Legal Theory Blog

Frischmann on Network Neutrality

Brett M. Frischmann (Yeshiva University - Benjamin N. Cardozo School of Law) has posted The Internet and the Network Neutrality Debate (B. Frischmann, Infrastructure: The Social Value of Shared Resources , p. 317, Oxford University Press, 2012) on SSRN. Here is the abstract:

This chapter explores how infrastructure theory applies to the Internet and in particular the network neutrality debate. The chapter demonstrates how the infrastructure analysis, with its focus on demand-side issues and the function of commons management, reframes the network neutrality debate, weights the scale in favor of sustaining end-to-end architecture and an open infrastructure, points toward a particular rule (which the chapter articulates and defends), and encourages a comparative analysis of various nondiscriminatory (commons management compatible) solutions to congestion and supply-side problems. I acknowledge that there are competing considerations and interests to balance, and I acknowledge that quantifying the weight on the scale is difficult, if not impossible. Nonetheless, I maintain that the weight is substantial. The social value attributable to a open Internet infrastructure is immense even if immeasurable. The basic capabilities the infrastructure provides, the public and social goods produced by users, and the transformations occurring on and off the meta-network are all indicative of such value.

Both book and excerpt are recommended.

Stern on Mens Rea, Insanity, and Psychopaths

Craig A. Stern (Regent University School of Law) has posted The Heart of Mens Rea and the Insanity of Psychopaths on SSRN. Here is the abstract:

Psychopaths are mentally ill — insane — but as a rule have no insanity defense against criminal liability. This article explains why.

The explanation hinges upon the doctrine of mens rea, the criminal mind necessary for criminal liability. The insanity defense is an excuse, an affirmative defense for those with mens rea enough to be guilty. But the defense should take its essential purpose and shape from the doctrine of mens rea.

This relation between mens rea and the excuse of insanity is why a defendant insane as a matter of mental health may not be insane as a matter of criminal law. Only an insanity that calls into question the usual workings of the doctrine of mens rea should excuse from criminal liability. If psychopathy is not such an insanity, it should not excuse.

Similarly, though philosophers may argue that psychopathy supplies an excuse from moral fault, the criminal law may have no qualms about punishing psychopaths if the doctrine of mens rea controls the insanity defense. The doctrine of mens rea may well entail an insanity defense far narrower than that entailed by general philosophical notions of human responsibility.

This article explores the relation between mens rea, the insanity defense, and psychopathy. Part I describes psychopathy. Part II examines the doctrine of mens rea. Part III shows how the doctrine of mens rea entails an insanity defense. Part IV explains why such an insanity defense leaves psychopaths unexcused. In Part V the article briefly concludes.

Charles on Arizona v. United States

Patrick J. Charles (Government of the United States of America - Air Force) has posted Weighing the Constitutionality of State Immigration Verification Laws in the Wake of Arizona V. United States (Journal of Civil Rights and Economic Development, Vol. 27, 2013) on SSRN. Here is the abstract:

In the wake of Arizona v. United States, it is settled that state immigration verification laws like Section 2(B) are facially constitutional. At the same time, the Supreme Court did not foreclose that Section 2(B) could be preempted in terms of its application, nor did the Court shield the law from subsequent civil rights litigation. Thus, the question moving forward is under what circumstances, if any, can Section 2(B) be held unconstitutional moving forward? The question is important not only for unlawful immigration impacted states like Arizona, but to a number of states that have enacted similar laws.

Zipursky on Civil Recourse Theory

Benjamin C. Zipursky (Fordham University - School of Law) has posted Substantive Standing, Civil Recourse, and Corrective Justice (Florida State University Law Review, Vol. 39, No. 299, 2011) on SSRN. Here is the abstract:

Substantive standing and relational wrongs are the core legal concepts with which civil recourse theory was commenced fourteen years ago. A plaintiff has substantive standing to bring a tort claim if the wrong committed by the tortfeasor was wrongful in the relevant respects in relation to the plaintiff: if the defendant defrauded the plaintiff (for a fraud claim), breached a duty of care owed to the plaintiff (for a negligence claim), trespassed upon her land (for a trespass claim), and so on. After tracing the development of civil recourse theory and its analytical roots in the ideas of substantive standing and relational wrongs, this article turns to: (A) criticizing corrective justice theory; and distinguishing civil recourse theory from corrective justice theory; (B) criticizing retributive or vengeance-based theories of tort law, and distinguishing civil recourse theory from such theories; (C) explaining the distinctive moral ideas at the core of civil recourse theory. The article develops the view – extant in positive morality, and elaborated by reference to work by contemporary moral philosophers -- that a person who has been morally wronged has a moral right to demand an ameliorative response of the wrongdoer, and depicts this idea as the backward-looking mirror image of a moral right to self-defense. In empowering tort victims with a right of action against tortfeasors, the state is giving legal embodiment to this moral principle. It is recognizing, in victims of legal wrongs, a legal right to demand ameliorative conduct of the one who legally wronged her. The article concludes by observing that there is a familiar moral notion of standing to demand a response to have been wronged that parallels the legal notions of substantive standing pervasive in the law of torts.

Highly recommended.

Mueller on Property Rights in Information

Milton Mueller (Syracuse University - School of Information Studies) has posted Info-Communism? A Critique of the Emerging Discourse on Property Rights in Information on SSRN. Here is the abstract:

This paper has three goals. The first is to salvage the rationality of the debate over the nature of property institutions in information and communications, by critically examining the metaphors and parallels to old-line communism. The second goal is identify and call attention to a deep-seated tension within the information left that contributes mightily to this framing. In some cases the movement pushes shared or nonexclusive rights on practical, voluntaristic grounds, and presents it to the public as a choice they can exercise freely, based on their own desires or self- interest. In other instances non-exclusivity is urged upon people as an ethical or moral imperative, and considerable effort is expended to use various forms of leverage to push people into that alternative. The information left needs to reflect more deeply on the implications of relying on either type of appeal. In making this argument, the paper notes that the need to motivate and sustain collective action plays an important role in shaping responses to this problem. Ethical and spiritual appeals to communal property provide stronger glue for holding together a social movement. But in this case they are also more prone to legitimate charges that the movement is “communist” and hostile to private property in any form. My third goal is to take sides regarding the dichotomy described above. I will argue that it is impossible for moral/ethical arguments alone to justify either common or private property in all cases and that a free, contractually based economy offers the best hope of finding the right mix. Drawing on property rights theory, I argue that there is an important place for both models (commons and private property) in the present and future economy, and that there is often a dynamic interaction between the two that is superior to any attempt to push the economy into one of the two extremes. The movement should view information commons as a vital and constructive part of a free and open market economy, not as its enemy. As Merges (2004) has argued, contractual arrangements to build commons and nonexclusive access to informational resources can be seen as a rational market response to the legal and political overreaching of rent-seeking copyright and patent holders.

Nahmod on Section 1983 Local Government Liability

Sheldon H. Nahmod (Chicago-Kent College of Law - Institute for Law and the Humanities) has posted The Long and Winding Road from Monroe to Connick (Loyola Public Interest Law Journal, Vol. 13, p. 427, 2012) on SSRN. Here is the abstract:

In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view of federalism as set out in in his dissent in Monroe.

Barnett on Deal Memos as Soft Contracts

Jonathan Barnett (USC Gould School of Law) has posted Hollywood Deals: Soft Contracts for Hard Markets on SSRN. Here is the abstract:

Hollywood film studios, talent and other deal participants regularly commit to, and undertake production of, high-stakes film projects on the basis of unsigned “deal memos,” informal communications or draft agreements whose legal enforceability is uncertain. These “soft contracts” constitute a hybrid instrument that addresses a challenging transactional environment where neither formal contract nor reputation effects adequately protect parties against the holdup risk and project risk inherent to a film project. Parties negotiate the degree of contractual formality, which correlates with legal enforceability, as a proxy for allocating these risks at a transaction-cost savings relative to a fully formalized and specified instrument. Uncertainly enforceable contracts embed an implicit termination option that provides some protection against project risk while maintaining a threat of legal liability that provides some protection against holdup risk. Historical evidence suggests that soft contracts substitute for the vertically integrated structures that allocated these risks in the “studio system” era.

Very interesting & highly recommended.

Whittaker on National Courts and the Obligation to Raises Issues of EU Law Sua Sponte

Simon Whittaker (University of Oxford - Faculty of Law) has posted Who Determines What Civil Courts Decide? Private Rights, Public Policy and EU Law (D.Leczykiewicz and S. Weatherill (eds) The Involvement of EU Law in Private Relationships, Richard Hart Publishing, (2012) (Forthcoming)) on SSRN. Here is the abstract:

Over the last decades EU legislation and decisions of the Court of Justice have empowered and sometimes required the courts of Member States to address certain EU legal issues of their own motion. Where they do so in the context of civil litigation, this cuts across existing national patterns of the relative roles of the parties and of courts in determining the subject-matter of the case. The purpose of this paper is to consider how this EU law relates to established national European approaches to the relative role of the parties and the courts in determining the questions which courts address and to national conceptions of the civil process: is civil justice seen as requiring the court to apply the law to the claims brought before them, it being the role of courts to do justice by upholding the parties’ substantive rights deriving from private law? or is the fundamental purpose of the civil process the resolution of an agreed dispute, this dispute being identified and delineated by the parties through their pleadings and submissions? The paper first looks at three national law examples (English law, French law and German law) and then considers in turn the explicit rules of the EU private international legislative acquis which impose on national courts a duty to raise issues of civil jurisdiction of their own motion, the general approach of the Court of Justice to the question whether national courts must raise issues of EU law of their own motion under Van Schinjdel and the important (and apparently distinct) line of case-law of the Court of Justice following Océano Grupo Editorial as regards the role of courts in EU consumer protection. The paper explores the difficulties facing the CJEU in determining the relative roles of national courts and parties in relation to EU law issues and explains how the CJEU has to balance the desirability of supporting the effectiveness of EU legislation against the radical effect of requiring judicial intervention not merely on national rules of civil procedure but also on national conceptions of the civil process. For this purpose, the CJEU is likely to continue to recognise very general principles of civil procedure common to the civil law of Member States, such as the principle of party initiative and its main exception in cases involving the public interest and, in doing so, brings these principles within the fold of EU law itself and develops its own European conception of the civil process.

Corbin on Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

Caroline Mala Corbin (University of Miami School of Law) has posted The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (Northwestern University Law Review, Vol. 106, No. 2, p. 951, 2012) on SSRN. Here is the abstract:

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial exception, she lost. In fact, neither the Free Exercise Clause nor the Establishment Clause necessitated the ministerial exception. Under Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the ADA is a neutral law of general applicability. In attempting to distinguish Smith, the Supreme Court not only created an incoherent free exercise jurisprudence but also ignored Jones v. Wolf, which explicitly rejected blanket deference to religious institutions in matters of internal governance. Jones further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether the schoolteacher was a minister entangled the Court in religious doctrine more than simply adjudicating her retaliation claim would have.

Kostakopoulou on Liberal Anationalism

Dora Kostakopoulou (University of Southampton - School of Law) has posted Defending the Case for Liberal Anationalism (Canadian Journal of Law and Jurisprudence, Vol. XXV(1), January 2012, 97-118) on SSRN. Here is the abstract:

Relationships are hardly ever one-dimensional. To insist that they are or to make unqualified judgements about them, be they positive or negative, is more often than not a sign of immaturity. They constantly evolve, may be bumpy at times and can even slip into completely unpredictable directions. Additionally, our perception, appreciation and enjoyment of them are variable; time and space mould as well as scold them. Uncertainty, unpredictability and complexity thus characterise all relationships. Amidst uncertainty and complexity, however, we take solace in some basic facts, such as that they do work and that the unique history they generate gives us a fairly good idea as to what we can reasonably expect from them. If they do not work, are based on false premises and exhibit chaotic and repressive tendencies, then we should opt for disentanglement. This is precisely the argument I wish to make in this paper about a very important relationship that has shaped modern constitutional polities and politics; namely, the relationship between liberalism and nationalism.

Although nationalism appears to be so entrenched in political life and discourse, that its illiberal face is often deemed to be an exception and unfortunate coincidence triggered by international terrorism.

Alternatively, it may be depicted as the result of ill-thought policies which can be reversible. In this paper, I argue that liberal nationalism is conceptually flawed and politically illiberal. Illiberal tendencies are an integral part of it and these cannot be corrected by ‘taming’ unruly nationalism or by articulating ‘benign’ adaptations of it. Because the liberal and illiberal faces are interwoven in complex ways, my suggestion is to look far ahead and beyond it.