Legal Theory Blog

Wrange on Stateless International Humanitarian Law

Pål Wrange (Faculty of Law, Stockholm University) has posted International Humanitarian Law Without the State? on SSRN.  Here is the abstract:

What would international law look like in a world without states — or with states being non-dominant? How would it be formed and who would be its protagonists? And would that world be a better place? To think about international law without states might seem like a ludicrous idea. After all, inter-national is often interpreted to mean “inter-state”, and for many people, any law without the state seems impossible to think. However, the state has been around for only a few hundred years, and yet there have been norms between political communities — whether we call that international “law” or not – for much longer. International law without the state could mean de facto anarchy and even perennial war. But it could also mean inter-communal law between communities that are not states, if we assume that people without states would spontaneously form political communities, albeit of a different nature. Or it could be mainly transnational law, formed between apolitical bodies, like corporations. Or, perhaps, a bit of all of that.

Mullins on Committed and Detached Legal Statements

Rob Mullins (The University of Queensland - T.C. Beirne School of Law) has posted Detachment and Deontic Language in Law (Law and Philosophy, Forthcoming) on SSRN.  Here is the abstract:

Some legal philosophers regard the use of deontic language to describe the law as philosophically significant. Joseph Raz argues that it gives rise to ‘the problem of normativity of law’. He develops an account of what he calls ‘detached’ legal statements to resolve the problem. Unfortunately, Raz’s account is difficult to reconcile with the orthodox semantics of deontic language. The article offers a revised account of the distinction between committed and detached legal statements. It argues that deontic statements carry a Gricean generalized conversational implicature to the effect that the rules in question reflect the speaker’s own commitments. Detached legal statements are made when this implicature is either explicitly cancelled or when the conversational context is sufficient to defeat the implicature. I conclude by offering some tentative reflections on the theoretical significance of deontic language in the law.

And from the paper:

[T]he use of deontic language to describe the law is significant for the philosophy of law in at least three ways. First, the fact that the use of deontic language is presumptively committed is in prima facie tension with the thesis that the validity of a rule does not depend on its merits. An account of detached legal statements resolves this tension; it allows us to explain the use of deontic language to describe the law in situations where speakers themselves lack any commitment towards it. Second, committed uses of deontic language have a kind of explanatory priority over detached use. Proper description of the law may well depend on an understanding of committed use. Finally, the directive use of deontic language by legal officials suggests that officials purport to guide the conduct of others in a rule-governed fashion.

Very interesting and recommended.  I am not yet sure what I think, but this is definitely worth reading if you are interesting recent discussions of the normativity of law.

Rappaport on Privatization of Criminal Justice

John Rappaport (University of Chicago Law School) has posted Criminal Justice, Inc. on SSRN.  Here is the abstract:

To what extent can criminal justice be privatized? In the past decade, major retailers nationwide have begun to employ a private, for-profit system to settle criminal disputes. This Article examines what their decisions reveal about our public system of criminal justice and the concerns of the agents who populate it, the victims who rely on it, and the suspects whose lives it alters. The private policing of commercial spaces is well known, as is private incarceration of convicted offenders. This Article is the first, however, to document how private industry has penetrated new parts of the criminal process, extracting admissions of guilt and administering deterrent sanctions to resolve thousands of shoplifting allegations each year.

Proponents of private justice claim that everyone wins. Critics (and the only court to opine so far) say it’s blackmail. The Article takes a tentative middle ground: while “retail justice” is not the American ideal, it nonetheless may be preferable to public criminal justice, at least if certain conditions are met. This is because private justice subsists upon — and tends to mitigate — the severity of the public justice system. Indeed, cast in the light of public authorities’ acquiescence, private justice can be seen as a novel form of decriminalization. Rather than cancel the private justice experiment, therefore, as one court is poised to do, the state should aim to foster optimal conditions for its success. The Article makes several recommendations to that end.

Extending the central analysis, the Article then shows how the study of private justice leads to fresh perspectives on some important criminal justice issues. It suggests, for example, that the costs to crime victims of assisting the prosecution may be a feature of the system, not a bug, if they encourage victims to invest in efficient crime-deterring precautions. It also complicates academic models of police and prosecutorial behavior built on maximizing arrests and convictions. The Article concludes by identifying conditions that conduce to private justice and speculating about the next frontiers.

Farber on Murr v. Wisconsin & the Future of Takings

Daniel A. Farber (University of California, Berkeley - School of Law) has posted Murr v. Wisconsin and the Future of Takings Law on SSRN.  Here is the abstract:

Murr v. Wisconsin was a major defeat for property-rights advocates and a big win for land use regulators and environmentalists. The main issue was seemingly very technical, relating to what’s called the “denominator problem” in takings law. The majority ruled against the owners not only on this issue but on several other open questions in takings law. Although the dissenters favored the owners on the denominator issue, they seemed otherwise content with the majority’s analysis. All the Justices enthusiastically embraced the Penn Central balancing test for regulatory takings – a test that nearly always favors regulators.

This triumph of Penn Central is an understandable product of the Court’s dilemma in this area of law. It is willing to adopt neither of the two most principled alternatives: reviving Lochner-era restrictions on government regulation or else giving regulators a blank check. A vigorous attack on regulation would itself upset the settled expectations of property owners. In the face of this dilemma, the best available option seems to be an ad hoc analysis upholding the principle of constitutional protection for property but providing only sporadic protection in practice.

Highly recommended.

Chesterman on a Typology of Civil Society Actors

Simon Chesterman (National University of Singapore (NUS) - Faculty of Law) has posted From Westphalia to Rome via Solferino: A Typology of NGOs and Civil Society in Public International Law on SSRN.  Here is the abstract:

How “public” is public international law? Despite its natural law origins, international law has long privileged the role of the state. Today, NGOs and civil society actors play an increasingly important role — offering a voice for the disenfranchised through their advocacy, and a helping hand for the disadvantaged through their operations. Calls for accountability of these actors are understandable, but often founder on their diversity. This paper therefore develops a typology of such actors, based on their activities and their drivers. That typology better reflects the reasons for and circumstances in which accountability is appropriate. In addition, it suggests a possible evolution in the international order where the status of an actor (state, intergovernmental organisation, NGO, etc) is less important than its function.

Kovvali on Confederate Statue Removal Statutes

Aneil Kovvali (Wachtell, Lipton, Rosen & Katz) has posted Confederate Statute Removal (70 Stanford Law Review Online 82 (2017)) on SSRN.  Here is the abstract:

Certain state governments have adopted statutes that are designed to prevent city governments from eliminating memorials to Confederate forces and leaders. Critics of these controversial statutes generally focus on the moral issue of preserving statues honoring white supremacy. This Essay highlights a different set of concerns: These statutes suppress the speech of cities while compelling them to make statements they disagree with, and they distort the political process in troubling ways. These concerns have clear echoes in constitutional doctrine, and represent a separate reason for removal of these statutes.

Tallberg & Zürn on Legitimacy and International Organizations

Jonas Tallberg (Stockholm University - Department of Political Science) and Michael Zürn have posted The Legitimacy and Legitimation of International Organizations: Introduction and Framework on SSRN.  Here is the abstract:

While legitimacy dynamics are paramount in global governance, they have been insufficiently recognized, conceptualized, and explained in standard accounts of international cooperation. This special issue aims to spearhead the empirical study of legitimacy and legitimation in global governance. It addresses the overarching question of when, how, and why international organizations (IOs) gain, sustain, and lose legitimacy in world politics. It engages with this question comparatively, mapping and explaining patterns in legitimacy and legitimation across multiple dimensions. In this introduction, we first conceptualize legitimacy as the belief that an IO’s authority is appropriately exercised, and legitimation and delegitimation as processes of justification and contestation intended to shape such beliefs. We then theorize sources of variation in legitimation processes and legitimacy beliefs, with a particular focus on the authority, procedures, and performances of IOs. Finally, we describe the methods used to empirically study legitimacy and legitimation, and preview the articles of the special issue in the context of the broader research problems they address.

Gould & Leon on Extralegal Factors in Federal Death Penalty Cases

Jon B Gould and Kenneth S. Leon (American University - School of Public Affairs and George Washington University) have posted A Culture That Is Hard to Defend: Extralegal Factors in Federal Death Penalty Cases (Journal of Criminal Law and Criminology, Vol. 107, No. 4, 2017) on SSRN.  Here is the abstract:

At the height of the federal death penalty (1998-2004), there existed a floor of defense resources below which defendants had twice the chance of being sentenced to death at trial. Moreover, the lowest cost defenses had little to do with legal factors and instead reflected political, geographic, and cultural influences. Put another way, there were — and undoubtedly still are — systemic and systematic differences that make the provision of defense resources in federal capital cases arbitrary at best.

Eskens, Helberger, & Moeller on News Personalization & the Right to Receive Information

Sarah Eskens, Natali Helberger and Judith Moeller (University of Amsterdam, Institute for Information Law (IViR), University of Amsterdam - Institute for Information Law (IViR) and University of Amsterdam) has posted Challenged by News Personalisation: Five Perspectives on the Right to Receive Information (Journal of Media Law, 2017) on SSRN.  Here is the abstract:

More and more news is personalised, based on our personal data and interests. As a result, the focus of media regulation moves from the news producer to the news recipient. This research asks what the fundamental right to receive information means for personalised news consumers and the obligation it imposes on states. However, the right to receive information is under-theorised. Therefore, we develop a framework to understand this right, starting from case law of the European Court of Human Rights. On this basis, we identify five perspectives on the right to receive information: political debate, truth finding, social cohesion, avoidance of censorship and self-development. We evaluate how news personalisation affects the right to receive information, considering these five different perspectives. Our research reveals important policy choices that must be made regarding personalised news considering news consumers’ rights.

Prize Announcement: Gordon Awarded Zacharias Memorial Prize

The winner has been selected for the eight annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility: Robert W. Gordon, The Return of the Lawyer-Statesman?, 69 Stan. L. Rev. 1731 (2017).