Legal Theory Blog

Frydrych on Hohfeld & Legal Realism

David Frydrych (National University of Singapore (NUS) - Faculty of Law) has posted Hohfeld vs. the Legal Realists on SSRN.  Here is the abstract:

2018 marks the centenary of Yale Law professor Wesley Hohfeld's untimely passing. His schema of jural relations is widely considered to be a permanent contribution to legal scholarship, and his first most famous work on the matter is among the most cited American law review articles of all time. In recent years, quite a few prominent legal historians and philosophers have identified Hohfeld as having been a Legal Realist. This article argues that he was no such thing, that his work need not be understood in such lights, and that he in fact made a much smaller contribution than is generally believed. While some might find that interesting in its own right, making the case against the Realist identification actually has greater implications. It requires addressing hitherto ignored evidence of key Realists' views of rights and duties, which in turn impacts the long-standing "what is Legal Realism?" debate. Despite scholarly efforts to excise a predictive component from Legal Realism, key members' views, some of which are explicit modifications to Hohfeld, serve as evidence that the Realists endorsed Predictive (and Sanction) theories of law after all. Hence, no matter which account of Legal Realism you prefer, it must be supplemented with this information about predictions, sanctions, rights, and duties. What about Hohfeld, though? He has nothing to do with theories of adjudication that identify "extra-legal" factors as being the real drivers of judicial decision-making. It is also untrue that the schema or a Hohfeldian analysis must advance a "Realist" political agenda. Further, Predictive and Sanction theories are not distinctly Realist, and they need not play a role in Hohfeld's schema of jural relations anyway. Although Hohfeld may have been a Sanction theorist, that alone cannot render him a Realist.Distinguishing him from the Realists will correct some misunderstandings about the schema of jural relations, demonstrate its utility in many more contexts and ways than a Realist reading of Hohfeld allows, and also raise some pressing concerns for contemporary Realists.

Tillman on the Foreign Emoluments Clause

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted The Foreign Emoluments Clause—Where the Bodies are Buried: 'Idiosyncratic' Legal Positions (59 South Texas Law Review ____ (circa April 2018) (invited contribution), Forthcoming) on SSRN.  Here is the abstract:

In 2017, three sets of plaintiffs in three different federal district courts brought civil actions against the President of the United States: each action alleged that the President has and continues to violate the Constitution’s Foreign Emoluments Clause. The Foreign Emoluments Clause provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

There are only a handful of federal cases discussing the Foreign Emoluments Clause. Not one of these cases has any extensive discussion of the scope of the Foreign Emoluments Clause or the scope of the clause’s Office of Profit or Trust under the United States language (“Office-language” or “Office . . . under the United States-language”). Not one of these cases, expressly or impliedly, affirms or denies that the clause applies to the President. Likewise, there is no decision by any court of record (of which I am aware) which affirms or denies that the clause’s Office-language, or closely similar language in any other constitutional provision, encompasses the presidency. If the courts were to reach the merits, the issue at hand—i.e., the scope of the clause’s Office-language—is entirely one of first impression. Still, there has been some discussion of the clause and its Office-language, primarily, but not exclusively, amongst academics. Such discussion has appeared in the Department of Justice’s Office of Legal Counsel memoranda, academic articles, popular magazines focusing on news, politics, and law, and in amicus briefs.

Since 2008, I have argued in multiple publications that the Foreign Emoluments Clause’s Office-language (and closely similar language in other constitutional provisions) reaches only appointed federal officers, and not any elected federal officials, including the presidency. My position has not gone entirely unnoticed; indeed, it has even occasioned some firm and thoughtful opposition. My goal in this Article is not to illustrate the full spectrum of views opposing my position on the subject. There are far too many such views—many of which contradict one another—many of which (do not appear to) have gone through any sort of independent review process, by student editors, by peer review, or otherwise. Instead, my more modest goal here is to illustrate how deeply idiosyncratic some of these views are—not merely in their conclusions, but more importantly in their broad methodological approach.

Thimmeschm on the Physical Presence Rule & the Dormant Commerce Clause

Adam B. Thimmeschm (University of Nebraska College of Law) has posted A Unifying Approach to Nexus Under the Dormant Commerce Clause (Michigan Law Review Online, Forthcoming) on SSRN.  Here is the abstract:

The Supreme Court recently granted certiorari in South Dakota v. Wayfair, a case questioning the ongoing validity of the Court’s 1992 decision in Quill Corporation v. North Dakota. The particular question presented in the cert petition was whether Quill’s physical-presence rule should be overruled, but resolution of that question will force the Court to confront its approach to the dormant Commerce Clause more generally. This is an issue that has not yet been addressed in the literature. Tax scholars have critiqued the physical-presence rule for decades, but have not addressed the question of what the Court would do post-Quill or how that question relates to, or would be influenced by, the Court’s non-tax dormant Commerce Clause doctrine.

This essay takes on that task and evaluates the potential options for the Court if it were to reverse Quill. It concludes that the best approach for the Court post-Quill would be to completely eliminate any special nexus requirement under the dormant Commerce Clause. That approach might seem drastic, but it is the option that would best balance the Court’s interests in protecting our common national market and state autonomy while limiting its own role as an arbiter of the complex economic and political interests involved in balancing those two divergent goals.

Andrias on the Inequality & Constitutional Doctrine

Kate Andrias (University of Michigan Law School) has posted The Fortification of Inequality: Constitutional Doctrine and the Political Economy (Indiana Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. This Symposium Essay examines judges’ role with particular focus on the areas of labor and education. It shows that judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Moreover, for several decades, even the Supreme Court’s more liberal members have offered only tepid opposition to economically regressive constitutional interpretations, sometimes helping shape them. Yet, while much constitutional law relating to the distribution of economic and political power and the nonexistence of social welfare rights now seems indisputable, sometimes even quintessentially American, regressive holdings were once hotly contested and deeply divided. Indeed, the losing side had equally strong, if not stronger, doctrinal arguments.

These descriptive observations, in turn, form the basis for three claims about the future of constitutional law. First, judges matter. Progressives ought not lose sight of their importance. Although strong arguments counsel against turning to courts as primary agents for social and economic change, courts are critical in constructing the political economy. Second, for those who object to economic inequality, mere resistance to the Trump agenda and efforts to return to the constitutional status quo ante are not enough. In particular, the liberal embrace of judicial minimalism has contributed to the fortification of economic inequality; a fundamental shift is needed. Third, such change is plausible, not utopian. Particularly if Americans begin to challenge inequality in the political and social realm, constitutional change in the courts will become not only imperative but also achievable.

Kar on the Formal Argument for Shared Meaning Analysis of Contract Law

Robin Bradley Kar (University of Illinois College of Law) has posted  Formal Argument that Contract Meaning Depends on Linguistic Cooperation on SSRN.  Here is the abstract:

In Pseudo-Contract and Shared Meaning Analysis, Professor Radin and I recently drew on contemporary insights into meaning, pioneered by Paul Grice, to develop a contemporary approach to contract interpretation — "shared meaning analysis" — which is adapted to modern circumstances. Part of our argument for using shared meaning analysis rested on the claim that when interpreting contracts, “the primary search is for a common meaning of the parties” — as the Restatement (Second) of Contracts puts the point. When identifying this common meaning, we argued that courts and parties implicitly rely on presuppositions of linguistic cooperation in ways that often go unrecognized. We suggested that the dependence of contract meaning on linguistic cooperation is pervasive and practically ineliminable. But some tests for contract interpretation, which are repeated more from habit than careful thought, have begun to delink contract meaning from the common meaning of the parties.

This brief essay separates out and develops a detailed formal argument for the proposition that contract meaning depends on linguistic cooperation. Following Grice, I define “sentence meaning” as the meaning that a competent speaker of a language would attribute to a sentence independent of any knowledge of its occasion of use. I define “speaker meaning” as the meaning that a speaker intends to convey to another person within an interpersonal conversation, which often depends upon both parties relying on implicit presuppositions of linguistic cooperation. Building on these distinctions (but also departing from both in some ways), Professor Radin and I have offered a contemporary definition of the “shared meaning” of a contract. It is the meaning that the parties produced and actually agreed to based on the presupposition that both were using language cooperatively to contract. The purpose of this essay is to establish just how pervasive and practically ineliminable the presupposition of linguistic cooperation is to derive pervasive and uncontroversial aspects of contract meaning. Neither contemporary "objective" nor long-rejected "subjective" approaches to interpretation are getting contract interpretation perfectly right in some contemporary settings.

Lakin on Bancoult (No. 2) & Law as Intergrity

Stuart Lakin (University of Reading) has posted Justifying Bancoult (No 2): Why Justice Hercules Must Sometimes Disappoint Us ((2017) Bancoult and the contentious nature of the British constitution. In: Allen, S. (ed.) Fifty Years of the British Indian Ocean Territory: Legal Perspectives. Springer, Cham, Switzerland. (In Press)) on SSRN.  Here is the abstract:

This article considers how Justice Hercules, the personification of Ronald Dworkin’s anti-positivist, interpretative theory of law, might assess the judicial reasoning in Bancoult (No 2). If, as Hercules contends, legal reasoning is a subset of moral reasoning, rooted in the legal and constitutional traditions of the United Kingdom, then I suggest that he may have reason to favour the majority judgments. The underlying moral scheme of these judgments arguably captures the historical settlement between the Crown and the courts in relation to prerogative powers. Whether or not that conclusion is correct, an interpretative reading of the judgments places the judicial disagreements in Bancoult (No 2) in a fresh light. It answers many of the positivist-inspired objections to the majority reasoning. And it reveals the differences between the judges to be, not an uncompromising 'clash of legal cultures’ between executive authority and individual liberty, but a common attempt by the judges to contribute to what Kyritsis calls a 'joint project of governing': a collaborative effort on the part of each branch of government to fashion, through law, a shared vision of justice and institutional responsibility. That shared vision may fall short of what judges, and we, think justice ideally requires; but I contend that we can legitimately expect no more of legality and adjudication.

Frydrych on the Theories of Rights Debate

David Frydrych (National University of Singapore (NUS) - Faculty of Law) has posted The Theories of Rights Debate on SSRN.  Here is the abstract:

This is the first comprehensive explanation and survey of the Interest-Will theories of rights debate. Section II elucidates its traditional understanding as being a dispute over how best to explain A RIGHT and clarifies the theories' competing criteria for that concept. (The short version of the story is that the theories dispute whether the existence of enforcement powers is necessary to A RIGHT and what that means for right-holders). Section III argues that, under any understanding of what the debate is really about, the Interest and Will theories' famous reductio arguments are unsuccessful. This is because the arguments either ignore more robust or versatile versions of the target theory, or (relatedly) they fail to account for how rights theories interact with theories of law.

The rest of the article then shows why certain recent developments are either problematic or simply fail to actually advance the debate. First, it is erroneous, as some theorists have done, to frame the entire debate in terms of competing explanations of the direction of 'directed' duties. This is because the theories' respective answers to that issue are themselves dependent upon their respective conceptions of A RIGHT - ones that do not even necessitate the identification of different directions for such duties. Second, all of the new would-be alternative or hybrid theories are shown to be mere versions of the Interest theory. Third, recent efforts to cabin off the debate to 'normative' theorisation (i.e., to morally or politically evaluative accounts) are misguided.

Denning on "Uncivil Obedience" by Bulman-Pozen & Pozen

Brannon P. Denning (Samford University - Cumberland School of Law) has posted Can Judges Be Uncivilly Obedient? on SSRN.  Here is the abstract:

In a recent article, Jessica Bulman-Pozen and David Pozen identified “uncivil obedience” as a tactic for protesting laws or regulations, not by violating the law, as with civil disobedience, but rather by scrupulous attendance to it. They noted that it is a tactic available to private and public actors alike, but were doubtful that a judicial variety existed because even hyper-formalist legal opinions, they argued, would be unlikely to be perceived as provocative as scrupulous adherence to the letter of the law might be when observed in non-judicial actors. In this article, I argue that judicial uncivil obedience is possible, discuss examples of lower court uncivil obedience to U.S. Supreme Court decisions, speculate why uncivil obedience might be a particularly attractive form of dissent by inferior courts in a hierarchical judicial system, and argue that my examples satisfy Bulman-Pozen and Pozen’s criteria. In addition, I argue that the constraints on uncivil obedience they identify, which can limit the opportunity for its exercise, have analogues that likewise limit the ability of judges to engage in uncivil obedience.

Froomkin on AI Medicine & Medical Malpractice

A. Michael Froomkin (University of Miami - School of Law), Ian R. Kerr (University of Ottawa - Common Law Section), & Joelle Pineau (McGill University) have posted When AIs Outperform Doctors: The Dangers of a Tort-Induced Over-Reliance on Machine Learning and What (Not) to Do About it on SSRN.  Here is the abstract:

Someday, perhaps soon, diagnostics generated by machine learning (ML) will have demonstrably better success rates than those generated by human doctors. What will the dominance of ML diagnostics mean for medical malpractice law, for the future of medical service provision, for the demand for certain kinds of doctors, and—in the longer run—for the quality of medical diagnostics itself?

This article argues that once ML diagnosticians, such as those based on neural networks, are shown to be superior, existing medical malpractice law will require superior ML-generated medical diagnostics as the standard of care in clinical settings. Further, unless implemented carefully, a physician’s duty to use ML systems in medical diagnostics could, paradoxically, undermine the very safety standard that malpractice law set out to achieve. In time, effective machine learning could create overwhelming legal and ethical pressure to delegate the diagnostic process to the machine. Ultimately, a similar dynamic might extend to treatment also. If we reach the point where the bulk of clinical outcomes collected in databases are ML-generated diagnoses, this may result in future decision scenarios that are not easily audited or understood by human doctors. Given the well-documented fact that treatment strategies are often not as effective when deployed in real clinical practice compared to preliminary evaluation, the lack of transparency introduced by the ML algorithms could lead to a decrease in quality of care. The article describes salient technical aspects of this scenario particularly as it relates to diagnosis and canvasses various possible technical and legal solutions that would allow us to avoid these unintended consequences of medical malpractice law. Ultimately, we suggest there is a strong case for altering existing medical liability rules in order to avoid a machine-only diagnostic regime. We argue that the appropriate revision to the standard of care requires the maintenance of meaningful participation by physicians in the loop.

Highly recommended.

Pozen on Transparency & Ideological Drift

David Pozen (Columbia Law School) has posted Transparency's Ideological Drift (Yale Law Journal, Vol. 128, Forthcoming) on SSRN.  Here is the abstract:

In the formative periods of American "open government" law, the idea of transparency was linked with progressive politics. Advocates of transparency understood themselves to be promoting values such as bureaucratic rationality, social justice, and trust in public institutions. Transparency was meant to make government stronger and more egalitarian. In the twenty-first century, transparency is doing different work. Although a wide range of actors appeal to transparency in a wide range of contexts, the dominant strain in the policy discourse emphasizes its capacity to check administrative abuse, enhance private choice, and reduce other forms of regulation. Transparency is meant to make government smaller and less egregious.

This Article traces transparency's drift in the United States from a progressive toward a more libertarian (or neoliberal) orientation and offers some reflections on the causes and consequences of that drift—and on the possibility of a reversal. Many factors have played a part, including corporate capture of freedom of information laws, the exponential growth in national security secrecy, the emergence of the digital age and associated technologies of disclosure, the desire to facilitate international trade and investment, and the ascendance of market-based theories of regulation. Perhaps the most fundamental driver of this ideological drift, however, is the most easily overlooked: the diminishing marginal returns to governmental transparency. As public institutions became subject to more and more policies of formal openness and accountability, demands for transparency became more and more threatening to the functioning and legitimacy of those institutions and, consequently, to progressive political agendas.

Highly recommended.