Legal Theory Blog

Lordan on Legal Ontology

Thomas Lordan has posted Legal Ontology: Does 'The Law' Exist? on SSRN.  Here is the abstract:

People in all walks of life, but especially lawyers and judges, often refer to “the law.” But is “the law” something that exists? The paper considers that question, with special attention to the works of Eric Voegelin and Steven D. Smith, who each, in his own way, considered the question. The paper also seeks to illuminate the question by considering the current practice of law, law in the United States Supreme Court, law in prehistory and history, and other thinkers on law.

Kovvali on Essential Businesses and Shareholder Value

Aneil Kovvali (University of Chicago Law School) has posted Essential Businesses and Shareholder Value (University of Chicago Legal Forum, Vol. 2021) on SSRN.  Here is the abstract:

The COVID-19 crisis has demonstrated that Americans rely on certain for-profit corporations to supply the essentials of everyday life. Even though the government had assumed extraordinary responsibilities for the wellbeing of its citizens for the duration of the crisis, for-profit companies were deemed so essential to social functioning that workers were sent to keep them running despite the risk of infection with a deadly disease. If our society’s capacity to meet basic needs in a crisis is entirely dependent on the capacity of private corporations, it is necessary to critically evaluate the performance of the directors and officers who lead these companies, and to ask whether their pre-crisis decisions were made within an appropriate framework of incentives. Recent experience suggests good reasons to question whether our existing system of corporate governance has proven equal to the outsized role of key corporations. Various corporations were not prepared to operate safely at appropriate levels during a crisis, creating enormous economic and public health risks. These issues were at least plausibly caused by an over-emphasis on short-term profit maximization within a specific pre-crisis operating environment, and a failure to address the undiversifiable risks associated with a potential disruption. While external regulation and coordination by the government is a critical part of the solution to this problem, new corporate governance tools could play a valuable role in ensuring that directors and officers recognize and carry out a duty to build resilient organizations. This Article discusses one possible tool: a focused liability regime that would hold the directors and officers of corporations running essential businesses liable if they fail to prepare for crises.

Foohey & Sternberg on Credit Scoring

Pamela Foohey (Yeshiva University - Benjamin N. Cardozo School of Law) & Sara Sternberg Greene (Duke University School of Law) have posted Credit Scoring Duality (Law and Contemporary Problems, Vol. 58, Forthcoming 2022) on SSRN.  Here is the abstract:

Credit scoring is central to people’s financial growth and prosperity or financial decline and stagnation. People with a good credit score and accompanying credit report can buy opportunities to advance economically. The benefits they reap from their attractiveness to lenders and employers helps feed their future success. In contrast, people with a fair or poor credit score become stuck in cycle of high interest rates and costly loan terms, large required down payments, and denied applications for rentals, cell phone plans, and employment. Employers, service providers, lenders, and alternative financial service providers have begun to use alternative credit scoring models, which rely on data not typically tracked by the three major credit bureaus, such as income, rental history, and subscription services. Although touted as beneficial, the use of this alternative data does not necessarily make people more attractive because they perform below-average on many of the inputs. For instance, they earn lower salaries and have imperfect rental histories. Ultimately, most of the people with fair and poor scores, however calculated, find it nearly impossible to erase the blemishes that feed those scores. This essay, written as part of Two Americas symposium, details how the increasing reliance on credit scores has made this type of scoring integral to people’s access to the gates of economic citizenship. The increasing reliance on credit scoring has helped perpetuate and fuel household economic inequality. The essay concludes with a proposal for how to support people who lack the credit history or family assistance often needed to succeed in a financial world that depends on scoring.

Witte on "The Impact of the Law on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies," edited by Witte, et al.

John Witte (Emory University School of Law) has posted 'Introduction,' to John Witte, Jr., et al., eds., The Impact of the Law on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies (“Introduction,” to John Witte, Jr., et al., eds., The Impact of the Law on Character Formation, Ethical Education, and the Communication of Values in Late Modern Pluralistic Societies (Leipzig: Evangelische Verlagsanstalt GmbH, 2021), 15-30) on SSRN.  Here is the abstract:

This is an introduction to an interdisciplinary and international study of whether, how, and where laws (variously defined) teach values and shape moral character in late modern liberal societies. All sixteen authors of these studies recognize the essential value of state law in fostering peace, security, health, education, charity, trade, democracy, constitutionalism, justice, and human rights, among many other moral goods. But they also recognize the grave betrayals of and by law in supporting fascism, slavery, apartheid, genocide, persecution, violence, racism, and other forms of immorality and injustice. The authors thus call for state laws that set a basic civil morality of duty for society but also guarantee robust freedoms that protect private individuals and private groups to cultivate a higher morality of aspiration.

Highly recommended.

Skolnik on Precedent, Principles, & Presumptions

Terry Skolnik (University of Ottawa, Faculty of Law, Civil Law Section) has posted Precedent, Principles, and Presumptions ((2021) 54:3 UBC Law Review 935) on SSRN.  Here is the abstract:

Judges frequently resort to three adjudicative tools to decide cases: precedent, principles, and presumptions. First, courts consider precedent and draw analogies between past decisions and the case before them. Second, judges evaluate legal principles. They employ multi-factor balancing tests and frameworks to reconcile competing principles. Third, judges create presumptions that ease evidentiary burdens and provide default ways to resolve disputes. Although each of these three adjudicative tools appear distinct, they are not mutually exclusive. They overlap and interact with one another in an ongoing organic process that shapes the law’s evolution.

This article offers a novel account of the relationship among precedent, principles, and presumptions. It argues that these three adjudicative tools intersect with each other in important ways and demonstrates how they can correct one another’s respective deficiencies. It also shows that one particular adjudicative tool – presumptions – fulfils functions that theorists traditionally overlook.

Presumptions correct legal frameworks and multi-factor balancing tests that misfire, support principled asymmetries, promote access to justice, and shape choice architecture in adjudication. Drawing on the past several decades of Supreme Court of Canada jurisprudence in the area of public law, this article discusses why the Court is increasingly creating presumptions in the realms of criminal law, administrative law, and constitutional law.

Highly recommended.

Kyritsis on "Legal Directives and Practical Reasons" by Gur

Dimitrios Kyritsis (University of Essex) has posted Disposition Goes a Long Way: Review of N Gur, Legal Directives and Practical Reasons (OUP 2018) on SSRN.  Here is the abstract:

My chief aim in this comment is to interrogate a structural feature of Noam Gur's Legal Directives and Practical Reasons, namely the way it conceives of -and is affected by- the connection between the question about law’s practical difference, which Gur takes himself to be answering, and the inquiry into what makes something part of the law, which he treats as distinct and largely brackets in his analysis. It is fair to say that in recent years it is the latter inquiry that has received the most scholarly attention, and in this respect Gur offers a welcome and refreshing reframing of old problems. But, as I shall argue, keeping both inquiries in sight yields important philosophical benefits. Conversely, trying to explain law’s practical difference without coming clean on what one thinks about what makes something part of the law carries theoretical hazards, to which Gur’s theory is not immune.

Meskic on Lex Mercatoria & International Arbitration

Zlatan Meskic (Prince Sultan University) & Almir Gagula (University of Zenica) have posted Lex Mercatoria and Its Limits in International Arbitration (Nederlands Internationaal Privaatrecht 2020) on SSRN.  Here is the abstract:

This contribution aims to provide guidance on the usual steps an arbitrator undertakes when using lex mercatoria in international arbitration. The first step is the identification of rules that represent lex mercatoria and deserve such a qualification. It involves a discussion on the private international law analysis, especially absent a choice of law by the parties and its relationship to (potentially) applicable national law. The statistics presented in this paper show that parties in an overwhelming majority of cases choose national law as the applicable law and that lex mercatoria needs to co-exist with national law. Here, the joint use of national law and lex mercatoria is discussed in the context of the example of construction arbitration as the most common area of international arbitration practice. The growing popularity of certain legal solutions of lex mercatoria in procedural or substantive matters followed by a codification trend contribute to an effect of a rebuttable presumption in the fields of its application. This triggers the question as to how the right to be heard can be preserved, especially when the initiative for the use of lex mercatoria does not come from the parties, but from the arbitral panel. The lack of a strict judicial review of the applicable law used in arbitration gives the arbitrators the power to find the right balance between the guidance offered by lex mercatoria and parties’ expectations.

Smith on Non-Carceral Responses to Rape Culture

Charisa Kiyô Smith (CUNY School of Law) has posted At the Crossroads of Rape Culture: Non-Carceral Responses for #MeToo Era Youth (Ohio State Journal on Dispute Resolution, Forthcoming Spring 2022) on SSRN.  Here is the abstract:

Despite the #MeToo movement, the flashpoint confirmation hearing of Supreme Court Justice Kavanaugh involving alleged high school peer sexual assault, and heightened public awareness about sexual and gender-based violence (SGBV), the experiences of individuals under age 18 remain largely ignored, mishandled, and misunderstood. Remedies for SGBV among minors are likewise under-examined and ineffective, despite a crisis that cannot be understated. Failure to aptly address incidents of SGBV perpetuates cycles of oppression and presumes that the “rape culture” and “toxic masculinity” underlying frequent incidents of harm are inevitable. This author’s recent work critiqued the current criminal law paradigm for responding to SGBV among youth, created an interdisciplinary typology of instances of SGBV, and proposed a tiered response system defaulting to public health education and harm-reduction, which reserves justice system intrusion and state surveillance of youth as a last resort for the most severe situations. The present Article contends that noncarceral approaches, including alternative dispute resolution (ADR) interventions like restorative justice, incorporate notions of both individual and collective harm and remedy and enable impactful, real-time incident response in comparison with traumatizing criminal and juvenile system sanctions. Likewise, noncarceral frameworks like transformative justice incorporate far more than incident response and provide long-term solutions. Contrastingly, prevailing response systems—including adversarial legal proceedings, institutionally enforced statutory remedies, punitive informal interventions, and outright neglect of response—rely on the retributive paradigm and are failing youth. Much SGBV involves individuals perpetuating harms that they themselves and/or their families and communities of origin experienced, while youth culture is also largely reflective of society as a whole. Predominant modes of redress for SGBV among youth should thus serve the combined purposes of fostering behavior modification in individual wrongdoers, delivering survivor justice, addressing root causes of SGBV throughout society, and healing intergenerational wounds for long-term transformation in the digital age.

The empirical reality is stark. As many as 81% of students between grades 8 and 11 report experiencing school sexual harassment, and girls ages 12-17 have the highest rate of sexual assault victimization among other female populations. These figures are undoubtedly low as much victimization goes unreported—particularly among under protected populations like youths of color, males, and gender non-conforming or LGBTQIA+ youth. Engaging the consciousness of the #MeToo movement—one of newfound courage and tenacity among survivors—means envisioning more agency for young survivors and farther-reaching responses to SGBV. Court systems and public schools have failed to create appropriate, safe, formal modes of redress. The Trump Administration’s May 2020 revisions to Title IX rules increase the likelihood that young survivors will be less informed of their rights, more reluctant to disclose harassment and violence to educational authority figures, and less capable of proving actual abuse. The backdrop of the COVID-19 pandemic unfortunately further assures that institutional attention towards SGBV among youth may be temporarily diverted elsewhere.

Youth stand squarely at the crossroads of rape culture. They are impacted by the survivor-driven rhetoric of the #MeToo movement and statistically most victimized, and yet they are met with flailing response systems and communities that are apologist or ill-equipped at best, and hostile at worst. Scholars and advocates contest the suitability of ADR approaches for SGBV altogether, and lawmakers and communities lack tools to re-imagine solutions. However, when asked, youths themselves often seek real-time responses that exist outside the bounds of what legal systems and formal processes allow, while research confirms that adversarialism and carceral protection retraumatize survivors, shame accused offenders, fragment communities, and propagate over-incarceration. The status quo approach is unacceptable if it communicates to minors (and arguably other survivors) that their experiences of fear and harm are unimportant, that response systems do not require change, or that nothing will improve either way.

This article moves beyond the retributive binaries of victim and offender, harm and remedy, to prioritize survivor empowerment, youth development, reconciliation, prevention, and both individual and societal transformation. After discussing the reasons why noncarceral interventions for SGBV among youth are an essential next step, this article discusses such interventions in theory, history, and current practice, before recommending baseline best practices and replication. Although the fields of criminal justice, children’s rights, and family law consistently wrestle with the continuum of human maturity in setting legal boundaries and rules, young survivors and their peers may be best positioned to articulate their own needs and cultural status, to implement realistic problem-solving, and to foster capacity-building towards a more respectful, evolved, society.

Lawson on Fat Rights

Nicholas D. Lawson (Georgetown University Law Center) has posted Fat Rights, Public Health Oppression and Prejudice, and the 'Obesity Epidemic' on SSRN.  Here is the abstract:

The pervasiveness, frequency, and intensity of fat shaming, bullying, and harassment experienced by fat people is well-documented, and three quarters of the American public support antidiscrimination protections for fat people. Yet fat people remain unprotected from discrimination under federal and state law in all but two jurisdictions. This Essay traces these problems to the agendas of public health leaders, their organizations (the Centers for Disease Control and Prevention and the World Health Organization), and associated industries, who are fighting an “obesity epidemic.” It describes some of the fat-shaming strategies and persistent public-health-crisis framings, sensationalizing their results to attract news attention, boost their visibility, and attract more funding for their research. Their behaviors ensure profits for a $50 billion diet industry and a market for prescription weight loss drugs. A review of empirical evidence reveals, however, that almost all medical and environmental interventions for weight loss have little to no evidence of effectiveness. Environmental interventions are also opposed by the public, fat people, and especially fat rights advocates, who describe them as stigmatizing. The Essay then reveals and unpacks possible prejudices underlying the public health approach and suggests fat rights advocates ally with other groups affected by medical marginalization to end the public health oppression of fat people and put them in charge of the policies and systems purported to benefit them.

Kaye on Hate Speech Regulation

David Kaye (University of California, Irvine School of Law) has posted The Troubled World of Hate Speech Regulation (Journal of Human Rights, 2022, forthcoming) on SSRN.  Here is the abstract:

Three recent books enter the international debate over hate speech and human rights law, from a high-altitude affirmation of the underlying principles of freedom of expression and the contemporary headwinds it faces, to a specific evaluation in democratic transitions, to a legal and empirical assessment of how the speech crime of incitement to genocide has been muddled by international criminal tribunals. The work reviewed highlights the general confusion around the regulation of hate speech not just in the context of how values in speech and non-discrimination relate to one another in democratic societies. The confusion exists in the context of international criminal law as well. The essay also makes the case for growing commonality of norms in the international law governing civil and political rights and the elimination of all forms of racial discrimination.