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.