Legal Theory Blog

Schearer on Freedom of the Press in Civil War Maryland

Michael Schearer (Liberty University, Department of History) has posted The Lincoln Administration and Freedom of the Press in Civil War Maryland on SSRN.  Here is the abstract:

Across all of American history, the accumulation of state power during times of war and national emergency has been the most destructive threat to freedom of the press. Clashes between the government and the press have occurred as early as the Quasi-War with France and recently as the War on Terror. Freedom of the press came under sustained assault during World War I and again during the Vietnam War. But perhaps the most outrageous violations of freedom of the press came during the Civil War.

Although suppression of freedom of the press by the Lincoln Administration took place across a broad swath of the Union, the battle between government and press was particularly acute in border states because of their slave populations and secessionist sentiments. In particular, Maryland presented a complex challenge to President Lincoln during the Civil War. The people of the slaveholding state were sympathetic to the South, but its economy was becoming increasingly integrated with the industrial North. Most importantly, Maryland's strategic location placed it on three sides of Washington, D.C.; and its secession would leave the national capital completely surrounded by the Confederacy.

Deciding that the loss of the capital would be intolerable to the war effort, the Lincoln administration suspended the writ of habeas corpus as part of a larger, deliberate campaign to keep Maryland in the Union. The suspension was the foundation upon which the administration suppressed freedom of the press in Maryland. This strategy involved imprisonment without trial of journalists and publishers, seizing their property, deportation beyond the Federal lines, shuttering of their newspapers, and barring their publications from using the mails. These events represented among the most egregious violations of civil liberties in American history.

Kalanic, Gutierrez, & Marchant on Products Liability & AI Soft Law

Joshua D. Kalanic (Arizona State University (ASU), Sandra Day O'Connor College of Law, Students), Carlos Ignacio Gutierrez (Arizona State University (ASU) - Sandra Day O'Connor College of Law), & Gary E. Marchant (Arizona State University - College of Law) have posted AI Soft Law and the Mitigation of Product Liability Risk on SSRN.  Here is the abstract:

Artificial intelligence systems present various types of risks, but are generally not subject to comprehensive government regulation at this time. Soft law measures such as private standards have been developed to fill this governance gap, but a major limitation of such standards is that they are not directly enforceable, and so many companies may not comply with them. This article examines the thesis that compliance with soft law standards may provide some protection from product liability, thus providing additional incentive for companies to adopt and comply with such standards. Using U.S. case law as the focus of analysis, compliance with private standards does not provide an absolute shield against liability, but can provide persuasive evidence of due care that can diminish liability risks in most U.S. state jurisdictions. Conversely, while failure to abide by soft law standards does not automatically result in liability, it can provide probative evidence that a company has not exercised due care, and thus should be held liable. Moreover, compliance with soft law standards can provide an effective defense against punitive damages in many States if a company’s AI system does harm people or property and is held liable for compensating such damages. These findings suggest that protecting against such liability provides a powerful incentive for companies to comply with soft law standards.

Godfrey on Group Protest by Prisoners

Nicole B. Godfrey (University of Denver Sturm College of Law) has posted 'Inciting a Riot': Silent Sentinels, Group Protests, and the Importance of Protecting Prisoners' Petition and Associational Rights (Seattle University Law Review, Vol. 43, No. 4, 2020) on SSRN.  Here is the abstract:

This Article argues for increased legal protections for prisoners who choose to engage in group protest to shed light on the conditions of their incarceration. A companion piece to a similar article that focused on prisoner free speech rights, this Article uses the acts of protest utilized by the Silent Sentinels to examine why prisoners’ rights to petition and association should be strengthened. By strengthening these rights, the Article argues that we will advance the values enshrined by the First Amendment’s Petition Clause while simultaneously advancing the rights of the incarcerated millions with little to no political power.

The Article proceeds in three parts. First, Part I provides the historical background necessary to understand the utility of the Silent Sentinels as an example demonstrating the importance of protecting the rights to petition and association for the disenfranchised. From there, Part II provides an overview of the doctrinal law associated with prisoners’ rights to petition and associate. Part II also discusses the deference to prison officials inherent to First Amendment doctrine as applied to prisoners. Finally, Part III examines how the activities of the Silent Sentinels amount to what almost all prison systems call “inciting a riot” under modern prison regulations and argues that such a result is inconsistent with the purpose and values of the First Amendment. Part III concludes by cataloguing examples of modern prison protest and calling for more robust protections for such protest.

Brown on Mental States & Negligence Law

Teneille R. Brown (University of Utah - S.J. Quinney College of Law) has posted Minding Accidents on SSRN.  Here is the abstract:

This article is about a fascinating, unexplored paradox in negligence doctrine. Respected treatises and textbooks tell us that proving breach does not require knowing anything about the defendant’s mental states. Deciding whether the defendant's conduct was objectively unreasonable should be based solely on his external, observable conduct. This distinguishes civil negligence from the more moralistic criminal law, by avoiding the messiness of mens rea inferences. At the same time, most jurisdictions have incorporated the “reasonable foreseeability” test for duty, breach, and proximate cause—a test that I will demonstrate requires interrogating what the defendant subjectively knew, perceived, and imagined. This creates a confusing form of doublespeak, where mental state inferences exist everywhere while not being explicitly allowed anywhere.

I submit that foresight is considered a “malleable standard” and “vexing morass” precisely because of this doublespeak. We have failed to recognize that foresight is an epistemic, mental state. Its evaluation by jurors therefore occurs in the shadows of the law, without any judicial instruction or guidance. Once we appreciate that foresight is an epistemic state, we can see how it maps directly on to the psychological construct of “episodic foresight,” a process which has been rigorously studied. Relying on this established literature, I deconstruct the psychological components of foresight to imbue the legal concept with greater precision and validity.

My analysis reveals a few key things. First, when outcomes are bad, assessments of foresight are notoriously inflated, often in counterintuitive ways. Second, foresight always depends on the defendant's idiosyncratic mental states and values (such as the avoidance of guilt, semantic knowledge, or prioritizing short-term gains), which often cannot be labeled objectively unreasonable or reasonable. Finally, on average, healthy adults are terrible at anticipating and predicting the future. Because jurors are not instructed on the necessary components of foresight, and how fallible each of them is, they likely fail to calibrate “reasonable foreseeability” to a norm of poor performance.

Highly recommended.

Gebru on Fashion Design Copying & the Rationale for IP

Aman Gebru (Duquesne University School of Law) has posted The Piracy Paradox and Indigenous Fashion (Cardozo Arts & Entertainment Law Journal, Vol. 39, No. 2, 2021) on SSRN.  Here is the abstract:

The conventional justification of intellectual property laws is that recognizing exclusive rights is indispensable for encouraging creativity. The Piracy Paradox challenged this assumption by providing strong evidence of the fashion industry’s robust creativity in the face of widespread copying of designs, thereby suggesting that some types of creativity may not need exclusive rights. This Article examines the applicability of the piracy paradox in the context of non-Western cultures. It categorizes indigenous fashion as those open to commercialization and those closed to it. With some important caveats, this Article suggests the piracy paradox may apply to indigenous fashion that is open to commercialization. However, tolerance of unauthorized copying, which is at the core of the piracy paradox thesis, does not seem to exist in the case of sacred or restricted indigenous fashion. Instead of resulting in more creativity, unauthorized copying of indigenous fashion has created the hot-button issue of cultural appropriation and a relationship of mistrust between source communities and mainstream designers. This Article concludes by suggesting that recognizing enforceable cultural rights, creating professional ethical principles, and implementing corporate social responsibility standards can serve as mechanisms of creating a harmonious relationship between indigenous communities and mainstream fashion designers.

Moraru on the EU Right to Asylum

Madalina Moraru (Centre for Judicial Cooperation (RSCAS); Masaryk University - Faculty of Law) has posted The EU Fundamental Right to Asylum: In Search of its Legal Meaning and Effects (Iglesias Sánchez and González Pascual(eds), Fundamental Rights in the EU Area of Freedom, Security and Justice (Cambridge University Press 2021)) on SSRN.  Here is the abstract:

This chapter analyses the scope, content and justiciability of the EU fundamental right to asylum, as laid down in Article 18 of the EU Charter of Fundamental Rights, as these are still open questions. In addressing these questions, the chapter will begin by analysing the scope of application of the EU fundamental right to asylum as interpreted by the CJEU. It will then turn to the content of the EU fundamental right to asylum. To this end, it will first consider the case law of the CJEU and domestic courts interpreting Article 18 and then additional legal sources, focusing in particular on the principle of non-refoulement enshrined in the Refugee Convention and the rights to asylum provided for in the EU Treaties and domestic constitutions. In conclusion, the author shows that the legal meaning of the right to asylum and its effectiveness have been clarified and enhanced by national courts rather than the CJEU, although the CJEU’s contribution has been essential in enhancing procedural safeguards concerning the EU fundamental right to asylum.

Hammer on "Fulfillment" by MacGillis & "Amazon Unbound" by Stone

Josh Hammer (Edmund Burke Foundation; Newsweek) has posted How Do You Solve a Problem Like Amazon? (American Affairs Journal) on SSRN.  Here is the abstract:

Jeff Bezos' Amazon is the sine qua non of the Digital Age. But the company is also deeply problematic, insofar as the immense clout and monopolistic influence it wields over an otherwise-sovereign citizenry.

This essay, partially a book review of two recent books about Amazon and Bezos, also considers what legal tools we should consider to rein in Amazon and its fellow Big Tech oligarchs. An atrophying citizenry awaits whether our elected officials will wake up and break up Amazon before it is too late.

Vollmer on SEC Authority to Adopt Climate-Change Disclosure Rules

Andrew N. Vollmer (Mercatus Center at George Mason University) has posted Does the SEC Have Legal Authority to Adopt Climate-Change Disclosure Rules? on SSRN.  Here is the abstract:

The Securities and Exchange Commission is planning to propose new mandatory disclosure rules on climate change without further statutory authority from Congress. The purpose of this comment is to explain that the SEC does not currently have statutory authority to adopt such disclosure rules.

When evaluated against the Supreme Court’s normal and straightforward method of determining an agency’s rulemaking power, the two main securities acts limit the SEC’s power to issue disclosure rules to specific types of information, such as the business of the company selling the securities, the management, capital structure, and financial statements. Climate-change disclosure rules would have a different subject matter and a different objective from the kind of disclosure requirements Congress permitted the SEC to write.

The need for the SEC to have explicit statutory power for climate-change disclosure rules is important to the U.S. form of self-government and the accountability of government officials to the voters. The SEC should respect the role of Congress in setting national policy and stay within the bounds of its statutory authority.

This paper was written in anticipation of the SEC, as a full commission, voting to request public comment on a climate-change disclosure proposal. It will be adapted as a comment and will be filed with the SEC shortly after that.

Grad & Turnbull on COVID-19 & Harmful Speech

Kenneth Grad (York University, Osgoode Hall Law School) & Amanda Turnbull (York University, Osgoode Hall Law School; Ethics, Law & Society, Trinity College, University of Toronto) have posted Harmful Speech and the COVID-19 Penumbra (Canadian Journal of Law and Technology, Vol. 19, No. 1, July 2021) on SSRN.  Here is the abstract:

There has been a disturbing rise in harmful speech during COVID-19. Many have been shocked by the deluge of malign information, which has disseminated widely and rapidly on account of technological advancement, globalization, and digital interconnectivity. But we should not have been surprised. The historical record reveals that pandemics inevitably lead to an increase in false information and hate speech. This paper makes two central claims. First, the themes of disinformation have remained remarkably consistent across pandemics. We illustrate this through an examination of harmful speech that has spread during three prior pandemics and the current pandemic. COVID-19 is unique only in the ease with which disinformation has spread, amplified, and reverberated over the internet. Second, we argue that COVID-19 presents a unique and valuable opportunity to tackle online disinformation. We highlight three promising avenues for combating harmful online speech that have emerged during COVID-19 and suggest avenues for further inquiry. In so doing, we seek to inspire a discourse of resilience. Technology presents both the problem and the solution; through emphasis on effective measures at combating online harms, we can heed the lessons of the past and provide for a better future and a safer online environment.

Harpaz on Tax Policy & COVID-19

Assaf Harpaz (Duke University, School of Law) has posted Tax Policy and COVID-19: An Argument for Targeted Crisis Relief (Cornell Journal of Law and Public Policy, Forthcoming) on SSRN.  Here is the abstract:

The COVID-19 pandemic caused a sharp global economic decline. The U.S. government responded to the downturn with record fiscal legislation totaling over $5 trillion, which includes considerable tax relief. Most notably, the U.S. government distributed over $800 billion in three rounds of advanced refundable tax credits (known as recovery rebates, or stimulus checks) to most households. Tax relief has been unprecedented in scale but has often been the product of political circumstances rather than theorized conception. Tax relief thus remains largely undertheorized and politically motivated.

This Article examines the U.S. tax policy response to the COVID-19 crisis, focusing on recovery rebates for individuals. It evaluates considerations for reforming tax relief and proposes several changes for future crises. First, the Article recommends targeting credits towards low-income households. This should be accomplished by decreasing phase out thresholds and increasing credit amounts. Second, the Article recommends targeting credits towards households which lost income or whose income did not substantially increase. This should be accomplished by implementing a recapture (repayment) requirement at the end of the tax year from households whose income increased beyond the phase out threshold, subject to a safe harbor. These proposals increase vertical equity and effectiveness, allow increased aid to those who suffered the most and enhance economic stimulus. Additionally, the Article explores arguments for universal benefits and recurring payments. It thereby examines the widely publicized debate on fiscal response to COVID-19 and suggests meaningful improvements to tax policy response for future crises.