Legal Theory Blog

Grossman on the Normative Legitimacy of International Courts

Nienke Grossman (University of Baltimore - School of Law) has posted The Normative Legitimacy of International Courts on SSRN. Here is the abstract:

Traditional justifications for the authority of international courts are based on outmoded assumptions of the role and impact of international courts. State consent and procedural fairness to litigants are insufficient to ground the normative legitimacy of institutions which may adjudicate the international rights and duties of non-litigants, deeply affect the interests of non-litigating stakeholders and shape the law prospectively. These realities mandate a new approach to the normative legitimacy of international courts. This article presents three alternative or additional approaches for justifying the authority of international courts. First, legitimacy requires a re-imagining of procedural fairness to include those whose international rights and duties are being adjudicated by international courts. Further, democratic theory can help to justify the authority of international courts so long as stakeholders are given the opportunity to participate in the formulation of policies that affect them. Second, international courts must adhere to certain universal standards of justice. They cannot facilitate the violation of a set of core norms, including prohibitions against torture, slavery, racial discrimination and genocide, and still retain their legitimacy. Third, the extent to which an international court implements the objectives it was created for may also affect its legitimacy. The article’s objective is to spark discussion about the standards by which these increasingly important institutions should be judged.

Wendel on Critics of "Lawyers & Fidelity to Law"

W. Bradley Wendel (Cornell University - School of Law) has posted Legal Ethics is about the Law, Not Morality or Justice: A Reply to Critics (Texas Law Review, Vol. 90, No. 3, 2012) on SSRN. Here is the abstract:

In this brief response I address critiques of my book, Lawyers and Fidelity to Law, in the Texas Law Review by Tony Alfieri, Kate Kruse, David Luban, Steve Pepper, and Bill Simon. Although the critical response varies in detail, in general one can understand our differences using H.L.A. Hart's idea of an opposition between the nightmare and the noble dream of some practice or institution. A theory of law or legal ethics may be animated by a fear that a different approach is the road to some imagined hell, and I think this metaphor helps explain some of the points of contention in the debate over the book. The major figures in the field of legal ethics -- many of whom I’m honored to have as critics in this review symposium -- seem ironically to be worried about an excessive tendency on the part of citizens and lawyers to obey the law. Simon exalts civil disobedience and even nullification of law, Luban reminds us that the Milgram Experiments demonstrated that people are not particularly inclined to resist unjust authorities, and even Pepper, who has resolutely defended the standard conception against its academic critics for many years, has been concerned to provide avenues for conscientious objection by lawyers. The nightmare case in the back of the minds of these theorists is the German legal profession in the Third Reich or the American legal profession in the Jim Crow South, all too willing to lend their assistance and expertise to the administration of an unjust regime by faithfully interpreting and applying positive law. The figure of the lawyer-as-Eichmann haunts many legal ethicists. Their noble dreams invoke real lawyers like Louis Brandeis or fictional characters such as Atticus Finch to highlight the virtues of wisdom, discretion, and informed judgment about both morality and the law. Not surprisingly, these lawyers tend to be nonconformists and mavericks, willing to disobey orders or blow the whistle if they believe the client’s ends are unjust.

My nightmare, on the other hand, is set in a world in which not all lawyers possess the rectitude and trustworthiness of Brandeis and Finch, but are just as keen to act as moral free agents. The fear is not anarchy but the abuse of power. The figure that haunts my dreams is that of lawyers in the Office of Legal Counsel presenting their “legal” advice with a straight face to the President, informing him that the law authorizes waterboarding, or of the in-house and retained lawyers for Enron who authorized the transactions that eventually toppled the company. In this nightmare vision, the lawyers do not believe themselves to be acting wrongly; rather, they think they are respecting the ethical principle of zealous advocacy. Never mind that they are counseling clients or structuring transactions, not acting as advocates -- they believe themselves to be ethically permitted to rely on strained, distorted, and implausible (or, stated more positively, creative and aggressive) interpretations of law to advance their clients’ ends. My noble dream is not a lawyer of extraordinary wisdom and discretion, but merely a regular person who balks at bending the law out of shape to permit her client to do something.

Within a moderately decent society, the ethics of lawyers acting as lawyers has to be oriented toward the law, not morality or justice. If lawyers wish to be activists or dissidents, they can be, but it is essential that they not confuse these very different social roles. I am not blind to the injustices that remain in the United States, but the legal response to this injustice should not be individual acts of sabotage or nullification. Lawyers can, and should advocate for change, but as always it should be zealous advocacy . . . within the bounds of the law. One of the principal aims of the book was to restore the last part of the lawyer’s mantra just quoted to its proper place in legal ethics. Without the constitutive obligation of fidelity to law, lawyers are just sophists, offering nothing beyond the kind of half-baked moral advice that any decent client could supply for herself. If there is something distinctive about our profession, it has to be a commitment to the value of legality and a corresponding obligation to respect the law.

Tarlock on Climate Change, Water Rights, & Takings

A. Dan Tarlock (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Takings, Water Rights, and Climate Change (36 Vermont Law Review 731 (2012)) on SSRN. Here is the abstract:

This Article examines the possible consequences of climate change on the Supreme Court’s takings jurisprudence as it applies to the non-recognition and regulation of water rights and land rights at the land-water interface.

Part I of the Article examines the potential impact of climate change on the use and value of land and water rights and the possible changes to the attributes of property ownership that climate change may produce. Part II poses six pro-type cases where legislative, administrative, or judicial action may produce takings challenges and examines existing precedents and possible resolutions of the cases. The Article concludes by sketching the principles of a climate change takings jurisprudence for water rights and for land at the water-land interface.

Ailwood, Easteal, & Kennedy on Law & Women's Experience of violence in Australia

Sarah Ailwood, Patricia L. Easteal and Jessica Kennedy (University of Canberra, University of Canberra - Faculty of law and University of Canberra) have posted Law's Indifference to Women's Experience of Violence: Colonial and Contemporary Australia (35 Women’s Studies International Forum 86-96, 2012) on SSRN. Here is the abstract:

Research suggests that despite substantial changes to domestic violence legislation since its conception in the 19th century, women’s voices continue to be muted and domestic violence continues to be invisible, to some extent, in the eyes of the law. This paper uses the 1881 autobiography of Eliza Davies and the voices of contemporary women who speak out about their experiences to highlight the dynamics through which domestic violence becomes and remains invisible. It particularly focuses on the effects of the adversarial justice system, and its indifference to victims of violence within criminal and family law processes. Clear parallels in the social, legal and juridical experiences of domestic violence between the mid-nineteenth century and contemporary Australia are drawn. It concludes that although many aspects of the law have changed, and clear improvements have been achieved in some areas, the procedures by which those laws are administered mean that their effectiveness to protect the victim is limited.

Morris on Patent versus Regulatory Exclusivity under the Hatch-Waxman Act

Emily Morris (Indiana University Robert H. McKinney School of Law) has posted Patent Exclusivity versus Regulatory Exclusivity under the Hatch-Waxman Act on SSRN. Here is the abstract:

The pharmaceutical industry is exceptional. Pharmaceutical development is one of the most cost- and time-intensive areas of technology largely because it is one of the industries most subject to regulatory intervention. Unlike most other technologies, pharmaceuticals are heavily regulated by the Food and Drug Administration (“FDA”) to ensure their safety and efficacy; indeed, the FDA regulates the manufacture and marketing of pharmaceuticals more strictly than it regulates food, dietary supplements, or cosmetics. The pharmaceutical industry is now exceptional in two additional ways. First, pharmaceuticals are subject to provisions both limiting and extending patent protections that do not apply to other technologies. Second, pharmaceuticals now enjoy non-patent regulatory exclusivities that no other technology enjoys. Both the latter two exceptions are thanks to the Drug Price Competition and Patent Term Restoration Act, known informally as the Hatch-Waxman Act after its two leading sponsors, and its subsequent amendments.

Some of Hatch-Waxman’s provisions favor brand-name pharmaceutical innovators, whereas other provisions foster market entry of generic pharmaceuticals and their typically much lower-price imitations of brand-name pharmaceuticals. In terms of increasing generic entry, the Hatch-Waxman Act seems to be a huge success, although a number of other unintended consequences also seem to have arisen from Hatch-Waxman’s provisions. One change that many commentators continue to debate, however, is the creation of periods of regulatory exclusivity. Some sort of market exclusivity is widely believed to be necessary to protect the large investments that pharmaceutical manufacturers invest in creating and testing new drugs. For most of the pharmaceutical industry’s history, however, patents have been widely regarded as a highly effective means of providing such exclusivity. What, then, can be the role of regulatory exclusivities?

Originally created partially in compensation for the more pro-generic provisions of Hatch-Waxman, and partially to incentivize further studies on existing drugs, regulatory exclusivities may also provide other advantages. Accordingly, the following discussion looks at regulatory exclusivity as not just an adjunctive form of exclusivity but in fact as a possible alternative to patents. This article therefore takes a closer look at the differences between the two and how data exclusivity more aptly protects innovation in the pharmaceutical industry.

The discussion concludes that, depending on whether pharmaceutical innovators are currently receiving enough of the returns on their investments, leveraging the potential advantages of regulatory over patent exclusivity may be more or less difficult. Regardless, given the exceptionalism of the pharmaceutical industry and its unique regulatory exclusivities, examination of how to take advantage of that exceptionalism is warranted.

Sawicki on Government Health Images & Constitutional Litigation

Nadia N. Sawicki (Loyola-Chicago School of Law, Beazley Institute for Health Law & Policy) has posted Government Health Images: Constitutional Challenges Miss the Mark on SSRN. Here is the abstract:

Public health campaigns have long relied on the use of emotionally-stirring graphic imagery to persuade – early examples include a 1919 poster from the American Red Cross featuring the ghost of tuberculosis being pushed out of a home, and a 1944 U.S. War Department venereal disease warning depicting an attractive woman as “A Bag of Trouble.” Indeed, one could trace the history of American public health using posters from the U.S. Public Health Service alone. While the public display of such images has traditionally been uncontroversial, two recent legal developments, regarding tobacco and ultrasound images, have brought the state’s use of graphic imagery in medical and public health contexts to the forefront of public debate.

As these two cases wind their way through the court system, commentators eagerly await judicial decisions resolving these difficult questions of constitutional law. However, because the formal constitutional arguments grounding challenges to the government’s persuasive use of imagery align imperfectly with what are fundamentally ethical concerns, it is clear that even judicial resolutions are unlikely to take these issues off the table. The legal system is often a flawed mechanism for resolving controversial issues in biomedical ethics, and this is certainly the case here.

Rai & Sampat on Underreporting of Federal Funded Research in Biomedical Patents

Arti K. Rai and Bhaven N. Sampat (Duke University School of Law and Columbia University - Mailman School of Public Health) have posted Accountability in Patenting of Federally Funded Research (Nature Biotechnology, Vol. 30, No. 10, October 2012) on SSRN. Here is the abstract:

Bayh-Dole allows academic grantees to patent federally-funded research for purposes of promoting the commercialization of this research. To ensure commercialization goals are achieved, the Act requires grantees to report to funding agencies not only the existence of federally-funded patents but also utilization efforts they and their licensees/assignees are making.

Although reporting is a cornerstone of accountability under Bayh-Dole, information about grantee compliance with reporting requirements is incomplete and dated. In fact, the last significant study of the question dates back to the late 1990s and analyzes only 633 patents. Since that time, concerns have emerged that federally-funded university patents are being asserted improperly against independent commercializers or even assigned to so-called “patent trolls.”

This article provides fresh evidence indicating substantial under-reporting of the existence of federal funding in over 30,000 academic biomedical patents issued between 1980 to 2007. The article finds substantial under-reporting of federal funding even in the case of patents on FDA-approved drugs, which should presumably receive significant attention from universities.

Grantees’ failure to report federal funding suggests similar, or even more significant, noncompliance with requirements to report utilization information. However, compliance with reporting requirements on utilization cannot be assessed because of secrecy associated with relevant government databases. Accordingly, the article makes a fresh argument that the Commerce Department, which has the requisite regulatory authority, work with funding agencies, to improve transparency. Greater transparency would not only motivate grantees to improve reporting but would also allow assessment of whether grantee patent management is actually achieving Bayh-Dole's utilization goals.

Finkelman on Defining Slavery under American Law

Paul Finkelman (Albany Law School - Government Law Center) has posted Defining Slavery Under a 'Government Instituted for the Protection of the Rights of Mankind' (35 Hamline Law Review 551-590, Summer 2012) on SSRN. Here is the abstract:

This article explores the way slavery was defined under American law. The article begins with the colonial period, showing how Virginia law allowed for the treatment of slaves as property. The article then turns to the US Constitution, which refers to slaves as “persons,” but in some places also treats them as property. The article then turns to Supreme Court jurisprudence, showing how the Marshall and Taney Courts treated slaves mostly as property. Finally, the article considers how slaves were redefined as people through the Emancipation Proclamation, the enlistment of black troops, and the Thirteenth Amendment.

Kaswan on Domestic Climate Change Adaptation and Distributive Justice

Alice Kaswan (University of San Francisco - School of Law) has posted Domestic Climate Change Adaptation and Equity (Environmental Law Reporter, Vol. 42) on SSRN. Here is the abstract:

It is now commonly accepted that climate change will lead to sea-level rise, more extreme storms, heat waves, wildfires, changing weather patterns, and the spread of disease. Reducing greenhouse gas emissions is necessary, but not sufficient. Global, national, and subnational adaptation measures to reduce climate harm are essential.

This article argues that equity should be a central feature of emerging domestic climate adaptation initiatives. It details how more frequent and intense “natural” disasters, long-term impacts on habitability, and public health threats will have unequal impacts within the United States. The article suggests seven principles for achieving equitable adaptation, principles designed to improve substantive outcomes, ensure meaningful participation, and address underlying socioeconomic conditions.

Baker & Mooney on the Legal Status of Arctic Sea Ice

Betsy B. Baker and Sarah Mooney (Vermont Law School and Vermont Law School) have posted The Legal Status of Arctic Sea Ice in the United States and Canada (35 (1) Polar Geography 2012 (1-19)) on SSRN. Here is the abstract:

The treatment of sea ice in US and Canadian law has failed adequately to allocate and manage demands on Arctic sea ice among competing uses. Decision makers have generally categorized sea ice as either land or water, a binary approach that ignores its unique characteristics and the services it provides to many different users. Agency action and related litigation in the USA demonstrate sea ice user conflicts and highlight the tendency of US law to protect only one type of user at a time. In Canada, two recent Inuit Land Claims Agreement create zones that encompass sea ice. Yet both systems are beginning to acknowledge sea ice as a component of larger systems and as a resource with multiple uses and users. Both countries have the seeds of mechanisms in place to allow multiple users of sea ice to provide input on planning decisions affecting sea ice. While much work lies ahead, and none of these steps on its own clarifies the legal status of sea ice, combined they provide a modest foundation for beginning to better balance competing uses of sea ice in a warming Arctic.

Fisk & Chemerinsky on Association Rights

Catherine Fisk and Erwin Chemerinsky (University of California, Irvine School of Law and University of California, Irvine School of Law) have posted Political Speech and Association Rights after Knox v. Seiu Local 1000 (Cornell Law Review, Vol. 98, No. 5, 2013) on SSRN. Here is the abstract:

In Citizens United, Boy Scouts of America v. Dale, and other recent cases, the Supreme Court has given organizations a newly-robust First Amendment right to use the entity’s money in ways that stakeholders within the organization may find anathema and to discriminate against employees and members in order to advance the expressive interest of the entity. Yet, in Knox v. SEIU Local 1000 in 2012, the Court held that a labor union violates the First Amendment rights of dissenters if it levies a special assessment for political speech without first having dissenters opt in. The Court’s jurisprudence on associational speech lacks any theory of when and why an organization’s speech violates the rights of dissenters. Nor does it consider what kinds of internal organizational governance mechanisms are necessary to ensure a fair allocation of speech protections between those who wish the organization to promote one message and those who wish it to promote another. Moreover, the majority in Knox casts First Amendment doubt on the validity of the entire concept of collective bargaining by a union elected by a majority to represent all employees in a bargaining unit of government employees. As ballot measures in various states have been enacted or are pending limiting the rights of unions to raise and spend money on politics in the name of protecting dissident employees, a principled approach to the free speech rights of unions, corporations, and other associations is ever more needed.

In this article we offer an approach to reconciling the First Amendment expressive interests of organizations with the expressive interests of dissenting stakeholders within them. We suggest an approach to resolving the inconsistency between Citizens United, the union-dues cases, and the Court’s other compelled speech and associational speech jurisprudence. Contrary to the prevailing wisdom, we suggest not that shareholders be given the opt out (or opt in) rights of dissenting union employees but instead that unions be given the same broad speech rights as corporations to use dues and fees paid by all employees on political activity.

Highly recommended.

Mullenix on the Supreme Court's Summary Judgment Trilogy

Linda Mullenix (University of Texas School of Law) has posted The Twenty-Fifth Anniversary of the Supreme Court's Summary Judgment Trilogy (Loyola U. Chi. L. 2012 Symposium Issue) on SSRN. Here is the abstract:

The twenty-fifth anniversary of the Supreme Court’s famous summary judgment trilogy1 provides an excellent opportunity to reflect on the legal profession’s ability to overstate, overhype, and overinflate the impact of Supreme Court decisions. This certainly would seem to be true for predictions concerning summary judgment practice that were issued in the immediate aftermath of the Court’s 1986 decisions in Celotex, Anderson, and Matsushita.

Famously, members of the academy and other legal seers opined that the Supreme Court, in issuing the summary judgment trilogy, was telegraphing a message to federal judges to make enhanced usage of summary judgment to expedite legal proceedings and to intercept and dismiss factually deficient litigation before trial. The not-so-veiled purpose of the summary judgment trilogy, then, was to nudge federal judges out of their normal predisposition against summary judgment. Consequently, a number of procedural wags predicted that federal courts would witness a surge of summary judgment dismissals in the wake of the trilogy.

Bezanson on Too Much Free Speech

Randall P. Bezanson (University of Iowa College of Law) has posted Too Much Free Speech? (University of Illinois Press, October 2012) on SSRN. Here is the abstract:

In Too Much Free Speech? Randall Bezanson takes up an inquiry into the Constitutional limits of the Supreme Court's power to create, interpret, and enforce one of the essential rights of American citizens. Examining a body of recent First Amendment cases, including the Citizens United case, the Doe voting referendum case, the Summum government speech case, and the Hurley and Dale cases, Bezanson argues that judicial interpretations have fundamentally and drastically expanded the meaning of speech under the First Amendment. He critically assesses the Supreme Court's methodology and concludes that the Court's conduct does not befit the Court's constitutional responsibilities as it engages in interpretation of the First Amendment's meaning.

Here is a link to the book: Too Much Free Speech?.

LaCroix on the Lawyer's Library in the Early American Republic

Alison L. LaCroix (University of Chicago Law School) has posted The Lawyer's Library in the Early American Republic (Subversion and Sympathy: Gender, Law, and the British Novel in the Eighteenth and Nineteenth Centuries, Martha C. Nussbaum and Alison L. LaCroix, eds., Oxford University Press, 2013) on SSRN. Here is the abstract:

This essay appears in a volume titled Subversion and Sympathy: Gender, Law, and the British Novel in the Eighteenth and Nineteenth Centuries (Martha C. Nussbaum and Alison L. LaCroix, eds.) (forthcoming, Oxford University Press, 2013). The essay explores the role that fiction played in the early republican project of building American nationhood. Many eighteenth- and nineteenth-century American statesmen and jurists – including such prominent thinkers as John Adams, Thomas Jefferson, John Marshall, and Joseph Story – were avid readers of fiction. The vast majority of the novels they read were written by English authors; moreover, many of those authors were women. For example, among Marshall’s surviving papers is a letter in which he chided Story for not including Jane Austen among the great novelists that Story listed in an 1826 address to Harvard’s Phi Beta Kappa chapter. Story had, however, cited Maria Edgeworth, Fanny Burney, and Ann Radcliffe in his address, and his son later recalled that his father had enjoyed Austen’s novels. “This is emphatically the age of reading,” Story told his Phi Beta Kappa audience. And, he added, “[m]an no longer aspires to an exclusive dominion in authorship.” For founding-era thinkers such as Adams and Jefferson, novel-reading provided a way for Americans to participate in transatlantic culture and to hone a republican moral sensibility. For the early-nineteenth-century jurists Marshall and Story, fiction offered an opportunity to engage with emotions such as sympathy and to participate in a public sphere that brought men and women together, as both authors and readers, in a conversation that connected politics, law, and literary culture. These producers of legal theory were also consumers of fiction, gentlemen of letters who immersed themselves in female novelists’ work not as a means of escape, but because those novels offered insights into what they regarded as crucial political questions of individual sentiment and national character.

Posner on Balance of Powers & the Structural Constitution

Eric A. Posner (University of Chicago - Law School) has posted Balance-of-Powers Arguments and the Structural Constitution on SSRN. Here is the abstract:

Balance-of-powers arguments are ubiquitous in judicial opinions and academic articles that address separation-of-powers disputes over the president’s removal authority, power to disregard statutes, authority to conduct foreign wars, and much else. However, the concept of the balance of powers has never received a satisfactory theoretical treatment. This essay examines possible theories of the balance of powers and rejects them all as unworkable and normatively questionable. Judges and scholars should abandon the balance-of-powers metaphor and instead address directly whether bureaucratic innovation is likely to improve policy outcomes.

Tsai on Politics & Hate

Robert L. Tsai (American University - Washington College of Law) has posted The Politics of Hate (Journal of Hate Studies, Vol. 10, No. 1 (2012)) on SSRN. Here is the abstract:

This is a special issue dedicated to the topic of hate and political discourse. Collectively, the peer-reviewed articles in this volume are concerned with the political aspects of hatred, i.e., psychology, motivations, organization, tactics, and ends. The articles approach the problem from a variety of disciplines, including anthropology, history, law, literature, philosophy, political science, psychology, and sociology. Among the subjects analyzed: group hatred as a heritable trait; hate as an irrational system of thought; Italian fascism's construction of the Communist other; the rise of the English Defence League and its anti-Islam activities; the persistent myth of blood libel; judicial handling of lynching in the U.S.; the challenges of drafting hate crimes legislation; and combating anti-democratic values such as Aryanism through youth literature.

Gardiner on Geoengineering & Desperation

Stephen Gardiner (University of Washington, Seattle) has posted The Desperation Argument for Geoengineering (PS: Political Science and Politics, 2012) on SSRN. Here is the abstract:

Some argue that geoengineering by desperate nations would be justified, and that the developed nations ought to aid them through research on how to do it. In this paper, I explore two interpretations of such arguments and find them wanting. I also argue that, whether or not geoengineering by the desperate would be justified, focusing on justification alone obscures important aspects of the ethics of geoengineering.

Weithorn on Neuroscience & Child Protection Reform

Lois A. Weithorn (University of California - Hastings College of Law) has posted Developmental Neuroscience, Children's Relationships with Primary Caregivers, and Child Protection Policy Reform (63 Hastings Law Journal 1487 (2012)) on SSRN. Here is the abstract:

This Article — an outgrowth of a panel on Relationships with Caregivers and Children’s Neurobiological Development, which took place at a recent symposium, Law and Policy of the Developing Brain, co-sponsored by the University of California’s Hastings College of the Law and Stanford Law School — addresses some of the potential policy applications of research on the neurobiology of attachment, maltreatment, and trauma, with particular attention to the government’s articulated mission of safeguarding children’s welfare.

Part I of this Article address the state’s relationship with children and families, and the law’s recognition of the centrality of children’s primary caregivers — typically their parents — to children’s well-being. Part II critiques certain aspects of our legal system’s predominant response to child maltreatment. Part III reviews recent research on the effects of child maltreatment, with special attention to developmental neurobiological findings. Part IV addresses some implications of these findings for child protection policy and sets forth recommendations that are consistent with the empirical research and responsive to the critiques set forth in Part II.

Patrick on Standing in Constitutional Cases

Jeremy Patrick (University of Southern Queensland School of Law) has posted A Polemic Against the Standing Requirement in Constitutional Cases on SSRN. Here is the abstract:

This article argues that, in constitutional cases, the standing requirement should be flatly abolished. The primary flaw with standing doctrine is that renders large swathes of the Constitution functionally worthless, contrary to the clear intention of the text and the structure of the document itself, as well as the intentions of those who drafted and ratified it. Further, standing doctrine lacks textual support, historical support, a role in maintaining the separation of powers, or any other practical necessity to warrant its retention.

Sugin on the Tax Power

Linda Sugin (Fordham University School of Law) has posted The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures on SSRN. Here is the abstract:

Taxation is the Supreme Court’s new darling. In its last two terms, the Court has endowed the tax law with legal superpowers, giving it the astonishing ability to elude constitutional limits. The justices have sent Congress and state legislatures a strong signal that they may use their tax laws as a means to aggressively enact public objectives unrelated to the traditional revenue-raising function of taxation. They have made clear that the Court will uphold policies administered through the tax law even where those same policies would be unconstitutional if administered as either direct regulation or appropriated spending.

In National Federation of Independent Business v. Sebelius, the newly muscular tax law saved Obamacare from near death at the hands of the Commerce Clause. The case confirmed the broad reach of the taxing power under the Constitution, and showed the current high Court’s willingness to treat regulatory legislation as taxation, even where Congress declined to call the legislation a “tax.” The cliffhanger ending to the Obamacare challenge may have been made possible by a much-less publicized -- but more legally radical -- case from the previous term; in Arizona Christian Schools v. Winn, which involved tax benefits for religious schools, the Court adopted a novel judicial approach to targeted tax benefits. In that case, the Court rejected the widely accepted treatment of tax expenditures as government spending administered through the tax law, and instead treated them as simple tax cuts. It thereby allowed tax benefits that are functionally equivalent to direct government spending to bypass the constitutional scrutiny that both taxes and direct spending would receive. Tax benefits are now beyond the reach of the Bill of Rights, which prohibits government action from treading on individual rights.

The consequences of this new judicial strategy are profound, raising the troubling question: Is there any justiciable limit to the great and mighty tax law? Both these cases aggravate a growing tension between economic and legal analysis of taxation, widening the gap between these two central approaches to tax law. The Court transformed tax expenditures from state action subject to constitutional limits into nonreviewable private spending by individuals. This development reduces the protection that the Constitution provides to individuals, undermines tax reform efforts and fiscal responsibility, jeopardizes established legal doctrine, and encourages less transparent and less equitable government.

Distefano on the Right of States to Wage War Unilaterally

Giovanni Distefano (University of Neuchatel - Faculty of Law) has posted Wither Away State Right to Wage War Unilaterally on SSRN. Here is the abstract:

One only has to look into the history of international relations to realize that the use of force has been intrinsically related to the ius gentium. For example, it is quite revealing that international law, as a scientific discipline, emerged from this relation. There are also many publications from the founding fathers that are related to this branch of law and which tittles specifically mentioned the law in war. To this end, one can relate to the works of De Vitoria, Suarez, Molina, Grotius, etc. Thus, it would not be too bold to claim that the modern international order was born from the regulation of the use of force and so, since the Renaissance.

The banishment of the use of force in international relations surely is the cornerstone of the United Nations Charter (hereinafter: UNC), this new social contract that would now exist between the nations that had defeated the Nazi-fascist barbarism and the Japanese imperialism. Yet, this rule, true and veritable idea that it was, did not emerge overnight but was the fruit of a long and laborious process from different stages of which will be presented in the following pages. It is fair to wonder how did we get to the current framework of the use of force and more specifically how States, those who are the very legislators of international law, have supplanted the law regulating the use of force; ius ad bellum, by the law on the prevention of war; ius contra bellum. Was it not Clausewitz who once claimed that war was nothing else but the extension of politics by other means, therefore being considered like any other (lawful) means and moreover, a sovereign right of States?

Once one knows the end point of this process, the UNC in its article 2§4, one can also wonder what were the steps of its development. The various phases that have shaped this process are of course diverse. Hence, according to inevitable and inexcusable historical and legal shortcuts, five general phases will be drawn from the evolution of the law on the prevention of war. Traditionally, the first phase corresponds to the doctrine of the just war.

Sciullo on Alexander on the New Jim Crow

Nick J. Sciullo (Georgia State University - Department of Communication) has posted Book Review: The New Jim Crow: Mass Incarceration in the Age of Colorblindness (91 Texas Law Review Dicta, 2012) on SSRN. Here is the abstract:

Many in the legal academy have heard of Michelle Alexander’s new book, The New Jim Crow: Mass Incarceration in an Age of Colorblindness. It has been making waves. One need only attend any number of legal conferences in the past year or so, or read through the footnotes in recent law review articles. Furthermore, this book has been reviewed in journals from a number of academic fields, suggesting Alexander has provided a text with profound insights across the university and public spheres. While I will briefly talk about the book as a book, I will spend the majority of this essay discussing the book’s contribution to the larger discussion of the role penal institutions have in society. To do this, I will consider what contributions Alexander makes in light of Michel Foucault’s Discipline and Punish: The Birth of the Prison and Loïc Wacquant’s writings on prisons. My references to these texts will not be extensive given the space restraints of this forum, but I hope to open a discussion about the relevance of Alexander’s text to broader critical interpretations of prison history.

Cambell on Tamanaha on Legal Education

Ray Worthy Campbell (Peking University School of Transnational Law) has posted Law School Disruption (Georgetown Journal of Legal Ethics, Forthcoming) on SSRN. Here is the abstract:

Parked at the crossroads of higher education and legal practice, U.S. law schools find their once serene setting to be under siege. The legal services industry faces a period of profound structural change with uncertain consequences for the traditional practice of law. Meanwhile, higher education wades through its own Slough of Despond, with its mission unclear and elite institutions spooked by disruptive change.

Just at this moment Brian Tamanaha has entered the scene with a book entitled Failing Law Schools. Tamanaha argues persuasively that law schools are in crisis, with costs so high and employment prospects so poor that most law schools now represent a bad investment for students. He tells how things came to this sad pass, with legal educator selfishness playing the leading role. He builds a compelling case.

Tamanaha falters when he attempts to present a path forward for law schools. In proposing changes for the future, he essentially seeks a return to a more affordable past. In the context of changes sweeping higher education and legal services, such a return may not be possible or desirable. Law schools that find themselves in a challenging situation will need to address – and perhaps embrace – radical change in order to chart a path forward.

Tamanaha’s failure to address the future flows from fundamental limitations in his approach. First, Tamanaha errs in treating law schools as a special case. The most severe ills afflicting law schools – the orientation towards benefiting faculty rather than serving students, a system-wide elevation of research over teaching, and soaring tuitions – appear in similar degree across the academic spectrum of modern U.S. universities. Second, Tamanaha also fails to engage with some of the most disruptive (and promising) changes coming to higher education, including eventually law schools. Effective online learning threatens to split the instruction aspect of higher education from the research and networking aspects, with enormous implications for educational finances as well as institutional missions. Tamanaha’s modest “back to the future” vision fails to engage with the ways these new developments create opportunities for schools to be better than they ever have been, at lower costs.

Tamanaha also fails to take into account the changing nature of the legal services market. He focuses on training traditional lawyers for traditional legal practice. Both at the high and low ends, however, change is coming to the legal services market, impacting both the demand for traditionally schooled lawyers and potentially creating demand for new kinds of service providers. Tamanaha’s prescription fails to address this systemic change, and as a result fails to look at how law schools might be best reconfigured to serve a society with changing needs.

That said, Tamanaha has helped launch a discussion that needs to be had. No professor with a conscience can comfortably watch half his or her students spend three years of their youth and significant sums on a legal education only to find no jobs that justify the investment. For those schools not in the very upper tier of American legal education, something needs to change, and Tamanaha’s book helps structure the discussion of what that change should be.

Rothman on Copyright, Custom, and the Common Law

Jennifer E. Rothman (Loyola Law School Los Angeles) has posted Copyright, Custom and Lessons from the Common Law (INTELLECTUAL PROPERTY AND THE COMMON LAW, Shyamkrishna Balganesh, ed., Cambridge University Press, Forthcoming) on SSRN. Here is the abstract:

In this essay prepared for the University of Pennsylvania’s conference on Intellectual Property and the Common Law, I build upon my work on custom and intellectual property. I focus here on one important facet of the subject — how longstanding common law principles should inform our understanding of custom. The common law provides a number of lessons on how to appropriately limit the consideration of custom in intellectual property law and elsewhere. The essay begins by considering the traditional role of custom in the common law. Part II then examines several of the ways that courts have incorporated custom into copyright law, particularly in the context of determining fair use. Part III explores recent efforts to use custom to ameliorate the uncertainty of fair use and to limit copyright’s ever-expanding boundaries. Parts IV through VI criticize the unreflected reliance on custom and consider appropriate limits on custom’s role, taking into consideration the traditional common law limits on the use of custom. Finally, I suggest a number of useful insights (other than the provision of legal rules) that custom and the common law provide for copyright law. These insights include the need for the copyright system to have public support to function, the importance of consensus for copyright rulemaking, and the need for a coherent normative framework. The history of the use of custom in the context of real property also reveals that uses of copyrighted works that cannot be substituted for or that serve communal recreational purposes should be given a privileged status.

Conference Announcement: The Ontario Legal Philosophy Partnership (OLPP) Graduate Conference for Legal Theory at York University

The Ontario Legal Philosophy Partnership (OLPP)
Graduate Conference for Legal Theory

Co-hosted by:
McMaster University’s Philosophy Department,
York University’s Philosophy Department
& Osgoode Hall Law School

May 8-10, 2013 at Osgoode Hall Law School
on the campus of York University, Toronto ON Canada

Keynote Speakers:
John Gardner (Oxford)
Aileen Kavanagh (Oxford)

Call for Papers

We are currently accepting submissions from graduate students and law students from all universities for presentations relating to all areas within legal theory including, but not limited to:

• General and Normative Jurisprudence
• The Nature of Law
• Law and Morality
• Judicial Review / Judicial Activism / Theories of the Judicial Role
• Constitutionalism
• Feminist Approaches to Legal Theory / Critical Legal Studies
• The History of Legal Philosophy
• Law and Authority
• Controversies related to all areas of law (criminal law, tort law, administrative law, etc.)
• International Law

Papers should be approximately 3000-4000 words in length and be in .doc format. Each presenter will be given a one hour presentation slot, of which 25-30 minutes will be dedicated to presenting the paper, with the other 30-35 minutes dedicated to participant responses. An abstract of 100-200 words should accompany all papers. All papers and abstracts must be submitted no later than January 20, 2013.

A panel of both legal philosophy graduate students and professors at McMaster, and law students and professors at Osgoode Hall will review submissions using criteria of interest, sophistication, and general overlap with similar themes. All papers will be subject to blind review. Notice of acceptance will be given on February 13, 2013.

While only graduate and law student papers will be accepted for presentation, all persons (including students, faculty, or any persons with a general interest in legal theory) are welcome to attend.

Please send papers and abstracts, together with your name, contact information, and home university to: philosophy_conference@mcmaster.ca

* Conference Fee: $40.00 CDN (all participants)

Dagan on West on Normative Jurisprudence & Legal Realism

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) has posted Normative Jurisprudence and Legal Realism (63 University of Toronto Law Journal (2013), Forthcoming) on SSRN. Here is the abstract:

This review article examines Robin West’s provocative new book Normative Jurisprudence: An Introduction. West provides a learned and sophisticated account of the decay of the three major jurisprudential traditions of North American legal theory: natural law, legal positivism, and critical legal studies, which leads to and is motivated by a spirited plea for the reinvigoration of distinctively legal normative scholarship. Her proposed genealogy is valuable and her preliminary blueprint for reform important. But I believe that both fronts can be significantly enriched by a more charitable reading of legal realism than the one she (briefly) provides. Thus, this review offers a competing genealogical account of the three contemporary approaches to law West criticizes, claiming that like critical scholars, promoters of institutional fit and of economic efficiency are also intellectual descendants of legal realism. Legal realism, I insist, provides a subtle conception of law as a set of institutions distinguished by the irreducible cohabitation of power and reason, science and craft, and tradition and progress. This conception, which was torn apart by the realists’ heirs, offers the key to a proper cure to the predicament West identifies by pointing out to a robust understanding of legal theory and thus of the distinctive contribution legal scholars can make in normative debates.

Highly recommended.

Kammerhofer on Law-Making by Scholars

Jörg Kammerhofer (University of Freiburg - Faculty of Law) has posted Law-Making by Scholars (Catherine Brölmann, Yannick Radi (eds), Research Handbook on the Theory and Practice of International Law‐Making (Cheltenham: Edward Elgar 2013), Forthcoming) on SSRN. Here is the abstract:

Scholars cannot make law, just as little as lepidopterologists can ‘make’ butterflies. If they do so, they cease to be scholars and become legislators. This, however, is neither universally accepted nor can it stand as an unqualified statement. Even legal positivists realise that scholars appear to have a uniquely influential position in the ‘process’ of (international) law-making.There are two categorically different ways in which we can study the influence of scholars on international law-making: on the one hand, the factual or empirical influence of scholarship, palpable both in municipal and international contexts; on the other hand, there is the question of the specifically normativist view-point: how and where, if applicable, are legal scholars empowered by the law to contribute to the making of new law. Neither is better than the other and neither is more ‘worthy’, but neither should be admixed with the other.

This chapter first deals with the standard entry-point of legal scholarship to questions of international law-making: Article 38(1)(d) of the ICJ Statute. Section 2 will elucidate the role that scholars play ‘as subsidiary means for the determination of rules of law’. It will, however, primarily show the various restrictions of that subparagraph, in terms of the restricted usefulness of a lex arbitri for elucidating the wider theoretical question beyond the Court’s remit. Section 3 will discuss the sources (hierarchy) of law as the conceptual basis for the distinction between law-making and non-law making factors on a normativist account. It will also warn against the danger and show the problems that manifest themselves when different methods are admixed. Section 4 will turn to give a brief account of the sociological view on what factors influence international law-making, whether scholar-ship is part of that and what the restrictions are on such a view.

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 December 2, 2012.)

Legal Theory Bookworm

The Legal Theory Bookworm recommends First Amendment Institutions by Paul Horwitz. Here is a description:

Addressing a host of hot-button issues, from the barring of Christian student groups and military recruiters from law schools and universities to churches’ immunity from civil rights legislation in hiring and firing ministers, Paul Horwitz proposes a radical reformation of First Amendment law. Arguing that rigidly doctrinal approaches can’t account for messy, real-world situations, he suggests that the courts loosen their reins and let those institutions with a stake in First Amendment freedoms do more of the work of enforcing them.

Universities, the press, libraries, churches, and various other institutions and associations are a fundamental part of the infrastructure of public discourse. Rather than subject them to ill-fitting, top-down rules and legal categories, courts should make them partners in shaping public discourse and First Amendment law, giving these institutions substantial autonomy to regulate their own affairs. Self-regulation and public criticism should be the key restraints on these institutions, not judicial fiat. Horwitz suggests that this approach would help the law enhance the contribution of our “First Amendment institutions” to social and political life. It would also move us toward a conception of the state as a participating member of our social framework, rather than a reigning and often overbearing sovereign.

First Amendment Institutions offers a new vantage point from which to evaluate ongoing debates over topics ranging from campaign finance reform to campus hate speech and affirmative action in higher education. This book promises to promote—and provoke—important new discussions about the shape and future of the First Amendment.

And from the reviews:

In this comprehensive and original analysis of the First Amendment's multifaceted applications, Paul Horwitz deftly argues that constitutional law should take institutions and their variety into account—libraries, newspapers, churches, and beyond. This book opens new lines of discussion and criticism for a new generation of scholars.
--Mark Tushnet, Harvard University

As the world becomes more socially, industrially, governmentally, and technologically complex, it is increasingly implausible to imagine the protections of freedom of speech and press applying in exactly the same way in all contexts. An important dimension of the First Amendment is institutional competence. Which institutions should be trusted to make which kinds of content-based determinations of what is or is not said, or published? Paul Horwitz sets out the case for an institutional perspective on the First Amendment with careful argument, admirable balance, and meticulous scholarship.
--Frederick Schauer, University of Virginia

Download of the Week

The Download of the Week is Western Legal Prehistory: Reconstructing the Hidden Origins of Western Law and Civilization by Robin Bradley Kar. Here is the abstract:

Western legal prehistory aims to reconstruct some of the earliest proto-legal and cultural developments that gave rise to Western legal systems and the rule of law. So construed, our understanding of Western legal prehistory is currently highly undeveloped. One reason for this fact is methodological: without the aid of written sources, reconstructions of human prehistory can prove difficult. Recent advances in a broad range of cognate fields have, however, now accumulated past a critical tipping point, and we are now in a secure enough position to begin to reconstruct important aspects of Western legal prehistory. 

This Article draws upon and develops these contemporary findings to reconstruct the most plausible genealogical shape of Western legal prehistory. In the process, it reaches a somewhat surprising conclusion. On the traditional view, the most important traditions relevant to the rise of Western law and Western Civilization are said to have originated in ancient Greece, Rome, and Israel. This traditional view is, however, based primarily on historical sources, and the reconstructions in this Article suggest that important precursors of these traditions very likely emerged much earlier and much further to the East. In fact, some of the most important traditions relevant to the emergence of large-scale civilizations with the rule of law in the West would appear to represent just one branch a much larger and richer family of traditions, which began to emerge around 4500 BC in the Eastern-Iran-Bactria-Indus-Valley region. Beginning at this early time, this region began to produce one of the very first ancient civilizations to arise within our natural history as a species (viz., the “Harappan” or “Indus Valley” Civilization), and the people in this region must have therefore developed some of the very first cultural traditions that were specifically adapted to sustaining large-scale civilizations with incipient law. I will be arguing that these ancient developments most likely had a much closer and much more intimate relationship to some of the earliest precursors of Western tradition than has commonly been recognized because these precursors of Western tradition ultimately originated closer to ancient Bactria — which is an area directly adjacent to the Indus Valley — during this very same time period. The reconstructions developed in this Article will thus allow me to decipher what I take to be the most plausible early genealogical shape of our legal family tree, and to suggest a number of important but underappreciated relationships that obtain between our modern Western traditions and a range of other Eurasian traditions with which the West has typically been contrasted. 

In today’s world, it is, moreover, especially important that we try to reconstruct the genealogical structure of Western legal prehistory and obtain a better understanding of our deep past. There is now an accumulating body of empirical work, which suggests that we can explain a broad range of features of modern societies in terms of the origins of their laws. This literature suggests that legal origin variables can have strong effects on issues as diverse as corporate governance structure, labor regulations, the robustness of capital markets, and even literacy and infant mortality rates. Whether and how a modern society functions best would thus appear to depend at least in part on the origins of their legal traditions. At the same time, however, both the present legal origins literature and much comparative law scholarship distinguish primarily between the civil versus common law origins of a nation’s legal system, or between both of these types of Western law and various non-Western legal systems; and the findings of this literature have not yet been fully harmonized with the swath of known difficulties that many developing nations have faced in transitioning to large-scale societies with the rule of law regardless of their civil- or common-law origins. The family trees that are employed in the current literature are, moreover, typically identified from the historical record and therefore fail to detect any relevant relations that might have arisen in human prehistory. They tend to focus on a conception of law as a set of publicly stated rules and procedures that are largely exogenous to the underlying cultural traditions and psychological attitudes that tend to support flourishing legal systems. They therefore fail to detect the kinds of emergent cultural traditions (including the culturally emergent psychological attitudes) that first allowed humans to transition from hunter-gatherer forms of life into larger-scale civilizations with the rule of law. 

The reconstruction offered here will, by contrast, allow us to see almost half of the large-scale megaempires that have arisen throughout world history — including all those that have arisen in the modern West — as having a shared cultural origin that goes much further back in time. The tradition in question first emerged with some of our very first human forays out of hunter-gatherer living and into settled agricultural living with large-scale civilizations and incipient legal traditions. An understanding of this deeper family tree should therefore have important empirical implications. This work can, for example, be used to help explain why certain exportations of Western-style legal institutions have worked so well while others have not. This work can also be used to identify a number of important but underappreciated features of Western traditions that are shared with these broader Eurasian traditions and have been playing a critical — if underappreciated — role in helping to sustain various forms of social complexity and economic development over the course of world history. Hence, this work can help us understand better some of the full causes and conditions of our modern success in the West. Inquiries of this kind should have special urgency today, given the massive exportations of Western law and Western legal institutions to so many other parts of the world and given the increased pressures toward Westernization that are being felt around the globe.

I have been following this fascinating and important project for years. Highly recommended.

Sundby on McCleskey v. Kemp

Scott E. Sundby (University of Miami School of Law) has posted The Loss of Constitutional Faith: McClesky v. Kemp and the Dark Side of Procedure on SSRN. Here is the abstract:

Twenty-five years after it was decided, a legal scholar can still use McCleskey v. Kemp as shorthand for a Supreme Court decision that failed to protect the Constitution’s most basic values. This Article uses Justice Powell’s papers to gain new insight into how an opinion came to be written that engendered so much criticism. What emerges is a sense of how Justice Powell’s belief in the legal system, when coupled with his distrust of “statistical jurisprudence,” led him to place his faith in legal procedures despite statistical evidence that racial bias was infecting the death penalty. McCleskey is thus an important lesson that procedure, despite its many benefits, can have a dark side if it becomes a veneer obscuring injustice.

Justice Powell’s opinion, especially the final section of the decision, also provides important lessons about how a judicial opinion communicates messages that reach beyond the holding itself. Indeed, the Article compares Powell’s opinion to the concurrence that Justice Scalia proposed but never wrote – a concurrence that would have acknowledged that “irrational sympathies and antipathies including racial” inevitably enter a capital jury’s decision, but then would have found no constitutional violation. The Article ultimately asks: although Scalia’s position might have provoked outrage, might not its candor in the long run have produced a more constructive response than Powell’s opinion which appeared to adopt a position of willful blindness towards the existence of racial bias?

Ulfstein on Constitutionalism & Pluralism

Geir Ulfstein (Faculty of Law, University of Oslo) has posted The Relationship between Constitutionalism and Pluralism (Göttingen Journal of International Law, Vol. 4 No. 2) on SSRN. Here is the abstract:

International constitutionalism comes in many different forms. A distinction may be made between those claiming that we today have an international constitution and others arguing that what is of importance is to apply constitutional thinking to the international legal system. The article discusses whether we have an international constitution and concludes with a negative answer. This means that we still must operate with different international legal regimes and with the distinction between the international and national legal systems, i.e. aspects of pluralism. However, the challenge is how to secure constitutional guarantees in a pluralist legal order.

Dagan on Lawmaking for Realists

Hanoch Dagan (Tel Aviv University - Buchmann Faculty of Law) has posted Lawmaking for Legal Realists (Legisprudence, 2013) on SSRN. Here is the abstract:

This article provides a concise analysis of lawmaking, inspired by what I perceive to be the realist conception of law. Legal realism, as I reconstruct it, stands for the proposition that law is a going institution (or set of institutions) distinguished by the difficult accommodation of three constitutive, yet irresolvable, tensions between power and reason, science and craft, and tradition and progress. Unlike some caricatures of legal realism, this understanding of legal realism explains why the original legal realists invested time and energy in various arenas of lawmaking, shaping and reshaping the various rules and standards that are to govern society. This sustained effort reflects a mature position regarding the rule of law whereby, notwithstanding the malleability of legal doctrine as such, the social practice of law implies stable expectations as to the content of the law at any given time and place. Redrawing the line between promulgation and application along these conventionalist lines paves the way for a realist account of lawmaking. This account is likely to rely on contextual and pragmatic analyses of the pertinent issues at hand. Thus, it implies that, rather than opting for either bright-line rules or vague standards, legal realists would recommend using both precise rules and informative standards founded on the regulative principles of the doctrines at hand, enabling people to predict the consequences of future contingencies and to plan and structure their lives accordingly. Legal realists would likewise avoid binary institutional choices and, in many contexts, appreciate the comparative advantages of both legislatures and courts — in terms of both expected performance and legitimacy — as potential contributors to the development of the law.

Hasen on the Resurrection of Bush v. Gore

Richard L. Hasen (University of California, Irvine School of Law) has posted The 2012 Voting Wars, Judicial Backstops, And the Resurrection of Bush V. Gore (George Washington Law Review, Forthcoming, 2013) on SSRN. Here is the abstract:

In 2000, some scholars predicted the Supreme Court’s controversial equal protection holding in Bush v. Gore that the state could not arbitrarily value one person’s vote over that of another might be used to force states to improve their election processes through litigation. In the ensuing years, Bush v. Gore had not fulfilled that promise. Scholars debated when, if ever, the case could apply beyond the narrow facts of a statewide recount with inconsistent counting standards, but the courts seemed uninterested: the Supreme Court has failed to cite the case for any proposition, and the few lower courts which relied upon the case as precedent to create better and fairer voting conditions were overturned or limited. By 2007 I lamented the “untimely death” of Bush v. Gore.

A funny thing happened during 2012. The voting wars which had ensued since 2000 manifested themselves in a host of restrictive election rule changes passed in the name of fraud prevention and administrative convenience mostly by Republican legislatures and implemented by Republican election administrators. Democrats, the Department of Justice, and reform groups resisted the overreach, litigating over many of these changes. The results of this litigation was a mixed bag. For example, courts approved some voter identification laws, rejected others, and put Pennsylvania’s and Wisconsin’s laws on hold for this election season but perhaps not beyond that. Overall, it appeared that in the most egregious cases of partisan overreach, courts were serving, often with surprising unanimity, as a judicial backstop.

In Ohio, one of the twin epicenters (along with Florida) of the 2012 voting wars, two important cases relied in part on Bush v. Gore to expand voting rights. In one case, a conservative panel of the United States Court of Appeals for the Sixth Circuit—a court which had shown itself bitterly divided along party and ideological lines on election issues in 2008—unanimously held that Ohio’s disenfranchisement of voters for voting in the wrong polling location because of poll worker error violated the equal protection clause. In the other case, another Sixth Circuit panel held that Ohio’s contraction of the early voting period to exclude the weekend before the election, for all voters except certain military voters, violated the equal protection clause under Bush v. Gore. The court so held despite the fact that Ohio provided 23 days of early voting and for the first time sent all Ohio voters a no-excuse absentee ballot application. This latter ruling was at best a major stretch of Bush v. Gore and existing precedent.

The story of the 2012 voting wars is a story of Republican legislative and to some extent administrative overreach to contract voting rights, followed by a judicial and public backlash. The public backlash was somewhat expected—Democrats predictably made “voter suppression” a key talking point of the campaign. The judicial backlash, and the resurrection of Bush v. Gore in the Sixth Circuit, was not. The judicial reaction, from liberal and conservative judges and often on a unanimous basis, suggests that courts may now be more willing to act as backstops to prevent egregious cutbacks in voting rights and perhaps to do even more to assure greater equality and fairness in voting. However, it is possible that this trend will reverse in future elections.

Schauer on Custom

Frederick Schauer (University of Virginia School of Law) has posted The Jurisprudence of Custom (Texas International Law Journal, Vol. 48, No. 3, 2013, Forthcoming) on SSRN. Here is the abstract:

The jurisprudential dimensions of treating custom as law have been puzzling at least since the time of Bentham and Austin. If law emanates from the sovereign, and consists of commands backed by threats from the sovereign, then customary law seems scarcely law at all. Or so Bentham and Austin, each in his own way, believed. But if, in a post-Hart jurisprudential world, we can recognize that norms can be internalized by judges and other officials even if they arise from the bottom up rather than from the top down, then a new puzzle emerges. In this modern jurisprudential world, the lawness of custom can easily be explained, but custom then appears simply to be one of many forms of law, occupying no distinct juridical space. The question whether and when to treat custom as law, therefore, is no different from the question whether and when one jurisdiction treats another jurisdiction’s norms as law, and whether and when to treat some particular source as law. These are important and sometimes difficult issues, but they are more continuous with the routine questions of legal sources and legal authority than the traditional treatments of custom have assumed.

Highly recommended.

Kloosterhuis on Lasser on Judicial Deliberation

Harm Kloosterhuis (Erasmus School of Law) has posted Formal and Substantial Justification in Legal Decisions: Lasser's Judicial Deliberations - Some Critical Questions from an Argumentative Perspective on SSRN. Here is the abstract:

Lasser’s study Judicial Deliberations offers an interesting analysis of judicial discourse and legal argumentation. For theorists of legal argumentation Judicial Deliberations is an interesting project, because of its theoretical perspective, its methods and its results. In the past thirty years the study of legal argumentation has increasingly become an important field of interest. In this paper I discuss some of Lasser’s conceptual and empirical contributions to this theory of legal interpretation and argumentation. I will do this by exploring Lasser’s analysis of the difference between interpretative justification in Common Law and Civil Law countries, focusing on the difference between formal and substantial interpretative argumentation in legal decisions. In short, I will discuss Lasser’s lack of conceptualization of the distinction between formal and substantial interpretative argumentation, his methodological choices and the generalization of his empirical findings.