Legal Theory Blog

Legal Theory Bookworm: "Legitimation by Constitution" by Michelman & Ferrara

The Legal Theory Bookworm recommends Legitimation by Constitution: A Dialogue on Political Liberalism by Frank Michelman & Alessandro Ferrara.  Here is a description:

"Legitimation by Constitution" is the phrase, coined by distinguished authors Frank Michelman and Alessandro Ferrara, for a key idea in Rawlsian political liberalism of a reliance on a dualist form of democracy-a subjection of ground-level lawmaking to the constraints of a higher-law constitution that most citizens could find acceptable as a framework for their politics-as a response to the problem of maintaining a liberally just, stable, and oppression-free democratic government in conditions of pluralist visionary conflict.

Legitimation by Constitution recalls, collects, and combines a series of exchanges over the years between Michelman and Ferrara, inspired by Rawls' encapsulation of this conception in his proposed liberal principle of legitimacy. From a shared standpoint of sympathetic identification with the political-liberal statement of the problem, for which legitimation by constitution is proposed as a solution, these exchanges consider the perceived difficulties arguably standing in the way of this proposal's fulfillment on terms consistent with political liberalism's defining ideas about political justification. The authors discuss the mysteries of a democratic constituent power; the tensions between government-by-the-people and government-by-consent; the challenges posed to concretization by judicial authorities of national constitutional law; and the magnification of these tensions and challenges under the lenses of ambition towards transnational legal ordering. These discussions engage with other leading contemporary theorists of liberal-democratic constitutionalism including Bruce Ackerman, Ronald Dworkin, and Jürgen Habermas.

Wow!!!

Download of the Week: "The Original Meaning of Enumerated Powers" by Coan & Schwartz

The Download of the Week is The Original Meaning of Enumerated Powers by Andrew Coan & David S. Schwartz.  Here is the abstract:

The powers of Congress are limited to those enumerated in the Constitution and must not be construed as the equivalent of a general police power. This doctrine of “enumerationism” is the linchpin of a multi-decade conservative assault on the broad conception of federal powers recognized by the Supreme Court since 1937. The loudest champions of enumerationism are originalists. But even critics of originalism generally accept that enumerationism is rooted in the original public meaning of the Constitution. Indeed, it is difficult to think of a stronger—or broader—consensus on an important question of original meaning.

This Article challenges that consensus. Despite its wide acceptance, the originalist case for enumerationism is remarkably weak and undertheorized. At the same time, enumerationists have largely ignored strong arguments that the original public meaning of enumeration was indeterminate. The constitutional text nowhere says that the federal government is limited to its enumerated powers. To the contrary, several provisions—the General Welfare Clause, the Necessary and Proper Clause, and the Preamble—could plausibly be read to support a congressional power to address all national problems. The historical context of the founding era is similarly ambiguous. Many readers certainly understood the Constitution to presuppose some form of enumerationism, but many did not.

If these arguments are correct, enumerationism falls into the “construction zone,” where history, judicial precedent, and other sources fill the gaps in original public meaning. It is history and precedent, not original meaning, that supply the strongest arguments for enumerationism. Yet the history of enumerationism is complex and fraught with contestation. For most of that history, Congress has routinely legislated as if it possessed the power to address all national problems. The Supreme Court has generally followed suit, embracing enumerationism in theory while circumventing it in practice. A constitutional construction that followed this traditional approach would pose no substantial obstacle to any important federal legislation.

Highly recommended.  Download it while it's hot!

Bertoli, Laouénan, & Valette on Border Apprehensions & Discriminatory Federal Sentencing of Latino Citizens

Simone Bertoli (Université d'Auvergne - Clermont 1 - Centre d'Etudes et de Recherches sur le Developpement International (CERDI)), Morgane Laouénan (Catholic University of Louvain (UCL); IZA Institute of Labor Economics), & Jérôme Valette (Université Paris I Panthéon-Sorbonne - Centre d'Economie de la Sorbonne (CES)) have posted Border Apprehensions and Federal Sentencing of Hispanic Citizens in the United States on SSRN.  Here is the abstract:

We provide evidence that Hispanic citizens receive significantly longer sentences than non-Hispanic citizens in the Federal Criminal Justice System in the United States when a higher number of illegal aliens are apprehended along the southwest border. Apprehensions can increase the salience of Hispanic ethnic identity, which is associated with persistent negative stereotypes, and can also deteriorate attitudes toward Hispanics. We rule out concerns that apprehensions might be conveying legally relevant information to judges. Thus, we provide direct evidence for time-varying discrimination toward Hispanic defendants. Our estimated effect is only at play for defendants without a heavy previous criminal record.

Very interesting and recommended.

Park on Reproductive Health Care Data

Eunice Park (Western State College of Law) has posted Reproductive Health Care Data Free or For Sale: Post-Roe Surveillance and the 'Three Corners' of Privacy Legislation Needed (NYU Review of Law & Social Change, Forthcoming) on SSRN.  Here is the abstract:

Conditions will be harsher now for women than before Roe v. Wade for one key reason: we live in a surveillance state. While reproductive health care will continue to be a political hot button, one way to manage some of the fallout from Dobbs v. Jackson Women’s Health Organization is by placing over-due limits on state surveillance to protect the politically uncontroversial expectation of privacy for personal data. Specifically, measures are needed to protect the privacy of health care data, and, in particular, reproductive health care data. Currently, law enforcement can obtain such data not only through failings in existing legislation but also via the ample digital breadcrumbs that fall outside any regulatory construct, including data obtainable for “free” by subpoenas, orders, warrants, and geofence warrants; and data “for sale” by data brokers, including sensitive geolocation information and data from fertility apps.

Given the perfect storm of a potentially aggressive prosecutorial environment, the troves of readily accessible private digital information, and the panoply of inconsistent state solutions, this Article urges that federal legislation is needed to provide privacy safeguards for reproductive health care data that provides “three corners” of protection in the digital era. The first corner defines health care data to include a specific carve-out for reproductive health care data. The second corner provides the substantive curb of prohibiting data brokers from selling this reproductive health care data. The third corner adds a necessary procedural protection: because there is no other kind of health care data with the broad potential to subject a patient to criminalization, reproductive health care data that would not be obtainable without a warrant should not be admissible as evidence to criminalize the individual. Setting such a federal floor to limit law enforcement’s ability to mine private data for evidence of abortion, criminalize women, and, disproportionately, criminalize women of color, is more critical than ever in the surveillance state.

Boso on Religious Liberty and Discriminatory Intent

Luke A. Boso (University of San Francisco School of Law) has posted Religious Liberty, Discriminatory Intent, and the Status Quo Constitution on SSRN.  Here is the abstract:

The Supreme Court shocked the world at the end of its 2021-22 term by issuing landmark decisions ending constitutional protection for abortion rights, expanding gun rights, and significantly weakening what remained of the wall between church and state. The thread uniting these blockbuster cases is originalism — a backwards-looking theory of constitutional interpretation focused on founding-era meaning and intent. The Court has been clear that preserving the status quo and insulating the Constitution from change is originalism’s core function.

Originalism is not the only mechanism by which an increasingly conservative Court has sought to protect traditional social norms and hierarchies from disruption. This Article identifies the discriminatory intent doctrine as another useful tool for fortifying status quos. The Burger and Rehnquist Courts laid the contemporary foundation for discriminatory intent’s manipulation in the equal protection context, effectively shielding many racist and sexist legal structures from constitutional reproach.

Today, discriminatory intent rules are creating radical change in religious liberty jurisprudence. In free exercise claims, the Court has gone out of its way to infer even the possibility of discriminatory intent against Christians when the government seeks compliance with pandemic-era public health measures and LGBTQ-inclusive antidiscrimination laws. In establishment claims, the Court has seemingly abandoned longstanding intent rules prohibiting favoritism or hostility towards religion; instead, the sole relevant question is now whether majoritarian founding-era practices support the government’s religious involvement. Together, these shifting roles for discriminatory intent effectively protect conservative Christian interests from encroaching progressive change, leaving religious minorities and non-believers with diminished constitutional protection.

Redburn on the History of Cross-Dressing Bans

Kate Redburn (Columbia Law School; Yale University, Faculty of Arts & Sciences, Department of History) has posted Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86 (Redburn, K. (2023). Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963–86. Law and History Review, 1-45) on SSRN.  Here is the abstract:

Scholars are still unsure why American cities passed cross-dressing bans over the closing decades of the nineteenth century. By the 1960s, cities in every region of the United States had cross-dressing regulations, from major metropolitan centers to small cities and towns. They were used to criminalize gender non-conformity in many forms - for feminists, countercultural hippies, cross-dressers (or “transvestites”), and people we would now consider transgender. Starting in the late 1960s, however, criminal defendants began to topple cross-dressing bans.

The story of their success invites a re-assessment of the contemporary LGBT movement’s legal history. This article argues that a trans legal movement developed separately but in tandem with constitutional claims on behalf of gays and lesbians. In some cases, gender outlaws attempted to defend the right to cross-dress without asking courts to understand or adjudicate their gender. These efforts met with mixed success: courts began to recognize their constitutional rights, but litigation also limited which gender outlaws could qualify as trans legal subjects. Examining their legal strategies offers a window into the messy process of translating gender non-conforming experiences and subjectivities into something that courts could understand. Transgender had to be analytically separated from gay and lesbian in life and law before it could be reattached as a distinct minority group.

Jacoby on Mass Tort Bankruptcy

Melissa B. Jacoby (University of North Carolina School of Law) has posted Sorting Bugs and Features of Mass Tort Bankruptcy (Texas Law Review, Vol. 101, Forthcoming 2023) on SSRN.  Here is the abstract:

In 1997, after two years of study, the National Bankruptcy Review Commission recognized bankruptcy’s potential as a forum to address mass tort problems, but emphasized that Congress needed to do much more to ensure due process, address major risks of under-compensation and inconsistent compensation of future injured parties, and address uncertainty about the lawfulness of these cases. United States Supreme Court cases invalidating particular limited-fund class actions raised the stakes, casting doubt on certain bankruptcy practices.

Congress adopted neither the commission's proposals nor others on the topic. Mass tort bankruptcy practice continued without legislative clarifications or improvements, culminating in recent high-profile and controversial cases like Purdue Pharma, Boy Scouts of America, LTL (Johnson and Johnson's bankruptcy to cut off ovarian cancer and mesothelioma patients’ access to the civil justice system regarding talc-related claims) and Aearo Technologies (3M's bankruptcy that aspired to stop multidistrict litigation over allegedly faulty earplugs).

Revisiting earlier reform discussions helps reveal how much bugs rather than features drive these kinds of mass tort bankruptcies. Lawyers and defendants (and perhaps some plaintiffs lawyers) gravitate to bankruptcy to do extraordinary things that have weak statutory and constitutional support and are in tension with principles of due process, not to mention federalism and separation of powers. The design of mass tort bankruptcies also tends to blunt the effective operation of standard chapter 11 protections meant to empower individual creditors – tools that often are cited as making bankruptcy “better” for mass tort than other aggregate litigation fora. The analysis in this draft article invites skepticism about whether the system can credibly and constitutionally deliver the level of global resolution that debtors and their co-defendants demand.

Mirzazadeh on AI & Human Rights Violations

Iman Mirzazadeh (Stockholm University) has posted Artificial Intelligence (AI) and Violation of Human Rights on SSRN.  Here is the abstract:

Artificial Intelligence is an evolving science and technology. The positive impacts of AI are related to climate and environmental issues, such as intelligent transportation systems to minimize queuing and optimize routing and energy efficiency. AI in healthcare can change the traditional treatment to an intelligent version of the treatment. Besides, AI can help the healthcare system prevent and control diseases that threaten life by analyzing health data. Besides, NATO has used AI to increase the security and awareness of its members and coordinate an efficient cyber defence. On the other side, the adverse effects of AI should be assessed in the context of human rights. For instance, the dehumanization of collective and social life is one of the destructive effects of the application of digital technology. In addition, the lack of comprehensive supervision over AI automation is dangerous and challenging due to the abuse of data by Big Tech companies. The data transactions by brokers and exploitation of data for different purposes are other concerns in this regard. These transactions increase the misuse of data and reflect the vulnerability of individuals in cyberspace. For example, a data scientist showed that he could trace the route of well-known actors by deploying different data sets. Another data analyst showed that he could explore drivers and their passengers’ personal information by working on a taxi dataset.

Moreover, it is not clear how AI considers human rights and fundamental values of liberal society. There is a severe asymmetry in the arms of algorithms’ developers and the users who are their subjects. This asymmetric power arises from the unique ability of AI systems to collect massive data sets from users and analyze big data via cyberspace. This article discusses the role of states and their responsibilities to respect and protect human rights and fundamental freedoms concerning AI.

Albert on the Difficulty of Amending the U.S. Constitution

Richard Albert (University of Texas at Austin - School of Law; University of Texas at Austin - Department of Government; Yale University; University of Toronto - Faculty of Law; São Paulo Law School of Fundação Getulio Vargas FGV DIREITO SP; University of Ottawa - Faculty of Law; Universidad Externado de Colombia - Facultad de Derecho; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; Universidad de Especialidades Espíritu Santo; Airlangga University; Maharashtra National Law University Mumbai) has posted The World's Most Difficult Constitution to Amend? (110 California Law Review 2005 (2022)) on SSRN.  Here is the abstract:

America’s frozen constitution could well be the world’s most difficult to amend. Far from being a badge of honor, the distinction of topping the global charts on constitutional rigidity is cause for alarm. Ancient and virtually impervious to amendment, the United States Constitution has withstood all modern efforts to renovate its outdated architecture on elections, federalism, rights, and beyond. In the last half-century alone, democratic reformers have proposed thousands of amendments to make the Constitution more equal, more inclusive, and more just. But each proposal has failed, few ever making it beyond the point of initiation. The current dynamics of American constitutional politics suggest no reason to expect anything different in the near- to mid-term. What does this mean for the future of democracy in the United States? In this Essay, I examine the sources of amendment difficulty in the United States and I explain why all proposals to amend the Constitution are for now doomed to failure. I close by tracing an alternative path proposed in the founding era that could have saved the Constitution from its present state of unamendability.

Highly recommended.

Levine & Sarnoff on Compelling Trade Secret Transfers

David S. Levine (Elon University School of Law; Stanford University - Center for Internet and Society) & Joshua D. Sarnoff (DePaul University College of Law) have posted Compelling Trade Secret Transfers (Hastings Law Journal, Forthcoming) on SSRN.  Here is the abstract:

The unprecedented COVID-19 virus has brought to the forefront many challenges associated with exclusive rights in information, data, and know-how, all of which may constitute protected trade secrets. While patents have received more attention, trade secret information has limited the ability to perform research, develop, test, gain regulatory approval for, manufacture, and distribute globally and at sufficient scale and affordable prices the needed vaccines, therapeutics, diagnostics, medical devices, and personal protective equipment. Voluntary licensing efforts have proven inadequate to supply pandemic needs. Thus, compelling the transfer or licensing of trade secrets is needed to properly address COVID-19, but more importantly, to address future pandemics and other serious global problems such as climate change.

This Article explains the nature of trade secrets and their protection. It then describes the failures in COVID-19 responses resulting from trade secrets that were not voluntarily licensed. It explains why patent law disclosures have been inadequate to assure competitive global research, development, and production.

Given the need for compelled trade secret transfers, the Article surveys the relevant international intellectual property law treaties addressing trade secrets. It demonstrates that, consistent with international law obligations, governments are free to compel trade secret transfers. Further, governments may not be obliged to award compensation for such transfers when regulating to address public health. Given this national freedom to act, the Article then provides numerous examples of existing United States, European, and some other authorities that have been or could be used to compel the transfer or licensing of trade secrets. It also notes the potential to adopt more explicit legislation authorizing compelled or induced behaviors. This survey of authorities illustrates that compelling trade secret transfers or licensing should be unobjectionable whenever there is a need to protect lives, health, or the economy. Accordingly, the Article provides a first critical step toward rethinking the nature of international trade secret protections, and it seeks to develop the political will for governments to protect the global public from the harms that trade secret rights can generate.