Legal Theory Blog

Keenan on Living Equity

Riley Keenan (Cornell Law School) has posted Living Equity on SSRN.  Here is the abstract:

Federal courts have long assumed a flexible and dynamic power to afford equitable remedies. Recently, however, the Supreme Court has turned to historical equity practice—in some cases, the practice of England’s chancellor in 1789—to fix the scope of the federal equity power. This “equitable originalism” poses a grave threat, particularly in cases like Whole Women’s Health v. Jackson, where the Court concluded that it largely lacked the equitable powers needed to prevent a Texas abortion statute from infringing women’s constitutional rights.

This Article challenges the current Supreme Court’s historical approach. Instead of looking exclusively to history, courts should treat federal equity as a living, evolving body of doctrine whose roots ultimately trace to medieval England but whose content has been steadily refined and expanded in the United States through common law reasoning. This approach better reflects not only the founding-era statutes and cases that created and defined the federal equity power, but it also better reflects the Supreme Court’s later practice, English equity practice, and equity’s broader function in the Anglo–American legal system. Finally, it brings structure to ongoing debates over controversial equitable practices—like universal injunctions and extensions of Ex parte Young—by explaining how, why, and to what extent history matters when courts do equity today.

Highly recommended.

Simkovic & Furth on Pigouvian Contracts

Michael Simkovic (University of Southern California Gould School of Law; University of Southern California - Marshall School of Business) & Meirav Furth (UCLA School of Law) has posted Pigouvian Contracts on SSRN.  Here is the abstract:

Pigouvian taxes are often used to limit environmental externalities such as pollution. We argue that consumer contracts generate externalities by overwhelming consumers’ attention. Depleting each consumer’s attention harms consumers collectively because lower comprehension levels enable sellers to adopt less efficient and more one-sided terms. We propose to tax sellers in proportion to the costs that comprehending their contracts would impose on consumers. This would force sellers to internalize these costs and incentivize them to invest in contract simplification and forego strategic obfuscation. As a result, the costs to consumers of comprehending would decrease, and comprehension rates would rise. To further penalize inefficient contracts while reducing the tax burden on efficient contracts, we propose subsidizing consumer comprehension and information sharing efforts. Inefficient contracts would thereby be strongly disincentivized.

Highly recommended.  Download it while it's hot!

Long time readers of Legal Theory Blog will know that I became obsessed with Pigouvian taxes in 1971 as a junior in high school.  I will always be indebted to James Krier, now at the University of Michigan, but then a law professor at UCLA for the time he spent with me discussing this idea.  A real thrill for a 16 year old.

Almeida, Struchiner, & Hannikainen on Rule Violation Judgments &

Guilherme Almeida (Yale University), Noel Struchiner, & Ivar Hannikainen (University of Sheffield - Department of Philosophy; Department of Philosophy I; Pontifical Catholic University of Rio de Janeiro (PUC-Rio)) have posted Rule is a Dual Charac­ter Concept on SSRN.  Here is the abstract:

Recent experimental work revealed that rule violation judgments are sensitive to morality. For instance: when someone blamelessly violates a rule's text, about half of the participants say that the rule was violated, with the remainder saying that it wasn't. Why is that so? Current evidence is compatible with three distinct explanations. According to the pragmatic view, rule violation judgments pragmatically imply judgments of blame. Hence, the results don't tell us anything about the concept of rule itself. Instead, they are simply caused by conversational pragmatics. On the other hand, the mixed character view states that the concept of rule simultaneously combines text and purpose into a single criterion. Finally, the dual character view states that the concept of rule is similar to the concepts of scientist and father. These concepts have two distinct sets of criteria, each sufficient to determine one sense in which the concept applies. One of the criteria is descriptive, while the other is normative. In this paper, we report the results of five studies designed to adjudicate between these alternatives. Study 1 finds results that are incompatible with the pragmatic view, while Study 2 shows that the concept of rule behaves in a way that is notably different than some mixed character concepts on a linguistic test. Finally, Studies 3-5 support the idea that the concept of rule has a dual character. We consider the jurisprudential implications of each alternative.

And from the end of the paper:

[S]pell[ing] out in a precise manner both the normative and descriptive sets of criteria that guide the application of the concept of rule . . . might allow for reconciliation between rival conceptions of law. Thus, the efforts to find, on the one hand, the descriptive elements that bind together our usage of the concept of law (a task to which many legal positivists have dedicated their lives), and, on the other hand, the characteristic values associated with that usage (something that many philosophers in the natural law tradition strived to do), might be conceptualized as complementary -- rather than rival -- enterprises.

Fascinating.  Highly recommended.

Dichio & Somin on the Supreme Court & Centralization of Political Power

Michael Dichio (University of Utah - Department of Political Science) & Ilya Somin (George Mason University - Antonin Scalia Law School, Faculty) have posted Rethinking the Supreme Court’s Impact on Federalism and Centralization on SSRN.  Here is the abstract:

This article examines the U.S. Supreme Court’s impact on centralizing and decentralizing power in the American federal system. Through an original database of nearly 700 landmark constitutional decisions, we show that the Court has contributed to the centralization of political power, defined in the traditional sense of expanding federal government authority relative to that of states and localities. But it has also promoted decentralization by protecting individual rights against state and local governments. The impact of the Court also tends much more toward decentralization if we classify decisions upholding federal laws against challenge, as neutral, rather than centralizing. These two crucial methodological points have been largely neglected in previous analyses of the Court’s impact on federalism and centralization. There are, in many situations, good reasons to adopt them. We also present multiple models for understanding how the Court affects federalism.

Our analysis calls into question the traditional picture of the Court as a consistent force for centralization. It also raises serious questions about the conventional wisdom on the impact of the Court on centralization during specific periods in American history.

Recommended.

d'Aspremont & Zhang on China & International Law

Jean d'Aspremont (Sciences Po Law School; University of Manchester - School of Law) & Binxin Zhang (Sciences Po) have posted China and International Law: Two Tales of an Encounter (34 Leiden Journal of International Law (2021) 899-914) on SSRN.  Here is the abstract:

This article examines how the encounter between China and international law is narrated in the English- speaking and Chinese literature and sheds light on the politics thereof. It particularly shows that the English-speaking and Chinese-speaking literature diverge as to the order of meaning in which the encounter between China and international law is registered. It demonstrates that the divergences between these bodies of literature are everything but innocent.

Dedek on H. Patrick Glenn's Cosmopolitan Jurisprudence

Helge Dedek (McGill University - Faculty of Law) has posted Where the ‘Real Action’ is: From Comparative Law to Cosmopolitan Jurisprudence (Helge Dedek (ed.), A Cosmopolitan Jurisprudence. Essays in Memory of H. Patrick Glenn (Cambridge: Cambridge University Press, 2022) 3-25) on SSRN.  Here is the abstract:

H. Patrick Glenn, Professor of Law and former Director of the Institute of Comparative Law at McGill University, passed away in 2014. This chapter is the introduction to a collection that intends to honor Professor Glenn’s intellectual legacy by engaging critically with his ideas, focusing on the theoretical dimension of his work and especially his vision of a ‘critical cosmopolitan jurisprudence'. To this end, the collection brings together an international group of leading scholars in comparative and transnational law, legal philosophy, legal sociology, and legal history.

This introductory chapter situates Professor Glenn’s work within the context of his trajectory as a scholar of comparative law who came to believe in the potential of a 'comparative' mindset to inform general theories of law. The chapter examines critically the conceptualization of law as ‘tradition,’ one of the central tenets of Glenn's thought, and his postulate of the 'conciliatory' potential of such an approach. Can law indeed be theorized as an organic, self-sustaining yet open discourse, without borders and demarcation lines? Can it be theorized successfully without acknowledging the significance of concepts such as power, force, and violence?

Hathaway on the Alien Tort Statute & the Nestle & Cargill Cases

Oona A. Hathaway (Yale University - Law School) has posted Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe: The Twists and Turns of the Alien Tort Statute on SSRN.  Here is the abstract:

For four decades now, the Alien Tort Statute (ATS) has been one of the most important tools for pursuing justice for human rights victims in the United States. The statute’s latest trip to the Supreme Court came in the October Term 2020 in a pair of cases: Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe, which were brought by former child slaves trafficked from Mali to Côte d’Ivoire to work on cocoa plantations. The Court granted certiorari to consider whether the ATS could be used to seek compensation from corporations. The decision, issued in June 2021 in the final weeks of the Term, never reached the issue. The Court held instead that the plaintiffs inappropriately sought to apply the ATS extraterritorially.

After providing some background on the cases, this essay will address three key issues that arose in the Court’s decision in the cases. First, it will consider the fight over Sosa’s legacy illuminated in an exchange between the opinion authored by Justice Clarence Thomas and the opinion authored by Justice Sonia Sotomayor. Second, it will examine the surprise win for the plaintiffs on the question of corporate liability. Third, it will examine the likely impact of the Court’s decision on extraterritorial application of the ATS. And, finally, it will argue that it is time for Congress to legislate to ensure accountability for human rights violations carried out by U.S. citizens and corporations even if carried out beyond the territory of the United States.

Kozel on Content Neutrality

Randy J. Kozel (Notre Dame Law School) has posted Content Under Pressure on SSRN.  Here is the abstract:

The government generally may not punish speakers based on the content of their speech. Or so the story goes. While American courts frequently describe content neutrality as a foundation stone of expressive liberty, the results do not track the recitations. A systematic analysis of free speech jurisprudence reveals that content-based laws remain perfectly acceptable in a host of contexts.

The pervasiveness of content discrimination requires a reorientation of First Amendment doctrine. The core precept of expressive liberty under the U.S. Constitution is that the government may not punish speakers for their positions or perspectives. The cases reveal that so long as viewpoint neutrality prevails, content discrimination often poses no constitutional problem.

Highly recommended.

Witt on the Law of Pandemics & American History

John Fabian Witt (Yale University - Law School) has posted American Contagions: Unexpected Pasts, Unwieldy Presents, and Contested Futures (University of St. Thomas Law Journal, 2022) on SSRN.  Here is the abstract:

This article aims to trace three different features of the law of pandemics. First, I describe an unexpected history of epidemics in the United States, one that I think will be surprising to many Americans and that looks different than one might have imagined. Second, I turn to our unwieldy present, with its cacophony of different points of view and perspectives and account for some of the controversies that have arisen in the law of pandemics in the last year or so. Third, I do what historians should never do: I will make a couple predictions about our contested future—or at least try to shine a light on some of the directions we might be headed.

van den Brink on the EU Citizenship Rights Test

Martijn van den Brink (Hertie School of Governance) has posted Time to Abolish the Substance of EU Citizenship Rights Test? (European Journal of Migration and Law (2021) 23, pp. 13-28) on SSRN.  Here is the abstract:

It is almost ten years since the CJEU decided in Ruiz Zambrano that Article 20 TFEU ‘precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union’. Much was uncertain after this judgment was delivered, but the CJEU has developed an important line of cases clarifying when the substance of rights test applies. Can we make sense of the substance of rights test ten years on? Having explained relevant legal developments, the article addresses certain inconsistencies and unresolved puzzles in the CJEU’s reasoning. First, contrary to what the Court initially appeared to suggest, EU citizens can be deprived of the genuine enjoyment of the substance of their rights. Second, contrary to what the Court used to suggest, the substance of rights test is not independent from but grounded in the right to move and reside freely within the Member States. Therefore, the same level of protection can be conferred on EU citizens without this test, simply by relying on EU free movement law. The paper concludes by suggesting that these deficiencies can only be resolved by reconsidering the substance of rights test altogether.