Legal Theory Blog

Cantrell on Mundane Conflict

Deborah Cantrell (University of Colorado Law School) has posted Celebrating Mundane Conflict (Pepperdine Dispute Resolution Law Journal, Forthcoming) on SSRN. Here is the abstract:

This Article interrogates the dominant conception of conflict and challenges the narrative of conflict as hard, difficult and painful to engage. The Article reveals two primary framing errors that cause one to misperceive how ubiquitous and ordinary is conflict. The first error is to misperceive conflict as categorical — something either is a conflict or it is not. People make that error as a way of trying to avoid conflict. People falsely hope that there might be a category of “not conflict,” like disagreements, that will be easier to navigate. The second error is to misperceive the world and individuals as autonomous and atomistic. That belief allows people to mistakenly think that they can avoid conflict by maintaining disconnection. The factual truth, however, is that people constantly are in some web of interrelationships or interconnections. That very fact of relationality makes conflict ubiquitous, ordinary and unavoidable. The Article then argues that correcting those framing errors can lead to a very productive result. People can embrace and use mundane conflict as an accessible practice site through which to learn new cognitive skills and create new pathways to help them successfully maneuver through conflict.

Konnoth & Kreimer on Standing & Spokeo v. Robins

Craig Konnoth and Seth F. Kreimer (University of Pennsylvania Law School and University of Pennsylvania Law School) have posted Spelling Out Spokeo (University of Pennsylvania Law Review Online, Forthcoming) on SSRN. Here is the abstract:

For almost five decades, the injury-in-fact requirement has been a mainstay of Article III standing doctrine. Critics have attacked the requirement as incoherent and unduly malleable. But the Supreme Court has continued to announce “injury in fact” as the bedrock of justiciability. In Spokeo v. Robins, the Supreme Court confronted a high profile and recurrent conflict regarding the standing of plaintiffs claiming statutory damages. It clarified some matters, but remanded the case for final resolution. This Essay derives from the cryptic language of Spokeo, a six stage process (complete with flowchart) that represents the Court’s current equilibrium. We put each step in the context of standing precedent, and demonstrate that while Spokeo added some structure to the injury in fact doctrine. Each stage of the analysis allows play in the joints that leaves future courts and litigants substantial room for maneuver.

And from the paper:

Katz on IP, Antitrust, & the Rule of law

Ariel Katz (University of Toronto - Faculty of Law) has posted Intellectual Property, Antitrust, and the Rule of Law: Between Private Power and State Power (17:2 Theoretical Inquiries in Law 633 (2016)) on SSRN. Here is the abstract:

This Article explores the rule of law aspects of the intersection between intellectual property and antitrust law. Contemporary discussions and debates on intellectual property (IP), antitrust, and the intersection between them are typically framed in economically oriented terms. This Article, however, shows that there is more law in law than just economics. It demonstrates how the rule of law has influenced the development of several IP doctrines, and the interface between IP and antitrust, in important, albeit not always acknowledged, ways. In particular, it addresses some limitations on IP rights, such as exhaustion and limitations on tying arrangements, are grounded in rule of law principles restricting the arbitrary exercise of legal power, rather than solely in considerations of economic efficiency.

The historical development of IP law has reflected several tensions, both economic and political, that lie at the heart of the constitutional order of the modern state: the tension between the benefits of free competition and the recognition that some restraints on competition may be beneficial and justified; the concern that power, even when conferred in the public interest, can often be abused and arbitrarily applied to advance private interests; and the tension between freedom of contract and property and freedom of trade. This Article explores how rule of law considerations have allowed courts to mediate these tensions, both in their familiar public law aspects but also in their less conspicuous private law dimensions, and how, in particular, they have shaped the development of IP doctrine and its intersection with antitrust law and the common law.

Sheff on Legal Sets

Jeremy N. Sheff (St. John's University School of Law) has posted Legal Sets on SSRN. Here is the abstract:

In this Article I propose that legal reasoning and analysis are best understood as being primarily concerned, not with rules or propositions, but with sets. The distinction is important to the work of lawyers, judges, and legal scholars, but is not currently well understood. This Article develops a formal model of the role of sets in a common-law system defined by a recursive relationship between cases and rules. In doing so it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure of many so-called “hard cases,” and help organize the available options for resolving them according to their form. This set-theoretic model can also help to cut through ambiguities and clarify debates in other areas of legal theory—such as in the distinction between rules and standards, in the study of interpretation, and in the theory of precedent. Finally, it suggests that recurring substantive concerns in legal theory—particularly the problem of discretion—are actually emergent structural properties of a system that is composed of “sets all the way down.”

Very interesting and recommended.

Parkinson on Constitutional Limits on Family Property Law in Australia

Patrick Parkinson (University of Sydney - Faculty of Law) has posted Constitutional Law and the Limits of Discretion in Family Property Law (Federal Law Review, Vol. 44, No. 1, pp. 49-75, 2016) on SSRN. Here is the abstract:

The argument of this Article is that the width of discretion that trial judges have to alter property rights under the Family Law Act 1975 (Cth) (‘the Act’) has been overstated. The property aspects of the Act can only be valid to the extent to which the law is an appropriate application of the marriage and divorce powers in the Constitution or is within the boundaries of the States’ reference of powers about de facto relationships. These constitutional provisions place significant constraints upon judicial discretion. In relation to marriages, the need to adjust property rights must result from the circumstances of the marital relationship or be justified as a consequence of the financial impact upon a party of its breakdown. The authority of Parliament to make laws concerning the alteration of the property rights of de facto partners is limited to cases of relationship breakdown.

Furthermore, the Family Court of Australia and the Federal Circuit Court of Australia are both Chapter III courts. That has implications for the kind of discretion that Parliament can lawfully confer upon the trial judge, and the limits of that discretion. Some recent dicta and decisions of the Full Court of the Court suggest a view of judicial discretion which, it is argued, is inconsistent with the nature of judicial power in a Chapter III court. The discretion of trial judges is fettered by three duties: The duty to follow the interpretation of the Act as established authoritatively by appellate decisions, taking account of guidelines in appellate judgments; the duty to give reasons that explain the outcome of the case, and in particular, to justify the alteration of legal and equitable interests in specific items of property; and the duty to avoid arbitrary and capricious decision-making.

The current jurisprudence on family property law is not necessarily consistent with these constitutional limitations.

Legal Theory Lexicon: Primary and Secondary Rules

Introduction

Most law students begin to notice that there is a fundamental difference between the kinds of legal rules that come up in torts & criminal law, on the one hand, and the sorts of legal rules that arise in contracts and in the structural part of constitutional law, on the other. The rules of criminal law seem to define standards of conduct; they are about what you can and cannot do, or more precisely, rules that forbid certain conduct and then attach punishments for disobedience. The rules of contract law are different. It's true that contract remedies do provide sanctions (or prices) for breaking contracts, but much of contract law is about making contracts, that is, about how to make new law. In criminal law (and torts), the state makes up the rules of conduct. In contract law, the contracting parties are empowered to create their own rules of conduct.

Once you've seen this distinction, you might then become interested in what legal theorists have to say about it. One of the most important views of this distinction was advanced by the great legal philosopher H.L.A. Hart, who classified the rules of tort and criminal law as "primary rules," and the rules of contract law as "secondary rules." This post is an introduction to the Hart's distinction between primary and secondary rules. As always, the Legal Theory Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

The Distinction Between Primary and Secondary Rules

Hart's basic idea is quite simple. Primary rules are rules of conduct; they tell you what your are legally obligated to do (or refrain from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules that prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition. Technically, the class of secondary rules includes everything except primary rules. The category of secondary rules includes legal rules that allow for the creation, extinction, and alteration of primary rules; these secondary rules are power-conferring rules. Thus, contract law empowers individuals and firms to make contracts; contracts themselves are usually collections of primary rules.

More precisely, primary rules are rules that govern primary conduct, and secondary rules are rules that govern primary or secondary rules. Thus, the distinction between primary and secondary rules is just a bit different than the difference between duty-imposing and power-conferring rules: duty-imposing rules impose duties, whereas power-conferring rules confer power. This leaves open the possibility that some rules can regulate other rules, but do so by imposing duties. For example, a secondary rule might impose a duty to legislate in a certain way or a prohibition on certain kinds of rule creation.

Some more examples may help:

Examples of Primary Rules

• Criminal prohibitions.
• Tort rules.
• The individual right to freedom of speech.
• The provisions of contracts that define the primary obligations of the parties.
• The environmental law rule that forbids discharge of toxic substances in rivers and streams. 

Examples of Secondary Rules

• Contract law rules that enable parties to form contracts.
• The rules that allow testators to create a will.
• The constitutional rules that confer legislative powers on Congress.
• The statute that authorizes the Supreme Court to promulgate rules of practice and procedure for the federal courts. 

The Practical Importance of Secondary Rules

One of the really nifty things about Hart's introduction of the distinction between primary and secondary rules was his account as to why secondary rules are important. We can certainly imagine a system in which there were primary rules, but no secondary rules. This would be a system of customary law. Certain actions would be required; others would be taboo. But there would be no mechanism by which the set of obligations could be changed. Of course, customary law need not be completely static. It is is possible that customs might gradually change over time, but this process would require a change in social norms. It could not be legislated. Secondary rules enable relatively more rapid legal change at a lower cost. Moreover, secondary rules enable individuals to create customized primary rules that govern their private relationships or privately owned resources.

Conclusion

The distinction between primary rules of conduct and other, secondary rules is a crucial member of the legal theorist's toolbox. My own experience has been that I use this distinction to understand legal problems and arguments, but that it rarely plays a direct role in my own work. Primary and secondary rules are everywhere, and you need to understand the differenced between them, but you don't necessarily need to use the distinction when you construct normative legal arguments.

One more thing. The place to go for a really thorough understanding of the distinction between primary and secondary rules is H.L.A. Hart's magnificent book, The Concept of Law--in my opinion, the most important work of legal theory in the twentieth century.

Related Lexicon Entries

• Legal Theory Lexicon 013: Conduct Rules and Decision Rules
• Legal Theory Lexicon 038: The Internal Point of View
• Legal Theory Lexicon 065: The Nature of Law

Online Resources

• K.K. Lee, Hart's Primary and Secondary Rules, 78 Mind 561 (1968) (link is to JSTOR, which may require an account or fee).
• D. Gerber, Levels of Rules and Hart's Concept of Law, 81 Mind 102 (1972) (link is to JSTOR, which may require an account or fee).

Bibliography

• H.L.A. Hart, The Concept of Law (Clarendon Law) (3d ed. 2012).

(This entry was last revised on August 28, 2016.)

Legal Theory Bookworm: "The Law of Deliberative Democracy" by Levy & Orr

The Legal Theory Bookworm recommends The Law of Deliberative Democracy by Ron Levy & Graeme Orr.  Here is a description:

Laws have colonised most of the corners of political practice, and now substantially determine the process and even the product of democracy. Yet analysis of these laws of politics has been hobbled by a limited set of theories about politics. Largely absent is the perspective of deliberative democracy – a rising theme in political studies that seeks a more rational, cooperative, informed, and truly democratic politics. Legal and political scholarship often view each other in reductive terms. This book breaks through such caricatures to provide the first full-length examination of whether and how the law of politics can match deliberative democratic ideals.

Essential reading for those interested in either law or politics, the book presents a challenging critique of laws governing electoral politics in the English-speaking world. Judges often act as spoilers, vetoing or naively reshaping schemes meant to enhance deliberation. This pattern testifies to deliberation’s weak penetration into legal consciousness. It is also a fault of deliberative democracy scholarship itself, which says little about how deliberation connects with the actual practice of law. Superficially, the law of politics and deliberative democracy appear starkly incompatible. Yet, after laying out this critique, The Law of Deliberative Democracy considers prospects for reform. The book contends that the conflict between law and public deliberation is not inevitable: it results from judicial and legislative choices. An extended, original analysis demonstrates how lawyers and deliberativists can engage with each other to bridge their two solitudes.

And from the reviews:

"Anyone who cares about democracy should also care about the ways law can promote, impede, or regulate public deliberation. The Law of Deliberative Democracy is a masterful treatment of the ways in which lawyers and deliberative democrats can learn from each other in thinking about these key issues. As such it is essential reading for those concerned with the legal and democratic underpinnings of the quality of governance in contemporary societies." Professor John Dryzek

 

 

Download of the Week: "Plausible Cause" by Brennan-Marquez

Kiel Robert Brennan-Marquez (New York University School of Law; Yale University - Information Society Project) has posted Plausible Cause on SSRN. Here is the abstract:

“Probable cause” is not about probability. It is about plausibility. To determine if an officer has the requisite suspicion to perform a search or seizure, what matters is not the statistical likelihood that a “person, house, paper or effect” is linked to criminal activity. What matters is whether criminal activity provides a convincing explanation of observed facts. For an inference to register as plausible, an observer must understand why the inference follows; she must be able to explain its relationship to observed facts. Probable inferences, by contrast, need not be explanatory. An inference can be probable—in a predictive sense, based on past trends—without a human observer understanding what makes it so.

In many cases, probability and plausibility overlap. An inference that is likely to be true (probability) will often explain observed facts (plausibility), and vice versa. But there is an important sub-set of cases in which the two properties pull apart, raising deep questions about the underpinning of Fourth Amendment suspicion: inferences generated by predictive algorithms. In this Article, I argue that casting suspicion in terms of plausibility, rather than probability, is both more consistent with established law and crucial to the Fourth Amendment’s normative integrity. Before law enforcement officials may intrude on private life, they must explain why they believe wrongdoing has occurred. This requirement serves two related goals. First, it facilitates governance; we cannot effectively regulate what we do not understand. Second, explanation-giving allows judges to consider the “other side of the story”—the innocent version of events that a suspect might offer on her own behalf—before warranting searches and seizures. I close by arguing that these virtues generalize beyond the Fourth Amendment. In a democracy, legitimacy is not measured solely by outcomes. The exercise of state power must be explained. And the explanations must be responsive to the democratic community writ large, and to the specific individuals whose interests are infringed.

Highly recommended.

Puig on Tobacco Litigation in International Courts

Sergio Puig (University of Arizona Law School) has posted Tobacco Litigation in International Courts (57 Harvard International Law Journal, Forthcoming) on SSRN. Here is the abstract:

For years, tobacco interests have played an important role in developing international law. Recently, cooperation among nations concerned with the risks and health consequences of smoking tobacco has resulted in the adoption of international treaties, regional directives, and common administrative and regulatory practices. As a result, a wave of litigation before international courts and tribunals, including the European and Andean Courts of Justice, Investor-State Tribunals, and the World Trade Organization’s dispute settlement body, has led to novel legal questions.

This Article is the first to trace, survey, and recount the history of tobacco litigation before international courts and tribunals and to assess its contribution to international law. In particular, it pays new attention to recent efforts by tobacco interests to challenge compelled speech by exporting the far-reaching Free Speech Clause of the United States into international law, especially in the context of marketing controls, mandatory graphic warnings, and “plain packaging” labels.

This Article shows that, contrary to conventional wisdom, international courts and tribunals can play a central role in advancing and enhancing complex national, regional, and global regulations rather than eroding sovereign regulatory space. Complete deference to states’ policies, however, can also be risky as it may perpetuate the use of economic and political influence to distort the functioning of government. Hence, the history of international tobacco litigation reveals a more complex interrelationship between domestic institutions and international law than many scholars acknowledge.

Christiansen on Originalism in the State Courts

Jeremy M. Christiansen has posted Originalism: The Primary Canon of State Constitutional Interpretation (Georgetown Journal of Law & Public Policy, Forthcoming) on SSRN. Here is the abstract:

Given the reach of federal constitutional law and the attention the topic garners in law reviews, law schools, and general popular discourse, a certain degree of federal-centricity is understandable in most scholarly discourse about originalism. Nevertheless, the near universal tendency of scholars to think only about the U.S. Constitution when debating originalism undermines claims by both proponents and opponents of originalism by failing to account for the massive body of originalist case law in state constitutional interpretation.

This article seeks to broaden the field of discussion about originalism by demonstrating that 38 of 50 state courts of last resort have consistently been invoking originalism, since as early as 1804. Indeed, not only have these courts expressly and consistently invoked originalism during this time period, but they also identified originalism as the primary canon of constitutional interpretation. In other words, for this super majority, originalism is supposed to be the goal of state constitutional interpretation. This is not to say that state courts are always originalist when interpreting their constitutions or that they always get a question of original meaning correct. Instead, the importance of this body of case law is for the broader debates about originalism in general. And although a full exploration of the impact of state constitutional originalism is beyond the scope of this article, there are important implications, potentially impacting topics from the traditional Bork-Scalia creation narrative of originalism, to more recent predictions about originalism’s impending demise, to assertions about originalism being partisan, to recent scholarship about originalism as law.

Very interesting and recommended.