Legal Theory Blog

Hoelle on Natural Law & the U.S. Constitution

John C Hoelle (University of Colorado at Boulder) has posted The Virtue of a Natural Law Reading of the U.S. Constitution (Consortium, 2011) on SSRN. Here is the abstract:

Natural law was arguably fundamental to the U.S. Constitutional project: the Framers apparently assumed courts would interpret and apply unwritten natural law concepts alongside the enacted provisions of the document. However, since the early 19th Century judges have sought to ground all decisions on specific text in the Constitution. Not only is this inconsistent with the intent of the Framers, it makes for bad adjudication. Fortunately, I believe philosophy and custom can be marshaled on the side of re-introducing judicial appeal to natural law.

Philosophically, the fact that the positivist conception of law has no connection to ethics or natural law principles makes it ontologically bankrupt - unlike natural law, positive law has no ontological validity at its core. Natural law is also inherently primary to positive law - in the sense that moral imperatives shape positive law, and in the sense that interpreting positive law requires higher guiding principles. The existence of a long-standing custom of judicial appeal to natural law provides an ethical basis for judicial creativity in protecting rights that flow from natural law principles.

As to a model framework, I argue that judges are competent to apply a range of faculties in ascertaining our society’s moral true north. I offer that virtue ethics, and specifically the venerable tradition of the middle path - the doctrine of the mean - can provide a framework which holds promise as a universal principle that can assist us in re-evaluating and re-creating our fundamental law as our social experiment in the United States develops.

Ryan on Federalism & Multijurisdictional Governance

Erin Ryan (Lewis & Clark Law School) has posted Federalism and the Tug of War Within: Introduction (Oxford University Press, 2012) on SSRN. Here is the abstract:

"Federalism and the Tug of War Within" explores how constitutional interpreters struggle to reconcile the competing values that undergird American federalism, with real consequences for governance that requires local and national collaboration. Drawing examples from the response to Hurricane Katrina, climate governance, health reform, nuclear waste, and other problems that implicate both state and federal authority, it shows how federalism theory can inhibit effective multijurisdictional governance by failing to navigate the tensions within federalism itself.

The book argues that American federalism is best understood through the “tug of war” between the good-governance principles that dual sovereignty fosters — including checks and balances, accountable governance, local autonomy, and interjurisdictional synergy. Instability in the Supreme Court’s federalism jurisprudence reflects its ongoing attempt to reconcile the tension through successive theories of federalism, each privileging different values in the federalism constellation. It traces federalism’s internal struggle through history and into the present, critiquing the Rehnquist Court and Tea Party’s embrace of greater jurisdictional separation, the limits of New and Cooperative Federalism approaches, and the growing disjuncture between federalism theory and practice.

The book then outlines a Balanced Federalism alternative, mediating federalism’s tensions on three separate planes: (1) fostering balance among the competing federalism values, (2) leveraging the functional capacities of all three branches of government in interpreting federalism, and (3) maximizing the wisdom of both state and federal actors in so doing. It articulates distinct judicial and political roles in navigating jurisdictional overlap, including strong and weak judicial constraints in Tenth Amendment contexts and deference to intergovernmental bargaining. Forging new territory in the federalism safeguards debate, it provides theoretical justification for the political safeguards already in operation while preserving a role for judicial review. The resulting dynamic model fosters a healthier dialectic between the core principles and functional capacities that — though in tension — have made the American system of government so effective and enduring.

A late draft of the introduction is available for download on this page. The introduction outlines the questions the book addresses, charts the course of the discussion, and introduces its theoretical approach. It lays out the book’s central argument that federalism is best understood not just in terms of the conflict between states’ rights and federal power, or the debate over judicial constraints and political process, or even the dueling claims over original intent — but instead through the inevitable conflicts that play out among federalism’s core principles. It reviews the interpretive federalism quandaries that have preoccupied jurists over the years, including what level of government should trump in different policy-making arenas, which branch of government should make those calls, and the purpose of dual sovereignty in the first place. It introduces the Tenth Amendment and environmental and land use law as ideal laboratories for the analysis, and explains how the book’s argument proceeds through its Four Parts. Finally, it situates the Balanced Federalism proposal within the overall federalism safeguards debate and the emerging dynamic federalism literature.

Guiora on the Case for Intervention in Syria

Amos N. Guiora (University of Utah - S.J. Quinney College of Law) has posted Intervention in Libya, Yes; Intervention in Syria, No: Deciphering the Obama Administration on SSRN. Here is the abstract:

Deciphering an American presidential administration is truly yeoman’s work. Whether the Obama Administration is significantly distinct from previous administrations is too early to judge. Arguably, the task should be left to historians. Nevertheless, even a casual perusal of President Obama’s Middle East policy (perhaps best described as "policy") reflects a combination of naiveté, inconsistency and murkiness. While perhaps by design, the impact — on the ground — is deeply troublesome. While domestic political considerations are a reality, the implications of the Administration’s policy in an area of the world as treacherous as the Middle East are, potentially, staggering.

Precisely because international law does not articulate either normative or architectural standards as to when international humanitarian intervention is justified, national leaders arguably have a responsibility to act. The oft-cited phrase "when the cannons roar, the muses are silent" is particularly relevant to this discussion. For a variety of reasons, the international community has determined — whether actively or passively — that the massacre of the Syrian population by the Assad government does not justify international humanitarian intervention. While the human rights violations occurring on a daily basis do not compare to the horrors of Rwanda, Kosovo, or Sierra Leone they are not less compelling than the events transpiring in Libya. If, by metaphorical analogy, the international community is the cannons and the U.S. is the muse, does that mean that the Obama Administration is required to be silent? After all, if the quote were to be rigorously applied, then many of the institutions created to minimize human suffering would neither exist, much less function in wartime. While the distinction — from the perspective of international humanitarian intervention — between Libya and Syria is as unclear, as are the criteria that justify intervention, that must not serve as a misguided basis for the Obama Administration to largely turn its back on the Syrian people.

Recommended.

Posner & Weyl on Limiting Speculation on Derivatives

Eric A. Posner and E. Glen Weyl (University of Chicago - Law School and University of Chicago) have posted A Proposal for Limiting Speculation on Derivatives: An FDA for Financial Innovation on SSRN. Here is the abstract:

The financial crisis of 2008 was caused in part by speculative investment in sophisticated derivatives. In enacting the Dodd-Frank Act, Congress sought to address the problem of speculative investment, but merely transferred that authority to various agencies, which have not yet found a solution. Most discussions center on enhanced disclosure and the use of exchanges and clearinghouses. However, we argue that disclosure rules do not address the real problem, which is that financial firms invest enormous resources to develop financial products that facilitate gambling and regulatory arbitrage, both of which are socially wasteful activities. We propose that when investors invent new financial products, they be forbidden to market them until they receive approval from a government agency designed along the lines of the FDA, which screens pharmaceutical innovations. The agency would approve financial products if and only if they satisfy a test for social utility. The test centers around a simple market analysis: is the product likely to be used more often for hedging or speculation? Other factors may be addressed if the answer is ambiguous. This approach would revive and make quantitatively precise the common-law insurable interest doctrine, which helped control financial speculation before deregulation in the 1990s.

Call for Papers: Law & Philosophy Graduate Conference at UCLA

CALL FOR PAPERS
from law students and graduate students
UCLA LAW AND PHILOSOPHY GRADUATE CONFERENCE
Saturday April 7, 2012
School of Law, University of California, Los Angeles

Submission deadline: February 22, 2012

The School of Law and the Department of Philosophy at UCLA are holding a graduate student conference on law and philosophy on April 7, 2012. The aim of this conference is to bring together graduate students, law students, and UCLA faculty members to discuss issues that arise at the intersection of law and philosophy. Lunch will be served.

Law students, graduate students, and recent law school graduates are invited to submit papers on law and philosophy, broadly construed. Please submit an essay of approximately 4000 words, prepared for blind review. Submissions should be sent by email in doc, docx, pdf, or rtf format toUCLALawandPhilosophyConference@gmail.com by February 22, 2012. In a separate cover letter, authors should provide their name, the title of their paper, their institutional affiliation, and contact information. Thanks to the School of Law and Department of Philosophy at UCLA for their generous support of this conference.

Organizing Committee:
Jerry Murphy murphyg2013@lawnet.ucla.edu
Jonathan Gingerich: jgingerich@humnet.ucla.edu

Torrance & Tomlinson on Property Rules, Liability Rules, and Patents

Andrew W. Torrance and Bill Tomlinson (University of Kansas - School of Law and University of California, Irvine) have posted Property Rules, Liability Rules, and Patents: One Experimental View of the Cathedral (Yale Journal of Law & Technology, Vo. 14, p. 138, 2011) on SSRN. Here is the abstract:

In their seminal 1972 article, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral," Guido Calabresi and A. Douglas Melamed proposed an analytic framework for comparing entitlements protected by property rules and liability rules. Their article has become one of the cornerstones of modern legal scholarship, and the influence of the theory of legal rules they established has extended far beyond tort and property into almost every area of the law, including intellectual property. Despite the prodigious influence this theory of legal rules has had, its implications have never been explored experimentally. To remedy this knowledge gap, we conducted a series of controlled experiments on liability and property rules, using the patent system as an experimental model. Expressed in the nomenclature of Calabresi and Melamed, the United States’ patent law has recently witnessed a shift away from property rules and towards liability rules. This Article presents an experimental study that attempts to test the hypothesis that amounts of innovation, productivity, and social utility vary across patent systems that tend to emphasize either property rules or liability rules. The results of our experiments suggest that the choice between property and liability rules does, indeed, matter, but in a surprising way. Despite the common assumption that property rules tend to outperform liability rules, we found the opposite: in a computational model of the patent system, liability rules outperformed property rules in generating innovation, productivity, and social utility.

Long on the Matthew Shardlake Series

Alex B. Long (University of Tennessee College of Law) has posted Professionalism and Matthew Shardlake (UCLA Law Review, Vol. 59, No. 86, 2012) on SSRN. Here is the abstract:

This Essay/Book Review examines the Matthew Shardlake series by C.J. Sansom. In particular, it examines the question of whether the sixteenth-century fictional lawyer Shardlake can serve as a role model for twenty-first-century lawyers, both in terms of his ethics and his professionalism. An examination of the Shardlake series as a whole yields some uncertain answers, both as to Shardlake and as to what it means to be an ethical and professional lawyer. This is ultimately part of what makes the series so enjoyable for lawyers.

Guerra-Pujol on Risk Regulation, Game Theory, and Corporate Governance

F.E. Guerra-Pujol (Barry University - Dwayne O. Andreas School of Law; Pontifical Catholic University of Puerto Rico) has posted Corporate Governance and the Risk-Regulation Game: A Game-Theoretic Analysis of Risk Regulation on SSRN. Here is the abstract:

This paper studies corporate governance of the problem of risk regulation. Specifically, the author analyzes the problem of system-wide risks and the underlying strategic tension between regulated firms and such new regulating agencies as the Consumer Financial Protection Bureau and the Financial Stability Oversight Council. In order to shed some light on this problem, the paper presents an evolutionary and game-theoretic model of risk-regulation as one involving two stylized players – a regulating agency and a regulated firm – in which each player’s strategy set consists of two idealized choices. On the one hand, the regulating agency may choose between aggressive and lax enforcement measures in response to a perceived risk (i.e., the enforcement level of the regulating agency is either high or low), while on the other side, the regulated firm may choose between legal compliance or evasion (i.e., the compliance level of the regulated firm, like the enforcement level, can either be high or low). Given this game-theoretic framework, the paper attempts to predict the likely outcome of this dynamic regulatory interaction and provide a number of policy recommendations for more effective and efficient risk regulation.

Gostin on Affordable Care Act Litigation

Lawrence O. Gostin (Georgetown University Law Center - O'Neill Institute for National and Global Health Law) & Kelli Garcia have posted Affordable Care Act Litigation: The Supreme Court and the Future of Health Care Reform (Journal of the American Medical Association, Vol. 307, No. 4, pp. 369-370, 2012) on SSRN. Here is the abstract:

In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.

The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to hospitals, the insured, and tax payers. Because most uninsured people will eventually require uncompensated care, they impose costs on everyone through higher taxes and insurance premiums. Further, although the ACA’s mandate is unusual, it is not unprecedented. Mandatory worker contributions to Medicare, for example, are a compelled purchase of health insurance. The necessary and proper clause, which permits Congress to pass laws rationally related to the exercise of federal powers, may be the best argument in favor of the mandate because the mandate is necessary for the other insurance market reforms to work.

If the Court were to strike down the mandate, it would then have to determine whether the mandate is severable from the rest of the ACA. Although the ACA did not explicitly state that if part of the act were deemed unconstitutional the rest would survive, most ACA reforms are severable because they are unrelated to the mandate, such as funding for public health and community health centers. The more difficult question is whether the mandate is so intertwined with the ACA’s still unimplemented market reforms that the Court must strike them down.

The Court will also review the constitutionality of expanding Medicaid to all individuals with household incomes below 138% of the federal poverty level. The states argue that Medicaid expansion is unduly coercive because they could lose all Medicaid funding and not just the funding related to the expansion. The Court, however, is unlikely to uphold the coercion theory because state participation in Medicaid has always been optional and some states have openly discussed exercising their option to discontinue the program.

Finally, the Court will hear technical arguments concerning the Anti-Injunction Act (AIA), which prohibits lawsuits “for the purpose of restraining the assessment or collection of any tax.” The Court is unlikely to invoke the AIA because neither the administration nor the states contend that it applies.

The ACA will achieve near universal coverage, something that seemed unimaginable just a short time ago. Health reform envisages a social contract in which everyone shares the cost, recognizing that virtually everyone will become ill one day. The ACA and its individual mandate are not unjustified limits on freedom, but rather are vital to a decent society.

Recommended--a very nice guide to the issues from a pro-ACA perspective.

Cushman on FDR's Court-Packing Plan

Barry Cushman (University of Virginia School of Law) has posted The Man on the Flying Trapeze (University of Pennsylvania Journal of Constitutional Law, Vol. 15, 2012) on SSRN. Here is the abstract:

Any history of the controversy over President Franklin D. Roosevelt's Court-packing plan sets out to answer three principal questions. The first is how best to tell what I will call the political story: how to understand the political trajectory of the Plan from its initial conceptualization to its ultimate failure. The second is how best to tell what I will call the legal story: how to understand the constitutional landscape that confronted New Deal reformers, how they negotiated it, and how and in what respects the Supreme Court transformed that body of constitutional law during the Great Depression.

The third is how to specify the relationship between these two stories.

What effect, if any, did the events recounted in the political story have on the legal story? Each of the three Parts of this essay offers an evaluation of Mr. Jeff Shesol's efforts to address each of these questions in his book, Supreme Power: Franklin Roosevelt vs. The Supreme Court. Part I discusses Mr. Shesol’s treatment of the political story; Part II takes up his account of the legal story; and Part III explores his analysis of the relationship between the two. I conclude that while Mr. Shesol does a very nice job with the first question, his efforts to answer the second and the third are not nearly so successful.

Highly recommended. Download it while its hot!