Legal Theory Blog

Foka-Kavalieraki & Hatzis on the Foundations of a Market Economy

Yulie Foka-Kavalieraki and Aristides N. Hatzis (University of Athens, Department of Philosophy & History of Science and University of Athens - Department of Philosophy & History of Science) have posted The Foundations of a Market Economy: Contract, Consent, Coercion (European View, Vol. 9, No.1, pp. 29-37, June 2009) on SSRN. Here is the abstract:

This article shows how contracts are the institutional foundation of a market economy. Contracts create wealth, allocate risk and are based on consent. There is no perfect competition and the markets are characterized by a number of failures; therefore, contracts are not perfect. However, the existence of these failures does not undermine the importance of contract and consent. A common critique of the market economy is that most transactions are based on some form of coercion. The authors try to address this misconception by showing that a contract is the result of coercion not in cases where a choice is hard for a party but when it offers a choice the party does not want to have.

Levy & Glicksman on Preemption & Collective Action

Richard E. Levy and Robert L. Glicksman (University of Kansas - School of Law and George Washington University - Law School) have posted Access to Courts and Preemption of State Remedies in Collective Action Perspective (Case Western Reserve Law Review, Vol. 59, No. 4, pp. 1-35, 2009) on SSRN. Here is the abstract:

Preemption of common law remedies for individual injuries such as harm to health raises fundamental questions about the proper allocation of authority between the federal and state governments and about the role of courts in interpreting statutes and providing remedies for those who suffer injuries. Developing a workable framework for analyzing what we call “remedial preemption” issues can help to ensure an appropriate accommodation of the federal and state interests at stake and promote consistent application of preemption doctrine to state judicial remedies.

This article applies a “collective action” framework for preemption analysis to the issue of remedial preemption. Our analysis suggests that while remedial preemption may be justified in some cases, courts should not lightly infer remedial preemption unless: (1) a primary purpose of the federal law is to ensure uniform standards to promote free movement of goods, prevent the export of regulatory burdens by “downstream” states, or solve a not-in-my-backyard problem; and (2) there is strong evidence that state judicial remedies (as opposed to direct state regulation through legislation or the actions of administrative agencies) would interfere with the achievement of those goals. In addition, we conclude that preemption of one common law cause of action does not necessarily warrant preemption of different causes of action for remediation of the same injury. Finally, we argue that courts should be especially reluctant to read the preemptive effect of federal law so as to leave injured persons without any remedy whatsoever. In doing so we pay particular attention to the ways in which state judicial remedies differ from state regulation by means of statutes or administrative rules, including the differences between legislatures and courts, between legislative rules and judicial decisions, and among possible preemptive effects on judicial remedies. We conclude by analyzing how the Supreme Court’s 2009 holding in Wyeth v. Levine that state tort remedies based on failure-to-warn claims were not preempted by federal regulation of the content of warning labels for drugs comports with our analysis.

Aronson on Judicial Review by Inferior Courts

Ori Aronson (Harvard Law School) has posted Inferiorizing Judicial Review: Popular Constitutionalism in Trial Courts (University of Michigan Journal of Law Reform, Forthcoming) on SSRN. Here is the abstract:

The ongoing debates over the legitimacy of judicial review as well as the evolving school of thought called ‘popular constitutionalism,’ are characterized by a preoccupation with the Supreme Court as the embodiment of judicial power. This is a striking shortcoming in prevailing constitutional theory, given the fact that in the U.S., inferior courts engage in constitutional adjudication and in acts of judicial review on a daily basis, in ways that are importantly different from the familiar practices of the Supreme Court. The article breaks down this monolithic concept of ‘the courts’ by shifting the focus to the lower levels of the judicial system. Trial court adjudication is revealed to hold a unique transformative potential for constitutionalism: the possible enhancement of civic participation, public deliberation, and value pluralism in the process of creating constitutional meanings.

The article presents an argument for ‘inferiorizing’ judicial review, i.e., relegating the power of judicial review to the federal district courts, and removing the Supreme Court from this practice. The ‘inferiorizing’ model – a procedurally simple, though conceptually radical, jurisdictional shift – is shown to have a redeeming potential for judicial review as a democratically legitimate means of enforcing constitutional rights; while at the same time providing a robust institutional setting for the exercise of popular constitutionalism. Although it would be very difficult to bring about a full inferiorizing shift in constitutional adjudication, the article exposes the possibilities for democracy-enhancing institutional innovation; these possibilities become available to constitutional actors once the institutional diversity of courts is recognized.

Phillips & Carter on the Gender of Oralists & Justices in the Roberts Court

James Cleith Phillips and Edward Carter (University of California, Berkeley - School of Law and Brigham Young University) has posted Gender and U. S. Supreme Court Oral Argument on the Roberts Court: An Empirical Examination of the Sotomayor Hypothesis on SSRN. Here is the abstract:

The nomination and confirmation of Justice Sonia Sotomayor to the U. S. Supreme Court rekindled the debate surrounding gender and judicial behavior and decision making. While numerous studies have looked at the potential influence of a judge’s gender on voting patterns, there has been no scholarship to date investigating how the interaction of a Justice’s gender and an attorney’s gender, after controlling for other factors, influences judicial behavior during oral argument. This study empirically explores gender and oral argument by content analyzing over 13,000 sentences from 57 oral arguments during 2004-2009, measuring Justices’ levels of information-seeking and word counts. Statistical analysis of the individual Justices showed that having the same gender as the arguing attorney did influence judicial behavior for some of the Court. Furthermore, ideology also interacted with gender matching in a fairly consistent partisan divide.

Symeonides on Tort Conflicts in Orgeon

Symeon C. Symeonides (Willamette University - College of Law) has posted Oregon's New Choice-of-Law Codification for Tort Conflicts: An Exegesis (Oregon Law Review, Vol. 88, 2010) on SSRN. Here is the abstract:

This Article discuses Oregon’s new choice-of-law codification for torts and other non-contractual claims, which went into effect on January 1, 2010. This the first codification of this interesting but difficult subject in a common-law state of the United States, and the second one after the 1991 codification of the civil-law state of Louisiana. The author has served as the principal draftsman of both codifications.

Although the process of drafting the Oregon codification took considerable and respectful account of the experience of other countries, the codification is based primarily on the American experience since the choice-of-law revolution. Indeed, it is a codification of the solutions developed by American courts in the last fifty years.

The codification seeks an appropriate equilibrium between the competing values of certainty and flexibility. It provides certainty through specific rules that clearly designate the applicable law in several patterns of cases, but only those cases for which the case law has produced fairly uniform and uncontroversial solutions. It also provides a good measure of flexibility by: (1) relegating the remaining cases or issues to a flexible approach that merely lays down parameters for judicial choice rather than prescriptions of specific results; and (2) providing three escape clauses authorizing courts to deviate from the pre-designated law in appropriate cases.

The codification is reproduced in an Appendix at the end of the Article.

Zimmer on Ricci v. Stefano

Michael J. Zimmer (Loyola University Chicago School of Law) has posted Ricci’s Color-Blind Standard in a Race Conscious Society: A Case of Unintended Consequences? on SSRN. Here is the abstract:

In Ricci v. DeStefano, the Supreme Court in an opinion by Justice Kennedy ruled that, as a matter of law, the City of New Haven had committed intentional disparate treatment discrimination that violated Title VII by deciding not to use the results of a test given to promote firefighters to openings as lieutenants and captains. The decision has already drawn significant and interesting commentary. This article will principally focus on the threshold issue of disparate treatment law, on which the Court spent little time, rather than on the disparate impact issues on which the Court spent most of its opinion. The thesis of this article is that it is possible that a conservative majority of the Supreme Court inadvertently may have opened new possibilities for civil rights advocates representing women and minority group men, the groups for whose protection antidiscrimination statutes were enacted in the first place. The obvious and powerful empathy the majority felt for the Ricci plaintiffs may have caused a majority of the Court to leap to the finding of discrimination that the result transforms disparate treatment law to now make it easier for all plaintiffs to prove their cases. In short, the Court appears to have established essentially a “color-blind” standard of disparate treatment liability for Title VII. This new standard allows a civil rights plaintiff to prove her disparate treatment case by proof that (1) the defendant knew the racial or gender consequences of its decision and (2) it then made that decision in light of that knowledge which made the decision “because of race” and (3) the plaintiff suffered an adverse employment action. Accepting that the City’s motivation for its action was to avoid disparate impact liability to minority group test takers, the fact that the City acted benevolently as to some of the members of all three racial groups affected was irrelevant to liability to one group, the Ricci plaintiffs, who were adversely affected by the decision even though the decision was in spite of their race, not because of it. Justice Kennedy recognized an exception to the Ricci “color-blind” theory when an employer takes into account the potential racial effect of an employment practice while that practice is in the design phase, before it is finalized for use.

Speta on FCC Regulatory Jurisdiction & Net Neutrality

James B. Speta (Northwestern University - School of Law) has posted The Shaky Foundations of the Regulated Internet (Journal of Telecommunications and High Technology Law, Vol. 8, No. 1, 2010) on SSRN. Here is the abstract:

The Federal Communications Commission's order directing Comcast to cease certain traffic management techniques in the name of network neutrality adopted a very strong theory of the FCC's regulatory jurisdiction over the Internet. This article offers three responses: (1) Briefly reviewing the theory of the FCC's "ancillary jurisdiction" and the theory offered in the Comcast order, the article concludes that the FCC's ancillary jurisdiction cannot be as broad as the agency asserted - for the agency claimed the power to regulate any aspect of Internet service, including price and quality of service. Because "ancillary jurisdiction," however broad, simply cannot be as broad as the FCC's nearly plenary authority over common carriers (as the FCC itself had previously recognized), the Comcast order states an untenable theory of regulatory power. (2) Although a rigorous administrative law analysis would conclude that the FCC does not have any "ancillary jurisdiction," that conclusion is foreclosed by Supreme Court precedent, both generally and by a specific dicta that the FCC has some ancillary authority over the Internet. The article concludes that the FCC's ancillary authority can be reasonably interpreted and rationally cabined - giving the FCC jurisdiction over Internet carriage of Title II and Title III services, meaning, for example, that the FCC has jurisdiction to regulate Internet carriers' treatment of "interconnected VOIP," as in fact the FCC has done. (3) Finally, the article offers a structure for conferring on the FCC an appropriate degree of regulatory authority over the Internet, through appropriate legislation. Because current antitrust doctrine struggles with the sorts of issues that might arise in the Internet, the FCC should have authority to enjoin unfair competition practices, when committed by Internet carriers offering public services (and at the retail level). This authority would be broad enough to cover the practices alleged in the Comcast case, but only if the FCC were to follow the substantive requirements of an unfair competition analysis (as it did not).

Shatz on Abstience Education

Naomi R. Shatz (New York Civil Liberties Union) has posted Unconstitutional Entanglements: The Religious Right, the Federal Government, and Abstinence Education in the Schools (Yale Journal of Law & Feminism, Vol. 19, p. 495, 2008) on SSRN. Here is the abstract:

This article argues that current federal funding for abstinence-only sex education violates the Establishment Clause. Previous establishment clause challenges to the abstinence-only education system focused either on overt religious messages included in curricula or on federal funding going to religious groups to teach abstinence-only education. These challenges have ignored the religious history of abstinence-only education and the particular religious values that are endorsed by even the allegedly "secular" curricula. This article demonstrates that the current funding of abstinence-only education violates the Supreme Court's test for religious neutrality as set forth in Lemon v. Kurtzmann.

Sidhu on Judicial Review as Soft Power

Dawinder S. Sidhu (Center for Justice, Law & Society) has posted Judicial Review as Soft Power: How the Courts Can Help Us Win the Post-9/11 Conflict (American University - National Security Law Brief) on SSRN. Here is the abstract:

The American military efforts in Afghanistan and Iraq are not yielding desired results and, even assuming they were, such military success would not be sufficient to prevail in the war against transnational terrorism. The United States must engage in the battle of hearts and minds in order to achieve meaningful safety and a lasting respite from the specter of terrorist activity. To participate in this more intangible, intellectual battle, the United States will need to utilize its "soft power," or its ability to draw nations or peoples towards its policy preferences through attraction, as distinct from "hard power," in which foreign conduct is shaped by military or economic coercion. The question becomes what soft power resources are available to -- and may be credibly invoked by -- the United States?

This Article argues that the American constitutional design, particularly its commitment to the rule of law, is an aspect of soft power that, if communicated externally, will attract moderate Muslims and others to American interests and help quell the reach and appeal of terrorists bent on destroying the United States. Such "legal soft power" will resonate with the international audience only if we adhere to fundamental American principles in actuality -- they must be more than mere platitudes. Accordingly, I suggest that the Supreme Court's robust evaluation of individual rights claims in the post-9/11 context demonstrates that the judiciary has been faithful to the rule of law even in times of national crisis and stress. It is not the outcomes that necessarily shows this, but the genuine process within which federal actions may be challenged.

If it is the case that the rule of law may be an element of soft power conceptually and that the judicial decisionmaking has honored it in practice, then it would benefit American national security interests if others in the world were made aware of the American constitutional scheme, one of separation of powers and judicial review, and the Supreme Court's fidelity to the Constitution in times of war. Such information may make it more likely that other nations and peoples will be attracted to American interests. In an odd sense, the judicial branch may be a positive instrument of foreign policy and a beneficial tool in America's current war -- even if it strikes down executive or legislative actions in the government's prosecution of the war itself.

Orbach on the Image Theory of Resale Price Maintenance

Barak Y. Orbach (University of Arizona) has posted The Image Theory: RPM and the Allure of High Prices (Antitrust Bulletin, 2010) on SSRN. Here is the abstract:

A century of debates over resale price maintenance (“RPM”) has generated hundreds of articles that develop a handful of theories. This Article introduces a new theory – “the image theory,” which builds on one of the oldest – yet neglected – explanations that manufacturers offer for RPM: uniform retail prices for branded goods maintain the product exclusive image, thereby alluring consumers and increasing revenues.