Legal Theory Blog

Sharp on Critical Approaches to Transitional Justice

Dustin N. Sharp (University of San Diego - School of Peace Studies) has posted What Would Satisfy Us? Taking Stock of Critical Approaches to Transitional Justice on SSRN.  Here is the abstract:

In a little over a decade, a distinct critical turn in transitional justice scholarship has emerged. This new literature seeks to question the naturalness and inevitability of mainstream transitional justice theory and practice and to envision a broader and more holistic project of building peace with justice in the aftermath of repression and mass atrocity. While in many ways a positive development, this newfound critical enthusiasm risks producing an unwarranted sense of pessimism, disillusion, and failure, even as overall empirical assessments of the field suggest meaningful if modest impacts in many contexts. This points to the need to better manage expectations as to what ‘success’ looks like even as we try to re-imagine what transitional justice could become. To these ends, I draw upon and propose revisions to Robert Cox’s famous distinction between problem-solving and critical theory. To better maintain balance and perspective, I argue for the adoption of an ‘integrated’ approach to transitional justice critique that does more to engage with the difficult tradeoffs, policy choices, and contextual realities that would inevitably be associated with efforts to implement an alternative vision of transitional justice.

Martinez-Villalba on Kelsen's Normative Pyramid

Juan Carlos Riofrio Martinez-Villalba (Universidad de Los Hemisferios) has posted Kelsen, the New Inverted Pyramid and the Classics of Constitutional Law (Russian Law Journal (2019), 1(7), pp. 87-118) on SSRN.  Here is the abstract:

The present study overhauls Hans Kelsen’s thesis of the traditional normative pyramid, in order to accommodate the most outstanding doctrinal contributions of the last century to it. For the purpose, the Essay proceeds as follows: (i) the shortcomings of the first version of the pyramid, found in Kelsen’s Pure Theory of Law and on Adolf Merkl’s contributions, are detected; (ii) new key concepts of the Aristotelian-Thomistic metaphysics are introduced, this will allow us to upgrade the theory of the staggered legal system; (iii) unity and order of the legal system are briefly analyzed; (iv) a staggered legal pyramid is redesigned, with a gradual reduction of the juridical space; and finally, (v) the theories of Kelsen, Merkl, and several of the most influential doctrinarians of law (e.g., Jhering, Radbruch, Rorty, Ross, Kelsen, Holmes, Hägerström, Olivecrona, Hart, MacCormick, Dworkin, among others) are tested, to see if their ideas fit in the new theory.

This upgrade of the traditional theory arises from a significant shift in the philosophical basis. The first pyramid was elaborated by Kelsen and Merkl under the tenets of neo-Kantian metaphysics. On the other hand, the methodology and the basic ideas behind this study are those of the Aristotelian-Thomistic metaphysics. It moves from an idealistic metaphysics to a traditional realistic metaphysics, so neglected in recent centuries. The inverted pyramid theory, formulated here, is the product of many previous works. Many of them have been published in different international journals.

Bassok on Schmitt's Meeting with Redlich

Or Bassok (University of Nottingham - Faculty of Law and Social Sciences) has posted The Mysterious Meeting between Carl Schmitt and Josef Redlich on SSRN.  Here is the abstract:

In 1934, Carl Schmitt, then the crown jurist of the Third Reich, writes in an essay titled National Socialist Legal Thought about “[a] conversation with a world-famous, world travelled, experienced scholar of more than seventy years of age from the United States [which] belongs to the major experiences and encounters I have had as a jurist in the service of National Socialism.” Schmitt never revealed the identity of the scholar whom he met. Based on Schmitt’s diaries, I reveal that the scholar whom Schmitt met was Josef Redlich. Born to a Jewish family in 1869, Redlich was the Fairchild Professor of Comparative Public Law at Harvard Law School at the time he met Schmitt in 1931. According to Schmitt’s 1934 essay, the conversation focused on insights relating to the indeterminacy of legal norms as well as on a nihilist understanding of the era. Yet Schmitt drew conclusions from the encounter which hardly correspond to Redlich’s views. My essay first puts the ideas that Schmitt adopted from his encounter with the “American scholar” in the context of the era. Second, I examine Schmitt’s diaries as well as other relevant materials in order to prove that Redlich is the scholar whom Schmitt met. In the process, I exclude Roscoe Pound, the Dean of Harvard Law School at that time, who was the previous “prime suspect” for this encounter with Schmitt. Even after my discovery of the identity of the scholar to whom Schmitt refers in his essay, the story of Schmitt and Redlich’s encounter remains mysterious: the ideas of a scholar of Jewish decent, who believed in an Austrian multi-national, federal state, inspired and played a profound role in the formulation of a blatantly antisemitic essay promoting National Socialist legal thought by the crown jurist of the Nazi regime. After examining the contradictions between Redlich and Schmitt’s positions, I offer an explanation for why Schmitt viewed this encounter as so influential on his road to National Socialism.

Schleicher on Small States as a Constitutional Problem (Link Fixed)

David Schleicher (Yale University - Law School) has posted Vermont is a Constitutional Problem (Arizona Law Review, Vol. 61, No. 253, 2019) on SSRN.  Here is the abstract:

Whether measured by population or by the size of its economy, Vermont is small. It is the second least populous state, with fewer residents than 28 cities and 107 counties. It has the smallest economy of any state. And there is no reason to believe this will change. It has one of the oldest populations, the lowest fertility rate, and it draws few migrants, domestic or foreign. There are a number of individual Americans who could buy all of the residential property in Vermont by themselves. If Amazon located its full “HQ2” in Vermont, it would have employed about 8% of the state’s population and be responsible for about 17% of Vermont’s annual Gross State Product. Vermont is just very, very small.

This Essay argues that neither the structural aspects of the Constitution nor our subconstitutional institutional design choices are well-suited for an ever-growing country with states as small as Vermont. Very small states make Congress less democratic, more likely to engage in pork-barrel spending, and more susceptible to the influence of single firms or interest groups. Very small states make “cooperative federalism” less effective, as small state governments are not ideal partners for the federal government in administering federal programs. Small and shrinking states are less likely to fulfill their legislatively assigned role of making necessary investments in physical and human capital and are more likely to need federal bailouts due to budget shocks. In short, very small states make both the national government and our federalism less effective.

In order to understand how the Constitution and American democracy work more broadly—and how to make them work better—we need to reckon with the big problems created by small states. Constitutional law rarely considers the differences between the size of states outside of a few narrow contexts, but small states like Vermont are so unlike big states like California or Texas that thinking of them in similar terms makes little sense. This Essay suggests ways to reframe debates about federalism and the Constitution more broadly to focus on the actual traits of states and not merely their legal status.

Highly recommended!

McGinnis & Rappaport on Original Methods, Original Intent, and Original Public Meaning

John O. McGinnis (Northwestern University - Pritzker School of Law) & Michael B. Rappaport (University of San Diego School of Law) have posted Unifying Original Intent and Original Public Meaning (Northwestern University Law Review, Vol. 113, No. 6, 2019) on SSRN.  Here is the abstract:

Original intent and original public meaning are generally thought to be opposing camps within originalism. Both theories assert that that the meaning of a constitutional provision was fixed at the time it was enacted. But they disagree fundamentally on the nature of interpretation. Original intent asserts that the meaning sought is that intended by the Constitution’s enactors. Original public meaning asserts that the meaning sought is that revealed by the text as reasonably understood by a well-informed reader at the time of the provision’s enactment.

In this Essay, we unite these two conflicting principles of originalism under the original methods approach to constitutional interpretation, thereby providing a single coherent foundation for originalism. Under original methods, the Constitution is interpreted using the conventional legal interpretive rules deemed applicable to a document of its type at the time it was enacted. As properly understood, both the original intent and original public meaning approaches mandate that the Constitution be interpreted using the same conventional interpretive rules. Under original public meaning, a reasonable and knowledgeable person at the time would interpret the constitutional text by using the rules that were then thought to apply to it. Under original intent, the enactors would have intended the Constitution to be interpreted based on the conventional interpretive rules applied to it at that time.

We further argue that these interpretive rules should be identified using the methods that people at the time would have employed for determining the interpretive rules. Just as constitutional provisions should be interpreted using the interpretive rules employed at the time of the relevant provision’s enactment, so too should the interpretive rules be identified based on the methods employed to identify those interpretive rules. We illustrate our approach by exploring the controversy of the Bank of the United States, showing, for instance, that there was a consensus against use of the substantive intent of the Philadelphia Convention as an interpretive rule.

Highly recommended.

Djeffal on Sustainable Development of Artificial Intelligence

Christian Djeffal (Alexander von Humboldt Institute for Internet and Society) has posted Sustainable Development of Artificial Intelligence (SAID) (Djeffal C: Sustainable Development of Artificial Intelligence (SAID), 4 Global Solutions Journal 2019, pp. 186–192) on SSRN.  Here is the abstract:

Artificial intelligence (AI) is changing our lives. However, it seems to be a solution and a problem at the same time. In order to understand opportunities and risks, to evaluate promises and warnings, we should ask the right questions and choose the right frame of analysis. It is time to think and talk about AI in terms of sustainable development.

Velte on Sexual Orientation and Gender Identity & the Census

Kyle Velte (University of Kansas School of Law) has posted Straightwashing the Census on SSRN.  Here is the abstract:

The Trump Administration’s recent decision to reject proposed sexual orientation and gender identity (SOGI) questions from the 2020 Census and the American Community Survey — a component of the Census — received widespread attention. Many critics of this decision focused on the symbolic effect of the decision — when one is not counted as a matter of data, one does not count as a matter of morality or humanity. While visibility is important for such symbolic reasons, it is also important as a matter of policy, power, and economic justice.

The U.S. government uses population data to drive policy decisions about the allocation of $675 billion in federal funds, most of which is apportioned to anti-poverty programs. It uses this data to assess the effectiveness of these anti-poverty programs vis-à-vis different demographic groups, including race, ethnicity, and gender. But two population demographics — sexual orientation and gender identity — are not considered when the federal government makes policy decisions or tracks program efficacy, because SOGI is largely absent from government population surveys. This Article examines the “straightwashing” of the census through the “Identity Undercount” — the failure of the state to collect SOGI population data. The Identity Undercount, while counting the literal bodies of LGBT people, erases their lived identity.

For many in the LGBT population, their lived identity and reality is one of poverty and powerlessness, a reality contrary to the widely accepted narrative that the LGBT population is more affluent and powerful than the rest of the population. The limited data that is available demonstrates that LGBT people live in poverty at rates disproportionate to the non-LGBT population and fare more poorly than their non-LGBT counterparts on other measures including health outcomes, homelessness, and employment discrimination.

Because federal and state governments rely on population data to inform a multitude of policy and programmatic decisions, the straightwashing of government data does real harm to LGBT people in poverty. If policymakers cannot see the problems, they cannot craft meaningful policy solutions or modify existing policies to meet the needs of the LGBT population. Because data are tied to resource allocation, the Identity Undercount results in resource deserts — where LGBT people do not get critical and necessary services. As a result, the Article argues that the government should collect SOGI population data and that the near-complete failure to do so makes the state an active participant in creating and sustaining institutionalized poverty for LGBT people.

Ehighalua on the Role of the State

Iseghohime Ehighalua (American University, Washington College of Law) has posted America and the Benevolent State on SSRN.  Here is the abstract:

How should society be structured? What determines who wins or loses in the lottery of life? Is life really a lottery r a calculated and deliberate attempt to ensure happiness? Some people are stupendously endowed – whether materially, innately, or vide inheritance - while others may not really be that ‘lucky.’ Does luck play any part in life? What is the utility of having a life plan? If you do not have one, is it the business of society to create one for you? All of these rhetorical questions engage issues of individual responsibility, opportunity, equality, liberty, and the proper role society should play in harnessing these disparate abilities in people; with a view to producing a society that is acceptable to ‘all,’ where ‘everybody’ is ‘happy.’ Is that goal ever attainable, a mirage, or nirvana? I shall proceed to tease out some of the underlying philosophical ideas that have shaped the polemics at different ends of the spectrum.

Lieblich on "The Crime of Aggression" by Dannenbaum

Eliav Lieblich (Tel Aviv University - Buchmann Faculty of Law) has posted Book Review: The Crime of Aggression, Humanity, and the Soldier, by Tom Dannenbaum (American Journal of International Law, 2019, Forthcoming) on SSRN.  Here is the abstract:

This book review surveys the main arguments in Tom Dannenbaum's "The Crime of Aggression, Humanity, and the Soldier," discusses their practical implications, and places them in the wider theoretical context of recent debates in just war theory.

And from the conclusion:

The Crime of Aggression, Humanity and the Soldier excels in the challenging task of transposing ethical concepts into detailed suggestions for legal reform. By constantly considering the institutional and practical implications of its proposals, the book remains grounded and does not veer off to utopianism. Moreover, it is well structured, expertly written, and never digresses from its main argument. This book will surely be central in shaping the debate on the crime of aggression in the years to come.

Both the review & Dannenbaum's important book are highly recommended.

Ducato & Marique on Dark Patterns & Choice Architecture

Rossana Ducato (Université Catholique de Louvain and Université Saint-Louis - Bruxelles) & Enguerrand Marique (UCLouvain) have posted Come to the Dark Side: We Have Patterns. Choice Architecture and Design for (Un)Informed Consent on SSRN.  here is the abstract:

How many times have you clicked on the “Next” button of a webgallery and then discovered that you have activated a subscription for some silly ringtones? If this is your case (or the case of “that” friend of yours who told you about it), you have probably experienced the frustration of being screwed by a dark pattern.

Dark patterns are choice architectures used by many websites and apps that exploit individuals’ biases and heuristics to maliciously push users into doing something that otherwise they would not have done, if properly informed. Such practices are becoming particularly controversial in the data protection domain, where users are de facto forced to give consent and accept a specific privacy setting, decided by the operator of the website or the app. After falling in one of these behavioural design traps, the users’ trust into technology will be affected and requires therefore to be protected in order to sustain the digital revolution.

On the basis of an empirical analysis of a set of social media, e-commerce websites, sharing economy platforms and IoT devices, this contribution undertakes to outline a taxonomy of dark patterns for consent. We argue how some of such strategies for obtaining the consent do not meet the requirements established under the General Data Protection Regulation (GDPR). In particular, we will highlight how the architecture design may conflict with the principle of “freely given” consent (Article 4.11 GDPR).

However, design, as technology, is neither bad nor good nor neutral. Hence, if it could show the path pattern to the dark side, we address how to reverse engineer such processes in order to support webusers’ trust. Therefore, in the wake of the principles of data protection by design and data protection by default, this contribution proposes some good practices and examples of design and choice architecture for “bright(er) patterns”.

Very interesting and recommended.