Legal Theory Blog

Tobia on Experimental Jurisprudence

Kevin P. Tobia (Georgetown University Law Center) has posted Experimental Jurisprudence on SSRN.  Here is the abstract:

“Experimental jurisprudence” is a novel empirical approach to jurisprudence. This practice has grown into a movement, as scholars increasingly conduct experimental-jurisprudential studies of legal concepts including causation, consent, intent, knowledge and reasonableness. Despite clear progress, the approach’s justification is still surprisingly opaque. To put it most provocatively: Jurisprudence is the study of deep and longstanding theoretical questions about law’s nature, but “experimental jurisprudence” simply surveys laypeople. Experimental jurisprudence seems to miss the mark on two counts. First, the wrong group: Laypeople — with no legal expertise — are a strange population to survey about legal criteria of causation or consent. Second, the is-ought fallacy: Even if surveys of laypeople tell us something about what law is, they do not tell us what law should be.

This essay fills this justificatory gap, providing an articulation and defense of experimental jurisprudence. It argues that although jurisprudence is often considered the domain of legal experts, experimental surveys of laypeople provide crucial and unique insights. Moreover, the collection of this empirical data can, in fact, contribute to normative jurisprudential debates. The essay concludes by arguing that once experimental jurisprudence is appropriately understood, it becomes clear that the practice is not merely consistent with the aims of traditional jurisprudence; it is actually an essential branch of jurisprudence.

Highly recommended.  Download it while it's hot!

Madsen on Backlash Against International Courts

Mikael Madsen (University of Copenhagen - iCourts - Centre of Excellence for International Courts; University of Copenhagen - Faculty of Law) has posted Two Level Politics and the Backlash against International Courts: Evidence from the Politicisation of the European Court of Human Rights on SSRN.  Here is the abstract:

Are international institutions more prone to face backlash politics than domestic ones? Are international institutions easy targets for satisfying domestic political interests? Using the case of the recent criticism of the European Court of Human Rights (ECtHR), the article explores whether international institutions are more susceptible to face backlash politics than domestic ones due to the dual nature of international politics. The empirical study, focusing on the reform of the ECtHR through the 2018 Copenhagen Declaration, suggests that pre-existing commitments to international institutions might be given up rapidly when significant domestic interests collide with international institutions and their practices. The analysis, however, also shows that backlash politics against international institutions is transformed when seeking institutional reform. Entering a collective bargaining process, backlash objectives are changed by the logic of diplomatic negotiation, academic scrutiny and the interests of the other member states and civil society. This suggests that the two-level logic of ordinary international politics has a mediating effect on domestically fuelled backlash campaigns.

Banteka on a Reasonableness Standard for Fourth Amendment Exclusion

Nadia Banteka (Villanova University - School of Law) has posted Reasonable Fourth Amendment Exclusion on SSRN.  Here is the abstract:

The Fourth Amendment exclusion doctrine is as baffling as it is ubiquitous. Although courts rely on it to decide defendants’ motions to suppress evidence obtained through Fourth Amendment violations every day, virtually every aspect of the doctrine is subject to fundamental disagreement and confusion. When defendants file motions to suppress unlawfully obtained evidence, the government often argues that, even if a violation of the Fourth Amendment has transpired, the remedy of evidence suppression is barred because the police acted in “good faith,” meaning the officer reasonably, albeit mistakenly, believed the search or seizure was lawful. Judges and commentators sharply disagree about whether and which police mistakes of law are, in fact, reasonable so as to deny the application of the exclusionary rule remedy. They also disagree on the nature and scope of the reasonableness standard, and its impact on the very existence of the exclusionary rule as a remedy against police misconduct.

This Article offers a new theory of Fourth Amendment exclusion based on a “single reasonableness” standard, which promises to solve many of the doctrine's longstanding puzzles. There is widespread consensus that Fourth Amendment exclusion determines the application of the remedy of evidence suppression to acknowledged violations of Fourth Amendment rights. But Fourth Amendment exclusion is in fact better understood as an inquiry into the substance of Fourth Amendment rights and not into the application of the remedy. By collapsing the inquiry for evidence suppression into the one assessing the constitutionality of police conduct, courts can resolve one constitutional question with consequent remedial outcomes under one and the same reasonableness standard.

This approach can help solve the doctrine’s vexing problems. It resolves the two conflicting standards of Fourth Amendment reasonableness and establishes a more orderly understanding of the relationship between Fourth Amendment rights and remedies that makes it harder for courts to covertly undermine constitutional values. It also tethers deterrence of police misconduct to the constitutional right and provides useful guidance for how courts should conduct Fourth Amendment exclusion analysis moving forward. Courts will no longer be able to declare broadly that the police have violated the Fourth Amendment while in the same breath undercutting the value of remedying this violation based on two different standards on what constitutes one reasonable police officer.

Cassidy on Rape Shield Laws & Prior False Allegations

R. Michael Cassidy (Boston College - Law School) has posted Character, Credibility and Rape Shield Rules (Georgetown Journal of Law & Public Policy, Forthcoming) on SSRN.  Here is the abstract:

Rape shield laws have played an important role in protecting complainants and jurors from some of the most pernicious and ill-founded assumptions about sexual autonomy and consent. Yet the development and application of these rules have left many thorny questions. The policy debate has now shifted from whether and how the accuser’s prior sexual conduct should be admitted to prove consent or lack of credibility due to what was once termed “unchastity” (now universally condemned and rightly prohibited) to whether and how the accuser’s prior sexual conduct should be admitted to support a more specific and logically relevant argument for dishonesty. That is, when prior sexual conduct itself involves dishonest behavior, the defendant is not offering the prior incident to support a general character trait for mendacity because the complainant has been sexually active; rather, the defendant is arguing that the complainant has a character trait for untruthfulness because the accuser has lied. One narrow but critical question we need to confront as evidence and rape law progress during the “Me Too” movement is whether the jury, in assessing a complainant’s credibility in a rape prosecution, should be allowed to hear about prior false allegations of sexual assault made by the accuser.

In this article I focus on rape-shield rules throughout the United States, highlighting how these evidence rules have been stretched beyond their original purpose to prevent a defendant from raising incidents in the accuser’s sexual history that may be highly pertinent to a jury’s determination of who they should believe. Specifically, I address limitations that courts have placed on inquiring into prior false allegations (PFA) of sexual assault by the accuser to prove lack of credibility in the present case. I argue that some courts in the United States have mistakenly weighed the accuser’s privacy interests and the court’s interests in protecting the jury from being confused or misled ahead of the defendant’s fundamental right to a fair trial. I propose a “next wave” of reform of rape shield rules that specifically addresses this form of proof, and that appropriately balances the interests of victims, defendants and the judicial process.

The thesis of this article is that interpreting rape shield rules to require the exclusion of prior false allegations of rape jeopardizes the ascertainment of the truth. Yet the state of the law at the intersection of prior false allegation evidence, rape shield rules and the Sixth Amendment protections for confrontation and compulsory process leaves the admissibility of this particular type of evidence highly contested and uncertain. The confusing and in places incoherent state of the case law on PFA—both definitional and procedural—underscores the need for a clarity that only a legislative solution can provide. Legislative action to revise rape shield rules to specifically address prior false allegation evidence would constrain judicial discretion, provide greater fairness to defendants, and foster outcomes that are more predictable and uniform. My recommendations in this article would also strengthen rape shield protections for complainants by ensuring that PFA evidence is governed by the same strict notice and pre-trial hearing provisions that are designed to protect accusers from public exposure of their sexual histories.

Keller on 19th Century Qualified Immunity at Common Law

Scott A. Keller (Baker Botts LLP) has posted Qualified and Absolute Immunity at Common Law (Stanford Law Review, Forthcoming) on SSRN.  Here is the abstract:

Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But caselaw and scholarship has paid surprisingly little attention to how qualified immunity could be reformed — short of eliminating the doctrine altogether. While there has been plenty of commentary criticizing the Court’s existing “clearly established law” test, there has been no thorough historical analysis examining the complicated subject of government officer immunities under 19th century common law. Yet the legitimacy of state officer immunities, under the Court’s precedents, depends on the common law as it existed when Congress passed the Civil Rights Act of 1871. In the Supreme Court’s own words, it cannot “make a freewheeling policy choice” and must apply immunities Congress implicitly adopted from the “common-law tradition.”

This article therefore provides the first comprehensive review of the 19th century common law on government officer immunities. In particular, it canvasses the four 19th century tort treatises that the Supreme Court consults in assessing officer immunity at common law: Cooley’s 1879 Law of Torts; Bishop’s 1889 Commentaries on Non-Contract Law; Mechem’s 1890 Law of Public Offices and Officers; and Throop’s 1892 Law Relating to Public Officers. Not only do these treatises collect many overlooked state common law precedents, but they rely heavily on the Supreme Court’s own, often ignored, 19th century decisions.

These historical sources overwhelmingly refute the modern prevailing view among commentators about one critical aspect of qualified immunity: The 19th century common law did recognize a freestanding qualified immunity protecting all government officers’ discretionary duties — like qualified immunity today.

But many other important features of the Supreme Court’s current officer immunity doctrines diverge significantly from the 19th century common law: (1) high-ranking executive officers had absolute immunity at common law, while today they have only qualified immunity; (2) qualified immunity at common law could be overridden by showing an officer’s subjective improper purpose, instead of “clearly established law”; and (3) the plaintiff had the burden to prove improper purpose with clear evidence, while today there is confusion over this burden of proof.

These three features from the common law provide a roadmap for reforming qualified immunity. If high-ranking executive officials have absolute immunity, that will sufficiently protect the separation of powers without needing the “clearly established law” test — which pervasively denies plaintiffs money damages when lower-ranking executive officials violate their constitutional rights. At the same time, if plaintiffs in qualified immunity cases have the burden to prove lower-ranking officers’ subjective bad faith with clear and convincing evidence, then officer defendants and courts will have significant procedural mechanisms to dismiss insubstantial claims before trial. In sum, restoring the 19th century common law on state officer immunities could address many modern problems with qualified immunity.

Highly recommended and illuminating!

Pardo & Allen on the Reference-class Problem & Quantifying Probative Value

Michael S. Pardo (Georgetown University Law Center) & Ronald J. Allen (Northwestern University Law School) have posted Generalizations and Reference Classes (Philosophical Foundations of Evidence Law (Oxford University Press, Christian Dahlman, Alex Stein & Giovanni Tuzet eds.), Forthcoming) on SSRN.  Here is the abstract:

Legal scholarship exploring the nature of evidence and the process of juridical proof has had a complex relationship with formal modeling. An example of this complex relationship concerns attempts by scholars to use mathematical models to quantify the probative value of evidence in order to study decision-making from that perspective. As with earlier attempts to apply probability theory to juridical proof, this scholarship is interesting, instructive, and insightful. However, it also suffers from a deep conceptual problem that makes ambiguous the lessons that can be drawn from it — the problem of reference classes.

In this chapter, we examine the implications of the reference-class problem for attempts to model the probative value of items of evidence. This chapter makes three contributions. First, and most importantly, it is a further demonstration of the problematic relationship between algorithmic tools and aspects of legal decision-making. Second, it points out serious pitfalls to be avoided for analytical or empirical studies of juridical proof. Third, it indicates when algorithmic tools may be more or less useful in the evidentiary process. At the highest level of generality, this chapter is another demonstration of the very complex set of relationships involving human knowledge and rationality, on the one hand, and attempts to reduce either to a set of formal concepts, on the other.

Highly recommended.

Hamburger on Delegation & the Vesting Clauses

Philip Hamburger (Columbia Law School) has posted Delegating or Divesting? on the Northwestern University Law Review website.  Here is the abstract:

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history—most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.

A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine—arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most central historical claims are mistaken. For example, when quoting key eighteenth- century authors, the article makes errors of omission and commission— leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation.

This Essay’s broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power.

First, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside—not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it.

Second, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power—Mortenson’s view, now echoed by Bagley, being that executive power is an “empty vessel.” But all such scholarship tends to ignore another conception of executive power: that it involves the nation’s action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought—as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself.

A narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history.

Highly recommended.

Wiśniewski on Statism

Jakub Bożydar Wiśniewski (University of Wroclaw - Faculty of Law, Administration and Economics) has posted Is Statism an Amoral Philosophy? (Studia Humana 9, 2 (2020), 121-26) on SSRN.  Here is the abstract:

Thick moral terms – such as theft, fraud, and counterfeiting – are terms whose very use implies a definitionally necessary moral evaluation of their content. In this paper, I shall argue that the philosophy of statism – that is, a philosophy grounded in the belief in the normative justifiability and desirability of monopolistic apparatuses of initiatory violence – is necessarily amoral insofar as it cannot apply thick moral terms in a logically consistent manner. By the same token, I shall argue that libertarianism – i.e., the view that only consensual social relations are morally acceptable – is the only general sociopolitical doctrine capable of accomplishing this task, thus, in contrast to statism, making its prescriptions susceptible to genuine moral evaluation.

Berg & Farbenblum on the Temporary Migrants in Australia & COVID-19

Laurie Berg (University of Technology Sydney, Faculty of Law) & Bassina Farbenblum (University of New South Wales (UNSW)) have posted As if We Weren't Humans: The Abandonment of Temporary Migrants in Australia during COVID-19 on  SSRN.  Here is the abstract:

In March 2020, nationwide lockdowns to contain the spread of COVID-19 in Australia caused widespread job loss among temporary visa holders. This had a devastating financial impact on these workers, including international students, backpackers, graduates, sponsored workers and refugees, leaving many unable to meet their basic living needs such as food and rent. However, unlike some other similar Western countries, the Australian government excluded temporary migrants from wage subsidies and almost all other forms of financial support.

This report assesses the humanitarian impact of government policies related to COVID-19 on the hundreds of thousands of temporary migrants who remained in Australia. It presents findings from a survey conducted in July 2020 of over 6,100 temporary visa holders on their experiences of financial insecurity, precarious housing and homelessness, humanitarian need, racism and social exclusion, as well as their attitudes on their time in Australia. In doing so, it seeks to establish a platform for temporary migrants to voice their experiences and establish current large-scale first-hand empirical data to inform government decision-making.

Hou, Png, & Xiong on Strategic Patenting & the Strength of Legal Protection

Yun Hou (National University of Singapore), Ivan P. L. Png (National University of Singapore (NUS)), & Xi Xiong (New York University (NYU), Department of Economics) have posted Strategic Patenting: Evidence from the U.S. Court of Appeals for the Federal Circuit on SSRN.  Here is the abstract:

How should businesses adjust strategic patenting to changes in patent law? Theoretically, under particular conditions, if the legal protection of patents is stronger, incumbent businesses would reduce patenting. When the Court of Appeals for the Federal Circuit assumed jurisdiction over patent appeals, it strengthened the legal protection of patents. Importantly, the strengthening varied geographically by judicial circuit. Exploiting these changes as a natural experiment, we find that post-CAFC, patents were more valuable commercially but not technologically superior, businesses reduced patenting, and new entry fell. The reduction in patenting was more pronounced among continuations, larger businesses, and in less concentrated industries.