Legal Theory Blog

Ungerer on Behavioral Economics and Internationally Unifying Private Law

Johannes Ungerer (University of Oxford - Institute of European and Comparative Law; University of Notre Dame - Notre Dame Law School) has posted Behavioural Economics of Internationally Unifying Private Law (In: Thomas John, Rishi Gulati, and Ben Köhler (eds), The Elgar Companion to UNIDROIT (Elgar 2024), 114-129) on SSRN. Here is the abstract:

The success and attractiveness of internationally unified private law by Unidroit or UNCITRAL depend not only on its economic efficiency but also on its ability to address the psychological biases and cognitive limitations inherent in decision-making processes. This chapter applies behavioural economics to understand the challenges and opportunities associated with international unification of private law. By acknowledging the existence of bounded rationality, behavioural economics offers a more realistic approach to analysing the decision-making processes at various levels—international, national, and individual. The drafting and adoption of unified private law on the international level must consider the influence of biases such as the endowment effect and loss aversion to ensure that path-dependence does not hinder the creation of effective and innovative legal instruments. At the national level, governments and legislative bodies must actively counteract biases and overcome hesitations when considering accession and implementation of internationally unified private law. Utilising choice architecture and appreciating network externalities can be instrumental in fostering positive decision-making dynamics and encouraging the adoption of unified legal frameworks. On the individual level, private parties can benefit from the economic advantages offered by internationally unified private law. Yet in awareness of bounded rationality affecting private parties particularly, employing a choice architecture that defaults to the international regime while allowing deviations to national law is recommendable, since it is liberally paternalistic and guides private parties towards advantageous outcomes. Educational and other support initiatives for advisors further help to combat path-dependence and to ensure well-informed decision-making.

Carolan, Gagliardi, & Rodriguez Gutierrez on the Focus Group Method in Comparative Constitutional Studies

Eoin Carolan (University College Dublin (UCD) - School of Law), Silvia Gagliardi (University of Oslo - Norwegian Centre for Human Rights; Sutherland School of Law, University College Dublin), & Daniela Rodriguez Gutierrez (University College Dublin (UCD)) have posted How to Investigate a Constitutional Culture? The Case for the Focus Group Method in Comparative Constitutional Studies on SSRN. Here is the abstract:

This article makes the case for the use of focus groups as a method with particular relevance to the field of comparative constitutional studies. The article begins with a brief overview of the most common approaches to accounts of constitutional culture. It then explains how the focus group method mayin theoryaddress some of the limitations of these techniques. By contrast with quantitatively-oriented techniques, focus groups offer a context-sensitive, participantdriven and in-depth insights into how ordinary citizens understand, think about and discuss constitutional issues. This, it is argued, provides novel and valuable information about the functional and sociological value of constitutions, as hypothesised in much of the recent literature on social imaginaries and sociological constitutionalism. Having made the theoretical case for the method, the article deals in its final sections with the authors' experience in making use of this method. It identifies the challenges and limitations that may arise when applying the method to constitutional questions and offers conclusions and guidance on its potential utility for future research in the area.

Mygatt-Tauber on the Second Amendment and Undocumented Immigrants

Alan Mygatt-Tauber (United States Department of the Navy; Seattle University School of Law) has posted The Second Amendment Rights of Undocumented Immigrants on SSRN. Here is the abstract:

In 2008’s District of Columbia v. Heller, the Supreme Court, for the first time, held that the Second Amendment protects an individual right to bear arms. Challenges to various federal gun control laws immediately followed, including challenges to 18 U.S.C. § 922(g)(5)(a), which prohibits possession by an undocumented immigrant. Between 2008 and 2022, courts faced with challenges to 922(g)(5)(a) universally upheld it. Then the Court decided New York State Rifle and Pistol Association v. Bruen, in which it discarded the means-end balancing tests the courts of appeals had adopted, instead preferring a test focused on “history and tradition.” Under Bruen’s test, if a regulation was targeted at conduct protected by the Second Amendment, it was presumptively invalid, unless the government could identify an analogous law from the time of the Founding. New challenges were filed. Many courts have continued to uphold the constitutionality of 922(g)(5)(a), but others have found that it is unconstitutional. And at least two circuits have upheld the statute on the ground that undocumented immigrants are not part of “the people” protected by the Second Amendment.

This article is the first in-depth look at the application of Bruen’s test, as modified by the Court’s June 2024 decision in United States v. Rahimi, that addresses both the question of whether undocumented immigrants are part of “the people” entitled to Second Amendment protections and, if so, whether any of the historical analogues identified by the government serve to justify 922(g)(5)(a)’s complete ban on gun ownership. It concludes 1) that undocumented immigrants are part of “the people” because status is irrelevant to the question—it is physical presence in the United States that matters; and 2) none of the purported analogues support a categorical ban on undocumented immigrants possessing firearms. Instead, they support an individualized analysis where only the dangerous may be disarmed.

Mason on Constitutional Departmentalism

T. Hunter Mason (Yale University, Law School) has posted As the Force of Their Reasoning May Deserve: A Unified Departmentalist Theory of Constitutional Interpretation on SSRN. Here is the abstract:

The power to interpret law is the power to govern at will. Although the Constitution parcels out interpretive authority over its own meaning among three coequal branches of government, the prevailing public narrative of constitutional interpretation is that the judiciary, with the Supreme Court at its apex, is the ultimate expositor of our shared charter. In the crusade against judicial supremacy, this departmentalist view of constitutional interpretation has garnered considerable scholarly support. But the conversation remains largely academic. In this Article, I seek to justify and reignite the interpretive faculties of the nonjudicial branches of the federal government. I do so by propounding a holistic theory of departmental interpretation of the Constitution that endeavors to catalog the full range of constitutional review available to each branch and how these tactics can legitimately resist the interpretive claims of rival branches. Through myriad revisionary devices, the Constitution precludes unilateral interpretive control by any one branch except in certain specified arenas of constitutional interpretation. The persuasive force of an interpretive stance-rather than its sourcedetermines the extent to which the interpretation is operationalized in the business of government. Departmentalist literature has stopped short of offering a systematic theory of when and how each branch may weigh in on a question of constitutional meaning and what effect their interpretive activities have on the ground. By appreciating the totality of their own interpretive prerogatives, the political branches may begin to jealously-and effectively-rebut claims of judicial supremacy and vindicate the fundamental American maxim that the only body from which there is no appeal on questions of fundamental law is the People.

Recommended.

Sunstein & Paul on "Better Off" as Judged by the Affected Individuals

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School (HKS)) & L. A. Paul (Yale University) have posted Freedom, Transformative Experiences, Law, and Testimony on SSRN. Here is the abstract:

One way to evaluate various legal interventions in people's lives is to ask whether they make choosers better off, "as judged by themselves." This criterion can be understood to borrow from the liberal political tradition insofar as it makes the judgments of choosers authoritative. For lawyers, judges, and policymakers to give ultimate authority to choosers might be taken to respect their own judgments and to promote their welfare (insofar as people are uniquely situated to know whether choices make them better off). But for certain decisions, the "as judged by themselves" criterion is indeterminate. In these situations, involving life-changing, transformative experiences, the criterion does not offer a unique solution; people might be happy either way. It is possible that welfarist criteria will resolve the indeterminacy, despite serious questions about incommensurability.

Flaherty on "The Law of Peoples" by Rawls

Martin S. Flaherty (Princeton University - Program in Law & Public Policy; Columbia Law School; Columbia University - Barnard College; Fordham University School of Law) has posted Rawls, Reality, and Utopia on SSRN. Here is the abstract:

Measured against this standard-offering a "realistic utopia" with an eye toward international human rights law-The Law of Peoples fares better than its initial reception might suggest, yet at the end of the day proves to be inadequate, nonetheless. The balance of this essay explains the paradox. Part I considers key elements of Rawls's approach, both by Rawls himself and as enhanced by Steven Macedo. It argues that even though neither version adequately justifies premising transnational obligations upon an idea of "peoples" rather than people, Macedo's concept of self-government presents at least a plausibly utopian justification, while his emphasis on the preconditions of self-government tracks current international human rights norms in strikingly realistic ways. Part II then considers why even this enhanced account of Rawlsian thought remains insufficient. Drawing upon the critiques offered by Seyla Benhabib and Thomas Pogge, this part contends that the claims of self-governing peoples should not outweigh the prior claims of individuals as a normative matter and have already too greatly eroded as a descriptive point of international human rights. On both counts, I respectfully conclude, The Law of Peoples approach remains insufficiently utopian and inadequately realistic.

Highly recommended.

Somin on Trump v. Anderson

Ilya Somin (George Mason University - Antonin Scalia Law School) has posted A Lost Opportunity to Protect Democracy Against Itself: What the Supreme Court Got Wrong in Trump v. Anderson (Cato Supreme Court Review, Symposium on the 2023-24 Supreme Court Term, Forthcoming) on SSRN. Here is the abstract:

In Trump v. Anderson, a divided Supreme Court achieved unusual unanimity in an important case. All nine Justices agreed that state governments could not use Section 3 of the Fourteenth Amendment to disqualify former President Donald Trump from running for the presidency in the 2024 election. Section 3, the Court ruled, is not self-enforcing. Unfortunately, the Court achieved unanimity by making a grave error. In so doing, they went against the text and original meaning of the Fourteenth Amendment and undermined a potentially vital constitutional safeguard of liberal democracy.

Section 3 states that “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Plaintiffs argued Trump had engaged in insurrection by instigating the January 6, 2021 attack on the Capitol in order to stay in power after losing the 2020 presidential election.

In this article, I explain what the Court got wrong. I also consider some of the broader issues raised by the case that the Justices did not address because they disposed of the litigation against Trump on the self-enforcement issue. Part I provides a brief overview of the history of the Section 3 litigation against Trump. Part II explains why the Court got the issue of self-enforcement badly wrong. In the process, I also address the argument that disqualification required a prior criminal conviction for “insurrection.” Part III considers the question of whether the January 6 attack qualifies as an “insurrection,” and—more briefly—whether Trump “engaged” in it. The answers to both questions are “yes,” though the second is a closer call than the first. Part IV addresses broader implications of Section 3 for constitutional democracy. There is an obvious tension between respect for democracy and provisions that limit voter choice, as Section 3 necessarily does. Nonetheless, there is good reason for this and some other constitutional constraints that protect the democratic process against itself. The Supreme Court’s effective gutting of Section 3 gravely weakens one of those constraints. Finally, Part V summarizes the implications of the Trump v. Anderson decision for the future.

Recommended.

Gelblum on Administrative Exhaustion of Constitutional Claims

Yonatan Gelblum has posted The Tenth Circuit's Nuanced Approach to Administrative Exhaustion of Constitutional Claims (102(2) Denver Law Review (forthcoming, 2025)) on SSRN. Here is the abstract:

The Tenth Circuit is typically more reluctant than most other courts of appeals to treat constitutional claims differently for purposes of administrative exhaustion, and consequently less likely to exempt these claims from exhaustion mandates. It usually requires litigants to raise these claims before a responsible agency prior to seeking relief in court, absent a particularized showing of undue burden or futility. Notably, despite the Supreme Court's recent disparagement of administrative exhaustion of constitutional challenges to agency structure in Axon Enterprises, Inc. v. FTC and Carr v. Saul, the Tenth Circuit recently reaffirmed the continuing validity of its prior jurisprudence on exhaustion of constitutional claims, reiterating its pre-Carr assertion that unexhausted "structural challenges have no special entitlement to review on appeal from the agency."

This Article describes, defends, and discusses the implications of the Tenth Circuit’s approach to exhaustion of constitutional claims. I identify specific aspects of Tenth Circuit jurisprudence that make the Tenth Circuit more likely to require exhaustion of constitutional claims. I explain that this approach comports with Supreme Court precedents, because despite the Court’s disparagement of constitutional adjudication by agencies in cases such as Carr, the Court has never categorically exempted constitutional claims from exhaustion mandates. I also argue that the Tenth Circuit is reasonable to presume that exhaustion of constitutional claims has similar benefits to exhaustion of other claims, absent a particularized showing to the contrary, and that the procedural, legal, and administrative background to significant cases in which the Tenth Circuit required exhaustion of such claims demonstrates the wisdom of this approach. I conclude by discussing why agencies and other litigants involved in or potentially facing litigation over exhaustion of constitutional claims in the Tenth Circuit would do well to consider how the specific characteristics of their case and the applicable administrative scheme might impact on that court’s nuanced analysis.

Flaherty on “The International Law Origins of American Federalism" by Bellia and Clark

Martin S. Flaherty (Princeton University - Program in Law & Public Policy; Columbia Law School; Columbia University - Barnard College; Fordham University School of Law) has posted Peerless History, Meaningless Origins (1 Journal of American Constitutional History 671 (2023)) on SSRN. Here is the abstract:

As with any major law review article, Anthony Bellia and Bradford Clark’s “The International Law Origins of American Federalism," raises the question of whether modern constitutional scholarship is part of the problem, part of the solution, or both. “International Law Origins” qualifies as a representative case study on several grounds. Its authors are prolific constitutional scholars who teach at elite law schools. The piece itself appears in the Columbia Law Review, not only one of the nation’s leading law journals, but one that frequently features constitutional history. As is typical of constitutional history in law reviews especially, Bellia and Clark offer an original, indeed revisionist, argument about major aspects of the Founding. Finally, and perhaps most importantly, the authors self-consciously offer their insights to the Supreme Court as an originalist basis for several important areas of current and controversial doctrine. This essay will consider “International Law Origins” mainly in the broader context of originalist legal scholarship and its relationship as an appeal to historical expertise. Part I reviews the rise of such scholarship in response to the emergence of modern originalism, with a focus on its relation and reception among professional historians. In Part II, this essay considers the historical standards that constitutional historians have proposed and how those standards might usefully be applied to originalist scholarship. Among other things, this essay will suggest when certain presumptions should be applied against originalist accounts and how these might be rebutted. Part III then considers whether those presumptions should apply against “International Law Origins.” Next, in Part IV, the essay will briefly consider whether those presumptions have been overcome in this case, leaving the more direct and detailed work to the other scholars in this issue. Finally, this essay will conclude with a reconsideration of the feasibility of originalism as a method of constitutional interpretation.

Rosenthal on Litigating the Original Meaning of the Second Amendment

Lawrence Rosenthal (Chapman University, The Dale E. Fowler School of Law) has posted LITIGATING ORIGINAL MEANING FROM HELLER TO RAHIMI: THE ROLE OF LAWYERING IN THE CONFUSED PATH OF SECOND AMENDMENT JURISPRUDENCE (American University Law Review, Vol. 73 (forthcoming 2024)) on SSRN. Here is the abstract:

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the “right to keep and bear arms” found in the Second Amendment, in District of Columbia v. Heller. Subsequently, the Court, in New York State Rifle & Pistol Ass’n v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. Most recently, in United States v. Rahimi, the Court seemingly changed course, upholding a statute prohibiting the possession of firearms by those under domestic-violence orders of protection.

There is a great deal to criticize in the Court’s treatment of the original meaning of the Second Amendment in the line of cases beginning with Heller and culminating in Rahimi. That is the focus of Part I. Part I observes that by the time of Bruen, the Court had taken to ignoring the Second Amendment’s preamble altogether; a position difficult to reconcile with the view taken of preambles in both the framing era and Heller itself. The Court had also managed to both acknowledge and then ignore the demonstrable ambiguity in the meaning of the Second Amendment right to “bear arms.” In Rahimi, the Court ignored its prior account of the original meaning of the Second Amendment’s text altogether. We are left with an incoherent originalism, which the Court elevates framing-era regulatory practice and its contemporary analogs over its own account of the original meaning of the Second Amendment’s text, albeit without claiming any justification for doing so, or even admitting what it is doing.

Part I is a relatively conventional example of the type of legal scholarship that dissects Supreme Court opinions. Part II takes a less familiar turn by focusing on the lawyering of those who defended the laws at issue in these cases. After undertaking to show that the Supreme Court’s decisions should not be regarded as autonomous, but instead as reflecting to a considerable extent the arguments pressed on it, Part II demonstrates that the Court’s errors mirror serious litigating errors by the attorneys defending the laws at issue in these cases. These flawed litigating strategies reflect, Part II shows, an incomplete grasp of the conceptual underpinnings of originalism as a method of constitutional interpretation. Lawyers defending statutes or other legal regimes without clear framing-era antecedents must develop a more sophisticated understanding of originalist constitutional interpretation. Part III offers a guide for avoiding the kind of errors reflected in the thus-far unavailing efforts to defend challenged firearms regulation from Second Amendment attack, in both Second Amendment litigation and other areas of constitutional law.

Sample on Impartiality and the Supreme Court

James J. Sample (Hofstra University, Maurice A. Deane School of Law) has posted The Supreme Court And The Limits Of Human Impartiality on SSRN. Here is the abstract:

There is a systemic failure in Supreme Court judicial ethics which, without remedy, will continue to corrode the public’s trust and the Court’s legitimacy. The acute problems are not limited to jurists of any particular ideological stripe. Indeed, the illustrative instances of concern detailed in Part V of this Article range from Justices Alito and Thomas to Justices Kagan and Sotomayor. All of whom are iconic jurists. In our polarized era, the tendency is to see nearly every issue through a partisan lens. Viewing robust judicial ethics in this manner is reductionary at best.

The problem, perhaps with isolated exception, is generally not the people. Though brilliant, Supreme Court Justices are human.4 They make mistakes. The problem is the ad hoc, uneven system. The repeated failures of Justices nominated by Democratic and Republican Presidents alike to recuse themselves in cases—where if they were lower court judges they would have to recuse—means that recusal can no longer be analyzed as a series of idiosyncratic one-offs. While surely each instance is unique, collectively there is a troubling and conscious choice not to solve the problem. Fair, impartial courts with rigorous processes and enforcement mechanisms benefit all Americans, regardless of partisan differences.

While reasonable minds can disagree on the close calls in individual cases, it is unreasonable to conclude that the Supreme Court’s systemic, repeated failure—and even its steadfast refusal—to police itself in the area of judicial ethics is anything other than a serious concern. The Supreme Court is not by itself in terms of Justices getting put into questionable scenarios, but as Senior District Judge Michael Ponsor stated, “You don’t just stay inside the lines; you stay well inside the lines. This is not a matter of politics or judicial philosophy. It is ethics in the trenches.”

Years of institutional boilerplate lip service, against a background of increasingly egregious, even brazen disregard for basic norms of judicial ethics, conflicts with the Court’s obligation to maintain the appearance of impartiality. That is significant. Not only does the appearance of partiality affect the litigants, it is detrimental to the rule of law and public confidence in the Court. As the Supreme Court itself has explained, “justice must satisfy the appearance of justice.” The Eighth Circuit described it this way: “[I]t is essential to protect the judiciary’s reputation for fairness in the eyes of all citizens. This reputational interest is not a fanciful one; rather, public confidence in the judiciary is integral to preserving our justice system.”

Geistfeld on Tort and Scarce Compensatory Resources

Mark Geistfeld (New York University School of Law) has posted Tort Law in a World of Scarce Compensatory Resources (123 MICHIGAN LAW REVIEW (forthcoming 2025)) on SSRN. Here is the abstract:

A number of large corporations facing extensive tort liabilities have gone into bankruptcy, forcing tort claimants to accept pennies on the dollar in satisfaction of their claims. Bankruptcy painfully illustrates the social fact that the compensatory properties of tort law depend on the availability of compensatory resources. Although this feature of tort law is self-evident, no one has adequately analyzed whether it matters for substantive tort doctrine, and if so, how.

Wealth would seem to be substantively irrelevant in light of the rule that excludes evidence concerning the financial resources of a defendant for determining breach or compensatory damages. However, the antecedent tort duty depends on the burden it would impose on the ordinary duty-bearer across the general class of cases the duty governs. The reasonableness of this burden is affected by social facts such as per capita wealth, the replacement of debtor’s prison with bankruptcy, the availability of liability insurance, and the social meaning of monetary damages. These normatively relevant facts are largely absent from modern accounts of tort law, even though they contract or expand the scope of substantive tort duties for noncontroversial, principled reasons grounded in a plurality of widely recognized tort values. An extended historical and doctrinal analysis confirms as much, showing how the scarcity of compensatory resources has shaped the basic structure of tort law—why it employs a default rule of negligence liability which is sometimes supplemented by rules of strict liability while also being limited for wide swaths of negligently caused harms involving economic loss and emotional distress.

Accounting for the availability of compensatory resources reveals normative properties of substantive tort law that are often quite different from the ones modern tort theories depict, including the relation between tort law and criminal law and the vital role of deterrence in a rights-based tort system. An adequate account of tort law must comprehend how the scarcity of compensatory resources alters substantive tort doctrine in principled ways.

Highly recommended.

Pirc & Pirc on School Choice and Uniformity Clauses

A. Caleb Pirc (Regent University, School of Law) & Lili Pirc (Regent University, School of Law) have posted A Time for Choosing: The Impact of Uniformity Clauses in State Constitutions on School Choice Programs (15 Grove City Coll. J.L. & Pub. Pol'y (2024)) on SSRN. Here is the abstract:

In response to the rise of the modern school choice movement, opponents of school choice programs have claimed that various constitutional provisions bar school choice programs. Forced to change course after recent Supreme Court decisions, opponents have set their sights on a portion of the education provisions of state constitutions as their new tactic to undermine school choice programs: uniformity clauses. Opponents claim that these clauses prevent states from providing opportunities for parents to choose education options outside the traditional public school systems with public funds. While each clause must be independently analyzed according to its original public meaning, generally, these clauses do not preclude school choice proposals. Advocates of these programs must be aware of their requirements and effects when developing school choice proposals.

Sandro on the Theory of Constitutional Democracy

Paolo Sandro (University of Leeds - School of Law) has posted Making and re-making the theory of constitutional democracy: further observations (Revus - Journal for Constitutional Theory and Philosophy of Law) on SSRN. Here is the abstract:

In this reply I address many of the observations and criticisms raised by Donald Bello Hutt, Mathieu Carpentier, Maris Köpcke, and Graziella Romeo vis-à-vis in my book The Making of Constitutional Democracy: From Creation to Application of Law (Hart 2022). The discussion touches upon a host of different but interconnected issues: from the necessary connection (or lack thereof) between the state and the rule of law; to the feasibility and relevance of the distinction between law as lex and law as ius for modern constitutionalism; to the role and scope of a theory of normative powers for the concept of law-application; to the centrality of the idea of contingency in constitutional theory and its consequences for constitutional design. As a result, I clarify and further develop several aspects of the theory (and meta-theory) of constitutional democracy I originally presented in the book.

Highly recommended.

Trautman on Presidential Succession Planning

Lawrence J. Trautman (Prairie View A&M University - College of Business; Texas A&M University School of Law (By Courtesy)) has posted Kamala Harris, Donald J. Trump, The U.S. Constitution, Fitness For Office, Deep Fakes, and Importance of Succession Planning on SSRN. Here is the abstract:

With just a few months to go before the start of early voting in the 2024 American presidential election, Joseph R. Biden's disturbing debate performance on June 27, 2024 throws the Democratic Party into crisis. Given the demanding, high-stress characteristics of serving as U.S. president, how is it that after almost two hundred-fifty years of democracy, the American political electorate faced the risk-laden choice between a frail, obviously impaired candidate having a remaining expected lifespan, should he be re-elected, of about 5.26 years at the end of his term (Biden) when he would be 86 years-old-versus former President Donald J. Trump, a twice impeached, convicted felon, indicted and facing several ongoing trialswho, should he be elected, will be 82 at the end of 2028 and will then have an actuarial expectation of an additional 6.96 years. The perplexing question for most in the Democratic Party has been "how did we allow ourselves to be in this position?" Herein lies the focus of this inquiry. This discussion about Constitutional law is of significant import to our understanding of: the likely preservation of democracy; Twenty-Fifth Amendment; and issues related to presidential fitness for office. These are the important topics of this paper.

Van Orsdol on the Procurement Act Covid Vaccine Mandate Order Litigation

Justin Van Orsdol has posted The Protean Procurement Act on SSRN. Here is the abstract:

In 2020, we confronted a global pandemic that killed hundreds of thousands of Americans and sent many more to the hospital. The effects of COVID were far-reaching: effects we continue to deal with today. The government, specifically government procurement, was not immune to these ramifications.

When government contractors succumbed to COVID, they found themselves no longer able to perform timely or at all. These delays not only cost the federal government money, but they also disrupted necessary government supplies and services. We needed a solution, and we needed one fast.

President Biden sought to remedy this problem with an executive order under the Procurement Act. That executive order, known as the contractor vaccine mandate, directed certain federal government contractors to require employee vaccinations. President Biden was on firm ground given that past administrations from both parties have used the Procurement Act's broad authority to enact all sorts of policies. Contractors-mainly conservative states-cried foul and sued the Biden administration for injunctive relief.

What followed was litigation in mostly far-right circuits that enjoined the executive order, holding that it did not satisfy the quintessential "close nexus test." On the surface these cases appear to be merely an exercise of statutory interpretation. But a closer examination of these cases reveals much more about the future of the standing doctrine, the purported rationale behind the major questions doctrine, the appropriateness of nationwide injunctions, and separation of powers concerns between the Executive and Judicial branches.

This Article explores these topics under the lens of the Procurement Act litigation and explains why these courts erred on several issues. It suggests that the courts' standing analyses--premised on misunderstanding of federal procurement law--threaten to erode whatever remains of the standing doctrine. Further, it contends that the courts' reliance on the major questions doctrine underscore fallacies with the doctrine's purported rationale. This Article also offers a revised approach to the close nexus test that combines a variety of approaches to balance the competing separation of powers concerns while preserving executive flexibility over government procurement.

Heath on Neutrality and Economic Sanctions

J. Benton Heath (Temple University Beasley School of Law) has posted Neutrality and Governance in a Weaponized World on SSRN. Here is the abstract:

Sanctions and other forms of economic warfare are weaponizing spaces once perceived as relatively neutral, such as transnational banking systems and semiconductor supply chains. A series of recent works, written for academic and general audiences, grapples with the implications of these developments for state power and global order. These works, this Essay argues, underline the importance of some conception of neutrality to the functioning of the international order, particularly in the absence of any meaningful global governance for the use of economic statecraft.

Moran on Overbroad Protest Laws

Rachel Moran (University of St. Thomas - School of Law (Minnesota)) has posted Overbroad Protest Laws (Forthcoming Columbia Law Review (2025)) on SSRN. Here is the abstract:

Protests are woven into the history and social fabric of the United States. Whether the topic involves racial inequity, abortion, police brutality, oil and gas pipelines, immigration, war, or allegedly stolen elections, Americans will voice their opposition, often in large groups and occasionally in frightening or destructive ways. Politicians, in turn, have a long history of using their lawmaking power to discourage protest, typically in the form of laws creating crimes like unlawful assembly, riot, civil disorder, disorderly conduct, and others. While lawmakers have considerable power to decide what is and isn’t legal, they cannot criminalize expression or assembly that the First Amendment protects. But the lines delineating what protest the government can and cannot criminalize are anything but bright.

This article aims to provide much-needed clarity on the question of how far lawmakers can go in prohibiting protest. It does so by illuminating a notoriously murky area of First Amendment doctrine: overbreadth. The overbreadth doctrine authorizes courts to strike down laws that are written so broadly as to infringe on constitutionally protected expression. Overbreadth concerns are especially acute in the context of laws used to criminalize protests.

The article makes three significant contributions to overbreadth scholarship. First, the article analyzes decades of Supreme Court caselaw addressing overbreadth claims arising from protests and articulates five features of protest-related laws that generate overbreadth concerns. Second, the article surveys an array of statutes that lawmakers and law enforcement officials have recently used or specifically enacted to deter protests and, employing the five features of potentially overbroad laws, examines which of these statutes present overbreadth concerns. Third, the article closes with a series of guidelines for eliminating or correcting overbroad protest laws.

Highly recommended.

Balkin on Cafeteria Originalism

Jack M. Balkin (Yale University - Law School) has posted We Are All Cafeteria Originalists Now (and We Always Have Been) (William & Mary Bill of Rights Journal (forthcoming 2024)) on SSRN. Here is the abstract:

Americans are “cafeteria originalists." They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully re-characterize these views to support contemporary political and legal arguments. Even self-described originalist judges are originalist only when they want to be.

Cafeteria originalism is not a pathology or a falling away from a pure or correct version of constitutional interpretation. Instead, the persistence of cafeteria originalism in American constitutional culture reveals the deep rhetorical structure of American constitutional law. That is why non-originalists make originalist arguments all the time without thereby being converted to the originalist creed. And that is why conservative originalists have always had to leaven their theories with qualifications, exceptions, and epicycles.

Cafeteria originalism is our law. The most plausible versions of interpretive theory — including the most plausible versions of originalism — make their peace with cafeteria originalism; indeed, they enjoy the smorgasbord. Cafeteria originalism has multiple uses in American legal thought. It offers a powerful rhetoric for legal reform. It clears the ground for new doctrinal development. And it helps people express their contemporary values through appeals to constitutional memory.

Interpretive theories lie downstream from constitutional culture. Within that culture, originalist arguments are simply one element of a larger collection of rhetorical strategies. This produces the effect called cafeteria originalism. From the standpoint of the conservative originalism, this fact is a problem. But from the standpoint of American constitutional culture, it is perfectly normal. It is just what we do around here.

Highly recommended.

Stein on Generative AI & Sustainability

Amy L. Stein (University of Florida Levin College of Law) has posted Generative AI And Sustainability on SSRN. Here is the abstract:

This chapter underscores the environmental considerations of Generative AI, including impacts on water, energy, carbon, waste, and land use. Those oftenoverlooked parameters have recently gained considerable attention in the computer science community. The chapter encourages GenAI developers to integrate sustainability into their business growth strategies by enhancing awareness, reducing impacts, and justifying the social benefits. It provides five suggestions for GenAI developers to achieve more sustainable GenAI practices: (1) use their purchasing power to drive demand for investments in more carbon-free energy and recycled water; (2) adopt water, energy efficiency, and waste reduction practices to decrease the absolute amounts consumed; (3) take advantage of excess carbon-free energy to smooth demand curves for grid operators; (4) support the creation of more transmission infrastructure to alleviate congestion caused by their increased demand; and (5) engage with utilities and regulatory bodies to avoid inequitable impacts, including those between industrial and residential customers in their service areas.

Kim, Chen, Ryu, & Webb on Bitcoin as Legal Tender

Daehan Kim (Government of the Republic of Korea), Maggie Chen (Cardiff University - School of Mathematics), Doojin Ryu (Sungkyunkwan University), & Robert I. Webb (University of Virginia - McIntire School of Commerce) have posted Bitcoin as a Legal Tender on SSRN. Here is the abstract:

This study examines the viability of Bitcoin as legal tender with particular emphasis on the experience of El Salvador. In particular, we examine the challenges, benefits, and costs, of using Bitcoin as legal tender in a country. Our analysis underscores the significant costs of using Bitcoin to process routine transactions. These costs, both temporal and financial, form a considerable barrier to Bitcoin's widespread adoption and use as legal tender. Given the uncertain impacts that the successful adoption of Bitcoin may cause, we suggest that there is little reason for policymakers to actively drive Bitcoin adoption.

Cohen-Almagor on Exit Rights and State Interference with Cultural Norms

Raphael Cohen-Almagor (University of Hull; Middle East Study Centre; Woodrow Wilson International Center for Scholars) has posted Freedom From Religion: Multiculturalism and the Rights of Women and Children on SSRN. Here is the abstract:

This chapter examines the limits of state interference in proscribing cultural norms by considering the right of people to leave their community free of penalties and practices that deny education to vulnerable populations, particularly women and children. The discussion opens by providing some basic underpinning premises. It proceeds by reflecting on the discriminatory practices of the Pueblo tribes against people who wish to leave the tribe due to apostasy. The question is whether people who wish to abandon or renounce their religion are entitled to any property rights. Subsequently, the discussion turns to the issue of securing adequate education for all, arguing that the liberal state has a role to play in protecting the basic rights of vulnerable populations.

Avi-Yonah on Taxation of Acquisitive Mergers

Reuven S. Avi-Yonah (University of Michigan Law School) has posted Should Large Corporate Mergers Be Subsidized? on SSRN. Here is the abstract:

This paper examines the history of tax-free corporate reorganizations and recommends that acquisitive reorganizations should be taxable.

Baude & Paulsen on Trump v. Anderson

William Baude (University of Chicago - Law School) & Michael Stokes Paulsen (University of St. Thomas School of Law) have posted Sweeping Section Three under the Rug: A Comment on Trump v. Anderson (138 Harvard Law Review (forthcoming 2025)) on SSRN. Here is the abstract:

In Trump v. Anderson, the Supreme Court was confronted with the explosive question of whether former President Donald Trump was constitutionally disqualified from future office by Section Three of the Fourteenth Amendment. The Colorado Supreme Court had found that he was and consequently held him ineligible for the state’s primary ballot as a matter of state election law. Rarely have the stakes of a constitutional issue been so great. The institutional, political, and personal pressures on the justices presented by Trump v. Anderson were enormous, requiring the justices to rise to the demands of the occasion in a way perhaps unrivaled in the Court’s history.

They did not do so. Unlike some “great cases” of American history, where the press of time and circumstances had the effect of concentrating the judicial mind to produce important landmark constitutional decisions, the Court in Trump v. Anderson produced a flimsy decision in a high-stakes, high-profile, high-intensity case of great importance. Instead of confronting the issues squarely, the Court tried to sweep Section Three under the rug. The Court decided little, in the end, and what it did decide was still flagrantly wrong.

The Court held that states may not enforce Section Three’s disqualifications from office in the context of state election law concerning elections to federal office. That holding is legally indefensible. It fundamentally inverts the Constitution’s text, structure, and history concerning the power of states in presidential elections.

Yet equally significant is what the Court did not decide. It did not reject the Colorado Supreme Court’s conclusion that Trump is disqualified from future office, under the standards of Section Three. It did not hold that the events culminating in the January 6 attack on the capitol fell short of the constitutional standard for an “insurrection.” It did not reject the Colorado Supreme Court’s conclusion that Trump had “engaged in” that insurrection. It did not question the Colorado courts’ factual findings concerning Trump’s conduct and intent. And–perhaps contrary to initial appearances, and contrary to the critique of the justices concurring in the judgment only–the Court did not hold that Section Three is legally inoperative without enforcement legislation by Congress. Nothing in the case contradicts the conclusions we reached in our prior scholarship, The Sweep and Force of Section Three, on any of these points.

The upshot is that Donald Trump remains constitutionally disqualified from the presidency and may not lawfully serve in that office or any other unless Congress removes the disqualification by two-thirds majorities of both houses. Nothing in Trump v. Anderson changes that legal reality. If Donald Trump was constitutionally ineligible to the presidency on March 3, 2024, the day before the Court’s decision, he remained constitutionally ineligible on March 5, the day after its decision. And he remains ineligible today. A variety of potential avenues to enforce that disqualification remain. Sweeping Section Three under the rug thus may merely have postponed the day of ultimate constitutional reckoning.

Highly recommended.  Download it while it's hot!

Dorf on Volokh on Free Speech and Antidiscrimination

Michael C. Dorf (Cornell Law School) has posted Free Speech Versus Antidiscrimination in the Scholarship of Eugene Volokh (Revised Version Forthcoming in Constitutional Commentary) on SSRN. Here is the abstract:

Conflicts between free speech and antidiscrimination law make up a substantial subset of Eugene Volokh's wide-ranging scholarship. That work includes: criticism of those courts that have interpreted expression that would otherwise be protected under the First Amendment as triggering liability for the creation of a hostile workplace environment under Title VII; views about the proper scope of constitutionally required exceptions to public accommodations laws for expressive businesses; disagreement with the common assumption that boycotts themselves, as distinct from any accompanying expression, are constitutionally protected free speech; and a bold positionson recent clashes between free speech and Title VI on college and university campuses. Canvassing this portion of Volokh's oeuvre, one sees libertarian instincts but also a genuine appreciation for competing egalitarian concerns. Even when one finds Volokh's bottom line ultimately unpersuasive, one cannot gainsay his clarity of thought, originality, or fearlessness.

Highly recommended.

Kaal on Quantum Computing and Work

Wulf A. Kaal (University of St. Thomas - School of Law (Minnesota)) has posted Quantum Economy and the Future of Work on SSRN. Here is the abstract:

The advent of quantum technologies introduced a paradigm shift in economic theory and practice and the beginning of the quantum economy. This new framework, grounded in principles of quantum mechanics such as superposition and entanglement, offers a more comprehensive understanding of complex economic phenomena and aims to address the limitations of traditional economic theories. Quantum computing, in particular, stands at the forefront, offering unparalleled computational power capable of solving intricate economic models, optimizing resource allocation, and enhancing decision-making processes across various sectors. As these technologies advance, their implications for the future of work are profound, impacting job dynamics, skill requirements, and organizational structures. Quantum computing may automate routine tasks and optimize complex processes, potentially displacing certain job roles. However, it also creates new opportunities in emerging fields such as quantum programming, algorithm design, and quantum cryptography, requiring highly specialized knowledge and skills. This necessitates a significant shift in the skills and learning landscape, emphasizing higher-order cognitive skills, soft skills, interdisciplinary knowledge, and continuous learning. The integration of quantum technologies will transform organizational structures and processes, with decentralized autonomous organizations (DAOs) and smart contracts democratizing decision-making and introducing new models of compensation. The impact of quantum technologies will vary across regions and industries, influenced by infrastructure, education, and policy. Developing nations may face unique challenges and opportunities, necessitating tailored approaches to workforce adaptation and technological integration. The shift towards a quantum economy also raises significant ethical and societal considerations, including disparities in access to quantum resources and the potential for increased inequality. By fostering interdisciplinary collaboration, continuous learning, and inclusive dynamic and evolutionary decentralized governance models, the global workforce can effectively adapt to the transformative impact of quantum technologies, ensuring a future of equitable and sustained economic growth.

Roughan on the Official Point of View and Normative Social Practices

Nicole Roughan (University of Auckland - Faculty of Law) has posted The Official Point of View and the Official Claim to Authority (Oxford Journal of Legal Studies, volume 38, issue 2) on SSRN. Here is the abstract:

This article argues for the revision of two devices used in contemporary jurisprudence to explain the normativity of law. Both the idea that law claims authority and the notion that law either has or is represented by agents with an internal point of view rely upon descriptive or conceptual accounts of legal officials. In contrast, this article advocates a focus on what it is about officials that makes their conduct normatively significant, and argues that the role of official is created by normative social practices which generate and then carry standing as a special kind of agency. That idea of officials is then used to argue for an account of law's normativity in which the official role entails occupatio n of an 'official point of view', from which an 'official claim to authority' holds law out as authoritative fo r subjects whilst committing its officials to the pursuit of its legitimacy.

Highly recommended!

The Preconditions for Collaborative Constitutionalism: A Comment on "The Collaborative Constitution" by Kavanagh

There is a wonderful symposium on Aileen Kavanagh's new book, The Collaborative Constitution, at Balkinization.  My contribution is entitled The Preconditions for Collaborative Constitutionalism, you can read it by following the link.  Here are the first two paragraphs:

Aileen Kavanagh’s important book, The Collaborative Constitution, offers a deep, insightful, and optimistic analysis of constitutional theory that aims to displace the conventional narrative that pits judicial supremacy and the institution of judicial review against a form of legislative supremacy that would take constitutions away from the courts. Kavanagh’s alternative is a collaborative constitution—in which the constitutional order is structured via interactions between judicial, legislative, and executive institutions and actors. Kavanagh mostly explores these themes in the context of the United Kingdom with less extensive discussion of Canada and other commonwealth systems.  Although the theoretical chapters in the beginning of the book are framed generally, Kavanagh chose not to engage in in-depth exploration of the implications of her theoretical framework for other constitutional orders, including that of the United States. A wise choice, given the effort required to apply a rich constitutional theory to even a single constitutional system.

Nonetheless, Kavanagh’s book will prompt many readers to ask, “How could Kavanagh’s framework be applied to the American context?” There are, of course, many obvious differences between the UK and the US. Some of those differences are legal. The US has an integrated text that constitutes its written Constitution, but the UK’s constitutional order is an amalgam of written documents and unwritten norms and conventions. In the US, federalism is understood as a fundamental restraint that Congress cannot override, but in the UK the devolution or centralization of power is (at least in theory) subject to ordinary legislation enacted by Parliament. In the US, divided government (different parties control the presidency and Congress) is common, but in the UK, Prime Ministers and their cabinets must have the support of Parliament and usually the PM is the leader of a party with a parliamentary majority. Other differences are jurisprudential. Constitutional theory in the US is dominated by the debate between originalism and living constitutionalism, but that debate is peripheral or irrelevant in the UK.

Lots more on Balkinization!

 

Legal Theory Lexicon: Open and Contested Questions of Law

Introduction

First-year law students may come into law school believing that they will learn "the law"--a body of settled rules that decide cases.  But early on, they are likely to discover that many legal questions are open to dispute and others have never been addressed by an appellate court.  Sometimes there is "settled law."  But some questions are open and others are contested.

This installment in the Legal Theory Lexicon takes a look at open and contested questions of law and contrasts these two categories with law that is settled or binding  As always, the the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

Open Questions of Law

What is an "open question of law"?  Let's start with a relatively simple example from an opinion by Judge Sweet of the United States District Court for the Southern District of New York.  The case involves a question about the application of the Fifth Amendment right against compelled self-incrimination in the context of private papers in light of binding precedent that addressed the application of the Fifth Amendment to business records.  Here is how Judge Sweet used the phrase "open question of law":

The Second Circuit has followed the Fisher–Doe analysis in In Re Proceedings before August 6, 1984 Grand Jury . . . and affirmed the district court's order directing the witness to produce a tape recording, found to be a business record, that the defendant had made of conversations between himself and others pursuant to an act-of production immunity order. . . . The Court of Appeals, however, expressly stated that the question of whether the Fifth Amendment protects the contents of private non-business papers had been left open in Fisher and remained open in this Circuit. Accordingly, to the extent the documents subpoenaed are non-business records, movant's motion to quash presents an open question of law.

In re Grand Jury Subpoena Duces Tecum Dated May 9, 1990, 741 F. Supp. 1059, 1064–65 (S.D.N.Y. 1990) (citations omitted and emphasis added).  From the perspective of the District Court judge, the question whether private non-business papers was open, because there was no controlling precedent on the question.

Open questions of law arise in the context of vertical stare decisis, where the question is whether a lower court is bound by the holding of the opinion of a higher courts, but they also can arise in the context of horizontal stare decisis.  For example, a three-judge panel of the Second Circuit could be faced with the same open question as was Judge Sweet--and so could the United States Supreme Court.  Unlike a District Court judge who is bound by precedent from the relevant Circuit and from the Supreme Court, the Supreme Court itself is not bound by horizontal stare decisis.

Nonetheless, there is an important difference between legal questions the Supreme Court has previously decided and those which are open, even when the court is one of last resort and does not consider itself bound by its own prior decisions.  At the very least, courts of last resort consider their own prior decisions to be presumptively valid, and they may go further and give them considerable "weight."

The question as to what constitutes a holding is the the subject of another entry in the Lexicon.  A question of law is open if it is not governed by a prior holding that has either vertical or horizontal stare decisis effect.

Contested Questions of Law

Contested questions of law are conceptually distinct from open questions.  A question of law is contested if it is the subject of current disagreement and dispute.  Importantly, questions of law may be contested, even though there is a controlling precedent from the relevant court of last resort.  For example, the constitutionality of the death penalty under the Eighth Amendment was actively contested by the Justices of the United States Supreme Court, both before and after Furman v. Georgia, a 5-4 decision that invalidated all the death penalty statutes that were in place at the time of the decision.  Some Justices believed that the death penalty was always unconstitutional; others believed that Furman was wrongly decided.  The Justices continued to disagree and dissent despite the fact that there was a controlling decision that bound the lower federal courts. When Furman was eventually  overruled, the question continued to be contested for some time.

If the law is contested, it is contested by some group.  For practical purposes, it matters very much who is contesting.  For example, if some question comes before the Supreme Court and is resolved by a nine to zero decision, the fact that a group of law professors or political pundits disagree may not have much practical significance.  But if the Supreme Court decides an issue by a five to four decision and the dissenting Justices continue to press their argument in subsequent cases, that fact has practical consequences.  Lawyers may continue to argument the point in their briefs to the Supreme Court, and the Justices may continue to argue and deliberate about the contested question.  Justices may change their minds or newly appointed Justices may tip the balance on the issue.

The contestedness of a question may vary over time.  Academic critics of the death penalty continue to press their points, but there is no active campaign by a group of Justices on the Supreme Court to overrule the decisions holding that the the death penalty is not per se unconstitutional.  By way of contrast, Roe v. Wade was actively contested by the Justices despite the fact that the Supreme Court has declined to overrule it on many occasions over a period of decades. Dobbs eventually overruled Roe, but the validity of Dobbs continues to be actively contested 

The Relationship Between Open and Contested Questions of Law

Some questions of law are neither open nor actively contested.  Such questions are settled in the fullest sense of "settled law."  Other questions are both open and contested: there is no controlling precedent and the relevant judges disagree about what the legal norm ought to be.  And yet other questions of law are open (there is no controlling precedent), but uncontested--all of the relevant judges agree about what the rule ought to be.  And finally, there are questions of law that are contested despite the fact that they are not open.

Settled Law

The distinction between open and contested questions of sheds light on another important concept--the notion of "settled law."  Because a question of law can be contested even if it is not open, "settled law" is not identical with the set of legal issues upon which there are controlling precedents.  Moreover, settled law can become "unsettled" if lawyers and judges begin to question the correctness of holdings that are binding (in the vertical stare decisis context).  The process of unsettling law is sometimes related to large movements in legal theory.  For example, if the Supreme Court's approach to statutory interpretation and construction shifts from a mixture of purposivism and intentionalism to textualism, then many questions of statutory interpretation that are not "open" may become "contested."

In addition, there may be settled law, even on questions that are technically open.  Consider an issue of law that has not been addressed by the Supreme Court or the Courts of Appeal.  Suppose that many District Courts have addressed the question and that they all come out the same way.  Remember, District Court decisions have no stare decisis--even within the district in which the decision was rendered.  Now add the fact that the question is uncontested; no one is arguing that all the District Courts have gotten it wrong.  The law on this question is settled--even though it involves an open question of law.

How Do Courts Decide Questions of Law that Are Both Open and Contested?

When the law is both open and contested, two things are true: (1) there is no controlling precedent and (2) there is a first-order disagreement about what the legal norm ought to be.  How are such questions resolved by courts?   Judges might vote their policy preferences--and surely they sometimes do.  But many judges believe that it is improper for a judge to resolve and open and contested question based on their personal preferences.  Such judges may resort to second-order legal theories to resolve first-order questions.  For example, if the open and contested question involves a statute, the judge might look to a theory of statutory interpretation and construction such as textualism, purposivism, or intentionalism.    In Similarly, if there is an open and contested question of constitutional law, the judge might look to the original public meaning of the constitutional text, on the one hand, or look to some form of living constitutionalism, on the other.

Of course, judges disagree about which second-order legal theories are best.  Some judges are statutory textualists, but others believe that they are bound by legislative intent; yet others attempt to discover the objective purpose of the statute.  Moreover, there are judges who are pragmatists or pluralists about statutory interpretation.  In other words, the question as to which second-order theory of statutory interpretation and construction is best is itself a contested question of legal theory.  And the same is true for second-order theories of the common law and of constitutional interpretation and constructions.

This fact is important for lawyers.  Lawyers almost always try to argue that their client is entitled to win on the basis of existing caselaw, but when there is an open and contested question of law, appeals to the cases and preexisting black-letter law will not suffice.  Good advocates recognize this fact, but it is not uncommon to read a brief that claims that an obviously open question of law was resolved in a prior case.

Moreover, the existence of open and contested questions of law might also be important to law students, who might be inclined to approach law school exams via the familiar IRAC formulate.  The problem arises at the "R" (rule) step, because if the exam includes an open and contested question of law, there is no "R"--no preexisting legal norm that resolves the question. 

Conclusion

Lawyers, law students, judges, and legal scholars all need the ability to recognize open and contested questions of law.  Of course, lawyers sometimes given advice about or litigate questions that are neither open nor contested and judges decide such questions.  For legal scholars, it is a bit different.  Traditional doctrinal scholarship--especially treatise writing--includes case crunching that synthesizes the black letter law.  But most modern legal scholarship that addresses first-order questions of law addresses questions that are open, contested, or both.

Related Lexicon Entries

• Legal Theory Lexicon 005: Holdings
• Legal Theory Lexicon 016: Positive and Normative Legal Theory
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 078: Theories of Statutory Interpretation and Construction

Bibliography

• G. Alexander Nunn* & Alan M. Trammell, Settled Law, 107 VA. L. REV. (forthcoming 2021).
  

(This entry was last modified on September 14, 2024.)

Legal Theory Bookworm: "Marx" by Leiter & Edwards

The Legal Theory Bookworm recommends Marx by Brian Leiter & Jaime Edwards.  Here is a description:

The writings of Karl Marx (1818–1883) have left an indelible mark not only on the understanding of economics and political thought but on the lives of millions of people who lived in regimes that claimed (wrongly) his influence. Trained as a philosopher and steeped in the thought of Hegel, Marx turned away from Hegelian philosophy after 1845 towards a philosophy that incorporated economics and history. It is this Marx that endures and to which this outstanding introduction is devoted.

Jaime Edwards and Brian Leiter begin with an overview of Marx's life and intellectual development, including his early years as a journalist in Germany before his exile in London. They then introduce and assess the fundamental elements of Marx’s thought:

Marx’s theory of history and historical change (historical materialism)
class conflict, the state, and the Communist revolution
Marx’s theory of economics, especially the labour theory of value, and his prediction of the collapse of capitalism
the nature and role of ideology in Marx’s thought
Marx’s theory of human nature and the good life, including his arguments concerning alienation
Marx’s legacy and influence, including Western Marxism, the Frankfurt School, and “feminist Marxism”.
Including annotated further reading suggestions at the end of each chapter and a glossary of technical terms, this is an indispensable introduction to Marx's philosophical thought. It will also be extremely useful to those in related disciplines such as politics, sociology, history, and political economy.

And from the reviews:

"A tour de force. Not only the best available introduction to Marx’s thought and to post-Marx Marxist theories, but also of interest to specialists. The organization is excellent, and the writing is always clear and jargon-free. It covers all the main topics that a book on Marx should address. It is remarkably fair and balanced, sympathetic to Marx’s ideas, but also appropriately critical of them." - Allen Buchanan, Duke University, USA

"A philosophical introduction to Marx which manages to be genuinely accessible without avoiding controversy or consigning its subject to history. Edwards and Leiter bring Marx into a productive conversation with current work in the social sciences in order to develop and defend distinctive accounts of his views on history, ideology, and capitalism. A very welcome addition to the literature." - David Leopold, University of Oxford, UK

Download of the Week: "Contract as Exchange" by Bagchi

Aditi Bagchi (Fordham University School of Law) has posted Contract as Exchange (113 California Law Review (forthcoming 2025)) on SSRN. Here is the abstract:

Most people agree that the institution of contract serves autonomy—or it should. But how? Philosophical theories of contract link contract and autonomy by way of an appealing intermediate principle such as the authority of the individual will, promissory morality or conventions of agreement. However, each of these theories is focused on the mental and verbal acts surrounding contract and is thus at odds with both contract as a social practice and contract law. The theories fail to account for basic features of modern contracting such as anonymity, mass scale and market determination of contract terms; facts to which both the common law and statutory regulation have long adjusted. The so-called objective theory recommends an outward turn, but it has been reduced to an epistemic constraint that reflects the limits of communication and evidence; it did not achieve the expansion of perspective that it promised.

In this Article, I propose a different approach. “Contract as exchange” emphasizes what people are trying to do when they contract. Contracting parties do not will, promise or agree for the sake of will, promise or agreement; their objectives in contract are material. Contract as exchange links autonomy to contract by way of the latter’s capacity to get people what they want from complete strangers using the mechanism of exchange. The institution of contract serves the principle of autonomy but, on this view, its contribution is contingent, not inevitable. Contract succeeds as an institution when all members of the political community can access the market to exchange their entitlements for ones that they prefer, thereby securing the cooperation of others for their own projects while contributing to the projects of others. Contract fails to promote autonomy when people face barriers to access or when their encounters with the market go so badly that their life plans are derailed.

Highly recommended. Download it while it's hot!

Noe on Loper Bright and Cost-Benefit Analysis

Paul Noe has posted Loper Bright and the Ascendancy of the Cost-Benefit State on SSRN. Here is the abstract:

The Supreme Court's overturning Chevron deference in Loper Bright Enterprises v. Raimondo launched an earnest debate about its implications. Understandably, the focus was the expected impact of its standard for judicial review of agency statutory interpretations on agency win rates, with some legal scholars predicting that "respectful consideration" (applying Skidmore) would not change the outcome in most cases. One issue that has not received the attention it deserves, however, is that Loper Bright also significantly advanced what leading legal scholars, particularly President Obama's former regulatory czar, call the "cost-benefit state"-the principle that "government regulation is increasingly assessed by asking whether the benefits of regulation justify the costs of regulation."

Grewal on Review of Tax Regulations

Andy Grewal (University of Iowa - College of Law) has posted Tax Regulations After Loper Bright on SSRN. Here is the abstract:

After decades of uncertainty, the Supreme Court, in Mayo v. United States, finally resolved a conflict over the proper deference standard for tax regulations. The Chevron doctrine, not the National Muffler doctrine, would govern whether a tax regulation properly interpreted a statute.

This period of calm would last for only a little over a decade. Through Loper Bright, the Court has now killed any form of judicial deference to agency regulations. Loper Bright upsets not only Chevron, but nearly a century’s worth of tax-specific precedents that extended deference to Treasury regulations.

This Article, prepared for the Michigan State Law Review’s Tax & Policy Symposium, explores the new administrative review framework for tax regulations. It divides the analysis between general authority and specific authority regulations. They will now face markedly different review standards. Though the sky will not fall, the new review frameworks pose difficult interpretive challenges that will take decades to resolve.

Huneeus on the Inter-American Court and Climate Justice

Alexandra Valeria Huneeus (University of Wisconsin Law School) has posted Can the Inter-American Court Tip Us toward Climate Justice? (Latin American International Law in the Twenty-First Century (Alejandro Chehtman, Alexandra Huneeus and Sergio Puig, eds, Oxford University Press, Forthcoming)) on SSRN. Here is abstract:

This chapter, from the book "Latin American International Law in the Twenty-First Century" begins by explaining the legal opportunity structure of the Inter-American Court in comparison to the three other international courts being called to issue judgments on the climate emergency. The second section highlights the features of the jurisprudence of the Inter-American Court that will be relevant to the climate docket. The third advances a prescription for the Court as it approaches its climate docket over the coming years. The chapter concludes with reflections on the unique historical role of Latin American human rights law in addressing structural injustice and economic and social rights, and how this can shape its future in the new climactic regime.

Hathaway, Khan, & Revkin on Dual-Use Objects and International Humanitarian Law

Oona A. Hathaway (Yale University - Law School), Azmat Khan (Columbia University), & Mara Redlich Revkin (Duke University School of Law) have posted The Dangerous Rise of "Dual-Use" Objects in War on SSRN.  Here is the abstract:

Each day, the news brings new stories of military attacks on schools, hospitals, apartment buildings, electrical facilities, and other critical civilian infrastructure. The militaries attacking these objects often seek to justify the attacks by claiming that they are being used by militants. Sometimes called “dual-use” objects because they have both military and civilian uses—these objects are said to have lost their protection from attack under international humanitarian law because of their military use. Though the term has become common, international law does not recognize “dual-use” objects as a formal legal category. Indeed, a critical innovation of the post-war Geneva Conventions that lie at the core of modern international humanitarian law was to establish a bright line between “military objectives,” which were deemed legitimate targets of military force, and civilians and “civilian objects,” which were to be strictly protected. That bright line distinction meant new and important protections for civilians in war.

We show in this Article that the gradual rise of the idea of “dual-use” objects over the last several decades has blurred this line, placing civilians at great risk. The United States has played a critical role in the rise of “dual use” targeting. Indeed, most accounts of the origins of the concept of “dual use” targeting start with the 1991 Gulf War, in which the U.S.-led coalition’s response to Iraq’s occupation of Kuwait included airstrikes on Iraq’s electrical infrastructure and bridges. The Article reviews the history of dual-use targeting and presents an original dataset and primary source evidence from the sites of U.S. airstrikes in Iraq and Syria to illustrate the wide range of “dual-use” objects that the U.S. military has targeted, whether deliberately or not. It draws on ground reporting and research to show the true costs of this dual use targeting for civilians living in areas of conflict. The United States is far from alone in targeting dual-use objects, but the Article focuses its analysis on the United States because it plays an outsized role in shaping the law of armed conflict as a result of its capacity to project force around the world, its efforts to provide legal justifications for its use of force, and its role in setting the standards by which other states are measured. Finally, this Article offers recommendations for reforms to better protect civilians during war and prevent further erosion of the foundational principles of modern international humanitarian law.

Simon on Gatekeeping Drugs

David A. Simon (Northeastern University School of Law) has posted Gatekeeping Drugs on SSRN. Here is the abstract:

How much evidence should pharmaceutical manufacturers be required to provide before they can market new drug? With drug costs ballooning to over $500 million and marketing approval decisions increasingly contested, scholars have reached two conflicting views. Public-health scholars tend to think high evidentiary standards overseen by a strong governmental gatekeeper are important to medical progress and protecting consumers while pro-market scholars view them as impediments to innovation and a threat to public health. This Article shows these seemingly diametrically opposed views can be married using an existing system that reimburses certain unapproved uses of approved drugs-so-called off-label uses-based on evidence that they work. In these cases, reimbursement acts like an initial gatekeeper with respect to certain unapproved uses by "approving" them through payment. This system of off-label approval, therefore, resembles one that pro-market scholars desire: drug approval regulates drug entry to the market and reimbursement regulates (unapproved) drug use once on the market. Extending this system across all drug regulation reveals that changing drug approval standards has benefits and costs that both pro-market and public-health scholars have not fully considered. It demonstrates that the potential benefits of changing drug approval are difficult to predict given the costs imposed by significantly disrupting the existing drug ecosystem. This suggests reform to drug approval should be methodical, carefully controlled, and measured.

Hornuf, Momtaz, Nam, & Yuan on Cybercrime on the Ethereum Blockchain

Lars Hornuf (Technische Universität Dresden; CESifo (Center for Economic Studies and Ifo Institute)), Paul P. Momtaz (Technische Universität München (TUM) - TUM School of Management; University College London Center for Blockchain Technologies; CESifo (Center for Economic Studies and Ifo Institute)), Rachel J. Nam (Goethe University Frankfurt), & Ye Yuan (TUM School of Management,Technical University of Munich) have posted Cybercrime on the Ethereum Blockchain on SSRN. Here is the abstract:

We examine how cybercrime impacts victims' risk-taking and returns. Our difference-indifferences analysis of a sample of victims and matched non-victims is in line with prospect theory and suggests that victims increase their long-term total risk-taking after losing part of their wealth. Victims also earn lower risk-adjusted returns in the post-cybercrime period. Victims' long-term total risk-taking increases because they increase diversifiable risk in the long term. The increased diversifiable risk correlates with victims' withdrawal from altcoins after cybercrime. At the same time, the reduction in risk-adjusted returns correlates with increased trading activity and churn, due plausibly to managing cybercrime exposure. In the cross-section of Ethereum addresses, we show that the most affluent victims take a systematic approach to restore their pre-cybercrime wealth level, while the least affluent victims turn into gamblers. Finally, a parsimonious forensic model explains a good part of the addresses' probability of being involved in cybercrime, on both the victim and the cybercriminal side.

Shrivastava on Metadata Collection by Law Enforcement in India

Abhijeet Shrivastava (University of Cambridge) & Rudraksh Lakra (O. P. Jindal Global University, Jindal Global Law School (JGLS)) have posted Confronting the Metadata Dilemma in India: a Turn to Context and Proportionality (International Journal of Law and Information Technology, Volume 32, Issue 1, 2024) on SSRN. Here is the abstract:

This paper problematizes the increasing trend of metadata collection by law enforcement, in light of the 'going dark' debate, which was spurred by the widespread adoption of secure encryption standards. Focusing on Indian privacy law, which remains nascent as of writing, we examine and propose potential constitutional limitations on metadata collection, and provide substantive guidance on their application. These limitations are bifurcated into two stages: first, whether metadata collection infringes upon the right to privacy, and second, whether the infringement is justified. In determining whether the collection of metadata in a specific case infringes privacy, we conceive of a 'contextual approach', challenging the usual ontological subordination of 'metadata' in relation to 'content data'. At the second stage, we centre the standard of proportionality. We offer substantive guidance for Indian courts at each step of the test, including the development of a 'risk profile' of metadata collection practices. Such guidance is crucial, given the technically intricate nature of cases involving metadata processing.

Leider on the Individual Right To Bear Arms For Common Defense

Robert Leider (George Mason University - Antonin Scalia Law School) has posted The Individual Right To Bear Arms For Common Defense on SSRN. Here is the abstract:

The fundamental Second Amendment debate has reached a stalemate. On the one side are those who believe that the Second Amendment secures an individual right to keep and bear arms for self-defense against crime. On the other are those who consider the right to bear arms to be a collective right to maintain a militia. But there is a third theory of the right to bear arms--a theory that was once generally agreed upon but has largely been forgotten: the right to bear arms is an individual right for common defense. This Article explains this theory and defends why it is sounder than either collective-right theories or the individual-right theories that have emerged in federal courts after Heller, which are focused exclusively on individual self-defense against crime.

Sobkowski on the Unitary Executive Theory

Patrick J. Sobkowski (Marquette University) has posted The Unitary Executive Theory: A Path Forward on SSRN. Here is the abstract:

The Unitary Executive Theory has inspired debate for nearly half a century. The meaning of Article II of the Constitution has been debated within the academy, the courts, Congress, and the Executive Branch. The Supreme Court has substantially written the theory into the Constitution, and legal scholars have taken to supporting or critiquing such decisions, largely resorting to legal history and originalism. Unitary Executive Theory projects abound.

At the same time, political scientists have done important empirical work in bureaucratic politics and the separation of powers. These scholars have shown that the picture is more complicated than the text of the Constitution admits. Indeed, the literature suggests the president is able to exercise substantial influence over policymaking, whether an agency is independent or not. This Article provides a review and synthesis of the competing scholarly methodologies for interpreting Article II and its support for the Unitary Executive Theory. It concludes by arguing for a more sophisticated, interdisciplinary approach to questions of executive power and competing interpretations of that power. The best approach is to consider not only text and original meaning, but also the literature on bureaucratic and presidential politics.

Highly recommended.

Andrias & Sachs on Law and Organizing

Kate Andrias (Columbia University - Law School) & Benjamin I. Sachs (Harvard Law School) have posted The Chicken-and-Egg of Law and Organizing: Enacting Policy for Power Building (Columbia Law Review, Vol. 124, No. 3, 2024) on SSRN. Here is the abstract:

In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable social-movement organizing by poor and working-class people. But there’s a problem. Enacting laws to facilitate social-movement organizing requires social movements already powerful enough to secure enactment of those laws. Hence, a chicken-and-egg dilemma plagues the relationship between law and organizing: power- building laws may be needed to facilitate social-movement growth, but social-movement growth seems a prerequisite to enactment of power- building laws. This Essay examines the chicken-and-egg puzzle and then offers three potential solutions. By engaging in disruption, shifting political jurisdictions, and shifting from one branch of government to another, organizations of poor and working-class people can enact laws to enable the construction of countervailing power.

Highly recommended.

Ferguson on AI Assisted Police Reports

Andrew Guthrie Ferguson (American University Washington College of Law) has posted AI-Assisted Police Reports and the Challenge of Generative Suspicion on SSRN. Here is the abstract:

Police reports play a central role in the criminal justice system. Many times, police reports exist as the only official memorialization of what happened during an incident, shaping probable cause determinations, pretrial detention decisions, motions to suppress, plea bargains, and trial strategy. For over a century, human police officers wrote the factual narratives that shaped the trajectory of individual cases and organized the entire legal system.

All that is about to change with the creation of AI-assisted police reports. Today, with the click of a button, generative AI Large Language Models (LLMS) using predictive text capabilities can turn the audio feed of a police-worn body camera into a pre-written draft police report. Police officers then fill-in-the blanks of inserts and details like a “Mad Libs” of suspicion and submit the edited version as the official narrative of an incident.

From the police perspective, AI-assisted police reports offer clear cost savings and efficiencies from dreaded paperwork. From the technology perspective, ChatGPT and similar generative AI models have shown that LLMs are good at predictive text prompts in structured settings, exactly the use case of police reports. But hard technological, theoretical, and practice questions have emerged about how generative AI might infect a foundational building block of the criminal legal system.

This Article is the first law review article to address the challenge of AI-assisted police reports. The Article first interrogates the technology, providing a deep dive into how AI-assisted police reports work. Promises around innovation are countered by concerns around how the models were trained, questions around error, hallucinations, and bias in transcription, and how the final police report will be impacted by the generative prompts. Issues around structure, timing, legal gap-filling, and factual gap-filling are all addressed, with an eye toward comparing this innovation to existing human report writing.

The Article also addresses the bigger theoretical question about the role of the police report. The Article contrasts two visions of a police report: a narrow, instrumental vision of a police report and a broader, accountability vision of a police report. The goal is to show how a change in technology might also change the traditional role of the police report.

Finally, the Article explores how AI-police reports will alter criminal practice especially in misdemeanor and low-level felony cases where investigation and grand jury action is minimal. A police officer’s determination of what happened as a factual and legal matter directly impacts initial prosecutorial charging decisions and judicial pretrial detention decisions. In addition, the police report influences plea bargains, sentencing, discovery obligations, and trial practice. The open question is how reliance on AI-generative suspicion will distort the foundation of a legal system dependent on the humble police report.

Ungerer on Legislatively Liquidated Damages

Johannes Ungerer (University of Oxford - Institute of European and Comparative Law; University of Notre Dame - Notre Dame Law School) has posted Legislatively Liquidated Damages (Legiliquids) (Forthcoming in the Law Quarterly Review, 2025) on SSRN. Here is the abstract:

Legislatively liquidated damages (legiliquids), which are predetermined amounts of damages prescribed by the lawmaker, are a regulatory instrument in private law with unique characteristics and effects. Legiliquids have not been explored in English legal scholarship to date. Based on the analysis of the illustrative provisions on late payment and air passenger compensation, this article presents a conceptual definition of legiliquids and delineates them from US statutory damages. It is argued that the lawmaker prescribes legiliquids for particular breaches of contract which are both frequent and similar in kind as well as micro- and macro-economically critical, but uncontrollable by private contractual and market mechanisms. The article reveals the core characteristics of legiliquids and the doctrinal divergences from both orthodox damages law as well as contractually liquidated damages. It is further shown that legislatively liquidated damages increase procedural efficiency and have a behavioural steering effect.