Legal Theory Blog

Douglas on Sixteen Year Old Voting & the Experience in Scotland

Joshua A. Douglas (University of Kentucky - College of Law) has posted The Loch Ness Monster, Haggis, and a Lower Voting Age: What America Can Learn from Scotland (American University Law Review, 2020) on SSRN.  Here is the abstract:

This article, prepared for an American University Law Review symposium, explores what the United States can learn from the Scottish experience in lowering the voting age to sixteen. The minimum voting age in American elections seems firmly entrenched at eighteen, based in part on the Twenty-Sixth Amendment, which prohibits states from denying the right to vote to anyone aged eighteen or older. Yet the conversation about lowering the voting age to sixteen, at least for local elections, has gained steam in recent years. The debate in America, however, is nascent compared to the progress in Scotland, which lowered the voting age to sixteen for the independence referendum in 2014 and for all elections nationwide in 2015. Using original research from interviews I conducted in Scotland, the article offers three main takeaways for American jurisdictions considering this reform: the Scottish experience in lowering the voting age has been successful because advocates (1) went into schools to register students to vote and encourage them to participate, (2) offered meaningful civics education, and (3) created a bipartisan coalition of policymakers who supported the change. As the debate on the voting age in the United States expands, advocates should draw upon these lessons from Scotland.

Bender et al on LatCrit Theory

Steven W. Bender (Seattle University School of Law), Zsea Bowmani (Santa Clara University School of Law), Shelley Cavalieri (University of Toledo College of Law), Roberto L. Corrada (University of Denver - Sturm College of Law), Jasmine B. Gonzales Rose (University of Pittsburgh - School of Law), Tayyab Mahmud (Seattle University School of Law - Center for Global Justice), Sarudzayi M. Matambanadzo (Tulane University - Law School), Jorge R. Roig (Touro College Jacob D. Fuchsberg Law Center), Francisco Valdes (University of Miami - School of Law), & Anthony E. Varona (American University - Washington College of Law) have posted What's Next? Into a Third Decade of LatCrit Theory, Community, and Praxis (Afterword) on SSRN.  Here is the abstract:

In this multi-vocal Afterword, we reflect-personally and collectively to help chart renewed agendas toward and through a third decade of LatCrit theory, community, and praxis. This personal collective exercise illustrates and reconsiders the functions, guideposts, values, and postulates for our shared programmatic work a framework for our daily work as individuals and teams through our portfolio of projects, which in turn emerged as a "reflection and projection of LatCrit theory, community and praxis." These early anchors expressly encompassed (1) a call to recognize and accept the inevitable political nature of U.S. legal scholarship; (2) a concomitant call toward anti-subordination praxis to connect theory to action; (3) a commitment to build both intra-Latinx communities and inter-group coalitions; (4) a commitment to find commonalities while respecting difference; (5) a recognition of past critical outsider scholarship in new applications; (6) a commitment to ongoing self-critique, individually and collectively; and (7) a recognition of specificity and diversity in constructing LatCrit theory, praxis, and community. These early guiding commitments were rooted in substantive values, and accompanied by working postulates, that we likewise made explicit to help anchor our programmatic initiatives, and our mutual aspirations, over time and its exigencies.

Sellers & Kestenbaum on Sexual Slavery and Customary International Law

Patricia Viseur Sellers & Jocelyn Getgen Kestenbaum (Benjamin N. Cardozo School of Law) have posted Sexual Slavery and Customary International Law (in PROSECUTING THE PRESIDENT: THE TRIAL OF HISSÈNE HABRÉ (Sharon Weill et al. eds., 2020 Forthcoming)) on SSRN.  Here is the abstract:

The Hissène Habré trial and appellate judgments represent watershed legal decisions rendering long-denied justice to victims of the brutal Chadian regime. Delayed charges of credible sexual violence inflicted upon both males and females challenged the judges of the Extraordinary African Court (“EAC”) in Senegal. Legal characterizations of sexual assaults ultimately attributed to Habré represent significant jurisprudential advancements on rape, sexual slavery and torture as international crimes.

The EAC’s observations acknowledge that sexual slavery constitutes part of the actus reus of enslavement as crime against humanity and of slavery as a war crime. While agreeing with the Chambers that sexual slavery is anchored in customary international law, this Chapter deepens the inquiry into the international legal prohibition of sexual slavery. The authors posit that, in fact, the 1926 Convention to Suppress the Slave Trade and Slavery (“1926 Slavery Convention”) proscribed what is identified as “sexual slavery” because sexual violence is and always has been part and parcel of both de jure (legal) and de facto (customary) slavery.

Accordingly, the Habré Trial Chamber might have refined its distillation of sexual slavery as customary international law by noting that it as an intractable component of slavery, which was outlawed in the 1926 Slavery Convention. Sexual slavery, often mischaracterized as a recent or modern form of slavery, demands a more astute legal articulation. This Chapter clarifies the law on slavery, asserting that sexual violence or assaults on sexual integrity are integral to slavery in many — if not all — its forms. The authors endeavor to reorient the legal discussion toward a more nuanced, multidimensional understanding of the crimes of slavery and enslavement.

Huang on the Morality of AI Decision Making

Bert I. Huang (Columbia Law School) has posted Law's Halo and the Moral Machine (Columbia Law Review, Vol. 119, No. 7, 2019) on SSRN.  Here is the abstract:

How will we assess the morality of decisions made by artificial intelli­gence—and will our judgments be swayed by what the law says? Focusing on a moral dilemma in which a driverless car chooses to sacrifice its passenger to save more people, this study offers evidence that our moral intuitions can be influenced by the presence of the law.

Recommended.

Zalnieriute & Weiss on Legal Prohibitions on Islamic Face-Coverings & Intersectionality

Monika Zalnieriute (University of New South Wales (UNSW) - Faculty of Law) & Catherine Weiss (RMIT University) have posted Reconceptualizing Intersectionality in Judicial Interpretation: Moving Beyond Formalistic Accounts of Discrimination on Islamic Covering Prohibitions (Berkeley Journal of Gender, Law and Justice, 2020) on SSRN.  Here is the abstract:

This article analyzes the United Nations Human Rights Committee’s (HRC) consideration of legal prohibitions on Islamic face-coverings in Yaker v. France and Hebbadj v. France, and argues that the HRC’s recognition of discrimination at play represents a significant departure from the judicial trend of accepting such prohibitions in Europe. We contend that the HRC’s limited interpretation of intersectionality in the cases elides the full extent of harms and violations arising from such legislation. However, we suggest that judicial understanding of discrimination can be enhanced by drawing on a modified UN concept of harmful traditional practices, which allows an understanding of Islamic face-covering as one among many global patriarchal practices. Decolonizing jurisprudence on intersectional discrimination in this way allows an explicit recognition and articulation of how an exclusive focus on prohibitions of practices of members of minority groups, without attention to majority patriarchal practices, contributes to legitimating sexist and racist targeting of minority groups – and entrenches sexism against women more broadly.

Cerminara on Cruzan & Medical End-of-Life Decision-Making Autonomy

Kathy L. Cerminara (Nova Southeastern University - Shepard Broad College of Law) has posted Cruzan's Legacy in Autonomy (SMU Law Review, Forthcoming) on SSRN.  Here is the abstract:

This Article identifies three situations in which end-of-life decision-making autonomy faces legal development unimaginable at the time of Cruzan v. Director, Missouri Department of Health, nearly thirty years ago. Legislatures and courts have been and increasingly will be grappling with the definition of autonomy in instances of voluntarily stopping eating and drinking, refusals of life-sustaining treatment by patients in the minimally conscious state, and objections to declarations of brain death.

Since Cruzan, the Supreme Court has adopted two versions of constitutionally protected decision-making, both of which have roots in the opinions in that case. As clinical progress continues, we will see the law of medical end-of-life decision-making autonomy repeatedly invoke Cruzan in a broader range of settings. Ms. Cruzan's legacy lives on.

Callaghan on Robo Advisors

Greg Callaghan (University of Colorado School of Law) has posted Robo Advisers: An Argument for More Information Solicitation and Disclosure to Satisfy Fiduciary Duties on SSRN.  Here is the abstract:

It is proposed that robo advisers should gather more investor data to act in the best interest of investors by implementing enhanced, digital communications systems in their platforms that will better enable robo advisers to solicit/disclose information from/to an investor while also providing investors the ability to input and request information from robo advisers. The purpose of embedding digital communications systems will not only increase interactions between robo advisers and investors, it will allow for robo advisers to take advantage of their algorithm and platform technology to gather sufficient, current data from investors that is necessary to offer investment advice in investors’ best interests.

First, this Paper will introduce robo advisers and industry information. Second, the relevant legal oversight of the robo adviser industry related to legislation, fiduciary duties, and regulatory guidance will be discussed. Finally, the argument that robo advisers’ best interest fiduciary duties should focus on increasing information gathering through communications between robo advisers and investors will be put forth and explained.

Madl & Ouellette on "Exit, Voice & Innovation" by Lobel

Amy C. Madl (Stanford University, School of Law) & Lisa Larrimore Ouellette (Stanford Law School) have posted Policy Experiments to Address Gender Inequality Among Innovators (Houston Law Review, Forthcoming) on SSRN.  Here is the abstract:

In her Frankel Lecture, Professor Orly Lobel has set forth an intriguing hypothesis: that non-compete agreements, non-disclosure agreements, and other legal restrictions on employee exit and voice exacerbate the innovation gender gap. The unequal participation of women in science, technology, and innovation is an issue of increasing concern for many public- and private-sector stakeholders, and those interested in increasing innovation by women would be well advised to consider Lobel’s ideas. But as we emphasize in this Commentary, the underlying causal mechanisms for inequalities among innovators remain highly contested, and policymakers should not overstate the existing evidence for potential interventions out of a desire for rapid progress. Nor should they use this lack of evidence as an excuse for inaction. Rather, we argue that institutions interested in this issue should look for opportunities to rigorously and transparently test the most promising interventions.

Recommended.  Here is a link to "Exit, Voice & Innovation" by Lobel (link goes directly to PDF.

Aziz on Muslim Americans' Human Rights Advocacy

Sahar F. Aziz (Rutgers Law School) has posted 'Whosoever Sees An Evil' - Muslim Americans' Human Rights Advocacy (Oxford Research Encyclopedia of Religion (Spring 2020)) on SSRN.  Here is the abstract:

When Islam and human rights are discussed together, the conversation quickly turns into an abstract, dichotomous debate as to whether the two are compatible. A common line of argumentation proffers Islamic law is fundamentally antithetical to universal human rights norms, while an opposing view rebuts that post-World War II human rights laws are created by former colonialist powers as the latest iteration of Western nations’ imposition of their religious, social, and political order on the global south and east.

Further de-legitimizing human rights law is selective enforcement that exempts European and American persons — the most glaring example being the torture of thousands of Muslim detainees in the Global War on Terror. For these critics, purported universal human rights norms are nothing more than a ruse to punish African, Middle Eastern, Asian, and Latin American state leaders who fail to obey Western states’ hegemonic interests.

Notwithstanding reasonable suspicions of the asymmetrical power animating the international human rights legal regime, the idea that all humans have some fundamental natural rights traverses cultures, religions, and time. Thus, any good faith debates on the compatibility of Islamic law and human rights should not be as concerned with whether Islamic law mirrors Western law — for that would indeed be legal and cultural imperialism — but rather examine the commonalities between Islamic human rights norms and post-WWII Western human rights norms.

While acknowledging the importance of theoretical discussions, this article takes a different approach. Moving beyond an analysis of what is written in religious and legal texts or debated by Islamic scholars, I examine how Islam inspires lay Muslims to defend and advocate for human rights. To that end, I explore how Muslims advocate for human and civil rights — as a result of rather than despite — their Islamic beliefs and Muslim identity. Accordingly, this article focuses on Muslims in the United States as a case study for how commitments to human rights manifest in the lived experiences of Muslims.

Muslim activists in the United States are putting their Islamic faith into action through cross-racial and interfaith rights advocacy. Their collective action for nearly two decades brings into sharp relief the argument that the political environment, not solely religion, facilitates protection of human rights. Whether it is in Muslim-majority democratic countries such as Indonesia and Tunisia or Christian-majority countries such as South Africa, the United States, and some European nations, Muslims living in pluralistic democratic societies defend human rights because of their faith. In doing so, these Muslims demonstrate that authoritarian and politically repressive regimes of most Muslim-majority countries — most of whom are supported by Western states — are more determinative of human rights abuses than the religious beliefs of citizens in Muslim-majority countries.

Lin on a Contextual Approach to Subordination & Sex under Title VI

Shirley Lin (New York University School of Law)  has posted Dehumanization 'Because of Sex': A Neutral Approach to the Rights of Sexual Minorities Under Multiaxial Analysis (Lewis & Clark Law Review, Forthcoming) on SSRN.  Here is the abstract:

As the Court evaluates the scope of sex under Title VII, narrowing discourse over the ends versus the means of coverage endangers the very meaning of discrimination. Absent from the scholarship is an accurate appraisal of Title VII’s trait and causation requirements — in these cases, “because of sex” — that rebuts the classification rules that courts have long claimed to be familiar, fair, and inevitable. This Article first identifies, then theorizes, a historic consensus of lower courts since 2015 that adopted a viewpoint-neutral approach to “sex” as a socially defined trait (the “post-2015 consensus”). These decisions present a doctrinal correction only in part, however. In the most prominent argument from this Term, scholars and civil rights advocates invariably treat sex stereotyping as an all-purpose tool to detect social animus against LGBTQIA+ individuals (“sexual minorities”). However, this ebullient view ignores the costs of limiting Title VII to a dimorphic paradigm of sex. Decisions such as Zarda v. Altitude Express, Inc. incorrectly rely upon anti-classificationist approaches to conflate the breadth of a protected trait with the cause of the discrimination. These doctrinal gaps will only grow as the administrative state increasingly expands the scope of sex beyond a fixed binary.

This Article argues that the evidentiary jurisprudence driving Title VII’s substantive work is unnecessarily regressive, due to historic ties to constitutional classification and its identity politics. It provides an original account of the principles driving the post-2015 consensus, by highlighting juridical bias and the unworkability of the old rules. As a doctrinal correction, these courts sought to return to the statute’s broader command to evaluate social context in detecting subordination. Arguments in the trio of LGBT cases this Term regressed despite courts’ recent openness to recognize sex as pluralistic. If the reasoning in the trio of cases this Term unnecessarily equates “but-for” classification with causation, the vitality of Title VII may well be undermined even if plaintiffs prevail.

Against this backdrop, the Article introduces “multiaxial analysis,” a framework to identify the role of Title VII’s traits along the following axes — the individual self, the defendant employer, society, and the state. These axes interactively generate animus whenever harms arise because of dissonant views of one’s protected trait or traits. This wholly contextual approach to subordination can convey intersectional dynamics that inhere in all discrimination. Multiaxial analysis is a theoretical model that responds to what courts have sought for decades and implemented in part in the post-2015 consensus. A civil rights framework and its public narratives, in short, must be non-formulaic to give full effect to a normative statute.