Legal Theory Blog

Barker on Insuring Against Punitive Damages

Kit Barker (University of Queensland - TC Beirne School of Law) has posted Insured Punishment: Lamb v Cotogno (Chapter 6 in J Goudkamp and E Katsampouka (eds) Landmark Cases in the Law of Punitive Damages (Hart, 2023) pp 99-128) on SSRN. Here is the abstract:

This piece examines the potentially paradoxical question of whether it is (or should be) possible for a wrongdoer to insure himself or herself against an award of punitive damages. It does so through a detailed examination of the curious case of Lamb v Cotogno, decided by the High Court of Australia in 1987, in which a punitive award was upheld against a defendant who was assumed by all concerned to be fully insured for his tortious wrong.

The piece suggests that the reasons given by the High Court in that case for upholding the award (general deterrence of others, the prevention of vigilantism and the award's expressive, condemnatory value) are strained, to say the least, and that, when the pleading and proceedings of the case are properly understood, a modest sum of aggravated compensatory damages would have been much more appropriate. Although the precise question asked in Lamb is unlikely to be repeated in Australia any time soon, the High Court's reasoning about the underlying justifications for awards continues to have reverberations about the way in which they are understood in a wider range of cases.

The piece contains insights and historical material gratefully gleaned from two counsel who were originally party to the pleading of the case and defence in Lamb. It also contains a wider-ranging review of the insurability of punitive awards across a broader range of common law jurisdictions, both as a matter of fact and law. It further considers which, if any, of the aims of 'punishment' remain credibly achievable when the persons punished is insulated against an award's financial effects.

Huneeus on Non-Human Rights in Latin America

Alexandra Valeria Huneeus (University of Wisconsin Law School) has posted The Three Faces of Non-Human Rights (Oxford Handbook on Comparative Human Rights, Neha Jain and Mila Verstaag, eds) on SSRN. Here is the abstract:

This chapter analyzes the evolving relation of non-human rights and human rights law in Latin America, the region where they first emerged and have undergone the most development, and where human rights law plays a salient role at the domestic and regional level. A review of judgments, laws, and social movements reveals that justifications for extending legal rights beyond humans fall into three categories. First are claims based on the species-level attributes of an animal or other creature: there is a quality of the being in question that demands a certain type of ethical treatment. This type of justification echoes the structure of most arguments for human rights, including deontological, utilitarian, and capabilities approaches. But it extends the protection of rights to animals that share with humans an essential quality, such as the ability to suffer. Second are claims based on legal pluralism. Law in a multicultural state should give voice to the views of indigenous and tribal peoples as well as Western legal traditions. If indigenous or other peoples so request, states should grant legal personhood and rights to natural features or “earth beings” that non-Western peoples hold as persons, or kin, and with whom they live in relation. This is a form of epistemic justice that also provides indigenous peoples and other communities an extra measure of protection from extractive corporate activities. Third are claims based on a new ontology: Some argue that it is time to rethink the most fundamental commitments of Western thought and, specifically, to give a different moral meaning to the distinction and relation between humans and non-humans, as well as the distinction and relation between the living and non-living. Such a change is necessary not (only) as a matter of epistemic justice or legal pluralism, but because it more closely reflects emerging moral intuitions, and because it may help us forge a more sustainable way of life. Each of the three types of claims plays out in different ways in its relationship to human rights. While the first and second can be cast as extensions of existing human rights doctrine, the third aims to radically shift our major premises but is struggling to find legal coherence. The chapter’s main contribution is to introduce a typology of nature rights and use it to analyze the relation of nature rights and human rights. Scholarship needs to consider these differences in the argumentative structure because they have implications for many of the questions that we are asking of this emerging body of law, including questions of effectiveness, implementation, and impact on other areas of law.

The argument unfolds in three sections after the introduction. The first section introduces the three types of justification that underlie non-human rights laws and jurisprudence in Latin America. The second examines interactions between each type and human rights law, drawing on recent examples from Latin American judicial dockets. The final section concludes with a look towards next steps in non-human rights scholarship.

Hennington on Risk Assessment Algorithms and Pretrial Detention

Matt Hennington (University of Mississippi School of Law) has posted Show Me the Numbers: Due Process and Equal Protection Challenges to the Use of Risk Assessment Algorithms in the Pretrial Context on SSRN. Here is the abstract:

Technology brings great advances; however, in the legal field, technology can become used as a tool to perpetuate racial bias. Risk assessment algorithms provide that threat since judges have come to rely on them in various contexts. However, in the pretrial context, judges face the risk of incarcerating an innocent person based on a numerical risk assessment score, which deprives the defendant of his or her individuality and possibly perpetuates the assumption that people of color commit more crimes. Therefore, incorporating a critical race theory framework, a Due Process challenge to the use of these tools exists in the right to effective assistance of counsel as these tools provide an unfair advantage to the prosecution by hampering the defense counsel’s ability to present a narrative. Furthermore, a potential Equal Protection challenge exists to tools that explicitly use gender as a factor. Although no Equal Protection claim exists for a disparate impact of these tools on minority populations, the disparate impact has important public policy considerations beyond Equal Protection in efforts to reduce crime and foster trust between the police and minority communities. Ultimately, the use of risk assessment algorithms must comply with the Constitution, and the stories of each individual defendant should always have the chance to be heard.

Becker & Ahlborn on Irish Constitutional Identity and International Investment Agreements

Michael A Becker (Trinity College Dublin - School of Law) & Christiane Ahlborn (Trinity College Dublin) have posted Protecting Irish Constitutional Identity on the International Plane: Costello v Government of Ireland on SSRN. Here is the abstract:

In Costello v Government of Ireland, the Irish Supreme Court held that ratification of the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its member states would infringe upon Irish juridical sovereignty. The judgment reflects a more general trend of rejecting international investment agreements . With the aim of drawing out the implications of Costello for Ireland’s international relations, this article assesses Costello in its comparative European and international context, taking into account the interaction between different legal orders. Part II discusses the relationship between sovereignty and constitutional identity, which is central to the Supreme Court’s finding that ratification of CETA would infringe the Irish Constitution. Based on the argument that CETA operates as a matter of international law, Part III explains that CETA does not establish a parallel jurisdiction that would deal with the same disputes as Irish courts under Article 34 of the Constitution. Part IV examines the Supreme Court’s reasoning in light of Ireland’s other international commitments, including its consent to dispute settlement by international courts and tribunals such as the European Court of Human Rights and the International Court of Justice. Part V discusses difficulties with the proposal to amend the 2010 Arbitration Act and suggests alternative ways of reconciling CETA with Irish sovereignty, particularly via a requirement to exhaust local remedies before pursuing claims before a CETA tribunal.

Recommended!

Tolmie & Stubbs on Battered Woman Syndrome and Gender Bias

Julia Tolmie (University of Auckland - Faculty of Law) & Julie Stubbs (University of New South Wales (UNSW, Australia) - Faculty of Law) have posted Battered Woman Syndrome in Australia: A Challenge to Gender Bias in the Law? on SSRN. Here is the abstract:

This chapter examines the use of battered woman syndrome in Australian cases where women have been charged with an offence committed in response to, or under the influence of, domestic violence. It outlines the rationale for using battered woman syndrome and questions whether evidence concerning the syndrome has been effective in challenging gender bias in the law.

McCabe on Climate Change Litigation and Standing

Margaret Sova McCabe (University of Arkansas - School of Law) & Jordan C. Budd (University of New Hampshire School of Law) have posted Standing To Enforce The Future: Citizen Suits And Climate Change (Boston College Law Review (Forthcoming 2025)) on SSRN. Here is the abstract:

Climate change poses an incalculable threat to human civilization. To forestall or perhaps avert its most devastating consequences, “[d]eep, rapid and sustained” reductions must be made in greenhouse gas (GHG) emissions that are fueling the climate crisis. Despite recently enacting the first significant federal legislation to address this threat, the United States – which generates more GHG emissions than any nation but China – continues to fall far short of the requisite reductions. Notwithstanding a political environment that likely precludes further legislative action in the immediate future, this Article takes as its starting point the premise that these circumstances might change, and that Congress might choose to use its lawmaking powers to significantly expand federal efforts to reduce the nation’s GHG emissions.

Were Congress to do so, and if its response included direct restrictions on GHG emission activities in addition to incentive and subsidy arrangements, federal policy would require powerful accompanying enforcement mechanisms to reach the vast number of GHG sources subject to regulation. Among the most far-reaching enforcement tools at the disposal of Congress is its authorization of private suits to restrain or penalize prohibited conduct. Such actions, referred to as citizen suits, are an integral part of most federal regulatory programs and would likely play an important role in any federal effort to broadly regulate GHG emissions. This central enforcement mechanism, however, likely faces an insurmountable hurdle in the context climate-change policy: the increasingly restrictive standing doctrine of the current Supreme Court. To establish standing to sue, a private enforcer must meet the Court’s highly restrictive test for Article III standing, including proof of a causal association between the requested relief and the substantial remediation of the litigant’s injury. For the Justices who now control the Court, litigation that makes incremental progress toward the future resolution of a vast and ongoing injury is not enough to justify the exercise of federal jurisdiction.

The injuries caused by climate change result from the collective activity of an incalculably vast number of GHG emitters across the world. Any effort to fully remediate climate-related injuries will necessarily require a similarly vast and collective global intervention – including, potentially, citizen suits that individually target just a small proportion of overall global GHG emissions. Such suits thus must rest on the principle that Article III permits incremental relief that, in the aggregate, helps turn the tide against climate change. As this Article explains, it is highly likely that a majority of the current Court will repudiate that proposition.

In view of this impediment to private enforcement, the Article proposes that Congress consider pairing, whenever possible, direct regulatory restrictions on emissions activities with parallel restrictions on associated prerequisite activities. GHG emissions arise from economic arrangements that often involve activities that inflict harms unrelated to climate change – for example, localized environmental and health injuries arising from the processing, transportation, and distribution of methane-emitting cattle. Litigants separately harmed by such prerequisite activity will meet the requirements of Article III standing, since the relief they seek will directly – not incrementally – remedy their separate injuries. Accordingly, legal restrictions on those prerequisite activities would be subject to citizen suits based on the injuries they directly inflict, with the consequence of restricting dependent but otherwise nonjusticiable emission activities as well.

The Article illustrates how this approach might work in the context of regulating the cattle industry, which accounts for a significant proportion of GHG emissions in the United States. In addition to direct regulation, which would not support standing for private enforcement, the Article describes how separate regulatory restrictions on concentrated animal feed operations (CAFOs) would effectively reduce methane emissions associated with cattle by constraining the industry’s prerequisite production and distribution channels. Since CAFOs inflict a variety of localized environmental and health injuries as a consequence of their massive scale, individuals subject to such harms would have standing to bring citizen suits to challenge their operation – with the collateral effect of restricting a primary source of GHG emissions.

Fehr on "Search and Seizure" by Diab & Hunt

Colton Fehr (University of Saskatchewan - College of Law) has posted Book Review of Search and Seizure by Robert Diab and Chris Hunt (2025) (47 Manitoba Law Journal (forthcoming)) on SSRN. Here is the abstract:

This book review discusses Robert Diab and Chris Hunt's recent book publication, "Search and Seizure." Irwin Law’s “Essentials” series is deservedly among the most populous on bookshelves in Canadian law schools, libraries, and offices. While the series typically provides concise overviews of broad topics like criminal or constitutional law, it more recently has begun to include editions on particularly complex constitutional rights protected under the Canadian Charter of Rights and Freedoms.1 Professors Robert Diab and Chris Hunt’s recent addition on the protection against unreasonable search and seizure provided in section 8 of the Charter falls into the latter category. Their contribution is most welcome given the rapidly evolving nature of the jurisprudence interpreting and applying this notoriously complex right. In light of these challenges, Justice Martin captures the contribution made by the book perfectly in her foreword: “this excellent book… provides a precise and digestible presentation of the right to privacy and the jurisprudence interpreting section 8 of the… Charter 2."

Osofsky on Wellness and Tax

Leigh Osofsky (University of North Carolina (UNC) at Chapel Hill) has posted Wellness and The Tax Law (Georgia Law Review (forthcoming)) on SSRN. Here is the abstract:

The tax law has long provided extensive subsidies for "medical care." These subsidies cost the government hundreds of billions of dollars a year. The definition of medical care, which is at the heart of these subsidies, originated many decades ago, at a time when there was little to no conception of wellness.

Times have changed in the medical world. Medical science now emphasizes that wellness practices, like exercise, meditation, and social connection, have an important impact on physical as well as mental health, including by playing a significant role in preventing and treating disease. Under the tax statute, medical care includes "treatment. .. or prevention of disease." The tax law nonetheless disallows subsidies for wellness expenditures under the theory that they are "merely beneficial to general health." This tension between medical science and tax law demands that we reappraise tax law's medical care subsidy.

This Article engages in that reappraisal. It asks what justifies tax law's extensive medical care subsidy and whether it remains justifiable today. The traditional justification for tax law's medical care subsidy is that medical care is different from consumption. As a result, when tax law subsidizes medical care, even in a regressive way, it is not subsidizing spending on personal pleasure or regular, personal maintenance; rather, it is subsidizing compulsory expenses that restore a loss. Yet, the new medical science around wellness reveals that what we have long thought of as pure consumption constitutes medical care. Moreover, changes in the scope of the subsidy over time have resulted in tax law subsidizing many items that are far from compulsory, catastrophic medical expenses. The result is that tax law’s medical care framework subsidizes some forms of consumption, but not others, in a haphazard, incoherent, and ultimately unjustifiable way.

After exploring the problems with tax law’s medical care subsidy, this Article offers three potential paths forward: an expansion of tax law’s medical care subsidies to more fully account for all expenses that prevent or treat disease; a contraction of tax law’s subsidies to more closely match justifiable goals, such as insuring against catastrophic and compulsory medical expenses; and a progressive wellness credit. This Article finds that the third approach best accounts for how consumption can be medical care and best responds to the ways that higher-income taxpayers benefit from higher privilege to consume.

Gyory on the Pregnant Workers Fairness Act

Madeleine Gyory (New York University School of Law) has posted The Reasonable Pregnant Worker on SSRN. Here is the abstract:

Pregnant workers often need changes to their work responsibilities to stay healthy during pregnancy while earning a needed paycheck. Congress passed the Pregnant Workers Fairness Act (PWFA) in December 2022, entitling many workers for the first time to "reasonable accommodations" for their pregnancy, childbirth, and related medical conditions, so long as they do not impose an "undue hardship" on their employer. The PWFA dictates that the law's key terms, "reasonable accommodation" and "undue hardship," should be construed as they are under the Americans with Disabilities Act (ADA), ADA caselaw, and new PWFA regulations issued by the Equal Employment Opportunity Commission (EEOC) in April 2024. But what if these sources conflict? ADA caselaw frequently departs from the ADA's statutory and regulatory text, and is in tension with the EEOC's new PWFA regulations, producing a muddied reasonable accommodation doctrine that poses challenges for future PWFA claimants.

This Article is the first to address how the chaotic ADA doctrine will impact implementation of the PWFA and to consider how ADA caselaw should be read in conjunction with the EEOC's new PWFA rule. Anticipating future litigation, this Article proposes a framework for litigants and courts assessing reasonable accommodation claims under the PWFA that adapts ADA precedent to account for the PWFA regulations. It argues that the PWFA rule is entitled to some deference under Loper Bright Enterprises v. Raimondo because Congress delegated specific authority to the EEOC to interpret the phrase "reasonable accommodation." Finally, this Article demonstrates why, under its proposed framework, the PWFA will often require employers to accommodate temporary transfers, remote work, and leave, notwithstanding conflicting ADA caselaw.

Recommended.

de Britto on the Social Function of Copyright

Vitoria Maturana de Britto (Munich Intellectual Property Law Center (MIPLC)) has posted The Social Function of Copyright on SSRN. Here is the abstract:

This thesis deals with the need to recognize a balance between the individual rights conferred on authors in the copyright system and the common interests of society. It investigates the application of the social function to copyright. In this sense, this theory indicates that no individual right should be considered absolute and that there should always be a balance between individual rights and the common interests of society. This approach also goes through the concepts of common interest and what this balance of interests means.

The common interest refers to the general social interest, not the sum of individual interests. Furthermore, it is not necessarily the interest imposed by a government, but a social objective. The balance that must be made is between individual rights and the common interest, which can also be identified through individual rights that have been recognized based on common objectives, such as fundamental rights.

In the context of copyright, based on its justifications and the limits and exceptions already established in legal systems, we analyze its common interest in promoting the cultural development of society, as a way of contributing on a general and personal level to the construction of individuals' personal perception. Because of this common interest, there are two rights, the right of access and the right of creation/reuse, which must be balanced against the exclusive rights of authors of artistic and literary works.

Finally, let's look at the Pelham case, judged by the CJEU, as an example of the need for greater attention to be paid to the application of the social function to copyright, in the context of sampling techniques in the music industry.