Legal Theory Blog

Download of the Week: "Contract as Exchange" by Bagchi

Aditi Bagchi (Fordham University School of Law) has posted Contract as Exchange (113 California Law Review (forthcoming 2025)) on SSRN. Here is the abstract:

Most people agree that the institution of contract serves autonomy—or it should. But how? Philosophical theories of contract link contract and autonomy by way of an appealing intermediate principle such as the authority of the individual will, promissory morality or conventions of agreement. However, each of these theories is focused on the mental and verbal acts surrounding contract and is thus at odds with both contract as a social practice and contract law. The theories fail to account for basic features of modern contracting such as anonymity, mass scale and market determination of contract terms; facts to which both the common law and statutory regulation have long adjusted. The so-called objective theory recommends an outward turn, but it has been reduced to an epistemic constraint that reflects the limits of communication and evidence; it did not achieve the expansion of perspective that it promised.

In this Article, I propose a different approach. “Contract as exchange” emphasizes what people are trying to do when they contract. Contracting parties do not will, promise or agree for the sake of will, promise or agreement; their objectives in contract are material. Contract as exchange links autonomy to contract by way of the latter’s capacity to get people what they want from complete strangers using the mechanism of exchange. The institution of contract serves the principle of autonomy but, on this view, its contribution is contingent, not inevitable. Contract succeeds as an institution when all members of the political community can access the market to exchange their entitlements for ones that they prefer, thereby securing the cooperation of others for their own projects while contributing to the projects of others. Contract fails to promote autonomy when people face barriers to access or when their encounters with the market go so badly that their life plans are derailed.

Highly recommended. Download it while it's hot!

Download of the Week: "Should Judicial Opinions Be Read Like Statutes?" by Lemos

The Download of the Week is SHOULD JUDICIAL OPINIONS BE READ LIKE STATUTES? by Margaret H. Lemos. Here is the abstract:

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus solely on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: The Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground judges’ interpretations of other legal texts should not apply to texts judges themselves author.

This Article seeks to fill that gap. It provides a descriptive account of the courts’ use of what I call the “not-statutes trope”—a rhetorical device that invokes a mode of interpretation decidedly different from the textualism that characterizes most statutory interpretation today—and shows how the trope often is employed to finesse the demands of stare decisis. The Article then unpacks and analyzes the reasons that might support an interpretive distinction between judicial opinions and statutes, ultimately concluding that none of the proposed distinctions fully explains the not-statutes trope. The upshot is not that opinions should be parsed in a strictly textualist manner, however. There are good reasons to reject such an approach—reasons that bear a striking resemblance to arguments that have been levied against textualism in statutory interpretation. For textualist judges, then, the challenge is to explain why the mode of interpretation they apply to Congress’s handiwork feels so inappropriate when applied to their own writing.

Highly recommended.

Download of the Week: "The recognition in authority: roles, relations, and reasons" by Roughan

The Download of the Week is The recognition in authority: roles, relations, and reasons by Nicole Roughan. Here is the abstract:

How could one person justifiably create reasons for another? This article reissues this familiar 'standing' objection to authority, to demonstrate the structural contribution of recognition to both the idea of authority and its justification. Drawing upon theories of recognition of reasons and persons, it argues that authority must be robustly recognised, not merely identified, by both its subjects and its claimants. Such recognition operates in either roles or relations of authority to make a subject's relevant reasons for action an authority's business. By transmitting reasons between persons on both sides of roles or relations, recognition does the connective work that is necessary to distinguish the idea of authority from other concepts of control, while structuring its justification to require both standing between persons and standards in accordance with reasons. Without the connection between persons and transmission of reasons that comes through robust recognition, one's power over another is both claimed and received not as authority, but as coercion or persuasion; the claim itself entails meddling with (rather than serving) subjects.

Highly recommended!

Download of the Week: "Biomanipulation" by Donohue

The Download of the Week is Biomanipulation by Laura K. Donohue. Here is the abstract:

Scientific and technological advances in the latter part of the 20th century catapulted biometrics forward. Thus, Carleton Simon in 1935 may have postulated using retinal vasculature for biometric identification. But it took forty years for an Eyedentify patent to bring the idea to fruition. In 1937, John Henry Wigmore similarly anticipated using oscilloscopes to identify individuals by speech patterns. Decades later, digitization and speech processors made voiceprint identification possible. Biological discoveries led to the adoption of deoxyribonucleic acid (DNA) sequencing. And while Alphonse Bertillon in the late 19th century postulated iris distinctions, it was only in 1991 that John Daugman patented a means of extracting and encoding their unique patterns.

In this century, as algorithmic sciences, big data analytics, and artificial intelligence (AI) have gained ground, the landscape again has radically altered. The range of collectable Physiological Biometric Characteristics (PBCs), which measure innate human traits, has exploded. The legal literature lags far behind, with almost every treatment of biometrics limited to a few PBCs, such as fingerprinting, facial recognition technology (FRT), or DNA. Nor have scholars considered the rapid expansion in Behavioral Biometric Characteristics (BBCs), biologically-grounded habits and proclivities. Instead, just a handful of pieces focus on one or two BBCs. Yet thousands of scientific articles over the past fifteen years have focused on how to collect, analyze, and use PBCs and BBCs. Hundreds of thousands of patent applications have kept pace.

Not only has legal scholarship largely missed the depth and breadth of information that can be collected, analyzed, and deployed, but it has overlooked a related and concerning new practice: biomanipulation, which I define as the use of biometric data to identify, analyze, predict, and manipulate a person’s beliefs, desires, emotions, cognitive processes, and/or behavior. Concern about consumer manipulation, of course, has been around for decades, with a recent spate of articles focused on the digital world. But the role of biometric data in presenting an immediate, more personalized, and more concerning form, of insight and control, has gone largely unnoticed.

Highly recommended. Download it while it's hot!

Download of the Week: "The Fruits of Authorship: A Theory of Copyright" by Chatterjee

The Download of the Week is The Fruits of Authorship: A Theory of Copyright by Mala Chatterjee. Here is the abstract:

Although philosophers have theorized for centuries on the foundations of tangible property, we largely have been absent from the legal scholarship on the foundations of intellectual property, much of which endeavors to apply theories of property to legal rights like copyrights and patents. But the fundamental differences between physical and intellectual objects—the latter being abstract, non-rivalrous, non-excludable, and sometimes expressive—raise a distinct class of complexities not adequately grappled with in this existing scholarship. In this dissertation, I explore the philosophical foundations of copyright law—the legal system granting rights in expressive or authorial works—using the best known (and most controversial) philosophy of property as a framework: namely, Lockean labor theory.

I aim to make the following contributions. First, I develop a theory of expressive or authorial works, including what differentiates them from both physical objects and functional inventions (the subject of patents). I then analyze what this theory brings to light about the nature of authorial rights, such as what exactly they give to authors or take from the rest of the world, and how they diverge from both property rights and patent rights in normatively significant ways. Next, I argue that the core ideas of Lockean labor theory—although deeply implausible as an argument for physical property rights—actually offer a compelling justification for authorial rights, one that (i) has a stronger positive foundation than any of Lockean property theory's dominant interpretations; (ii) avoids each of the damning conceptual and normative objections that Lockean property has faced; and (iii) grounds a right that better captures the nature of expression and authorship than any of copyright’s other leading normative theories. It follows from this that (i) if there is any domain in which the persistent Lockean intuition that we are morally entitled to the fruits of our labor ought to be taken seriously, it is the domain of authorial rights; and (ii) if authorial rights are, in fact, normatively defensible, then the Lockean story offers their best available defense. Finally, I sketch a partial blueprint for this imagined Lockean system of authorial rights, structured to avoid the damning pitfalls of Lockean property and instead assure the equal and adequate recognition of all authors’ rights. In so doing, I tease out revisionary and possibly surprising implications for existing American doctrine, most of which call for aspects of copyrights to be narrower and weaker than they presently are, in order to take seriously the theory’s egalitarian structure and the non-economic nature of authorial rights themselves.

Highly recommended. Download it while it's hot!

Download of the Week: "Metaphysical Questions About Law" by Bix

The Download of the Week is Metaphysical Questions About Law: A Practice-Based Approach by Brian Bix. Here is the abstract:

In this brief paper, prepared for an IVR Special Workshop on "Law and Metaphysics," I raise some questions and objections about the task of inquiring into metaphysical approaches to law. Part I introduces the topic through a reflection on the overlapping methodological approaches of Ludwig Wittgenstein and H. L. A. Hart, Part II briefly introduces, by contrast, the recent “metaphysical turn” in jurisprudence, while also considering the complications caused by the meanings of the English word, “law”; Part III offers some reflections on whether law exists and whether a (legal) norm exists; and Part IV evaluates some benefits to a return to an alternative focus on practices, before concluding.

The paper's objective is not to declare that law does not have a “nature” or that metaphysical and ontological investigations into law, legal systems, and legal norms are making some sort of “category mistake.” Nor is it suggesting that all such investigations be stopped. The ultimate point of this paper instead is simply to suggest that it would be (will be) more productive to direct our energies elsewhere. Theorizing should arise out of our practices, be justified by our practices, and, at least sometimes, offer guidance to actual practitioners.

Highly recommended.

Download of the Week: "Criminal Law's Hidden Consensus" by Koh

Steven Arrigg Koh (Boston University School of Law) has posted Criminal Law's Hidden Consensus on SSRN. Here is the abstract:

American criminal law is facing a crisis of meaning. On one hand, the "traditional school" invokes the archetype of the violent criminal-a murderer, rapist, or thief-who must be prosecuted and punished. On the other hand, the "critical school" invokes the archetype of the low-level drug offender, sentenced to a draconian prison term for mere possession of low levels of marijuana. On this account, the criminal legal system is itself systemically pathological, perhaps even warranting abolition. Like ships passing in the night, the two schools appear irreconcilable. This Article helps break this impasse and builds toward a justification for criminal law minimalism. It shows that, in fact, both schools share a hidden consensus: redressing wrongs. For the traditional camp, the wrong is harmful human conduct. For the critical camp, the wrong is the criminal legal system. Furthermore, such consensus extends to deep, shared values in American society. It includes fair elections, public integrity, and law enforcement equity-counterintuitively, evident in polarized debates about prosecution of January 6th insurrectionists, Congressman George Santos and Senator Robert Menendez, and Officer Derek Chauvin. Thus, criminal law is not and should not be confined to the archetypes of the murderer or low-level drug offender-it also concerns itself with the election insurrectionist, corrupt politician, and deadly police officer. Finally and prescriptively, this Article will show that this hidden consensus is both a sword and shield for the existing system, guiding us toward a justification for criminal law minimalism.

Highly recommended.

Download of the Week: "Interactional Ordering" by Balganesh

The Download of the Week is Interactional Ordering: Reconstructing Lon Fuller's Theory of Private Law by Shyamkrishna Balganesh. Here is the abstract:

While Lon Fuller is best remembered for his contributions to the fields of general jurisprudence and contract law, his work in each has long been seen as unrelated to the other. This Article shows that in a significantly underappreciated body of work, Fuller did connect the two and, in the process, developed a robust theory of private law, best characterized as "interactional ordering." Driven by Fuller's efforts to develop a jurisprudence of form that was derived from conventionalism and natural law thinking, interactional ordering sees all normativity as originating in horizontal interactions between individuals in society, seeking to realize their freedom socially. This horizontal normativity forms the very substantive and structural basis for the common law as a mechanism of enforcement, and emerges as the principal end that all other forms of legal and social ordering are ultimately structured around. This Article reconstructs the central tenets of interactional ordering from Fuller's work and shows how it represents a sophisticated account of how private law normativity operates, one that abjures commitments to both Legal Positivism and Legal Realism, a move that was central to Fuller's overall jurisprudential worldview.

Highly recommended.

Download of the Week: "Moves & Rules: Addressing the Puzzle of Social Rule-Following" by Diamond

The Download of the Week is Moves & Rules: Addressing the Puzzle of Social Rule-Following by Alma Diamond. Here is the abstract:

I explore the puzzle at the heart of the so-called "practice theory of rules", which posits that social rules emerge out of the practices they govern. How can rules, operating as normative standards, be grounded in the very actions they are meant to regulate? I demonstrate that this lingering puzzle has shaped criticism of the practice theory of rules and limited its ability to account for mistake and disagreement within rulegoverned social practices. I identify the reason for these difficulties, and suggest a framework that is responsive to them. The reason for the difficulties is an oversimplification of the dynamic interaction between individual deliberative attitudes within rule-governed social practices. I introduce the notion of plural deliberation to capture this complexity. Drawing on recent work in social ontology, I distinguish between two deliberative contexts in rule-governed social practices. First, background rule-setting involves plural deliberation. Second, foreground move-making involves individual deliberation. I suggest that rule-governed social practices involve a complex interplay between these two contexts and modes of deliberation. This allows me to account for the possibility of divergence between practices and the rules governing them, while at the same time retaining an analysis of the dependency of social rules on practices.

Highly recommended.

Download of the Week: "Putting Freedom of Contract in its Place" by Stone

The Download of the Week is Putting Freedom of Contract in its Place by Rebecca Stone. Here is the abstract:

I develop a novel, rights-based conception of contract—the “democratic conception”—that can deliver a justification for granting a sphere of freedom to contracting parties while setting principled limits on that grant. It justifies doctrines—including the penalty doctrine, the doctrine of substantial performance, a robust doctrine of changed circumstances, and a robust doctrine of unconscionability—that an influential group of contract theorists argue set unprincipled limits on the parties’ equal procedural freedom. My account shows how these doctrines can be rendered compatible with a robust principle of freedom of contract that is grounded in the parties’ rights.

Highly recommended.