Legal Theory Blog

Kuntz on Transnational Fiduciary Law

Thilo Kuntz (Bucerius Law School) has posted Transnational Fiduciary Law: Spaces and Elements (4 UC Irvine Journal of International, Transnational, and Comparative Law __ (2020)) on SSRN.  Here is the abstract:

In recent years, fiduciary law has increasingly moved to the center of scholarly attention in the common-law world. Even a cursory review shows ample evidence of the importance of fiduciary-related norms; not only both in common-law and civil-law jurisdictions, but also beyond the nation state. Although civil-law countries have no tradition of the trust as a legal institution, courts and scholars alike coin relationships based on some kind of personal or professional trust “fiduciary”. Additionally, the trust as a legal institution is gaining ground in civil-law countries, either following a national recognition of the Hague Trust Convention (e.g., Italy, the Netherlands) or because they have introduced trust legislation (Japan and other countries in East Asia). A number of more sector-specific rules and regulations issued by institutions and initiatives such as the OECD Principles of Corporate Governance and the UN report on “Fiduciary Duty for the 21st Century” are shaping legal norms and legislation.

In other areas of the law with regulations and rules spreading beyond the nation state, scholars have been trying to spell out a concept of “transnational law”, determined to embrace the notion of “something being there” which doesn’t quite fit the bill of the traditional dichotomy of national law or international law. Given the phenomena described above, the question driving this paper is subsequently: Is there such a thing as transnational fiduciary law? Answering this question and mapping a research agenda proves to be a thorny issue, however. Not only is fiduciary law itself “elusive”. The same is true for transnational law and transnational legal theory. Methodologically, this makes thinking about transnational fiduciary law a daunting task.

Grappling with all these issues, this paper aims to make a twofold contribution: First and foremost, it establishes transnational fiduciary law as a field, existing at the intersection of transnational law and fiduciary law. Second, it expands both transnational law and fiduciary law by establishing new perspectives on both fields. It explores how transnational law may evolve out of national norms. Additionally, the paper shows the possibility of crossing the common law-civil law divide in fiduciary law and demonstrates that, compared to the traditional common-law view, the fiduciary duty of loyalty may develop different kinds of distinctiveness in transnational settings. It builds on two main examples: Horizontal transnational ordering of the trust in East Asia and vertical ordering of fiduciary law with respect to standards and principles concerning environmental, social and governance (ESG) issues.

Black on Educational Gerrymandering

Derek W. Black (University of South Carolina - School of Law) has posted Educational Gerrymandering: Money, Motives, and Constitutional Rights (New York University Law Review, Vol. 94, 2019) on SSRN.  Here is the abstract:

Public school funding plummeted following the Great Recession and failed to recover over the next decade, prompting strikes and protests across the nation. Courts did almost nothing to stop the decline. While a majority of state supreme courts recognize a constitutional right to an adequate or equal education, they increasingly struggle to enforce the right. That right could be approaching a tipping point. Either it evolves, or risks becoming irrelevant.

In the past, courts have focused almost exclusively on the adequacy and equity of funding for at-risk students, demanding that states provide more resources. Courts have failed to ask the equally important question of why states refuse to provide the necessary resources. As a result, states have never stopped engaging in the behavior that leads to the funding failures in the first place.

This Article argues that states refuse to fully fund low-income students’ education because they have ulterior aims and biases — maintaining privilege for suburban schools, lowering taxes for wealthy individuals, and not “wasting” money on low-income kids. States go to extraordinary lengths to manipulate school funding formulas to achieve these ends. Thus, the various policies that produce inequality and inadequacy are not just benign state failures; they are intentional efforts to gerrymander educational opportunity. Understood this way, school funding manipulations violate federal equal protection and state constitutional rights to education. Reframing school funding failures as gerrymandering can both create a much-needed federal check on educational inequality and reinvigorate the enforcement of state constitutional rights to education.

Serrano on Ancestral Classifications & Reparative Justice

Susan K. Serrano (University of Hawaii - William S. Richardson School of Law) has posted A Reparative Justice Approach to Assessing Ancestral Classifications Aimed at Colonization's Harms (William & Mary Bill of Rights Journal, Vol. 27, 2018) on SSRN.  Here is the abstract:

“Everybody should get to vote, no matter what color your skin is.” In 2018, this seductive phrase refers not to African American voting rights in the U.S. South, but to a white male’s attempt to vote in a political status plebiscite reserved for “native inhabitants of Guam.” Davis v. Guam—a little-known “reverse discrimination” lawsuit—threatens to undermine a politically-crafted remedial law aimed at rectifying the harms of colonization to an Indigenous people. Using Davis as a focal point, and situating it in the larger movement to dismantle rights for people of color and Native peoples nationwide, the article offers an approach for assessing ancestry-based classifications seeking to repair the damage of historical injustice. This approach rests on two important theoretical foundations: international scholar Albert Memmi’s groundbreaking theory of how race and ancestry are used to justify colonization or political aggression, and the concept of reparative justice, rooted in the international human rights principle of self-determination. Together, these theories point to a more appropriate method for assessing ancestry-based classifications that incorporates the context of colonization and the resulting damage to the Native group and, perhaps most importantly, takes account of that group’s use of ancestry as a restorative response to colonialism’s devastation.

Roznai on Democratic Erosion & Judicial Review

Yaniv Roznai (Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law) has posted Who will Save the Redheads? Towards an Anti-Bully Theory of Judicial Review and Protection of Democracy on SSRN.  Here is the abstract:

This article analyses three main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and non-believers that courts can save democracy; and the tension between strategic and legal considerations that courts consider when facing pressure from political branches. At its core, the article argues that courts have an important role in protecting democracy against constitutional reforms eroding the constitutional order, and that courts should stand firm against pressure and do their best to protect democracy.

Robson on Sexual Misconduct & Impeachment

Ruthann Robson (CUNY School of Law) has posted Sexing the Mueller Report (Stetson Law Review, Forthcoming) on SSRN.  Here is the abstract:

A popular criticism of the Mueller Report was that it was simply not sufficiently sexy: where were the scandals and salacious tidbits that would grab our attention?

In short, the Mueller Report was no Starr Report.

Yet sexual indiscretions, misconduct, and deceits percolate throughout the extensive 2019 Report on The Investigation into Russian Interference in the 2016 Presidential Election — known as the Mueller Report. While Trump’s sexual behaviors are certainly not the focus of the report, the report desexualized Trump’s conduct to such an extent that it obscured important matters meriting further exploration. This Article aims to highlight and expand on the sexual issues raised by the report and contends that the sexual circumstances are not merely titillating distractions, but present important contexts regarding cooperation with foreign powers and obstruction of justice.

There are three main areas of concern. First, this Article discusses the Access Hollywood tape, on which Trump is heard discussing his sexual misconduct toward women, and which the Mueller Report considered briefly related to coordination with foreign actors during the campaign. Second, the allegations of a Moscow sex tape, which the Mueller Report considered in relation to obstruction of justice, but which might be relevant more broadly. Third and most centrally, this Article examines Trump’s alleged consensual sexual relationships with two women, Karen McDougal and Stormy Daniels, and explores how Trump’s personal attorney, Michael Cohen, came to plead guilty to campaign finance violations involving the payments to both women.

All of these sexual matters raised but not resolved in the Mueller Report are relevant to the possibility of impeachment proceedings; they are not as peripheral as presently presumed and should be considered as a matter of impeachment.

Iwry on the Meaning of Life

Jonathan Iwry (Harvard Law School) has posted Toward a Psychological Theory of Meaning in Life on SSRN.  Here is the abstract:

The concept of meaning in life remains an elusive yet fundamental aspect of human well-being. The lack of a sufficiently analytical definition or explanatory theory of meaning poses a challenge for empirical efforts to study and measure well-being, especially those that seek to conceptualize it based predominantly on mood and pleasure. This paper seeks to take a first step toward defining and explaining meaning while distinguishing it from hedonic pleasure. Various aspects of meaning are considered, including the difference between meaning as a form of positive emotion and as a form of motivation. A preliminary effort is made to construct an organizational framework for meaning, focusing on (i) connection to a long-term concept of self, (ii) emotional richness, and (iii) realization of deep personal values. This framework points to an account of meaningful experiences as emotionally intense states in which people reflect on and tap into values central to their personal identity. The paper explores possibilities for future directions in measuring well-being, as well as their limitations. Treating meaning as a distinct component of well-being that is irreducible to hedonic pleasure could help explain certain observed findings in behavioral economics and potentially inform future initiatives in public policy.

Feinberg on the Marital Presumption & Same-Sex Couples

Jessica Feinberg (Mercer University - Walter F. George School of Law) has posted Restructuring Rebuttal of the Marital Presumption for the Modern Era (Minnesota Law Review, Vol. 104, No. 1, 2019) on SSRN.  Here is the abstract:

The longstanding marital presumption of paternity, under which a husband is presumed to be the legal father of any child born to or conceived by his wife during the marriage, has reached a critical juncture. Pursuant to the Supreme Court’s mandate that states provide marriage to same-sex couples on the same terms accorded to different-sex couples, states will need to either expand the marital presumption so that it encompasses both the different- and same-sex spouses of individuals who give birth or abolish the presumption entirely. It is unlikely that many states will choose the latter option. The marital presumption has, since the nation’s inception, played a core role in parentage law, and it remains the most common way of establishing an individual as a child’s second legal parent. As a result, it is probable that in the near future there will be a number of states that seek to extend their marital presumptions to same-sex spouses. In doing so, these states will need to grapple with how rebuttal of the marital presumption, which has traditionally focused on the lack of genetic connection between the spouse of the individual who gave birth and the child, will now be structured given that in most cases involving same-sex couples the spouse will not be genetically connected to the child. In reconceptualizing and restructuring their marital presumptions, states will be forced to reevaluate both what considerations are most important in identifying the individuals entitled to recognition as a child’s legal parents and what primary objectives a marital presumption should seek to promote. The decisions that states make in this process are of great importance and will likely play a significant role in the modern development of the law governing the establishment of parentage. After identifying the various objectives that states may seek to further through a modern marital presumption, this Article sets forth a comprehensive analysis of the approaches that states can take to restructuring their marital presumptions in order to effectively promote such objectives.

Mikhail on "The Second Creation" by Gienapp

John Mikhail (Georgetown University Law Center) has posted Fixing Implied Constitutional Powers in the Founding Era (Constitutional Commentary (Forthcoming)) on SSRN.  Here is the abstract:

"The Second Creation" by Jonathan Gienapp is a marvelous study of the earliest debates over constitutional language, meaning, and interpretation. In virtually every aspect, the book is brilliantly conceived, meticulously researched, and masterfully executed. This essay agrees with Gienapp’s key insight that, in many respects, the Constitution was obscure, unfinished, and uncertain in 1789, and we can learn a great deal by paying closer attention to how constitutional debates actually unfolded in the first years after its adoption. A close encounter with that history reveals that constitutional meanings were ambiguous, unstable, and “up for grabs” right from the start. Nonetheless, the essay challenges Gienapp’s thesis to some extent by examining the earliest congressional debates over implied powers and offering a different interpretation of these events than he does, which focuses less on issues of language, meaning, and ontology, and more on the complex interplay of economic interests, regional alignments, and political power. By setting aside the dizzying swirl of semantics and considering how members of Congress actually voted on the removal debate, amendments, the bank bill, and other early controversies, one can identify some remarkably consistent through lines that render the entire sequence of events, and the talking points of politicians, less inchoate and more intelligible. As with so much else that occurred in the founding era, two key factors explaining what transpired are land and slavery.

I've added a link to Gienapp's important book to the abstract.  Mikhail's essay is highly recommended.

Ellis on Social Nature & Environmental Governance

Jaye Ellis (McGill University - Faculty of Law) has posted 'Social Nature:' Political Economy, Science, and Law in the Anthropocene (Forthcoming in Poul F. Kjaer (ed.), The Law of Political Economy: Transformation in the Function of Law (Cambridge: Cambridge University Press, 2020)) on SSRN.  Here is the abstract:

Data-driven approaches to environmental governance, such as those promoted by the planetary boundaries concept, permit the rapid circulation of actionable information on environmental performance through transnational networks operating within the political economy. Some of the most promising approaches emerge from structural coupling between science and economics, largely bypassing law and politics and operating in cognitive rather than normative terms. Yet a purely cognitive global ecological law, offering no possibility of stabilisation of expectations, would ultimately be ineffective. I argue that a role for law emerges if the normative dimensions of the condensation of complex scientific insights into metrics with a high degree of resonance in the political economy are taken seriously. Law must do more than transduce scientific data into metrics as though scientists have unmediated knowledge of Earth systems. Rather, the normative dimensions of scientific knowledge-production, notably in processes of judging, arguing, and persuading, create opportunities for the development of norms governing the processes of condensing and translating scientific knowledge of ecological risk into signals of economic risk. As Bruno Latour argues, responses to ecological crisis ought not to be conceived of as a new form of jus naturalis, containing norms and standards dictated directly to humankind by the non-human world; instead, what is required is a jus gentium that accepts the unknowability of the non-human world, and the mediated – and therefore highly normative – channels through which knowledge of that world is derived.

Holden, Baker, & Edelman on Sexual Harassment in Electronic Sports

John T. Holden (Oklahoma State University), Thomas Baker (University of Georgia), Marc Edelman (City University of New York - Baruch College, Zicklin School of Business; Fordham University School of Law; Wharton School, University of Pennsylvania) have posted The #E-Too Movement: Fighting Back Against Sexual Harassment in Electronic Sports (Arizona State Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Competitive video gaming or esports has captured the attention of hundreds of millions of people across the globe. With that attention has come billions of dollars worth of investment and promotion. But, it has also exposed an underlying toxic environment that features widespread sexual and gender harassment. This pervasive culture of harassment threatens to derail the esports industry, and mars the promise of gender equity in one of the few competitive “sports” where physical strength, agility and body size do not dictate success. In this Article we examine the rise of competitive gaming, and provide an in-depth analysis of the pervasive issue of harassment that permeates esports. We then propose a series of tangible reforms that would hold harassers and their corporate accomplices accountable for their harassing behavior.