Legal Theory Blog

La Diega on on Legal Regulation of Autonomous Machines

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Guido Noto La Diega (Northumbria University) has posted Machine Rules. Of Drones, Robots, and the Info-Capitalist Society (Italian Law Journal, Vol. 2, p. 367-404, 2016) on SSRN. Here is the abstract:

Italy has been one of the first countries in the world to enact ad hoc regulations on drones. Therefore, the Italian approach may constitute a model for many regulations to come; nonetheless, the legal literature seems to overlook the phenomenon. In this article, I place the discourse on drones in the context of some more general considerations on the main legal issues related to the deployment of machines, including robots, in our everyday life. Indeed, most considerations apply equally to robots and drones, moving from the unrefined, albeit practical, observation that the latter are robots equipped with wings. An analysis of the intellectual property, data protection, privacy, and liability issues is carried out bearing in mind the complexity arising from the increasing implementation of cloud computing and artificial intelligence technologies. The article claims that autonomous machines will outclass human beings in all their tasks, but the horror vacui ought to be avoided: a new unforeseeable society will come. Therein, human beings – granted that a distinction between them and machines will still make sense – will not have to work in order to be able to live.

Chen on Owning Atmospheric Moisture

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Jianlin Chen (University of Hong Kong - Faculty of Law) has posted Optimal Property Rights for Emerging Natural Resources: A Case Study on Owning Atmospheric Moisture (University of Michigan Journal of Law Reform, Vol. 50, No. 1, 2016) on SSRN. Here is the abstract:

This Article critically examines the design of property rights for emerging natural resources — naturally occurring substances that humans have only recently come to be able to exploit viably — through a case study of how the fifty states allocate ownership in, and regulate the use of, atmospheric moisture, an issue that has emerged in the context of weather modification (particularly cloud seeding). Building on the surprising finding that legislative declarations of state ownership have not resulted in greater regulatory control or other substantial restrictions on private use, this Article highlights a dimension of property rights design that has yet to receive concerted scholarly attention: the relative ease of future transitions — transitions both in ownership and in control mechanisms. This Article explains how state property facilitates easier and more holistic transitions and argues that state property can be an optimal allocation of emerging natural resources, because uncertainty surrounding the viability of present uses of the resource suggests that property rights arrangements may need to be changed in the foreseeable future. More broadly, the case study reveals how state property — properly stripped of its undeserved associations with socialism — still has an important role to play in property rights literature

Witte on Prosecuting Polygamy in Early Modern England

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John Witte Jr. (Emory University School of Law) has posted Prosecuting Polygamy in Early Modern England (in John Witte, Jr., Sara McDougall, and Anna di Robilant, eds., Texts and Contents in Legal History: Essays in Honor of Charles Donahue (Berkeley, CA: The Robbins Collection, 2016), 429-448) on SSRN. Here is the abstract:

Already in Anglo-Saxon times, England condemned polygamy as a serious moral offense. But until 1604, it was left to church courts to punish polygamists using spiritual punishments. In 1604, however, Parliament enacted the Polygamy Act that made polygamy a capital crime, punishable by secular courts. Both individual victims of desertion or double marriage as well as church or state officials could initiate indictment of parties for polygamy. Other interested parties also had standing to press polygamy claims. Thousands of polygamy cases came before the criminal tribunals of England, not least the famous Old Bailey, which heard more than 500 such polygamy cases under the 1604 Act. Convicted parties faced punishments ranging from fines and short imprisonment, to transportation to a penal colony or execution orders, though almost all those convicted for a capital felony successfully pled benefit of clergy. The vast majority of polygamy cases were brought against men, and they were punished far more severely than women if convicted. The 1604 Polygamy Act -- while eventually replaced by Acts of Parliament in 1828 and 1861 that made felony a non-capital crime -- was a model for the common law world. This chapter analyzes the Act and samples several cases of prosecution for polygamy.

Rubin on Climate Change Denial

Edward L. Rubin (Vanderbilt University - Law School) has posted Rejecting Climate Change: Not Science Denial, but Regulation Phobia (Journal of Land Use & Environmental Law, Forthcoming) on SSRN. Here is the abstract:

At this juncture, it seems clear that the most significant impediment to a worldwide effort to combat the disastrous consequences of climate change is the United States. It seems equally clear that the reason why the United States has assumed such a counterproductive role is the existence of a set of attitudes within its political discourse that is generally described as climate change denial. To some extent, these attitudes come from elite groups, such as the Republican Party leadership and the energy industry, but these groups can only dominate public policy because their attitudes resonate with a large portion of the American public. This article explores the reasons why so many people in the U.S deny climate change.

The article rejects the familiar theory that climate change denial is part of a broader rejection of scientific principles by the American public. There is no such general attitude; Americans, including political conservatives, generally accept scientific findings. Evolution is an exception because of specific conflict with religious doctrine not present in the climate change case. Some of the opposition to climate change relies on conspiracy theories, which Richard Hofstadter called the “paranoid style” of American politics. But this does not provide an explanation; like conspiracy theorists in general, climate change deniers do not condemn their opponents for using science, but rather endorse or even glorify science and condemn their opponents for using it incorrectly.

The more convincingly explanation is that climate change denial is allied to more general anti-regulatory attitudes that prevail among large segments of the public. But the opposition is not typical of mainstream conservatism. Rather than acknowledging the existence of a problem, while arguing that regulatory responses should be used with caution, the current conservative position is the complete refusal to acknowledge that a problem exists in the first place. This is what some survey researchers have described as a “boomerang” effect: in response to factual information linked to a normative recommendation, recipients of the information act in direct opposition to the recommendation. The reason they do so in this case is that a rational policy to combat climate change seems to demand a major alteration of society. Combatting climate change not only expands the scope of regulation, but involves regulations that effect a major transformation of our basic economic system and our personal lifestyles. Almost uniquely (toleration would be another case), it demands a transformation of internalized attitudes. This has produced what can be fairly described as a phobic reaction among many people, that is, an irrational and persistent fear of a given situation.

The article concludes by considering some policies that might circumvent this phobic reaction: mass transit for commuting, intelligent homes, and the encouragement of local food production. In each case, these policies create appealing options for people without demanding major changes in their lifestyle.

Pargendler on Contract Law & Development

Mariana Pargendler (Fundação Getulio Vargas Law School at São Paulo) has posted Comparative Contract Law and Development: The Missing Link? (85 George Washington Law Review (2017 Forthcoming)) on SSRN. Here is the abstract:

Contract law has long been a favorite area of study among comparative law scholars. Economists have posited that contract institutions play a central role in economic development. Yet, in sharp contrast to the state-of-the-art in other fields (such as corporate law and bankruptcy law), the possible role of contract laws in shaping economic outcomes remains largely neglected. This essay explores the main reasons that might explain this status quo. These are: (i) the lack of meaningful variation in contract laws around the world, (ii) the triviality of contract law, (iii) the ample availability of choice of law, (iv) the U.S.-centric bias of the law-and-economics literature, (v) the lack of public data on contracting practices, and (vi) the boundaries of contract law. It concludes that, while important, these factors are ultimately insufficient to justify the scarcity of works on the economic consequences of contract law, which could be a fruitful area for future research.

Perlin on "Re-Understanding the Child's Right to Identity" by Ronen

Michael L. Perlin (New York Law School) has posted Review of Ya'Ir Ronen, Re-Understanding the Child's Right to Identity: On Belonging, Responsiveness and Hope (2016) on SSRN.  Here is the abstract:

There exists a robust therapeutic jurisprudence (TJ) literature dealing with many areas of juvenile law: on the questions of whether juveniles have a right to counsel in civil commitment hearings, of the extent of rights to be granted to foster children in juvenile and family court proceedings, the civil commitment trial itself, the implications of TJ for juvenile cases involving Miranda issues, the issue of whether juveniles can be “waived up” to adult courts in criminal cases, and on punishment schemes for juveniles. But, with the exception of earlier articles by the author of this volume, there have been no TJ-cased inquiries into the child’s right to an identity. In a thoughtful, provocative and important new work, Ya’ir Ronen has expanded his vistas, and has given us a book-length investigation into this question. And he has done it brilliantly.

Ronenstates his claim immediately: “[T]he state should have a positive duty to safeguard the child’s right to identity,” and that this right is “derivative of his human dignity,” although he concedes that “current legal protection of the child’s right to human dignity does not guarantee protection of an individualized identity.” In assessing this issue, culture must be explored as a “context of personal meaning,” and that international human rights law “implicitly reaffirm[s]” a commitment to a “dynamic child-constructed identity.”

One of the central principles of therapeutic jurisprudence is a commitment to dignity; Ronen’s decision to begin his work by clarifying this important commitment is of inestimable significance to his project. He incorporates this into his consideration of issues of culture; “suppressing distinctness by a dominant or a majority culture [is] the cardinal sin against authenticity;” thus, “protecting a child-constructed identity may be construed as a commitment to dignity.” Other scholars have considered the relationship between TJ and culture, but, to the best of my knowledge, virtually none in this specific context.

Ronen looks long and seriously at international human rights law, specifically articulating where he sees existing UN Conventions as providing support for his position and where he feels that those instruments are not comprehensive enough to grant the rights to which he believes all children are entitled. I believe it is absolutely essential that TJ scholars turn to international human rights law as a potential source and future direction of TJ scholarship and Ronen’s consideration of these documents in this context is of great importance, beyond the specific substantive subject on which he has turned his focus.

Ronen’s book is brisk and bracing and refreshing. It deserves to be read by all who care about these important topics.

Lande on Negotiation Theory

John Lande (University of Missouri School of Law) has posted Building Negotiation Theory from Real-Life Negotiations (2017 Journal of Dispute Resolution (Forthcoming)) on SSRN. Here is the abstract:

This article builds on an excellent article written by Professors David Matz and Adrian Borbély for the University of Missouri’s symposium, Moving Negotiation Theory from the Tower of Babel Toward a World of Mutual Understanding. Professors Matz and Borbély advocate the use of full-length accounts of actual negotiations to develop more realistic negotiation theory. This article strongly agrees with their idea of using real negotiations to test our theories and develop better ones. The dispute resolution field has become too comfortable with simple theories based on hypothetical situations and selective or misleading data from actual negotiations.

In developing negotiation theory, scholars should consider a wide range of accounts of actual negotiations including reports that are shorter than the full-length accounts that Professors Matz and Borbély describe. Moreover, although existing accounts of actual negotiations can be useful, creating new data designed to analyze real negotiations should be an important part of a serious research program to develop more realistic negotiation theory. This article describes ways to produce more accounts of actual negotiations, particularly by faculty requiring students to produce them as course assignments. It includes links to documents that faculty can adapt to use in their course assignments.

 

Mullenix on Policing Non-Class Aggregate Settlements

Linda S. Mullenix (University of Texas School of Law) has posted Policing Non-Class Aggregate Settlements: Empowering Judges Through the All Writs Act (Review of Litigation, Forthcoming) on SSRN. Here is the abstract:

Commentators have identified that one of the most significant problems in current MDL practice is the lack of judicial authority over non-class aggregate settlements. This paper explores the use of the All Writs Act to provide MDL judges with robust authority to manage, supervise, and ultimately review non-class aggregate deals that are the object of much recent criticism. It rejects the thesis that judicial supervision of non-class settlements is unwarranted because these deals are contractual, and that oversight therefore removes claimant autonomy and damages the adversarial system. Several MDL judges already have invoked the All Writs Act to police parallel class action settlements that might jeopardize pending MDL negotiations. This paper explores and endorses the argument that MDL judges may, with equal force, exercise power pursuant to the All Writs Act to police pending non-class settlements in their jurisdiction.

As the MDL non-class settlement paradigm has evolved, some MDL judges have sought to intervene in settlement activities by invoking authority pursuant to three theories:

(1) the quasi class action,

(2) the inherent powers of the court, and

(3) the All Writs Act.

As critics note, the quasi class action and inherent judicial power have provided weak support for judicial intervention in non-class aggregate settlements. But to date, commentators have paid scant attention to judicial power under the All Writs Act or its use in MDL proceedings.

The explosion of the MDL docket in the twenty-first century represents the most notable paradigm shift in the American legal landscape in several decades. Currently, the MDL panel assumes jurisdiction over almost all emerging aggregate mass tort and small claims consumer actions. With this marked proliferation of MDL proceedings, commentators have signaled various growing concerns with the MDL resolution of large-scale collective disputes. In particular, critics have focused on issues relating to non-class aggregate settlements accomplished under MDL auspices.

The MDL statute provides judges with authority to supervise and manage coordinated pre-trial proceedings, but little else. Historically, MDL proceedings have proven effective vehicles for resolving mass disputes through class action settlements, subject to Rule 23 requirements and constraints. Currently, however, attorneys have pivoted to resolving aggregate disputes through non-class settlements that are negotiated and consummated outside class action procedures, which relieves parties of Rule 23 judicial supervision, oversight, and review.

The MDL statute provides scant authority for judicial oversight of non-class aggregate settlements. This shift to non-class settlements has inspired concern regarding the substantive, procedural, and ethical dimensions of these deals. A major debate centers on the question of judicial authority in the non-class settlement arena and this paper seeks to provide that authority by focusing on judicial power under the All Writs Act.

Highly recommended.

Green on Constitutional Truthmakers

Christopher R. Green (University of Mississippi - School of Law) has posted Constitutional Truthmakers on SSRN. Here is the abstract:

Many disputes in constitutional theory—in particular, disputes over forms of originalism and non-originalism—would be far clearer if they employed two distinctions that philosophers have drawn repeatedly in dealing with the nature of reality.

First, we should distinguish constitutional epistemology from constitutional ontology. Constitutional epistemology (together with epistemically-freighted constitutional pragmatics) tells us who decides questions of constitutional interpretation: the distribution of interpretive authority between government and citizens, between and within branches of government, and for all of these interpreters, the distribution of such authority over time. It tells us what burdens of proof govern different interpreters’ determinations, and what sorts of evidence might satisfy those burdens. Akin to the Erie/Hanna regime, such “procedural” matters of constitutional epistemology and pragmatics could be changed radically even if the underlying “substance” of constitutional interpretation—what makes claims about the Constitution true or false—stays the same, and vice-versa. Attention to this epistemic-ontological distinction undermines or complicates recent arguments against originalism by Richard Fallon, Daniel Farber, Martin Flaherty, Helen Irving, Andrew Koppelman, Suzanna Sherry, and David Strauss, as well as a classic argument by Justice Jackson, but also raises trouble for arguments for originalism by the late Justice Scalia and Lawrence Solum. Epistemic vices of either a fixed-meaning or a common-law Constitution cannot undermine a constitutional theory’s ontological virtue—if it possesses it—of accurately representing our actual Constitution, and epistemic virtues cannot compensate for the ontological vice of wrongly identifying the Constitution itself.

Second, as a precursor to assessing constitutional theories’ ontological virtues, we should classify forms of originalism or non-originalism based on their constitutional truthmakers. Do they have any at all? Do they have more than one? Pragmatists deny the existence of any truthmaker external to the practice of judging, while pluralists point to more than one. Truthmakerless constitutional theories like those of Judge Posner, Eric Segall or the early Felix Frankfurter cannot vindicate “wrong the day it was decided” (WTDIWD) data from the Court itself, and irreducibly plural constitutional theories like those of Philip Bobbitt cannot vindicate such data in cases where constitutional modes conflict. An integrated constitutional truthmaker like that proposed by the early Richard Fallon, which sets out a criterion for picking winning and losing constitutional arguments then different modes clash, has a distinct ontological advantage over pragmatist or irreducibly plural constitutional theories. Even a theory merely positing an unknown proper commensuration of conflicting constitutional arguments into answers for particular cases—that is, a reducible pluralism—can vindicate WTDIWD data in a way pragmatism and Bobbitism cannot.

Single-truthmaker forms of living constitutionalism are thus ontologically preferable to no-truthmaker or multiple-truthmaker forms. We can then ask (as I do and will do in earlier and future work) whether that single truthmaker matches, or does not match, the “this Constitution” to which Article VI refers, and to which, on a naïve view of our current practices, current officeholders swear an oath.

Highly recommended.

Two Books by Solove on Privacy

Daniel J. Solove (George Washington) has posted two monographs on SSRN.  Here are descriptions:

The Digital Person: Technology and Privacy in the Information Age (NYU Press (2004)):

THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE (ISBN: 0814798462) (NYU Press 2004) explores the social, political, and legal implications of the collection and use of personal information in computer databases. In the Information Age, our lives are documented in digital dossiers maintained by hundreds (perhaps thousands) of businesses and government agencies. These dossiers are composed of bits of our personal information, which when assembled together begin to paint a portrait of our personalities. The dossiers are increasingly used to make decisions about our lives - whether we get a loan, a mortgage, a license, or a job; whether we are investigated or arrested; and whether we are permitted to fly on an airplane.

Digital dossiers impact many aspects of our lives. For example, they increase our vulnerability to identity theft, a serious crime that has been escalating at an alarming rate. Moreover, since September 11th, the government has been tapping into vast stores of information collected by businesses and using it to profile people for criminal or terrorist activity.

Do these developments pose a problem? Is it possible to protect privacy in a society where information flows so freely and proliferates so rapidly? THE DIGITAL PERSON seeks to answer these questions. This book explores the problem from all angles - how businesses gather personal information in massive databases; how the government increasingly provides this data to businesses through public records; and how the government is gathering personal data from businesses for its own uses.

THE DIGITAL PERSON not only explores these problems, but also provides a compelling account of how we can respond to them. Using a wide variety of sources, including history, philosophy, and literature, Solove sets forth a new understanding of privacy, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world.

The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale University Press (2007)):

YouTube. Facebook. MySpace. Wikipedia. Google. These are among the many new ways people are communicating and obtaining information. In THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET (Yale University Press, October 2007), Professor Daniel J. Solove warns that this new world demands new thinking about the nature of privacy.

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there's a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives - often of dubious reliability and sometimes totally false - will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with stories of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy.

Solove explores how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cyber mobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Longstanding notions of privacy need review: unless we establish a balance among privacy, free speech, and anonymity, we may discover that the freedom of the Internet makes us less free.

Both books are highly recommended.

Witte on Grotius & the Natural Law of Marriage

John Witte Jr. (Emory University School of Law) has posted Hugo Grotius and the Natural Law of Marriage: A Case Study of Harmonizing Confessional Differences in Early Modern Europe (Troy L. Harris, ed., Studies in Canon Law and Common Law in Honor of R.H. Helmholz (Berkeley, CA: The Robbins Collection)) on SSRN. Here is the abstract

Seventeenth-century Dutch jurist, Hugo Grotius, worked out a detailed natural law of the family, which undergirded the competing Catholic and Protestant family and broader theological teachings of his day. Grotius showed how traditional teachings about the private and public goods of sexual pair-bonding, marriage, and parentage and traditional prohibitions against adultery, incest, prostitution, and fornication were consistent with rational natural law theory. But it took the Bible and Christian theology, he believed, to justiy traditional prohibitions against polygamy, concubinage, divorce, and remarriage. This chapter evaluates Grotius’ contributions to natural law theory and family law history, lifting up themes and methods that have been central to the work of leading American legal historian, R.H. Helmholz, to whom the chapter is dedicated.

 

Clarke on "Gender Nonconformity and the Law" by Yuracko

Jessica A. Clarke (University of Minnesota Law School) has posted Frontiers of Sex Discrimination Law (Michigan Law Review, Vol. 115, No. 6, Forthcoming) on SSRN. Here is the abstract:

A short time ago, the argument that sex discrimination includes discrimination on the basis of sexual orientation was considered a risky litigation tactic with little hope of success. One reason was the fear that extending sex discrimination law so far would upset all sex classifications, even those on restroom doors. But the landscape has shifted. The EEOC now takes the position that sex discrimination includes all forms of discrimination based on sexual orientation and gender identity. Administrative agencies interpret federal law to require that workers and students be allowed to use restrooms consistent with their gender identities. Some federal courts are beginning to adopt these arguments, while others wait for direction from Congress or the Supreme Court. Kimberly Yuracko’s new book, Gender Nonconformity and the Law, could not come at more opportune time. The book surveys the terrain of sex discrimination law as it pertains to gender nonconformity, and warns that the cases demonstrate a troubling trajectory of “status” protection — protecting only those aspects of gender identity that courts consider immutable. These cases reify a medical, binary, and static view of gender, shutting down a “wider range of gender possibilities that might lead to more personally fulfilling lives for individuals and more creative and adaptable environments in the workplace.” This book review examines how sex discrimination arguments against LGBT bias have gone from nonstarters to front runners in the time since Yuracko’s book was written, and it asks whether these cases have continued on a dangerous trajectory of status protection. It concludes that recent litigation has the potential to move away from status protection, as courts and advocates advance arguments about social stigma and intersecting systems of bias that sound in anti-subordination theories.

Harbach on Nudging & Childcare

Meredith Johnson Harbach (University of Richmond School of Law) has posted Nudging Parents (Journal of Gender, Race and Justice, Vol. 19, No. 1, 2016) on SSRN. Here is the abstract:

Childcare quality matters, and parents intuitively understand that it does. Among the features of childcare parents most value, quality is regularly at the top of the list. Yet experts consistently rate childcare quality in the United States as mediocre at best. Why the disconnect? This Article argues that behavioral market failure is an important piece of the puzzle. Standard economic theory assumes parents are rational market actors, and even market failure theory cannot account for their imperfect rationality. But the paradox of poor childcare quality is not just market failure; it's behavioral market failure. This diagnosis not only helps us understand the market's dysfunction, but also enables us to think creatively about solutions. Armed with insights from behavioral economics, policymakers can identify, and in some cases capitalize on, parents' behavioral anomalies, "nudging" them toward their desired childcare goals. Nudging parents is an important step toward building a better network of childcare to care for, nurture, and develop America's children.

 

Ben-Shahar & Strahilevitz on Contracting Over Privacy

Omri Ben-Shahar and Lior Strahilevitz (University of Chicago Law School and University of Chicago Law School) has posted Contracting Over Privacy: Introduction (Journal of Legal Studies, Vol. 43, No. S2, 2016) on SSRN. Here is the abstract:

This short essay introduces papers presented at the symposium Contracting over Privacy, which took place at the Coase-Sandor Institute for Law and Economics at the University of Chicago in fall 2015. The essay highlights a quiet legal transformation whereby the entire area of data privacy law has been subsumed by consumer contract law. It offers a research agenda for privacy law based on the contracting-over-privacy paradigm.

Afilalo & Patterson on Statecraft & EU Law

Ari Afilalo and Dennis Patterson (Rutgers University - School of Law and European University Institute) have posted Statecraft and the Foundations of European Union Law (Julie DICKSON and Pavlos ELEFTHERIADIS (eds), Philosophical Foundations of European Union Law, Oxford University Press, 2012, 275-306) on SSRN. Here is the abstract:

In this chapter, we use the lens of Statecraft to analyse the philosophical foundations of the European integration enterprise. We advance a theory of Statecraft that posits that the state evolves through successive eras that are characterized by distinctive hallmarks. The 'state-nation' of the Industrial Revolution drew on the resources of its subjects and garnered for itself as much international resources as possible to strengthen and solidify the economic base of the polity. More laissez-faire policies internally, mercantilism and gunboat diplomacy on the trade front, as well as competition for colonial resources, accorded with the ethos of the state-nation. In time, the state-nation evolved into a 'nation-state' dedicated internally to providing 'welfare' (which we define to encompass both entitlements and welfare-enhancing regulation) to its nation. Collaboration with other states in an international trade framework dedicated to liberalizing trade while theoretically allowing each participant to set its chosen welfare level accorded with this model. Decolonization of nations artificially established by the colonial powers, the establishment of a United Nations based on territorial integrity and sovereign equals, and a general system of international law providing few encroachments on national sovereignty were twentieth-century phenomena consistent with the age of the nation-state.

Highly recommended.

Posner on the Populist Backlash & Liberal Internationalism

Eric A. Posner (University of Chicago - Law School) has posted Liberal Internationalism and the Populist Backlash on SSRN. Here is the abstract:

A populist backlash around the world has targeted international law and legal institutions. Populists see international law as a device used by global elites to dominate policymaking and benefit themselves at the expense of the common people. This turn of events exposes the hollowness at the core of mainstream international law scholarship, for which the expansion of international law and the erosion of sovereignty have always been a forgone conclusion. But international law is dependent on public trust in technocratic rule-by-elites, which has been called into question by a series of international crises.

Recommended.

 

Hershovitz on "Private Wrongs" by Ripstein

Scott Hershovitz (University of Michigan Law School) has posted The Search for a Grand Unified Theory of Tort Law (Harvard Law Review, Vol. 130, No. 3, p. 942, 2017) on SSRN. Here is the abstract:

In Arthur Ripstein’s new book "Private Wrongs," he argues that one simple idea accounts for all of tort’s rights and remedies: no one is in charge of anyone else. In this review, I argue that Ripstein is wrong about that. I outline his account of tort, and then set out (some of) the details of the doctrine for which he has failed to account. I also argue that the ambition of Ripstein’s book is misguided: we ought not expect simple explanations for complicated and contingent institutions, like tort. Nevertheless, I find lots to admire in Ripstein’s book, and I recommend it to everyone who is interested in private law.

Highly recommended.

Witte on "God and the Secular Legal System" by Domingo

John Witte Jr. (Emory University School of Law) posted 'Foreword,' to Rafael Domingo, God and the Secular Legal System ((Cambridge: Cambridge University Press, 2016), ix-xii) on SSRN. Here is the abstract:

This brief Foreword evaluates the innovative new theory of law, religion, and state by Catholic jurist, Rafael Domingo, and shows some of its antecedents in the natural law theory of Dutch Protestant jurist, Hugo Grotius.

Gouldin on Disentangling Flight Risk & Dangerousness

Lauryn P. Gouldin (Syracuse University College of Law) has posted Disentangling Flight Risk from Dangerousness (Brigham Young University Law Review, No. 3, 2016) on SSRN. Here is the abstract:

There is a growing national consensus about the urgent need to shrink the population of pretrial detainees and to fix our broken money bail system. Even as scholars and reformers are showing renewed interest in pretrial detention and bail, however, they have neglected a fundamental pretrial problem: the conflation (by judges and in statutes) of flight risk and danger. Reformers have offered up an array of proposals and increasingly sophisticated risk assessment tools that promise to improve judicial decision-making, but many of these tools merge flight risk and danger in ways that reinforce problematic legislative and judicial practices.

This Article identifies the legal and practical reasons that judges must evaluate flight risk independently of danger. Federal and state constitutions and statutes include detention and bail provisions that require judges to make separate determinations of flight risk and dangerousness. There are also compelling policy arguments for separating flight from danger. First, combining risks may cause judges to overestimate both kinds of risks. Second, forcing separate analyses of pretrial risks may provide judges with much-needed political cover (alleviating pressure to detain). In addition, isolating the two types of risks offers an opportunity to improve judicial accountability and system legitimacy. Finally, the conditions of release that judges employ to mitigate flight risk are different from those that are used to manage danger. Disentangling flight risk from dangerousness will be a critical piece of efforts to improve pretrial decision-making and reduce unnecessary pretrial detention.

Clarke on Protected Class Gatekeeping

Jessica A. Clarke (University of Minnesota Law School) has posted Protected Class Gatekeeping (New York University Law Review, Vol. 92, No. 1, 2017) on SSRN. Here is the abstract:

Courts routinely begin their analyses of discrimination claims with the question of whether the plaintiff has proven he or she is a “member of the protected class.” Although this refrain may sometimes be an empty formality, it has taken on real bite in a significant number of cases. For example, one court dismissed a claim by a man who was harassed with anti-Mexican slurs because he was of African American rather than Mexican ancestry. Other courts have dismissed sex discrimination claims by LGBT plaintiffs on the ground that LGBT status is not a protected class. Yet other courts have dismissed claims by white people alleging they were harmed by white supremacist violence and straight people alleging they were harmed by homophobic harassment. This Article terms this phenomenon “protected class gatekeeping.” It argues that protected class gatekeeping is grounded in dubious constructions of antidiscrimination statutes, and that its routine use prevents equality law from achieving its central aim: dismantling sexism, racism, homophobia, religious intolerance, and other such biases. While past scholarship has identified certain forms of protected class gatekeeping, it has not recognized the scope of the problem or addressed the progressive intuitions that underlie it. Critical examination of protected class gatekeeping is of pressing importance as legislatures, courts, and legal scholars debate new statutory language and doctrinal frameworks for discrimination claims.

Walker on Bagley on Remedial Restraint in Administrative Law

Christopher J. Walker (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Against Remedial Restraint in Administrative Law (Columbia Law Review Online, 2017 (Forthcoming)) on SSRN. Here is the abstract:

In Remedial Restraint in Administrative Law, Professor Nicholas Bagley argues that we should replace administrative law’s ordinary remand rule with a more restrained, context-specific standard of first assessing whether the parties challenging the action were actually prejudiced by the agency error. He bases this argument in part on his belief that the states challenging the Obama Administration’s sweeping executive actions on immigration suffered no harm from the agency’s failure to engage in notice-and-comment rulemaking. That is because the states received notice through leaks to the media and had a chance to comment through their public complaints on cable news programs.

This Response agrees that administrative law should focus more on remedies. But of all the serious challenges facing the regulatory state today, the lack of this particular type of remedial restraint is not among them. To the contrary, the current rule-based ordinary remand rule plays an important role in preserving a proper separation of powers, in ensuring agencies exercise their congressionally delegated discretion in a nonarbitrary manner, and in facilitating a richer court–agency dialogue that allows courts to have a systemic effect on the administrative process. The benefits of the ordinary remand rule exceed any benefits of a more restrained, standard-like remedial approach. And the current rule avoids the costs of courts assessing, for instance, whether regulation by press leakage or regulation by Twitter could be an acceptable, harmless substitute for notice-and-comment rulemaking.

 

Lawson on Scalia on Interpretation

Gary Lawson (Boston University School of Law) has posted Did Justice Scalia Have a Theory of Interpretation? (Notre Dame Law Review, Forthcoming) on SSRN. Here is the abstract:

It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with acceptance or rejection of a proposed meaning), and closure (when is the evidence set adequate to justify a claim). Justice Scalia said a great deal about principles of admissibility and significance, but he said very little about the other essential elements of an interpretative theory. Moreover, much of what Justice Scalia said, and much else that can be inferred from his writings, about statutes and constitutions concerned theories of adjudication rather than theories of interpretation. The relationship between interpretation – the ascertainment of textual meaning – and adjudication – the determination of real-world cases – is actually quite complex, even if one has a normative theory of adjudication that says to decide cases as much as possible in accordance with interpretatively derived textual meaning. In the end, one probably cannot say that Justice Scalia had a theory of textual interpretation. He came close, however, to articulating a complete theory of how to apply statutes and constitutions in adjudication; he was lacking only a clear identification of the appropriate standard of proof for resolving legal claims in adjudication.

Highly recommended.  Lawson focuses on principles of admissibility and significance, but one might think that such principles flow from a theory of interpretation and do not constitute such a theory.  My own view is that a theory of "interpretation" (in the sense specified by the interpretation-construction distinction) must provide an account of the the nature of meaning (or communicative content).  Once we have such a theory, it may or may not give rise to "principles of admissibility" or "principles of significance."

Finnis on the Nature of a Free Society

John Finnis (University of Oxford - Faculty of Law) has posted The Nature of a Free Society on SSRN. Here is the abstract:

This address, on the occasion of an award (16 May 2015) in Princeton related to the institutions of a free society, considers the idea of a free constitution in Gibbon, its antecedents in Aquinas, and its deployment in Madisonian separation of powers. The implications of such a separation in relation to widespread assumptions about judicial supremacy are illustrated by the debate between Jefferson and Story (and today’s conventional wisdom), revisited in the debate between Eisgruber and Paulsen. The place of “living instrument” doctrines of judicial interpretation is considered against the background of a wider societal revolt against broadly Christian social-moral principles, and the threat (considered by Gibbon, earlier by Augustine and latterly by De Jaeghere) of the threat to the first of a free society’s preconditions – that there be sufficient people willing to live together – that is created by migratory colonization, aided if not abetted by decisions such as those of the European Court of Human Rights in Hirsi Jamaa (2012), outlawing all group-pushback from the frontiers.

Legal Theory Lexicon: The Law Is A Seamless Web

Introduction

F.W. Maitland, the famous legal historian wrote, “Such is the unity of all history that any one who endeavors to tell a piece of it must feel that his first sentence tears a seamless web.”  (A Prologue to a History of English Law, 14 L. Qtrly Rev. 13 (1898))  Maitland didn't actually say that the "law is a seamless web," but he is usually given credit for the idea that the law forms some kind of "organic unity" or is characterized by pervasive, systematic, and strong interconnections.  The idea that law is seamless web is ambiguous--the aphorism expresses different ideas on different occasions.  This post in the Legal Theory Lexicon series will explicate the seamless web metaphor and its several implications for legal theory.

As always, the Lexicon is especially aimed at law students--especially first-year law students--with an interest in legal theory.

The Seamless Web and the Interconnectedness of Legal Doctrine 

One idea expressed by the metaphor of the seamless web is the interconnectedness of legal doctrine.  If the law is a seamless web, then the categorization of legal doctrine into discrete fields (torts, property, contracts, and so forth) does not accurately capture the nature of the law.  A classic example of this idea can be found by examining the line between torts and contracts.  It might be thought that there is some "seam" or dividing line that sharply separates these two doctrinal fields.  For example, we might think that contracts is the law of voluntary transactions, whereas torts deals with involuntary (or unconsented-to) transactions.  Of course, there is something to this idea.  Face-to-face bargaining resulting in a written and signed agreement is the paradigm of a contract and also represents a paradigmatically voluntary transaction.  Battery--an unconsented-to, harmful touching--represents both a clear instance of tort law and clearly involuntary transaction.

But the thesis that the law is a seamless web is not inconsistent with there being paradigm cases of conceptually distinct doctrinal fields.  Rather, the idea is that these paradigm cases blend into one another through a series of small and barely noticeable steps--so that there is no sharp boundary, no "seam," between tort and contract.  For example, first year law students quickly learn that not all of contract law involves agreement or bargain.  "Quasi-contract" and reliance-based liability involve transactions that are involuntary or at least not fully voluntary, and this cluster of doctrine is neither clearly tort  nor clearly contract.  One interpretation of the seamless web metaphor is that it asserts that the law is always or almost always like that--the organizing principles of various rules fade gradually into one another, and hence, there are no sharp boundaries in the web of the law. 

We might say that this first interpretation of the seamless web metaphor is ontological: "law is a seamless web" could be an assertion about the nature of doctrinal categories--they are interconnected and not isolated.  On the ontological interpretation, the law is a seamless web of legal doctrines--rules, standards, and principles.

Epistemological Holism 

A second interpretation of the seamless web metaphor is "epistemological" rather than "ontological."  What does that mean?  By epistemological, I mean that we might be talking about our knowledge of the law rather than the law itself.  Here the idea might be that understanding or comprehending any piece of legal doctrine requires knowledge of the surrounding areas of law and knowledge of those areas requires knowledge of yet more distant areas--so that a complete understanding of any one legal rule requires knowledge of the law as a whole.

An example may help.  Suppose we are trying to understanding a rule regarding consent in criminal law.  Understanding the legal concept of consent may require us to go beyond criminal law.  The criminal law concept of consent may borrow from tort concepts, contract concepts, and so forth.  Moreover, gaining knowledge of the criminal law doctrine of consent may require us to understand the relationship between the authority of the courts to shape the criminal law and the authority of legislatures to pass statutes that change common-law doctrines.  Understanding that relationship requires knowledge of the law of statutory interpretation (which is contained in opinions on many different statutes dealing with many distinct doctrinal areas) as well as constitutional law governing the separation of powers and the nature of judicial power and legislative power.  One might think that one could learn everything one needed to know in order to understand consent in the criminal law concept of consent from criminal law statutes and cases, but if the law is a seamless web, then knowledge from torts, contracts, constitutional law, and so forth may be required for a full understanding.

On the epistemological interpretation, the seamless web is a web of belief or knowledge.

The Seamless Web of Fit and Justification 

Another use of the metaphor is found in the work of Ronald Dworkin.  In the Lexicon entry on Fit and Justification, we explored Dworkin's idea that judges decide cases in the way that best "fits" and "justifies the law.  Both "fit" and "justification" connect to the idea that the law is seamless web.  So when a judge decides a "hard case," the judge's decision must "fit" the existing legal landscape.  It must be coherent with the cases, statutes, constitutional provisions, and so forth.  This requirement of fit is holistic.  That is, the decision must fit all of the law--not just the law that is directly relevant to the case at hand.  So a rule of contract law is improper if that rule would violate the constitution or authorize violation of a statutory prohibition.

Dworkin contends that legal decisions must fit the legal landscape, but that is not the end of the matter.  There may be more than one ruling that would satisfy the criterion of fit.  Of example, an ambiguous statutory provisions may have more than one reading that is consistent with the precedents, statutes, and other authoritative legal materials.  In that case, Dworkin argues, the judge should decide the case in the way that coheres with the best justification for the law.  In other words, the judge should ask, "What is the best normative theory that can justify the law as whole?"  That normative theory is then used to guide the judge's decision in the particular case.  Like the criterion of fit, the criterion of justification is holistic.  Although judges may, as a practical matter, seek the justification for a particular area of legal doctrine, in theory the question is, "What justifies the whole of the law?"  This is another sense in which the law is a seamless web--it is the whole web and not a particular strand that is the object of normative justification.

On the Dworkinian interpretation, the seamless web of the law is the object of the Herculean enterprise of producing the theory that best fits and justifies the law.

Conclusion 

The phrase, "the law is a seamless web," is one of those big ideas that students encounter early in their law school experience.  Almost every law student begins to think thoughts like, "What we are doing in contracts is connected to what we are doing in torts" or "It is all starting to fit together in one big picture."  And sooner or later, these thoughts will run into the seamless web metaphor.  This entry in the Lexicon is designed to give you the tools to think about the aphorism in a nuanced and rigorous way.

Related Legal Theory Lexicon Entries

• Legal Theory Lexicon 032: Fit and Justification
• Legal Theory Lexicon 033: Holism

Bibliography

• Ronald Dworkin, Hard Cases, 88 Harv. L. Rev. 1057 (1975), reprinted in Ronald Dworkin,Taking Rights Seriously (1978).
• F.W. Maitland, A Prologue to a History of English Law, 14 L. Qtrly Rev. 13 (1898).
• W. V. Quine & J. S. Ullian, The Web of Belief (McGraw Hill, 2d ed. 1978).

(This entry was last revised on January 15, 2017.)

Legal Theory Bookworm: "On What Matters: Volume Three" by Parfit

The Legal Theory Bookworm recommends On What Matters: Volume Three by Derek Parfit.  Here is a description:

Derek Parfit presents the third volume of On What Matters, his landmark work of moral philosophy. Parfit develops further his influential treatment of reasons, normativity, the meaning of moral discourse, and the status of morality. He engages with his critics, and shows the way to resolution of their differences.

This volume is partly about what it is for things to matter, in the sense that we all have reasons to care about these things. Much of the book discusses three of the main kinds of meta-ethical theory: Normative Naturalism, Quasi-Realist Expressivism, and Non-Metaphysical Non-Naturalism, which Derek Parfit now calls Non-Realist Cognitivism. This third theory claims that, if we use the word 'reality' in an ontologically weighty sense, irreducibly normative truths have no mysterious or incredible ontological implications. If instead we use 'reality' in a wide sense, according to which all truths are truths about reality, this theory claims that some non-empirically discoverable truths-such as logical, mathematical, modal, and some normative truths-raise no difficult ontological questions.

Parfit discusses these theories partly by commenting on the views of some of the contributors to Peter Singer's collection Does Anything Really Matter? Parfit on Objectivity. Though Peter Railton is a Naturalist, he has widened his view by accepting some further claims, and he has suggested that this wider version of Naturalism could be combined with Non-Realist Cognitivism. Parfit argues that Railton is right, since these theories no longer deeply disagree. Though Allan Gibbard is a Quasi-Realist Expressivist, he has suggested that the best version of his view could be combined with Non-Realist Cognitivism. Parfit argues that Gibbard is right, since Gibbard and he now accept the other's main meta-ethical claim. It is rare for three such different philosophical theories to be able to be widened in ways that resolve their deepest disagreements. This happy convergence supports the view that these meta-ethical theories are true. Parfit also discusses the views of several other philosophers, and some other meta-ethical and normative questions.

And here is a link to the first two volumes as a set.  I am departing from my usual practice of waiting until books are available from Amazon in light of the recent passing of Derek Parfit--the great moral philosopher.

 

Download of the Week: "Law and Moral Dilemmas" by Huang

The Download of the Week is Law and Moral Dilemmas by Bert I. Huang. Here is the abstract:

If your self-driving Volvo suddenly must decide whether to swerve into one pedestrian in order to avoid crashing into five others, what should it do?

The thought experiment known as the “trolley problem”—long invoked in controversies from bioethics to capital punishment to climate change—has enjoyed a recent surge of attention, thanks to its uncanny resemblance to choices that driverless cars may have to face. In this essay, first I review Frances Kamm’s book, The Trolley Problem Mysteries, which reveals the unsettled state of philosophical debates about this classic dilemma.

Next I report findings from randomized experiments I conducted, addressing this basic question: Can our intuitions about such moral dilemmas be influenced by the presence of the law?

The findings suggest that the law can indeed exert an influence over our moral intuitions about the trolley problem. Telling subjects that turning the trolley (sacrificing one life to save more lives) constitutes criminal homicide increases the number who say that doing so is morally prohibited. In comparison, telling subjects that the law requires minimizing casualties during such accidents reduces the number who say that turning the trolley is morally prohibited; it also increases the number who say that doing so is morally required. Moreover, the content of the law can influence moral intuitions even when subjects are told that it will not be enforced.

This evidence motivates further inquiry into the feedback loops between our moral intuitions and the law (what if the moral intuitions we can observe have already been shaped by people’s impressions, however vague or subconscious, about what the law expects?) and into the potential mechanisms of the law’s halo (do people sometimes look to the law as a source of moral guidance—and if so, when?).

Highly recommended.  Download it while it's hot!

Schlegel on Hohfeld's Academic Career

John Henry Schlegel (University at Buffalo Law School) has posted Wesley Newcomb Hohfeld: On the Difficulty of Becoming a Law Professor (Forthcoming in The Legacy of Wesley Hohfeld: Edited Major Works, Select Personal Papers, and Original Commentaries (Shyam Balganesh, Ted Sichelman & Henry Smith eds., Cambridge University Press, 2018)) on SSRN. Here is the abstract:

Wesley Hohfeld (1879 - 1918) is well known to legal philosophers and to property teachers for his table of fundamental conceptions, a terminological framework for understanding legal doctrine and reasoning. This work was also substantively important for some members of the American Legal Realist movement and Critical Legal Studies. More personally he was part of the generation of law teachers who had to figure out how to become a professional academic in the years after completion of the job of reordering of the corpus juris in the wake of the demise of the writ system. A Harvard Law School educated westerner who ambivalently wanted to move east from his post at the then decidedly non-elite Stanford Law School, Hohfeld eventually made it to the then decidedly non-elite Yale Law School. His relatively brief career sheds light on both how in the years before World War I legal academics built a professional identity and how they navigated the nascent law school network. It also raises a question of how an analytical legal scholar might have responded to later developments in jurisprudence.

Newman on Vested-Use Privileges in Property & Copyright

Christopher M. Newman (George Mason University - Antonin Scalia Law School, Faculty) has posted Vested Use-Privileges in Property and Copyright (Harvard Journal of Law and Technology, 2017 Forthcoming) on SSRN. Here is the abstract:

The notion that, “If it’s mine, I can do whatever I want with it” continues to have strong popular appeal as describing one of the implications of property ownership. Indeed, this notion is coming to be pressed into service as a source of normative objection to the scope of certain intellectual property laws which have the effect of limiting what consumers can do with chattels they otherwise own. Yet in property theory the status of use-privileges has long been dubious, with the right to exclude instead taking center stage. This essay considers the nature of a “vested use-privilege” from both analytical and positive law perspectives, offering both a formal account of what it would mean for such an entitlement to exist or be infringed and a discussion of both the extent to which such an entitlement actually exists in extant property law and the extent to which copyright law should be regarded as conflicting with it.

Barnett on Depropertization of Patents

Jonathan Barnett (USC Gould School of Law) has posted Has the Academy Led Patent Law Astray? (Forthcoming, Berkeley Technology Law Journal (2017)) on SSRN. Here is the abstract:

Scholarly commentary widely asserts that technology markets suffer from a triplet of adverse effects arising from the strong patent regime associated with the establishment of the Court of Appeals for the Federal Circuit in 1982: “patent thickets” that burden innovation with transaction and litigation costs; “patent holdup” resulting in excessive payouts to opportunistic patent holders; and “royalty stacking” resulting in exorbitant patent licensing fees. Together these effects purportedly depress innovation and inflate prices for end-users. These repeated assertions are inconsistent with the continuing robust output, declining prices and rapid innovation observed in the most patent-intensive technology markets during the more than three decades that have elapsed since 1982. Recent empirical studies relating to each of these assertions have found little to no supporting evidence over a variety of markets and periods. Nonetheless courts, antitrust agencies and legislators have taken, or have proposed taking, actions consistent with these assertions. Most importantly, policymaking entities have sought to mitigate thickets, holdup and stacking effects by limiting injunctive relief for important segments of the patentee population and placing significant constraints on damages awards. Substituting monetary relief for injunctive relief—what I call the “depropertization” of the patent system—yields three potential efficiency losses. First, depropertization impedes efficient resource allocation by shifting the pricing of technology assets from the relatively informed marketplace to relatively uninformed judges and regulators. Second, depropertization distorts markets’ organizational choices by inducing entities to undertake innovation and commercialization through vertically integrated structures, rather than contractual relationships now clouded by the prospect of judicial re-negotiation. Third, depropertization may facilitate oligopsonistic efforts to depress royalties on patent-protected inputs, resulting in wealth transfers to downstream entities and discouraging innovation by upstream R&D suppliers. This possibility is consistent with the revealed preferences of downstream intermediate users in the smartphone market, who advocate limiting injunctive relief and damages awards for certain patent holders. These potential welfare losses, combined with the paucity of evidence for thicket, holdup and stacking effects, recommend against policy actions that have weakened patent protections in technology markets.

Stone on Consequentialist Legal Design for the Good Man

Rebecca Stone (UCLA School of Law) has posted Legal Design for the 'Good Man' (Virginia Law Review, Vol. 102, No. 7, 2016) on SSRN. Here is the abstract:

Consequentialist analysts of legal rules tend to focus their attention on Holmes’s “bad man,” who conforms to legal rules only out of fear of legal sanctions. On this view, legal rules should be designed to give self-interested legal subjects sufficient reason to choose socially optimal actions. But many people conform to legal rules simply because they are the rules, even when their self-interest dictates doing otherwise.

At first glance, this focus on the bad man seems to make sense. Lawmakers, it is plausible to suppose, don’t have to worry about the “good man” when designing legal rules because he will do what they want him to do anyway by conforming to the law. In other words, good man analysis of law is simple and so can be safely ignored.

But good man analysis of law is much more complex than scholars have previously supposed, and ignoring the good man will therefore lead consequentialist lawmakers to err. People are motivated to comply with legal rules for various different kinds of reasons, and this variety matters for their behavior by affecting both their short-run responses to legal rules and their long-run attitudes towards the law. A lawmaker ought to design legal rules in a way that attends to this variety if her aim is to design socially optimal rules.

This Article systematically analyzes the problem of legal design in the face of the diversity of motivational types that exist in the population of legal subjects. Part I develops a typology of good persons by exploring the causes and consequences of legal norm internalization—the ways in which a person’s preferences are transformed such that he comes to value complying with legal rules for the sake of the rules. Part II argues that a good person’s type matters for his behavior in a number of important ways. For example, it affects the way in which he chooses among actions that conform to legal norms and the ways in which he responds to the various kinds of uncertainty to which the legal system exposes him. Part III derives normative implications of my analysis for consequentialist lawmakers, while also addressing the converse worry that good man analysis of law is too complex to be tractable. The overall aim is to systematically examine the ways in which a diversity of motivations in the population complicates the problem of legal design for legislators, judges, and administrative officials, and to develop an organizing framework that can be used to think about the problem rigorously, which I illustrate by exploring some examples.

Highly recommended.  Download it while it's hot!

Newman on "The Merchant of Venice" &

Joel S. Newman (Wake Forest University - School of Law) has posted If Shylock Had a Lawyer (7 Wake Forest J.L. & Pol'y S.S. 21 (2016)) on SSRN. Here is the abstract:

In Shakespeare’s “Merchant of Venice,” the “pound of flesh” agreement was notarized. Presumably, pursuant to European custom, the notary would have drafted the agreement. Had the events of the play taken place today, any notary who drafted such an agreement would be in violation of Italian law.

Had Shylock consulted a modern American lawyer, drafting the agreement, or even agreeing to the representation in the first place, would have been a violation of the ABA Model Rules of Professional Conduct.

Caunt on But-For Causation

Lachlan Thomas Caunt (University of British Columbia (UBC), Faculty of Law) has posted Say What You Mean, and Mean What You Say: Rebuilding the Building Blocks of But-For Causation on SSRN. Here is the abstract:

What does ‘causation’ actually mean? Is saying that an act ‘caused’ an outcome linked to an observable notion of cause and effect; or is such a statement based upon supposition and guesswork? This early draft article begins to break down and rebuild the term ‘causation’, and what is required to ‘prove’ a causal link in Canadian law. Courts, theorists, and practitioners have never neatly grasped the core of what causation means. The way science approaches cause is, by necessity, different to the way law approaches cause. The standards and nomenclature in the former are necessarily precise and ordered; the standards in the latter are, perhaps unnecessarily, less precise and disordered. This early draft (to which critical comments are greatly appreciated) works through the haze of imprecise language to begin to unearth what causation does, or perhaps should, mean.

From a different perspective, see Causation and Responsibility: An Essay in Law, Morals, and Metaphysics byMichael S. Moore.

Huhn on the Impact of Scalia's Replacement on Gender Equality

Wilson Ray Huhn (University of Akron - School of Law) has posted The Impact of Justice Scalia's Replacement on Gender Equality Issues on SSRN. Here is the abstract:

Every Presidential election is, in effect, a national referendum on the meaning of the Constitution. The people of the United States are largely united in their dedication to the general constitutional principles of liberty, equality, fundamental fairness, democracy, and limited government. We are, however, divided as to the proper application of those principles to our laws and public institutions. Elections for the Presidency and (to a much lesser degree) the Senate of the United States afford each citizen the opportunity to vote on how the Constitution should be interpreted.

Myriad provisions of Constitutional Law bear upon gender equality. Standards under the Equal Protection Clause, the Right to Privacy, the First Amendment, the Establishment Clause, the Free Exercise Clause, the Commerce Clause, the Enforcement Clause of the Fourteenth Amendment, the State Action Doctrine, and the unenumerated principle of State Sovereignty all bear upon the legal rights of women and men, LGBTQ and straight individuals. The Supreme Court is evenly and sharply divided in its approach to interpreting all of these constitutional provisions, and these interpretive differences also affect the validity and application of civil rights statutes. This presidential election will have a major impact on our legal rights to gender equality.

 

Gentithes on Appeals Invited by Supreme Court Justices

Michael Gentithes (New York University School of Law) has posted Check the Invitation: The Trouble with Appeals Invited by Supreme Court Justices (Missouri Law Review, Forthcoming) on SSRN. Here is the abstract:

Although the United States Supreme Court sits atop our nation’s adversarial legal system, litigation in the Court increasingly fails to reflect the ideals of procedural justice embedded in that system. Parties and their attorneys play a shrinking role in actually shaping the direction of the law. Capital punishment litigation in recent terms exemplifies how modern Supreme Court Justices exercise top-down control of the direction of new doctrine to the exclusion of the parties themselves. Too often, Justices reach beyond the immediate dispute to invite appeals on related topics that they believe future litigants ought to raise.

Such invited appeals come in two forms of varying normative desirability. First are “soft invitations,” which are simply-phrased, open questions to the bar that a Justice thinks future litigants should answer. Second are “opinion-briefs,” which perniciously offer detailed analytical answers to the Justices’ own questions.

In this Article, I argue that opinion-briefs are extremely dangerous for two reasons. First, the frequent use of opinion-briefs expands the rift between our legal system’s faith in adversary procedure and the actual process of litigation in our nation’s highest court. Adversarial litigation is our legal way of life. Though opinion-briefs and a top-down style of jurisprudence might seem attractive for a Court that has become the primary policy-making body in our federal government, significant theoretical justifications for opinion-briefs and other forms of top-down decision making would be necessary to overcome the institutional threats that they create. Second, opinions-briefs undermine many traditional notions of appellate jurisprudence. The author of an opinion-brief appears far from neutral, disregards any sense of judicial humility, and often calls for trimming or reversing longstanding bodies of precedent. Opinion-briefs also tempt the Justices to misallocate their limited resources by wading into a morass of policymaking better left to coordinate branches of government.

Massaro, Norton, & Kaminski on Free Speech for Artificial Intelligences

Toni M. Massaro, Helen L. Norton and Margot E. Kaminski (University of Arizona College of Law, University of Colorado School of Law and Ohio State University (OSU) - Michael E. Moritz College of Law) have posted Siri-ously 2.0: What Artificial Intelligence Reveals about the First Amendment (Minnesota Law Review (Forthcoming)) on SSRN. Here is the abstract:

The First Amendment may protect speech by strong Artificial Intelligence (AI). In this Article, we support this provocative claim by expanding on earlier work, addressing significant concerns and challenges, and suggesting potential paths forward.

This is not a claim about the state of technology. Whether strong AI — as-yet-hypothetical machines that can actually think — will ever come to exist remains far from clear. It is instead a claim that discussing AI speech sheds light on key features of prevailing First Amendment doctrine and theory, including the surprising lack of humanness at its core.

Courts and commentators wrestling with free speech problems increasingly focus not on protecting speakers as speakers but instead on providing value to listeners and constraining the government’s power. These approaches to free speech law support the extension of First Amendment coverage to expression regardless of its nontraditional source or form. First Amendment thinking and practice thus have developed in a manner that permits extensions of coverage in ways that may seem exceedingly odd, counterintuitive, and perhaps even dangerous. This is not a feature of the new technologies, but of free speech law.

The possibility that the First Amendment covers speech by strong AI need not, however, rob the First Amendment of a human focus. Instead, it might encourage greater clarification of and emphasis on expression's value to human listeners — and its potential harms — in First Amendment theory and doctrine. To contemplate — Siri-ously — the relationship between the First Amendment and AI speech invites critical analysis of the contours of current free speech law, as well as sharp thinking about free speech problems posed by the rise of AI.

Highly recommended.

Sant'Ambrogio & Zimmerman on Agency Class Actions

Michael D. Sant'Ambrogio (Michigan State University - College of Law) & Adam S. Zimmerman (Loyola Law School Los Angeles) have posted Inside the Agency Class Action (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:

Federal agencies in the United States hear almost twice as many cases each year as all the federal courts. But agencies routinely avoid using tools that courts rely on to efficiently resolve large groups of claims: class actions and other complex litigation procedures. As a result, across the administrative state, the number of claims languishing on agency dockets has produced crippling backlogs, arbitrary outcomes and new barriers to justice.

A handful of federal administrative programs, however, have quietly bucked this trend. The Equal Employment Opportunity Commission has created an administrative class action procedure, modeled after Rule 23 of the Federal Rules of Civil Procedure, to resolve “pattern and practice” claims of discrimination by federal employees before administrative judges. Similarly, the National Vaccine Injury Compensation Program has used “Omnibus Proceedings” resembling federal multidistrict litigation to pool common claims regarding vaccine injuries. And facing a backlog of hundreds of thousands of claims, the Office of Medicare Hearings and Appeals recently instituted a new “Statistical Sampling Initiative,” which will resolve hundreds of common medical claims at a time by statistically extrapolating the results of a few hearing outcomes.

This Article is the first to map agencies’ nascent efforts to use class actions and other complex procedures in their own hearings. Relying on unusual access to many agencies — including agency policymakers, staff and adjudicators — we take a unique look “inside” administrative tribunals that use mass adjudication in areas as diverse as employment discrimination, mass torts, and health care. In so doing, we unearth broader lessons about what aggregation procedures mean for policymaking, enforcement and adjudication. Even as some fear that collective procedures may stretch the limits of adjudication, our study supports a very different conclusion: group procedures can form an integral part of public regulation and the adjudicatory process itself.

Highly recommended.