Legal Theory Blog

Legal Theory Bookworm: "he Palgrave Handbook of Applied Ethics and the Criminal Law," edited by Alexander & Ferzan

The Legal Theory Bookworm recommends The Palgrave Handbook of Applied Ethics and the Criminal Law, edited by Larry Alexander & Kimberly Kessler Ferzan.  Here is a description:

This handbook consists of essays on contemporary issues in criminal law and their theoretical underpinnings. Some of the essays deal with the relationship between morality and criminalization. Others deal with criminalization in the context of specific crimes such as fraud, blackmail, and revenge pornography. The contributors also address questions of responsible agency such as the effects of addiction or insanity, and some deal with punishment, its mode and severity, and the justness of the state’s imposition of it. These chapters are authored by some of the most distinguished scholars in the fields of applied ethics, criminal law, and jurisprudence.

And from the reviews:

“This volume contains a Who’s Who of criminal law philosophers, as well as a What’s What of important issues. Nearly every important scholar across several generations has here tackled an issue on which they have done some serious thinking. The future of philosophy’s contributions to criminal law is questioned in some quarters but it is hard to turn away from this volume without being deeply impressed with the continuing importance of the discipline.” (Paul H. Robinson, Colin S. Diver Professor of Law, University of Pennsylvania, author of Intuitions of Justice and the Utility of Desert.)

“The last two decades have seen a flourishing of scholarship that connects philosophical ethics and criminal law―that applies ethics to work out what kind of criminal law we should have, and uses issues in criminal law to throw light on ethical questions. This splendid volume collects thirty-two new papers by some of the most interesting contributors (both established and young) to this flourishing: it helps to define, and advance, this important field of scholarship.”(R.A. Duff, Professor Emeritus in Philosophy, University of Stirling, Scotland, UK)

Download of the Week: "Optimal Tax Theory as a Theory of Distributive Justice" by Batchelder

The Download of the Week is Optimal Tax Theory as a Theory of Distributive Justice by Lily L. Batchelder.  Here is the abstract:

The literature on taxation and transfers primarily relies on two theories of distributive justice: resource egalitarianism and welfarism, as elaborated through optimal tax theory.In recent years, optimal tax theory has garnered even greater prominence. But nonwelfarists argue it fails to address a number of serious philosophical objections.

This article considers the primary critiques of optimal tax theory, especially by resource egalitarians. It argues the gap between these two theories is narrower than most appreciate. Indeed, once one focuses on egalitarian optimal tax theory and reads that literature broadly, the ideal policy design principles implied by each theory largely mimic the other.

In addition, this article explores how both theories have dealt with concerns that they respond inadequately to preferences to help or harm others, hold individuals unduly responsible for their choices, or fail to account for real world social dynamics and human behavior. It argues that egalitarian optimal tax theory has responded—or, as laid out here, could respond—more effectively to these objections than resource egalitarianism.Specifically, optimal tax theory should adopt three innovations: (1) applying welfare-weighted Pigouvian taxes and subsidies to other-regarding preferences, (2) modeling the optimal endowment tax as one that is risk-neutral and only partially based on ex ante potential income, and (3) treating choices as providing less information about well-being when they are further in the past or relatively predictable.

More explicitly and consistently adopting these assumptions and modeling approaches would clarify that egalitarian optimal tax theory does not entail the extreme limits on autonomy, and unrelenting responsibility for prior choices, that have troubled nonwelfarists. Instead, the focus of egalitarian optimal tax theory would move toward sequalizing outcomes, and away from equalizing ex ante endowments.

Highly recommended.  Download it while it's hot!

Brand on AI & Corporate Boards

Vivienne Brand (Flinders University) has posted Artificial Intelligence and Corporate Boards - Some Ethical Implications (in Andrew Godwin, Pey Woan Lee and Rosemary Langford (eds) Innovation, Technology and Corporate Law (Edward Elgar Publishing, 2021, Forthcoming)) on SSRN.  Here is the abstract:

The ethics issues associated with AI have attracted significant attention. A range of guidelines for ‘Ethical AI’ have been promulgated by international agencies, domestic governments and others, but a criticism of these guidelines is that they operate at a high level of generality and are difficult to operationalise. Given the situated, complex ethical issues that AI generates, high-level principles may be insufficient to the task. This present problems for directors, who will be faced with AI ethics risks yet may feel the lack of useful guidelines. Given that the vast majority of AI will be developed and applied within corporate contexts, this issue is significant.

However, existing models of corporate regulation offer a potentially useful framework within which AI ethics issues can be analysed, by directors and others. Obligations owed by directors to make decisions in the best interests of the company and to act with care and diligence already require directors to make subtle, contextualised decisions, and these duties are also responsive to evolving community norms. Further, director obligations are supported by well-understood and developed accountability mechanisms and ultimately by state-based enforcement regimes. In the context of current critiques of AI ethics principles, these are significant advantages and point to the value of directors’ duties in the evolution of AI ethics corporate practice.

Lynch on Section 3 of the Fourteenth Amendment

Myles Lynch (Independent) has posted Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment on SSRN.  Here is the abstract:

To become President of the United States, you must be constitutionally qualified. You must be thirty-five years old, a natural born citizen, and a resident for fourteen years. Neither Congress nor any state can set this threshold higher; the same is true for congresspeople. But since it was last successfully invoked in 1917, most have forgotten the other qualifier—for officers at both the state and federal levels—from Section 3 of the Fourteenth Amendment. Those who have violated their oath to uphold our Constitution can be disqualified from holding any public office, state legislatures excluded. This Article reconstructs this lost qualification and develops a framework for its twenty-first-century application by states, federal courts, and the Congress.

Part I uses sources from and contemporary to the drafting of the Fourteenth Amendment alongside recent secondary sources to determine what Section 3 means. Part II then develops a test that can be applied in judging a Section 3 case. Part III briefly explores mechanisms through which the qualification can be enforced. Part IV reviews and summarizes some surviving use-cases so that decisionmakers can easily compare modern transgressions to precedent. And finally, Part V adopts the analysis from Parts I & II and scrutinizes a hypothetical person who may be barred by Section 3. The Article then concludes.

Kelley-Widmer on Fixing Trump's Immigration Rules

Jaclyn Kelley-Widmer (Cornell Law School) has posted Quotidian Policies: How Trump’s Unseen Immigration Rules Have Wreaked Havoc and How to Fix Them on SSRN.  Here is the abstract:

Throughout the Trump presidency, Americans and people across the globe have been riveted by overt immigration “horror stories,” those splashy headlines that grab public attention and ignite outrage. People have been shocked by the lengths the United States government has gone to dehumanize and penalize immigrants, from the travel bans to family separation to “the Wall.” Yet while these policies are indeed abhorrent, they can mask and distract from insidious, less-captivating policies that nevertheless have wreaked havoc and optimized injustice on a daily basis during the last four years.

Expanded enforcement, immigration court controls, strategic precedents, and tightened regulations have all been part of the Trump administration’s complex web of policies to create practical and legal barriers as well as inculcate a culture of fear for immigrants. From the most simplistic measure of increasing application fees to make citizenship and other relief out of reach for immigrants with lesser economic means, to insidious but mundane protocols such as case completion quotas for immigration judges that incentivize rapid deportations, these Byzantine measures have largely flown under the public radar. This Article explores a wide range of these “quotidian policies,” cataloguing some of the lesser-known damaging rules and strategies promulgated in the four years of the Trump administration that impact the day-to-day operation of our immigration system.

While immigration advocates look forward to a new wave of post-Trump law, simply reversing these policies under the Biden administration will not be enough. Indeed, the immigration system has long been “broken,” often operating in a way that perpetuates injustice and ignores the basic humanity of immigrants. To address these deep flaws, lawyers and policy makers must start by identifying the quotidian, under-the-radar policies as well as the well-known challenges. This Article thus details many unseen policies and proposes potential strategies to both reverse Trumpian measures and advance humane policies during the Biden administration and those to come.

Highly recommended.

Sherwin on on Locke & Private Law

Emily L. Sherwin (Cornell University - Law School) has posted Locke and Private Law (Research Handbook on Private Law Theory (Hanoch Dagan & Benjamin Zipursky, eds. 2021)) on SSRN.  Here is the abstract:

I suggest in this chapter that much but not all of private law is consistent with Locke's understanding of private rights. Locke contemplated that natural rights would undergo some changes to accommodate the move from a state of natural to civil society. For example, natural rights must be standardized and restated in the form of determinate rules that permit private actors to anticipate the legal treatment of their transactions. A system of equity may also be helpful to facilitate judicial enforcement of rights.

Other features of private law suggest that the state has assumed a more Hobbesian role, acting as a benevolent (we hope) dictator with authority to maintain peace, solve collective action problems, and otherwise modify rights in ways that members of the society think are fair.

Recommended.

Bustamante on Dworkin on the Principle of Salience & International Law

Thomas Bustamante (Federal University of Minas Gerais (UFMG)) has posted Is There an Objective Standard of Salience for International Law? (Forthcoming in Cristina Consani, Joel T. Klein and Soraia Nour Sckell (eds.), Cosmopolitanism Now and Then. Berlin: Duncker & Humboldt, 2021)) on SSRN.  Here is the abstract:

In Dworkin’s posthumous work on the philosophy of international law, he proposes to integrate the requirements of state legitimacy and the legitimacy of international law. Legitimacy of international law, on this argument, can be vindicated through two distinct principles: the principle of mitigation, which requires states to limit their own sovereignty by adhering to an international legal order founded on principles that increase their own legitimacy, and the principle of salience, which, under certain conditions, fixes a duty to attach to salient norms in the international legal order, provided that there is a general practice of endorsing these norms and that acknowledgment of these norms increases both the legitimacy of international law and the legitimacy of the states government. For the principle of mitigation to hold, the principle of salience must do the practical work.

In this short essay, I inquire whether the principle of salience can be objectively justified. I ask if there is a standard of salience sufficiently impersonal to satisfy the demand of legitimacy imposed by the principle of mitigation. After expounding the reasons for accepting Dworkin’s monism in international law, I explain the conditions for making the principle of salience a viable principle for interpreting and developing international law.

Recommended.

Kemmerich on the Interpretation of Judicial Opinions

Clovis J. Kemmerich (Procuradoria Geral Federal) has posted The Interpretation of Court Opinions on SSRN.  Here is the abstract:

What kind of argument is acceptable for this or that interpretation when the text is a court’s opinion? There is plenty of discussion about literary, constitutional, and statutory interpretation. Is it acceptable to import their tenets or theories to the interpretation of court opinions? This paper goes over the leading views on literary, constitutional, and statutory interpretation to compare with the needs of the court opinions’ interpretation. The author argues that court opinions should be interpreted according to the pragmatic model, being the communicative intention of the judge the goal of the interpretive quest.

Mihal on the Over-Inclusiveness Objection to Hart's Theory of Law

Jan Mihal (NUS, Faculty of Law) has posted Responding to the Over-Inclusiveness Objection to Hart's Theory of Law: A Causal Approach (Jurisprudence (2021, Forthcoming)) on SSRN.  Here is the abstract:

Hart’s account of law has long been acknowledged to be vulnerable to counterexamples which show that it is over-inclusive, since organizations such as private clubs, trade unions, and the mafia satisfy his conditions for law’s existence while clearly not counting as law themselves. To deal with this issue, this paper adds a new condition to Hart’s account of the nature of law – a requirement that obedience to the valid rules of the putative legal system causally contribute to social order and peace. I show that this additional condition effectively responds to the argument from over-inclusiveness as well as avoiding potential objections from under-inclusiveness. This yields a more plausible account of law’s nature with interesting implications for general jurisprudence.

Gillroy on Anticipatory Regulation of Environmental Risk

John Martin Gillroy (Lehigh University) has posted Philosophical-Policy & Legal Design: Ecosystem Policy and a Transition to the Anticipatory Regulation of Environmental Risk on SSRN.  Here is the abstract:

If the COVID-19 pandemic tells us anything, it is that an environmental risk policy focused primarily on an efficient economy and only the ex post regulation of harm to the environment is not adequate. It fails to protect and empower of the intrinsic human and natural values that ought to be the foundation of planning and policy implementation. The ‘economic’ status-quo has failed for decades to properly regulate climate change, but the immediate threat and the drastic ex post measures required by the overall lack of policy planning and anticipation of harm with this pandemic is evidence that the conventional assumptions of our current public policy model are severely flawed. Science can tell us what we have, but policy is necessary in term of how we prepare and which values drive that planning. In this chapter, I argue that it is only with a change to the essential philosophical-moral premises of environmental risk law and policy that we can move to anticipatory Ecosystem Policy and protect the intrinsic values at stake, now, and in the future. This requires that we replace the dominance of the Market Paradigm for policy choice with a Philosophical-Policy and Legal Design Paradigm created from Kant’s Argument for Justice-From-Autonomy.