Legal Theory Blog

Abraham & Schwarcz on Regulation by Insurance

Kenneth S. Abraham (University of Virginia School of Law) & Daniel Schwarcz (University of Minnesota Law School) have posted The Limits of Regulation by Insurance (98 Indiana Law Journal (2023)) on SSRN.  Here is the abstract:

Insurance is an enormously powerful and beneficial method of spreading risk and compensating for loss. But even insurance has its limits. A new and misleading aspiration for insurance – that it also can and often does substitute for or significantly complement health and safety regulation – is increasingly in vogue. This vision starts from the uncontroversial recognition that insurers typically adopt measures designed to counteract "moral hazard," the tendency of insurance to blunt policyholders’ incentives to take care. But proponents of this vision go on to contend that the risk-reducing potential of insurance is significantly more extensive than is traditionally imagined, because insurers are strategically-positioned to induce their policyholders to embrace precautions, procedures, policies, or training regimens that decrease the incidence of loss. Proponents of this new "regulation thesis" often dramatically summarize these points by describing insurance as a form of private "regulation” or “loss prevention,” attempting to trade on the positive optics of these notions. Enamored with this idea, commentators, activists, and lawmakers have advanced various proposals to mandate the purchase of insurance or otherwise intervene in insurance markets to address a broad range of modern social ills, including police misconduct, gun violence, cyberattacks, and harms caused by artificial intelligence. Building on emerging criticism of this regulation thesis as well as increasing empirical evidence questioning its accuracy, this Article argues that these regulatory aspirations for insurance are over-optimistic. Creating less loss than insurance otherwise might have created is not regulation or loss prevention. Rather, it is damage-control, and that is what insurance devices designed to combat moral hazard almost always involve. Insurers face a daunting set of obstacles to further reducing policyholder risk below what it would be in the absence of insurance. In short, insurance has substantial limits as a solution for the failures of regulation.

Fowler & Ulrich on Femtech

Leah R. Fowler (University of Houston Law Center, Health Law & Policy Institute) & Michael R. Ulrich (Boston University - School of Law; Boston University School of Public Health; Yale Law School) have posted Femtechnodystopia on SSRN.  Here is the abstract:

Reproductive rights, as we have long understood them, are dead. But at the same time history seems to be moving backward, technology moves relentlessly forward. Femtech products, a category of consumer technology addressing an array of “female” health needs, seem poised to fill gaps created by states and stakeholders eager to limit birth control and abortion access and increase pregnancy surveillance and fetal rights. Period and fertility tracking applications could supplement or replace other contraception. Early digital alerts to missed periods can improve the chances of obtaining a legal abortion in states with ever-shrinking windows of availability or prompt behavioral changes that support the health of the fetus. However, more nefarious actors also have interests in these technologies and the intimate information they contain. In the wrong hands, these tools can effectuate increased reproductive control and criminalization. What happens next will depend on whether we can improve efficacy, limit foreseeable privacy risks, and raise consumer awareness. But the current legal and regulatory landscape makes achieving these goals far from a straightforward proposition, further complicated by political influence and a conservative Supreme Court. Thus, this Article concludes with multiple solutions involving diverse stakeholders, offering that a multifaceted approach is needed to keep femtech’s dystopian future from becoming a reality.

Goldmann & Menéndez on the Weimar Constitution

Matthias Goldmann (Max Planck Institute for Comparative Public Law and International Law; Goethe University Frankfurt; EBS Universität für Wirtschaft und Recht; Leibniz Institute for Financial Research SAFE) & Agustín José Menéndez (Universidad de León) have posted Weimar Moments: Transformations of the Democratic, Social, and Open State of Law on SSRN.  Here is the abstract:

This paper argues that one should understand the adoption of the Weimar Constitution not only as a decisive constitutional moment on its own, but as the emergence of a particular constitutional paradigm that reappears in constitutional moments in other countries and at other times, mostly in the postwar period. The reason for the paradigmatic character of the Weimar constitution lies not merely in the worldwide reception of German interwar scholarship, but at least as much in the fact that the Weimar constitution provided answers to the specific epistemic, social, democratic, and security challenges faced by industrial society at the time. On this basis we reconstruct the Weimar constitutional paradigm, which one might summarize as the regulatory ideal of the Democratic, Social and Open State of Law. It assigned to constitutional law a decisive role for societal transformation and should therefore be considered as the historically first version of transformative constitutionalism. The paper sketches out with a necessarily broad brush how the Weimar constitutional paradigm created fault lines in subsequent constitutional practice that prompted its metabolization. Our analysis suggests that the societal forces triggering and deepening the crises afflicting Weimar-type constitutions are undermining the specific idea of constitutional law emerging during Weimar Moments by using public law as an instrument against itself. The current constitutional crisis in Europe and many other parts of the supposedly democratic world therefore requires not only strategies for political communication and institution building, but a rethinking of the very idea of public law.

Hong on Dobbs

Kari E. Hong has posted Overturning Roe v. Wade: How Originalism's Rejection of Family Formation Rights Undermines the Court's Legitimacy and Destabilizes a Functioning Federal Government (83:5 Montana Law Review Online 1 (2022)) on SSRN.  Here is the abstract:

On May 3, 2022, the leaked Supreme Court draft in Dobbs v. State of Mississippi forecasts the Court’s likely decision to overturn Roe v. Wade. There are three critical flaws in this draft decision. The first is, that by looking to the original intent of the Founders’ view of abortion in 1789, the Court elides that the Fourteenth Amendment was designed to correct the foundational defects in the Founders’ worldview that misapprehended how critical a person’s right to family formation is contributing to democracy. When the Supreme Court overturns Roe v. Wade, not only will states be able to ban and criminalize abortion, but the Supreme Court’s evisceration of the Fourteenth Amendment will mean that there will no longer be any logical or legal reason to prevent states to return to an era when they banned and criminalized birth control, interracial marriages, same-sex marriages, and parents’ desire to educate their own children.

The second fatal flaw in this decision is that it exposes the Roberts Court’s deployment of Originalism and Texualism as a subjective political project, which is thinly and poorly masked as objective truth. The conservative justices claim to be diving truth, but dictionaries are not meant to anchor democracy. The Roberts Court is returning to discredited judging philosophies of the 1800s when federal judges claimed they were oracles, capable of diving meaning that eluded all others. Instead of pretending that judging does not involve politics, the better means for the Court to salvage its legitimacy is to follow the path of Chief Justice Roger Traynor, who admitted judicial decisions are influenced by political choices, but defended the result with reasoning and transparency.

The third flaw with Dobbs is a claim that states can end the abortion controversy. The current state laws and proposed bills being developed in Dobbs shadow portend a future where states balkanize and seek to impose a rigid moral and religious order on its own residents and those outside of its state lines. The Roberts Courts has been steadily flexing its muscle by eroding the federal government’s ability to function as a unitary, regulatory entity. The contemporary recipe of a weakened federal government and empowered states is a dangerous one. In history, the Articles of Confederation ended with a new constitution and the rise of the Confederacy ended with civil war. The cure for the Court’s nosediving legitimacy problem, along with the Court’s degradation of a functioning federal government, is to restore Congress as a functioning co-equal branch that can respond to the Court’s decisions. Congress routinely used to modify or overrule Supreme Court decisions, as it once did until 2009, when Senator Mitch McConnell used the filibuster to obstruct all legislative action sought by a Democratic majority. The Founders never intended the Courts to have the final say in any matter. Rather, democracy functions when the three branches are engaged in conversation—because at any given time, the just result may come from the judiciary, sometimes the President, sometimes the Congress. Without having a conversation about the issues, however, inaction simply shuts down the debate, and a federal government is unable to respond to problems needing redress.

Mikhail on "Rational Rules" by Nichols

John Mikhail (Georgetown University Law Center) has posted Review of Shaun Nichols, Rational Rules: Towards a Theory of Moral Learning (Philosophical Review (Forthcoming)) on SSRN.  Here is the abstract:

Shaun Nichols’ "Rational Rules" is the most creative and interesting response to moral nativism to appear since the naturalistic turn in moral psychology that began several decades ago. Nichols accepts the basic nativist observation that the moral rules children acquire are surprisingly rich and complex in relation to the relevant evidence, but he maintains that the acquisition process can be explained by statistical learning, rather than innate endowment. His key idea is that the same principles that underpin statistical learning in other domains can explain how children acquire their moral rules. After summarizing this fascinating book, this review raises some doubts and concerns about its main arguments. First, as Nichols admits, his empiricist learning theory does not explain how complex concepts like agent, intention, cause, and wrong are acquired on the basis of experience. Instead, it simply presupposes these concepts, along with the hypothesis space and statistical techniques on which it depends. Second, Nichols’ empiricism does not set out to explain the actual transition that occurs when children who initially do not possess rule-like elements of moral cognition acquire them on the basis of certain evidence. Instead, its aim is to show how that transition might occur by means of statistical learning. This explanation is weaker than it appears, however, because nativists typically argue that non-nativist learning theories are empirically improbable, not logically impossible, in light of the facts of moral development. Finally, Nichols’ account of the learning target in moral theory is far too crude and simplistic to do justice to the argument from the poverty of the stimulus. The moral grammars acquired by all normal children include (but are not limited to) prohibitions of familiar crimes and torts, such as murder, assault, theft, and fraud; principles of justification and excuse, such as self-defense, mistake of fact, duress, and provocation; and a variety of even more complex rules, standards, and principles, such as the duty to rescue, the prohibition of unreasonable risk (i.e. negligence), and the principle of double effect, all of which require comparing acts and omissions with their alternatives. Does Nichols' empiricist theory explain how any of these complex deontic rules could be learned by means of statistical inferences from examples in the child’s environment? A careful review of this book and the experiments on which it relies makes clear that it does not.

Highly recommended.  Link to the book in the abstract.

Witte on Natural Law Theory from 1600

John Witte (Emory University School of Law) has posted Natural Law in Europe and America (1600- ) (in The Encyclopedia of the Bible and its Reception (Berlin: DeGruyter, 2022)) on SSRN.  Here is the abstract:

This brief articles summarizes Catholic, Protestant, and Liberal teachings on natural law from 1600 until today. While natural law theory is often criticized historically and today, it remains a foundational principle of the Western legal tradition.

Short, useful, & recommended.

Hartzog & Richards on Data Loyalty

Woodrow Hartzog (Northeastern University School of Law and Khoury College of Computer Sciences; Center for Law, Information and Creativity (CLIC); Stanford Law School Center for Internet and Society) & Neil M. Richards (Washington University School of Law; Yale Information Society Project; Stanford Center for Internet and Society) Legislating Data Loyalty (97 Notre Dame Law Review Reflection 356 (2022)) on SSRN.  Here is the abstract:

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our model takes advantage of loyalty’s strengths—it is well-established in our law, it is flexible, and it can accommodate conflicting values. Our Essay also explains how data loyalty can embolden our existing data privacy rules, address emergent dangers, solve privacy’s problems around consent and harm, and establish an antibetrayal ethos as America’s privacy identity.

We propose that lawmakers use a two-step process to (1) articulate a primary, general duty of loyalty, then (2) articulate “subsidiary” duties that are more specific and sensitive to context. Subsidiary duties regarding collection, personalization, gatekeeping, persuasion, and mediation would target the most opportunistic contexts for self-dealing and result in flexible open-ended duties combined with highly specific rules. In this way, a duty of data loyalty is not just appealing in theory—it can be effectively implemented in practice just like the other duties of loyalty our law has recognized for hundreds of years. Loyalty is thus not only flexible, but it is capable of breathing life into America’s historically tepid privacy frameworks.

Very interesting and recommended.

Brudney on Labor Conditions in Global Supply Chains

James J. Brudney (Fordham University School of Law) has posted Hiding in Plain Sight: an ILO Convention on Labor Standards in Global Supply Chains (Forthcoming, Chicago Journal of International Law, Vol. 23, No. 2, (January 2023)) on SSRN.  Here is the abstract:

This Article proposes a solution to the primary challenge confronting governments, employers and workers under international labor law: promoting and protecting decent labor conditions in global supply chains.

The Article begins by summarizing why existing public law and private law approaches have failed over several decades. In doing so, it briefly describes the shortcomings of laws and practices in developing countries as well as the weakness of corporate social responsibility, including the most ambitious version of CSR, the UN Guiding Principles on Business and Human Rights. It then analyzes the problems with recent national laws in the Global North that impose mandates on multinational enterprises at the top of global supply chains: laws requiring disclosure and transparency in labor-protection efforts and laws requiring a due diligence process to identify and monitor against human rights risks.

The Article argues for an international convention, promulgated by the International Labor Organization (ILO), that includes three essential features missing from existing voluntary and mandatory approaches. First, business obligations must include substantive responsibility to avoid involvement in supply chain human rights violations, not just procedural responsibility to adhere to a set of due diligence processes. In this context, the Article explores different approaches to establishing tort liability for both substantive and procedural violations under U.S. and European law. Second, workers and their representatives must directly participate in the design, implementation, and enforcement of a due diligence system. Third, all workers engaged in supply chain activities must be protected, regardless of their formal employment or contractual status under relevant national law.

The Article then considers questions about the appropriateness and feasibility of such a convention. It explains the appropriateness of a leadership role for the ILO, including its recent experience promulgating conventions that transcend national borders and that provide for detailed due diligence procedures engaging workers at every stage. The Article also discusses the indirect impact of ILO conventions on national laws in ways that extend beyond formal ratification. Finally, the Article suggests building on the ILO’s unique tripartite structure to invite newer voices from the worker and employer communities to participate along with the recognized leadership of trade union and employer organizations.

Gaughan on Partisanship & Supreme Court Election Law Decisions

Anthony J. Gaughan (Drake University - Law School) has posted The Influence of Partisanship on Supreme Court Election Law Rulings (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 36, 2022) on SSRN.  Here is the abstract:

This article examines the role of partisanship in Supreme Court election law rulings. To that end, it surveys the major election law cases involving constitutional issues over the past century. This article identifies three distinct chronological phases in the Court’s election law jurisprudence: (1) 1898 to 2000; (2) 2000 to 2010; and (3) 2011 to 2022.

This article makes five main points.

First, it finds remarkably little evidence of partisan influence in Supreme Court election law cases in the 20th century. Justices appointed by Republican presidents routinely joined justices appointed by Democratic presidents in majority and concurring opinions. Only rarely did the Court issue election law rulings with majorities and concurrences formed exclusively of justices appointed by presidents of the same party.

Second, this article contends that the Court’s bipartisan approach to election law cases ended in the 21st century. In the decades since the 2000 Bush v. Gore decision, election law cases have divided the justices along partisan lines to an unprecedented degree.

Third, this article asserts that the ideological realignment of the parties only partially explains the Court’s recent voting patterns in election law cases. The emphasis on judicial ideological conformity with partisan norms inevitably resulted in a significant degree of judicial polarization in election law cases. But in the 20th century, conservative and liberal justices sometimes agreed on major election law cases. Only in the 2000s did conservative and progressive justices chart dramatically different courses in major election law cases. Ideological realignment alone therefore does not fully explain the Court’s partisan polarization.

Fourth, this article contends that any account of the Supreme Court’s partisan divide must also take into consideration the 21st century’s unusually close presidential elections, a development that unfortunately coincided with ideologically polarized judicial appointments. As election law rulings soared in importance, and as presidential candidates committed to basing their judicial appointments on ideology, the justices’ partisan affiliations became disconcertingly accurate predictors of their positions in the most important election law cases.

This article concludes that the justices’ polarized approach to election law cases undermines the Court’s reputation as a neutral arbiter of the Constitution. Indeed, with conservatives holding a narrow 5-4 majority for much of the 2000s and 2010s, one could reasonably argue that the justices—progressive and conservative alike—had a clear conflict of interest when it came to election law cases. Accordingly, this article contends that it is imperative that the justices on both ends of the ideological spectrum make a much greater effort to find common ground in election law cases.

Gould on Progressive Constitutionalism

Jonathan Gould (University of California, Berkeley - School of Law) has posted Puzzles of Progressive Constitutionalism (Harvard Law Review, Vol. 135, No. 8, p. 2054, 2022) on SSRN.  Here is the abstract:

This Review examines the relationship between progressivism and constitutionalism. In doing so, it considers three different ways of thinking about a constitution’s role in a political system. First is constitutionalism as a distinct ideology of governance in which an apex court plays a major role in deciding issues of public policy and articulating national values. Second is the way constitutional culture prompts political actors to argue for their preferred policies in constitutional terms, even when calling for legislative rather than judicial action. Third is constitutional design, the rules of the political game that dictate how lawmaking takes place. Each of these three lenses reveals distinctive costs that confront progressives engaged in constitutional politics. Courts that play an outsized role in policymaking can impede progressive agendas. A narrow band of acceptable constitutional arguments can make it hard for progressives to make the best case for their preferred policies. And efforts at institutional reform are made challenging by conflicting progressive commitments and fear of how a less restrained government could be deployed by conservatives. While progressives have no practical choice but to engage in constitutional politics, that reality should not obscure the difficulties that constitutional politics, as currently practiced in the United States, pose for progressive agendas.

Highly recommended.