawed application of a dubious canon of statutory construction – namely that statutes in “derogation” of the common law should be strictly construed. Applying the Derogation Canon, the Court has held that 42 U.S.C. § 1983’s silence regarding immunity should be taken as an implicit adoption of common-law immunity defenses. As this Article shows, the Derogation Canon has no appropriate role to play in interpreting Section 1983. Its viability has been continuously called into question for more than a century. Even when it has been applied, the canon has been used as a reason to disfavor displacement of common-law claims, not common-law defenses. And it is always operating in tension with a contrary canon that remedial statutes, like Section 1983, should be given a broad reading.

This Article also identifies a second significant failing in the Court’s qualified immunity law. For even if the Derogation Canon were valid, the Reconstruction Congress that passed Section 1983 meant to explicitly displace common-law protections. Most critically, scholars and courts have overlooked the originally-enacted version of Section 1983, which contained a provision that specifically disapproved of any state law limitations on the new cause of action. For unknown reasons, that provision was not included by the Reviser of the Federal Statutes in the first compilation of federal law in 1874. This Article is the first to unearth the lost text of Section 1983 and demonstrate its implications.

Taken together, these twin insights show that the problems with the Court’s immunity doctrine run deeper than prior scholarly criticism has imagined. Much of current qualified immunity scholarship has addressed, in compelling fashion, how the Court has taken immunity doctrine too far from its common-law origins. But this Article shows that qualified immunity is flawed from the ground up. In other words, the problem with current qualified immunity doctrine is not just that it departs from the common law immunity that existed in 1871. The problem is that the Court has failed to grapple with the strong arguments that no immunity doctrine at all should apply in Section 1983 actions.

Diamantis, Cochran, & Dam on Regulation of AI

Mihailis Diamantis (University of Iowa - College of Law), Rebekah Cochran, Miranda Dam (University of Iowa, College of Law) have posted AI and the Law: Can Law Help Us Maximize Paperclips While Minimizing Deaths? on SSRN.  Here is the abstract:

This Chapter provides a short undergraduate introduction to ethical and philosophical complexities surrounding the law’s attempt (or lack thereof) to regulate artificial intelligence.

Swedish philosopher Nick Bostrom proposed a simple thought experiment known as the paperclip maximizer. What would happen if a machine (the “PCM”) were given the sole goal of manufacturing as many paperclips as possible? It might learn how to transact money, source metal, or even build factories. The machine might also eventually realize that humans pose a threat. Humans could turn the machine off at any point, and then it wouldn’t be able to make as many paperclips as possible! Taken to the logical extreme, the result is quite grim—the PCM might even start using humans as raw material for paperclips.

The predicament only deepens once we realize that Bostrom’s thought experiment overlooks a key player. The PCM and algorithms like it do not arise spontaneously (at least, not yet). Most likely, some corporation—say, Office Corp.—designed, owns, and runs the PCM. The more paperclips the PCM manufactures, the more profits Office Corp. makes, even if that entails converting some humans (but preferably not customers!) into raw materials. Less dramatically, Office Corp. may also make more money when PCM engages in other socially sub-optimal behaviors that would otherwise violate the law, like money laundering, sourcing materials from endangered habitats, manipulating the market for steel, or colluding with competitors over prices. The consequences are predictable and dire. If Office Corp. isn’t held responsible, it will not stop with the PCM. Office Corp. would have every incentive to develop more maximizers—say for papers, pencils, and protractors .

This chapter issues a challenge for tech ethicists, social ontologists, and legal theorists: How can the law help mitigate algorithmic harms without overly compromising the potential that AI has to make us all healthier, wealthier, and wiser? The answer is far from straightforward.

Desan on the Nature of Money

Christine A. Desan (Harvard Law School) has posted The Key to Value (2.0): The Debate Over Commensurability in Neoclassical and Credit Approaches to Money (Feichtner, I. and Gordon, G., eds., Constitutions of Value: Law, Governance and Political Ecology (Routledge, Forthcoming)) on SSRN.  Here is the abstract:

Neoclassical and credit approaches to money represent dramatically different theories of value. Within the neoclassical tradition, the market exists as a conceptual prior, a place where independent agents compare real goods, exchanging them afterwards to accord with their preferences. That theory reflects a particular approach to value, identifying it as a pre-existing quality ranked by individual choice. To operate, the theory relies on an approach to money that is oddly self-contradictory: money as a unit of account antedates exchange while money as a medium follows from exchange.

By contrast, credit approaches suggest that markets only emerge once commensurability in value exists. To create a unit of account that enables comparison, groups restructure their internal relationships to create money. Members then use money for exchange, producing what is understood as monetary value.

That argument upends the neoclassical approach to value. First, if money creates commensurability, our preferences as expressed in the market depend on money rather than preceding it. Second, if money creates commensurability, then the nature of money – and of money as credit -- matters enormously. Credit works by representing and advancing a unit of value to some people relative to others. In that case, as a condition inherent to its construction, money carries value differentially to participants, those who are graced with credit and those who are not. According to the way money is created, definitionally we might say, individuals will not be equally situated in the process that generates prices. Decisions about value are made in the wake of that fact. The market, however emancipatory, thus trades on disparity in a group, not the autonomy of individuals, as a process.

Highly recommended.

Sarch on Divergence Between Moral and Criminal Blame

Alex F. Sarch (University of Surrey School of Law) has posted Legitimate Divergence between Moral and Criminal Blame (Routledge Handbook of Responsibility (Max Kiener, ed.), Forthcoming) on SSRN.  Here is the abstract:

Legal moralists think the substantive rules of the criminal law should mirror morality, while acknowledging that they inevitably will not do so perfectly. Thus, Doug Husak suggests that “deviations [from the moral ideal] should be regarded as occasions for regret, as invitations to try to do better.” This is especially plausible where the divergences are isolated practical compromises due to efficiency or resource constraints. But is it always a matter of deep regret when the content of criminal law diverges from morality? Might this not also be justifiable based on our principled commitments? If so, perhaps divergence from morality isn’t always an invitation to do better. This chapter argues that there are principled reasons, not always consequentialist in nature, for the criminal law to come apart from morality.

Section I sketches an analytical framework that shows different ways to evaluate divergences between criminal law and morality within the legal moralist view. Section II sketches some core cases of plausibly legitimate divergence. Section III formulates several mid-level principles, not all of which are directly consequentialist in flavor, that can help justify divergences of this kind. Section IV applies the above framework and principles to the examples in Section II to reach provisional conclusions. Overall, the chapter aims not just to provide better tools for assessing overbroad criminal prohibitions, but more fundamentally seeks to dispel the idea that the criminal law’s divergences from morality always sacrifice our principles to the messy necessities of practice. Instead, criminal law’s divergence from morality can itself be a matter of principle.

Highly recommended.

Kammerhofer on Res Judicata & ICJ Judgments

Jörg Kammerhofer (University of Freiburg - Faculty of Law) has posted Beyond the Res Iudicata Doctrine: The Nomomechanics of ICJ Interpretation Judgments on SSRN.  Here is the abstract:

Res iudicata is one of the least-questioned core beliefs of international lawyers. The ICJ’s judgments are final and without appeal; to doubt that is to doubt the clear words of the ICJ Statute and to call into question a foundation of the entire international legal order. But the doctrine is not as absolute as the orthodoxy makes it out to be, neither as a matter of positive international law nor as a statement of legal theory. Even final judgements are not always final and appeals procedures and judicial review are not special in that they engage res iudicata whereas regular legal change does not. Rather, both do from a legal-theoretical vantage-point: the nomomechanics are identical. This article makes the point by looking at ICJ interpretation judgments under Article 60. In contrast to the mainstream, it argues that, far from leaving the original judgment’s res iudicata intact, interpretation judgments actually impinge or even disrupt it. After introducing mainstream res iudicata doctrine, the article discusses ICJ interpretation judgments, the 2013 judgment in Preah Vihear (the Temple Case) serving as convenient example. It then introduces Adolf Julius Merkl’s Error Calculus theory as the theoretical framework best suited to analysing the nomomechanics and critiques the Preah Vihear judgment as change disguised as a hermeneutic exercise. It then turns the critical enterprise on its head to look at the Error Calculus theory itself to lay the ground-work for an even more audacious argument that the Error Calculus does not depend on errors in the narrow sense of the word. Even cases of an Error Calculus in the narrowest sense are neither an ex post ratification of an imperfect norm nor a confirmation of invalidity, but the derogation of a perfectly valid norm.

Eldar & Garber on Opportunity Zones

Ofer Eldar (Duke University School of Law; Duke University - Fuqua School of Business; Duke Innovation & Entrepreneurship Initiative) & Chelsea Garber (Duke University - Department of Economics) have posted Opportunity Zones: A Program in Search of a Purpose (Boston University Law Review, Vol. 102, No. 4, 2022) on SSRN.  Here is the abstract:

In 2017, Congress created the Opportunity Zone (“OZ”) program to stimulate economic growth in low-income communities. The program was characterized by its unprecedented scale relative to previous place-based development efforts and was described as “perhaps the most ambitious economic development tool to come out of Congress in a generation.” However, the program was quickly criticized on numerous grounds, and its design flaws are so severe that several legislators have called for its reform or repeal. This Essay argues that the root of the OZ program’s problems is a strong mismatch between its stated purpose and its actual terms. We discuss how the OZ program works and why the actual terms of its enabling legislation encourage investors to focus on real estate projects. We show that, contrary to common perceptions of the OZ program, its intended purpose was to promote entrepreneurship and startup activity. We conduct an empirical analysis to show that low-income tracts did not experience any increase in startup investment following OZ designation. Overall, our results suggest that OZ designation has generally failed to achieve its stated goal and that the serious concerns about its manipulability to favor specific investors are warranted. Finally, we consider various proposals to make the OZ program more consistent with its original goal and briefly note how the legislative process behind the OZ statute may have contributed to its shortcomings.

Strauss on Climate Change & Shareholder Suits

Emily Strauss (Duke University School of Law) has posted Climate Change and Shareholder Lawsuits on SSRN.  Here is the abstract:

As climate change has become one of the most pressing and debated issues of our age, activists have become frustrated with the waffling of governments and grown progressively vocal in their demands that the largest companies take action to slow global warming. These calls have resulted in a cascade of ESG reports, corporate shakeups at petro-giants, and recently, the SEC’s promulgation of draft rules mandating climate risk disclosures for public companies.

But the controversy surrounding these rules has largely overlooked a critical question: Will shareholder litigation effectively enforce the accuracy of firms’ climate-related disclosures – voluntary or mandatory? To answer this question, I examine the climate-related lawsuits to date that shareholders have brought against their firms, creating a typology illustrating where such lawsuits are likely to arise. I find that much climate-related shareholder litigation has so far been follow-on litigation, piggy-backing off information produced either by the government, or by market participants such as short-sellers who are willing to do substantial digging, usually because they have an interest in the firm’s relatively short-term financial prospects.

While some inaccuracies in climate risk disclosures may be adequately – or even excessively – litigated under this regime, others that do not directly affect the firm’s bottom line might slip through the cracks. Key among these may be greenhouse gas disclosures, which so far have failed to generate any shareholder lawsuits. Moreover, the plaintiffs who seem best suited to bring these lawsuits – the climate activist investors who have lobbied so hard for firms to act on climate – have been virtually absent in climate-related shareholder litigation to date. Accordingly, I argue that under the current regime for shareholder litigation, the accuracy of some climate disclosures may not be enforced in a socially optimal way.

O'Flaherty, Sethi, & Williams on Profiling

Brendan O'Flaherty (Columbia University, Graduate School of Arts and Sciences, Department of Economics), Rajiv Sethi (Barnard College, Columbia University; Santa Fe Institute) & Morgan Williams Jr (Barnard College, Columbia University, Department of Economics)have posted Profiling in Criminal Justice on SSRN.  Here is the abstract:

We provide a selective survey of the literature on profiling by criminal justice agents, including changes in the nature of discrimination resulting from the proliferation of algorithms for prediction. We argue for a taxonomy of harms that differs somewhat from the conventional approach taken by economists.

Martinez & Tobia on Law Professor Opinions

Eric Martínez (Massachusetts Institute of Technology (MIT)) & Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy) have posted What Do Law Professors Believe about Law and the Legal Academy? An Empirical Inquiry on SSRN.  Here is the abstract:

Legal theorists seek to persuade other jurists of certain theories: Textualism or purposivism; formalism or realism; natural law theory or positivism; prison reform or abolition; universal or particular human rights? Despite voluminous literature about these debates, tremendous uncertainty remains about which views experts endorse. This Article presents the first-ever empirical study of American law professors about legal theory questions. A novel dataset of over six hundred law professors reveals expert consensus and dissensus about dozens of longstanding legal theory debates.

Law professors also debate questions about the nature of the legal academy. Descriptively, which subjects (e.g. constitutional law) and methods (e.g. law & economics) are most central within the legal academy today? And prescriptively, should today’s legal academy prioritize additional areas (e.g. legislation) or methods (e.g. critical race theory)? There is great interest in these questions but no empirical dataset of experts’ views; this results in uncertainty about which views experts endorse. This Article’s empirical study also clarifies these questions, documenting law professors’ evaluation of over one-hundred areas of law.

The legal theory and legal academy findings support implications for legal scholarship, education, and practice. Clearly, debates about law and the legal academy’s evolution should not be settled by a survey. Nevertheless, insofar as law professors are experts about these issues, it is instructive to discover and carefully examine what views those experts hold, so as to help determine which views are most likely to be true and how the legal academy ought to develop.

Illuminating.

Freilich on Patent Salience

Janet Freilich (Fordham University School of Law) has posted Patents' New Salience (Virginia Law Review, Forthcoming) on SSRN.  Here is the abstract:

The vast majority of patents do not matter. They are never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has tremendous impact on patent policy. In particular, while there are many aspects of patent law that are potentially troubling—including grant of unmerited patents, high transaction costs in obtaining necessary patent licenses, and patents’ potential to block innovation and hinder economic growth—these problems may be insignificant in practice because patents are underenforced and routinely infringed without consequence.

This Article argues that technological developments are greatly increasing the salience of patents by making patents easier and cheaper to find and enforce. These developments—including private platforms’ adjudication systems and AI-driven patent analytics—profoundly impact how the patent system functions and upend the system’s present dependence on underenforcement and ignorance. Where most patents could previously be safely disregarded, formerly forgotten patents now matter.

This Article makes four contributions to the literature. First, by exploring the technology that is rendering patents newly salient and explaining how this alters basic assumptions underlying the patent system. Second, this Article demonstrates that although new technology is increasing the number of patents that can be reviewed and enforced, this transformation sometimes decreases the depth of patent analysis. Because it is difficult to draw conclusions about patent scope or validity without in-depth analysis, this omission means that technological review of patents may give patents unmerited influence.

Third, this Article shows a sharp divergence between public policy goals and private use of patents. For several decades, the courts and Congress have been reforming patent policy to decrease the impact of patents to alleviate concerns that patent owners hinder innovation by others. In clear contrast to this goal, this Article demonstrates an increase in patent salience that is due exclusively to the use of private platforms and technologies. Further, the use of private platforms to find, analyze, and enforce patents creates the risk that choices made by companies and software developers will displace substantive patent law. Finally, this Article suggests policy reform, including ways to improve technology and patents and adjusted approaches to patent doctrine and theory.

Gugliuzza & Koivula on the Federal Circuit & the Patent System

Paul R. Gugliuzza (Temple University - James E. Beasley School of Law) & Pyry Koivula (Temple University - James E. Beasley School of Law) have posted Our New Patent System? on SSRN.  Here is the abstract:

Since Congress created the Federal Circuit forty years ago, the court has occasionally been praised for providing uniformity and expertise in patent law. But, more often, it has been criticized: for engaging in overly aggressive review of district courts and the Patent Office, for disregarding Supreme Court precedent, and for shaping patent law in ways that discourage innovation, rather than promote it. The Solicitor General, who represents the Executive Branch in Supreme Court litigation, has been so successful at getting the Court to overturn Federal Circuit patent precedent that the Circuit was, not long ago, said to “stand in the shadow of the Solicitor General.”

But those narratives may no longer be true. This article, through a close study of patent cases decided by and cert petitions presented to the Supreme Court, suggests that the era of a renegade Federal Circuit constantly being reined in by the Court and the Solicitor General may be over. In several recent cases, the Supreme Court has rejected arguments by the SG to undo Federal Circuit patent precedent—something that, until 2011, had happened only once. And, though the SG still wields significant influence over which patent cases the Court hears on the merits, that, too, may be changing: at the conclusion of its most recent Term, the Supreme Court—for the first time ever—rejected the SG’s suggestion to grant certiorari in a patent case.

These developments have at least three implications. First, for patent doctrine, they suggest we are entering an era in which the Federal Circuit will have the last word on practically every issue—a potentially troubling dynamic because the court is uniquely vulnerable to interest-group capture and there are no other peer-level appellate courts to disrupt bad precedent. Second, for patent institutions, the SG’s litigation failures and the Supreme Court’s newfound apathy toward patent cases means that power is shifting toward not only the Federal Circuit but also the Patent Office—an awkward site of authority given the agency’s lack of power to promulgate substantive rules of patent law. Finally, the Supreme Court’s skepticism of the SG in patent cases is part of a broader story about separation of powers—a newly emboldened Supreme Court that is dismissive of Executive Branch institutions and unapologetic in its willingness to chart its own path.

Yet the new institutional arrangement this article identifies also presents opportunities. A Supreme Court that is disinterested in patent cases could spur the Federal Circuit to fix problematic doctrines on its own, rather than waiting for—or begging for—the Court to intervene, as the Circuit commonly does now. The modern Patent Office, despite formal limits on its power, is, as a practical matter, well-situated to tune patent law to various policy objectives. Finally, the Supreme Court’s hands-off approach to patent law and rebukes of the Executive Branch underscore the need to reform the Court as an institution.

Legal Theory Lexicon: Narrative and Normativity

Introduction

Many law students learn about "narrative" at some point in law school.  Of course, narratives (or more simply "stories") are all over the law.  Individual cases include narratives in their recitation of the facts and procedural history.  Sequences of cases can be studied as narratives, with events both internal and external to the law woven into a story about how and why the law changed.  Some legal narratives stress the internal development of the law: the law works itself pure.  Other legal narratives lay emphasis on forces external to the law: a Marxist narrative might explain legal change as a response to the interests of the capitalist class.  Narratives like these seek to explain legal change.  We might call them "causal narratives."

But in addition to the role of narrative in causal explanation, stories about the law can play a normative role.  By telling a story that explains how the law came to be the way it is, we may also be making implicit or explicit normative claims about the goodness or badness of the content of the law (or of a theory about law).  This entry in the Legal Theory Lexicon is about the normative role of narrative in law and legal theory.  As always, the Lexicon provides a short introduction aimed at law students with an interest in legal theory.

How Narratives Go Normative

Not all historical narratives are strongly normative--although all legal narratives may have some normative elements.  We can distinguish between narratives which primarily aim to give causal explanations and those narratives which primarily aim at influencing normative evaluation of the actions and events recounted in the narrative.  Thus, we might distinguish between "causally implicated narratives" and "normative charged narratives."  Almost all narratives are causally implicated; stories explain actions by invoking folk psychological explanations: "Ben voted for the legislation in order to get reelected."  Ben's action, voting for the bill, is explained by a motive, to get reelected.  Stories implicitly explain actions and events--even when they do not make explicit causal claims.

How do narratives acquire a "normative charge"?  The normative claims of narratives are frequently implicit and they rarely come in the form of fully developed normative arguments. The deep normative assumptions of narrative frequently come to the surface in the form of value-laden descriptions. Actions are explained by motives that are characterized as selfish or altruistic, progressive or conservative, foolish or wise. Events are characterized as disasters or triumphs. At one level, the normativity of narrative is inescapable.  Many of the stories that interest humans are “morality plays,” with heroes and villains, happy endings and tragic finales, poetic justice and cruel twists of fate. No one should expect narrators to engage in “normative abstinence.”

Narrative and Identity

Narratives can acquire normative significance in another way, by telling a story about that ties the identity of some group to some trajectory of historical development.  The entanglement of narrative with identity is common in constitutional history.  Consider the following example, which presents a very simplified and somewhat altered version of a narrative account of the New Deal associated with Bruce Ackerman:

Suppose that the transformation of constitutional law during the New Deal was an act by "We the People" that rejected formalist doctrines that hobbled the development of a national administrative state and empowered the President to make transformative appointments to the Supreme Court.  These appointments resulted in New Deal constitutional moment that authorized Congress and the President to solve the pressing problems of the Great Depression, then our current identity as Americans (as part of "We the People") is tied to support for these constitutional changes.  Because the New Deal constitutional moment is part of our identity as a people, supporting this historical event is part of "being American" or being one of "We the People"--and conversely, rejection of the New Deal constitutional moment is rejection of one's connection to American history and hence of one's status as "one of us," a member of "We the People."

Of course, this narrative is contestable--another story could be told about the New Deal constitutional moment that portrayed it as a usurpation that lead to an out-of-control bureaucracy that has hobbled the economy and endangered democracy.  The point is that this kind of constitutional narrative is normatively charged--even if it does not explicitly make normative claims or employ the conventional resources of normative legal theory.

Narratives and the Normative Evaluation of Beliefs

Some narratives are about beliefs.  These narratives tell a story about how we came to have our beliefs about some aspect of law.  Some of these narratives "debunk," aiming to delegitimate a belief--by showing that the origins of the belief are such that the belief is unreliable or tainted.  Other narratives "vindicate," aim to establish the process by which the belief was formed is reliable and hence that the belief is likely true.  Similarly, the origins of a belief might be associated with right actions or good people, suggesting that the belief itself is good.

The use of debunking and vindicating narratives is especially relevant to legal theory when a story is told about the development of a legal theory itself.  For example, a vindicating narrative about American legal realism might begin by identifying legal formalism with the interests of the wealthy and powerful and rationalization of injustice for the poor and powerless.  Legal realism, the narrative might continue, was championed by progressives, who developed the new legal theory in order to put law in the service of the common good and the struggle against injustice and oppression.  Formalist beliefs, the narrative suggests, are "bad," whereas realists beliefs are "good."  In this toy example, the narrative vindicates legal realism and debunks legal formalism.

The Genetic Fallacy

Although normative narratives may be rhetorically powerful, some critics of the normative use of narrative are worried that their persuasive force may rely on rhetoric rather than reason.  One version of this worry is expressed by invocation of the "genetic fallacy"--one of the informal fallacies identified in standard accounts of informal logic.  The key idea is that the origins of an idea or belief may not be relevant to its truth or falsity.  Sometimes this is clear.  From the fact that Hitler was a vegetarian, it does not follow that vegetarianism is morally abhorrent.  From the fact that Franklyn Delano Roosevelt, Jr., a great President, approved the internment of Japanese Americans, it does not follow that their detention was morally permissible.

Likewise, it is not clear that narratives that a link between some legal phenomenon and identity provides good reasons for supporting the legal phenomenon.  From the fact that a narrative associates some historical development with a particular identity (e.g., being an American), it does not follow that the development is good, right, or justice.  The fact that a given legal practice is part of a group's identity is consistent with that practice being thoroughly bad: if racism is part of American identity, it does not follow that racist laws are good.  Although identity claims may be persuasive, it is not clear that they rest on valid arguments.

Although some normative narratives about beliefs or theories commit the genetic fallacy, this is not always the case.  In other cases, the origins of a belief truly are debunking--because it can be shown that the causal mechanism that induces the belief is such that it is inconsistent with the truth of the belief.  Or the debunking explanation might show that whether or not the belief is true, the causal mechanisms that induced the belief did not rely on good evidence and hence that the belief is not well grounded--even if it might turn out to be true upon further investigation.  In either event, the debunking narrative provides good reason to question the belief.  What is sometimes called "critique of ideology" works in this way.  If it could be shown that the ideal of the rule of law is an ideological construct that was developed in order to further the interests of the capitalist class, that would be a good reason to question the belief that the rule of law is normatively valuable.

Conclusion

 Normative narratives are common in contemporary legal theory, but the theoretical foundations for the claims that narratives have normative significance are seldom made explicit.  This aim of this entry in the Legal Theory Lexicon was to provide an introduction to these issues and to give readers a basis for reflection.

Related Lexicon Entries

• Legal Theory Lexicon 003: Hypotheticals
• Legal Theory Lexicon 014: Fact and Value
• Legal Theory Lexicon 020: Causation
• Legal Theory Lexicon 040: Functional Explanation in Legal Theory
• Legal Theory Lexicon 046: Legitimacy

Bibliography

• Raymond Geuss, The Idea of a Critical Theory: Habermas and the Frankfurt School (1981).
• Lawrence B. Solum, Narrative, Normativity, and Causation, 2010 Mich. St. L. Rev. 597, 602 (2010).
• Jacob Van Vleet, Informal Logical Fallacies: A Brief Guide (2010).

(First posted on August 7, 2022.)

Legal Theory Bookworm: Bounded Rationality by Dhami & Sunstein

The Legal Theory Bookworm recommends Bounded Rationality: Heuristics, Judgment, and Public Policy by Sanjit Dhami & Cass R. Sunstein.  Here is a description:

Bounded rationality recognizes that human behavior departs from the perfect rationality assumed by neoclassical economics. In this book, Sanjit Dhami and Cass R. Sunstein explore the foundations of bounded rationality and consider the implications of this approach for public policy and law, in particular for questions about choice, welfare, and freedom. The authors, both recognized as experts in the field, cover a wide range of empirical findings and assess theoretical work that attempts to explain those findings. Their presentation is comprehensive, coherent, and lucid, with even the most technical material explained accessibly. They not only offer observations and commentary on the existing literature but also explore new insights, ideas, and connections.
 
After examining the traditional neoclassical framework, which they refer to as the Bayesian rationality approach (BRA), and its empirical issues, Dhami and Sunstein offer a detailed account of bounded rationality and how it can be incorporated into the social and behavioral sciences. They also discuss a set of models of heuristics-based choice and the philosophical foundations of behavioral economics. Finally, they examine libertarian paternalism and its strategies of “nudges.” 

And from the reviews:

“Bounded Rationality is simply the best book on this topic. Encompassing, empirically grounded, analytically sophisticated, and intuitively compelling.”
—Ernst Fehr, Professor of Economics, University of Zurich  

“This is a wonderful introduction to both classic and more recent behavioral economics. The mixture of theory and empirical evidence is very useful and healthy. The applications to public policy are particularly interesting. I highly recommend it to all entrants to the field.”
—Xavier Gabaix, Pershing Square Professor of Economics and Finance, Harvard University

Download of the Week: "Text is Not Law" by Encarnacion

The Download of the Week is Text is Not Law by Erik Encarnacion.  Here is the abstract:

The Supreme Court’s landmark decision in Bostock v. Clayton County provides further fodder for debates about textualism, given the dueling opinions of Justices Gorsuch, Alito, and Kavanaugh, each of which purports to apply textualist reasoning correctly. But in a little-remarked-upon passage, Justice Gorsuch’s opinion casually conflates text and law, asserting, “[o]nly the words on the page constitute the law adopted by Congress and approved by the President.” In equating statutory text with law, Justice Gorsuch isn’t alone, following in the footsteps of other prominent textualists, including the late Justice Antonin Scalia and Judge Frank Easterbrook.

But text is not law—and cannot be. Conflating statutory text and law makes a category mistake. And not a harmless one. Nor is the conflation easily dismissed as an example of incautious rhetoric. The conflation fosters confusion about textualism and further muddles public understanding of appellate adjudication by propping up the myth that appellate judges should—and can—avoid making law. Conflating text and law also facilitates a type of literalist interpretation--indeed, opportunistic literalism--that defenders of textualism purport to reject.

Despite these problems, the casual conflation of text and law is likely here to stay, at least in part because it provides rhetorical advantages to textualist judges by allowing them to sidestep thorny controversies about linguistic meaning and the nature of law. This advantage suggests that textualist judges will continue to claim, falsely, that text is law.

Important and highly recommended.

Sax on Vaccine Hesitancy

Joanna Sax (California Western School of Law) has posted COVID-19 Vaccine Hesitancy and (Mis)perception of Risk (American Journal of Law & Medicine 2022, vol. 48, pages 54-90) on SSRN.  Here is the abstract:

This Article tackles the critical problem of COVID-19 vaccine hesitancy and provides a normative framework for legal policies to address such hesitancy in the ongoing pandemic. The foundation of this Article rests in decision-making theories that allow policymakers to understand individual misperception of risk as compared to evidence-based assessment of risk. Vaccine-hesitant individuals assign a high risk to the COVID-19 vaccine and a low risk to the disease—a perception that is disconnected from the science. The backbone of this Article is the timeline of the COVID-19 pandemic and the underlying science of the disease and vaccines. The timeline provides a factual background to demonstrate how vaccine hesitancy to the COVID-19 vaccine emerged. The instant pandemic also demonstrates changes in how individuals see themselves in society, receive information, and are persuaded by economic forces. This Article combines the individual’s decision-making process with modern day variables to suggest interventions that can undo anti-vaccine damage. While the novelty of the normative framework provided herein is instructive for current COVID-19 vaccine hesitancy issues, this framework can be applied to other areas in which individual’s perceptions of risk are disconnected from evidence-based assessment of risk.

Stark, Bernhardt, Mills, & Robison on Re-Indigenizing Yellowstone

Kekek Stark (Alexander Blewitt III School of Law), Autumn Bernhardt (Colorado State University Honors Program), Monte Mills (University of Montana - Alexander Blewett III School of Law), & Jason Robison (University of Wyoming - College of Law) have posted Re-Indigenizing Yellowstone (Wyoming Law Review, Vol. 22, No. 2, 2022) on SSRN.  Here is the abstract:

Prepared for the 2022 sesquicentennial of Yellowstone National Park, this Article focuses on the historical and contemporary relationships between the National Park Service (and other federal entities) and the 27 federally recognized tribes with traditional connections to Yellowstone. The Article surveys Native connections to Yellowstone, tracks the evolution of federal-tribal relations at Yellowstone from 1872-2022, and presents a suite of options for future federal-tribal co-management of Yellowstone moving forward from the sesquicentennial.

Hafetzepartment of Homeland Secutiry v. Thuraissigiam

Jonathan Hafetz (Seton Hall Law School) has posted The Suspension Clause after Department of Homeland Security v. Thuraissigiam (St. John's Law Review , Vol. 95, No. 2, 2022) on SSRN.  Here is the abstract:

This article examines the Supreme Court’s 2020 decision in Department of Homeland [Security] v. Thuraissigiam. In Thuraissigiam, the Court upheld Congress’s elimination of habeas corpus review over a challenge by an asylum seeker from Sri Lanka, who was seized by federal agents just inside the U.S.-Mexico border. The Court concluded that the Constitution’s Suspension Clause did not apply to the petitioner because the right he was seeking—to remain in the United States under the nation’s immigration laws—fell outside the historical core of the Suspension Clause, which was limited to challenging detention as such.

The article argues that the Supreme Court erred in several key respects, including by misreading the historical record and misconstruing its own precedents. The article also describes how Thuraissigiam, if read broadly, could limit future habeas review not only over the removal of immigrants seized in the United States, but also over other government restraints on liberty that do not seek continued detention as their purpose, from the extradition of criminal suspects to the transfer of military prisoners. While it injects new uncertainty into formerly settled areas of habeas jurisprudence, Thuraissigiam ultimately decided very little. The article explores several ways that—notwithstanding Thuraissigiam—courts can and should guarantee meaningful judicial review of detention in noncitizen cases and to ensure the Suspension Clause remains a meaningful limit on a variety of custodial restraints. Above all, the article explains why courts should view the Suspension Clause as protecting evolving understandings of habeas corpus rather than one frozen in time at the nation’s Founding to ensure that it remains capable of reaching a broad range of liberty deprivations.

Shanor & Light on Greenwashing and the First Amendment

Amanda Shanor (University of Pennsylvania - The Wharton School) & Sarah E. Light (University of Pennsylvania, The Wharton School - Legal Studies & Business Ethics Department) have posted Greenwashing & the First Amendment (Columbia Law Review, Forthcoming 2022) on SSRN.  Here is the abstract:

Recent explosive growth in environmental and climate-related marketing claims by business firms has raised concerns about their truthfulness. Critics argue (or at least question whether) such claims constitute greenwashing, which refers to a set of deceptive marketing practices in which an entity publicly misrepresents or exaggerates the positive environmental impact of a product, service, or the entity itself. The extent to which greenwashing can be regulated consistent with the First Amendment raises thorny doctrinal questions that have bedeviled both courts and scholars, the answers to which have implications far beyond environmental marketing claims. This Essay is the first to offer both doctrinal clarity and a normative approach to understanding how the First Amendment should tackle issues at the nexus of science, politics, and markets. It contends that the analysis should be driven by the normative values underlying the protection of speech under the First Amendment in the disparate doctrines that govern these three arenas. When listeners are epistemically dependent for information on commercial speakers, regulation of such speech for truthfulness is consistent with the First Amendment and subject to the laxer review of the commercial speech doctrine. This is because citizens must have accurate information not only to knowledgably participate at the ballot box but also to have meaningful freedom in economic life itself.

Highly recommended.

Meyer & Sitarman on National Security and the Major Questions Doctrine

Timothy Meyer (Duke University School of Law) & Ganesh Sitaraman (Vanderbilt Law School) have posted The National Security Consequences of the Major Questions Doctrine on SSRN.  Here is the abstract:

The rise of the major questions doctrine—the rule that says that in order to delegate to the executive branch the power to resolve a “question of ‘deep economic and political significance’ that is central to [a] statutory scheme,” Congress must do so expressly—threatens to unmake the modern executive’s authority over foreign affairs, especially in matters of national security and interstate conflict. In the 21st century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms.

In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare are generally based on extremely broad delegations of authority from Congress. The major questions doctrine (MQD) threatens the ability to fight modern conflicts for two reasons. First, classic national security-related conflicts—wars of territorial conquest, terrorism, nuclear proliferation—increasingly are met with economic measures. But the statutes that authorize economic warfare actions are incredibly broad and recent administrations have interpreted these statutes in ways that risk running afoul of an expansive and free-form MQD. Second, “foreign affairs exceptionalism,” in which the Court decides not to apply the MQD to statutes involving foreign affairs, is not likely to work well as a response because what is “foreign” and “domestic” cannot be easily distinguished and attempts to do so will have perverse consequences.

The most likely consequence is that if applied to economic delegations that touch foreign commerce, the MQD will turn judges—and particularly lower court judges—into some of the key policymakers in shaping the future of American foreign policy and national security. This prospect should be troubling, as judges are ill-suited to be foreign policymakers.

Highly recommended.

Solove & Hartzog on Privacy and Data Security

Daniel J. Solove (George Washington University Law School) & Woodrow Hartzog (Boston University School of Law; Stanford Law School Center for Internet and Society)  posted Unifying Privacy and Data Security (Chapter 7 of BREACHED! WHY DATA SECURITY LAW FAILS AND HOW TO IMPROVE IT (Oxford University Press 2022)) on SSRN.  Here is the abstract:

This book chapter discusses the relationship between privacy and data security. Privacy is a key and underappreciated aspect of data security. Right now, there is a schism between privacy and security in companies. Privacy functions are commonly addressed by the compliance and legal departments, while security is handled by the information technology department. The two areas are commonly split apart and rarely speak to each other.

The chapter argues that we should bridge data security and privacy and make them go hand-in-hand in both law and policy. Strong privacy rules help create accountability for the collection, use, and dissemination of personal information and can reduce vulnerabilities and risk by minimizing the use and retention of personal information. Good privacy strengthens security. The chapter specifically focuses on the importance of data minimization and data mapping as privacy practices that have tremendous benefits for data security.

This piece is Chapter 7 of Daniel J. Solove and Woodrow Hartzog's book, BREACHED! WHY DATA SECURITY LAW FAILS AND HOW TO IMPROVE IT (Oxford University Press 2022). In the book, Professors Solove and Hartzog explore the shortcomings of data security law. They argue that the law fails because, ironically, it focuses too much on the breach itself.

Recommended.

Usulor on International Law and Politics and Conflict Resolution

Chukwuebuka Usulor (University of Nigeria, Faculty of Law) has posted International Conflicts: Striking a Balance between International Law and International Politics on SSRN.  Here is the abstract:

The outbreaks and persistence of inter-state or international conflicts call into question the efficacy of international law and international politics as instruments for the maintenance of peace, order and stability in the relations between countries.

This paper argues that the resolution of international conflicts and the realisation of lasting peace can only be accomplished when a balance between international law and international politics is secured. It discusses the relationship between the two systems and the practical ways to guarantee an equilibrium between them.

Baluarte on Refugees & Serious Nonpolitical Crimes

David Baluarte (Washington and Lee University School of Law) has posted Refugees Under Duress: International Law and the Serious Nonpolitical Crime Bar (9 Belmont Law Review 2 (2022)) on SSRN.  Here is the abstract:

Kevin Euceda was forcibly recruited by the MS-13 gang when he was just thirteen years old. Kevin was destitute after being abandoned by his parents in San Pedro Sula, Honduras, and the gang commandeered his house as a base of operations and compelled his participation in gang activities. Over the years, Kevin was forced into minor roles in the gang’s criminal enterprise, and on a couple of occasions was obligated to engage in violence. These violent acts haunted Kevin and left him severely traumatized. Kevin endured life under the thumb of the violent gang until he was seventeen, when he seized a rare chance to escape. He fled Honduras, traversing dangerous migratory channels through Guatemala and Mexico to arrive in the United States, where he believed he could find protection. His trauma was evident when he arrived in the United States, leading immigration officers to medicate him, require counseling, and place him on suicide watch. Unbeknownst to Kevin at that time, an arduous legal battle awaited him that he would be forced to wage from detention centers throughout the United States because of his perceived dangerousness. While his legal case was strong in many respects, he ended up being unable to endure the cost of the fight, jailed like a criminal in immigration detention for the three years that his lawyers worked to secure protection in the United States. Over this period, a judge’s decision to award him asylum was reversed, and her orders to release Kevin from detention were twice blocked by the Department of Homeland Security (“DHS”). Kevin accepted deportation to Honduras as his only escape from detention while his case continued to languish in a seemingly endless process. He met an untimely death in an accident just months later.

Simon-Kerr on Credibility

Julia Ann Simon-Kerr (University of Connecticut - School of Law) has posted Law's Credibility Problem on SSRN.  Here is the abstract:

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they frequently condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is, astonishingly enough, no stable definition of credibility in the law. Courts and agencies are all over the map—diverging at the most basic definitional level—in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress, in the INA, enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” This presumption, the applicant argues, means that the Court of Appeals must credit his testimony and reverse the decision below.

Should the applicant win? Clearly, the answer depends on what “credibility” (and its presumption) entails. But the Supreme Court, confronting this exact question recently in Garland v. Dai, declined to provide an answer. Instead, it showcased the analytic confusion that surrounds credibility writ large. At oral argument, it canvassed four distinct ideas of credibility; and in the opinion, it offered a “definition” of credibility that managed to replicate, rather than resolve, the ambiguity among the four. Meanwhile, the everyday work of adjudication continues. Every year, thousands of cases are resolved on credibility grounds—many with life-altering consequences—despite the confusion at the heart of the legal concept.

The time has come for our legal system to clarify what it means by “credibility.” The answer may differ across contexts or include disparate definitions. But within any given adjudication—like an immigration proceeding—greater precision is a must. To that end, this essay explores different ideas of credibility, taking the Garland v. Dai argument and opinion as a source of (cautionary) inspiration. I explain (1) why credibility is necessarily distinct from truth, but also (2) that from there, the concept becomes more malleable. Is credibility a synonym for persuasiveness? Does it refer to the likelihood that someone is telling the truth in this case? To the likelihood that they generally tend to tell the truth? To whether they seem like they’re telling the truth? Ultimately, there is no ideal definition of credibility; it depends on what work the concept is trying to do. What is far from ideal, however, is the current state of affairs, in which credibility means everything and nothing—notwithstanding its role in shaping people’s lives.

Highly recommended.

Kang on Frederick Douglass

John M. Kang (University of New Mexico - School of Law) has posted The Political Urgency of Black Manhood: Frederick Douglass on Constitutional Theory (New Mexico Law Review, Vol. 52, No. 2, 2022) on SSRN.  Here is the abstract:

How did Frederick Douglass—one who was born a slave, one who had been denied all formal education, one who had been sundered from his family, one who had been starved, tortured, and, on occasion, nearly killed—manage to muster the courage to do something as bold as challenge the United States Supreme Court? This Article suggests that Douglass, in order to assert his right as an American citizen, first had to assert his right as a man in an explicitly gendered sense. That is, Douglass had to muster a powerful sense of manliness that could elevate him psychologically to assert his right to equal citizenship under the Constitution. He had to generate a potent faith in his own gendered identity in order to overcome the debilitating political stigma that attached to his racial identity. Only by doing this, was Douglass able to make the powerful claim that he was entitled— as an American citizen—to contest the authority of the U.S. Supreme Court.

Adler on the Major Questions Doctrine

Jonathan H. Adler (Case Western Reserve University School of Law; PERC - Property and Environment Research Center) has posted West Virginia v. EPA: Some Answers about Major Questions on SSRN.  Here is the abstract:

In West Virginia v. Environmental Protection Agency (WV v. EPA) the Supreme Court rejected an expansive reading of Section 7411 of the Clean Air Act. Expressly invoking the 'major questions doctrine' for the first time in a majority opinion, the Court concluded Section 7411 of does not allow the EPA to require generation shifting to reduce greenhouse emissions. This decision rested on the longstanding and fundamental constitutional principle that agencies only have that regulatory authority Congress delegated to them. The Court further bolstered the argument that delegations of broad regulatory authority should not be lightly presumed, but also left substantial questions about the major questions doctrine unanswered. By skimping on statutory analysis and front-loading consideration of whether a case presents a major question, the also Court failed to provide much guidance for lower courts. While WV v. EPA represents a missed opportunity to clarify and ground the major questions doctrine, it remains a tremendously important decision, and will be cited routinely in legal challenges to new regulatory initiatives. While limiting the scope of Section 7411, the decision did not curtail the EPA’s traditional air pollution control authorities, nor does it preclude the EPA from using such authorities to regulate GHGs. It does, however, make it more challenging for the EPA or other agencies to develop new climate change policies relying upon preexisting statutory authority directed at other problems.

Highly recommended.  Download it while it's hot!

Tillman on Ruger's Letter to Gadsen

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted A Response to Dean Ruger’s Letter to Professor Gadsden, University of Pennsylvania Faculty Senate Chair, Calling for the Imposition of a Major Sanction Against Professor Wax on SSRN.  Here is the abstract:

This is a short statement responding to the misuse of contestable historical materials to achieve ideological ends in the guise of the discipline of an academic colleague. It is a reflection on the dangers of political correctness in today's academic environment.

Procaccini on Freedom of Speech

Francesca Procaccini (Vanderbilt University - Vanderbilt Law School; Harvard Law School; Yale Law School) has posted Equal Speech Protection (Virginia Law Review, Vol. 108, No. 353, 2022) on SSRN.  Here is the abstract:

Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection—and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order to protect a safe and informed democratic discourse. This Article explains the origins and bases of the hierarchy myth, the reasons why equal speech protection supplants the hierarchy model, and the consequences of the myth’s persistence despite its failure to guide free speech doctrine.

Dismantling the myth that the First Amendment embraces a hierarchy of speech protection is critical at this precarious moment in the development of free speech law, when regulating speech—of all kinds—is essential to fostering a healthy public sphere. By excavating a robust tradition of equal and moderate speech protection out from under the shadow of the hierarchy myth, this Article recovers the hidden “social democratic theory” of speech protection—a theory that is singularly suited to addressing the modern speech challenges raised by an ever-expanding digital economy and dangerously toxic political speech environment.

Pi on Legal Indeterminacy

Daniel Pi (University of Maine - School of Law) has posted The Indeterminacy of Legal Rules on SSRN.  Here is the abstract:

This Article demonstrates that the rules of any legal system are necessarily indeterminate. The argument consists of two theorems. The first theorem proves that legal rules cannot be determined by ostension. The second theorem proves that legal rules cannot be determined by description. Taken together, the two indeterminacy theorems establish that legal rules cannot constrain the outcomes of legal disputes. Therefore, any apparent regularities observed in legal decision-making must have causal sources outside of law. Several possible sources of such regularities—economic efficiency and political power most conspicuously—are considered.

Sokol on the Global Rule of Law & Climate Litigation

Karen C. Sokol (Loyola University New Orleans College of Law; Princeton University School of Public and International Affairs) has posted Forging Global Rule of Law Through Litigation Against the United States and the Fossil Fuel Industry (4 Yearbook of International Disaster Law (Forthcoming 2022)) on SSRN.  Here is the abstract:

More than a decade ago, researchers, according to the United Nations Intergovernmental Panel on Climate Change (IPCC), had already concluded that "litigation is likely to be used increasingly as countries and citizens become dissatisfied with the pace of international and national decision-making on climate change." They were right: Climate cases have become a global phenomenon, expanding across jurisdictions and venues, and invoking international, national, and local laws. It has become clear that issues about responsibility for the climate crisis and for climate harms in the courts, in legal arguments, and in legal opinions will increasingly become commonplace, rather than exceptional. This global wave of climate litigation includes a case filed in a U.S. federal district court against the U.S. government and several cases filed in U.S. state courts against major investor-owned fossil fuel companies. In this article, I argue that these cases are particularly important for two related reasons. First, they seek to hold to account the country and entities that bear significant responsibility for the climate crisis. Second, these cases demonstrate how litigation can provide a mechanism for forging the rule of law in global climate governance, which necessarily includes international disaster law. While litigation cannot alone achieve this, it is essential, as it seeks to bring a judicial component to climate governance.

Czapnik on Public Morals & the WTO

Ben Czapnik (The Chinese University of Hong Kong) has posted ‘Moral’ Determinations in WTO Law: Lessons from the Seals Dispute (Journal of International Economic Law 2022) on SSRN.  Here is the abstract:

This article develops a conceptual framework for understanding the ambiguous concept of public morals in World Trade Organization (WTO) law. It reviews the jurisprudence and literature to suggest there are four main options for operationalizing this concept in a legal test. If WTO adjudicators opt for an empirical approach, they can test whether a certain belief is genuinely held within the regulator’s society (unilateralism) or whether it is shared more broadly by the global community (externalism). If WTO adjudicators prefer a ‘moral’ approach, they can interrogate the content of the regulator’s measure (normative inquiry) or whether it addresses a moral issue (meta-ethical inquiry). Each of these approaches suffers from important weaknesses. WTO adjudicators have taken an equivocal approach: they make amorphous statements alluding to all four approaches but do not settle on a clear public morals legal test. In Seals, they went further by establishing an equivocal characterization of the European Union’s (EU) policy objective, which failed to clarify what the EU’s seal products ban sought to achieve or even whether it was based on objective rational considerations. This use of fallacious reasoning by dispute bodies has important implications for WTO law with respect to indeterminacy, transparency, and judicial activism.