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.