Legal Theory Blog

Scott-Railton on RFRA & Sanctuary Churches

Thomas Scott-Railton (Yale University, Law School, Students) has posted A Legal Sanctuary: How the Religious Freedom Restoration Act (RFRA) Could Protect Sanctuary Churches (Yale Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Across the country, places of worship are declaring themselves sanctuaries and providing shelter to undocumented individuals. The last time this happened on a large scale, the 1980s, the federal government undertook a campaign of surveillance and infiltration, ultimately arresting and convicting a number of sanctuary activists. Yet under the Religious Freedom Restoration Act (RFRA) jurisprudence of the Roberts Court, religious exercise now enjoys more protection than at any point in recent history. This piece asks whether RFRA could protect sanctuary churches and immigrant congregations—and what this can teach us about the current political and legal landscape around religious accommodation claims.

Part I describes the history of the sanctuary movement and its current form today. Part II tracks the evolution and current state of religious exercise protections under RFRA. Part III analyzes two types of sanctuary issues under current RFRA doctrine: (1) whether sanctuary churches should receive an exception from federal laws prohibiting various forms of assistance to undocumented individuals; and (2) whether RFRA would place limits on ICE’s ability to raid or surveil places of worship. I conclude that RFRA would in many cases protect sanctuary activists from prosecution, as well as place limits on ICE’s ability to conduct enforcement actions at places of worship.

Part IV examines sanctuary claims within the broader context of politically-fraught debates over religious accommodation. I explore how a consensus around protecting minority faiths and subordinate groups from de facto unequal treatment relative to powerful mainstream faiths animated RFRA’s effects-based approach and near-unanimous passage in 1993, but also how recent attempts by mainstream faith groups to further extend religious accommodation protections (at times at the expense of minorities, religious and otherwise) have eroded that consensus. Accommodation claims from the left, like sanctuary, have the potential to cut across existing political battle lines to produce a more stable equilibrium between religious freedom and other competing rights. This piece offers several concrete doctrinal suggestions for what such an equilibrium would look like; if courts were to analyze various open questions in RFRA doctrine with an eye to the particular harms that arise from the unequal treatment of disadvantaged groups, it would better balance the competing interests at stake, restoring an original consensus and avoiding the divisiveness produced by recent claims brought by politically-influential, mainstream faith groups.

For a different take on these issues, see Immigration Law's Looming RFRA Problem Can Be Solved By RFRA by Stephanie Acosta Inks.

Natelson on the Montana Constitution

Robert G. Natelson (Independence & Montana Policy Institutes) has posted Constitutional Coup? The Case that Promulgated a New Constitution for Montana on SSRN.  Here is the abstract:

This Article examines one of the most important state court cases ever decided. In Montana ex rel. Cashmore v. Anderson, the Montana Supreme Court exercised its original jurisdiction by a 3-2 margin to order that the state’s original constitution be replaced with a new one that likely had failed of ratification. In doing so, the court yielded to interest groups that favored replacing the original state constitution with an instrument based on radically different premises. Political threats may have caused the swing justice to vote for the new constitution, but even if that did not occur, the case represents a striking example of the failure of the rule of law. The Article also proposes reforms that may reduce the chances of a recurrence.

Sunstein on Lochner

Cass R. Sunstein (Harvard Law School) has posted Lochner's Legacy (87 Columbia Law Review 873 (1987)) on SSRN.  Here is the abstract:

The received wisdom is that Lochner was wrong because it involved “judicial activism”: an illegitimate intrusion by the courts into a realm properly reserved to the political branches of government. This view has spawned an enormous literature and takes various forms. The basic understanding has been endorsed by the Court in many cases taking the lesson of the Lochner period to be the need for judicial deference to legislative enactments.

The principal purpose of this essay, descriptive in character, is to understand Lochner from a different point of view. For the Lochner Court, neutrality, understood in a particular way, was a constitutional requirement. The key concepts here are threefold: government inaction, the existing distribution of wealth and entitlements, and the baseline set by the common law. Governmental intervention was constitutionally troublesome, whereas inaction was not; and both neutrality and inaction were defined as respect for the behavior of private actors pursuant to the common law, in light of the existing distribution of wealth and entitlements. Whether there was a departure from the requirement of neutrality, in short, depended on whether the government had altered the common law distribution of entitlements. Market ordering under the common law was understood to be a part of nature rather than a legal construct, and it formed the baseline from which to measure the constitutionally critical lines that distinguished action from inaction and neutrality from impermissible partisanship. This understanding of the Lochner period is faithful to what the Court said when it both engaged in and abandoned Lochner-like reasoning, and it points to an important element in the Lochner Court's approach, one that has little to do with an aggressive judicial role in general.

I am departing from my usual policy of only posting recent papers for this classic and important paper by Cass Sunstein.  Because this paper is now more than twenty years old, it may not have been read by many younger constitutional scholars and law students.  Highly recommended.

Brandes on the Enactment of "Basic Law: Israel as the Nation State of the Jewish People"

Tamar Hostovsky Brandes (Ono Academic College Faculty of Law) has posted Israel's Nation-State Law – What Now for Equality, Self-Determination, and Social Solidarity? on SSRN.  Here is the abstract:

The enactment of Basic Law: Israel as the Nation State of the Jewish People (“the Law”) on July 19th, 2018, triggered an intense public debate in Israel. Opponents of the Law refer to it as racist, shameful and disgraceful, and demanded its immediate repeal. Eight petitions against the Law have been filed, as of October 1, 2018, to the High Court of Justice. Proponents of the Law argue that it is a legitimate legal entrenchment of the right of the Jewish people to self-determination, which is, they argue, the justification for the establishment of the state of Israel. They argue that the Law does not violate the principle of equality, which in entrenched, albeit inexplicitly, in Basic Law: Human Dignity and Liberty. They further argue that it is necessary in order to balance Supreme Court’s alleged preference of “universal values” over national ones. The questions raised by the Law can be divided into three groups. The first group of questions regards the possible effects the Law may have on individual rights, and, in particular, on the right to equality. The second group of questions regards the implications of the Law for possible future recognition of collective rights for non-Jewish minorities, or for other forms of state recognition of minority groups. The third group of questions regard the manner in which the Law shapes the national identity of Israel, constructs the terms and content of membership in the political community in Israel, and affects social solidarity. The paper will analyse the three group of questions, examining them against the backdrop of current political discourse in Israel. The two most important issues, in this regard, are the public debate regarding the concept of “a state of all its citizens”, understood by many Israelis as incompatible with the definition of Israel as a Jewish state, and the ongoing political struggle between the Knesset and the Supreme Court regarding the limits of judicial review. The paper argues that the significance of the Law, and the intensity of the public debate it stirred, can only be understood within this context. The paper argues that in addition to the serious equality concerns the Law raises, the Law undermines the ability to create inclusive, all-encompassing social solidarity in Israel. While violations of equality could potentially be mitigated by a willing Supreme Court, the negative effect the Law may have on social solidarity in Israel may be difficult to alleviate.

Guttentag on Law and Surplus Value

Michael D. Guttentag (Loyola Marymount University) has posted Law and Surplus: Opportunities Missed (Utah Law Review, Forthcoming) on SSRN.  Here is the abstract:

Surplus is a ubiquitous feature of economic activity. The ubiquity of surplus challenges us to find fair and efficient ways to share resources. This is the surplus problem. The law can and should play a central role in addressing the surplus problem. This article documents the miscues and mistaken assumptions that have left this topic woefully underexplored in legal scholarship.

I identify and consider in detail here three important missed opportunities. First, scholars studying “rent-seeking,” such as Gordon Tullock, identify competition for surplus as a significant source of economic waste, but then fail to explore the broader ramifications of their insight. Second, law and economics scholars, such as Omri Ben-Shahar, presume that markets will provide the best solution to the surplus problem based on faulty assumptions that do not withstand careful scrutiny. Finally, consumer law scholars, such as Oren Bar-Gill, mistakenly rely on familiar market failure arguments to justify laws designed to protect consumers, rather than address the surplus problem that should be central to their analysis.

Collectively, these three missed opportunities illustrate how law’s role in addressing the surplus problem has been shunted to the periphery of legal scholarship rather than placed at the center of legal discourse where it rightly belongs.

Legal Theory Lexicon: Metalinguistic Negotiation

Introduction

At some point, law students are likely to encounter a topic where the debate moves away from substantive disagreement and towards what might seem like matters of definition.  For example, in debates about constitutional interpretation, some protagonists argue that the word "interpretation" refer to the activity of discovering the linguistic meaning of the text, but others believe that "interpretation" refers to a broader activity that allows normative considerations to determine the legal effect that the text will have.

What kind of dispute is this?  One possibility is that it is a dispute about "definitions" that might be resolved by looking to a dictionary, but usually dictionary definitions will fail to address the real grounds of dispute.  At this point, one can imagine the disputants simply agreeing to disagree about the meaning of the disputed word or term, but frequently this move fails, because neither side will yield on the question what "interpretation" (or some other legal concept really is.

It is at this point that the concept of metalinguistic negotiation may help us to understand what is really going on.  In metalinguistic negotiation, the parties to a dispute attempt to reach agreement on how words should be used and what shape concepts should have.  This entry in the Theory Lexicon will provide a brief introduction to this idea.  As always, the introduction is aimed at first year law students with an interest in legal theory.

Here is how the philosopher David Plunkett articulates the idea of metalinguistic negotiation:

In basic terms, a metalinguistic negotiation (or, equivalently, a normative metalinguistic dispute) is a dispute in which speakers each use (rather than mention) a term to advocate for a normative view about how that term should be used.

A simple example of metalinguistic negotiation in action is provided by the debate that ensued when the magazine Sports Illustrated listed Secretariat as one of the greatest 50 athletes of the 20th Century.  Some sports fans argued that Secretariat wasn't eligible to be an athlete; others argued to the contrary.  The dispute wasn't about the facts: everyone could agree about the greatest of Secretariat was an amazing racehorse.  The real dispute was about the character or general meaning of the term "athlete."  (Plunkett, 2015)

Words and Concepts

Before we explore metalinguistic negotiation itself, we need to get clear on a prior distinction--the distinction between words and concepts.  Let use quotation marks to designate words, and italics to designate concepts.

The word "interpretation" represents a concept, interpretation.  That the word and the concept are different entities is easy to see from the fact that different words are used in different languages to represent the same concept.  Thus, the English word "interpretation" and the German word "Deutung" can be used to represent the same concept.

Metalinguistic negotiation may seem to be focused on words, but at a deeper level the disagreement may well be about the concepts that the words represent.  When we debate about the meaning of the word "interpretation" or actual dispute may be about the shape of the concept interpretation that we use the word to represent.

How to Proceed in Metalinguistic Negotiation

Let's take another example of metalinguistic negotiation, the dispute over the word "originalism" and the concept originalism for which the word stands.  Imagine the following conversation:

Ben: Originalism is the theory that judges should be bound by the linguistic meaning of the constitutional text.

Alice: That's a dumb theory.  That would mean that we would be required to equate the word "arms" in the second amendment with muskets and flintlock pistols.

Ben: No, originalism requires that we follow the original meaning of the text and the word "arms" means weapons that can be carried.  Modern pistols and rifles are "arms" given the original meaning.

Alice: That isn't "originalism."  Originalism means we are limited to the applications that the framers and ratifiers expected.

Ben: You are wrong.  Originalism is about public meanings not expected applications.

At this point, the issue has been joined, but how can the discussion continue.  There are at least three options:

Stipulate Definitions: One possibility is that the disputants could stipulate to definitions in order to continue the conversation.  For example, conversation between Ben and Alice could continue as follows:

Alice: Okay.  Let's stipulate that there are two forms of originalism, "original public meaning originalism" and "original expected applications originalism."  You are talking about the first form of originalism, but I am talking about the second.

Appeal to Linguistic Practice: Another possibility is that the disputants can appeal to the way the disputed words and concepts are actually used.  For example, the conversation between Ben and Alice might continue as follows:

Alice: I don't think you are right.  Originalists like Justice Scalia believe that the original beliefs about applications are binding on us today.  Our use of the word "originalism" ought to correspond to the concept that originalists actually employ when they practice originalism.

Appeal to Theoretical Values:  Yet a third possibility is that the disputants will shift the conversation to questions about which version of a concept is theoretically more attractive, powerful, simple, and so forth.  For example, we can imagine, the conversation between Ben and Alice continuing as follows:

Alice: But originalists do appeal to expected applications.

Ben: That's true, but the most powerful form of originalism relies on public meanings.  Expected applications should only play an evidentiary role.  We ought to be talking about a coherent and defensible concept of originalism--not a dumb version.

Conclusion

These simple examples illustrate some of the options for metalinguistic negotiation.  If you are interested in exploring this idea on a deeper level, you can consult the references provided below. 

Related Lexicon Entries

• Legal Theory Lexicon 035: Strict Construction and Judicial Activism
• Legal Theory Lexicon 071: The New Originalism
• Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory

Bibliography

• David Plunkett & Timothy Sundell, Disagreement and the Semantics of Normative and Evaluative Terms, 13 Philosophers' Imprint 23 (2013).
• David Plunkett & Timothy Sundell, Dworkin's Interpretivism and the Pragmatics of Legal Disputes, 19 Legal Theory 3 (2013).
• David Plunkett & Timothy Sundell, Antipositivist Arguments from Legal Thought and Talk: The Metalinguistic Response in Pragmatism, Law, and Language 56-75. (G. Hubb and D. Lind eds. 2014).
• David Plunkett, Negotiating the Meaning of ‘Law’: The Metalinguistic Dimension of the Dispute Over Legal Positivism”, Legal Theory. (2016). Vol. 22, No. 3-4, 205-275.
• David Plunkett, “Which Concepts Should We Use?: Metalinguistic Negotiations and The Methodology of Philosophy”, Inquiry. (2015). Vol. 58, Nos. 7-8, 828-874.

(Last modified on November 11, 2018)

Legal Theory Bookworm: "Why Does Inequality Matter" by Scanlon

The Legal Theory Bookworm recommends Why Does Inequality Matter? by T. M. Scanlon. Here is a description:

Inequality is widely regarded as morally objectionable: T. M. Scanlon investigates why it matters to us. Demands for greater equality can seem puzzling, because it can be unclear what reason people have for objecting to the difference between what they have and what others have, as opposed simply to wanting to be better off. This book examines six such reasons. Inequality can be objectionable because it arises from a failure of some agent to give equal concern to the interests of different parties to whom it is obligated to provide some good. It can be objectionable because it involves or gives rise to objectionable inequalities in status. It can be objectionable because it gives the rich unacceptable forms of control over the lives of those who have less. It can be objectionable because it interferes with the procedural fairness of economic institutions, or because it deprives some people of substantive opportunity to take part in those institutions. Inequality can be objectionable because it interferes with the fairness of political institutions. Finally, inequality in wealth and income can be objectionable because it is unfair: the institutional mechanisms that produce it cannot be justified in the relevant way. Scanlon's aims is to provide a moral anatomy of these six reasons, and the ideas of equality that they involve. He also examines objections to the pursuit of equality on the ground that it involves objectionable interference with individual liberty, and argues that ideas of desert do not provide a basis either for justifying significant economic inequality or for objecting to it.

And from the reviews:

"[A] densely packed and succinctly written book which is analytical political philosophy at its best: clear, rigorous, and admirably sharp. It's also pitched at just the right level of abstraction; no one who reads it could fail to appreciate how Scanlon is troubled by the sheer extent of inequality in the United States, and there are suggestions of policy positions, for example dispersal of media ownership. ... anyone remotely interested in egalitarianism will find much to reward them in this outstanding book." -- Jonathan Seglow, Ethical Theory and Moral Practice

Download of the Week: "The Real Standard Picture, and How Facts Make It Law" by Goldsworthy

Jeffrey Denys Goldsworthy (Monash University - Faculty of Law) has posted The Real Standard Picture, and How Facts Make It Law: A Response to Mark Greenberg on SSRN.  Here is the abstract:

Mark Greenberg has attempted to refute what he regards as a popular metaphysical thesis about how law is constituted. He calls it the “Standard Picture”, and it includes a “Communication Theory”. His own “Moral Impact Theory” of law is built partly on that attempted refutation. I defend positions that are very close to the Standard Picture and Communication Theory, albeit different in important respects. In particular, they are not primarily metaphysical theses, although they have metaphysical implications. They are actual fundamental doctrines of constitutional law in Anglo-American legal systems, which I call Legislative Supremacy and Legislative Intention. I argue that: (a) these doctrines, and their metaphysical implications, vindicate much of the Standard Picture, and explain why so many theorists have been attracted to it; (b) the doctrines are inconsistent with Greenberg’s Moral Impact Theory; and (c) the best theory of what makes them part of the law is legal positivism: in other words, facts about legal practices make them law. In arguing for (a) and (b), I examine in detail and respond to Greenberg’s account of the legal principles and practice of statutory interpretation. I distinguish between three kinds of interpretation: clarifying, supplementing and rectifying. In arguing for (c), I contend that legal positivism satisfies Greenberg’s (questionable) insistence that any metaphysical account of what constitutes law must satisfy a “rationality requirement”.

This is an important paper by an important voice on theories of legal interpretation--and it is on a very important topic.

Highly recommended.  Download it while it's hot!

Thomas & Tomlinson on the Judicialization of Administrative Review

Robert Thomas (University of Manchester - School of Law) & Joe Tomlinson (King's College London; Public Law Project) have posted A Different Tale of Judicial Power: Administrative Review as a Problematic Response to the Judicialisation of Tribunals (Public Law (Forthcoming)) on SSRN.  Here is the abstract:

Administrative review is the process by which an administrative decision made by a public official – to refuse benefits or immigration status - is reconsidered by a different official within the same public body. Administrative review has operated in various contexts for years, but the rate of its recent expansion has been remarkable. Two systems have been key to this rapid growth. In the social security context, the introduction of ‘mandatory reconsideration’ requires that claimants refused benefits must first seek administrative review before appealing to a tribunal. In immigration, long-established appeal rights have been replaced entirely by administrative review. The volume of disputes channelled through administrative review exceeds that of tribunals and makes judicial review appear esoteric. This is a radical change to how people access and experience justice in the public law context. For the last fifty years and more, individuals in receipt of a negative administrative decision could appeal directly to independent and judicial tribunals to determine their legal rights and entitlements. The rationale for this fundamental shift is clear: the increase in tribunal caseloads and the success rates for appellants, austerity, and political objectives (the desire to reduce social security spending and immigration rates) have prompted the Government to reduce the number of tribunal appeals by requiring individuals to use administrative review. Within the longer arc of administrative justice developments, we suggest that administrative review should be understood as a consequence of the progressive judicialisation of tribunals. Government departments have argued that administrative review can provide people with an efficient and quicker way of correcting case-working errors and thereby reducing unnecessary appeals. On the other hand, there are concerns that administrative review is often an ineffective mechanism for challenging administrative decisions.

This article argues that administrative review – as it currently operates - is a problematic response to the increased judicialisation of tribunals. Administrative review has largely weakened the ability of people to secure redress. Reforms are therefore necessary to ensure administrative review can work more effectively in practice. The first part of this article discusses the need for justice within administrative decision-making and the development of tribunals. The second part turns to the recent expansion of administrative review. The third part considers the practical operation of administrative review in both the social security and immigration contexts. The fourth part assesses administrative review and suggests ways of enhancing its effectiveness. The final part considers the wider constitutional implications of the growth of administrative review. In particular, we suggest this episode of de-judicialisation provides an insight into nature of judicial power in UK public law. In contrast to the standard, high-profile debate about the growth of judicial power and the rise of ‘juristocracy’, the recent experience of administrative review tells a different tale. The greater use of administrative review has gone hand-in-hand with a correspondingly smaller role for the judicial control of front-line administrative decisions.

Interesting and recommended.

Villaronga, Tamò-Larrieux, & Lutz on Robot Therapy

Eduard Fosch Villaronga (Queen Mary University of London; eLaw Center for Law and Digital Technologies; Law, Governance & Technology Department. University of Twente), Aurelia Tamò-Larrieux (Center for Information Technology, Society, and Law (ITSL)), & Christoph Lutz (BI Norwegian Business School) have posted Did I Tell You My New Therapist is a Robot? Ethical, Legal, and Societal Issues of Healthcare and Therapeutic Robots on SSRN.  Here is the abstract:

Social robots and artificial intelligence (AI) technologies are increasingly used in healthcare. Typical examples of such robots are mobile assistants, cognitive therapeutic robots, and drones. This paper highlights the ethical, legal, and societal (ELS) issues of social robots in a highly sensitive domain - healthcare - and explores solutions to the identified challenges. This is in line with the latest European robot regulatory initiatives, and covers an area of research that has been scarcely covered in the latest AI and robot governance strategies. Our research contributes to the existing literature by providing findings from four international workshops held between 2015 and 2017 that gathered experts in the field. Specifically, we highlight challenges to the use of social robots in healthcare that are connected to the human-robot interaction. This happens either from a user/patient perspective, including issues such as privacy, autonomy, or the dehumanization of interactions, or from a worker perspective, including issues such as the possible replacement of nurses and doctors through robots. The paper also compiles the solutions to these ELS issues the experts deem appropriate to mitigate compounding risks. In the paper we argue that robot and AI policies that do not take into consideration the specifics of the concrete field of application risk being ineffective. Our contribution seeks thus to provide substantive sector-specific information to inform the current policy debate and set the scene for more interdisciplinary research.