Legal Theory Blog

Patterson on Distributive Justice for Black Farmers

Jordan Patterson has posted Ending a War Waged by Deed of Title: How to Achieve Distributive Justice for Black Farmers (Ohio State Law Journal, Vol. 82, No. 2, 2021) on SSRN.  Here is the abstract:

This Note examines the history surrounding the Pigford v. Glickman litigation and concludes that Congress should enact a Distributive Justice Fund based on the structure of the September 11th Victim Compensation Fund (VCF). Part II briefly discusses the history of Black farmland ownership—from Reconstruction to the present day—and the harm inflicted by the mass dispossession of Black-owned farmland. Part III describes the broad racial discrimination by the USDA and the settlement agreements in Pigford and Black Farmers litigation (collectively going forward, Black Farmers cases). Part IV argues that the VCF should be used as a model to set up a Distributive Justice Fund for Black farmers and their descendants. Without intervention by the federal government Black farmers and their descendants will continue to suffer from gross injustice. Part V then explains how and why the VCF model should be altered to address the needs of and provide equitable relief to Black farmers. Lastly, Part VI briefly concludes by advocating for a Distributive Justice Fund to help provide relief for the Black farmers and their descendants.

Louis on the Understandings of First-Generation Lawyers & Social Reality

Gregory Louis (CUNY School of Law) has posted The Jurisprudence of Trousered Apes (69 UCLA L. Rev. Disc. 146 (2021), https://www.uclalawreview.org/the-jurisprudence-of-trousered-apes/) on SSRN.  Here is the abstract:

This Essay uses scholarly debate about the U.S. Supreme Court’s September 2021 decision on the Centers for Disease Control’s pandemic eviction ban to argue that legal elites’ view of the law is useless as it fails to capture the law’s social reality. As a more accurate lens, the Essay uplifts and sketches an alternative perspective on law it calls, “The Jurisprudence of Trousered Apes.” It is the understanding that first-generation lawyers such as the author and those whom the author teaches uniquely contribute to legal analysis, capturing the law as experienced by those oppressed by it rather than contemplated by elites enveloped in its tutelary cocoon.

Vars on the Slayer Rule in the Law of Inheritance

Fredrick E. Vars (University of Alabama - School of Law) has posted The Slayer Rule: An Empirical Examination (ACTEC L.J. (forthcoming Spring 2023)) on SSRN.  Here is the abstract:

Elmer Palmer murdered his grandfather. The undisputed motive was money. The grandfather’s will included a large gift to Elmer, which the grandfather was poised to eliminate. Elmer acted first. Under the law at the time, Elmer would inherit despite having intentionally killed his grandfather: the existing will controlled. Unfortunately for Elmer, the New York Court of Appeals announced a new equitable principle: Murderers cannot inherit from their victims. Since this famous decision in 1889, some version of the “slayer rule” has been adopted by nearly every state and lauded by nearly every commentator. Still, important questions about the proper scope of the slayer rule remain unanswered. Case law and scholarship identify multiple rationales for the slayer rule, which push in different directions in difficult applications.

This study is the first to empirically test key assumptions underlying the slayer rule. Over a thousand survey respondents answered the question “What’s fair?” or “What would the decedent want?” in twelve different scenarios. Some of the most significant conclusions are that the slayer rule should not apply to assisted suicide, killings in self-defense, or killings due to mental illness. On the other hand, the slayer rule should be expanded beyond murder in some circumstances, such as elder abuse and neglect. And the slayer rule should be converted from a mandatory rule into a default rule, which testators could opt out of in their wills. Carefully probing what people think about the slayer rule illuminates its many aspects and points toward needed reforms.

Very interesting. Recommended.

McClain on Pragmatism, Intersectionality, & Constitutional Democracy

Linda C. McClain (Boston University - School of Law) has posted Experimental Meets Intersectional: Visionary Black Feminist Pragmatism and Practicing Constitutional Democracy (69 Drake L. Rev. 823 (2021)) on SSRN.  Here is the abstract:

That pragmatism can do—and already is doing—real work to repair and improve constitutional democracy in the United States is a conviction voiced in the academy, in social movements, and in social media. But what does pragmatism mean, as used in these contexts? Sometimes, pragmatism seems to connote simply being practical (rather than idealistic) and focusing on results. But sometimes, commentators are saying more: pragmatism as a distinctive political philosophy has the power to fuel meaningful democratic change. This Article focuses on the creative and productive melding of classical American pragmatism (as exemplified by John Dewey and others) with feminism. In particular, I engage with Deva Woodly’s recent book, Reckoning: Black Lives Matter and the Necessity of Democratic Social Movements, in which Woodly argues both that democratic social movements are important institutional structures in U.S. constitutional democracy and that the transformative Movement for Black Lives is based on a unique political philosophy, “radical Black feminist pragmatism.” This Article also examines strands of “visionary Black feminist pragmatism” (as elaborated by V. Denise James and Patricia Hill Collins). The Article also looks back to the work that pragmatism was doing, during the so-called “renaissance” of pragmatism in the legal academy in the 1990s, in significant work by feminist legal theorists, including Margaret Radin, Mari Matsuda, Katherine Bartlett, and Joan Williams. It offers some comparisons and contrasts in these different engagements with pragmatism, concluding that the “futurity” and “politics of care” characteristic of radical Black feminist pragmatism offer vital commitments and strategies for societal repair and for strengthening constitutional democracy.

Highly recommended.

Chapman on the Fair Notice Rational for Qualified Immunity (Link Fixed)

Nathan S. Chapman (University of Georgia School of Law) has posted The Fair Notice Rationale for Qualified Immunity (Florida Law Review, Forthcoming) on SSRN.  Here is the abstract:

After many well-publicized cases of police wrongdoing, a growing number of courts, scholars, and politicians have demanded the abolition of qualified immunity. The doctrine requires courts to dismiss damages actions against officials for violating the plaintiff’s constitutional rights unless a reasonable officer would have known that the right was “clearly established.” Scholars argue that the doctrine impedes deterrence of rights violations and forecloses compensation and vindication for victims.

One line of attack has relied on empirical evidence to challenge what scholars take to be the main justification for qualified immunity, that it prevents the threat of constitutional liability from over-deterring effective law enforcement. Yet the Supreme Court has always offered another rationale for the doctrine: it would be unfair to hold officers liable without sufficient notice that their conduct was unconstitutional. Unlike the over-deterrence rationale, scholars have almost entirely ignored the fair notice rationale for qualified immunity.

This Article assesses the extent to which the fair notice rationale supports the current doctrine of qualified immunity. It does so by exploring the limits of the jurisprudential principle of prospectivity, which holds that the law must ordinarily apply only prospectively.

To approximate the rule of law and to treat subjects with equal dignity, the law must be capable of guiding conduct. The principle of prospectivity obviously applies to retroactive legislation, but unpredictable adjudications also fail to provide such guidance, and they are especially unfair when they impose retroactive moral condemnation. Constitutional liability is often highly unpredictable, seemingly at odds with prior legal duties, and, unlike most tort liability, expresses the community’s moral censure.

This Article argues that the fair notice rationale supports qualified immunity in some cases to which the doctrine currently applies, but not to all of them. It supports immunity where an officer could not have reasonably foreseen constitutional liability or public condemnation, but not when an officer acted in bad faith, violated a criminal law, or violated a constitutional rule with an underlying rationale that applies to the officer’s conduct. Taking the fair notice rationale seriously provides a principled roadmap for reforming qualified immunity.

Important.  Recommended.

Jordan on Felony Review Prosecutors & Racial Patterns

Andrew Jordan (Washington University in St. Louis) has posted Racial Patterns in Approval of Felony Charges on SSRN.  Here is the abstract:

I study felony review prosecutors in Cook County, who are tasked with early detection of cases that will not succeed in court. Prosecutors vary not just in their “strictness” but also their ability to correctly identify high-quality cases. I develop a model and estimation strategies that account for both types of variation. This includes a novel technique for estimating the prevalence of convictable cases among those brought by the police. Felony review overall improves the quality of cases, but there are gains to replacing underperforming prosecutors. Cases brought against black suspects have a lower conviction prevalence: 75.5%, compared to 81.2% for nonblack suspects. Prosecutors are also less likely to approve convictable cases when considering black suspects. Finally, I find some evidence that certain felony review prosecutors apply different acceptance standards to black and nonblack suspects, though this depends on structural assumptions.

Highly recommended.

Bán & Belavusau on Memory Laws

Marina Bán (University of Copenhagen) & Uladzislau Belavusau (T.M.C. Asser Institute - University of Amsterdam; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law) have posted Memory Laws (Bloomsbury History: Theory and Method (2022)) on SSRN.  Here is the abstract:

This entry provides an ample and detailed analysis on the emerging phenomenon of memory laws. It outlines how these legal measures, the symbols of interaction between history and law, have developed in the last two centuries and how their scope have drastically expanded. It further reflects of the consequences of states’ growing reliance on the legal governance of historical memory. First, by tying memory laws to their impact on different fundamental rights, then by demonstrating how the increasing breadth and potential misuse of these provisions appears in debates around constitutionalism, citizenship and the rule of law. Finally, the contribution highlights how this initially European phenomenon have captured increasing attention around the world and what its future may hold.

And from the paper:

The current terminology of memory laws originates from the French lois mémorielles (in literal translation, “memorial laws”) and was devised by French historians who were protesting the increasing number of measures that forced them to consider the past through a specific lens. Under this label, memory laws were first publicly discussed in a December Le Monde magazine in 2005 (Garibian 2006: 158). While the terminology of memory laws is the result of the French developments of the early 2000s, the phenomenon itself—namely, regulating historical narratives, often with criminal punishment—had been present for over a decade before that. West Germany and Israel, in particular, have introduced prohibitions on the denial and minimization of the Holocaust in the mid to late 1980s. After the adoption of these initial legal provisions, the number of memory laws have grown exponentially. Most European states, as well as other countries outside the continent, have been inspired to introduce their own genocide denial prohibitions, not only concerning the Holocaust but also, for example, banning the denial of the crimes of communist regimes in Central and Eastern Europe, the Ukrainian Holodomor, and the genocide in Rwanda. Furthermore, a recent wave of memory laws (or legal bills in an attempt to convert them into memory laws), expanding well beyond genocide denialism have stirred up controversy in academia, in courts, and in the media as well. These include, for example, the debate around Hungary’s Fundamental Law, adopted in 2011, and its outlining of a comprehensive, albeit contentious, historical narrative. In 2018, the Polish government’s attempt to criminalize the “defamation of the Polish nation” has been interpreted as imposing a chilling effect on certain types of historical research regarding the Second World War. Finally, in the United States, the removal of Confederate monuments from public places, whether by law or by force, has generated passionate debates for several years.

Recommended.

Martz on Russian War Crimes Against Ukraine

Christopher Martz (Journal of Global Rights and Organizations; Syrian Accountability Project; Syracuse University College of Law) has posted Russian War Crimes Against Ukraine: The Breach of International Humanitarian Law By The Russian Federation (Christopher Martz et al., Russian War Crimes Against Ukraine: The Breach of International Humanitarian Law By The Russian Federation, GLOBAL ACCOUNTABILITY NETWORK 1 (2022)) on SSRN.  Here is the abstract:

This document will primarily cover the commission of war crimes and crimes against humanity by the Russian Federation from February 24, 2022, to April 1, 2022. The basis of this report is founded upon open-source research and evidence collection by an inter-collegiate investigative team from across the United States, collecting reports, photographic, and video evidence of crimes occurred in Ukraine. The contents of this document will provide the reader with a brief, but important, historical overview of Ukraine and its relationship with the Russian State. In addition, it will articulate the international legal mechanisms of accountability, identify individuals most responsible for the commission of crimes in Ukraine, and provide a series of representative charges to be used in an international criminal tribunal. In its conclusion, this paper calls upon the international community to respond by utilizing the available international accountability mechanisms, as the Russian Federation is openly committing crimes of aggression, war crimes, and crimes against humanity. For the readers reference, Section V contains a command-and-control diagram produced by the Global Accountability Network and its dedicated researchers.

In addition, this document contains appendices that provide the reader more detailed information regarding the Russian Federation’s criminal activity in Ukraine. Appendix A is a sample draft of an international criminal indictment against President Putin. Appendix B is a crime narrative detailing, by date, the crimes committed in Ukraine by the responsible party. In addition, Appendix C expands on the crime narrative and provides a more detailed breakdown of the violations of International Humanitarian Law, as well as documenting violations of the Ukrainian Penal Code.

Appendix D is a comprehensive dossier detailing the command-and-control structure of the Russian political and military senior leadership. This “dossier” lists the individuals responsible for the atrocities in Ukraine, and documents relevant information surrounding their responsibility and complicity.

Notably, there are omissions from this document that are deserving of discussion and further analysis. As of the writing of this very section, an atrocity has occurred in Bucha on a devastating scale. Recently, the bodies of 410 civilians have been recovered from areas in the wider Kyiv region after Ukrainian forces regained complete control, with reports of widescale murder, torture, and rape. While the atrocity of Bucha falls outside the temporal scope of this document, the efforts of the Global Accountability Network’s Ukraine Task Force does not end here. This document is merely the foundational document and will launch a series of subsequent investigations and analyses of crimes committed in Ukraine. The Ukraine Task Force will not allow Bucha to be forgotten and will be the centerpiece analysis of its next publication.

Miller & Tucker on the Theoretical Lethality Index & Gun Regulation

Darrell A. H. Miller (Duke University School of Law) & Jennifer Tucker (Wesleyan University) have posted Common Use, Lineage, and Lethality (UC Davis Law Review, Vol. 55, No. 3, 2022) on SSRN.  Here is the abstract:

Political and legal debates over assault rifles, large-capacity magazines, and other lethal technology are characterized by increasing rancor and hostility. Lack of a common vocabulary to describe the topics of debate, much less facilitate a constructive dialogue, only aggravates this trend. Sorely missing from the current debate is a shared vocabulary for what the public policy and the constitutional doctrine are aiming to achieve. Part I of this Article outlines the state of Second Amendment doctrine with respect to which and what type of arms are protected, and the confused language and goals of that doctrine. Part II provides a short biography of Trevor N. Dupuy and his development of the Theoretical Lethality Index (TLI), a useful metric for quantifying the lethality of firearms in historical terms. Part III demonstrates how Dupuy’s TLI can help guide policy makers and judges as they engage with the right to keep and bear arms in a post-Heller world.

Friedman on the Constitutionality of Police Collection of Digital Data

Barry Friedman (New York University School of Law) has posted Private Data/Public Regulation on SSRN.  Here is the abstract:

This article argues that, as a matter of constitutional law, government agencies that engage in policing cannot collect digital data, particularly about individuals for whom there is no suspicion of wrongdoing, without a sufficient regulatory scheme in place. A sufficient regulatory scheme justifies collection, achieves a public end, and has adequate protections for individual rights. Unauthorized and unregulated bulk digital collection of surveillance data simply may not occur.

Recommended.