Legal Theory Blog

Ring on Innovation Policy & Climate Change

Caoimhe Ring (University of Oxford) has posted Patent Law and Climate Change: Innovation Policy for a Climate in Crisis (Harvard Journal of Law & Technology Volume 35, Number 1 Fall 2021) on SSRN.  Here is the abstract:

Meeting the Paris Agreement target of maintaining global average temperature increases well below 2.0°C requires rapid innovation in climate-friendly, or green, technologies. A substantial literature has mapped the relationship between patent law and climate change, with the concern that patents are likely to interfere with progress on climate goals, yet there is little agreement on the solutions to this problem. This Note suggests patents may be less significant for green 'invention', at its early research stages, but that patents may still be important for green 'innovation'—encouraging the commercialization and diffusion of mature energy technologies.The main contribution of this Note is the contention that patents may have a thus-far under-examined role in promoting green innovation at the commercialization stage of innovation. Despite these intuitions, there has been inadequate investigation of entrepreneurial patenting practices from a theoretical or empirical standpoint. This is problematic as a matter of present knowledge, but it also risks neglecting a key component of the patent system as it affects green innovation. Commercialization and diffusion, it appears, have escaped attention owing to a failure to take stock of the broader innovation context. To remedy these issues, this Note draws on the innovation system literature, which may provide a useful framework to analyze patent law in the context of a variety of innovation incentive mechanisms which seek to respond to the innovation policy challenge posed by climate change.

Dolovich on Prison Law

Sharon Dolovich (University of California, Los Angeles - School of Law) has posted The Coherence of Prison Law (135 Harv. L. Rev. F 302) on SSRN.  Here is the abstract:

In this essay, I explore the mechanisms by which, despite what is known about the reality on the ground in American prisons, courts hearing constitutional challenges brought by prisoners so persistently find in favor of the state. In terms of doctrine, I show that, especially during the Rehnquist Court, the Supreme Court systematically deployed a set of maneuvers to construct doctrinal standards for prison law cases that strongly incline courts to rule for defendants. Yet skewed doctrinal standards alone cannot explain prison law’s strong pro-state bent, since courts hearing prison law cases will often side with defendants even when plaintiffs’ claims are strong on the merits and even when defendants’ arguments strain credulity. To achieve this effect also requires a judicial readiness to see the state’s case through an especially sympathetic lens and to exhibit a studied indifference to plaintiffs’ constitutional rights and lived experience. As I show, the Court’s prison law opinions persistently exhibit this orientation, which I term dispositional favoritism. When federal courts hearing prison cases follow this lead, as they frequently do, they can wind up favoring defendant prison officials in any number of ways hard to square with either the record or the relevant legal rules. These dynamics, hidden in plain sight, had been present in the prison law doctrine for decades. Then came Covid-19. As this essay shows, the methods courts used to deny the COVID claims of incarcerated plaintiffs were the same that have been used for years to deflect prisoners’ constitutional claims more generally. COVID, in short, definitively confirmed the terrible coherence of prison law: it is consistently and predictably pro-state, highly deferential to prison officials’ decision-making, and largely insensitive to the harms people experience while incarcerated. These features collectively embody the plainly divergent normative inclinations the Supreme Court routinely displays toward the parties in prison law cases.

Highly recommended.

Wolcher on Wittgenstein & Dworkin

Louis E. Wolcher (University of Washington School of Law) has posted Ronald Dworkin's Wittgenstein (Wittgenstein and Other Philosophers, edited by A. Khani & G. Kemp (Routledge), Forthcoming) on SSRN.  Here is the abstract:

Wittgenstein’s influence on the legal theory of the late Ronald Dworkin (1931-2013) is an excellent illustration of the truth of the former’s statement, “The seed I’m most likely to sow is a certain jargon.” Dworkin, one of the most prolific and important legal philosophers of his era, developed a distinctly normative theory that links the rule of law, legal rights, and legal interpretation to the claimed objective unity of legal, moral, and political values, especially in the United States. In doing so he relied directly for support on the authority of Wittgenstein’s concepts “language-games” and “form of life,” and indirectly on the latter’s anti-metaphysical insight (in Dworkin’s words) that “the key to meaning is use.” This chapter discusses both the few points of contact and the large areas of divergence between the methods and goals of these two thinkers. It does so from two opposite yet complimentary perspectives, which it calls “Dworkin’s Wittgenstein” and “Wittgenstein’s Dworkin.” It concludes that Wittgenstein would not have recognized Dworkin’s writings as philosophy but would (perhaps) have respected them as expressions of a secular kind of religious faith – a Religion Without God as the title of Dworkin’s last book would have it.

Shiffrin on Government Attacks on the Legitimacy of Criticism & Free Speech

Seana Shiffrin (University of California, Los Angeles (UCLA) - School of Law) has posted Unfit to Print: Government Speech and the First Amendment on SSRN.  Here is the abstract:

Twitter’s legal justification for its exclusion of President Trump, then a sitting president, is that as a nongovernmental actor, Twitter has a First Amendment right to exclude anyone it wishes from its platform. While a very respectable and thus far successful legal position, Twitter’s blunt strategy represents a missed opportunity to defend instead, or in the alternative, on the narrower grounds that Trump’s speech as a government official violated the terms of service that disallows the use of the service 'for any unlawful purpose or in furtherance of illegal activities'. This Article argues that a wider range of government speech than we have previously acknowledged violates the Free Speech Clause—specifically, government lies, culpable misrepresentations by government officials, and government attacks on the legitimacy of criticism. Blunt government attacks on the legitimacy of criticism violate the Free Speech Clause, irrespective of whether such attacks harm any particular individual or group. By denying the very content of the First Amendment’s protection, attacks on the legitimacy of criticism are inconsistent with the duties of officials to uphold the law and the Constitution. Lies and culpable misrepresentations by government officials about public affairs also violate the Free Speech Clause, whether or not those misrepresentations cause harm to particular individuals or groups. Assuming that many such violations would be nonjusticiable, the Article explores the potential opportunities and hazards occasioned by the private enforcement and development of nonjusticiable constitutional norms through the refusal to host unconstitutional speech as such. It considers whether the permanent exclusion of former government officials from social media sites is consistent with the social value of free speech and also whether the interest in protecting the social value of free speech culture recommends that media platforms should attempt to exclude all misinformation, whether by lay citizens or officials.

Highly recommended.  Download it while it's hot!

Pierce on Counterproductive Constitutional Remedies

Richard J. Pierce (George Washington University Law School) has posted The Remedies for Constitutional Flaws Have Major Flaws on SSRN.  Here is the abstract:

In this essay, Professor Pierce describes the many ways in which the conservative majority of the Supreme Court has attempted to use its unique approach to interpretation of the constitution to restructure the government and to reallocate power among the branches of government. He then describes the problems that the Court has encountered in its efforts to choose remedies for the constitutional flaws that it detects.

Increasingly, the Court must choose between remedies that are ineffective and remedies that make it impossible for the government to function. Pierce predicts that the problems that the Court has experienced to date will increase and will become even more intractable if it continues to apply its present approach to interpretation of the constitution.

Pierce argues that the choice of remedy problems will diminish significantly if the Court adopts an approach to interpretation of the constitution that is less rigid. The Court should accord Congress the deference it deserves in recognition of the challenges that it faces in its efforts to create a government that is true to our constitutional values and that is capable of performing the critical functions of government.

d'Aspremont on Form in International Law

Jean d'Aspremont (University of Manchester - School of Law; Sciences Po Law School) has posted Meaning and Form in International Law (in Jean d’Aspremont, After Meaning. The Sovereignty of Forms in International Law (Edward Elgar, 2021), pp 1-27) on SSRN.  Here is the abstract:

This chapter introduces the book entitled ‘After Meaning. The Sovereignty of Forms in International Law’. This book provides a radical challenge to the way in which international law is thought and practised. It asserts that the words and texts of international law, as forms, never carry or deliver meaning but, instead, perpetually defer meaning and ensure it is nowhere found within international legal discourse. To put it differently, this book shows that meaning is nowhere to be found and is always absent from the forms of the international legal discourse because it is constantly deferred by them. The absence of meaning from the forms of the international legal discourse bears important consequences. Indeed, the forms of the international legal discourse, finding neither their cause nor origin in any preceding meaning, do not need meaning to do what they do but only need other forms. Forms are accordingly the real sovereign of international legal thought and practice. This book is a venture into the sovereignty of forms and its implications for international legal thought and practice.

Link to the book in the abstract. Recommended.

Ferri & Broderick on the Human Rights Model of Disability

Delia Ferri (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) & Andrea Broderick (Maastricht University) have posted The European Court of Human Rights and the 'Human Rights Model of Disability'. Convergence, Fragmentation and Future Perspectives (in P. Czech, L. Heschl, K.Lukas, M. Nowak and G. Oberleitner (eds.) European Yearbook on Human Rights 2019 (Intersentia, 2019), 261) on SSRN.  Here is the abstract:

The adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) marked a paradigm shift in the field of international human rights law, recognising people with disabilities as holders of human rights (as opposed to passive beneficiaries of charity and rehabilitation). Since its entry into force, the CRPD has played a crucial role in the advancement of disability equality within the European human rights system. In the Council of Europe (CoE), the European Court of Human Rights (ECtHR or Strasbourg Court) has slowly begun to apply a standard of protection of disability rights similar to that contained in the CRPD in certain areas, such as with regard to the interpretation of the non-discrimination norm and the right to education under the European Convention on Human Rights (ECHR) and its Additional Protocols. This indicates a certain level of convergence between the two legal systems. However, in other fields, such as legal capacity, and, more generally, with regard to the rights of persons with intellectual and psychosocial disabilities, the approach of the Strasbourg Court diverges quite considerably from the interpretation accorded to the CRPD by the Committee on the Rights of Persons with Disabilities (CRPD Committee) in its General Comments. Against this background, this contribution analyses the most recent and, sometimes, contentious case law of the ECtHR on disability, and discusses emerging and future perspectives regarding the influence of the CRPD on the Strasbourg Court’s jurisprudence. It contributes to the academic debate on the human rights of persons with disabilities by reflecting on the convergences and divergences that are evident between the protection afforded by the CRPD and the ECHR (as interpreted by the ECtHR), and on the underlying rationale for those convergences and divergences. This contribution analyses the extent to which the ECtHR has shifted towards the human rights model of disability embedded in the CRPD and situates that discussion within the wider debate on fragmentation in international law. In doing so, it ultimately reflects on the willingness of the ECtHR to incorporate progressive international human rights standards into its jurisprudence.

Simana on Genetic Property Governance

Shelly Simana (Stanford Law School; Harvard Law School) has posted Genetic Property Governance (Yale Journal of Law & Technology (forthcoming 2022-2023)) on SSRN.  Here is the abstract:

The law governing an “individual genome” (the genetic material and information extracted from a single person) in the United States has two key shortcomings. First, it adopts a binary view of ownership, permitting only one entity to claim ownership over an individual genome—either the person from whom it was extracted or someone else, such as researchers and law enforcement officials. Consequently, the law fails to represent and protect the legitimate concurrent ownership interests of multiple entities stemming from, e.g., self-ownership and personhood, labor, and possession. Instead, it prioritizes one interest at the expense of another. Second, the law fails to accommodate the multifaceted and relational nature of an individual genome. An individual genome consists of both genetic material and genetic information; involves personal, familial, and collective aspects; and has varying degrees of excludability and subtractability. The law, however, does not consider these characteristics together.

This Article offers a new legal framework, “Genetic Property Governance,” which is a form of collective ownership over an individual genome that balances the generation of social benefits and wealth with the need to prevent severe individual and social harms. The proposed framework embraces the idea of an individual genome as a commons, incorporating liberal and pluralistic accounts of property and balancing conflicting interests via two principles, proportionality and reasonableness. Overall, under Genetic Property Governance, an individual genome is a shared enterprise that reflects multiple interests and characteristics to yield just and productive outcomes.

Highly recommended.

Abraham & White on the American Law Institute

Kenneth S. Abraham (University of Virginia School of Law) & G. Edward White (University of Virginia School of Law) has posted The Work of the American Law Institute in Historical Context (American Law Institute Centennial History (Andrew S. Gold & Robert W. Gordon, eds., Oxford University Press, Forthcoming 2023)) on SSRN.  Here is the abstract:

This chapter examines the intellectual and social contexts in which the American Law Institute (ALI) has operated, and how they have influenced the course the ALI and its projects have taken during the one hundred years of its history. Our aim is to situate the central preoccupations of the ALI at various times in the larger culture of the American legal profession and the social forces influencing American law. From its origins the ALI has been a self-consciously elitist organization, operating under the premise that a collection of distinguished individuals drawn from the practicing bar, the judiciary, and the legal academy can make significant contributions to the growth and development of American law. But despite that premise, the ALI has not been free from pressures emanating from the broader legal profession and American society as a whole. One of the themes of the chapter is the ALI’s inability to be immune from those pressures in its mission to improve the state of American law, despite its strong commitment to professional independence from outside influences.

Recommended.

Albert on an International Constitutional Court

Richard Albert (University of Texas at Austin - School of Law; Yale University; University of Toronto - Faculty of Law; University of Ottawa - Faculty of Law; Universidad Externado de Colombia - Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; Universidad de Especialidades Espíritu Santo; Airlangga University) has posted Does the World Need an International Constitutional Court? (3 Rutgers International Law and Human Rights Journal (Forthcoming 2023)) on SSRN.  Here is the abstract:

Today democracy is declining around the world, and so is faith in domestic institutions. Many strategies have been suggested to fight back against the tide of authoritarianism, but the idea of creating an International Constitutional Court has yet to catch fire among defenders of democracy. In this lecture—delivered as the Edward J. Bloustein Jurisprudence Lecture at Rutgers University on May 18, 2022—I explore the origins of the proposal for an International Constitutional Court, I discuss the structure and powers of this proposed tribunal, and I evaluate how to design an International Constitutional Court for success. I conclude that the Court, if ever it is created, should be limited to issuing only advisory rulings. To be sure, creating this International Constitutional Court is a Hail Mary Play. But it may be needed now more than ever.

Very interesting and recommended.