Legal Theory Blog

Legal Theory Bookworm: "Reciprocal Freedom" by Weinrib

The Legal Theory Bookworm recommends Reciprocal Freedom: Private Law and Public Right by Ernest J. Weinrib.  Here is a description:

Reciprocal Freedom elucidates the relationship between private law and the state, presenting reciprocal freedom as the normative idea underlying a legal order in which private law occupies a distinctive place. Weinrib develops a set of interconnected conceptions of private law, corrective justice, rights, ownership, the role of legal institutions, distributive justice, the relationship of constitutional rights to private law, and the rule of law.

The book is explicitly Kantian in inspiration; it presents a non-instrumental account of law that is geared to the juridical character of the modern liberal state. Combining legal and philosophical analysis, it offers a sequenced and legally informed argument for understanding law as necessary to our co-existence as free beings.

Download of the Week: "The Text of the Antitrust Laws" by Hovenkamp

The Download of the Week is The Text of the Antitrust Laws by Herbert Hovenkamp.  Here is the abstract:

The antitrust laws are fully stated in two statutes that seem absurdly brief in relation to the work they do. Their brevity in relation to coverage has led to three phenomena. First is the tendency of courts to use the statutory text as no more than a starting point, treating it as a highly general principle, or “Magna Carta,” of free enterprise, and sometimes ignoring the statutory language altogether. Second, courts have responded to the statutory brevity with judicial development of numerous analytic tools, or rules not mentioned in the statutory texts. The third phenomenon is a kind of expansionism, or belief that the antitrust laws can be used to control the entire world, or at least the entire economic world.

This article considers what antitrust policy would look like if an antitrust “textualist” actually relied on the antitrust statutes themselves to control all important issues of interpretation. The language of the antitrust laws, although brief, actually says a great deal more than is commonly acknowledged. Further, the Sherman and Clayton Acts are statutes after all. They should provide the first place to look to for guidance on enforcement policy. How much different would antitrust look if we centered policy on the statutory language, using only generally accepted forensic tools and recognized canons of statutory interpretation to understand it? Among the areas where the statutory language provides considerable direction are the goals of the antitrust laws; market power and market delineation requirements; the probabilistic effects requirement of the Clayton Act, standing and the indirect purchaser rule, conspiratorial capacity and antitrust personhood, and extraterritorial effects.

Highly recommended.  Download it while it's hot!

Halperin-Kaddari, Bogoch, & Katvan on Unpublished Family Law Decisions

Ruth Halperin-Kaddari (Bar-Ilan University - Faculty of Law), Bryna Bogoch (Bar-Ilan University - Interdisciplinary Department of Social Studies), & Eyal Katvan (Peres Academic Center) have posted Distorted Digital Databases and the Construction of Legal Knowledge (University of Pennsylvania Journal of International Law, Forthcoming) on SSRN.  Here is the abstract:

This article examines whether the sporadic publication of decisions in family law cases, which is customary in most commonlaw jurisdictions, even in the digital era, serves the interests of the public, the legal profession, or the development of knowledge in family law. The paper includes a theoretical overview of the debate surrounding the status of published versus unpublished decisions within the context of the construction of legal knowledge, a summary of studies examining the differences between digital databases and actual court rulings, and the particular policies and practices of the publication of rulings in family law in a number of common law jurisdictions. The empirical research in this study is based on a content analysis of a sample of 1,373 decisions from the family court archives in Israel and 1,145 decisions from five databases over the same seven-year period. We found that in general, not only was a very small percentage of decisions regarding family law published in the commercial databases, but the image of family courts that is reflected in the databases is distorted on several dimensions: Courts are depicted as more confrontational (adversarial) than they actually are; family disputes in the databases address more complicated issues than actual family court litigation; published decisions are longer and more complex than actual court decisions; decisions are more beneficial to women in the databasesthan they are in reality; there are a majority of male judges in database decisions, despite the fact that in practice family court judges are mostly female; and judicial work in the periphery is under-represented. This study contributes to understanding the dynamics of the publication of rulings and the pitfalls of the partial accessibility of legal decisions in a particularly challenging and constantly evolving area of law. If the distorted version of family litigation and case law that appears in the databases constitutes the knowledge that professionals have about family law, one can only speculate about the effect of this biased view on future practice and judicial decisions in this area.

Gaughan on Voting in Colonial and Revolutionary America

Anthony J. Gaughan (Drake University - Law School) has posted Voting in Colonial and Revolutionary America (Oxford Handbook of American Election Law (Forthcoming)) on SSRN.  Here is the abstract:

This chapter examines the history and practice of voting in colonial and Revolutionary America. When courts consult history for guidance in election law cases, judges and litigants usually focus on three time periods: the drafting of the Constitution in 1787, the adoption of the First Amendment in 1791, and the adoption of the Fourteenth Amendment in 1868. But many of the most important attributes of 21st century American election law trace back to election practices that predated the Constitution. During the 180 years between the founding of the Jamestown Colony in 1607 and the Constitutional Convention of 1787, American elections developed distinctive features that can still be found in state and federal elections in the United States.

This chapter provides an overview of voting and democracy in the English colonies of North America as well as in the 13 states established during the American Revolution. A remarkable variety of voting systems characterized colonial and Revolutionary elections. The 3,000 miles of ocean that separated Britain from its American colonies—and the hundreds of miles of coastline that separated the colonies from one another—promoted the development of unique and diverse election features. Colonial legislatures developed a wide range of approaches to voter and candidate qualifications, voting methods, election scheduling, term lengths, and a host of other election laws and procedures. The decentralized nature of colonial elections remains a central feature of American election law.

Nevertheless, some common themes emerged in early American elections. The voting process matured rapidly in the eighteenth century. Election rules and voting innovations that took hold in one colony often spread to others. Most important of all, the Americans developed a concept of representation that diverged sharply with that of the mother country. By the time the colonists declared their independence from Britain in 1776, a distinctively American approach to voting and elections had emerged in North America.

This chapter is organized into four parts. The first describes the political framework in which the American colonies conducted elections in the 1600s and 1700s. The second section details the laws that governed suffrage rights in the colonies. The third explores the process of voting in colonial America. The final section examines how the Revolution influenced voting laws and practices in the new American states of the 1770s and 1780s.

Gathii & Akinkugbe on Judicialization of Election Disputes in African International Courts

James Thuo Gathii (Loyola University Chicago School of Law) & Olabisi D. Akinkugbe (Dalhousie University - Schulich School of Law) have posted Judicialization of Election Disputes in Africa’s International Courts (Law and Contemporary Problems, Vol. 84, No. 181, 2022) on SSRN.  HEre is the abstract:

When elections are judicialized in Africa, national courts overwhelmingly legitimize incumbent electoral victories. When opposition candidates lose in high stakes presidential and gubernatorial elections, they seldom concede defeat with- out legal challenges. Claims of electoral irregularities, fraud, incompetence of electoral bodies, violence, and an unequal playing field, among other factors, transform these cases into highly contested mega-political disputes when they are judicialized.

Rather than creating new political equilibria, judicialization in national courts often results in the hegemonic preservation of incumbents. Though opposition politicians and political parties know this, they nonetheless resort to international courts in Africa, in part, because they see the courts as being at least one-step removed from a national context overwhelmingly controlled by incumbent political parties and politicians. Even though international court cases do not challenge or undermine incumbency, opposition politicians and political parties nevertheless bring these cases. This is because for opposition politicians and political parties, the utility of these courts lies in the indirect benefits that these cases give them. These benefits include giving them the opportunity to air their grievances, to galvanize their supporters and to expose electoral malpractices in a forum that incumbents do not control.

This article assesses what benefit losers of high-stakes national elections think they will get from petitioning international courts in Africa. We seek to establish how judicial intervention differs before an election when there is a risk of an international law violation, versus after an election has occurred and the result is viewed as flawed. We address these questions by drawing on a set of disputes decided by international courts in Africa in the African Court, the Economic Community of West African States (“ECOWAS”) Community Court of Justice, and the East African Court of Justice. We supplement our analysis by discussing two important mega-political electoral disputes at the national level. Together, all the cases we analyze involve deeply divisive disputes surrounding competitive presidential, gubernatorial, and legislative elections that had significant political consequences.

Our argument is that opposition politicians judicialize presidential or gubernatorial elections in international courts to turn up the political stakes that preceded the filing of the case in court. In doing so, litigants raise awareness of elec- toral injustices in ways that are often foreclosed by domestic institutions. Although these international courts were not designed to deal with electoral cases or to overturn electoral results, complainants have used them to air their electoral grievances and to advance their causes. From this perspective, it is not surprising that litigants are not primarily aiming to overturn electoral losses, but rather to amplify and extend the contestation against incumbent politicians and political parties who have a stranglehold over the electoral machinery. Perhaps these litigants realize that their litigation efforts today put incumbents on notice that their future electoral misconduct will not go unchallenged.

Macey & Richardson on Separation of Powers

Joshua Macey (University of Chicago Law School) & Brian Richardson (Cornell Law School) have posted Checks, Not Balances (Texas Law Review, Forthcoming) on SSRN.  Here is the abstract:

Critics of the administrative state who would revive the nondelegation doctrine and embrace the unitary theory of executive power often assume that each branch’s powers are capable of precise definition, functionally distinct from the others, and that the formal boundaries between each branch are sacrosanct. This Article situates these critiques in Founding Era and nineteenth century debates about the structure of the Constitution. In the 1780s, the AntiFederalists objected to the Constitution for failing to enumerate a precise taxonomy of each branch’s powers, for failing to specify that each branch’s powers were exclusive, and for failing to make government officials sufficiently accountable to the voting public. The drafters responded that the Anti-Federalist approach would neither support effective government nor prevent the branches from acting tyrannically. Rather than develop a scheme of discrete and precisely divided powers, as the Anti-Federalists proposed, the drafters preferred precise rules of inter-branch coordination to ensure that no one branch dominates the others. This debate continued throughout the nineteenth and early twentieth centuries, with influential legal minds such as Daniel Webster and Joseph Story rejecting the Anti-Federalist theory of separation of powers.

We call this a theory of separation of powers based on a principle of antidomination. On this view, the separation of powers is breached only if one branch deprives another of its procedural capacity to check the others. We further argue that this theory (a) provides a plausible account of the Framers’ understanding; (b) has had significant purchase in the development of interbranch relations since the Founding and thus can serve as a kind of rational reconstruction of historical practice; and (c) is consistent with the relevant constitutional text and the overall constitutional structure.

Highly recommended.

Hovenkamp on Textualism & Antitrust

Herbert Hovenkamp (University of Pennsylvania Carey Law School; University of Pennsylvania - The Wharton School; University College London) has posted The Text of the Antitrust Laws on SSRN.  Here is the abstract:

The antitrust laws are fully stated in two statutes that seem absurdly brief in relation to the work they do. Their brevity in relation to coverage has led to three phenomena. First is the tendency of courts to use the statutory text as no more than a starting point, treating it as a highly general principle, or “Magna Carta,” of free enterprise, and sometimes ignoring the statutory language altogether. Second, courts have responded to the statutory brevity with judicial development of numerous analytic tools, or rules not mentioned in the statutory texts. The third phenomenon is a kind of expansionism, or belief that the antitrust laws can be used to control the entire world, or at least the entire economic world.

This article considers what antitrust policy would look like if an antitrust “textualist” actually relied on the antitrust statutes themselves to control all important issues of interpretation. The language of the antitrust laws, although brief, actually says a great deal more than is commonly acknowledged. Further, the Sherman and Clayton Acts are statutes after all. They should provide the first place to look to for guidance on enforcement policy. How much different would antitrust look if we centered policy on the statutory language, using only generally accepted forensic tools and recognized canons of statutory interpretation to understand it? Among the areas where the statutory language provides considerable direction are the goals of the antitrust laws; market power and market delineation requirements; the probabilistic effects requirement of the Clayton Act, standing and the indirect purchaser rule, conspiratorial capacity and antitrust personhood, and extraterritorial effects.

Highly recommended.  Download it while it's hot!

Young & Chimowitz on Remorse, Parole, and Second-Order Legal Consciousness

Kathryne M. Young (The George Washington University Law School) & Hannah Chimowitz (University of Massachusetts Amherst - Department of Psychological and Brain Sciences) have posted Remorse, Relational Legal Consciousness, and the Reproduction of Carceral Logic (Law & Society Review 56( 2): 237– 260, 2022) on SSRN.  Here is the abstract:

One in seven people in prison in the US is serving a life sentence, and most of these “lifers” will someday be eligible for discretionary parole. But little is known about a key aspect of parole decision-making: remorse assessments. Because remorse is a complex emotion that arises from past wrongdoing and unfolds over time, assessing the sincerity of another person’s remorse is neither a simple task of lie detection, nor of determining emotional authenticity. Instead, remorse involves numerous elements, including the relationship between a person’s past and present motivations, beliefs, and affective states. To understand how parole board members make sense of remorse, we draw on in-depth interviews with parole commissioners in California, the state with the largest proportion of parole-eligible lifers. We find that commissioners’ remorse assessments hinge on their perceptions of lifers’ relationships to law and carceral logic. In this way, relational legal consciousness—specifically, second-order legal consciousness—functions as a stand-in for the impossible task of knowing another person’s heart or mind. We distinguish relational from second-order legal consciousness and argue that understanding how they operate at parole hearings reveals the larger import of relational legal consciousness as a mechanism via which existing power relations are produced and reproduced, bridging the legal consciousness and law and emotion literatures.

Hülsewig & Steinbach on the Sovereign-Bank Nexus and Financial Instability

Oliver Hülsewig (Munich University of Applied Sciences; CESifo (Center for Economic Studies and Ifo Institute)) & Armin Steinbach (HEC Paris; Max Planck Institute for Research on Collective Goods) have posted Sovereign Regulatory Risk-Weight Privilege and Constitutional Fiscal Rules on SSRN.  Here is the abstract:

The global financial crisis exposed the sovereign-bank nexus as a driver of financial instability and an impediment to economic growth. Less attention has been paid to fiscal effects. Accordingly, this study analyzes the interaction between the macroprudential regulation of banks' capital requirements and fiscal rules. We hypothesize that a conflict occurs between the regulatory privileged treatment of sovereign bonds held by banks and the market exposure logic enshrined in constitutional fiscal rules. This is particularly problematic in currency unions such as the US and the euro area. We estimate local projections to examine the reaction of sovereign fiscal positions in euro area member states to a restrictive macroprudential capital regulation shock. We find that peripheral euro area governments increase their debt following an unanticipated tightening in macroprudential capital regulation. This result indicates that the macroprudential treatment is at odds with constitutional fiscal rules.

Wuest & Last on Religious Liberty Litigation and Industry Groups

Joanna Wuest (Mount Holyoke College) & Briana Last (Stony Brook University) have posted Church Against State: How Industry Groups Lead the Religious Liberty Assault on Civil Rights, Healthcare Policy, and the Administrative State (Journal of Law, Medicine & Ethics, Forthcoming) on SSRN.  Here is the abstract:

Industry-funded religious liberty litigation groups have sought to undermine healthcare policy and law while simultaneously attacking the rights of sexual and gender minorities. Whereas past scholarship has tracked religiously affiliated healthcare providers’ growing political power and attendant transformations to legal doctrine, our account emphasizes the political donors and visionaries who have leveraged religious providers and the U.S. healthcare system’s delegated structure to transform social policy and bureaucratic agencies more generally. We collect and analyze industry-funded litigation briefs, track statutory and constitutional developments in federal courts, and employ a historical institutionalist analysis of the U.S. healthcare system. Case studies include: 1) the Affordable Care Act’s implementation; 2) the Department of Health and Human Services (HHS) interpretations of its rules and relevant congressional statutes; 3) the professional civil service; and 4) state and federal COVID-19 public health policies. We find that industry-funded religious liberty legal organizations have successfully limited the rights of sexual and gender minorities and access to reproductive healthcare while also curtailing the administrative authority of agencies including HHS. Our case studies highlight the threat that industry-funded religious liberty legal organizations pose for effective healthcare regulation, reproductive healthcare access, and civil rights enforcement for sexual and gender minorities.