Legal Theory Blog

Dernbach on Constitutional Environmental Rights and Public Trusts

John C. Dernbach (Widener University - Commonwealth Law School) has posted The Value of Constitutional Environmental Rights and Public Trusts (Pace Environmental Law (PELR) Review, Forthcoming) on SSRN.  Here is the abstract:

As part of the modern environmental movement of the 1970s, five states (Hawaii, Illinois, Massachusetts, Montana, and Pennsylvania) adopted constitutional amendments recognizing a right to a quality environment, a public trust for public natural resources, or both. Half a century later, there is renewed interest in constitutional environmental rights, inspired in no small part by the failure of existing laws to adequately address the climate crisis. A sixth state (New York) recognized a constitutional right to a quality environment in 2021, and more than a dozen states are considering such amendments. Still, the great majority of environmental protection at the state level is accomplished by statutes and regulations. In that context, what specific value do constitutional provisions contribute to environmental and natural resources protection?

This Article attempts to answer that question for U.S. states, based on judicial decisions in these states. These provisions can contribute value in at least three ways, depending on how they are written and how courts interpret and apply them. First, constitutional environmental rights and public trusts limit governmental authority to act contrary to their provisions. They can be the basis for invalidating inconsistent statutes, regulations, and other government actions. They can be used in a variety of ways to improve access to the courts, and they have been used to broaden and deepen protection for public natural resources beyond the protection accorded under traditional public trust law. Second, they provide additional authority for governmental efforts to protect the environment and natural resources. Third, they can provide the basis for legal actions against private parties.

Constitutional environmental rights and public trusts are not a silver bullet for all environmental problems. But they can add value to a state’s environmental and natural resources protection effort in a rich variety of ways.

Takahashi on Climate Risk and Contract Completeness

Masashi Takahashi (Pennsylvania State University) has posted Climate Risk and Contract Completeness: Evidence from Corporate Real Estate Leases on SSRN.  Here is the abstract:

Climate risk should drive the design of financial contracts: when contracting parties anticipate potential climate contingencies affecting asset values, they might want more complete contracts to reduce the uncertainty of future contracting outcomes. Exploiting a novel sample of corporate real estate lease contracts combined with quasi-experimental hurricane incidents, this paper demonstrates how climate risk exposure enhances contract completeness. The key finding is that a recent hurricane experience at a tenant-side corporate headquarters leads to a 20% increase in the number of clauses related to climate-related contingencies, such as insurance or Force Majeure, in their contracts for subsequent years. Intriguingly, such experiences catalyze a 5% increase in the addition of clauses on topics beyond climate-related contingencies, thus enriching the contract's overall completeness. The findings are consistent across different measures of contract completeness and various econometric specifications.

Interesting and recommended.

Reyes on Cryptocurrency, Intermediaries, and Regulatory Failure

Carla Reyes (Southern Methodist University - Dedman School of Law) has posted Law’s Detrimental Reliance on Intermediaries (92 Geo. Wash. L. Rev. (forthcoming 2025)) on SSRN.  Here is the abstract:

Emerging technology is law’s magic mirror. Even as law seeks to cabin the effects of emerging technology in society, when we hold emerging technology up to law, emerging technology often reflects flaws or gaps in legal constructs. Of course, rather than recognizing those flaws or gaps, law retorts back “mirror, mirror, on the wall, who is the fairest of them all?,” demanding that all other disciplines and constructs bow before law’s mighty, near-perfect reach. Often, no matter how strongly emerging technology demands that law bend, legal evolution only occurs after regulatory failures harm individuals on a massive scale. One emerging technology—blockchain technology—serves as a magic mirror for financial and capital market regulation. Since 2009, blockchain technology has promised to disrupt centralized financial intermediaries—institutions acting as middlemen between parties to facilitate financial transactions. As the blockchain technology industry grows, such disruptions become more and more apparent.

Although some point to recent turmoil in the cryptocurrency industry as evidence of the technology’s failure, this Article argues instead that the cycles of expansion and explosion prevalent in the blockchain ecosystem represent the magic mirror effect of emerging technology. When viewed through a magic mirror lens, cycles of boom and bust in the cryptocurrency and blockchain industries reveal deep flaws in regulatory structures that depend on the compliance of centralized intermediaries. Indeed, this Article argues that if considered at this angle with a wide enough lens, blockchain technology reflects deep cracks in the law-making process itself.

Blockchain technology reduces the need for intermediaries in certain circumstances and can enable flatter governance structures. When considering law’s responses to cryptocurrency and blockchain technology, recent regulatory proposals and enforcement actions seem to emphasize the need for centralized intermediaries more than ever, proposing an expanding definition of intermediary in an effort to combat specific harms in financial markets. However, recent rapid and significant failures in the cryptocurrency markets shine a light on law’s potentially detrimental reliance on intermediaries and offers an opportune moment to consider—both as a matter of substantive financial regulation and as a matter of law-making itself—when deeper decentralization might improve legal and policy outcomes. To that end, this Article ignites a discussion about whether and how blockchain technology can unlock an avenue for mitigating law’s practical need for centralized intermediaries and sets up further research exploring the potential for disintermediating the law-making process itself. Ultimately, perhaps, the magic mirror reflects the power of disintermediation in the law-making process as a means to improve the legitimacy, effectiveness, and function of law.

Patel on Transinstitutional Policing

Sunita Patel (UCLA School of Law) has posted Transinstitutional Policing (Harvard Law Review, Vol. 137, p. 808, 2024) on SSRN.  Here is the abstract:

Policing has become a permanent fixture within other institutions and occurs in more ways and places than are often recognized. For race-class subjugated communities, this means policing has inserted itself into every facet of life, from education and health care to mass transit and housing. Police serve as instruments of control in many spaces and connect the bureaucratic management of safety inside formal institutions of care, learning, and public services. Police connect these safety services to ordinary street policing and wellness checks in the home.

This Article provides a framework for analyzing policing within institutional settings. I examine K–12 schools, emergency departments, mass transit, veterans health care, public housing, and universities and colleges. This Article describes six features of transinstitutional policing. The first three — red flagging, policing, and wellness checks — show how policing the public relies upon police presence within formal institutions. The second three — networked information, bureaucratic conflict and cooperation, and vulnerable privacy — tie surveillance of the public to transinstitutional policing. This framework highlights the susceptibility of institutions to the logics of policing and the ways policing undermines noncarceral and socially valuable institutional goals.

This Article frames an emerging literature as a transinstitutional approach of studying policing across and between multiple institutional domains. Examining policing through a transinstitutional lens offers a deeper understanding of the corrosive influence of policing on spaces of learning, care, and public services. The punitive and carceral aspects of these settings become amplified and more visible when the institution of policing takes hold. The features analyzed here have made it easy for police leaders and bureaucratic administrators of these institutions to resist police reform, even though the locations I study are places where advocates and institutional clientele contest policing and broader carceral control. Part I provides a continuum of embedded policing and explains why I focused on these particular institutions. Parts II and III provide the six-feature framework. Part IV offers an analysis of how we got here and draws out lessons learned to further understand transinstitutional policing.

Highly recommended.

Opderbeck on Copyright and AI Training Data

David W. Opderbeck (Seton Hall Law School) has posted Copyright in AI Training Data: A Human-Centered Approach (Oklahoma Law Review, Vol. 76, 2024 (Forthcoming)) on SSRN.  Here is the abstract:

This paper challenges the view among some copyright scholars that the use of unlicensed copyrighted material to train AI systems is a form of non-expressive fair use. Scholars and technologists who argue for broad non-expressive fair use in AI training data reflect an outdated vision of Internet exceptionalism that fails to account for developing ethical and AI policy norms. In contrast, a licensing regime for crawling and scraping copyrighted works to use in AI training would foster the growth of training data markets, improve data quality, and serve the values of AI fairness, transparency, accountability, and privacy. In addition to these traditional copyright arguments, many advocates suggest that training an AI is like educating a human being. In response to this intuition, this paper explore various views in machine ethics on the status of AIs and argue from a eudemonistic perspective that AI technology should serve human interests. This human-centered approach, this paper argues, belies the claim that AI proprietors should have free, unfettered access to copyrighted works.

Recommended.

Nahtigal on the Rules-Based International Order

Matjaz Nahtigal (Faculty of Social Sciences, University of Ljubljana) has posted Contradictions and Inherent Instabilities of the Current Form of the Rules-Based International Order (The Neoliberal World Order in Crisis, and Beyond, eds. Marko Hocevar, Tibor Rutar, Marko Lovec (eds.), publisher Zalozba FDV, University of Ljubljana, Slovenia, 2023, pp. 391 - 416) on SSRN.  Here is the abstract:

International liberal order in its present, unreformed version, assumes there is one single universally valid and applicable social and economic model for all parts of the world, irrespective of local needs, aspirations, development potential and initiative. It leads to the concentration of economic power, finance, technological innovations and access to all other opportunities in the handful of leading areas in the developed and developing countries. The rivalries among the major trading blocs erode democratic developments around the world. As convincingly argued by two scholars in their recent book, trade wars among the leading trading blocks are primarily class wars due to highly uneven benefits and constraints in the present normative and practical international arrangement.

The key challenge for the 21st century therefore remains how to develop international legal, economic, social, political and cultural order that would find a functional balance between open international markets, domestic policy space and co-existence of a variety of economic and social models around the world. The international normative framework that would prevent a global race to the bottom, harmful practices of “beggar-thy-neighbor”, while enabling local, regional and national governments to develop and implement strategies of development toward modern, inclusive knowledge economy and society. The international discourse should move beyond the traditional discourse on liberalization vs. protectionism, globalization vs. deglobalization, toward existing normative framework and credible, sustainable and coherent institutional innovations at all levels of international polity that would empower the excluded parts of population, local communities and stagnating regions all over the world.

Braverman on the One Health Approach to Health Care Policy

Irus Braverman (University at Buffalo Law School) has posted More-than-One Health, More-than-One Governance (Introduction. More-than-One Health: Humans, Animals, and the Environment Post-COVID (Irus Braverman, ed., Routledge)) on SSRN.  Here is the abstract:

After a brief discussion of the recent history and legacies of One Health, my Introduction to the volume “More-than-One Health” sketches a range of “more-than” challenges to One Health: the “more-than-human” challenge to One Health that pushes it away from its anthropocentric biases toward posthuman and multibeing forms of justice; the “more-than-zoonotic” challenge that calls One Health to shift its focus from emerging infectious diseases—such as West Nile virus, pandemic influenza, and extensively drug-resistant tuberculosis (XDR-TB)—toward Neglected Tropical Diseases and noncommunicable diseases; and the “more-than-science” critique of One Health that encourages other ways of knowing the world, highlighting Indigenous and local worldviews and incorporating interdisciplinary insights and methods from the humanities and the social sciences. Next, the Introduction discusses the recent call by One Health advocates to chart a Pandemic Treaty that would purportedly promote more effective regulation, surveillance, and monitoring of health on a global level. The one treaty idea closely resembles One Health’s one world-ism, only this time manifesting in the governance arena. Whereas the goals of such planetary governance are valid, the introduction argues that we must also realize the dangers of such a centralized approach. In its final section, the Introduction provides a review of the volume’s structure.

Heise on Racial Isolation, School Police, and the "School-to-Prison Pipeline"

Michael Heise (Cornell Law School) has posted Racial Isolation, School Police, and the “School-To-Prison Pipeline”: An Empirical Perspective on the Enduring Salience of “Tipping Points” (Buffalo Law Review Vol. 71, No. 2 (2023)) on SSRN.  Her is the abstract:

Two broad trends inform public K-12 education’s current trajectory. One involves persisting (and recently increasing) school racial isolation which helps account for an array of costs borne by students, schools, and communities. A second trend, involving a dramatically increasing police presence in schools, is evidenced by a rising school resource officer (“SRO/police”) presence in schools. Increases in the magnitude of a school’s SRO/police presence correspond with increases in the school’s propensity to engage law enforcement agencies in student disciplinary matters which, in turn, help fuel a growing school-to-prison pipeline problem. While these two broad trends propel two distinct research literatures, these research literatures do not meaningfully engage with one another. Empirical research is largely silent on the degree to which, if at all, variation in a school’s racial isolation level influences how its SRO/police presence interacts with the school’s propensity to report student discipline issues to law enforcement agencies. This Article examines whether variation in school racial isolation levels informs whether a school’s SRO/police presence influences the school’s law enforcement reporting rates. Results from this study imply that any such influence is confined to schools where non-white student enrollment ranges from 11% to 50%. The research literature on tipping points provides one helpful interpretative lens to better understand why this specific school racial isolation band systematically differs from others when it comes to SRO/police presence’s influence on a school’s propensity to report student discipline matters to law enforcement agencies.

Highly recommended.

Savitz on the Standard of Review for Mixed Questions of Law and Fact in Administrative Proceedings

Gwendolyn Savitz (University of Tulsa College of Law) has posted Reviewing Mixed Questions of Fact and Law in Administrative Adjudications: Why Courts Should Move to 'Substantially Established Facts' (Villanova Law Review, Vol. 68, 2023) on SSRN.  Here is the abstract:

Courts are inconsistent in how they review mixed questions of fact and law in administrative adjudications. Many courts simply and unquestioningly review the entire mixed issue using only substantial evidence review. This grants extreme and unquestioning deference to any legal interpretation used by the agency, far more than would be available to it under the increasingly besieged Chevron doctrine, despite the fact that the adjudications being reviewed in this manner generally would not even be entitled to Chevron deference if the legal component of the mixed question were analyzed separately. Courts should therefore analyze the different components of a mixed question separately. Reviewing administrative action in this way is actually even easier than it would be when reviewing a traditional trial because the reviewing court can always remand to the agency if factual findings are not sufficient to allow review.

Gold on the Modularity of Private Law

Andrew S. Gold (Brooklyn Law School) has posted Private Law's Choice of Private Law (Forthcoming in: Interstitial Private Law (Samuel Bray, John C.P. Goldberg, Paul B. Miller & Henry E. Smith, eds.) (Oxford University Press)) on SSRN.  Here is the abstract:

Interstitial private law helps separate private law fields one from another (e.g., tort, contract, fiduciary law), while determining which field should prevail in cases of overlap. This paper will argue that the resulting differentiation of legal fields is valuable for multiple reasons. One major consequence is that these fields are more modular, and this modularity cuts down on delineation costs and information costs. Yet we have reason to care about a field’s modularity even if our primary concern is not with economic benefits. This is not just because handling complexity can help with other goals, such as advancing the rule of law or providing corrective justice more effectively. It is also because modular structures, at both mid-level and micro-level, can help contribute to the existence and meaning of special relationships that the law helps constitute.

Highly recommended.