Legal Theory Blog

Grunwald & Rappaport on Wandering Law-Enforcement Officers

Ben Grunwald (Duke University School of Law) &  John Rappaport (University of Chicago - Law School) have posted The Wandering Officer (Yale Law Journal, Vol. 129, No. 6, 2020) on SSRN.  Here is the abstract:

“Wandering officers” are law-enforcement officers fired by one department, sometimes for serious misconduct, who then find work at another agency. Policing experts hold disparate views about the extent and character of the wandering-officer phenomenon. Some insist that wandering officers are everywhere—possibly increasingly so—and that they’re dangerous. Others, however, maintain that critics cherry-pick rare and egregious anecdotes that distort broader realities. In the absence of systematic data, we simply do not know how common wandering officers are or how much of a threat they pose, nor can we know whether and how to address the issue through policy reform.

In this Article, we conduct the first systematic investigation of wandering officers and possibly the largest quantitative study of police misconduct of any kind. We introduce a novel data set of all 98,000 full-time law-enforcement officers employed by almost 500 different agencies in the State of Florida over a thirty-year period. We report three principal findings. First, in any given year during our study, an average of just under 1,100 officers who were previously fired—three percent of all officers in the State—worked for Florida agencies. Second, officers who were fired from their last job seem to face difficulty finding work. When they do, it takes them a long time, and they tend to move to smaller agencies with fewer resources in areas with slightly larger communities of color. Interestingly, though, this pattern does not hold for officers who were fired earlier in their careers. Third, wandering officers are more likely than both officers hired as rookies and those hired as veterans who have never been fired to be fired from their next job or to receive a complaint for a “moral character violation.” Although we cannot determine the precise reasons for the firings, these results suggest that wandering officers may pose serious risks, particularly given how difficult it is to fire a police officer. We consider several plausible explanations for why departments nonetheless hire wandering officers and suggest potential policy responses to each.

Highly recommended.  Download it while it's hot!

Fagan on Optimal Social Media Content Moderation

Frank Fagan (EDHEC Business School) has posted Optimal Social Media Content Moderation and Platform Immunities (European Journal of Law and Economics, Forthcoming) on SSRN.  Here is the abstract:

This Article presents a model of the lawmakers' choice between implementing a new content moderation regime that provides for platform liability for user-generated content versus continuing platform immunity for the same. The model demonstrates that lawmakers prefer platform immunity, even if incivility is increasing, if the costs of implementing a platform liability regime are greater than the costs of enforcing status quo law. In addition, inasmuch as implementation of a platform liability regime is coupled with new speech restrictions that are unconstitutional or prohibitively costly, lawmakers prefer immunity, but platforms are free to set strong content moderation policies consistent with existing law. Thus, the private governance function of platforms highlighted by Balkin and others is directly related to lawmakers' ability to enact and enforce alternatives, and further, it goes beyond mere private enforcement of existing free speech restrictions. Inasmuch as lawmakers are prohibited from suppressing unwanted speech by constitutional limits as well as lawmaking and enforcement costs, they give platforms wider discretion to make private suppression decisions. The status quo governance function of platforms, therefore, includes a private lawmaking function for determining which types of speech to suppress, albeit one bounded by the state’s appetite for alternatives.

Balasingham on Big Data & the Structuralist Approach to Australian Competition Law

Baskaran Balasingham (Macquarie University - Macquarie Law School (Sydney, Australia)) & Hannah Jordan have posted Big Data and Competition Analysis Under Australian Competition Law: Comeback of the Structuralist Approach? on SSRN.  Here is the abstract:

Competition assessment in Australia has traditionally been based on an evaluation of the market structure relying on five factors, namely the degree of market concentration, the height of barriers to entry, the extent of product differentiation, the extent of vertical integration, and the nature of arrangement between firms. These factors, known as the ‘QCMA factors’, are characteristic of competition in the manufacturing industries of the ‘old economy’. Since the ascendancy of Chicago and Post-Chicago School thinking competition analysis in Australia has also taken into consideration non-structural factors. However, in light of the dominance of big tech companies in online markets, the so-called ‘Neo-Brandeisian School’ has advocated focusing on structural elements that are characteristic of online markets. This article examines to what extent the QCMA factors still a suitable structural framework for the assessment of competition in online markets.

Conklin on Presidential Self-Pardons

Michael Conklin (Angelo State University) has posted Please Allow Myself to Pardon . . . Myself: The Constitutionality of a Presidential Self-Pardon (University of Detroit Mercy Law Review, Vol. 97, 2020) on SSRN.  Here is the abstract:

Donald Trump sparked a debate after tweeting, “As has been stated by numerous legal scholars, I have the absolute right to PARDON myself . . . ,” and, “all agree the U. S. President has the complete power to pardon . . . .” Suddenly the constitutional question of a self-pardon — previously relegated to “parlor game” status among constitutional scholars — became real. This essay argues in favor of the president’s power to issue a self-pardon by analyzing both the arguments for and against. As this essay demonstrates, many of the anti-self-pardon arguments are the result of misunderstandings regarding judicial precedent, the Constitutional Convention, or the significance of one person’s ill-informed opinion during the Nixon administration. Other anti-self-pardon arguments are premised on vague themes that could be interpreted to support any desired outcome. The arguments in favor of the self-pardon, however, are well-grounded in American jurisprudence and are consistent with the text of the Constitution.

Carpentier on Derogation & Normative Conflict

Mathieu Carpentier (Universite de Toulouse 1 Capitole) has posted Kelsen on Derogation and Normative Conflicts (Die Reine Rechtslehre auf dem Prüfstand / Hans Kelsen Pure Theory of Law: Conceptions and Misconceptions (Jestaedt/Poscher/Kammerhofer eds., 2020)) on SSRN.  Here is the abstract:

This article focuses on Hans Kelsen’s late period, in which, breaking from views that he had previously held dear, Kelsen espoused a novel theory of normative conflicts. He claimed that since the principle of non-contradiction does not apply to norms, normative conflicts are not logical impossibilities. Two equally valid norms may conflict; whether the law provides the tools to solve such a conflict is not a logical matter, but is dependent on contingent positive legal norms, also known as “metarules” such as Lex posterior. However, Kelsen did not want to cut the link between normative conflicts and invalidity (or non-validity). He claimed that conflicts are solved through derogation. This is the claim the present paper intends to analyse and ultimately refute. I then go on to introduce a new conception of metarules conceived as norms of applicability, with no special bearing on the conflicting norm’s validity.

Hasen on Direct Democracy & COVID-19

Richard L. Hasen (University of California, Irvine School of Law) has posted Direct Democracy Denied: The Right to Initiative in a Pandemic (University of Chicago Law Review Online (Forthcoming 2020)) on SSRN.  Here is the abstract:

Putting aside the Supreme Court’s controversial decision in Republican National Committee v. Democratic National Committee, the case over extending the date for receipt of absentee ballots in the April 2020 Wisconsin primary, courts so far have done a fairly good job protecting voting rights during the COVID-19 pandemic. From easing candidate and party signature requirements for ballot access, to temporarily eliminating witness or notarization requirements for casting an absentee ballot, to interpreting the excuse provisions in for-cause absentee ballot laws to cover voters without coronavirus immunity who fear voting in person, courts have recognized that election laws that ordinarily do not burden voters can become burdensome in a pandemic. Courts have interpreted such laws to avoid disenfranchisement, and sometimes temporarily suspended or altered them.

That welcome thumb on the scale favoring voters, however, has not extended uniformly to claims for the easing of signature gathering rules by ballot measure proponents. In three of four cases I examine, courts have rejected the demands of initiative proponents to ease requirements to qualify a measure for the ballot, such as allowing electronic instead of “wet” (in person) signatures, and easing witness requirements, total number of signatures required, or geographic requirements for signature collection. In just one case, Thompson v. DeWine, a federal district court ordered Ohio to alter its procedures for qualifying proposed measures for the ballot, including allowing the acceptance of electronic signatures. The decision may or may not survive an appeal in the Sixth Circuit.

In this short analysis, I argue that some of the reasons courts and states have offered against easing ballot measure qualification requirements during a pandemic are weak, and that the district court in Thompson was right to see that normal ballot qualification rules can impose a severe First Amendment burden on direct democracy proponents under pandemic conditions. The problem, as illustrated by the Thompson case, is fashioning appropriate relief consistent with principles of federalism and separation of powers. It is difficult to craft a remedy would put the plaintiffs in the position they would have been in had there been no pandemic and that does not usurp the state’s general role in enforcing its election rules or undermine sound principles of election administration and fairness.

Recommended.

Nathenson on the Political Foundations of Information Regulation

Ira Steven Nathenson (St. Thomas University School of Law) has posted The Procedural Foundations of I̶n̶t̶e̶l̶l̶e̶c̶t̶u̶a̶l̶ ̶P̶r̶o̶p̶e̶r̶t̶y̶ Information Regulation (Originally published in 24 Lewis & Clark Law Review 109 (2020), Forthcoming reprint in 2020 Intellectual Property Law Review (Thomson Reuters)) on SSRN.  Here is the abstract:

In the academy, legal scholarship on intellectual property, or “IP,” abounds, most of it focusing on the substance of IP. Far less, however, is written about the procedural aspects of IP. This Article focuses on the often-ignored procedural foundations of IP and suggests—at a minimum—that procedure so thoroughly pervades IP that IP’s true foundations might be in procedure rather than substance. Considering “IP as procedure” may further allow us to recognize that IP procedures may need to be reconceptualized within a broader field of information regulation procedures.

Note: Article selected as one of best IP articles of past year, for reprint in 2020 volume of Intellectual Property Law Review (Thomson Reuters).

Very interesting and recommended.

Davis & Martinez on Compliance & Anti-Corruption Law

Kevin E. Davis and Veronica Root Martinez (New York University School of Law and Notre Dame Law School) have posted Compliance with Anti-Corruption Law (in D. Daniel Sokol and Benjamin van Rooij eds., Cambridge Handbook of Compliance (Cambridge University Press, forthcoming)) on SSRN.  Here is the abstract:

This chapter focuses on private firms’ compliance with norms concerning transnational bribery. It begins with an overview of the regulatory context and obstacles to effective enforcement norms against transnational bribery. It then reviews how compliance is defined, how it ought to be defined, and obstacles to the achievement of optimal compliance. Finally, it ends by focusing on the next steps forward in this space: (1) greater information sharing from private firms to outsiders in order to better analyze and evaluate the current efficacy of compliance programs targeting anti-bribery, and (2) increased co-ordination between enforcement agencies on the state and global level to better tackle transnational bribery.

Neo on "Natural Law and the Nature of Law" by Crowe

Joshua Neoh (Australian National University) has posted Political Natural Law ((2019) 44 Australian Journal of Legal Philosophy 116) on SSRN.  Here is the abstract:

The précis of Jonathan Crowe’s latest book, 'Natural Law and the Nature of Law', claims that "this book provides the first systematic, book-length defence of natural law ideas in ethics, politics and jurisprudence since John Finnis’s influential 'Natural Law and Natural Rights’." As a sign of its richness, there are many aspects of the book that I could focus on in this essay, but I will just focus on one question, which is a fundamental one for the natural law position: where do basic goods come from? Part I will begin with Finnis’s answer to this question, and Crowe’s critique of Finnis on this point. Part II will analyse Crowe’s alternative answer to the question. Part III will endorse Crowe’s alternative answer, albeit with a friendly addendum.

Link to the book in the abstract.

Simon-Kerr on Demeanor, Credibility, & Masks

Julia Ann Simon-Kerr (University of Connecticut - School of Law) has posted Unmasking Demeanor on SSRN.  Here is the abstract:

Demeanor is seen as a critical tool for assessing credibility in U.S. courtrooms. From the Confrontation Clause to the Immigration and Nationality Act to the Federal Rules of Civil Procedure to the common law of credibility, the U.S. legal system gives priority and deference to assessing demeanor in the courtroom. Evidence law instructs that we must see a witness’s whole face in order to effectively “read” demeanor. Yet, a growing number of jurisdictions will require all participants in the courtroom to wear masks covering the nose, mouth and chin in order to prevent the spread of COVID-19. This essay canvasses the legal impediments to mask-wearing by witnesses. It argues that these legal obstacles are surmountable, and that this mask-wearing moment offers a unique opportunity to reassess the role of demeanor in credibility assessments. Focusing on demeanor forces witnesses to perform credibility, a performance that does not necessarily bring us closer to the truth.

Very interesting and recommended.