Legal Theory Blog

Bodansky on Pope Francis on Climate Change

Daniel Bodansky (Arizona State University Sandra Day O'Connor College of Law) has posted Should We Care What the Pope Says About Climate Change? (109 AJIL Unbound 127 (2015)) on SSRN. Here is the abstract:

How influential will the papal encyclical on climate change be? And how influential should it be? Up until now, climate change has been debated primarily in scientific and economic terms. The Pope rightly seeks to make it a moral issue as well, a question of justice between rich and poor, both internationally and within countries, as well as across generations. Although these arguments have been made before, the Pope serves as a megaphone, giving them much greater prominence. Given the uncertainties about whether the climate change problem will be solved through politics, economics, technology, or a moral transformation that makes people accept lower levels of consumption, pursuing change along as many avenues as possible is only prudent. The papal encyclical certainly adds a powerful new voice to the climate change debate, and does an enormous service in highlighting the moral dimensions of the problem.

Burke on Kahng on Taxation of Intellectual Property

Karen C. Burke (University of Florida - Levin College of Law) has posted Comments on 'Taxation of Intellectual Capital:' Better than Consumption-Tax Treatment? (66 Fla. L. Rev. F. 47 (2015)) on SSRN. Here is the abstract:

In Taxation of Intellectual Capital, Professor Lily Kahng argues that U.S. tax law is fundamentally flawed because it allows businesses to “expense” investments in self-created intangibles. The article draws on research in related areas (knowledge management, financial accounting, and national accounting) that seeks to identify and measure “intellectual capital,” “a central driver of economic productivity and growth.” Within the framework of a normative income tax, Professor Kahng argues that businesses should be required to capitalize and amortize investments in a broad array of intangibles, including research and development, advertising, and employee-training expenses.

And a link to Taxation of Intellectual Capital by Kahng.

Farina & Metzger on Agencies & Polarized Government

Cynthia R. Farina and Gillian E. Metzger (Cornell Law School and Columbia University - Law School) have posted Introduction: The Place of Agencies in Polarized Government on SSRN. Here is the abstract:

This is one of two complementary essays for a symposium honoring the work of Peter L. Strauss. Also included is the joint introduction. (The second essay is Gillian Metzger, Agencies, Polarization, and the States.) These essays engage one of Strauss’s most germinal writings, “The Place of Agencies in Government: Separation of Powers and the Fourth Branch” to consider whether contemporary polarized politics spells the end of the intricate system of multi-branch control and accountability which, Strauss argued, legitimates administrative agencies.

Political polarization has become a major focus in contemporary discussions on congressional activity and governance. The tone of these discussions has grown increasingly grim, as many political scientists, argue that a constitutional system of divided and shared powers hardens current levels of partisan warfare into legislative gridlock. Proposals for reform abound. Scholars and political commentators have called for modifications to the electoral process and to party structure, for additional oversight of the culture among members of Congress, and for increased attention to demographics and economic inequality within the electorate. These proposals sometimes conflict, and usually face daunting legal or political obstacles to adoption.

In an effort to better assess the likelihood that congressional dysfunction will be the norm going forward, this Essay reviews and synthesizes recent political science literature with the goal of sorting out what we know — and, perhaps more important, do not know — about the nature, extent, and causes of congressional polarization. The Essay begins by discussing standard metrics of congressional polarization and describing alternative approaches that challenge the standard account as overly simplistic. It then looks at historical trends to consider whether the contemporary situation is truly anomalous. Next, it considers the many theories put forth to explain the phenomenon, focusing initially on whether congressional polarization can be explained by polarization in the electorate and then moving to proposals around the electoral process, party structure and culture, and demographics. Finding little support in the literature for the notion that the challenged structures and practices are actually driving legislative polarization, the Essay concludes by suggesting that the rhetoric around congressional polarization — particularly around the likely continuation of partisan warfare and legislative gridlock — is far more negative than the existing evidence can justify.

Hessick on Standing & Spokeo, Inc. v. Robins

F. Andrew Hessick (University of Utah - S.J. Quinney College of Law) has posted Understanding Standing (Vanderbilt Law Review En Banc, Forthcoming) on SSRN. Here is the abstract:

Spokeo, Inc. v. Robins, which is before the Supreme Court this term, poses a fundamental question of Article III standing: Does a person have standing to sue to seek redress for the violation of a substantive statutory right, even if he did not suffer any factual harm from the violation of that right?

Standing is one of the doctrines that define the power of the federal judiciary. Federal courts cannot hear all disputes. Instead, Article III authorizes them to resolve only “cases” and “controversies.” The Supreme Court has interpreted those terms to authorize federal courts to resolve only those disputes that were “traditionally amenable to, and resolved by, the judicial process.” This restriction, the Court has said, is critical to maintaining the separation of powers. According to the Court, standing enforces these limits on the judicial power.

Despite standing’s importance to maintaining the federal judiciary’s proper role in the federal government, the Court has been inconsistent on what a plaintiff must show to establish standing. Some cases say that the violation of an individual right is enough; others suggest that a factual harm is required. That inconsistency underlies the standing dispute in Spokeo. If the purpose of Article III standing is to protect the separation of powers by restricting federal courts to resolving only those disputes that courts historically could hear, the answer to that question is clear: the violation of a legal right alone should support Article III standing.

Bandes on Monral Shock & Legal Education

Susan A. Bandes (DePaul University - College of Law) has posted Moral Shock and Legal Education (65 J. Legal Educ. 298 (November 2015)) on SSRN. Here is the abstract:

This essay is part of a Journal of Legal Education symposium issue on how recent high profile revelations about racially discriminatory policing in Ferguson and elsewhere have affected the way law professors teach, think, write and talk about criminal justice, civil rights, and law in general.

Sander on International Criminal Law & Progress

Barrie Sander (Graduate Institute of International and Development Studies (IHEID)) has posted International Criminal Justice as Progress: From Faith to Critique (M. Bergsmo et al. (eds), Historical Origins of International Criminal Law: Volume 4 (TOAEP 2015), pp.749-835) on SSRN. Here is the abstract:

As the field of international criminal justice has rapidly institutionalised over the past two decades, one assumption that has become particularly entrenched is the notion that international criminal courts are mechanisms of progress. The establishment of such courts has often been accompanied by a triumphalist discourse proclaiming their demarcation from the world of politics, as well as their power to serve as global peacemakers and global justice providers.

Taking these progress claims as its point of departure, this chapter examines how the association between international criminal courts and progress has been subject to increasing contestation within international criminal scholarship and what such contestation may signify for the future orientation of the field.

The chapter concludes by advocating the adoption of a mindset that strives to temper enthusiasm for over-exuberant progress claims with a critical inquisitiveness for the darker sides of the interventions of international criminal courts, all the while maintaining a willingness to be inspired and imagine what can be created in the face of such critiques.

Fitzpatrick on the Ten Percent Plan at the University of Texas

Brian T. Fitzpatrick (Vanderbilt Law School) has posted The Hidden Question in Fisher (NYU Journal of Law & Liberty, Vol. 10, No. 1, 2016, Forthcoming) on SSRN. Here is the abstract:

This Term, the Supreme Court will once again consider whether the University of Texas at Austin is illegally discriminating on the basis of race in its undergraduate admissions program. Most commentators expect the University to lose because it seems to have so little need to consider race as an admissions factor in light of the success generating racial diversity its Ten Percent Plan has had all by itself. This does, indeed, seem to be an easy case. But it is an easy case only because it has been litigated upon on a dubious premise: that the Ten Percent Plan is itself constitutional. The more interesting and important question is whether this premise is false. I think it may be. The Ten Percent Plan was (successfully) designed to replicate the discrimination against whites and Asians that the University had achieved using pervasive racial preferences in the 1990s. If a law is motivated by racial discrimination and has the effect of racial discrimination, isn’t the law racial discrimination? And, if it is, isn’t it constitutionally suspect? The short answers to these questions are yes.

Friedman & Ponomarenko on Democratic Policing

Barry Friedman and Maria  (New York University School of Law and New York University School of Law) have posted Democratic Policing (New York University Law Review, Vol. 90, 2015) on SSRN. Here is the abstract:

Of all the agencies of executive government, those that police — that employ force and engage in surveillance — are the most threatening to the liberties of the American people. Yet, they are the least regulated. Two core requisites of American constitutionalism are democratic accountability and adherence to the rule of law. Democratic accountability ensures that policy choices are vetted in the public arena and have popular support; the rule of law requires that those choices be constitutional as well. Legislative enactments governing policing are few and far between. Although police departments have internal rules, these rules are rarely made public or publicly debated. When it comes to regulating policing, we rely primarily on ex post judicial review, which at best ensures policing practices are constitutional (though it often fails on this score), and does nothing to assure democratic accountability or sound policymaking.

This Article argues that it is fundamentally unacceptable for policing to remain aloof from the ordinary processes of democratic governance. All police practices — such as use of drones or other surveillance equipment; SWAT, Tasers, and other means of force; checkpoint stops, administrative inspections, and other warrantless searches and seizures — should be legislatively authorized, subject to public rulemaking, or adopted and evaluated through some alternative process that permits democratic input. In addition to spelling out the ways in which the ordinary processes of governance can be utilized to regulate policing, this Article fills in substantial gaps in the existing literature by analyzing why this has not been the case in the past, and explaining how, within the existing framework of administrative and constitutional law, courts can motivate change. It also directs attention to the manifold questions that require resolution in order to move policing to a more democratically-accountable footing.

Highly recommended.

Eason on Prisons & the Political Economy of Rural Towns

John Major Eason (Texas A&M University) has posted Prisons as Panacea or Pariah?: The Countervailing Consequences of the Prison Boom on the Political Economy of Rural Towns on SSRN. Here is the abstract:

The nascent literature on prison proliferation in the United States typically reveals negative impacts for communities of color. Given that southern rural communities of color were the most likely to build during the prison boom (1970-2010), however, a more nuanced understanding of prison impact is warranted. Using a dataset matching and geocoding all 1,663 U.S. prisons with their census appointed place, this study explores the countervailing consequences of the prison boom on rural towns across multiple periods. For example, locales that adopted prisons at earlier stages of the prison boom era received a short-term boon compared to those that did not, but these effects were not lasting. Furthermore, later in the boom, prison building protected towns against additional economic decline. Thus, neither entirely pariah nor panacea, the prison serves as a state-sponsored public works program for disadvantaged rural communities of color but also supports the perverse economic incentives for prison proliferation. Methodological, substantive, theoretical, and policy implications regarding the intersection of race and punishment are explored.

Candeub on Common Law Names & Privacy

Adam Candeub (Michigan State University College of Law) has posted Privacy, Identification, and Common Law Names (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:

The conventional wisdom, reflected in legal policy analysis and landmark Supreme Court cases such as Kyllo and Jones, views technology as privacy’s chief foe. This Article challenges that wisdom, arguing that the law of identification is privacy’s real threat. Particularly in the last decade, legal requirements for identification through government-issued identification cards in virtually every aspect of life — from online purchases to healthcare — have proved fatal to anonymity and privacy. This slow, subtle transformation has rendered a de facto nullity the Constitution’s anonymity protection against compelled identity disclosure. This transformation also has rendered impracticable the traditional, but mostly forgotten, common law rights to use whatever name one wishes, i.e., the right to pseudonymity. The common law name allows a type of anonymity, which, in turn, allows online privacy and privacy in other aspects of life.

This Article argues that the continued vitality of common law name rights, particularly in light of recent First Amendment jurisprudence, establishes a right to pseudonymity — as well as the possibility of increasing privacy. This right includes, in certain circumstances, the ability to demand a government-issued identification under a common law pseudonym. This ability would allow individuals to frustrate regulatory identification regimes and regain some privacy. Beyond these practical implications, this Article engages in a theoretical analysis of the legal mechanisms of identification. Using the classic Calabresi-Melamed property/liability distinction, this Article demonstrates how name governance changed from the common law liability regime to the current government-owned property regime. This shift reflects an important, and hitherto unrecognized, transformation in the legal relationship between the state and citizen.