Legal Theory Blog

Margalit on Legal Parentage

Yehezkel Margalit (Netanya Academic College; New York University School of Law) has posted Determining Legal Parentage - Between Family Law and Contract Law (Cambridge University Press, 2019) on SSRN.  Here is the abstract:

The last few decades have witnessed dramatic changes affecting the institutions of family and parenthood. If, in the past, the classic family was defined sociologically as a pair of heterosexual parents living together under one roof along with their children, different sociological changes have led to a rapid and extreme transformation in the definitions of family, marital relations, parenthood, and the relationship between parents and children. Dr. Yehezkel Margalit explores whether and to what extent there is room, legally and ethically, for the use of modern contractual devices and doctrines to privately regulate the establishment of legal parentage. This book offers intentional parenthood as the most appropriate and flexible normative doctrine for resolving the dilemmas which have surfaced in the field of determining legal parentage. By using the certainty of contract law, determining the legal status of parenthood will be seen as the best method to sort out ambiguities and assure both parental and children rights.

Fields on Policing Arizona

Shawn Fields (Campbell University - Norman Adrian Wiggins School of Law) has posted Guns, Knives, and Swords: Policing a Heavily Armed Arizona (Arizona State Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Arizona is widely recognized as the most permissive state in the country for public weapons possession. In 2010, then-Governor Jan Brewer famously removed all permitting requirements for public concealed carry of firearms, making Arizona only the third “constitutional carry” state in the nation. Also in 2010, and to much less fanfare, Arizona became the first state to prohibit local governments from enacting any regulations restricting the sale or possession of knives of any kind, including swords, maces, and other exotic blades. Today, Arizona remains the only state in the country with virtually no restrictions on the public concealed carry of any type of bladed weapon. In part owing to this deregulatory environment, as many as twelve percent of all Arizonans report publicly carrying a concealed deadly weapon on their person or in their vehicle.

But these laws have also created confusion for Arizona police officers charged with protecting the public. For over a century, Arizona officers could justifiably initiate an investigatory stop of a publicly armed individual based on little more than a reasonable suspicion that such possession was unlawful. But in a state where a significant percentage of the population lawfully possesses weapons in public, Arizona police must now discern which lethal weapons carriers are law abiding citizens and which ones pose true criminal threats to the public. Increasing the confusion for Arizona law enforcement, the Ninth Circuit and Arizona Supreme Court have recently authored conflicting opinions regarding whether a lawfully stopped individual can be frisked solely because he is armed or whether he must also give the officer reasonable suspicion that he is “presently dangerous.”

This Article examines three distinct aspects of Arizona law and policy as it relates to this growing confusion. First, it challenges the efficacy and constitutionality of Arizona’s “duty toinform” law, which seeks to clarify this reasonable suspicion quandary by requiring concealed weapons possessors to affirmatively disclose the presence of weapons to police officers when asked. As a matter of federal constitutional law, officers can only require citizens to cooperate with inquiries if reasonable suspicion already existed to justify the stop. In contrast, by requiring citizens to voluntarily disclose information to officers, “duty to inform” laws arguably place these encounters with law enforcement outside the traditional Terry v. Ohio stop context, thus rendering the encounter consensual and failing to solve the reasonable suspicion issue.

Second, the Article considers the competing case law in Arizona regarding the “armed and dangerous” prong of stop and frisk for lawful gun carriers. The Arizona Supreme Court in State v. Serna held that lawful weapons carriers cannot automatically be considered dangerous for purposes of a protective frisk. The Ninth Circuit, in United States v. Orman, held otherwise, and
focused on characteristics of gun ownership not explicitly considered by the Arizona Supreme Court. But both cases involved consensual encounters and not involuntary investigative stops. The Article surveys case law from other jurisdictions to offer a balanced approach to frisks of lawfully stopped, lawfully armed Arizonans.

Third, the Article highlights policy considerations relevant to resolving these competing perspectives, as well as the competing interests of Arizonans in exercising their statutory possession rights and of officers in protecting themselves and others when faced with a public weapon carrier. In doing so, the Article explores for the first time in scholarly literature what, if any, parallels can be drawn from the experience of officers stopping and frisking lawful gun carriers and officers stopping and frisking lawful knife carriers.

Williams on Multidistrict LItigation

Margaret S. Williams (Federal Judicial Center) has posted The Effect of Multidistrict Litigation on the Federal Judiciary over the Past 50 Years on SSRN.  Here is the abstract:

Looking over the first 50 years of decisions by the Judicial Panel on Multidistrict Litigation (Panel), this article considers how the work of the Panel has shaped the nature of the dockets of federal courts across the country as well as the individual judges serving on them. Beginning with the proceedings they create, and the hundreds of thousands of cases reassigned by their decision making, this article considers how the type and size of the proceedings have changed and what these changes mean for civil litigation generally. After looking at the number and size of proceedings created, the analysis then moves to a look at the districts assigned these proceedings, considering both the number of proceedings and the number of cases moved across the country. Most importantly, this article assesses the districts (transferee and transferor) most affected by the decisions of the Panel. Lastly, the article examines the judges who have been assigned these proceedings—how many they are assigned, how many cases they manage, and how they have changed as the judiciary evolved over this 50-year period.

Highly recommended.

Schauer on the Interpretation-Construction Distinction

Frederick Schauer (University of Virginia School of Law) has posted A Critical Examination of the Distinction between Interpretation and Construction on SSRN.  Here is the abstract:

The distinction between interpretation and construction, with its roots in the law and theory of contracts, has become a central theme in contemporary debates about constitutional theory. According to the distinction, advanced and elaborated by Lawrence Solum, Keith Whittington and many others, interpretation is the process of locating the linguistic meaning of an authoritative text in a statute, in the Constitution, or in any other authoritative legal item. But at the heart of the distinction is the idea that identifying the linguistic meaning of a legal text does not answer the question of how that text should be applied to specific facts and specific legal controversies. This is construction, so it is said, and it necessarily goes beyond the process of interpretation.

Although the distinction is a valuable precaution against those who would seek to claim that the application of law is entirely or mostly a question of meaning, it runs into trouble when it confronts the existence of technical legal language in the law. Interpreting such language, especially when it is constitutive or evaluative, requires recourse to legal values, legal goals, and the purposes of legal institutions, but in doing so it requires recourse to law at interpretation stage. As a result, the basic insight of the distinction between interpretation and construction – that semantic content and legal values are different, and that law enters the process only at the construction stage – is of limited value when the language at issue is legally technical.

Highly recommended.

Evans & Wolf on the National Academies of Science, Engineering, and Medicine Recommendations on Data Privacy Rights

Barbara J. Evans (University of Houston Law Center) & Susan M. Wolf (University of Minnesota Law School) has posted A Faustian Bargain That Undermines Research Participants' Privacy Rights and Return of Results (Forthcoming in Florida Law Review, Vol. 71, 2019) on SSRN.  Here is the abstract:

A 2018 committee report published by the highly respected National Academies of Science, Engineering, and Medicine issued recommendations that would strip research participants of crucial data privacy rights and discard decades of carefully deliberated consensus guidelines for the ethical return of results and data from research. This article traces these disturbing recommendations to three root causes: (1) a statement of task that blocked careful and impartial analysis of a disputed legal matter central to the report, (2) a piecemeal legal analysis that omitted relevant strands of law, and (3) the inappropriate conflation of two distinct concepts — the return of individual research results (the stated subject of the report) and privacy-enabling individual access rights, which have a nearly fifty-year legal history long predating the modern debate about return of results. The report’s recommendations would erect new barriers to the return of results and, simultaneously, dial back a core data privacy right that Americans — including many research participants — currently enjoy. We urge extreme caution in implementing this report’s flawed recommendations. Congress has elevated the right to see one’s personal information to the status of a civil right in many different data environments. Diminishing individual access in the research context erodes its status as a right more broadly.

Roberts on a Tort of Genetic Conversion

Jessica L. Roberts (University of Houston Law Center) has posted Genetic Conversion on SSRN.  Here is the abstract:

Traditionally, courts and legal scholars alike have rejected conversion claims related to DNA. Justifications for dismissing these causes of action include fears that they could hinder scientific research or commodify the human body. Judges and academics reason that—even absent actionable claims for genetic conversion—plaintiffs have access to adequate legal protections in the form of breach of fiduciary duty, lack of informed consent, invasion of privacy, or unjust enrichment. However, upon closer inspection, these claims reveal themselves as inadequate, particularly in the context of consumer genetics. People who purchase their genetic tests directly are not usually in the kinds of fiduciary or research relationships necessary to trigger legal duties. This Essay proposes that a right to genetic conversion could provide consumers with appropriate relief. Far from stifling research or disaggregating the self, genetic conversion is a modest solution for the ownership disputes that arise in the growing field of consumer genetics.

Bloch-Wehba on Access to Algorithms

Hannah Bloch-Wehba (Drexel University Thomas R. Kline School of Law) has posted Access to Algorithms (Fordham Law Review, Forthcoming) on SSRN.  Here is the abstract:

Federal, state, and local governments increasingly depend on automated systems — often procured from the private sector — to make key decisions about civil rights and civil liberties. When individuals affected by these decisions seek access to information about the algorithmic methodologies that produced them, governments frequently assert that this information is proprietary and cannot be disclosed.

Recognizing that opaque algorithmic governance poses a threat to civil rights and liberties, scholars have called for a renewed focus on transparency and accountability for automated decision making. But scholars have neglected a critical avenue for promoting public accountability and transparency for automated decision making: the law of access to government records and proceedings. This Article fills this gap in the literature, recognizing that the Freedom of Information Act, its state equivalents, and the First Amendment provide unappreciated legal support for algorithmic transparency.

The law of access performs three critical functions in promoting algorithmic accountability and transparency. First, by enabling any individual to challenge algorithmic opacity in government records and proceedings, the law of access can relieve some of the burden otherwise borne by parties who are often poor and under-resourced. Second, access law calls into question government’s procurement of algorithmic decision making technologies from private vendors, subject to contracts that include sweeping protections for trade secrets and intellectual property rights. Finally, the law of access can promote an urgently needed public debate on algorithmic governance in the public sector.

Wright on Tiers of Judicial Scrutiny

R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Wiping Away the Tiers of Judicial Scrutiny (St. John's Law Review, Forthcoming) on SSRN.  Here is the abstract:

Throughout much of constitutional law and beyond, courts often decide cases by applying some form of tiered or multi-level judicial scrutiny. The prominence of tiered scrutiny conceals, however, a number of important problems. The undue complications, manipulability, commonly mistaken emphases, and other costs of tiered scrutiny are by now conspicuous and remarkable. Tiered scrutiny review has by now decayed to the point at which its use is no longer justifiable. Among other basic problems, tiered scrutiny now offers only the appearance, but not the reality, of reasonable efficiency and of appropriate constraint on judicial subjectivity and discretion. The practice of tiered scrutiny today clearly undermines several basic rule of law principles. This Article suggests that a simpler, more rule of law-friendly substitute for tiered scrutiny is realistically available, and that such a substitute can also encourage more pragmatically effective law-making.

Dorfman on "Fear of the Disability Con" & Perceptions of Deservingness

Doron Dorfman (Stanford University, Stanford Law School) has posted [Un]Usual Suspects: Deservingness, Scarcity, and Disability Rights (Forthcoming UC Irvine Law Review) on SSRN.  Here is the abstract:

People encounter disability in public spaces where accommodations are granted to those who fit into this protected legal class. Nondisabled people desire many of these accommodations—such as the use of reserved parking spots or the ability to avoid waiting in a queue—and perceive them as “special rights” prone to abuse. This apprehension about the exploitation of rights by those pretending to be disabled, which I refer to as “fear of the disability con,” erodes trust in disability law and affects people with disabilities both on an individual level and a group level. Individuals with disabilities are often harassed or questioned about their identity when using their rights. As a group, disabled people are forced to navigate through new defensive policies that seek to address widely held perceptions of fakery and abuse. This Article uses a series of survey experiments conducted with multiple nationally representative samples totaling more than 3,200 Americans along with 47 qualitative in-depth interviews. It brings to light the psychological mechanism of suspicion and identifies factors that motivate fear of the disability con in public spaces. Findings counterintuitively suggest that the scarcity of the desired public resources has no effect on the level of suspicion against potential abusers. Rather, it is the sense of deservingness (or lack thereof) in the eyes of others that drives suspicion. Using these empirical findings, as well as analysis of relevant case law, this Article outlines the normative implications for the design and implementation of laws affecting millions of individuals. Furthermore, this research contributes to our understanding of how rights behave on the ground, both with regard to disability and to myriad distributive policies.

Very interesting and recommended.

Shapiro on Civil Wrongs & Civil Procedure

Matthew A. Shapiro (Hofstra University - Maurice A. Deane School of Law) has posted Civil Wrongs and Civil Procedure (Civil Wrongs and Justice in Private Law (Paul B. Miller & John Oberdiek eds., Oxford University Press, Forthcoming)) on SSRN.  Here is the abstract:

Civil wrongs are conventionally redressed through civil litigation, which, in turn, is constituted and governed by “transsubstantive” rules of civil procedure. What place, if any, should the general processes of civil litigation and rules of civil procedure have in a theory of private law organized around the concept of civil wrongs? In answering that question, this chapter makes three claims. First, the civil recourse theory of tort law, which attaches particular importance to the concept of civil wrongs, presupposes a process for redressing those wrongs with several distinctive features, features associated more with the general structure of the civil justice system than with any substantive private law doctrines. Second, civil recourse theory follows many other wrongs-based accounts of private law in employing an “interpretive” methodology that commits it to deeming those procedural features a “basic” part of the substantive body of law it purports to illuminate through the concept of civil wrongs. Third, the procedural landscape presumed by wrongs-based accounts of private law such as civil recourse theory has been upended in recent decades by significant changes to the ways in which civil wrongs are, in practice, redressed. The upshot is that private law theorists may well have to choose between the “pragmatic” desire to situate private law in its modern procedural context and the normative ambition to explain private law in terms of a plaintiff-empowering understanding of civil wrongs.

Fascinating.  Highly recommended.