Legal Theory Blog

Daly on COVID-19 Law in Canada

Paul Daly (University of Ottawa - Common Law Section) has posted COVID-19 in Canada: The Legal Framework on SSRN.  Here is the abstract:

In the legal framework for Canada’s pandemic response, executive government has been the dominant actor. The responsibility of balancing public health and economic well-being in rapidly evolving circumstances has been discharged by executive actors, elected ministers and unelected healthcare officials. Given the federal nature of the Canadian Constitution and the dominant role of executive government in the pandemic response, there has been a high degree of variation across the country in dealing with successive waves of COVID-19.

With successive waves of COVID-19 sweeping into Canada and over the population, the political and legal systems struggled to respond. The legal scholar charged with describing Canada’s COVID-19 response faces an unenviable task. Each of the COVID-19 waves would merit a detailed analysis in and of itself but space precludes such an approach. My goal, therefore, is to set out the general framework Canada’s political and legal systems have used to respond to the pandemic, illuminating the framework by examples drawn from various points in time. This framework is mostly backward-looking but, as it is likely to be used in response to future waves and future pandemics, it has also a forward-looking quality.

Bray & Miller on Christianity & Equity

Samuel L. Bray (Notre Dame Law School) & Paul B. Miller (Notre Dame Law School) have posted Christianity and Equity (Oxford Handbook of Christianity and Law (Forthcoming)) on SSRN.  Here is the abstract:

In this chapter for the Oxford Handbook of Christianity and Law, we survey the line of development of equity from Aristotle to the chancellors of the English Court of Chancery. In between, we trace equity through Roman law, the New Testament, scholastic theology, canon law, and the Magisterial Reformation. We conclude by noting ways in which contemporary law still bears the imprint, even if faint, of classical and Christian sources of the equity tradition.

Highly recommended.

Dempsey on Consent

Michelle Madden Dempsey (Villanova University School of Law) has posted The Normative Force of Consent in Moral, Political, and Legal Perspective (in Tatjana Hörnle (ed.), SEXUAL ASSAULT AND RAPE -- WHAT CAN WE LEARN FROM AND FOR LAW REFORM? (Oxford University Press)) on SSRN.  Here is the abstract:

Does sex require justification? If so, what role does consent play in providing such justification? Here I argue the answer to these questions depends on the normative perspective at issue: moral, political, or legal. Part one explains each perspective. Parts two, three, and four examine the normative force of consent to sex when viewed from each perspective. The conclusion briefly considers the relevance of this analysis for criminal law reform regarding sexual offenses.

Highly recommended.

Bratu on AI on the Moon

Ioana Bratu (Vrije Universiteit Amsterdam, Transnational Legal Studies, Amsterdam Law & Technology Institute) has posted Artificial Intelligence for Future Lunar Societies: A Critical Analysis of the Liability Problem (5th Global Moon Village Workshop & Symposium. December 6-8, Nicosia, Cyprus (2021)) on SSRN.  Here is the abstract:

Artificial intelligence (AI) is transforming the space industry by offering unprecedented possibilities for space related activities. AI applications in space include from analyzing large amounts of space data, enabling deep-space missions, mitigating the effects of climate change, combating space pollution, to assisting astronaut crews during their daily operations. In the context of building future human societies on the Moon, AI systems will play a double role: an ex-ante preparation role and a societal consolidative role. AI systems used in the ex-ante preparation phase include various applications used for exploration investigations and they will be decisive for the scientifical understanding of the future Lunar habitat.

Once the habitats will be settled, AI systems will contribute for consolidation, playing an assistive role, among others. AI systems will be able to offer support in daily activities, including offering mental health assistance. Similar systems have already been successfully deployed on the International Space Station, for crew assistance.

The introduction of AI systems as part of future Lunar habitats does not come without corresponding risks, especially from a legal perspective. Several legal challenges may appear in the context of a high reliance on these systems, such as: who will be liable in case an AI system will be involved in accidents causing economic losses or loss of human lives? What type of legal framework will be required to mitigate such risks? Will the existing body of laws representing international space law remain sufficient for addressing these challenges?

In such context, the purpose of this paper is to critically analyze the above-mentioned legal risks and to propose corresponding mitigating actions for ensuring long-standing future Lunar societies.

Bagg on the Administrative State & Private Power

Samuel Bagg (University of Oxford - Nuffield College) has posted Fighting Power with Power: The Administrative State as a Weapon against Concentrated Private Power (Social Philosophy and Policy 2021) on SSRN.  Here is the abstract:

Contemporary critics of the administrative state are right to highlight the dangers of vesting too much power in a centralized bureaucracy removed from popular oversight and accountability. Too often neglected in this literature, however, are the dangers of vesting too little power in a centralized state, which enables dominant groups to further expand their social and economic advantages through decentralized means. This article seeks to synthesize these concerns, understanding them as reflecting the same underlying danger of state capture. It then articulates a set of heuristics for the design of public and administrative institutions, which aim at minimizing the risks of capture from both public and private sources. By following these heuristics, it claims, we can successfully employ the administrative state as a weapon against concentrated private power, rather than allowing it to serve as a tool of dominant groups.

Chang on Waiver of COVID-19 Related Intellectual Property Rights

Chin-Ru Chang (National Taiwan University, College of Law) has posted Why the WTO Waiver on COVID-19 Related Intellectual Property Rights Should Be Adopted and Why It Is Not Enough on SSRN.  Here is the abstract:

India and South Africa have proposed a waiver to temporarily suspend the protection of COVID-19 related intellectual property rights (hereinafter “WTO Waiver”) to the World Trade Organization (hereinafter “WTO”). However, disagreements largely between the developing and developed countries have stalled the negotiations at the WTO. This was not the first time such a disagreement between the protection of intellectual property rights and the protection of public health has arisen. To fully understand the underlying rationales for the WTO Waiver, looking back twenty years ago at the Doha Declaration will be helpful. The Doha Declaration was passed in 2001 by the WTO Ministerial Conference attempting to resolve the same disagreement, it serves as a testament to the developing countries’ long-time struggle to pursue equitable access to medicine. Sadly, as demonstrated in the disparity of vaccines between the higher-income and the lower-income countries, it is blatantly evident that the Doha Declaration has failed its original purpose. Reflecting on the Doha Declaration, this article hopes to answer why the waiver of WTO Waiver should be adopted and why it is not enough. After analyzing both the supporting and opposing arguments of the WTO Waiver, this article argues for the adoption of the WTO Waiver. It will also be demonstrated by this article that the WTO Waiver alone is not enough to solve the vaccine inequity, more progressive measures will be needed. Finally, this article calls for the fundamental reconsideration of the current system of intellectual property rights protection and its implication for access to medicine.

Kelemen & Pavone on Supranational Forbearance in the European Union

R. Daniel Kelemen (Rutgers, The State University of New Jersey - New Brunswick/Piscataway; Rutgers, The State University of New Jersey - Rutgers Law School; University of Pennsylvania Carey Law School - Student/Alumni/Adjunct) & Tommaso Pavone (The University of Arizona - School of Government and Public Policy) have posted Where Have the Guardians Gone? Law Enforcement and the Politics of Supranational Forbearance in the European Union on SSRN.  Here is the abstract:

Why would a supranational law enforcer suddenly refrain from wielding its powers? We theorize the supranational politics of forbearance – the deliberate under-enforcement of the law – and distinguish them from domestic forbearance. We explain why an exemplary supranational enforcer – the European Commission – became reluctant to launch infringements against European Union member states. While the Commission’s legislative role as “engine of integration” has been controversial, its enforcement role as “guardian of the Treaties” has been viewed as less contentious. Yet after 2004, infringements launched by the Commission plummeted. Triangulating between infringement statistics and elite interviews, we trace how the Commission grew alarmed that aggressive enforcement was jeopardizing intergovernmental support for its policy proposals. By embracing dialogue with governments over robust enforcement, the Commission sacrificed its role as guardian of the Treaties to safeguard its role as engine of integration. Our analysis holds broader implications for the study of forbearance in international organizations.

Finkelstein & Painter on Department of Justice Reform

Claire O. Finkelstein (University of Pennsylvania Carey Law School) & Richard W. Painter (University of Minnesota Law School) have posted Restoring the Rule of Law through Department of Justice Reform (from Overcoming Trumpery: How to Restore Ethics, the Rule of Law, and Democracy, Ch. 3, The Brookings Institution Press, March 22, 2022) on SSRN.  Here is the abstract:

As the nation’s principal law enforcement agency, the Department of Justice (DOJ) plays a unique role in protecting U.S. democracy. Even though the attorney general is appointed by the president and serves at the president’s pleasure, a recognition of the comparable independence of the DOJ from the political priorities of the rest of the executive branch has been critical for maintaining the department’s integrity and credibility over the course of its roughly 150-year history. The DOJ powerfully reinforces both rule of law norms and democratic governance when it faithfully conforms to law and ethics. But the flip side is also true: The DOJ is particularly well situated to corrupt the rule of law when it bends legal principles to suit political aims.

This chapter elaborates on a report the authors produced as co-chairs of a bipartisan working group organized in 2020 by the Center for Ethics and the Rule of Law (CERL) at the University of Pennsylvania in conjunction with Citizens for Responsibility and Ethics in Washington (CREW). Issued in October of 2020, the Report examines the tenure of former Attorney General William Barr and the functioning of the DOJ under his leadership. A core theme that arose across the many different areas of DOJ activity in that period was the degree to which the Department had become politicized and the profound effect that this had on the rule of law for the country as a whole.

As this Chapter makes clear, politicization within the DOJ is not new. Over the course of the past twenty years, one can observe a wide range of DOJ functions where the effects of politicization are apparent. These include the prosecutorial functions of United States attorneys, legal advice to the Executive Branch from the Office of Legal Counsel, the supervisory role of the Attorney General, Congressional oversight of DOJ and compliance with Congressional subpoenas, appointment of independent special counsels for politically sensitive investigations and DOJ investigations of the intelligence community. This chapter includes specific suggestions for reform of DOJ to restore the law enforcement mission that is so critical to upholding the rule of law.

Abraham on Shadow Tort Law & "The Reptile"

Kenneth S. Abraham (University of Virginia School of Law) has posted Shadow Tort Law: Lessons From The Reptile on SSRN.  Here is the abstract:

For over a decade, a battle has been raging in the trial courts of this country over something called the "reptile theory," often simply referred to by insiders as "the reptile." The term comes from the book Reptile: The 2009 Manual of the Plaintiff's Revolution. The book's thesis is that the way for plaintiffs to win tort cases and secure large verdicts is to appeal to the reptilian part of jurors' brains, which (like threatened snakes) reacts with anger at threats to their security. This reaction is created mainly by subtly modifying the applicable standard of care in negligence cases. At the core of the reptile battle, then, is a dispute about the meaning of negligence. Though it is notorious among trial lawyers, the reptile has been invisible or barely visible to torts scholars, because the issues it poses are governed by a body of trial-level substantive tort law that is unreviewed, and for practical purposes largely unreviewable, by the appellate courts. This is what I call "shadow tort law," arising from rulings on questions that can be asked prospective jurors on voir dire, on motions in limine intended to preclude use of the reptile strategy, and on what counsel may and may not argue during closing argument.

In order to uncover how the reptile figures in the development of shadow tort law, this Article first describes what the reptile is and how its proponents and opponents deal with it pre-trial and trial settings. The Article then turns to the meaning of negligence as applied in these settings, analyzing the arguable gap between what the reptile strategy prescribes and what the law of torts provides, as well as the significance of that gap. Finally, the Article reflects on the jurisprudential implications of the analysis. It turns out that a lesson of the reptile controversy is that the law of torts (and arguably other bodies of law as well) is not always a single, continuous body of doctrine running from the filing of a complaint through to a final appeal. Rather, tort law is to a meaningful extent partly discontinuous, often operating in different, largely autonomous domains.

Fascinating.  Highly recommended.

Levin on the Pandemic & Bar Admissions

Leslie C. Levin (University of Connecticut School of Law) has posted The Politics of Bar Admission: Lessons from the Pandemic (Hofstra Law Review, Vol. 50, No. 1, 2021) on SSRN.  Here is the abstract:

The controversy over how and whether to administer the July 2020 bar examination during the COVID-19 pandemic upended the usual process of lawyer regulation. New actors—including bar applicants—very publicly challenged regulators’ decisions and questioned the safety and fairness of plans for the bar exam. Some advocated for emergency admission without the need to satisfy the bar examination requirement. Joined by law school deans and faculty, the advocacy occurred against the backdrop of the politicization of COVID-19, street protests over police misconduct and racial inequality, and long-standing skepticism about the value and fairness of the bar exam. Regulators throughout the United States reached very different decisions about how to proceed. This article uses eight case studies of states’ responses to explore why these differences occurred. They reveal how a state’s political culture and political attitudes toward the pandemic seemingly informed some regulators’ responses. Institutional relationships among the courts, the bar examiners, and sometimes, the organized bar also affected the decisionmakers. In addition, the courts’ attitudes toward innovation and its desire to maintain the reputation of the bar seemingly played a role. The article sheds new light on the politics of bar admission and the state supreme courts’ role in lawyer regulation.