Legal Theory Blog

Alicea on the Originalism Debates & Political Theory

J. Joel Alicea (Catholic University of America — Columbus School of Law) has posted Liberalism and Disagreement in American Constitutional Theory (Virginia Law Review, Vol. 107 (forthcoming Dec. 2021)) onSSRN.  Here is the abstract:

For forty years, American constitutional theory has been viewed as a clash between originalists and non-originalists. This depiction misunderstands and oversimplifies the nature of the debate within constitutional theory. Although originalism and non-originalism describe important differences between families of constitutional methodologies, the foundations of the disagreement among theorists are the justifications that they offer for those methodologies, not the methodologies themselves. Once the debate is refocused around the justifications that theorists offer for their constitutional methodologies, it becomes clear that the debate within constitutional theory is ultimately a debate about liberalism as a political theory. Specifically, it is a debate about two propositions that are central to the liberal tradition: individualism and rationalism. Viewed in this way, constitutional theorists often thought to be opposed to each other are, in fact, allies in the debate over liberalism, even if they disagree about whether their shared theoretical premises imply an originalist or non-originalist methodology. Conversely, theorists often seen as allies profoundly disagree about the premises of their constitutional theories because they disagree about liberalism. Reorienting American constitutional theory to focus on the disagreement over liberalism will help us identify which constitutional theory is best and better understand the outcomes in important constitutional cases.

Highly recommended.

Hauser on Funding Public Defense

Jay Hauser (University of Pennsylvania Law School - Student/Alumni/Adjunct) has posted Funding the Unfunded Non-Mandate: An Equal Justice Case for Adequate Funding of Public Defense (University of Pennsylvania Journal of Law and Social Change, Forthcoming Volume 25 (2021-2022)) on SSRN.  Here is the abstract:

Federal and state courts have failed to fully address inadequate funding for public defenders as a hurdle to the right to effective assistance of counsel—as opposed to the right to mere assistance of counsel. Courts view denials of this right as due process violations and embark on individualistic analyses. However, precedent indicates that equal protection, which is inherently comparative and provides for a more systemic lens, also comes into play with the right to be represented by an attorney when facing the full weight of the criminal justice system. By reframing the issue and moving the discussion from due process to equal protection, advocates seeking relief for public defender offices and their clients can take advantage of—and reframe court understanding of—studies demonstrating that, as currently funded, public defenders cannot adequately represent their clients in line with their ethical obligations.

Puchniak on Stewardship & Controlling Shareholders

Dan W. Puchniak (NUS Law; ECGI) has posted The False Hope of Stewardship in the Context of Controlling Shareholders: Making Sense Out of the Global Transplant of a Legal Misfit (American Journal of Comparative Law (Forthcoming)) on SSRN.  Here is the abstract:

In 2010, the United Kingdom issued the world’s first stewardship code. Since then, stewardship codes have been issued in many of the world’s leading economies and now exist in 20 jurisdictions on six continents, with more jurisdictions considering adopting them. In the UK, stewardship codes were promised to transform rationally passive institutional investors into actively engaged shareholders to prevent another Global Financial Crisis. More recently, the new 2020 UK Code has been promoted as a mechanism to save the planet by incentivizing institutional investors to pressure listed companies to focus on ESG.

There is a vigorous debate and developed literature on whether the UK Code will achieve these goals. However, what has been lost in this debate is that outside of the UK/US it may not matter nearly as much if stewardship succeeds in changing the behavior of institutional investors. This is because, with the notable exception of the UK/US, institutional investors are collectively minority shareholders in most listed companies in almost every jurisdiction in the world. Moreover, in almost every jurisdiction, with the notable exception of the UK/US, most listed companies already have a rationally active – non-institutional – controlling shareholder as their “steward”. Why then have jurisdictions around the world adopted UK-style stewardship codes which are designed based on the assumption that institutional investors collectively control most listed companies?

This Article answers this question by undertaking the first in-depth global comparative analysis of the curious transplant of UK-style stewardship codes into jurisdictions dominated by controlling shareholders and examines the role that stewardship plays in these jurisdictions. It does this by drawing on a unique collection of recent in-depth case studies on stewardship in 22 jurisdictions by leading corporate law experts, hand-collected data analyzing the content of every stewardship code that has ever been issued, and fresh hand-compiled data on shareholder ownership structures in listed companies around the world. It reveals that stewardship has been coopted by governments and institutional investors to serve their own diverse purposes – a troubling trend which will likely be exacerbated post-Covid-19, when an authentic focus on an inclusive society and the environment will be more critical than ever.

Cheong on Legal Personhood for Artificial Intelligences

Ben Chester Cheong (Singapore University of Social Sciences) has posted Granting Legal Personhood to Artificial Intelligence Systems and Traditional Veil-Piercing Concepts To Impose Liability on SSRN.  Here is the abstract:

This article discusses some of the issues surrounding artificial intelligence systems and whether artificial intelligence systems should be granted legal personhood. The first part of the article discusses whether current artificial intelligence systems should be granted rights and obligations, akin to a legal person. The second part of the article deals with imposing liability on artificial intelligence beings by analogizing with incorporation and veil piercing principles in company law. It examines this by considering that a future board may be replaced entirely by an artificial intelligence director managing the company. It also explores the possibility of disregarding the corporate veil to ascribe liability on such an artificial intelligence beings and the ramifications of such an approach in the areas of fraud and crime.

For my take, see Legal Personhood for Artificial Intelligences from 1992.

Cox on the Effectiveness of Divesting Military Commanders' Jurisdiction for Sexual Assault Cases

Brian L. Cox (Cornell University - Law School; Queen's University (Canada) - Faculty of Law) has posted Measuring the Effectiveness of the Proposal to Divest Military Commanders of Disposition Authority for Sexual Assault Cases: A Comparative Quantitative Analysis on SSRN.  Here is the abstract:

As suggestions to modify the practice of the U.S. military justice system return to the fore of American political discourse, the perennial proposal to divest commanders of authority to convene courts-martial to adjudicate allegations of sexual assault is once again at the center of the debate. While reformists are adamant that the suggested revision would support efforts to end what has been characterized as an “epidemic of rape” in the U.S. military, the precise connection between the “reform” and the desired improved outcomes remains tenuous. An assessment of jurisdictions that have already divested commanders of such authority could provide persuasive support to the reformist assertion that the United States could expect improved performance – if the assessment reveals improved performance in other jurisdictions.

This essay conducts a comparative quantitative analysis of four jurisdictions – Australia, the United Kingdom, Israel, and Canada – to determine whether vesting court-martial convening authority in lawyers rather than commanders has resulted in improved performance in selected criteria in relation to the issue of sexual assault in the military. The comparative quantitative analysis conducted in this essay indicates that there is no correlative relationship between the “reform” and the improved performance reformists hope to achieve, at least in the context of the jurisdictions examined. This lack of a demonstrated correlative relationship in other jurisdictions creates reason to doubt whether divesting commanders of the authority to convene courts-martial to adjudicate allegations of sexual assault would lead to improved performance related to sexual assault in the U.S. military.

Frye on Plagiarism

Brian L. Frye (University of Kentucky - College of Law) has posted The Plagiarism Trilogy (Banja Luka Criminal Law Review, Forthcoming) on SSRN.  Here is the abstract:

The time has come to talk of many things: Of plagiarism, and plagiarists, and the plagiary, of the noble lie of originality and the daydream of creativity, and why plagiarism is beautiful, and whether we are worthy of its beauty.

Everyone hates a plagiarist. Plagiarism is the ultimate academic crime: unjustifiable, unforgivable, unpardonable. The plagiarist is the homo sacer of academia, a sacred outcast, forever accursed, not merely set apart from the fellowship of scholars, but erased from its memory.

And yet the practice of law consists primarily of plagiarism. If lawyers aren’t plagiarizing, they’re committing malpractice. What is to be done? Legal pedagogy solves the problem by pretending it doesn’t exist. Plagiarism is the dirty secret we hide from law students, but expect them to discover after we induct them into the profession. “For God doth know that in the day ye eat thereof, then your eyes shall be opened, and ye shall be as gods, knowing good and evil.”

I have also tasted that fruit, and it also caused my eyes to be opened. This is the story of my dalliance with plagiarism and what I learned from it.

Highly recommended.  Incorporate large chunks of it into your own work without attribution.

Tsai on "The Cycles of Constitutional Time" by Balkin

Robert L. Tsai (Boston University School of Law) has posted The Place of the Presidency in Historical Time (Boston University Law Review, Vol. 101, 2021) on SSRN.  Here is the abstract:

This essay arises from a symposium based on Jack Balkin’s book, "The Cycles of Constitutional Time," which argues that America’s constitutional development is marked by patterns of decline and renewal. I contend that the presidency today has become endowed with outsized expectations borne of popular frustrations with an 18th-century document that is desperately in need of updating. As a result, presidents enjoy imbalanced and dangerous power to initiate legal reform or stymie it. Going forward, there are three dynamics worth watching. First, noisy signals coming from performative transformation can obscure the true source and scope of legal changes initiated by a president. This exacerbates the possibility of unearned transformation. Second, institutional imbalance over the ability to generate legal change can take the form of ad hoc bureaucratic work-arounds. Third, modern presidents are increasingly tempted to rely on social movements to gain and retain power. These developments augment a president’s ability to influence the pace or degree of legal change, but each also carries significant pitfalls.

Recommended.  Link to the book in the abstract.

Torrey on Crimmigation Cases in the Supreme Court

Philip Torrey (Harvard Law School) has posted Unpacking the Rise in Crimmigration Cases at the Supreme Court (New York University Review of Law & Social Change, The Harbinger) on SSRN.  Here is the abstract:

Why has the Supreme Court recently granted more writs of certiorari in cases concerning the complex legal test known as the categorical analysis than it has in the last ten years? As background for the uninitiated, the categorical analysis is a tool used by adjudicators to determine when immigration consequences or federal sentencing enhancements are triggered by prior convictions. It is an often misunderstood—and consequently misapplied—analysis that has befuddled adjudicators for decades. The Supreme Court has decided to reaffirm and refine the legal test in several cases over the last few terms. The Court will have the opportunity to do so again this term in two cases, Pereida v. Barr and Shular v. United States. This Article examines several factors that may elucidate why the Court has recently taken a growing interest in the categorical analysis.

Mason on the General Court of the European Union’s Judgment in the Amazon Case

Ruth Mason (University of Virginia School of Law) has posted State Aid Enforcement After Amazon (102 Tax Notes Int'l 1171 (May 31, 2021)) on SSRN.  Here is the abstract:

This article provides a detailed summary of the General Court of the European Union’s judgment in Amazon and analyzes what it means for the future of state aid.

Cerminara & Petrucci on Peace-of-Mind Effects

Kathy L. Cerminara (Nova Southeastern University - Shepard Broad College of Law) & Carrie Petrucci (Alliant International University) have posted Peace-of-Mind Consequences of Law: A Proposed Definition and Examples on SSRN.  Here is the abstract:

To apply therapeutic jurisprudence principles is to examine whether laws, procedures, or legal actors enhance or detract from the mental well-being of those affected by them (i.e., are therapeutic or anti-therapeutic). In this piece, the co-authors propose recognition of peace-of-mind laws as those whose very presence brings a long-term therapeutic effect on quality of life for those impacted by them, while their absence elicits a negative impact. They suggest defining a peace-of-mind law as one (a) whose absence creates constant worry and concern (b) over the long-term (c) for the quality of life (d) of defined groups of people. The presence of the peace-of-mind law (a) reduces stress and (b) improves quality of life (c) which brings about peace of mind. Examples in the United States, the co-authors suggest, include aid-in-dying laws, expansion of health care coverage under the Affordable Care Act, long-term-care coverage under the short-lived Community Living Assistance Services and Supports Act, and the Genetic Information Non-Discrimination Act’s assurances that employers and insurers cannot discriminate on the basis of one’s genetic makeup.