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.

Silver on Thompson v. Trump

Jay Sterling Silver (St. Thomas University - School of Law) has posted Thompson V. Trump: Lost in the Funhouse of Brandenburg (107 Iowa Law Review Online 151 (2022)) on SSRN.  Here is the abstract:

D.C. Circuit Court Judge Amit Mehta’s ruling in Thompson v. Trump denying immunity to ex-President Donald Trump in actions brought against him by a variety of plaintiffs for inciting the January 6th insurrection offered a moment of relief to the left side of the Great Partisan Divide in these dark times. Mr. Trump could finally be held responsible for a bit of the havoc he wreaked.

The author advises not to celebrate too quickly. The Supreme Court—in the great likelihood that the case ends up there—may not see eye to eye with Judge Mehta. Two issues will be central to the High Court’s analysis and to this Essay. The first is whether the ex-President’s remarks fell outside of the Court’s “capacious” view of the “outer perimeter” of presidential functions. The second issue as to whether his speech that day falls under the long-standing Brandenburg exception to free speech presents a minefield of perplexing, previously unidentified issues that threaten consistency in the decisions it produces. The author brings each of these issues to light, positing their implications for Mr. Trump’s immunity with respect to the civil suits arising out of the January 6th attack on Congress and ultimately providing an inventory of questions that the Court must weigh in on to produce a workable standard for assessing when speech is deemed to incite imminent lawless action.

Eldar on Enterprise Foundations

Ofer Eldar (Duke University School of Law; Duke University - Fuqua School of Business; Duke Innovation & Entrepreneurship Initiative) has posted Are Enterprise Foundations Possible in the United States? (Forthcoming in Anne Sanders & Steen Thomsen (eds.), European Enterprise Foundations (Intersentia Cambridge, 2023)) on SSRN.  Here is the abstract:

This book chapter discusses the ability of entrepreneurs to form enterprise foundations in the US and the hurdles for forming them. The US regime for tax-exempt private foundations is very restrictive and does not practically allow them to have substantial ownership of for-profit firms. As a result, there is a perception that enterprise foundations are not feasible in the US. However, enterprise foundations, broadly defined as industrial firms controlled by any nonprofit firm, need not involve ownership by a private foundation (as it is defined in the US Tax Code) and could also be owned by other types of nonprofits. Such enterprise foundations are unlikely to benefit from key tax exemptions (such as tax-deductible donations or income tax exemptions), which probably explains their unpopularity. The chapter evaluates recent developments to liberalize the law of enterprise foundations, including (1) the "Newman's Own" exception that permits private foundations to own business firms under certain restrictive conditions, and (2) the perpetual purpose trust, which was recently utilized to transfer the ownership of Patagonia to trust and a non-exempt nonprofit.

Bamberger & Mayse on Cover on a Jurisprudence of Obligations

Kenneth A. Bamberger (University of California, Berkeley - School of Law) & Ariel Evan Mayse (Stanford University - School of Humanities & Sciences) have posted Revisiting a Jurisprudence of Obligation (Touro Law Review, Vol. 37, No. 4, 2022) on SSRN.  Here is the abstract:

Through his landmark exploration of obligation as the conceptual touchstone of what he describes as the “Jewish jurisprudence of the social order,” Robert Cover offered an alternate language for legal regimes grounded in a rhetoric of individual rights.

The present essay revisits Cover’s account of the socially embedded nature of law and juridical process, taking seriously both its claims, as well as the cautions of its critics. The essay thus neither abandons the concept of rights as key to jurisprudence nor seeks to present a naïve or romantic characterization of Jewish legal thought, and proceeds wary of the pitfalls inherent in such comparative efforts.

At the same time, it argues that Cover’s primary insight regarding the notion of a socially imbricated obligation as a core feature of Jewish jurisprudence and provides an important contribution. This theory is especially valuable in contexts in which contemporary policymakers and advocates have lacked success in locating a language or strategy sufficient to appreciate and address overwhelming modern problems at the juncture of individual and community.

More specifically, drawing on our previous work exploring Jewish law lessons for information privacy and environmental ethics, this essay argues that a nuanced adaptation of Cover’s theory of “incumbent obligation” as the organizing feature of Jewish law, can provide contemporary policymakers with a set of conceptual tools to help develop alternative approaches to metastatic surveillance and environmental collapse.

The notion of obligation as the heart of an ethical and jurisprudential system provides a powerful corrective to the post-Enlightenment West’s centering of the “individual moral adventure” and the privileging of individual rights that has gone hand-in-hand with this ethos. The pre-modern roots of halakhah (Jewish law) permit a powerful challenge to this paradigmatic hegemony, as the Jewish legal tradition precedes liberalism and thus predates conceptions of the individual that undergird much of modern thinking, even as Jewish jurisprudence embodies a deep commitment to protecting individuals.

Engagement with this tradition need not supplant liberalism. Rather, it presents a complementary ethical framework that can work within and enrich post-Enlightenment Western discourse. Reflecting this opportunity, revisiting Cover’s work provides a conceptual frame that is sufficiently flexible and capacious to provide an additional legal vocabulary and set of jurisprudential values that can help confront the greatest challenges of our age.

Gilden on Revenge Porn Laws & Queer People

Andrew Gilden (Willamette University - College of Law) has posted The Queer Limits of Revenge Porn (Boston College Law Review, Forthcoming) on SSRN.  Here is the abstract:

The highly successful movement to combat the nonconsensual distribution of sexual imagery—a.k.a. “revenge porn”—has sent a powerful message that sexual expression through digital technology is an illegitimate basis for stigma, abuse, or the loss of employment. Although spearheaded by feminist advocates to counter the overwhelmingly gendered dynamics of revenge porn, these laws send a powerful message around sexual norms and sexual privacy more broadly that would appear to benefit queer communities especially. Nonetheless, revenge porn laws as enacted by state legislatures and interpreted by state courts are significantly limited in ways that undermine their practical and symbolic benefits for queer people and other sexual minorities. In virtually all of the 48 US states that have criminalized revenge porn, the enacted statutes draw a line between “private” or “intimate” images, which are protected against unauthorized distribution, and “public” or “commercial” images, which are expressly or impliedly excluded. And in some states, a person’s reasonable expectation of privacy only extends to images initially shared in the context of a “relationship.” These limits effectively carve out from protection wide swaths of sexual expression that are incredibly common—and often highly celebrated—within queer communities. Under these laws, sexual images that are taken in public contexts, such as a nightclub or a sexually-themed street fair, or shared in a commercial context, such as Grindr or Onlyfans, can be freely distributed with employers, families, and friends notwithstanding the distributor’s intent to stigmatize, punish, and harass the subject of the image. This paper closely examines the limits of revenge porn laws for queer people and suggests ways of reframing these laws to better acknowledge and respond to queer forms of sexual privacy.

Render on a Feminist Blake v. Stradford

Meredith Render (University of Alabama - School of Law) has posted Blake v. Stradford, 725 N.Y.S.2d 189 (Dist. Ct. 2001) (in FEMINIST JUDGMENTS: REWRITTEN PROPERTY OPINIONS (Cambridge University Press, Eloisa Rodriguez-Dod and Elena Maria Marty-Nelson ed., 2021)) on SSRN.  Here is the abstract:

This piece engages in a reimagining of the classic property case of Blake v. Stradford through a feminist lens, as part of Cambridge University Press’s series, FEMINIST JUDGMENTS. In the original case, an unmarried male and female romantic couple resided together for several years (along with their children) in a house owned by the male partner. After several years of cohabitation, the couple’s romantic relationship came to an end, and the male partner moved to summarily evict the female partner as well as their two children. The Blake Court thus faced the question of whether a woman who resides in the family home with her male domestic partner and their children, is a licensee of her domestic partner (who legally owns the property). If she is a licensee, then she resides in the home at the invitation and permission of her partner, which can be revoked at any time. Had the Blake plaintiff been legally married to her partner, then there was no question that she would have a property interest in remaining in the home that exceeds the meager rights of a licensee. The Blake Court observed that under New York law of the time, “The occupation of a marital home by a wife is not possession existing by virtue of the permission of her husband. Her possession of the premises exists because of special rights incidental to the marriage contract and relationship.” However, the court concluded, because the parties here were never married, no such right of possession extended to the Blake plaintiff.

This piece rewrites that decision through the lens of feminist analysis. The reimagined decision questions the legitimacy of privileging marriage as a status, given the institution’s historical role as a mechanism for the commodification and exploitation of women’s reproductive capacity and labor. The reimagined decision declines to endorse the proposition that a married woman who resides in a family home with her children and their father lives there by an implicit right incident to marriage, while an unmarried woman who lives in a family home with her children and their father lives there by revocable permission. Implicit in such a distinction is the notion that a married woman, having secured that status of “wife” and thereby the imprimatur of patriarchal convention, will be rewarded by a special equitable consideration that is denied to a woman who has chosen to build her family outside the institution of marriage.

Bernatt on the Rule of Law & EU Competition Law

Maciej Bernatt (University of Warsaw, Faculty of Management) has posted The Double Helix of Rule of Law And EU Competition Law: An Appraisal (European Law Journal 2022, 1-19) on SSRN.  Here is the abstract:

By discussing the experiences of two EU Member States: Hungary and Poland, the article aims to demonstrate that there are three layers of rule of law which are relevant for EU competition law. The first one is external: it relates to the legal system of EU Member States which competition law is part of. In national legal systems, rule of law safeguards need to be put in place in order to provide an adequate legal environment for the competition law system to perform its role. The second one is internal: it concerns rule of law safeguards in relation to the Member States’ competition authorities, in particular their independence. The third one is consequential: the weakening of the rule law within the external and internal layers affects the proper functioning of the competition law system. The effective functioning of a decentralised system of EU competition law enforcement is also becoming an issue. As a result, the effectiveness of Articles 101-102 TFEU is endangered and a vicious circle of mutually reinforcing competition law and rule of law crises unfolds. The article speaks to the recent developments in the EU case-law, i.e. the General Court’s judgment of 9 February 2022 in Sped-Pro case (T 791/19) and creeping mutual distrust within the European Union.

Plamondon on Abundance and Inequality

Stephanie Plamondon (Brigham Young University J. Reuben Clark Law School) has posted Inequality in Abundance (Frontiers in Research Metrics and Analytics 2022) on SSRN.  Here is the abstract:

With technological advance has come the possibility of a new era of abundance. Technologies like 3D printing and robotics promise to lower the costs of production and distribution of goods and services, presumably making these goods and services readily available to those across income and wealth spectrums. This undoubtedly is a good thing. But what will be the effect of these technologies on existing wealth inequalities and the psychological and societal burdens they impose? Can we expect that this newfound abundance will help remedy the current historic levels of inequality in the U.S. and other western countries? Unfortunately, the answer is likely no, for two reasons. First, history suggests that inequality often persists even under conditions of abundance due to dynamics of power and politics and ongoing impacts of structural inequalities. Having more than enough of a particular good or service to go around does not guarantee that all will have access to this good or service. Second, even if the new abundance enabled by technology extends into all levels of the socioeconomic spectrum, enabling individuals to access goods and services (and their attendant benefits) previously beyond their reach, the harms that attend unequal societies will persist. Increasing evidence suggests that these harms, including increased violence and decreased health, arise not from access (or a lack thereof) to particular goods and services, but from the adverse psychological consequences of living in an unequal society. This is a psychological burden shared not just by those at the losing end of the inequality equation, but also those who enjoy a relative advantage in society. Unequal societies are psychologically harmful to all who live in them, regardless of where these individuals fall on the socioeconomic spectrum, and largely independent of the particular goods and services they enjoy. The upshot is that society cannot rely on new abundance technologies to automatically solve problems of inequality and the social and psychological burdens that plague those who live in unequal societies. Indeed, depending on how society responds to questions of access to these technologies, their introduction might exacerbate various forms of inequality. In light of this, it is crucial to address conditions of inequality head-on, so that the new era of abundance promised by technological advance can lead to real gains in individual and societal wellbeing.

Pryor on Person-Centered Pluralist Contract Theory

C. Scott Pryor (Campbell University - Norman Adrian Wiggins School of Law) has posted Person-Centered Pluralism About Contract Theory on SSRN.  Here is the abstract:

We are in the midst of a golden age of contract theory. Not because we have figured it out but because it is plentiful, and much of it is deeply considered. Contract law, on the other hand, remains relatively static in the United States.

The stability of contract law is not matched by the discussion of contract theory. Since Ronald Coase first applied neo-classical economic analysis to contract law, contract theory tethered to welfare maximization has raced forward. Nonetheless, welfare centered theories have not ultimately prevailed. Drawing on forms of deontological ethics, theories grounded in visions of personal sovereignty are regularly advanced. And, on a smaller scale, virtue ethics has become a resource for contract theory.

Perhaps that the effort to justify contract law is a bootless errand. Why do we need a theory of contract law when the law we have works tolerably well? First, from an internal perspective, those who engage in contracting and the profession of contract law see themselves as part of something that has a foundation. Situating law in a more comprehensive project is endemic to the human condition. And second, most believe that state coercion ought to be justifiable by some expression of reason. The liberal tradition demands something more than power to justify coercive political action. Since the threat of physical deprivation of property by the state looms in the background for contracting parties, one should expect that contract theory would provide accessible reasons for public action at the behest of a private contract party.

This article will proceed in four parts. Part I begins with a selective canvass of recent developments in contract theory and will conclude with a discussion of refinements to virtue-based accounts of private law. Collectively, these developments comprise a movement toward pluralism. The inadequacy of any single approach to contract theory is widely recognized. Scholars working from within each approach now seek to refine their theories in light of others. This article ultimately provides a broader foundation for pluralism but before incorporating person-centered resources, Part II brings critics of the movement toward pluralism into the conversation. Part III draws on the sociological work on personhood of Christian Smith. Smith’s work is a resource by which the movement toward pluralism can be tethered to a fuller understanding of the human person. This part also demonstrates that the right of redress identified by Andrew Gold fits within this understanding. Finally, in Part IV there will be some examples drawing on the insights of person-centered pluralism for two contemporary issues of contract law.

Very interesting and recommended.

McBride on the Nature of Evil

Nicholas McBride (University of Cambridge - Faculty of Law) has posted The Nature of Evil on SSRN.  Here is the abstract:

This 30 page paper sets out the argument about the nature of evil that will comprise the first half of a book I hope to work on entitled 'Deliver Us From Evil: Essays on the Limits of Law'. It criticises existing definitions of evil and offers a (relatively) novel definition of evil that better fits the way we think about what is and is not evil, and also accounts for the repulsiveness of evil. After reflecting on how we can classify evildoers, and the characteristic targets of evil, it concludes by setting out the ways in which evil places limits on (a) what respect for the rule of law demands; (b) the validity of laws; and (c) how much law can do to eradicate evil.

And from the paper:

Φ is evil if someone who hated reality would want Φ to exist.

I must be misunderstanding the definition.  If I hate reality because of pervasive injustice and therefore want justice to exist, then does it follow that justice is evil?  Or is it the requirement that I hate all of reality and therefor want nothing to exist--does it follow that only the nonexistence of all reality is evil?

Chin on Anonymity & Racial Injjustice

William Y. Chin (Lewis & Clark Law School) has posted Weaponized Anonymity: The Continuing Marginalization of Communities of Color through Racially-Biased Anonymous Processes in U.S. Society (Connecticut Public Interest Law Journal, Forthcoming) on SSRN.  Here is the abstract:

Past palpable racial bias persists through time migrating now toward dark corners of anonymous spaces inflicting harm on communities of color. Whether nameless 911 calls to law enforcement, innominate tips to immigration officials, or stealthy reports to child welfare services, people of color must contend with these and other forms of weaponized anonymity in myriad sectors of society as anonymous people and processes continue the marginalization of communities of color. Laws and policies must neutralize anonymity’s dark side by removing or regulating anonymity to ensure that all in society may live, work, and exist equally.

Soinski on Cell-Cultured Meat, the Food Safety and Inspection Service, and Semiotics

Saylor S. Soinski (Yale Law School) has posted The Semiotics of Meat: FSIS Regulations and the Construction of Meaning (13 J. Animal & Env't L. 41 (2022)) on SSRN.  Here is the abstract:

In response to the development of cell-cultured meat, the Food Safety and Inspection Service (FSIS) has indicated that it will promulgate a new standard of identity. This response does not align with agency policy, which requires a new standard only when the physical characteristics of a novel product differ from a known product—for example, cloned meat did not receive a new standard. This Article argues that FSIS’s break from policy is a response to a semiotic framework that inextricably links “real meat” to slaughter and that FSIS is acting inappropriately in regulating meat as a symbol rather than material object.

Lee on the Administrative Procedure Act and Racial Justice

Sophia Z. Lee (University of Pennsylvania Carey Law School) has posted Racial Justice and Administrative Procedure (97 Chi.-Kent L. Rev. __ (forthcoming)) on SSRN.  Here is the abstract:

This article argues that commemorating the Administrative Procedure Act (APA) should involve accounting for the role it has played in both advancing and thwarting racial justice, as well as the role racial justice advocates have played in shaping its interpretation. The APA was not designed to advance racial justice; indeed, its provisions insulated some of the mid-twentieth century's most racially pernicious policies from challenge. Yet racial justice advocates have long understood that administrative agencies could be a necessary or even uniquely receptive target for their efforts and the APA shaped those calculations. Along the way, racial justice advocates left their mark on administrative law, including an underappreciated role in administrative law's participatory turn. Better understanding the interaction of racial justice and administrative procedure, I argue, would benefit historical and legal scholarship on race, administrative law, and their many underexplored yet consequential intersections.

Recommended.

Charles on Bruen

Patrick J. Charles (Government of the United States of America - Air Force) has posted The Fugazi Second Amendment: Bruen's Text, History, and Tradition Problem and How to Fix It (Cleveland State Law Review, Vol. 71, No. 3, 2022) on SSRN.  Here is the abstract:

In New York State Rifle & Pistol Association v. Bruen, by a vote of 6-3, the Supreme Court held that the “Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home,” and any state or local laws that condition the “issuance of a license to carry on a citizen’s showing of…special need” are thereby unconstitutional. The decision is remarkable in several respects. For one, Bruen upended a regulatory regime that has existed since the mid-to-late nineteenth century—a regime that was instituted and sustained by lawmakers to preserve the Second Amendment, not violate it. What is also remarkable about Bruen is the manner historical evidence was marshalled, selected, and analyzed. Rather than examine all the historical evidence objectively and at face value, Bruen made it quite clear that “not all history is created equal,” and therefore conveniently cherry-picked whatever historical evidence supported broad carry rights and rejected or explained away any evidence that did not.

This criticism of Bruen should not be construed to mean that the Supreme Court was jurisprudentially wrong to strike down New York’s “may issue” concealed carry regime. Far from it. As this author pointed out following oral argument, the Court could legitimately come out in favor of either party. It all boiled down to how the Court framed the case—whether it be narrowly as a concealed carry case or broadly as a public carry case —and which historical periods or pieces of historical evidence the Court perceived as being outcome determinative. And given that the Court ultimately decided to frame the issue in Bruen broadly, the outcome is not all that surprising. The reality is New York’s “may issue” concealed carry regime was a tough pill to constitutionally swallow. As the Bruen majority noted, outside the Second Amendment context, it is virtually unheard of today for government officials to have such wide discretion in doling out who may and may not exercise a constitutional right.

Where Bruen severely falters, however, is in its use and application of history. It is difficult to say what history-based jurisprudential methodology Bruen employs. On its face, Bruen appears to be grounded in public meaning originalism. Yet at several points the Bruen majority picks and chooses historical evidence on little more than a whim. Yet no matter how Bruen is methodologically classified—whether it be originalist or some other history-based form of constitutional interpretation—the fact of the matter is that the 6-3 majority’s historical approach is neither objective nor holistic. To be blunt, Bruen fails to adhere to even basic academic standards. The length in which the Court margin walks history and then claim that virtually all the relevant evidence points in one direction is particularly worrisome. In this author’s opinion, it proves once and for all that history is not so much a constitutional guardrail as it is a jurisprudential pawn in the wider debate over the Constitution’s meaning. Equally concerning are the interpretative historical rules laid down in Bruen, for they appear to stack the constitutional deck against firearms regulations moving forward. Even worse, these interpretative rules blatantly set aside even the appearance of historical accuracy, objectivity, and transparency, and therefore, if adopted by the lower courts wholesale, will assuredly undermine the legitimacy of Second Amendment jurisprudence moving forward. The way this author sees it, Bruen has created a new, fugazi Second Amendment. And by fugazi, what is meant is that the Second Amendment, at least as articulated by Bruen, is historically ruined and fake.

This article will expound on how the Supreme Court’s opinion in Bruen has created a fugazi historiographical crisis of its own making. To highlight Bruen’s historical flaws, this article will first examine and unpack several of the majority’s history-based arguments and justifications. This article will then expound on why the majority’s text, history, and tradition guidance create several problems for the lower courts moving forward, including the soon to be highly contested “sensitive places” doctrine. This article is broken into three parts. Part I critically examines how and why the Supreme Court’s opinion in Bruen is historical fugazi. Part II then critically examines Bruen’s hypocritical approach to text, history, and tradition, and how said approach ultimately facilitates analytical double standards. Lastly, Part III offers the lower courts (and hopefully the Supreme Court) some guidance on objectively resolving the many unanswered text, history, and tradition questions left in the wake of Bruen, and then applies that guidance to the “sensitive places” doctrine.

Shaub on Equity Actions by Congress against the Executive

Jonathan David Shaub (University of Kentucky J. David Rosenberg College of Law) has posted Interbranch Equity (Forthcoming, University of Pennsylvania Journal of Constitutional Law, Vol. 25, 2023) on SSRN.  Here is the abstract:

In recent years, Congress has increasingly turned to the courts to challenge executive actions. In these suits, the executive branch has strenuously pressed several distinct doctrinal arguments that interbranch cases are nonjusticiable and must be dismissed. These arguments, though expressed in the relevant language of each individual justiciability doctrine, are all centered on a single fundamental point—the judiciary should not be involved in refereeing a dispute that is solely between the legislative and executive branches. And this central contention that interbranch suits are exceptional, even when ultimately rejected, has largely succeeded in preventing the judiciary from finally resolving the merits of these interbranch cases before they become moot.

This Article rejects the interbranch exceptionalism that obscures most discussions of these cases and asserts that the judiciary should address—and resolve—interbranch cases on the merits under its equity jurisdiction. It shows that the executive branch has not historically followed the justiciability positions it now asserts, but in fact accepted and advocated for judicial intervention in the past. As the executive branch has asserted more robust and exclusive constitutional authority vis-à-vis Congress, however, it has also strategically adopted justiciability arguments to prevent judicial resolution of interbranch disputes. The executive branch is better positioned to engage in constitutional self-help, and these justiciability arguments enable it to retain its ex ante constitutional advantage in interbranch disputes. A close analysis of each of these doctrinal justiciability arguments demonstrates that interbranch cases are not exceptional, however. And well-established traditions of equity—which parallel justiciability inquiries related to standing and the political question doctrine—establish the appropriate case-by-case inquiry into the judicial role in an interbranch case. The judicial power extends to all cases in equity arising under the Constitution, including interbranch cases. Courts should not shirk from that responsibility. When appropriate under traditional equitable principles, courts should decide interbranch cases in equity on the merits. Shirking that duty is not a passive virtue but a decision to allow the separation of powers to be determined by constitutional self-help.

Highly recommended.

Tillman on a Trump Plea Bargain and Disqualification

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Not a Panacea: Trump Disqualification and Plea Bargains (LAWFARE: HARD NATIONAL SECURITY CHOICES (Sept. 20, 2022, 8:31 AM)) on SSRN.  Here is the abstract:

18 U.S.C. Section 2071—which concerns the concealment, removal, or mutilation of certain federal government documents—states that a convicted defendant: “shall be fined . . . or imprisoned … or both; and shall forfeit his office [if in office] and be disqualified from holding any office under the United States.” (emphasis added) Under the assumption that Section 2071 applies to the presidency, and under the assumption that former President Trump were convicted in a federal prosecution under this statute, the question arises as to the effect of a Section 2071 disqualification. This issue arose in 2015 in discussions involving Hillary Clinton and her e-mail server. The majority view then, and now, is that federal statutory disqualification is a bar against holding appointed federal office, and it is not a bar against a convicted defendant’s running for or holding any elected federal positions. Admittedly, there is no on-point United States Supreme Court holding affirming this view in the specific context of a Section 2071 conviction. (Which is hardly surprising, as there are few such convictions, and it is rare for felons to subsequently run for elected federal positions.) So, although we can be reasonably confident that a Section 2071 conviction would not bar Trump from running for (even while in jail!) and holding the presidency (ditto) as a legal matter, we cannot be entirely sure. Usually, where the law or facts or both are uncertain, there is some legitimate some for the parties to compromise or to contract around uncertainty. What would that look like? Here, the trial court would impose the statutory disqualification, and Trump would expressly agree, on the record, that the disqualification would bar him from running for and holding the presidency (and, perhaps, all other elected federal positions). The key word here is “usually.” In this particular situation, I do not think a plea bargain along these lines would be enforceable.

Fahey on Cooperative Federalism and Administrative Law

Bridget Fahey (University of Chicago Law School) has posted Coordinated Rulemaking and Cooperative Federalism's Administrative Law (132 Yale L.J. (Forthcoming 2023)) on SSRN.  Here is the abstract:

"Cooperative federalism" is not just a model of federalism; it is a model of administration. From health care to air quality to emergency management, transportation, immigration, national security, and more, cooperative federalism is the regulatory model of choice. But scholars have yet to conceptualize a cooperative administrative law for cooperative federalism. As this Article shows, however, federal and state bureaucracies have devised intricate strategies for coordinating their implementation of the programs they jointly administer.

The Article begins to elaborate cooperative federalism's unseen administrative apparatus by focusing on its distinctive form of legislative rulemaking, the workhorse of administrative law. I show that inside cooperative programs, federal and state agencies jointly promulgate binding legislative rules through a cross-governmental process I call "coordinated rulemaking." Because it crisscrosses governmental boundaries, this novel form of rulemaking has a legal logic, process, and mode of codification that diverges from the notice-and-comment rulemaking model so scrutinized within the federal administrative state.

After documenting the use of coordinated rulemaking in some of our largest and most important cooperative regulatory programs—including Medicaid, the Clean Air Act, public education, highway construction, and national security surveillance, among many others—I argue that these rich practices resist the standard heuristics used to conceptualize the administrative relationship between the federal government and states within cooperative programs. In their place, I develop an alternative conception of the administrative scaffolding in cooperative federalism programs. I finally sketch out some of the puzzles and promises of coordinated rulemaking—its implications for black-letter administrative doctrines, including Chevron deference, arbitrary-and-capricious review, and the like—and by setting the practice I document here in theoretical frame, asking what it reveals about how federalism reshapes the legal architecture of administrative law when our governments pursue regulatory projects together.

Highly recommended.

Roznai on the Role of the People in Constitutional Amendment

Yaniv Roznai (Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law) has posted We the Limited People? On the People as a Constitutional Organ in Constitutional Amendments (109 Supreme Court Law Review (forthcoming 2022)) on SSRN.  Here is the abstract:

This article engages with one crucial question: When the people are included within the formal constitutional procedures for amending the Constitution, do they exercise primary - and thus unlimited - authority or a secondary - and thus limited - authority?

This question is explored against the backdrop of the Building Bridges Initiative (BBI) saga in Kenya, dealing with seventy-four amendments to Kenya’s 2010 Constitution. The High Court of Kenya, and then the Kenyan Court of Appeal both found the Bill unconstitutional for a variety of substantive and procedural reasons. Importantly, the two courts have held that the Basic Structure Doctrine applies in Kenya. According to this doctrine, certain institutions, rules and principles, are so important to the Constitution and its identity, that their amendment is implicitly prohibited. The constitutional challenge was then decided by the Supreme Court, which agreed that the bill was unconstitutional for procedural reasons but rejected the lower courts’ judgments that the Basic Structure Doctrine applies in Kenya.

The important of these judgments is because that in Kenya, as in some other countries, the people are directly involved in the amendment process. The people participate in a referendum as part of the amendment procedure. That is why the question is then raised, whether they act in their capacity as primary constituent power, and are thereby unlimited by constitutional limits, or whether they act as a secondary constituent power, and are therefore limited by the Constitution. Accordingly, these three judgments center around a crucial question for constitutional theory: whether the people, when included in the process of amending the Constitution, are limited in their capacity to bring about constitutional changes – even revolutionary ones.

My main argument is that constitutional amendment procedures that include the people in the process still act as delegated constitutional organs. They operate within the constitutional order and are thus limited and may be subject to various limitations and even judicial review.

Highly recommended.

Legal Theory Lexicon: Soft Law

Introduction

The first year curriculum in the United States focuses on domestic private law (property, torts, contracts), civil procedure, and constitutional law, with the possibility of a course on legislation and regulation or an elective outside the core common law subjects.  International law is rarely studied in the first year.  So, many first-year law students may complete the year without having heard of "soft law," which implicitly is defined as contrasting with "hard law."  Here is a representative definition that assumes the international law context:

By “soft law” I am referring to quasi-legal instruments that have no legal force, such as non-binding resolutions, declarations, and guidelines created by governments and private organizations. (Druzin, 2017)

The idea of soft law can easily be extended to domestic contexts.  This entry in the Legal Theory Lexicon provides an introduction to the idea of soft law aimed at law students, especially first-year law students with an interest in legal theory.

Hard Law

The notion of "soft law" is implicitly defined by contrast with "hard law."  Hard law is binding and enforceable.  In the international contrast, treaty obligations and the binding enactment of international organizations created by treaties would be hard law.  In the domestic sphere, hard law is the system of binding legal norms, including criminal law, tort law, constitutional law, and so forth.

What makes "hard" law hard?  That is a deep question that connects with disputes about the nature of law: explored in Legal Theory Lexicon 065: The Nature of Law.  One possible answer is that a hard law must be properly enacted or recognized by the relevant rule of recognition (a social rule that specifies what counts as a law and what does not) and be properly connected to some form of state-imposed sanction or reward.  There are deep waters here, but we will work with that definition for the remainder of this Lexicon entry.

Soft Law

If hard law is properly enacted and backed by sanctions or rewards, then what is soft law?  "Soft law" must share something with "law": at a minimum soft law must contain a norm the content of which has the action guiding function of hard law.  And soft laws also appear to be things that are enacted or promulgated in some way.  Thus, it common to include in the category of "soft law" things like "non-binding resolutions, declarations, and guidelines created by governments and private organizations." (Druzin, 2017)  In other words, soft-laws are things with content that would be hard law if it had been enacted by a process that would have conferred legal status and if it had included some sanction or reward.

This definition of "soft law" is incomplete.  If I right a set of guidelines for fossil fuel companies, it does not become "soft law."  Implicitly, the category is limited to norms (rules, standards, or other kinds of norms) that are effective.  Guidelines that achieve some threshold level of compliance may properly characterized be as "soft law," but guidelines that are have not effect on behavior are not.  A full and complete definition would also need to differentiate the category of "soft law" from related notions such as "custom" or "social norms," but at this point, we will bracket these additional questions.

Soft Law in International Law

The term "soft law" seems to have originated in the field of international law and it is applied to resolutions of the United Nations General Assembly and the action plans or recommendations generated by the various organs of the United Nations and other international organizations.

Why is soft law created?  And why does soft law sometimes succeed in changing behavior?  These are big questions, but here are some ideas for starting to think about answers.  Soft law may be created because it is not feasible to create hard law.  This might happen in the course of treaty negotiations: if a hard law treaty is impossible, the negotiating parties might turn to soft law as a less than ideal option that is "better than nothing."

Even if soft law is not backed by sanctions or rewards, it might nonetheless affect behavior.  Soft law might act like informal social norms and create social pressures for compliance.  Violations of soft law may be criticized and result in various soft pressures, such as refusals to cooperate with the violators of soft law norms.

Another mechanism for cooperation may involve what are called "networking effects."  Soft law may provide a mechanism for the coordination of behavior.  If the benefits of coordination depend on the number of cooperators, the soft law norm may be adopted voluntarily.  Here is an example from international shipping:

Soft-law documents such as BIMCO bills of lading, standard-form charter-parties, and the York-Antwerp Rules 2004 on General Average have self-standardized as de facto industry standards. This process of self-standardization may occur with respect to instruments at all levels of interaction. The soft-law document need only provide a focal point for actors within a network seeking to co-ordinate. International bill of lading and charter-party forms, couched in universal terms and practices widespread throughout the shipping world, do not require any formal legal codification precisely because—and this is a crucial point—they are already robustly supported by network-effect pressures. (Druzin, 2017) 

Conclusion

There are many more questions that could be asked about the idea of soft law.  Does it make sense to use the word "law" when we refer to "soft law"?  Or is the terminology misleading?  What are the costs and benefits of soft law approaches as compared to hard law?  I hope this Legal Theory Lexicon entry has provided you with the tools to understand and recognize the concept of soft law.

Bibliography

• Chris Brummer, Soft Law and the Global Financial System: Rule Making in the 21st Century (2d ed. 2015).
• Bryan H. Druzin, Why does Soft Law Have any Power Anyway?, 7 Asian Journal of International Law, 361–378 ((2017).
• Gregory C. Shaffer and Mark A. Pollack, Hard vs. Soft Law: Alternatives, Complements, and Antagonists in
  International Governance, 94 Minnesota Law Review 706 (2010).

Related Lexicon Entries

• Legal Theory Lexicon 026: Rules, Standards, Principles, Catalogs, and Discretion
• Legal Theory Lexicon 038: The Internal Point of View
• Legal Theory Lexicon 065: The Nature of Law,

(Last revised on September 24, 2022.)

Download of the Week: "Supreme Court Legitimacy" by Donnelly

The Download of the Week is Supreme Court Legitimacy: A Turn to Constitutional Practice byThomas Donnelly.  Here is the abstract:

Commentators offer the Justices consistent—if unsolicited—advice: tend to the Supreme Court’s institutional legitimacy. However, to say this—without saying more—is to say very little. Of course, constitutional theorists already wrestle with the meaning of legitimacy—its contours, its complexity, and its influence on the Justices. Political scientists debate the relationship between institutional concerns and judicial behavior. At the same time, previous scholars largely ignore issues of constitutional practice. This is a mistake. In this Article, I take up this neglected topic. To that end, I detail how the individual Justice might work to bolster the Court’s legitimacy in concrete cases. Part of the answer turns on legal craft—identifying the tools available to a Justice as she decides individual cases. However, part of it also requires adopting a regime perspective—ensuring that a Justice’s actions meet the challenges of her own constitutional moment. In my account, Chief Justice Roberts takes centerstage. Beginning with legal craft, I analyze the tools that Roberts employs to preserve the Court’s legitimacy in concrete cases—namely, coalition building, calls for action by the elected branches, incrementalism, charity for the opposing side, triangulating between constitutional extremes, and promoting a vision of institutional humility. From there, I adopt a regime perspective, charting three future paths for the Roberts Court—each with its own set of challenges for the Justices as they seek to preserve the Court’s institutional legitimacy.

Highly recommended.

Dane on Choice of Law Provisions & Party Autonomy

Perry Dane (Rutgers, The State University of New Jersey - Rutgers Law School) has posted Party Autonomy and the Challenge of Choice of Law (Philosophical Foundations of Conflict of Laws (Oxford University Press, Roxana Banu, Michael Green, Ralf Michaels, eds., 2022) (Forthcoming)) on SSRN.  Here is the abstract:

A perennial question in choice of law is whether parties to a contract can select the jurisdiction whose law will govern their contract. This so-called “party autonomy” problem is vexing and intriguing, in part because contemporary discussions often overlook in contemporary discussions.

The party autonomy problem is more consequential than most issues in choice of law. But it is also important as a singular window into the intellectual fabric of choice of law and as a leading edge for new and potentially subversive insights.

This essay is a chapter in an Oxford University Press volume on the “Philosophical Foundations of Conflict of Laws.” The essay argues that party autonomy does not have one comprehensive justification, but that it might be justified by a set of distinct if overlapping arguments that point to vital ideas often overlooked in the contemporary conversation. If choice of law doctrine embraces party autonomy, it might be in part because its shapers instinctively and inchoately recognize those considerations.

The most speculative and problematic argument is based on a version of natural law. Another argument relies on an important distinction between what I have called second-order and first-order choice of law. Yet another builds on an effort at a more sophisticated understanding of what it means for persons to be attached (or to attach themselves) to the legitimate governance of a legal system. The last argument is grounded in legal pluralism, though not of the usual sort.

These distinct bases for party autonomy are not only of theoretical interest. They also generate different answers to some of the material subsidiary questions that arise in any doctrinal consideration of party autonomy. That in turn suggests that the doctrine of party autonomy might require more nuance and fine-grained distinctions than most current treatments have given it.

Dancig-Rosenberg & Feldman on Behavioral Ethics & Criminal Law

Hadar Dancig-Rosenberg (UC Berkeley School of Law; Bar-Ilan University) & Yuval Feldman (Bar-Ilan University - Faculty of Law) have posted A Behavioral Ethics Perspective on the Theory of Criminal Law & Punishment on SSRN.  Here is the abstract:

This chapter examines how the field of behavioral ethics – the study of how people make and perceive ethical decisions and behavior – could influence the theory and doctrine of criminal law and criminal punishment. It will do so by exploring a number of contexts in which applying behavioral ethics principles yield normative insights into criminal law and punishment doctrines.

Keyword 

uber car accident lawyer

Foran on Common Law and the Common Good

Foran on Common Law and the Common Good

Michael P. Foran (University of Glasgow) has posted Common Law and The Common Good on SSRN.  Here is the abstract:

This paper will be presented at the festschrift for TRS Allan, a mentor and friend. The last few years have seen a renaissance of thinking about the common good amongst constitutional scholars working within the common law world. Interestingly however, analysis of the common good remains grounded primarily within the classic legal tradition, itself rooted in civilian jurisprudence. The connection between the common good and the common law tradition, particularly common law constitutionalism, remains somewhat underexplored. Drawing on the work of TRS Allan, I hope to bridge some of this divide in emphasis by exploring the role of the common law within the classical natural law tradition. However, I also wish to suggest that neutrality on questions of the good life, a hallmark of Dworkin’s political liberalism, is not sustainable in light of the commitment, embraced by both him and Allan, that law must serve the public good. If law is to be a public asset – a common good – it cannot refuse to take a stand on the flourishing of legal subjects. Indeed, it manifestly does not. To constitute a defensible scheme of justice, law must be justified as a plausible attempt at the common good, intended to improve the lives of its subjects by facilitating their flourishing among a community of moral equals. With this in mind, common good constitutionalism presents a challenge and a rallying cry to anti-positivists, encouraging them to follow through on their commitment to the idea that the rule of law demands good government in the best interests of the governed. To do this, we must think seriously about what those interests require, paying sufficient attention to the specific context and institutional history of our law. Good government cannot be neutral on the quality of the lives of subjects any more than it can be neutral on the nature and scope of fundamental rights.

Keyword 

uber car accident lawyer

Aburabia on Muslim Women in Polygamous Marriage in Israel

Based on empirical evidence from the Shari’a court in Beersheba of the ratification of customary polygamous marriages, the article examines the complexity of legal recognition of second marriages and the structural conditions under which polygamy is possible in the plural legal orders that exist in Israel. Although polygamy is criminally prohibited by the state of Israel, this prohibition is not enforced among the Bedouin in Israel, where 18.5 percent of Bedouin households are polygamous. This article demonstrates how these conditions perpetuate patriarchal norms among the Bedouin under the auspices of colonial legal structures.

Hindi translate 

प्रथागत बहुविवाह के अनुसमर्थन के बेर्शेबा में शरीयत अदालत से अनुभवजन्य साक्ष्य के आधार पर, लेख दूसरे विवाहों की कानूनी मान्यता की जटिलता और संरचनात्मक परिस्थितियों की जांच करता है जिसके तहत बहुविवाह बहुवचन कानूनी आदेशों में संभव है जो इजरायल में मौजूद हैं। हालाँकि बहुविवाह को इज़राइल राज्य द्वारा आपराधिक रूप से प्रतिबंधित किया गया है, यह निषेध इज़राइल में बेडौइन के बीच लागू नहीं है, जहाँ 18.5 प्रतिशत बेडौइन परिवार बहुविवाह हैं। यह लेख दर्शाता है कि कैसे ये स्थितियां औपनिवेशिक कानूनी संरचनाओं के तत्वावधान में बेडौइन के बीच पितृसत्तात्मक मानदंडों को कायम रखती हैं।
 Keyword 

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Balganesh on Learned Hand & Copyright

Shyamkrishna Balganesh (Columbia University - Law School) has posted Learned Hand's Copyright Law (Journal of the Copyright Society of U.S.A., Vol. 70, Forthcoming 2023) on SSRN.  Here is the abstract:

Learned Hand is often described as the greatest copyright judge to have ever sat on the bench. By the 1950s, the most important parts of U.S. copyright law had been his creation, all from his time as a judge on the Second Circuit Court of Appeals. Despite all of this, there has been little systematic analysis of Hand’s approach to copyright and of the reasons why his jurisprudence in multiple areas of copyright law have survived the test of time. This Article argues that the longevity, influence and canonical status of Hand’s contributions to copyright are closely tied to his judicial method—best described as that of “empowered incertitude”—which he brought to bear rather directly on the area. Despite being governed by a federal statute, copyright law demands commitments to both judicial creativity and institutional deference. In addition, it requires judges to balance these opposing commitments, which Hand’s judicial method was particularly well-suited to. In the process, Hand developed a rich and nuanced institutional theory of copyright law, which foreshadowed the turn that copyright law would take after his time on the bench. Understanding Hand’s approach to copyright law embodies underappreciated lessons for how judges ought to approach copyright adjudication and lawmaking in the modern context.

Highly recommended.

Hindi translate 

लर्न हैंड को अक्सर बेंच पर बैठने वाले सबसे महान कॉपीराइट जज के रूप में वर्णित किया जाता है। 1950 के दशक तक, यू.एस. कॉपीराइट कानून का सबसे महत्वपूर्ण हिस्सा उनकी रचना थी, जो उनके समय से दूसरे सर्किट कोर्ट ऑफ अपील्स में एक न्यायाधीश के रूप में थी। इन सबके बावजूद, कॉपीराइट के लिए हैंड के दृष्टिकोण का बहुत कम व्यवस्थित विश्लेषण किया गया है और उन कारणों का कि कॉपीराइट कानून के कई क्षेत्रों में उनका न्यायशास्त्र समय की कसौटी पर खरा क्यों उतरा है। इस अनुच्छेद का तर्क है कि कॉपीराइट में हाथ के योगदान की दीर्घायु, प्रभाव और विहित स्थिति उनकी न्यायिक पद्धति से निकटता से जुड़ी हुई है - जिसे "सशक्त अनिश्चितता" के रूप में वर्णित किया गया है - जिसे उन्होंने सीधे क्षेत्र पर सहन करने के लिए लाया। एक संघीय क़ानून द्वारा शासित होने के बावजूद, कॉपीराइट कानून न्यायिक रचनात्मकता और संस्थागत सम्मान दोनों के लिए प्रतिबद्धताओं की मांग करता है। इसके अलावा, इन विरोधी प्रतिबद्धताओं को संतुलित करने के लिए न्यायाधीशों की आवश्यकता होती है, जो हाथ की न्यायिक पद्धति विशेष रूप से उपयुक्त थी। इस प्रक्रिया में, हैंड ने कॉपीराइट कानून का एक समृद्ध और सूक्ष्म संस्थागत सिद्धांत विकसित किया, जिसने उस मोड़ का पूर्वाभास किया जो कॉपीराइट कानून बेंच पर उसके समय के बाद लेगा। कॉपीराइट कानून के लिए हैंड के दृष्टिकोण को समझना, आधुनिक संदर्भ में न्यायाधीशों को कॉपीराइट निर्णय और कानून बनाने के तरीके के बारे में बहुत कम सबक देना चाहिए। अत्यधिक सिफारिशित
Keyword 

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Wang on Cyberflashing

The Law Commission has proposed another offense of cyberflashing to battle the issue of sending spontaneous pictures or recordings of human privates to other people. It appears to be that what the Law Commission has as a main priority isn't blazing essentially, yet digital nakedness. Its proposition neglects to thoroughly assess the sufficiency of existing regulation and neglects to adjust the damage of a criminal conviction against the likely mischief of cyberflashing. It will be contended that the Law Commission appears to have conflated amiss with mischief and that its damage guarantee is upheld simply by episodic proof. By far most of cyberflashing cases, including most Airdropping and Bluetoothing cases, are as of now covered by existing regulation, leaving immaculate just a modest bunch of oddball Airdropping or Bluetoothing situations where the flasher didn't plan to cause misery or uneasiness and the casualty didn't catch up and coming unlawful power. Subsequently, it is contended that this barely custom fitted cyberflashing offense adds very little and that revising existing correspondence offenses or badgering offenses would give more security to casualties as such offenses could apply to an extensive variety of physically bugging content, not simply pictures or recordings of human privates.

Keyword 

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Stablecoin Regulation (know More)

Stablecoins are digital assets that claim to keep their value consistent by referencing other tangible or monetary assets. PpStablecoins are gaining a lot of interest as a brand-new method of producing private money.

From a regulatory perspective, two primary issues have dominated discussion thus far. On the one hand, the possible influence on monetary policy and the payment infrastructure. The need to safeguard investors and society from potentially abusive stablecoin suppliers, on the other hand. Even though it has so far only been mentioned in passing, financial stability is another major problem. More significantly, this paper explains how the governing legal system directly affects financial stability.

Keyword 

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EU Ban on Russian Media (RT And Sputnik)

On March 2 2022, in light of censure and against Western stories encompassing the Russian attack of Ukraine, the Gathering of the European Association lawfully restricted two Russian state-supported news sources, RT and Sputnik, inside EU borders. The choice of the Chamber isolated assessment. While the boycott to be sure restricts the scope of these Russian 'organs of impact', it additionally encroaches on basic common freedoms inside the EU. It is thusly appropriate to investigate if the advantage of forbidding the Kremlin's opposing portrayal merits the penance of obstructing key standards of a majority rules government. How corresponding or vital is the boycott? The ongoing article surveys these inquiries from a mental and legitimate point of view. It contends that while the choice to boycott RT and Sputnik is lawfully strong, the defense for the choice would profit from a more intricate clarification of adjusting off the unique (impacting) principal privileges, not least since the problematic impact of the RT and Sputnik portrayal is disrupted. Additionally, rather than a sweeping boycott, a not so much rigid but rather more nuanced approach could be more suitable, managing the cost of the capacity to fittingly endorse RT and Sputnik while staying corresponding and relieving a potential explosion impact.

Keyword 

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4 Tips for Dealing with the Financial Crises after Getting In A Car Accidents and (How To Prevent Them)

 

4 Tips for Dealing with the Financial Crises after Getting In A Car Accidents and How To Prevent Them

1. Keep Calm and Carry On

Keep calm and carry on is one way to handle the emotional stresses of getting into a car accident. This can be done by taking deep breaths, staying as calm as possible, and thinking about what you need to do next.

2. Stay Positive

Another way to handle the emotional stresses of getting into a car accident is to stay positive. This can be done by telling yourself that it could have been worse or reminding yourself that you are alive and well.

3) Seek Professional Help

Seek professional help is another way to handle the emotional stresses of getting into a car accident. By seeking professional help, this can help you process your feelings and move on.While few people intentionally cause a car accident, the results can be devastating. If you find yourself in this situation, it’s important to process the feelings with help from someone who understands your emotions and what you are going through.

4) Get A Attorney

You may be asking yourself "How can I afford to pay for a lawyer?. There are many ways to get legal representation without breaking the bank. The internet is the best way to find lawyers who can help you with your needs.

Keyword 

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uber car accident lawyer (know more)

 Uber is a car service that provides rides to customers at the push of a button. The company has been in the news recently because of an accident involving one of their drivers.

There was an Uber driver who was involved in an accident with a pedestrian. The pedestrian suffered from serious injuries and had to be hospitalized for quite some time. The driver, on the other hand, had no injuries whatsoever and walked away from the accident unscathed. .Somehow, this driver is still alive.

Keyword 

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motorcycle accident attorney (how to make select one)

 motorcycle accident attorney

A motorcycle accident can be a traumatic experience. It can happen in the blink of an eye and often leaves the victim with serious injuries. A motorcycle accident attorney is someone who will take the time to listen to your story and assess your situation. They will then give you guidance on how to proceed, such as whether or not you should file a claim for compensation. or file a personal injury lawsuit.A motorcycle accident payout from a personal injury lawsuit will give you the time and resources to focus on recovery. If you have lost your job due to injuries sustained in the accident, this amount will help to rebuild your life

The law is becoming more accessible with the help of attorney services. They can be a valuable asset for individuals seeking compensation. With the help of an attorney, one may file a claim for just about any type of loss including medical bills, property damage, and more.

 without stress. A motorcycle accident attorney can be helpful in filing a claim for compensation for any losses .A motorcycle accident lawyer can be an invaluable resource in helping to save money and time. There is no need for a victim of a motorcycle accident to hire an attorney, but one may wish to consult one in certain situations. A motorcycle attorney can help with getting the best settlement possible for a case, as well as clearing up any legal questions that arise from the accident

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