Casey on the Constitutional Right to Pre-Trial Access to Legal Assistance in Ireland

Conor Casey (University of Liverpool School of Law & Social Justice) Setting The Bounds Of The Constitutional Right To Pre-Trial Access To Legal Assistance In Ireland: The Constitution, The Convention, And The Supreme Court ((ed.) Liz Heffernan, Criminal Law and Justice in the European Union (Clarus Press, 2022)) on SSRN.  Here is the abstract:

The right to pre-trial access to legal assistance in the Irish legal system is grounded in the dynamic intermingling of two main sources of law – the Irish Constitution and the European Convention on Human Rights (‘ECHR’). This chapter uses the example of the right to pre-trial legal assistance to critically interrogate two interesting jurisprudential trends discernible from this intermingling.

Part I briefly outlines the current constitutional parameters of the right to pre-trial legal assistance and the rich impact the ECHR has had in shaping it. Part II discusses two interesting trends from this area of jurisprudence. First, this author argues it highlights a judicial tension between wishing to harmonise the Irish Constitution with European human rights law best practice on the one hand, and respecting the distinct facets of the Irish legal order and indirectly incorporated status of the ECHR on the other. Second, evolution of the law in this sensitive area of policy is highly—near exclusively—judicial driven. It is argued that this reflects the fact Irish legal culture regards questions of constitutional interpretation—such as what constitutes fair process—as uniquely the preserve of the judiciary. This author suggests that this has helped lead to a lack of direct political branch intervention in specifying the bounds of pre-trial legal assistance through statute and ministerial regulations. This chapter is concluded by discussing the advantages of encouraging all branches of government–including executive and legislative—to reflect on how best to codify and clarify this area of law.

Adeyoju on Privacy Dark Patterns

Ademola Adeyoju (FIP | CIPP/E,CIPP/C,CIPM University of Saskatchewan) has posted Privacy Dark Patterns: A Case for Regulatory Reform in Canada on SSRN.  Here is the abstract:

By 2023, nearly 90 percent of the Canadian population or about 35 million people will have access to the internet. Increased access to the internet also means that more people are having to constantly share their personal information (i.e., location data, IP address, financial and health data) with companies all the time. To help people maintain control over how, when, and to whom they disclose their personal information—and govern how companies collect, use, and disclose personal information—a number federal and provincial privacy laws exist across Canada. However, due to lack of technical and procedural clarity in current laws and the inherent weaknesses of the knowledge-and-consent architecture upon which these laws are built, companies are finding novel ways to undermine the central objectives of the laws and prevent people from making informed decisions by subverting their autonomy through privacy dark patterns. Privacy dark patterns are problematic design patterns or elements on website and mobile applications that trick, manipulate, or coerce people into giving away personal information they would rather keep. As they enable the invasion of privacy in subtle but unprecedented ways, privacy dark patterns have stimulated serious conversations in recent years in jurisdictions such as Europe and the United States, and led to the adoption of new legislative measures. However, despite the move to shield the fundamental essence of privacy laws from being violated by dark patterns in other jurisdictions, nothing seems to be happening in Canada yet, even as privacy concerns among Canadians grow. In fact, as of the time of writing this paper, there does not seem to be any publicly available academic, legal, or policy document specifically addressing the issue of privacy dark patterns in relation to how they affect Canadians’ right to privacy. At the very least, therefore, this paper hopes to: (x) raise awareness on the relatively novel threats that dark patterns pose to privacy by taking an interdisciplinary approach that combines insights from behavioural economy, product design, and law; and (y) propose policy and regulatory recommendations that can help combat the proliferation and use of privacy dark patterns in Canada.

Foster & Gillette on the Urban/Rural Divide and Metropolitan Areas

Sheila Foster (Georgetown University) & Clayton P. Gillette (New York University School of Law) have posted Can Micropolitan Areas Bridge the Urban/Rural Divide? (24 Theoretical Inquiries in the Law, Forthcoming) on SSRN.  Here is the abstract:

There exists a well-known and significant divide between urban and rural areas in the United States. The divide has been documented along multiple dimensions – social, economic, and political – and is seen as a detrimental characteristic of our national identity and capacity for both economic development and civil political discourse. In this Article, we explore a subset of the urban/rural divide and propose a mechanism for reducing its economic and political effects within that limited realm. Specifically, we focus on the subset of rural areas that lie within what the Office of Management and Budget defines as micropolitan areas. Micropolitan areas are characterized by an urban area with a population between 10,000 and 50,000, and adjacent rural counties. Data suggest that rural areas within micropolitan regions do better economically than rural areas unconnected to urban areas, though not as well as the principal city within the micropolitan area. If the objective is to reduce the economic, and perhaps the political divide between urban and rural areas, then micropolitan areas may represent low-hanging fruit for redress.

This Article argues that micropolitan areas are an important window into understanding the relationship between urban and rural economies, explores the characteristics of those areas that are likely to generate economic success and recommends policies that would capture those benefits. Additionally, we speculate that increased opportunities for economic interaction between the urban and rural parts of micropolitan areas could also address the political aspects of the urban-rural divide. Recognizing the complexity of the relationship between urban and rural economies, we identify various obstacles to realizing the kinds of interlocal cooperation that we believe are necessary to reduce the economic and political divide within micropolitan areas. We conclude with suggestions for a research agenda to remedy the underdeveloped study of micropolitan areas.

George on the Sorry State of the Constitutional Personal Jurisdiction Jurisprudence of the Supreme Court

James George (Texas A&M University School of Law) has posted Running on Empty: Ford v. Montana and the Folly of Minimum Contacts (George Mason Law Review, Forthcoming) on SSRN.  Here is the abstract:

Jurisdictional contests are in disarray. Criticisms date back to the issuance of International Shoe Co. v. Washington but the breakdown may be best illustrated in two recent Supreme Court opinions, the first rejecting California’s “sliding scale” that mixes general and specific contacts, the second using the discredited sliding scale to hold Ford amenable in states where accidents occurred.

California’s sliding scale is one variety of the contacts-relatedness tests, used in lower courts to have general contacts bolster weaker specific contacts. Some states—Montana and Minnesota for example—use the opposite extreme requiring a causal connection in defendant’s forum contacts, often using foreseeability or proximate cause. In Bristol-Myers Squibb v. Superior Court, California used the sliding scale to support jurisdiction over a class action by mostly nonresident members for a drug not made in California. The Supreme Court reversed, pointedly rejecting the sliding scale as a spurious form of general jurisdiction.

Four years later, the Court found the unconstitutional scale handy in Ford v. Montana, affirming Montana and Minnesota decisions asserting jurisdiction for local accidents involving local residents. Ford objected to suits in those states because the cars were originally sold in other states. The Supreme Court unanimously rejected Ford’s contact-causation argument, holding that Ford’s overall forum contacts—“a veritable truckload”—relate to the claims because plaintiffs would be less likely to buy a used car if it weren’t for Ford’s name and presence. Using these general contacts to find specific jurisdiction, the Court gave up the last semblance of logic in the worn-out minimum contacts test.

Ford is not an outlier but the product of an unworkable maze of a test whose precedents are a patchwork of contradictions. This article reviews the origins, confusion, and doctrinal deviation in the minimum contacts test, then focuses on the particular conceptual breakdown that occurred with the Ford decision. It includes critiques of contacts problems like imputed consent and relatedness, and balancing problems like interest analysis and interstate federalism. While the article covers a number of problems, its focus is Ford as the breaking point. The article concludes with solutions, some proposing a revised test, others arguing the benefits of a statutory scheme, and my proposal to re-focus on the historical emphasis on access to an adequate forum and a de-emphasis on vague political theories.

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Professor George does not address the original meaning of the Due Process of Law Clauses, but an originalist approach would address the important problems that he raises.

The original public meaning (OPM) of the Due Process of Law Clauses of the Fifth and Fourteenth Amendment do not support International Shoe.  The OPM of the Fifth Amendment Due Process of Law Clause is quite narrow, extending only to the requirement of "process" in the sense that term has in the phrase "service of process."

The Fourteenth Amendment Due Process of Law Clause may well have a broader OPM that encompasses legal procedures generally, but in my opinion, Justice Black's view of that clause is correct: states must follow legally established procedures (the procedural law of the land) before depriving any person of life, liberty, or property.  In the context of personal jurisdiction, that means that state jurisdictional statutes and service of process statutes must be followed, but the content of those statutes is a matter of state law.

Hing on the Well Founded Fear Persecution Standard for Asylum

Bill Ong Hing (University of San Francisco - School of Law) has posted Turn Asylum on its Head and Presume Eligibility (University of San Francisco Law Review, Vol. 57, No. 479, 2022) on SSRN.  Here is the abstract:

Thirty-five years ago, I was fortunate to be part of the litigation team that won big before the U.S. Supreme Court in Immigration and Naturalization Service v. Cardoza-Fonseca (1987), the case that established that asylum applicants “need not prove that it is more likely than not” that they will be persecuted in their home countries in order to prevail. In fact, in interpreting the statute, Justice Stevens’ majority opinion added: “There is simply no room in the United Nations’ definition for concluding that because an applicant only has a 10% chance of being shot, tortured, or otherwise persecuted, that he or she has no ‘well-founded fear’ of the event happening.” To me and many others, the implication of the “10%” language is that strong evidence of likely persecution is not required, and that applicants should be given the benefit of the doubt. I think the Cardoza-Fonseca case has definitely made a positive difference in the lives of thousands of asylum seekers. However, unsympathetic asylum officers, immigration judges, federal courts, and enforcement officials have thwarted the generous humanitarian intent of the asylum law and undermined the Cardoza-Fonseca case. They hide behind reasoning related to such things as credibility issues, lack of individualized evidence, protection against victimization by gangs or domestic partners not being the intent of asylum, or that the applicant’s particular social group is too nebulous or broad.

In this essay, I focus on one technical approach to the well-founded fear of persecution standard that should be corrected: the “reasonable person” approach that the BIA has adopted. I argue that the reasonable person approach is inappropriate. I believe that this standard should be replaced with the “reasonable possibility” approach that was intended by the Supreme Court, and a presumption of eligibility for asylum should be adopted akin to what is used in criminal courts.

Petersen on the Policy Role of Nordic Courts in Civil Disputes

Clement Salung Petersen (University of Copenhagen, Centre for Enterprise Liability) has posted The Public Policy-Implementing Role of Nordic Courts in Civil Dispute Resolution (L. Ervo et al. (eds.), Rethinking Nordic Courts, Ius Gentium: Comparative Perspectives on Law and Justice 90) on SSRN.  Here is the abstract:

public values and interests, whether substantial or procedural, in the three types of civil dispute resolution that can potentially lead to state enforcement, namely civil litigation, arbitration and mediation. First, it shows how Nordic courts in civil litiga- tion may take on an’active role’ vis-à-vis the parties but that the legal contours of this role remain unclear and controversial. Secondly, it shows how current and proposed statutory frameworks governing arbitration and mediation give national courts an important role in safeguarding public values and interests which raises important questions in law concerning the role of courts as gatekeepers of access to court and state enforcement for private actors. The chapter concludes with a discussion of the need for developing a clearer and more coherent approach to defining this public policy-implementing role of courts across all three types of civil dispute resolution. It is argued that such a coherent approach is needed and that it will be valuable to analyse the public policy-implementing role of courts in a Nordic context, since the Nordic countries generally share many of these relevant public values and interests.

Wolfe, Tu, & Hoekman on China & WTO Reform

Robert Wolfe (Queen's University - School of Policy Studies), Xinquan Tu (University of International Business and Economics (UIBE)), & Bernard Hoekman (European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS); Robert Schuman Centre for Advanced Studies; Centre for Economic Policy Research (CEPR)) have posted China and WTO Reform on SSRN.  Here is the abstract:

China, the EU and the U.S. are the world’s largest traders, and many of the tensions in the trading system arise in the relations among them. Our premise is that reforming WTO is a necessary condition for the organization to be a more salient forum for the three large economies to address trade tensions, and that agreement among these three trade powers in turn is necessary to resolve the problems of the WTO. After a brief discussion of the global challenges that ought to be on the WTO agenda and of the systemic context, we discuss both how China understands WTO reform, and how the other two leading powers see the China problem in the WTO. We consider how the three see transparency, plurilateral negotiations, economic development differences, fisheries and industrial subsidies, WTO working practices, and dispute settlement. We conclude by considering the implications of our analysis for fostering cooperation between the three major trade powers in the WTO.

Ginsburg on 50 Years of Copyright Law

Jane C. Ginsburg (Columbia University - Law School) has posted Fifty Years of U.S. Copyright: Toward a Law of Authors' Rights? (American Intellectual Property Law Association Quarterly Journal, Forthcoming) on SSRN.  Here is the abstract:

In honor of the 50th Anniversary of the American Intellectual Property Law Association Quarterly Journal, this Article explores developments in U.S. copyright law within that timeline. Fifty years would take us to 1972, but the signal event in U.S. copyright law during that period is the 1976 Copyright Act, which took effect in 1978. I will examine how that law marks a watershed in U.S. copyright, shifting us toward a law of authors’ rights more consonant with the international standards of the Berne Convention on the Protection of Literary and Artistic Property. Authors and authorship underpin the 1976 Act to a greater extent than its predecessors, starting with the statutory setting of creation as the point of attachment of federal copyright protection (rather than publication with proper notice of copyright). This Article will consider the respects in which the 1976 Act and its implementation, through to the recent interpretations of the Act to exclude non-human authorship, center copyright on creators. Part I addresses the relationship between creativity and formalities; Part II reviews copyright ownership; Part III examines the scope of protection of authors’ economic and moral rights; and Part IV addresses secondary authorship and the fair use defense. I conclude with some reflections on “authorless works” and why they cannot sustain copyrights under the 1976 Act.

Tolson on the Independent State Legislature Theory and Republicanism

Franita Tolson (USC Gould School of Law) has posted The "Independent" State Legislature in Republican Theory on SSRN.  Here is the abstract:

The independent state legislature theory provides that state legislatures are not constrained by their respective state constitutions in exercising the authority that the U.S. Constitution delegates to states over federal elections. In its most extreme form, the doctrine permits state legislatures, in overseeing the mechanics of federal elections, to disregard state court interpretations of state constitutions. Scholars have offered a number of criticisms of this doctrine, noting that it runs counter to the founding generation’s concerns about the lawlessness of state legislatures; is contrary to historical practice at the founding; and undermines the constitutional structure in which the more democratically accountable Congress, rather than the states, is vested with final say over federal elections.

This Essay, forthcoming in a special Texas A&M Law Review symposium issue celebrating Professor Richard Epstein, contributes to this growing literature by pointing to the constraints, centered in the constitutional text and history, that limit the ability of legislatures to disregard their state constitutions. Specifically, the Electors Clause of Article II, Section 1 provides that, “Each state shall appoint, in such manner as the legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the state may be entitled in the Congress…” This text explicitly raises the question of who is the “state” on behalf of which the legislature deploys power?

Using this language as its jumping off point, this Essay argues that the “state” referenced in Article II, Section 1 refers to its citizens, whose preferences are conveyed to the state legislature through the state’s electorate and in the state constitution. Within a decade of the founding, the selection of officials by the state’s electorate became central to the theory of republicanism underlying the Guarantee Clause of Article IV, which predicated the legitimacy of government on majority support. By the adoption of the Twelfth Amendment, which changed the structure of presidential elections, political elites viewed republican government as requiring that state legislatures and, to a lesser extent, federal officials, be accountable to the people who elected them, accountability that prevented state legislatures from exercising their authority over federal elections in blatant disregard of the people’s wishes.

The Essay concludes that the independent state legislature theory, particularly in its strongest iteration, runs counter to the democratizing effect that the Twelfth Amendment was intended to have on presidential elections. The theory allows the state legislature to disregard the preferences of the people at a juncture in which they are exercising the oversight and accountability at the core of our system of republicanism: during the election of federal officials. Any version of the doctrine, if adopted, has to respect majoritarian preferences.

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Speta on Common Carrier Principles & Internet Platforms

James B. Speta (Northwestern University - Pritzker School of Law) has posted Can Common Carrier Principles Control Internet Platform Dominance? on SSRN.  Here is the abstract:

In this lecture, the 2022 Robert F. Boden lecture at Marquette University Law School, I address both the dominance of internet platforms—Google, Facebook, Twitter, Amazon, Apple, and others—and the calls to regulate them as common carriers. The main concern is that these platforms are biased, that they discriminate, that they foreclose speech. That is why, today, platform critics—including governments—are reaching for the traditional law of railroads and of telephone companies: the law of common carriage. That once-dominant law forbade discrimination. This topic is made even more timely by the Fifth Circuit’s recent NetChoice decision, upholding a Texas state law imposing such regulation, and explicitly disagreeing with an Eleventh Circuit decision finding a similar Florida law unconstitutional. One Supreme Court Justice has also written in favor of platform-focused common carrier regulation, as have numerous federal and state lawmakers, some academics, and many commentators.

I think the proposals for regulating platforms are wrong to target common carrier solutions at the platforms’ core operations themselves—to change the ways in which users are permitted access, content is moderated, and search results are provided. Such platform regulation does not fit the common carrier model. Platforms are not merely conduits of user behavior, although they are partly that. Platforms also seek to create a particular kind of content experience—a speech experience—that holds the attention of their users. Common carrier rules have never applied to the content curators: newspapers, broadcasters, and bookstores. Even more concerning, laws directly controlling platforms simply give the government unprecedented power over the content experiences these private companies seek to create.

Instead, we can and should at least try to address concerns about the currently dominant platforms by using law to make it easier to have more platforms. Common carrier solutions should be targeted at the infrastructure that enables platforms to be built and to reach consumers—the devices, ISPs, hosts, cyberdefense, and other support services. In the past, these providers have denied services to some new platforms that sought to establish alternative services. Applying a lighter-touch (and differently placed) version of common carrier regulation to the internet’s support providers can increase the possibility of alternative platforms. This is our best hope to enrich our speech choices and ecosystem without government censorship.

Hodge et al on Reversals of Non-Textual Constitutional Rights

James G. Hodge (Arizona State University (ASU) - Sandra Day O'Connor College of Law), Jennifer L. Piatt (Arizona State University (ASU) - Sandra Day O'Connor College of Law), Erica N. White (Arizona State University (ASU), Sandra Day O'Connor College of Law; Center for Public Health Law and Policy), Madisyn Puchebner (Arizona State University (ASU), Sandra Day O'Connor College of Law), & Summer Ghaith (Arizona State University (ASU), Sandra Day O'Connor College of Law) have posted Curbing Reversals of Non-Textual Constitutional Rights (Maryland Law Journal of Race, Religion, Gender & Class. 2022; 22(2): __- __ (forthcoming)) on SSRN.  Here is the abstract:

With the June 2022 issuance of Dobbs v. Jackson Women’s Health Organization, one of the most impactful cases in U.S. history, the Supreme Court renounced nearly a half-century of constitutional guarantees to abortion access. The Court’s stunning “rights reversal,” justified by the majority’s originalist assessment that prior jurisprudence was imprudently decided, places at immediate risk multiple other non-textual rights (e.g., to contraceptives, sexual intimacy, marriage equality). These privacy interests are already under political and legal attacks in several jurisdictions. As illustrated in response to Dobbs, neither the President, Congress, nor progressive states are willing, well-positioned, or poised to ameliorate existing or future judicial reversals of rights. Who can allay the threat of diminishing privacy interests or other non-textual rights? Why, the Supreme Court itself. Under principles of “constitutional cohesion,” which recognize the close interplay of rights and structural components (e.g., separation of powers, federalism, and preemption) within the U.S. Constitution, the Dobbs Court’s “rights-centric” approach to withdrawing non-textual rights faces significant challenges. Ultimately, structural challenges set definitive limits on additional judicial interpretations of non-textual rights and present opportunities for their partial reinstatement through the very Court that seeks to strip them away from Americans.