Legal Theory Blog

Conklin on Utilitarianism & Equality Before the Law

William Conklin (University of Windsor) has posted The Utilitarian Theory of Equality Before the Law on SSRN. Here is the abstract:

This Article argues that a particular political theory underlies the judicial interpretation of ‘equality before the law’. The Canadian Courts at the date of writing have elaborated two tests for the signification of ‘equality before the law’. The Article traces the two tests to the utilitarian political theory outlined by John Stuart Mill. The one test sets out the ‘greatest happiness of the greatest number’ or ‘social interests’ as the criterion for adjudicating equality. The second test identifies the reasonable relationship of an alleged statutory classification vis-à-vis the statutory purpose. The Article offers an alternative approach based upon democratic theory. Examples of the two tests and the alternative approach are drawn from judicial constitutional interpretations in the USA and Canada.

Laqueur & Copus on Machine Learning & Legal Decisionmaking

Hannah Laqueur (University of California, Berkeley, School of Law, Students; University of California, Berkeley - Department of Jurisprudence & Social Policy) & Ryan Copus (University of California, Berkeley, School of Law, Students; University of California, Berkeley - Department of Jurisprudence & Social Policy) have posted Machines Learning Justice: The Case for Judgmental Bootstrapping of Legal Decisions on SSRN. Here is the abstract:

"Justice," the trope goes, "is what the judge ate for breakfast." The problems of inconsistency in legal decision making are increasingly apparent. Research indicates, for example, that the idiosyncrasies of a judge, the outcome of a football game, the results of the immediately preceding case, and the time of day can substantially affect legal decisions. But while the problem has become clearer, solutions have not. We propose a new tool for reducing inconsistency in legal decision making: Judgmental Bootstrapping Models ("JBMs") built with machine learning methods. By providing judges with recommendations generated from statistical models of themselves, JBMs can help those judges make more consistent, fairer, and better decisions. They can also help address deficiencies of algorithms currently used to inform legal decisions. To illustrate these advantages, we build a JBM of release decisions for the California Board of Parole Hearings. The JBM correctly classifies 79% of validation-set parole decisions, and if the model would have recommended against parole but the Board nonetheless granted it, the Board was two and a half times more likely to be reversed.

Very interesting & highly recommended.

Blackman on Immigration & Separation of Powers

Josh Blackman (South Texas College of Law) has posted Immigration Inside the Law (Washburn Law Journal, Vol. 55, 2016) on SSRN. Here is the abstract:

To many scholars, paradoxically, practical immigration law has little to do with actual immigration law. Professor Hiroshi Motomura, a leading immigration law professor, admits quite candidly that the “traditional distinction between Congress’s authority to make law and the President’s authority to enforce law — always a very imprecise line to begin with — has little practical meaning” for immigration enforcement. It is no coincidence that Motomura’s magisterial tome is titled Immigration Outside — not inside — The Law.

In this contribution to a symposium on Prof. Motomura’s Foulston Siefkin lecture, I contrast the disconnect between the professoriate’s view on immigration law and that of the Obama Administration. Specifically, I chronicle how the Office of Legal Counsel grounded the legality of Deferred Action for Parents of Americans (“DAPA”) in congressional acquiescence, rather than an unbounded notion of executive power. While I ultimately conclude that OLC’s defense of DAPA fails, at a minimum, its recognition of Congress’s persistent, if not quiet role in cabining executive discretion serves as a powerful refutation of the scholarly consensus of immigration outside the law.

Recommended.

Spaak on the Canberra Plan & the Nature of Law

Torben Spaak (Stockholm University) has posted The Canberra Plan and the Nature of Law on SSRN. Here is the abstract:

In this article, I shall consider a method for conceptual analysis which has been called the Canberra Plan. The Canberra Plan is not, however, aimed primarily at the elucidation of the relevant concept, but at the metaphysical question of identifying the descriptive (or natural or physical) property that corresponds to the concept. The idea of the Canberra Plan is, more specifically, (a) to clarify the import of the concept by reference to the role the concept plays in a network of concepts, principles, and claims, and (b) to investigate and see what, if any, descriptive property corresponds to the concept thus analyzed.

The question of what descriptive property, if any, corresponds to the concept of law should be of considerable interest to jurisprudents, not only because the meta-ethical question of whether legal properties are descriptive, or even natural or physical, is generally interesting, but also because the existence of such descriptive (or natural or physical) legal properties is precisely what is asserted by legal positivists through the so-called social thesis, which has it that we determine what the law is using factual criteria.

In order to investigate this question, I shall carry out a Canberra-style analysis of the concept of law, and I shall argue, tentatively, (1) that X is law if, and only if, (i) X is a relation between (alfa) a system of norms all of which can be traced back to one of several recognized sources of law that can be handled on the basis of exclusively factual considerations, and (beta) an organization that is constituted and regulated by the norms of the system and whose task it is to interpret and apply these norms, (ii) X aspires to regulate social life in general, (iii) X is non-optional, and (iv) X claims to trump competing normative systems. In addition, I shall argue, equally tentatively, (2a) that the property of being law is precisely the descriptive property that satisfies the conditions (i)-(iv), (2b) that this property is a role property, not a realizer property, and (2c) that there is very little to be said about the legal realizer property on a general level and that the legal realizer property differs in this regard from moral and mental realizer properties.

I shall, however, also argue (3a) that the analyst who applies the Canberra Plan to the concept of law will almost certainly find it very difficult to come up with a collection of sufficiently rich analytic platitudes, especially what Frank Jackson calls input and output clauses, (3b) that he is not likely to get much help from the idea of mature legal thinking (introduced here as an analog to Jackson’s idea of mature folk morality), and (3c) that the so-called permutation problem, which is very problematic, will arise as a result of the above-mentioned lack of input and output clauses. And I shall therefore argue (4) that, as things stand, the Canberra Plan will not help us clarify the nature of law or lend support to the strong social thesis of legal positivism.

Highly recommended.

Slocum on Conversational Implicature & Legal Texts

Brian G. Slocum (University of the Pacific - McGeorge School of Law) has posted Conversational Implicatures and Legal Texts (Ratio Juris: An International Journal of Jurisprudence and Philosophy of Law (March, 2016 Forthcoming)) on SSRN. Here is the abstract:

Legal texts are often given interpretations that deviate from their literal meanings. While legal concerns often motivate these interpretations, others can be traced to linguistic phenomena. This paper argues that systematicities of language usage, captured by certain theories of conversational implicature, can sometimes explain why the meanings given to legal texts by judges differ from the literal meanings of the texts. Paul Grice’s account of conversational implicature is controversial, and scholars have offered a variety of ways to conceptualize implicatures and Grice’s maxims of conversation. Approaches that emphasize the systematic nature of implicatures can provide explanatory accounts of the gap between literal meaning and the meaning communicated in the text. For example, a theory of scalar implicature, a type of generalized conversational implicature, can account for the application of the interpretive principle known as ejusdem generis, which narrows the scope of ‘catch-all’ clauses located at the end of lists of items. Despite the availability of such theories, some scholars have argued that conversational implicatures are not applicable to legislation. The arguments, based primarily on the uniqueness of the legislative context and its non-cooperative nature, though, do not establish the inapplicability of conversational implicatures to legislation.

Highly recommended. Download it while it's hot!

Ho on State of Nature Theory in Traditional Chinese Political & Legal Thought

Norman P. Ho (Peking University School of Transnational Law) has posted State of Nature Theory in Traditional Chinese Political and Legal Thought (Northwestern Interdisciplinary Law Review, Vol. VIII, No. 1 (2015), pgs. 131-152) on SSRN. Here is the abstract:

State of nature theory has served as an important theoretical foundation for various political theories. It is usually used to justify the development and existence of certain political institutions and/or to explain why and how a government could come into being from a state of nature. While numerous studies have examined the role of state of nature theory in Western political thought — most notably, in the political thought of Thomas Hobbes and John Locke — very few studies have examined state of nature theory in Chinese political thought. This Article argues that certain traditional Chinese thinkers did in fact explicitly set forth state of nature arguments as theoretical foundations and justifications for their political thought. It describes and analyzes the state of nature theories of three important traditional Chinese thinkers: Mozi (c. 480-390 B.C.), Xunzi (c. 4th to 3rd century B.C.), and Liu Zongyuan (773-819 A.D.). It also compares their respective state of nature theories with one another, as well as with those of Hobbes and Locke. It concludes with a discussion of the implications of its findings on Chinese political and legal theory more broadly.

Legal Theory Lexicon: The Coase Theorem

Introduction

This week the Legal Theory Lexicon investigates the Coase theorem. Ronald Coase is a member of the law and economics faculties at the University of Chicago and a winner of the Nobel Prize in Economics. The idea that we call the Coase Theorem was advanced in a very famous paper:

Coase, R.H., The Problem of Social Cost, Journal of Law and Economics 3, 1-44 (1960).

Externalities

To understand the Coase theorem, we first need to introduce another idea, the externality. Roughly speaking, an economic externality is cost imposed by an activity that is not accrued by the person or firm who engages in the activity. That's a mouthful. Here's an example:

The Reading Railroad has track that goes by Farmer Jones's farm. The locomotives cast off sparks that cause a fire that damages Farmer Jones's crop, imposing a cost on Jones of $100. That cost is an externality.

If the Reading Railroad owned the farm, then it would bear the cost, and there wouldn't be an externality. Before Coase, we thought that the existence of externalities justified some kind of government intervention. For example, we could create a liability rule that required the Reading Railroad to pay for the damage to his crops. Without a liability rule, the railroad wouldn't have any incentive to prevent the damage if there was a cost-effective means of doing so. Let's add a fact to our hypothetical:

The Reading Railroad can purchase and install a 100% effective spark arrestor for $50.

We want the railroad to install the spark arrestor for $50 to prevent $100 worth of damage. Before Coase, we said, "internalize the external diseconomies!" Really! That is, use tort law to transform the external cost imposed by the railroad into an internal cost.

Transaction Costs

This is where Coase came in. But to understand what Coase said, we need to add another bit of economic jargon. By transaction cost, we mean the cost of reaching a bargain. In the real world, lawyers are frequently part of transaction costs, but the time and expense that it takes to strike a deal are transaction costs as well--even if you don't actually lay out any cash. One more little move, if we assume that there are zero transaction costs, we are simply assuming that it costs absolutely nothing to strike a deal--no time, no effort, no lawyers, not even any paper on which to write it up.

Coase said, "Let's assume zero transaction costs!" Okey dokey, what next! 

The Result

If we assume zero transaction costs, then when there are externalities, the market will reach the efficient outcome irrespective of how entitlements are assigned. Another mouthful! Let's go back to our hypo:

If we assign the entitlement to the farmer, the railroad will pay $100 in damages to the farmer for vioalting the farmer's right to be spark free. The railroad will realize that it can save this $100 cost by investing $50 in a spark arrestor. So the railroad will buy the spark arrestor.

If we assign the entitlement to the railroad, the farmer will incur $100 in costs from the fire. The farmer will realize that he can save this $100 cost by entering into a contract whereby he pays $50 (plus some extra enducement, say $51 total) to the railroad in exchange for the railroad installing the spark arrestor. Since we have assumed zero transaction costs, the railroad and the farmer both benefit from this deal.

Assuming zero transaction costs, it doesn't matter whether the law assigns the right to generate sparks to the railroad or the right to be free from sparks to the farmer. Why not? Let's work it out. There are two possibilities:

That's it! It doesn't matter whether we assign the right to the farmer or the railroad. Either way, we get the efficient outcome.

If you are a first year law student, the Coase theorem is a very powerful analytic tool for understanding the economics of tort law. When you study a new rule or problem, ask yourself, "How would this come out assuming zero transaction costs?" Then ask, "If we assume positive transaction costs, how does the problem change?"

But what if there are postive transaction costs?

Of course, in the real world, there will almost always be positive transaction costs.  In some cases, when transaction costs are low, the assignment of the entitlement will not affect the outcome, because an efficient bargain can still be struck.

In other cases, however, the assignment of the entitlement will determine whether we can reach the efficient outcome.  When transaction costs are high, there may be one allocation of the entitlement that will permit an efficient outcome, and another allocation that will not.  A good deal of the action in law and economics concerns situations of this type.

"Transaction costs economics" explores these issues.  This approach is also sometimes called "the new insittuitonal economics."

Related Lexicon Entries

• Legal Theory Lexicon 052: Property Rules and Liability Rules
• Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks

Online Resources

• The World According to Coase
• Bill Edmundson's Handout on the Coase Theorem

Bibliography

• Herbert J. Hovenkamp, The Coase Theorem and Arthur Cecil Pigou, 51 Arizona Law Review 633 (2009).
• Francesco Parisi, Coase Theorem in NEW PALGRAVE DICTIONARY OF ECONOMICS (2nd ed., L. Blume and S. Durlaufe, eds., Macmillan Ltd., 2007).
• Coase, R.H., The Problem of Social Cost, Journal of Law and Economics 3, 1-44 (1960) reprinted in Ronald H. Coase, The Firm, the Market, and the Law (1990).
• Oliver E. Williamson, Transaction Cost Economics, 22 Journal of Law & Economics 233 (1979).

(This entry was last revised on November 29, 2015.)

Legal Theory Bookworm: "A Theory of Discrimination Law" by Khaitan

The Legal Theory Bookworm recommends A Theory of Discrimination Law by Tarunabh Khaitan.  Here is a description:

Marrying legal doctrine from five pioneering and conversant jurisdictions with contemporary political philosophy, this book provides a general theory of discrimination law. Part I gives a theoretically rigorous account of the identity and scope of discrimination law: what makes a legal norm a norm of discrimination law? What is the architecture of discrimination law? Unlike the approach popular with most textbooks, the discussion eschews list-based discussions of protected grounds, instead organising the doctrine in a clear thematic structure.

This definitional preamble sets the agenda for the next two parts. Part II draws upon the identity and structure of discrimination law to consider what the point of this area of law is. Attention to legal doctrine rules out many answers that ideologically-entrenched writers have offered to this question. The real point of discrimination law, this Part argues, is to remove abiding, pervasive, and substantial relative group disadvantage. This objective is best defended on liberal rather than egalitarian grounds.

Having considered its overall purpose, Part III gives a theoretical account of the duties imposed by discrimination law. A common definition of the antidiscrimination duty accommodates tools as diverse as direct and indirect discrimination, harassment, and reasonable accommodation. These different tools are shown to share a common normative concern and a single analytical structure. Uniquely in the literature, this Part also defends the imposition of these duties only to certain duty-bearers in specified contexts. Finally, the conditions under which affirmative action is justified are explained.

And from the reviews:

"Can there be a satisfying theory of the complex and politically charged, body of laws that prohibit discrimination? In this perceptive book, Tarunabh Khaitan shows that there can. The field is not a ragbag of rules; it is unified around a moral duty to remedy serious, persistent, and pervasive forms of relative disadvantage among members of certain groups. Although relativities therefore matter, they do so for the sake of liberty, not equality. In defending that view, Khaitan casts new light on complex issues in legal philosophy and explains commonalties and contrasts in the law of five jurisdictions. A Theory of Discrimination Law is an engaging, and engaged, work on an important area of law, by one of the most interesting new voices in legal theory." -Professor Leslie Green, University of Oxford 

Download of the Week: "Is the Concept of Obligation Moralized?" by Himma

The Download of the Week is Is the Concept of Obligation Moralized?  by Kenneth Einar Himma. Here is the abstract:

Conceptual jurisprudence is concerned to explicate the concept of law and other concepts central to core legal practices, as we understand them. The centrality of obligation-talk to legal practice is obvious, as the very point of litigation is to resolve disputes regarding the obligations of the various parties. As H.L.A. Hart puts it, “where there is law, there human conduct is made in some sense non-optional or obligatory.” Accordingly, no conceptual theory of law can be wholly successful without an adequate account of the nature of legal obligation that also explains whether and how law creates legal obligation. 

Neither Hart nor Austin has a successful account of legal obligation. Hart rejects John Austin’s command theory of obligation on the ground that coercive commands can oblige, but never obligate, compliance; a sovereign threat of a sanction is as purely coercive as a gunman’s orders. But Hart's view is vulnerable to the same problem: a conceptually possible system in which citizens do not accept law or view law as providing any reasons for action seems as coercive with respect to citizens as a gunman’s orders are with respect to victims. 

In this essay, I argue that the problems afflicting Hart’s theory of obligation gesture in the direction of thinking that the general concept of obligation – of which social, legal, and moral obligation are subtypes – includes a conceptual moral constraint. Just as only a very good person can count as a “saint,” only a system of norms that satisfies certain moral norms can count as giving rise to “obligations.” Accordingly, I argue, as a conceptual matter, that only those institutional systems of social norms that satisfy some threshold level of moral respectability have the capacity to create obligations.

Highly recommended!

Godsoe on Marriage Equality & Materialism

Cynthia Godsoe (Brooklyn Law School) has posted Marriage Equality and the 'New' Maternalism (California Law Review Circuit, Vol. 6, No. 145, 2015) on SSRN. Here is the abstract:

The battle over same-sex marriage centered on children, with both sides claiming to be the guardians of children’s welfare. Although marriage equality undoubtedly represents a victory for diverse families, the focus on children has also had the detrimental impact of imposing a traditional parenthood paradigm. Specifically, the Obergefell v. Hodges opinion reflects a maternalist philosophy wherein a woman’s perceived natural and limited role is as an all-sacrificing mother virtually inseparable from her children. Justice Kennedy’s description of one female plaintiff couple speaks volumes: “April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon.”

This Essay explores the maternalism infusing the Obergefell opinion and argues that it expresses a traditional view of women’s place in the family and in the public sphere. Maternalism brings dual harms of limiting all women’s roles while ignoring the many women, particularly low-income women and women of color, who do not fit the ideal mother paradigm. Obergefell’s focus on the female plaintiffs’ maternity, in contrast to its description of the male plaintiffs’ occupations, mirrors the nineteenth century concept of separate spheres; women are guardians of the private home sphere while men dominate the public professional and civic sphere. Despite deciding against opponents of same-sex marriage, the opinion thus inadvertently endorses their gendered parenting arguments. Indeed, this Essay draws parallels between Justice Kennedy’s praise for the ideal motherhood of the plaintiffs and his prior opinion restricting access to abortion in Gonzales v. Carhart. To be clear, this critique is not meant to suggest that Obergefell should have come out differently, or that its holding is as harmful as Carhart’s. Nonetheless, even the well-intended reification of motherhood brings costs. The ongoing gendered stereotypes embedded in Obergefell reinscribe essentialist gender roles in the family and polity, ultimately limiting marriage equality’s egalitarian power.