Legal Theory Blog

Agunbiade on Sex Robots

Akintunde Agunbiade has posted Sex Robots: Ethical Issues Arising and their Potential Impact on Human Intimacy on SSRN.  Here is the abstract:

As AI and robotics become more common in our everyday lives, they pose a challenge to long-settled definitions, principles, and concepts that govern our daily lives. Robots have been defined as 'force through intelligence' or 'where AI meets the real world'. Sex robots are a variant of social robots whose primary purpose is to provide sexual gratification and intimacy for humans. Sex robots come in different forms with unique functionalities, which are covered in this paper. Human intimacy in this paper focuses on heterosexual relationships, as this is what the use of sex robots is modelled after. In this paper, mention is made of robots that can refuse or simulate the rejection of sexual intimacy with the user. Several ethical dilemmas are also presented, which are by no means conclusive of all the various ways sex robots can be exploited or developed.

Becher on Ex Ante Access to Justice

Samuel Becher (Victoria University of Wellington) has posted Ex ante Access to Justice (30(2) Competition and Consumer Law Journal (2023, Forthcoming)) on SSRN.  Here is the abstract:

Access to justice is a key challenge in the consumer protection landscape. Scholars and policymakers acknowledge this challenge and have devised various means to increase consumers’ access to justice. Small claims courts and dispute tribunals, class actions and group litigation, exemplary damages, educational efforts, and accessible legal advice all assist consumers in accessing the court system and enforcing their rights. However, these fail to address what this article dubs ‘ex ante access to justice’: the stage in which policymakers and legislators design the rules that govern business-to-consumer relationships. Industry pressure, lobbying and capture can result in ineffective consumer protection laws that benefit powerful industry forces and undermine consumers’ interests. This article (1) conceptualises the idea of ex ante access to justice, (2) illustrates the problem by referring to two specific domains, and (3) offers a suite of corresponding law and policy improvements.

Cavedon on Textualism in Georgia

Matthew Cavedon (Emory University - Center for the Study of Law and Religion) has posted Georgia’s Law of Rules: Textualism and a Survey of the Canons on SSRN.  Here is the abstract:

Before a travel guide can be written, there has to be a map; before treatises can be written, there have to be surveys. This article is a very first step: a survey of Georgia textualism and every canon the state Supreme Court has recognized in its 180-year history.

Hill on Ely on Roe

B. Jessie Hill (Case Western Reserve University School of Law) has posted Big, Bad Roe (14 ConLawNOW 65 (2022)) on SSRN.  Here is the abstract:

Now that Roe v. Wade is gone, what should replace it? This moment presents a rare opportunity to re-imagine the right to reproductive autonomy, given that the longstanding constitutional framework governing that right has been tossed out the window. For the most part, constitutional litigation over the right to abortion has shifted to state courts and is brought under state constitutions. Thus, as state courts begin to recognize the existence of a constitutional right to reproductive autonomy under state constitutions, they must decide what the right looks like. In several cases currently being litigated in state courts, advocates have argued for a fundamental right to terminate a pregnancy, urging courts to adopt a strict scrutiny standard. A fundamental right to abortion, protected by strict scrutiny, of course looks very much like the rule adopted by Roe.

In light of this potential resurgence of a Roe-like standard in the state courts, it makes sense to ask whether Roe’s doctrinal framework is worth resurrecting. To be sure, Roe came under heavy criticism by the Supreme Court in Dobbs. But not only conservatives have bashed Roe over the years: one of Roe’s most prominent critics is a liberal intellectual, the legal scholar John Hart Ely, who famously attacked Roe’s reasoning in a much-cited essay entitled The Wages of Crying Wolf: A Comment on Roe v. Wade. Justice Alito’s majority opinion in Dobbs gleefully cited Ely’s criticisms, as if to suggest that Roe simply must be wrong, since even such a prominent liberal has found it lacking.

This essay gives a brief overview of the Dobbs Court’s use of Ely’s famous article and discusses Ely’s critique in more detail. It then considers whether Roe, as an example of constitutional doctrine, really merits such harsh criticism.

Smith on Zombie Laws

Michael L. Smith (St. Mary's University School of Law) has posted Constitutional Interpretation and Zombie Provisions (Georgia State University Law Review, Vol. 40, (Forthcoming)) on SSRN.  Here is the abstract:

The United States Constitution and state constitutions contain numerous zombie provisions, including language restricting marriage to relationships between one man and one woman, voter literacy test requirements, disqualification of atheists from serving in office or testifying as witnesses, and pervasive gendered language restricting rights and offices to men alone. While these provisions are unenforceable due to subsequent amendment, determinations of federal unconstitutionality, or preemption by federal laws, they live on in the text of the United States and state constitutions.

This Article addresses a danger of these zombie provisions that has, thus far, been overlooked—the prospect that zombie provisions may influence the interpretation of still-living constitutional provisions. The United States Supreme Court and the vast majority of states require contextual analysis when interpreting constitutions—requiring that provisions be read in light of the document as a whole rather than in isolation. Many constitutional rights guarantees are written in an abstract, undefined manner. And numerous state constitutions include broad, non-exhaustive guarantees of individual rights. These provisions demand clarification through context, and it is here that zombie provisions may continue to live on by limiting the scope of equal protection, due process, and individual rights guarantees. For example, how much protection can a set of abstract inalienable rights truly provide to LGBTQ people if it appears alongside a constitutional provision restricting the definition of marriage to a union of one man and one woman?

While this problem would be best solved by removing zombie provisions, I argue that an alternate rule of avoidance may mitigate these provisions’ interpretive impacts. Courts may continue to engage in contextual analysis, but should actively exclude zombie provisions from consideration when doing so. Doing so sheds light on these provisions’ invalidity and prevents them from influencing the interpretation of still-living constitutional provisions.

Macey-Dare on Gender Balanced Arbitration Panels

Rupert Macey-Dare (St Cross College - University of Oxford; Middle Temple; Minerva Chambers) has posted Simple Algorithm and Rules to Help Ensure Fairer, More Diverse & Gender-Balanced Arbitration Panels on SSRN.  Here is the abstract:

Many law firms, legal professional bodies, academics, arbitrators and arbitration institutions, around the world have recently examined and lamented the lack of diversity and gender balance in law firms, judiciaries and particularly on arbitral panels. This has led to raised consciousness of the problem and a growing determination e.g. from many law firms to encourage discretionary remedial steps.

This paper sets out a simple feasible remedy approach for arbitral bodies and ad hoc arbitrations that want to take active measures to address and help solve this problem, using a simple algorithm and set of new additional arbitrator selection rules, that nevertheless preserve enough flexibility and arbitration party control, so as to be able to still command their full respect and support. (N.B. This is an example of the principle of using agreed binding Rules rather than Discretion to achieve a beneficial policy goal.)

Abstract continues below.

Sun on Regulation and Algorithmic Disinformation

Haochen Sun (The University of Hong Kong - Faculty of Law) has posted Regulating Algorithmic Disinformation (46 Columbia Journal of Law & the Arts 367 (2023)) on SSRN.  Here is the abstract:

Disinformation is endemic in the digital age, seriously harming the public interest in democracy, health care, and national security. Increasingly, disinformation is created and disseminated by social media algorithms. Algorithmic disinformation, a new phenomenon, thus looms large in contemporary society. Recommendation algorithms are driving the spread of disinformation on social media networks, and generative algorithms are creating deepfakes, both at unprecedented levels. The regulation of algorithmic disinformation is therefore one of today’s thorniest legal problems.

Against this backdrop, this Article proposes a novel approach to regulating algorithmic disinformation effectively. It first explores why transparency, intelligibility, and accountability should be adopted as the three major principles of the legal regulation of algorithmic disinformation. Because of its market-based technology development and regulation policy, the United States has yet to adopt any laws regulating algorithmic disinformation, let alone these three principles. The Article then examines legislative reforms in France and China, where the three principles have been translated into legal rules requiring social media companies to disclose their disinformation-related algorithms, render them intelligible to users, and assume legal responsibility for curbing the spread of disinformation on their platforms.

Based on a critical discussion of the major problems with these legal rules, the Article puts forward a multi-stakeholder approach to better implement the three principles. It argues that the United States should take the lead in creating and piloting an algorithmic disinformation review system. This new system would empower the administrative oversight of algorithmic disinformation and promote the dynamic engagement of social media users and experts in policing algorithms that generate and disseminate disinformation. The ADRS would thus promote the transparency and intelligibility of algorithms and hold social media platforms accountable for curbing disinformation.

Vu-Dinh on a Civil Right to Access to Credit

Kim Vu-Dinh (Mitchell Hamline School of Law) has posted Black Livelihoods Matter: Access to Credit as a Civil Right and Striving for a More Perfect Capitalism through Inclusive Economics (Houston Business and Tax Law Journal, Vol. 22, No. 1, 2021) on SSRN.  Here is the abstract:

Following the murder of an un-armed African-American male by a police officer, the nation erupted in protest rallying to the call of Black Lives Matter, and shined a light on the systemic racism engendered in American society. While this dialogue often focuses on the political rights of African-Americans, one of the best illustrations of racial disparity can be found in the stark difference in access to credit. In the past century, capitalism has been blamed for countless ills in the United States. From the Great Depression, to the Great Recession, to the ever-growing disparity of income, the scapegoat has been capitalism--a reasonable reaction to today’s economy that is so unfettered it resembles a multi-national financial oligarchy. But a more careful analysis of today’s growing inequality reveals a different conclusion—that the disparity of income between the Anglo-Saxon majority and the historically disenfranchised is a result of discrimination by race, rather than any inherent feature of capitalism. Rather, a more perfect capitalism would mean greater access to capital for all, based on merit, and not race. Thus, a nation with as diverse a population as the U.S. would thrive with a more diverse set of financial products than what is readily available today. Currently, most lending mechanisms are sized to maximize the greatest opportunity per single transaction, using criterion that is ineffective at gauging risk, and instead, primarily serves the wealthy and historically privileged, regardless of their likelihood to repay. More effective and more inclusive financial products would help the historically disenfranchised to acclimate to the code and culture buried in the mysteries of credit underwriting. Such tools, if effectively and efficiently deployed, would remove barriers to access and result in a smaller disparity in income, and thus, serve to equalize political power. The concept of access to capital as a civil right has roots in several activist thinkers throughout history including civil rights leaders Mahatma Gandhi and Martin Luther King, Jr. Concrete solutions have manifested themselves in market-based pilot projects experimented with through a variety of mechanisms, during the New Deal, and even more recently via the Americans Recovery and Rehabilitation Act of 2008 and 2009, and afterwards. Some of these solutions include financial literacy programming, fintech tools, and more inclusive underwriting implementation to name a few, and are discussed as part of an overarching strategy towards achieving an inclusive economic capitalist system.

Utset on Bargaining Games and Present-Biased Preferences

Manuel A. Utset (Florida State University College of Law) has posted Time-Inconsistent Bargaining and Cross-Commitments (Games. 2023; Vol. 14, No. 3: 38) on SSRN.  Here is the abstract:

The paper studies bargaining games involving players with present-biased preferences. The paper shows that the relative timing of bargaining rewards and bargaining costs will determine whether the players’ present-bias will affect bargaining outcomes. In cases where players agree to a bargain in period 1 and experience all bargaining payoffs in period 2, the players will act in a time-consistent fashion. When time-inconsistent players incur immediate bargaining costs to produce delayed rewards, they will have an incentive to procrastinate. On the other hand, when players receive immediate bargaining rewards and incur delayed costs, they will have incentives to agree to bargains too soon and to agree to inefficient bargains. The paper shows that the players’ awareness of their own and the other player’s present-biased preferences will determine whether they engage in repeated time-inconsistent bargaining. A naïve player who engages in time-inconsistent bargaining will suffer welfare losses. We show that time-inconsistent bargaining can also create spillover welfare losses for other players. A time-consistent player who is counterparty-naïve about the other player can suffer spillover welfare losses that can be higher than those incurred by the time-inconsistent player. As a result, counterparty-sophisticated players will have an incentive to use cross-commitment devices to reduce the likelihood of spillover welfare losses. The paper also shows that cross commitment devices that target immediate payoffs dominate cross-commitments that target delayed payoffs. Finally, the paper shows that time-inconsistent bargaining can lead to inefficient delays in agreeing to bargains and in exiting bargaining relationships.

Ryan on "Evolving Standards of Decency" and the Eighth Amendment

Meghan J. Ryan (Southern Methodist University - Dedman School of Law) has posted The Death of the Evolving Standards of Decency (Florida State University Law Review, Vol. 51, 2024) on SSRN.  Here is the abstract:

The Eighth Amendment Punishments Clause is in jeopardy. The constitutionality of punishments is usually judged according to the “evolving standards of decency that mark the progress of a maturing society.” And in evaluating these standards, the Court has traditionally looked to changing societal views on a punishment. This is a living constitution approach to interpretation, and the Eighth Amendment is the only area of law in which the Court has consistently and explicitly applied such an approach. But a living constitution approach is diametrically opposed to the current Court’s focus on originalism. This is the first originalist Court in history, and the Court has not been shy about wielding its originalist wand. Further, the current Court is quite willing to set aside decades worth of entrenched precedent, as it did in Dobbs—its recent abortion decision. The Court’s originalist approach, paired with its disrespect for precedent, puts the Eighth Amendment living constitution approach examining the evolving standards of decency on very shaky ground. Even though the Court has long adhered to this test, a willingness to set aside precedent and put an originalist approach in its place seems to be in the works. Such a turn toward originalism would push us back to the barbaric punishments available at the time of the Founding and reverse current Eighth Amendment bans that prevent states from executing juveniles and intellectually disabled people. Such a death of the evolving standards of decency would also render the Eighth Amendment a dead letter.