Legal Theory Blog

Oza on "Equity: Conscience Comes to Market" by Samet

Manish Oza (University of Toronto - Department of Philosophy) has posted Review of Irit Samet, Equity: Conscience Comes to Market ((2020) University of Toronto Law Journal 7(2): 216-222) on SSRN.  Here is the abstract:

A review of Irit Samet's Equity: Conscience Goes to Market (Oxford University Press, 2018).

Sinha on Virtue Jurisprudence & Resistance to Oppressive Laws

G. Alex Sinha (Quinnipiac University School of Law) has posted Virtuous Law-Breaking on SSRN.  Here is the abstract:

A rapidly growing body of scholarship embraces virtue jurisprudence, a series of (often ad hoc) attempts to incorporate the philosophical tradition of virtue ethics into legal theory. Broadly understood, virtue ethics describes an approach to moral questions that emphasizes the importance of developing and embodying various virtues, often as manifestations of human flourishing. Scholars typically contrast virtue ethics with deontological and consequentialist moral theories, tracing virtue-centered analysis to ancient Greek philosophers, and in particular to Aristotle. Virtue ethics has experienced a revival over the past 65 years; but, long before that, it proved especially influential in Catholic moral thought, particularly through the work of Aquinas. Perhaps relatedly, scholars have seized on virtue jurisprudence to defend a range of politically conservative positions, such as originalist constitutional interpretation and the propriety of utilizing the law to regulate ostensibly “private” immoralities.

This Article reveals the radically underappreciated progressive promise of virtue jurisprudence. Virtue jurisprudence requires no religious commitments whatsoever, but a strong version entails acceptance of the moral significance of developing one’s character—both within and without the law. On a compelling understanding of the virtues, rejecting a state of perpetual disadvantage under the law is a meaningful marker of the virtue of self-respect, and a repudiation of the vice of servility that would otherwise be imposed by the legal system itself. Thus, contrary to the predominant tenor of research on the subject, virtue jurisprudence can ground significant resistance to and even defiance of the law. In making this argument, the Article also draws novel connections between virtue jurisprudence and literature on (inter alia) race, feminism, and sexual orientation to reveal the unnoticed potential of virtue jurisprudence to push forward work in those and related areas. At a time when massive and widespread protests across the United States reflect a groundswell of support for overturning certain long-standing, legally-ingrained, systemic disadvantages of people of color, many might be surprised to learn that virtue jurisprudence can serve as a potent theoretical ally.

Interesting and recommended.

Solum & Sunstein on Chevron as Construction

Lawrence B. Solum (University of Virginia School of Law) & Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School (HKS)) have posted Chevron as Construction (Cornell Law Review, Vol. 105, No. 1465, 2020) on SSRN.  Here is the abstract:

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on behalf of Chevron is very powerful; agencies have relevant comparative advantages in developing implementing principles. With respect to statutory interpretation, the argument on behalf of Chevron is more controversial. Those who reject Chevron in the context of interpretation should nonetheless accept it in the context of construction. The distinction between interpretation and construction explains some important cases in the 1940s and also in the post-Chevron era.

This is the final version of "Chevron as Construction" with pagination.  As always, comments welcome.

Sprigman on Jurisdiction Stripping & Constitutional Change

Christopher Jon Sprigman (New York University School of Law; New York University (NYU) - Engelberg Center on Innovation Law & Policy) has posted Congress's Article III Power and the Process of Constitutional Change (New York University Law Review, Vol. 95, No. 6, 2020) on SSRN.  Here is the abstract:

Text in Article III of the U.S. Constitution appears to give to Congress authority to make incursions into judicial supremacy, by restricting (or, less neutrally, “stripping”) the jurisdiction of federal courts. Article III gives Congress authority to make “exceptions” to the Supreme Court’s appellate jurisdiction. Article III also gives Congress discretion whether to “ordain and establish” lower federal courts. Congress’s power to create or abolish these courts would seem to include the power to create them but to limit their jurisdiction, and that has how the power has historically been understood.

Is Congress’s power to remove the jurisdiction of federal courts in effect a legislative power to choose the occasions on which federal courts may, and may not, have the final word on the meaning of the Constitution? That is a question on which Supreme Court has never spoken definitively.

In this Article, I argue that Congress’s Article III power can be understood as a means by which Congress may change the Constitution without amending it. I argue, further, that we should welcome it as such. Working through the ordinary legislative process, Congress may remove the jurisdiction of federal courts to hear cases involving most questions of federal law, including cases that raise questions under the federal Constitution. To be clear, I am not arguing that the Constitution unambiguously establishes this congressional power. As on so many important issues, the Constitution is indeterminate: Article III provides a textual foundation for the power, and neither history nor precedent rule it out. In this matter, however, what Congress does is more important than anything the Constitution says. The Constitution’s indeterminacy opens a space for Congress to reclaim authority, in particular cases, over constitutional interpretation. If a determined Congress acts to fill that space, courts will have little power to resist. Correction, if it comes at all, will come from voters.

Understood this way, the implications of Congress’s Article III power are potentially transformative. Congress may prescribe, by ordinary legislation, constitutional rules in areas where the meaning of the Constitution is unsettled. Or it may displace otherwise settled constitutional rules by ordinary legislation. In either case, Congress may remove the jurisdiction of federal courts to hear constitutional challenges to its interventions. And Congress may do the same with respect to state courts.

To be clear, Article III does not permit Congress to escape accountability. Rather, Article III gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters. In the push-and-pull between judicially-enforced constitutional rules and the desires of current democratic majorities, the potential for Congress’s exercise of its Article III power helps legitimate both constitutionalism and judicial review.

Baughman & Wright on Prosecutors & Mass Incarceration

Shima Baradaran Baughman (University of Utah - S.J. Quinney College of Law) & Megan S. Wright (The Pennsylvania State University (University Park) – Penn State Law) have posted Prosecutors and Mass Incarceration (Southern California Law Review, Forthcoming) on SSRN.  Here is the abstract:

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court filings. Why?

This Article presents quantitative and qualitative data from the first randomized controlled experiment studying how prosecutors nationally decide whether to charge a defendant. We find rampant variation and multiple charges for a single crime along with the lowest rates of declination in a national study. Crosscutting this empirical analysis is an exploration of Supreme Court and prosecutor standards that help guide prosecutorial decisions. This novel approach makes important discoveries about prosecutorial charging that are critical to understanding mass incarceration.

Highly recommended.

Bernick on the Equal Protection Clause

Evan D. Bernick (Georgetown University Law Center) has posted Antisubjugation and the Equal Protection of the Laws on SSRN.  Here is the abstract:

This Article challenges 150 years of conventional wisdom regarding whether the Fourteenth Amendment protects people against “private” violence and secures “positive” rights to governmental aid. The conventional wisdom is that it does neither; this Article argues that it does both. More specifically, it contends that (1) the original meaning of the Equal Protection Clause imposes an affirmative duty on states to protect the life, liberty, and property of all people; (2) the original function of the Clause was to prevent subjugation of people’s lives, bodies, and possessions by state and nonstate actors; and (3) the Supreme Court has since its 1883 decision in the Civil Rights Cases misinterpreted the letter and undermined the spirit of the Equal Protection Clause by denying (1) and neglecting (2).

Scholars have long criticized the Court’s reasoning in The Civil Rights Cases and more recent state-action and positive-rights decisions like DeShaney v. Winnebago County Department of Social Services and United States v. Morrison. But the leading alternative theories of the Equal Protection Clause either deny that the Fourteenth Amendment contains any state-action/no-positive-rights limitations or hold that equal protection of the laws entails only a narrow duty to protect people against violence. Against the former, I ground my constitutional objection to the state-action doctrine in the original meaning of the Equal Protection Clause. Against the latter, I claim that the affirmative duty to protect guarantees not only protection against violence but protection against other forms of subjugation—that is, subjection of the bodies and possessions of some to the untrammeled will of others. An arrestee may be subjugated through a physically coercive police interrogation; an evictee may be subjugated through a civil proceeding that deprives them of their home; a criminal defendant may be subjugated by being detained owing to failure to make bail.

Putting constitutional theory in conversation with ongoing social movements, I suggest that the “Civil Gideon” movement and the Movement for Black Lives might find constitutional resources in the letter and the spirit of the Equal Protection Clause. Finally, I propose that Congress is best-situated among federal institutional decisionmakers to thwart subjugation and that the Court’s lack of confidence in its own institutional competence ought no longer serve as an excuse for disabling Congress from enforcing the Equal Protection Clause.

Highly recommended.  Download it while it's hot!

Manta & Robertson on the Case for Inalienable Citizenship & Due Process

Irina D. Manta (Hofstra University - Maurice A. Deane School of Law) & Cassandra Burke Robertson (Case Western Reserve University School of Law) have posted Inalienable Citizenship (North Carolina Law Review, Forthcoming) on SSRN.  Here is the abstract:

Over the last decade, citizenship in the United States has become increasingly precarious. Denaturalization cases increased under President Obama and skyrocketed under President Trump. No number of years spent in the United States protects individuals against sudden accusations that they procured citizenship fraudulently or were never eligible for citizenship to begin with. Moreover, the government has challenged the citizenship status even of some individuals—largely from ethnic and religious minority communities—that the government had previously recognized as citizens for decades.

If the U.S. justice system is committed to the values of reliance and finality, how can it permit citizenship to be challenged without any time limit? American courts currently do not recognize a statute of limitations for civil denaturalization or apply the traditional doctrines of equitable estoppel or laches to this context. This state of affairs is partly based on judicial misunderstanding of the property-like features of citizenship and of the punitive nature of removing it. We argue that this must change. Denaturalization and citizenship denial undermine the foundation of our democratic system by tolerating second-class citizenship and promoting chilling effects against free speech and political participation. The time has come for the legislative and judicial branches to recognize that delayed citizenship challenges violate constitutional due-process protections. Security of citizenship is an essential bedrock of our constitutional order.

Recommended.

de Montjoye, Ramadora, Valletti, & Walther on Contact Tracing Applications

Yves-Alexandre de Montjoye (Imperial College London - Department of Computing), Tarun Ramadorai (Imperial College London; Centre for Economic Policy Research (CEPR); European Corporate Governance Institute (ECGI)), Tommaso M. Valletti (Imperial College Business School; Centre for Economic Policy Research (CEPR)), & Ansgar Walther (Imperial College London) have posted Privacy, Adoption, and Truthful Reporting: A Simple Theory of Contact Tracing Applications on SSRN.  Here is the abstract:

This short paper analyses the trade-offs associated with the deployment of contact tracing applications to support policy responses in the pandemic. In many jurisdictions, the government cannot force individuals to adopt such applications. We therefore analyze a simple model that highlights the importance of individuals' incentives to voluntarily adopt a reporting application and reveal their infection status to the government who can then undertake contact monitoring. We discuss the consequences of various policy options, such as security, communication and anonymisation policies, in terms of the size and representativeness of the sample of infection data that contract tracing applications generate.

Hoss & Tanana on Tribal Sovereignty & COVID-19

Aila Hoss (University of Tulsa College of Law) & Heather Tanana (S.J. Quinney College of Law; Center for American Indian Health) have posted Upholding Tribal Sovereignty and Promoting Tribal Public Health Capacity During the COVID-19 Pandemic (Burris, S., de Guia, S., Gable, L., Levin, D.E., Parmet, W.E., Terry, N.P. (Eds.) (2020). Assessing Legal Responses to COVID-19. Boston: Public Health Law Watch) on SSRN.  Here is the abstract:

Tribes are sovereign nations with authorities and responsibilities over their land and people. This inherent sovereign authority includes the right to promote and protect the health and welfare of their communities. The COVID-19 pandemic has brought national attention to the health inequities experienced by American Indian and Alaska Native communities. The sovereign legal authority for Tribes to respond to this pandemic has received less attention. This Chapter describes some, but not all, of the urgent legal issues impacting Tribal response to the COVID-19 pandemic. It describes and identifies gaps in federal Indian health policies and highlights how Tribes have exercised their sovereignty to respond and promote resilience in the wake of COVID-19. It also provides examples of intergovernmental challenges. It highlights how ignorance of or animosity to federal Indian law has led non-Tribal governments to infringe on Tribal sovereign rights during the COVID-19 pandemic. It ends by providing a list of recommendations on how law can be better used to support Tribal responses as the pandemic unfolds.

This paper was prepared as part of Assessing Legal Responses to COVID-19, a comprehensive report published by Public Health Law Watch in partnership with the de Beaumont Foundation and the American Public Health Association.

Hoffman on the Case Against Choice of Insurance Plans under the ACA

Allison K. Hoffman (University of Pennsylvania Law School) has posted The ACA’s Choice Problem (Journal of Health Politics, Policy and Law, Vol. 45, P. 501, 2020) on SSRN.  Here is the abstract:

The Affordable Care Act (ACA) is in many ways a success. Millions more Americans now have access to health care, and the ACA catalyzed advances in health care delivery reform. Simultaneously, it has reinforced and bolstered a problem at the heart of American health policy and regulation: a love affair with choice. The ACA’s insurance reforms doubled down on the particularly American obsession with choice. This article describes three ways in which that doubling down is problematic for the future of US health policy. First, pragmatically, health policy theory predicts that choice among health plans will produce tangible benefits that it does not actually produce. Most people do not like choosing among health plan options, and many people—even if well-educated and knowledgeable—do not make good choices. Second, creating the regulatory structures to support these choices built and reinforced a massive market bureaucracy. Finally, and most important, philosophically and sociologically the ACA reinforces the idea that the goal of health regulation should be to preserve choice, even when that choice is empty. This vicious cycle seems likely to persist, based on the Democratic debates leading up to the 2020 presidential election.