Legal Theory Blog

Legal Theory Bookworm: "The Right to Exclude" by Desautels-Stein

The Legal Theory Bookworm recommends The Right to Exclude: A Critical Race Approach to Sovereignty, Borders, and International Law by Justin Desautels-Stein.  Here is a description:

In a world in which racism and xenophobia are endemic, what is the role of international law? To the extent international rules are thought to have any relevance at all, the typical approach characterizes international law as on the side of racial justice. Human rights instruments like the United Nations' International Convention on the Elimination of Racial Discrimination are paradigmatic, offering the world international agreements in which governments are directed to avoid racist behavior and promote antiracist action.

In The Right to Exclude, Justin Desautels-Stein goes against the grain and asks whether certain rules of international law might actually produce structures of racial hierarchy, rather than work to limit them. The intellectual fulcrum for this production, Desautels-Stein argues, lies in the ideological structures of sovereignty and property, the right to exclude that is shared in those twinned precincts, and the border regimes that result. Applying critical race theory to contemporary problems of migration, nationalism, multiculturalism, decolonization, and self-determination, Desautels-Stein expounds a theory of "postracial xenophobia", a structure of racial ideology that justifies and legitimates a pragmatic account of racialized foreignness, a racial xenos.

Download of the Week: "The Promise and Limits of Grounding in Law" by Tripkovic & Patterson

The Download of the Week is The Promise and Limits of Grounding in Law by Bosko Tripkovic & Dennis Patterson.  Here is the abstract:

Discussions of metaphysical grounding have recently found their way into general jurisprudence. It is becoming increasingly common to frame the debate between positivism and antipositivism as a disagreement about what facts metaphysically ground legal facts. In this article we critically evaluate this grounding turn. First, we argue that articulating the debate about the nature of law in terms of grounding holds the promise of recasting it in a common vocabulary. Second, we argue that this comes at a cost: framing the debate in this way obscures a range of further disagreements that cannot be usefully analyzed in terms of metaphysical grounding. We conclude that grounding may give us a clearer picture of what we already knew, while obfuscating a number of important questions to which it cannot, and is not intended to, provide answers.

Highly recommended.

Da Cunha Lopes & Villalón Alejo on the Rule of Law

Teresa Da Cunha Lopes (Michoacan University of Saint Nicholas of Hidalgo) & Lucia Villalón Alejo (Universidad Michoacana de San Nicolás de Hidalgo) have posted The Concept of 'Rule Of Law'. From Kelsen to Rawls on SSRN.  Here is the abstract:

The rule of law refers to the idea that all individuals, including government officials and institutions, are bound by the law and are subject to the same legal system and processes. It is a fundamental principle of many constitutional systems and is central to protecting individual rights, maintaining social order, and promoting fairness and justice. Some of the questions related to the Concept of the rule of law that is the subject of this conference and connected article are: 1.- What is the definition of the rule of law? 2. What is the difference between the rule of law and the rule of man? 3. How does the rule of law impact individual rights and freedoms? 4. What is the relationship between the rule of law and democracy? 5. How does the rule of law promote social order and stability? 6. What is the judiciary's role in ensuring the rule of law?

McCall on Casey & Vermeule on Rao on Textualism and Common Good Constitutionalism

Brian McCall (University of Oklahoma - College of Law) has posted The Differing Ground on which Textualists and Classical Lawyers Stand on SSRN.  Here is the abstract:

In this essay I respond to the essay of Conor Casey and Adrian Vermeule's essay “Judge Rao's Unintentional Surrender: On the Augustan Settlement of Our Law,” The New Digest 1 (23 August 2023). Although I agree with their overall argument, I offer two suggestions to an explanation of the apparent surrender of Textualists to Classical Common Good Constitutionalism. Yet, I conclude with a warning that the apparent settlement may not be permanent.

Khoday on Police Cell-Plant Operations

Amar Khoday (University of Manitoba - Faculty of Law) has posted “Interrogators often use honey, not vinegar, in pursuit of the truth”: Resistance, the Constitutional Right to Silence and Judicial Responses to Cell-Plant Operations ((2023) 46 Manitoba Law Journal (forthcoming)) on SSRN.  Here is the abstract:

Police officers employ numerous tactics to elicit incriminating statements from an accused. For instance, law enforcement officials will sometimes insert undercover police officers into a detention cell to procure evidence – cell-plant operations. During the 1990s, the Supreme Court of Canada held that where undercover state agents actively elicit incriminating statements from an accused while in detention, such conduct violates the latter’s right to silence situated in section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”). Remaining silent is a legitimate way to resist the power of the state when it conducts investigations. Police officers undermine this right and ability to resist when dispatching undercover officers in this manner, since an accused is unaware that they are speaking to state agents. However, an accused person with the assistance of their lawyer(s) may further resist the prosecution’s intended use of these incriminating statements through litigation – specifically, applications to exclude evidence under the Charter. While the Court has not considered cell-plant cases since 1999, Canadian trial courts at the superior court level have developed the right to silence jurisprudence concerning cell-plant cases. In addition, the Supreme Court of New Zealand has adopted the legal tests formulated by its Canadian counterpart. This article examines this jurisprudence, revealing how some decision-makers are showing sensitivity to the spatial context in which these operations occur. The case law also exposes how undercover officers may impact their exchanges with accused persons by building temporary and situational relationships with them. This is despite the lack of a prior relationship between the accused and undercover agent(s). In turn, this raises concerns about whether state actors have actively elicited incriminating statements from an accused. The jurisprudence also highlights how undercover officers are engaging in the functional equivalent of an interrogation despite the Supreme Court of Canada’s decisions in the 1990s admonishing against these tactics. An examination of this jurisprudence provides tools to challenge prosecution attempts to use cell-plant statements in future cases.

Tripkovic & Patterson on Metaphysical Grounding and the Nature of Law

Bosko Tripkovic (Birmingham Law School, University of Birmingham, UK) & Dennis Patterson (Rutgers University School of Law, Camden; University of Surrey - School of Law) have posted The Promise and Limits of Grounding in Law (Legal Theory, (2023),1–27) on SSRN.  Here is the abstract:

Discussions of metaphysical grounding have recently found their way into general jurisprudence. It is becoming increasingly common to frame the debate between positivism and antipositivism as a disagreement about what facts metaphysically ground legal facts. In this article we critically evaluate this grounding turn. First, we argue that articulating the debate about the nature of law in terms of grounding holds the promise of recasting it in a common vocabulary. Second, we argue that this comes at a cost: framing the debate in this way obscures a range of further disagreements that cannot be usefully analyzed in terms of metaphysical grounding. We conclude that grounding may give us a clearer picture of what we already knew, while obfuscating a number of important questions to which it cannot, and is not intended to, provide answers.

Highly recommended.

Moreau on Gender Equality

Sophia Reibetanz Moreau (University of Toronto Faculty of Law) has posted Faces of Gender Equality (In: Rebecca J. Cook, ed., Frontiers of Gender Equality: Transnational Legal Perspectives, University of Pennsylvania Press, 2023) on SSRN.  Here is the abstract:

In this first chapter of the book, Sophia R. Moreau advances a  pluralist account of gender-based discrimination in which multiple factors can render such discrimination wrongful. These include unfairly subordinating some groups of people to others because of gender; denying some people deliberative freedoms to which they are entitled; and leaving some without access to “basic goods”, or goods they need to function as equals in their society. Women are unfairly subordinated to men when they have less power and authority and are accorded less deference across a number of different social contexts; when their roles are scripted, or their behaviour interpreted, through gender stereotypes that serve to rationalize these disparities in power and deference; and when structural accommodations are made that normalize men's needs while rendering invisible those of women. Women are denied deliberative freedoms to which they have a right when they are prevented from shaping their lives through the kinds of autonomous choices that others are allowed to shape their lives. They are denied a “basic good” when they are left without access to one of the resources or opportunities that, given their particular social context and their values, is necessary for them to function as the equal of others. The author emphasizes that this theory depends on discriminatory effects, not on intent. The theory implies that indirect discrimination is just as problematic from a moral standpoint as direct discrimination. Importantly, the theory also requires assessing discrimination from the perspectives of those facing it: judgments about subordination, entitlements to deliberative freedoms and about what counts as a basic good can only be accurately made with a full understanding of the needs and values of those who face discrimination.

Highly recommended.

Frosio on Generative AI Litigation

Giancarlo Frosio (Queen's University Belfast - School of Law) has posted Generative AI in Court (in Nikos Koutras and Niloufer Selvadurai (eds), Recreating Creativity, Reinventing Inventiveness - International Perspectives on AI and IP Governance (Routledge, 2023, Forthcoming)) on SSRN. Here is the abstract:

In the age of burgeoning AI-driven creativity, the song "Heart on My Sleeve" stands out, attributing its sound to famed artists like Drake and The Weeknd without their participation. This product of 'Generative AI' is a testament to AI's creative capabilities. However, amidst the advancement of AI in the creative domain, the intersection of technology and copyright law is witnessing unprecedented challenges. Legal realms are ablaze with contentious cases. Getty Images' legal battle with Stability AI, accused of unlawfully harnessing copyrighted images for their AI art tool Stable Diffusion, underscores this tension. Parallelly, artists like Sarah Andersen, Kelly McKernan, and Karla Ortiz have taken on AI solution providers, alleging misuse of copyrighted content. Sarah Silverman and fellow authors have similarly contested OpenAI and Meta's practices. The justification at the heart of these case is two-fold: the rightsholders' intent to preserve their control over evolving technology that repurposes existing content, and the disruptive potential of AI in reshaping a traditionally human-centred creative landscape. This collision spotlights global courts grappling with AI's challenges to conventional copyright concepts. As AI challenges conventional notions of authorship and copyright, critical questions arise: Can AI infringe copyright through its learning process? Can AI be an author and own a copyright? Can AI-generated outputs violate copyrights? This chapter delves into these pressing issues pending before multiple courts, contextualizing them within the global landscape of Generative AI and its potential disruptions to the creative industry.

Colón-Ríos on Constituent Power

Joel I. Colón-Ríos (Victoria University of Wellington, Te Herenga Waka - Faculty of Law) has posted Introduction: Seven Thesis on the Constituent Power (48(1) Journal of Legal Philosophy 38-43, Forthcoming) on SSRN.  Here is the abstract:

This is the draft of the introduction to a symposium on Constituent Power and the Law (2020). Rather than summarizing the book’s argument, it presents the main lessons I learned from writing it in the form of seven theses. These seven theses answer questions that present themselves time and again, both in the theory and practice of constituent power. Some of them are about the relationship between constituent power and the existing constitution. For example, what counts as an exercise of constituent power under an already existing constitutional order? How do we explain instances in which the amendment rule of a constitution establishes an exclusive mode of change, and yet courts sanction the convocation of a special constitution-making body? Some relate to the nature of the power of a constituent assembly. Is such an entity sovereign, unbound by any form of positive law? Others are about the nature of constituent power itself, about its susceptibility of being regulated by law. Is the exercise of constituent power subject to limits? Can those limits only relate to the procedure through which constituent power is exercised, or can they also impact the constitutional content a constituent assembly is authorized to propose or adopt? These questions are, ultimately, about whether the exercise of constituent power is undistinguishable from an act of force that results in the creation of a new constitution. To answer them is, in a way, to explain the relationship between constituent power and the law.

Inesia-Forde on Democratic Social Change and America's Founding Documents

Angelina Inesia-Forde (Walden University) has posted A Theory of Democratic Social Change and the Role of Disempowerment: Reconceptualization of the American Founding Documents (Asian Journal of Basic Science & Research (5)3, pp. 50–72, 2023) on SSRN.  Here is the abstract:

Existing social disparities in the United States are inconsistent with Lincoln’s promise of democracy; therefore, there is a need for a critical conceptualization of the first principles that undergird American democracy and the genesis of democratic social change in America. This study aimed to construct a grounded theory that provides an understanding of the process of American democratic social change. The result was the construction of two frameworks: the demoralization process that triggers social change, and a formal grounded theory that could explain democratic social change endeavors across different domains and levels of analysis. This democratic social change grounded theory answers the research question: How do the principles of the American founding documents provide an understanding of the process of American democratic social change?