Legal Theory Blog

Kochenov on EU Citizenship

Dimitry Kochenov (University of Groningen - Faculty of Law) has posted EU Citizenship: Some Systemic Constitutional Implications (3(3) European Papers 2018, pp. 1061–1074) on SSRN.  Here is the abstract:

European Citizenship, although derived from the nationalities of the Member States, came to play a significant independent role in reforming European constitutionalism in unanticipated ways by undermining some of the key assumptions underlying the notions of citizenship, equality and democratic accountability. Instead of lingering merely as a super-structure atop Member State nationalities, it instead reshuffles the constitutional basics and not all Europeans emerge as winners as a result. This brief essay provides an introductory background for the special section on EU citizenship and rights of European Papers 3(3), 2018 and outlines some of the core tensions which EU citizenship brings to light.

Sag on Text Data Mining & Copyright

Matthew Sag (Loyola University Chicago School of Law) has posted The New Legal Landscape for Text Mining and Machine Learning on SSRN.  Here is the abstract:

Individually and collectively, copyrighted works have the potential to generate information that goes far beyond what their individual authors expressed or intended. Various methods of computational and statistical analysis of text — usually referred to as text data mining (“TDM”) or just text mining — can unlock that information. However, because almost every use of TDM involves making copies of the text to be mined, the legality of that copying has become a fraught issue in copyright law in United States and around the world. One of the most fundamental questions for copyright law in the Internet age is whether the protection of the author’s original expression should stand as an obstacle to the generation of insights about that expression. How this question is answered will have a profound influence on the future of research across the sciences and the humanities, and for the development of the next generation of information technology: machine learning and artificial intelligence.

This Article consolidates a theory of copyright law should that I have advanced in a series of articles and amicus briefs over the past decade. It explains why applying copyright’s fundamental principles in the context of new technologies necessarily implies that copying expressive works for non-expressive purposes should not be counted as infringement and must be recognized as fair use. The Article shows how that theory was adopted and applied in the recent high-profile test cases, Authors Guild v. HathiTrust and Authors Guild v. Google, and takes stock of the legal context for TDM research in the United States in the aftermath of those decisions.

The Article makes important contributions to copyright theory, but is also integrates that theory with a practical assessment various interrelated legal issues that text mining researchers and their supporting institutions must confront if they are to realize the full potential of these technologies. These issues range from the enforceability of website terms of service, the effect of laws prohibiting computer hacking and the circumvention of technological protection measures (i.e., encryption and other digital locks), and cross-border copyright issues.

Choucri & Agarwal on International Law for Cyberspace

Nazli Choucri (Massachusetts Institute of Technology (MIT) - Department of Political Science) & Gaurav Agarwal (Massachusetts Institute of Technology-Explorations in Cyber International Relations) have posted International Law for Cyber Operations: Networks, Complexity, Transparency on SSRN.  Here is the abstract:

Despite major innovations in the construction and management of the Internet, the core of cyberspace – or perhaps because of the obvious success of distributed governance – the international community is now on the verge of a new challenge: how to frame the relationship between international law and cyberspace. One analyst observes that there is a “simple choice”, that is between “[m]ore global law and a less global internet” (Kohl 2007, 28-30). Another reminds us that the most “important point”, is that “all ground occupied by international law is shared by others who are not lawyers….” (Lowe 2007, 290).

It is not too soon to appreciate the complexity associated with legal order for a global system encompassing cyberspace – a domain whose properties have no precedents and where multiple and diverse entities interact, often surrounded by uncertainty, ambiguity, and anonymity. The physical layer of the Internet and its territoriality creates an inevitable anchor for the cyber domain in the state system. Today the ubiquity of cyberspace and its near total permeation in almost all aspect of the traditional order – at all levels of analysis – makes it difficult to isolate cyber-specific elements. By the same token, it is especially difficult to retain a view of international relations that is devoid of the virtual.

Complexity science, now well recognized in the scientific community (Ruhl, Katz, and Bommarito 2017), draws attention to “harnessing complexity” as powerful a challenge today as it was when signaled by Axelrod and Cohen (2000). At the same time, however, there are few directives to help explore the complexity of international law applied to cyberspace or to uses of cyber venues. This paper takes a first step in that direction. Our purpose is to highlight critical features of complexity in a legal system and, in the process, generate a degree of transparency as well.

Without undue simplification, we begin by positioning two competing perspectives on international law. One is the view that cyberspace requires a set of rules that are different from those that regulate interactions in the physical territorial domain – as argued, for example, by Johnson and Post (1997). This view recognizes that rules are needed, but not those that govern the traditional international order defined by the state and its sovereignty. Cyberspace is not bound by physical or geographical markers. The other view proceeds from the assumption that international law is generic in form and thus applicable to all domains of human interaction in all known spaces. It is thus applicable to the cyber arena. Without engaging in explanation or justification, the logic is clear: when states interact, the rules of interaction are governed by the international legal order. Contentions aside, the fact remains that the physical layer of the Internet (the core of cyberspace) is embedded in the territoriality of the state and its sovereignty (the defining features of the international system).

Shirazyan on Security Council Resolution 1540 & Proliferation

Sarah Shirazyan (Stanford Law School) has posted Building A Universal Counter-Proliferation Regime:The Institutional Limits of United Nations Security Council Resolution 1540 (Journal of National Security Law and Policy, Vol. 10, 2019) on SSRN. Here is the abstract:

The risk of Weapons of Mass Destruction materials falling into the hands of criminals continues to be a major security concern following 9/11. Efforts to curb the threat culminated in 2004 with U.N. Security Council Resolution 1540. Resolution 1540 created an international institution—the 1540 regime—that was intended to prevent WMD proliferation by closing legal gaps in every U.N. member state. In addition to prohibiting states from engaging in proliferation activities, the instrument obliges states to address WMD trafficking at home through both criminal law enforcement and regulatory oversight.

Since its creation, scholars and policy makers have come to view 1540 as an important foundation of the global nonproliferation and counter-terrorism regime, in part because 179 states have submitted domestic implementation country reports, and on average, countries report more than 145 new or existing domestic measures to comply with Resolution 1540 obligations. Yet, despite the alleged success of the 1540 regime, there are still gaps in the system. Drawing on fifty-two in-depth interviews, fieldwork, and observation data, this article presents a novel assessment of the 1540 regime’s development and performance.

It proceeds in four steps. First, it provides an assessment of 1540’s origins and its past performance, based on the 1540 Committee’s own metrics of success. Second, it demonstrates the regime’s weak performance, examining its effectiveness and accomplishments thus far. Third, it explains how the creation of the 1540 regime and its early institutional choices shaped its current structure and performance. In particular, how 1540’s legitimacy-building strategies have constrained the institution’s ability to effectively manage the implementation of the resolution. Finally, the article briefly explores options on how to strengthen 1540 regime to halt non-state actor proliferation.

Fenwick & Vermeulen on the Platform Economy & Corporate Governance

Mark Fenwick (Kyushu University - Graduate School of Law) & Erik P. M. Vermeulen (Tilburg University - Department of Business Law; Philips Lighting - Legal Department; Tilburg Law and Economics Center (TILEC); European Corporate Governance Institute (ECGI); Kyushu University - Graduate School of Law) have posted A Sustainable Platform Economy & the Future of Corporate Governance on SSRN.  Here is the abstract:

A significant development in the global economy over the last two decades has been the emergence of businesses that organize and define themselves as “platforms.” By platform, we refer to any organization that uses digital or other emerging technologies to create value by facilitating or coordinating connections between two or more groups of users. Think Amazon (connecting buyers and sellers), Facebook (connecting friends and family), or Uber (connecting service providers and service users). Over the last decade, platforms have grown to become some of the largest companies in the world and all companies and other organizations are now obliged to consider integrating platform ideas and experience into their operations. However, platforms are increasingly controversial. Most obviously, they raise concerns about privacy (think Facebook and Google) and market power (think Amazon and Google). And as platforms have expanded in size, they have struggled to maintain their initial promise and brands that were initially disruptive have lost much of their initial appeal (think Facebook or Uber).

In this paper, we identify the distinctive features of a “platform business model” (though a comparison with the modern company) and introduce the concept of a “sustainable platform,” to describe a platform-style business that is both innovative and socially responsible. The main argument of the paper is to suggest that there is a “disconnect” between the current business needs and values of sustainable platforms and contemporary policies and regulation, particularly corporate governance. Overcoming this disconnect – developing a new “platform governance” – is crucial for the long-term prospects of sustainable platforms, and the economy more generally.

McGinley on Open Courts Clauses in State Constitutions

Patrick McGinley (Barry University - Dwayne O. Andreas School of Law) has posted Results from the Laboratories of Democracy: Evaluating the Substantive Open Courts Clause as Found in State Constitutions on SSRN.  Here is the abstract:

Scholars continue to debate how well state courts answer the call to be “laboratories of democracy” by interpreting their state constitutions as a source of new and greater rights and liberties. Unlike the federal constitution, forty state constitutions contain an “open courts” or “remedies” clause inspired by language from Magna Carta. The clause requires courts to be open to every person for the redress of any injury. Some states interpret the clause to require only physical court access or basic due process, or what this article calls a Procedural Open Courts Clause. But others interpret the clause to create a judicially protected right to a remedy, or what this article calls a Substantive Open Courts Clause. That interpretation empowers a state’s judiciary to protect existing causes of action from being abolished by the state’s legislature. The right can be an obstacle to state legislatures seeking to create or amend no-fault replacements for tort liabilities, restrict remedies, or limit damage awards.

This article seeks to answer this question: can and should the state Substantive Open Courts Clause be adopted on a national level?

Part One analyzes the Substantive Open Courts Clause in state courts. We look at what is protected and what exceptions exist.

Part Two compares and contrasts the Substantive Open Courts Clause with analogous rights in the U.S. Constitution. We examine whether state courts exercised judicial independence from those federal sources in developing the Substantive Open Courts Clause. Scholars opine that comparable rights could emanate from the federal right of due process of law, the Privileges and Immunities Clause, or the First Amendment’s right to petition the government for a redress of grievances. We examine whether these federal sources could yield a right to a remedy identical in scope to the state Substantive Open Courts Clause.

Part Three weighs the benefits and detriments of implementing a Substantive Open Courts Clause on a national level. In so doing, we ask whether the laboratory of democracy created a right that is ready for advancement to the national stage, or whether the experiment failed.

West on Carbon Accounting

Dennis West (University of Oxford) has posted Agreeing on Accounting: The Emergence of Carbon Accounting in the Paris Agreement on SSRN.  Here is the abstract:

This article sheds light on different types of expertise and evidence that shape the organization of global law and policy. Using the case of the Paris Climate Agreement, I investigate how carbon accounting emerged and why it stabilized until today. Taking a genealogical approach, I trace the accounting provisions in the treaty to their institutional origins by analysing relevant documentary data. The results suggest that the emergence of carbon accounting follows a cyclical process in two ways. First, the iterative negotiation about normative meanings is more contested and less technical than often portrayed by the actors in the field. Second, this process can be explained in terms of connectivity between normative meanings and the sources of evidence by which scientific, professional, and governance expertise enable agreement on accounting. Building on those findings, I propose a cyclical emergence model to explain the connectivity between normative meanings and organizational processes. This article contributes to our understanding of the interaction between organizations, law, and accounting.

Nelson on Disclosure-Driven Crime

J.S. Nelson (Villanova Law School; Villanova School of Business; The Wharton School, University of Pennsylvania; Institute for Corruption Studies) has posted Disclosure-Driven Crime (UC Davis Law Review, Vol. 52, No. 3, 2019) on SSRN.  Here is the abstract:

As illustrated by the recent Volkswagen emissions scandal and other large-scale corporate wrongdoing, business organizations and top executives with disclosure duties learn to be willfully blind to what is happening inside their organizations. Under pressure for results without inquiry into methods, middle management coordinates large-scale wrongdoing without consequence. The resulting insulation and entrenchment of middle management to coordinate large-scale wrongdoing is a problem that our enforcement approach must better address.

The Article describes the mechanisms of this harm. It then investigates developments in two proposed fixes — conspiracy prosecutions and especially willful blindness instructions — before advocating as more meaningful encouraging the engagement of individuals at all levels of a company to combat widespread corporate wrongdoing.

Burns on Unger on Modernity & Law

Robert P. Burns (Northwestern University - Pritzker School of Law) has posted Modernity and the Law: A Late Twentieth Century View on SSRN.  Here is the abstract:

This essay explores Robert Unger’s understanding of the specific significance that modernity has for law. It provides at account of the distinctions among customary law, bureaucratic law, the modern liberal rule of law ideal, and the unraveling of the rule of law in post-liberal societies. It compares his views in a preliminary way with those of other major theorists of modernity and with legal theorists. Finally, it discusses his speculations about then future developments and the relationship between central institutional and philosophical issues.

Schauer on Normative Legal Positivism

Frederick Schauer (University of Virginia School of Law) has posted Normative Legal Positivism (Prologue) (Cambridge Companion to Legal Positivism (Patricia Mindus & Torben Spaak, eds., Forthcoming 2020)) on SSRN.  Here is the abstract:

Legal positivism these days is considered a descriptive position, but it has not always been so, and is not always so now. Even apart from Ronald Dworkin, Stephen Perry, and others who have sought to locate the normative commitments in allegedly descriptive legal positivism, two explicitly normative versions of legal positivism constitute part of the positivist picture. One dating from Jeremy Bentham but still discussed and promoted, seeks to prescribe what judges and other legal decision-makers ought to do, and, more specifically, maintains that judges ought to restrict their sources of decision-making guidance to rule-of-recognition recognized positive law. And the other, based on one (and probably the better) understanding of H.LA. Hart’s 1958 position in his debate with Lon Fuller, and repeated in the 1961 version of The Concept of Law (although arguably changed in the 1994 “Postscript”), argues that legal cultures ought, for moral and political reasons, adopt a positivist understanding of the nature of law. Both of these versions of legal positivism are explicitly normative, and both are part of the full picture of the past and present of legal positivism.

Highly recommended.