Legal Theory Blog

Shmueli on Relational Torts

Benjamin Shmueli (Bar-Ilan University - Faculty of Law) has posted Relational Torts: Tort Litigation in Cases of Close Relations (Ohio State Journal on Dispute Resolution, Forthcoming) on SSRN.  Here is the abstract:

To what extent do personal relationships, such as between family members, neighbors, or trusted business partners matter in ascertaining how to address tort claims? This Article brings policy considerations into present rationales for a new and comprehensive doctrine of relational torts and lays the foundations for practical application of this doctrine.

This Article discusses several main issues. The first is whether it is appropriate to treat torts involving those within a close relationship differently from torts between strangers? The Article posits that in such close relationships, a true restoration of the relationship requires emotional remedies, such as an apology and expression of remorse. This may challenge the traditional view that the main purpose of tort law is to restore the status quo ante, typically by means of monetary compensation. The proposal shifts the focus toward appeasement and rehabilitation, aims that have been considered secondary (compared to corrective justice or deterrence) and considers both efficiency and the public interest in preserving close personal relationships as a value and an asset. The second issue is how to adapt tort law to address tort disputes within close relationships. For example, will it be sufficient simply to tweak existing tort law, or will it be necessary to create entirely new law?

The Article offers suggestions how the remedial implications of relational torts should concentrate on restoration of relationships and not necessarily backwards-looking reparation or compensation for harm. Part of the solution should employ emotional remedies in lieu of some part of monetary damages in appropriate cases, examining how to make it compatible also with the will to be efficient and prevent over-deterrence. Finally, the Article discusses the types of close relationships that should be covered under any such new tort law. Speaking both positively and normatively, some aspects of the desirable model are found in today’s legislation and case law in various countries. However, there is no systematic and coherent theory, or at least any organized arrangements, for the doctrine. The analysis draws on an extensive-but-cautious comparison with relational contracts doctrine.

Evans on Multisided Platforms and Antitrust

David S. Evans (Berkeley Research Group; Market Platform Dynamics) has posted Multisided Platforms in Antitrust Practice on SSRN.  Here is the abstract:

The pioneering paper on the economics of two-sided platforms started circulating as a working paper around 2000 and soon after economists saw the import for antitrust analysis. The competition authorities and courts eventually did too. In the United States the Supreme Court’s decision in State of Ohio et al. v. American Express enunciated a framework for applying platform economics to key areas of antitrust. This paper describes that framework and how the courts have applied it in decisions on motions to dismiss, summary judgment, and liability through September 2023. It thereby provides a brief summary of how the economics of multisided platforms has been used in practice.

Shill on Dual-Class Stock

Gregory H. Shill (University of Iowa College of Law; University of Iowa Tippie College of Business; University of Iowa Driving Safety Research Institute) has posted The Social Costs (and Benefits) of Dual-Class Stock (Harvard Law School Forum on Corporate Governance (October 16, 2023)) on SSRN.  Here is the abstract:

Dual-class stock structures allow founders to sell equity in their company without giving up control. These devices accomplish this by creating one class of stock with extra voting rights for founders and another with lesser voting rights for the general public—or no votes at all. The insulation this provides to founders is said to increase their capacity to increase innovation and scale. A deep literature examines the costs and benefits of this structure for shareholders from an agency perspective. This post, which expands upon a law review article, presents the case that dual-class stock also has social consequences—some beneficial, others costly.

The post identifies two categories of social costs flowing from dual-class stock. The first comprises acts that have an insufficient nexus to the core purpose of the structure (dual-class “frolics”), i.e., acts that depart from the founder’s scale-enhancing vision. This might include efforts to exempt the company from a generally applicable regulation in a way that earns it no competitive advantage in the market (for example, claiming a religious exemption from a legal requirement to provide coverage for contraception). The second is dual-class “exploits,” which are acts that exploit the scale advantages of the dual-class structure for purposes that increase shareholder wealth but frustrate public policy. This might include a dual-class technology platform company using its scale advantages to make political contributions with the goal of forestalling antitrust or other regulation. Unlike dual-class frolics, dual-class exploits are not well-suited to agency-based solutions as the corporation is plausibly exploiting its dual-class structure to serve shareholder interests.

The post proposes two changes to SEC rules to curb the negative externalities of dual-class stock structures while retaining their social and private potential. The first acts on the agency channel, primarily to address frolics. It urges the agency to tighten the substantive bases for excluding Rule 14a-8 shareholder proposals at dual-class public companies. This would have the effect of making it easier for socially minded shareholders to initiate important conversations with controlling shareholders at dual-class companies. The second also urges action by the SEC, but of a different nature: to bar dual-class companies that have made political contributions from receiving government contracts for a period of two years. This prescription borrows from an existing SEC rule that applies the proposed restriction to investment advisers, and would address exploits.

The post was published on the Harvard Law School Forum on Corporate Governance. It expands upon a forthcoming article, Gregory H. Shill, The Social Costs (and Benefits) of Dual-Class Stock, 75 Alabama Law Review __ (forthcoming 2023), which may be found at https://ssrn.com/abstract=4414298.

Rahmati & Hyman on Enforcement Expectations and Law Abidingness

Mohammad H. Rahmati (Sharif University of Technology) & David A. Hyman (Georgetown University Law Center) have posted Crime, Punishment, and Expectations: Evidence From the Baltimore Light Rail on SSRN.  Here is the abstract:

Expectations matter in many domains – but do they affect whether people obey the law? We surveyed riders on the Baltimore Light Rail (which operates on an “honor fare” system) about their perceptions regarding the frequency of ticket checks; the consequences of getting caught without a ticket; their self-reported reasons for purchasing a ticket before boarding; and their willingness to engage in fare evasion under semi-exigent circumstances. We report the results of a structural model estimating how expectations influence whether people obey the law. We find the average assessment of the likelihood of ticket check is quite accurate, but riders who (mistakenly) believe the probability is lower than it is are much more likely to fare evade. Further, expectations with regard to the likely consequences of fare evasion are also heterogeneous. In our counter-factual analysis, perceived fines have little impact on willingness to fare evade, but a higher perceived likelihood of apprehension has an appreciable impact. Because marginal riders are pivotal in the rate of fare evasion, debiasing expectations among the whole population has little impact.

Recommended.

Engelmann et al on Surevey Evidence and the Duty to Apply Immoral Laws

Neele Engelmann (Max Planck Society for the Advancement of the Sciences - Max Planck Institute for Human Development), Guilherme Almeida (Insper), Felipe Oliveira De Sousa (University of Edinburgh), Karolina Prochownik (Ruhr University of Bochum), Ivar Hannikainen (Department of Philosophy I, University of Granada), Noel Struchiner (PUC-Rio), & Stefan Magen (Max Planck Institute for Research on Collective Goods; University of Bochum) have posted Is there a duty to apply immoral laws? on SSRN.  Here is the abstract:

What should judges do when faced with immoral laws? Should they apply them without exception, since “the law is the law”? Or can exceptions be made for grossly immoral laws, such as historically, Nazi law? Surveying laypeople (N = 167) and people with some legal training (N = 141) on these matters, we find a surprisingly strong, monotonic relationship between people’s subjective moral evaluation of laws and their judgments that these laws should be applied in concrete cases.

This tendency is most pronounced among individuals who endorse Natural Law (i.e., the legal-philosophical view that immoral laws are not valid laws at all), and is attenuated when disagreement about the moral status of a law is considered reasonable. The relationship is equally strong for laypeople and for those with legal training. We situate our findings within the broader context of morality’s influence on legal reasoning that experimental jurisprudence has uncovered in recent years, and consider normative implications.

Kaehler on the Ideal Dimension of Law

Lorenz Kaehler (University of Bremen - Faculty of Law) has posted What is the ideal dimension of law? on SSRN.  Here is the abstract:

Law is, in many regards, non-ideal, as it almost always falls short of the best that one would agree about in an ideal world. Nevertheless, in several ways, it has an ideal dimension. Moral ideals could, more or less, be realised in it, just as they might be realised to a greater or lesser degree in the social sphere. Insofar law has the dimension of moral ideality.

Independent of this, law might establish its own ideals, which might also be realised to a greater or lesser degree in its own norms and the social sphere. Nothing guarantees that its own ideals be totally in accord with morality. But this does not take away their character of an ideal. In order to understand a legal system, it is not enough to pay attention to its rules and moral ideals. In addition, one has to take seriously the ideals that the law pursues. Law might thus have its own ideality.

Even more fundamental is the ontological question as to what kind of entities the law belongs, in so far as an ideal dimension has to be recognised as well. Legal norms are like numbers in their existence, independent of their material manifestations. This immaterial, ideal character explains crucial features of the law such as its ubiquity, translatability and persistence.

Neither the moral, nor the legal, nor the ontological ideality requires law to claim correctness. It is capable of making such a claim, but is not conceptually required to do so. In the light of law’s many shortcomings, to claim moral ideality would lead to hubris. To maintain, instead, that any norm claims that it is, at least not extremely unjust, but possibly unjust, would impose upon it a self-reflective, differentiated attitude, which can hardly be attributed to every norm or every legal system. So, the ideal dimension cannot be found in a claim to correctness. But, even without such a claim, law does have several ideal dimensions.

Segev on AI Discrimination

Re'em Segev (Hebrew University of Jerusalem – Faculty of Law) has posted The Moral Status of Input and Output Discrimination (AI & Ethics, Forthcoming) on SSRN.  Here is the abstract:

A salient concern regarding artificial intelligence (AI) systems is that they may involve objectionable forms of discrimination. This concern is usually associated with the possibility that the input and, as a result, the output of such systems may be inaccurate. However, the concern is sometimes also present when the input and output are accurate (or when they reflect the best available evidence). The paper considers when this concern is warranted and what should be the response to it. It submits that while there may be reasons against actions that rely on accurate input and output, these reasons are not always present, and when there are, they may not be decisive. Therefore, discrimination in the relevant senses should not always be avoided. The argument for this conclusion is thus based on two premises: that discrimination should be avoided only when it is wrong (or bad) overall as opposed to when it is merely pro tanto wrong (or bad); and that discrimination in the senses that are often considered in the AI context is not necessarily (and thus not always) wrong (or bad) overall.

Mate on Moore v. Harper

Manoj Mate (DePaul University - College of Law) has posted Moore and Partisan Gerrymandering (Forthcoming, Connecticut Law Review, Vol. 56, No. 3, 2024) on SSRN.  Here is the abstract:

This article examines the impact of the Supreme Court’s recent decision in Moore v. Harper on state partisan gerrymandering. Moore rejected the independent state legislature theory in affirming that state courts could review state regulations of federal elections. However, Moore also articulated a vague standard under which federal courts could review state court decisions to ensure they do not “transgress the ordinary bounds of judicial review” by assuming powers vested in state legislatures under the federal Elections Clause.

I analyze Moore’s impact on the substantive dimension of state court review in conjunction with the procedural dimension of state partisan gerrymandering disputes, by focusing on a problem that Moore does not squarely address—evasion of anti-partisan gerrymandering processes and norms by legislatures, redistricting commissions and other political actors. I argue that Rucho and Moore entrench a model of federalism that contributes to representation diminution by allowing federal courts to undermine state court checks on state partisan gerrymanders, while at the same time failing to address the problem of evasion of norms prohibiting partisan gerrymandering. As this article illustrates, political actors have defied and evaded state constitutional and statutory provisions in surprising and concerning ways. State legislatures and redistricting commissions have evaded constitutional provisions governing partisan gerrymandering norms and redistricting processes, and also defied and resisted court decisions ordering the adoption of remedial maps in their push to implement partisan gerrymanders.

This article begins by situating Moore within theories of federalism, democracy, and election law, highlighting how Moore could weaken state courts’ role in policing partisan gerrymandering, while not addressing the problem of evasion of politically entrenched norms against partisan gerrymandering . It then provides a descriptive account of state partisan gerrymandering regimes, by analyzing variation in the pathways through which states have entrenched norms against partisan gerrymandering, and variation in evasion strategies employed by political actors. It then assesses Moore’s implications for state constitutionalism by examining its potential impact on state court interpretation and state electoral governance, state court responses to evasion dynamics, and how patterns of evasion highlight key weaknesses in the institutional design of state redistricting reforms, and weaknesses in judicial remedies. The article concludes by considering broader implications for federalism, democracy, and the role of courts.

Vermeule on the Separation of Powers and Classical Legal Theory

Adrian Vermeule (Harvard Law School) has posted The Rule of Law Without Separation of Powers: Legality in the Classical Tradition on SSRN.  Here is the abstract:

Among theorists of legal liberalism, a common assumption is that the rule of law, rightly understood, entails some version of the separation of powers — especially the separation of adjudication from the making or enforcement of law. Classical legal theory, by contrast, remains generally agnostic about the separation of powers, but holds that a combination of powers is entirely consistent in principle with a profound commitment to the rule of law and legal justice. On the classical view, no particular institutional technology, including the separation of powers, is defined into the rule of law, so long as the constitutional order as a whole is rationally and adequately ordered to the proper end of law, the general welfare or common good.

Kysar on a Duty of Climate Care

Douglas A. Kysar (Yale University - Law School) has posted The Duty of Climate Care (DePaul Law Review, Forthcoming) on SSRN.  Here is the abstract:

A motivational saying popular within the climate advocacy movement advises, “It’s never too late to do your best.” With respect to climate change, political representatives instead seem to have followed the adage, “It’s always too soon to care.” Is it any wonder, then, that advocates have turned to the courts in pursuit of meaningful declarations of climate responsibility?

Across the world, litigants in numerous jurisdictions have filed actions against both public and private defendants, seeking to instantiate a duty of climate care. They have invoked constitutional and human rights claims, but also tort law to ground this duty. Indeed, some advocates have explicitly called for the creation of a new tort, seeking to invoke the centuries-long power of common law judges to fashion duties to address changing social circumstances. Never mind that the circumstances at issue involve the largest and most challenging collective action problem ever to face humanity. With the political branches failing their most basic obligation to preserve the ecological foundation of social order, courts are being called upon to fashion a jurisprudence of climate care.

This paper explores conceptual issues raised by a duty of climate care. Regardless of how a climate responsibility cause of action is framed, courts must confront the difficult question of why the defendants named in any given action should be singled out for judicial scrutiny from among the many billions of present and past human emitters. That question in turn raises issues regarding the institutional authority and competence of courts. Neither concern is insurmountable as a doctrinal and practical matter. But along the road to ultimate resolution of a climate accountability case, courts face numerous tempting exit opportunities. Will judges agree that it’s never too late to try their best?