Paolo Carozza (Notre Dame Law School) has posted The Problematic Applicability of Subsidiarity to International Law and Institutions (The American Journal of Jurisprudence, (2016), pp. 1–17) on SSRN. Here is the abstract:

This article seeks to explore some of the reasons why the principle of subsidiarity, although applicable in some sectors of international law and particularly in the field of international human rights law, has difficulty in serving as a general principle of public international law more broadly. The obstacles to advancing a more robust understanding of subsidiarity’s place in the current structure of global norms and institutions include: the normative and institutional fragmentation of international law; the continuing centrality of state sovereignty in the international legal system; and the endemic weaknesses and incapacity of states and sub-state communities with respect to any general system of global governance. The article concludes with some suggestions regarding how these difficulties can be mitigated.

Recommended.

Talia Einhorn (Tel Aviv University - Faculty of Management; Hebrew University of Jerusalem - Center for the Study of Rationality) has posted Book Review: Proportionality in Private Law. Ed. by Franz Bauer, Ben Koehler. -Tuebingen: Mohr Siebeck 2023. XIII, 219pp. (Rabels Zeitschrift (2024)) on SSRN. Here is the abstract:

In this book, containing papers from a conference held in Hamburg in May 2022, the editors sought to set out some preliminary steps in order to facilitate a comparative understanding of how proportionality works in private law settings. Accordingly, the contributions show the diversity of meanings and functions attached to the notion of proportionality. It would have gone beyond the scope of the book to explore how private law systems use proportionality to balance the interests of parties and of third parties or society as a whole. This would have been a particularly challenging endeavour, since there does not seem to be any general agreement about the definition and meaning of “proportionality” or of how it operates in legal reasoning in general or in private law in particular.

The terminology varies considerably depending on the jurisdiction, the field of law and the legal context. Only in European public law has the principle of proportionality become a term of art, referring to a specific three (or four)-prong test for judicial review of statutory provisions and government actions when they interfere with individual fundamental rights. The statutory provision or the action taken by the government has to serve a legitimate goal pursued by the empowering legislation, has to be suitable as well as necessary to achieve that goal, and must be proportionate stricto sensu, in that the disadvantages caused must not be disproportionate to the aims pursued. In other legal fields, proportionality may be used in a very broad sense associated with discretionary standards such as reasonableness or balancing. In the US, proportionality in public law is more akin to “interest balancing” or a rational means-end requirement, which means that as a term of art, it has acquired a different meaning there.

However, it cannot be said that the principle of proportionality in its European sense also applies in private law. In their contributions to this book, the authors had to redefine and re-conceptualize “proportionality”, in order to get the principle adapted to the framework of private law. There is not even a consensus as to which parts of the three-prong test are to be used in the different legal areas. All authors have also underlined the difficulties encountered due to the incommensurability of the factors relevant to the proportionality analysis in a private law setting in which the court is called upon to juggle the interests of parties, third parties and society in general.

The book seems to confirm the conclusions made by Oliver Remien in Max Planck Encyclopedia of European Private Law that, to the extent that national or EU private law provisions constitute a restriction of the fundamental freedoms, one may consider justifying them by reference to mandatory requirements of the public interest, but the justification must be compatible with the three-prong principle of proportionality. By contrast, it cannot be contended that the private law of the Member States irrespective of EU law, contains a proportionality principle as a yardstick for review of acts or omissions, for the lack of such a principle would erode private autonomy.

To sum up, the book is addressed to jurists and lawyers who wish to gain a better theoretical understanding of the principle of proportionality as well as its practical application by courts. Since a growing number of jurisdictions have shown interest in applying this principle and have used the terms “proportionate” and “disproportionate” in a variety of legal rules, its publication is commendable and timely.

Introduction

Constitutional discourse in both the academy and the public sphere has recently included quite a bit of talk about "originalism."  But what about originalism's great historic rival, "living constitutionalism?"  What is living constitutionalism and how is it different from originalism?  A preliminary answer to that question can be offered in the form of a simple definition:

Living Constitutionalism:  Living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

This entry in the Legal Theory Lexicon will examine the history of living constitutionalism, discuss the question as to how and whether it differs from originalism, and briefly explore some of the main forms of contemporary academic living constitutionalism.  As always, the Lexicon provides a short introduction to a concept in legal theory for law students.

The History of Living Constitutionalism

The phrase “living constitutionalism” seems to be derived from the title of a book by Howard Lee McBain, The Living Constitution, first published in 1927.  This slim volume ranges across a variety of topics, and it was not intended as rigorous constitutional theory.  The following passage illustrates McBain’s notion of a living constitution:

“A word”, says Mr. Justice Holmes, “is the skin of a living thought.”  As applied to a living constitution the expression is particularly apt; for living skin is elastic, expansile, and is constantly being renewed.  The constitution of the United States contains only about six thousand word; but millions of words have been written by the courts in elucidation of the ideas these few words encase.

In 1936, Charles Beard echoed McBain’s title in an essay published in the Annals of the American Academy of Political and Social Science.  Beard wrote,

Since most of the words and phrases dealing with the powers and the limits of government are vague and must in practice be interpreted by human beings, it follows that the Constitution as practice is a living thing. The document can be read at any moment.  What the judges and other expounders have said in the past can be discovered in thousands of printed pages.  From the records of history, we can get some idea of past practices under the instrument. But what the Constitution as practice is today is what citizens, judges, administrators, lawmakers, and those concerned with the execution of the laws do in bringing about changes in the relations of persons and property in the United States, or in preserving existing relations.  It is the living word and deed of living persons, positive where positive, and subject to their interpretation where open to variant readings. How could it be otherwise? How could intelligence, as distinguished from sophisticated interest, conceive the document as practice in any other terms?[

Another important formulation was provided by Charles Reich in his 1963 article, Mr. Justice Black and the Living Constitution:

[I]n a dynamic society the Bill of Rights must keep changing in its application or lose even its original meaning. There is no such thing as a constitutional provision with a static meaning. If it stays the same while other provisions of the Constitution change and society itself changes, the provision will atrophy. That, indeed, is what has happened to some of the safeguards of the Bill of Rights. A constitutional provision can maintain its integrity only by moving in the same direction and at the same rate as the rest of society. In constitutions, constancy requires change.

And a fourth influential formulation of living constitutionalism was offered in 1986 by Justice William Brennan:

To remain faithful to the content of the Constitution, therefore, an approach to interpreting the text must account for the existence of the substantive value choices and must accept the ambiguity inherent in the effort to apply them to modern circumstances.  The Framers discerned fundamental principles through struggles against particular malefactions of the Crown: the struggle shapes the particular contours of the articulated principles.  But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours.

The opponents of living constitutionalism offered their own definitions: for example, in 1976, then Associate Justice William Rehnquist wrote The Notion of a Living Constitution, which explicitly criticized living constitutionalism and implicitly endorsed originalism based on the writings of the framers. 

Contemporary theorists continue to use the phrase in a variety of ways.  Adam Winker writes,

The pattern-- critiquing originalism, insisting that the interpretation of the constitutional text evolve to meet changed conditions in society, and pursuing reform through litigation strategies that made evolution central to judicial reasoning--has come to define modern living constitutionalism.

Nelson Lund characterizes “living constitutionalism” as the view that “the scope of a constitutional right is defined largely by judicial perceptions of current social mores.”

Like "originalism," the term "living constitutionalism" is best viewed as the name for a family of theories, some of which are explored below.  Our next step is to explore the relationship between originalism and living constitutionalism. 

Living Constitutionalism versus Originalism

Like other theoretical terms, "living constitutionalism" and "originalism" have meanings that are disputed.  This means that some theorists are likely to offer definitions for these terms that make it true (as a matter of definition) that living constitutionalism and originalism are mutually exclusive, where as other theorists may embrace the possibility that some moderate forms of living constitutionalism are compatible with originalism.  The most prominent example of compatibilism is Jack Balkin's theory, which he explicated and defended in his book, Living Originalism.

The following definitions of "living constitutionalism" and "originalism" illustrate the possibility of compatibilism:

Originalism:  A constitutional theory is "originalist" if it affirms (1) the fixation thesis (the linguistic meaning of the constitutional text is fixed at the time each provision is framed and ratified), and (2) the constraint principle (the fixed original meaning should constraint constitutional practice).

Living Constitutionalism: A constitutional theory is "living constitutionalist" if it affirms that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

Nonoriginalism: A constitutional theory is "nonoriginalist" if it denies either the fixation thesis or the constraint principle.

Given these definitions, "living originalism" is a conceptual possibility if it is the case that the fixed original meaning of the constitutional text underdetermines at least some questions of constitutional doctrine.  Such underdetermination may occur if the constitution contains provisions that are vague or open textured.  Such provisions could be said to create "construction zones," areas of doctrine where the linguistic meaning of the text would need to be supplemented by precisification or default rules.  Thus, if some living constitutionalists accept that the constitutional text is binding when it is clear, then they could embrace originalism as to some issues while affirming that constitutional doctrine should evolve with respect to others.

Many participants in debates about living constitutionalism and originalism seem to reject the idea of compatibilism.  One reason for such rejection may a dispute over the definitions of the terms "living constitutionalism" and "originalism" could be defined as mutually exclusive positions.  This way of carving up the conceptual space has the advantage that it puts the two views in opposition to each other.  To the extent that the definitions are contested, the result would be "metalinguistic negotiation," which is discussed in another Legal Theory Lexicon entry.

While some constitutional theorists reject the idea of compatibilism for definitional reasons, others may oppose compatibilism on the basis of substantive concerns.  For example, some originalists may embrace the proposition that the constitutional text is fully determinate and hence that embracing the constraint principle entails that constitutional doctrine does not change.  It is important to remember that this kind of determinacy does not entail the further conclusion that constitutional applications are fixed.  Thus, one can believe that the original meaning of the Second Amendment creates a rule that forbids government regulations that ban the possession of weapons that can be carried by a person, but reject the idea that the category of weapons is limited to weapons that existed in 1791 when the Second Amendment was adopted.

If you accept the definitions offered above, then compatibilism and hence "living originalism' is at least a conceptual possibility.  If you reject these definitions, the theories that affirm some elements of living constitutionalism and some elements of originalism might be called "hybrid views."

Forms of Living Constitutionalism

Given the highly abstract definition of "living constitutionalism," is should not be surprising that there are many different versions.  Living constitutionalism is best viewed as a family of theories.  A full survey of the members of the family is too much for a Lexicon entry, but here are some of the most important members:

Constitutional Pluralism: This is the view that law is a complex argumentative practice with plural forms of constitutional argument.

Moral Readings: This is Ronald Dworkin’s theory, also called “law as integrity” or the “constructive interpretation” theory.

Common Law Constitutionalism: This is the view that the content of constitutional law should be determined by a common-law process.

Popular Constitutionalism: This is the view that “We the People” can legitimately change the Constitution through processes such as transformative appointments that do not formally amend the text.

Multiple Meanings: This is the view that the constitutional text has multiple linguistic meanings and that constitutional practice should choose between these meanings on a case by case basis.

Superlegislature: This is the view that the Supreme Court should act as an ongoing committee of constitutional revision with the power to adopt amending constructions of the constitutional text on the basis of the same kinds of reasons that would be admissible in a constitutional convention.

Contemporary Meaning:  This is the view that the meaning of the constitutional text does change and that it is the contemporary meaning and not the original meaning that should constraint constitutional practice.  Unlike other versions of living constitutionalism, this view denies the fixation thesis, but not the constraint principle.

Thayerianism: This is a family of views that require courts to defer to Congress, with three variants:

Constrained Thayerianism is the view that courts should defer to Congress but that Congress itself should be constrained by the original meaning of the constitutional text.

Unconstrained Thayerianism is the view that courts should defer to Congress and that Congress should have the constitutional power to revise the constitutional text, either by adopting amending legislation or by creating implicit amendments through ordinary statutes.

Representation Reinforcement Thayerianism is the view that courts should defer to Congress except when judicial review is necessary to preserve democracy, including protection of discreet and insular minorities and protection of democratic processes.

Constitutional Antitheory:  There are four views that are “antitheoretical” in the sense that they deny that constitutional practice should be guided by any normative theory, whether that theory be originalist or nonoriginalist:

Particularism is the view that constitutional practice should be guided by salient situation-specific normative considerations in particular constitutional situations.

Pragmatism is the similar view, associated with Judge Richard Posner (and in a different form with Daniel Farber and Suzanna Sherry) that constitutional decisions should be made pragmatically on the basis of various normative considerations.

Eclecticism is the view that different judges should embrace different approaches to constitutional interpretation and construction, and that even a single judge should adopt different approaches on different occasions. 

Opportunism is the view that theoretical stances should be deployed strategically to achieve ideological or partisan goals. 

One of the things we learn from this brief survey is that there are important differences between the various forms of living constitutionalism.  Common law constitutionalism and Thayerianism are radically different from each other, and both of them is quite different from the moral readings approach.  

Conclusion

"Living constitutionalism" is frequently invoked in debates about constitutional theory, but it is rarely defined in a precise way.  The aim of this Legal Theory Lexicon entry has been to give you a brief introduction to this important idea, its history, and some of the forms that it takes.

Related Lexicon Entries

• Legal Theory Lexicon 019: Originalism
• Legal Theory Lexicon 030: Textualism
• Legal Theory Lexicon 055: Principles in Constitutional Theory
• Legal Theory Lexicon 063: Interpretation and Construction
• Legal Theory Lexicon 071: The New Originalism
• Legal Theory Lexicon 074: Restraint and Constraint in Constitutional Theory
• Legal Theory Lexicon 075: Metalinguistic Negotiation

Bibliography (with pinpoint cites to quotations above)

• Jack Balkin, Living Originalism (2011).
• Charles A. Beard, The Living Constitution, 185 Annals of the American Academy of Political and Social Science 29 (1936).
• William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. Tex. L. Rev. 433, 437 (1986).
• Howard Lee McBain, The Living Constitution 33 (1947) (Note that this is not the original edition).
• Charles A. Reich, Mr. Justice Black and the Living Constitution, 76 Harv. L. Rev. 673 (1963).
• Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343, 1355 (2009).
• William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976).
• Lawrence B. Solum, What is Originalism? The Evolution of Contemporary Originalist Theory (2011).
• Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453 (2013).
• Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame Law Review 1 (2015).
• Adam Winkler, A Revolution Too Soon: Woman Suffragists and the "Living Constitution", 76 N.Y.U. L. Rev. 1456, 1458 (2001).

(Lasted updated on May 12, 2024.)

The Legal Theory Bookworm recommends The Collective-Action Constitution by Neil Siegel.  Here is a description:

The United States Constitution was established primarily because of the widely recognized failures of its predecessor, the Articles of Confederation, to adequately address "collective-action problems" facing the states. These problems included funding the national government, regulating foreign and interstate commerce, and defending the nation from attack. Meeting such challenges required the states to cooperate or coordinate their behavior, but they often struggled to do so both inside and outside the Confederation Congress. By empowering Congress to solve collective-action problems, and by creating a national executive and judiciary to enforce federal law, the Constitution promised a substantially more effective federal government.

An important read for scholars, lawyers, judges, and students alike, Neil Siegel's The Collective-Action Constitution addresses how the U.S. Constitution is, in a fundamental sense, the Collective-Action Constitution. Any faithful account of what the Constitution is for and how it should be interpreted must include the primary structural purpose of empowering the federal government to solve collective-action problems for the states and preventing them from causing such problems. This book offers a thorough examination of the collective-action principles animating the structure of the Constitution and how they should be applied to meet many of the most daunting challenges facing American society today.

An important book!  Long awaited. Highly recommended.

The Download of the Week is The Lost History of 'History and Traditio by Dov Fox & Mary Ziegler. Here is the abstract:

The Supreme Court has decided one blockbuster after another by appeal to “history and tradition,” deploying this trope to remake key features of the constitutional landscape: from overturning Roe to abolishing affirmative action, from narrowing the scope of public accommodations to widening the margin for church/state entanglements. The Court says that its history-and-tradition test emerged fully formed in 1997 from an assisted-suicide case that was designed to rein in the drift toward living constitutionalism under the Warren and Burger Courts. This origin story is compelling. The problem is it isn’t true—not where the test came or even what it is. That narrative erases decades of social movement conflict that this Article is the first to excavate. It marshals original archives to reveal that the history-and-tradition test was fashioned from the crucible of earlier struggles: over the value of deep and more recent history, over which communities and what kind of evidence define tradition, and, ultimately, over the role of America’s past in our constitutional present.

The contours of this debate were sharpened across doctrines and eras, inside the courts and beyond them. Recovering this history uncovers a rival vision of the history-and-tradition test—not entrenched but evolving. Taking seriously this dynamic alternative makes three contributions. First, it casts doubt on major decisions about race, abortion, guns, and God, while challenging the fixed-in-time conception of traditionalism these rulings stand on. Second, the more adaptive version of history and tradition sheds light on puzzles including the levels-of-generality problem, the constitutional progressive response to charges of judicial activism, and how a modern conservative legal coalition was forged out of fierce divisions over originalist methods and outcomes. Finally, that lost method bears surprising implications for claims that span the ideological spectrum: from fetal rights and gay marriage to gender-affirming care and conversion therapy. For instance, entrenched history and tradition probably wouldn’t operate to protect widely accepted rights such as interracial marriage and medical refusal. Whereas evolving traditionalism could protect yet-unrecognized rights that it wouldn’t protect right now, looking ahead to a sustained future that made a custom of aid in dying or assisted reproduction.

Highly recommended.

Evan Matthew Gelobter (Southern University Law Center) has posted Defending the Peculiar Institution: The Driving Force Behind Louisiana's Secession on SSRN. Here is the abstract:

This paper explores the driving force behind Louisiana's secession, challenging the "Lost Cause" narrative which suggests that secession was primarily about states' rights rather than slavery. Through a detailed examination of records from the Louisiana Secession Convention and contemporaneous writings, it becomes evident that the protection of slavery was the central motive. The analysis reveals that while states' rights were invoked, they were fundamentally about preserving the institution of slavery. Louisiana's official secession documents may not explicitly cite slavery, yet the convention's debates and resolutions underscore its significance. By critically assessing the legal and social frameworks of the period, particularly focusing on Louisiana's slave laws and judicial decisions, the paper argues that the secession was a strategic effort to maintain slavery and its economic benefits, showcasing the profound impact of this institution on Louisiana's decision to leave the Union.

Jani McCutcheon (The University of Western Australia Law School) has posted Are Generative AI Models Infringing Imported ‘Articles’ Under Copyright Law? on SSRN. Here is the abstract:

This article is the first to consider the novel question of whether a large artificial intelligence model could be an infringing imported article under the secondary infringement provisions of the Australian Copyright Act and similar secondary infringement schemes. Australian copyright owners have joined the global challenge to the widespread scraping of copyright works in the development and training of AI models. However, unless reproductions or other infringing acts take place in the Australian territory, those primary acts of infringement fall outside the jurisdictional limits of the Australian Copyright Act. This article ponders whether a sufficient nexus might exist through the ’importation’ and sale of AI models into Australia, engaging the Act's secondary infringement provisions.

Kimberly West-Faulcon (Loyola Law School Los Angeles; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law) has posted The SFFA v. Harvard Trojan Horse Admissions Lawsuit (Seattle University Law Review, Vol. 47, No. 4, 2024) on SSRN. Here is the abstract:

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII of the Civil Rights Act of 1964. Although the Court’s ruling in SFFA v. Harvard/UNC did not accomplish the legal goal of making race affirmative action categorically unconstitutional, the case conceals and perpetuates a moral falsehood with the ideological power to destroy race-inclusion-focused civil rights laws.

Robert L. Tsai (Boston University - School of Law) has posted Becoming Steve Bright (Kentucky Law Journal, Vol. 113, 2024) on SSRN. Here is the abstract:

This is a "Director's Cut" version of material that appears in condensed form in Robert L. Tsai, "Demand the Impossible: One Lawyer's Pursuit of Equal Justice for All" (Norton 2024). This essay to be published in Kentucky Law Journal was originally Chapter One. Drawing on archival documents and interviews, this essay delves into Stephen Bright's childhood growing up in Kentucky first in segregated Danville and later in Lexington once he emerges as a social activist and student body president. Special attention is paid to the Vietnam era protests that engulfed the University of Kentucky in the wake of the Kent State massacre, the political exploitation of social unrest by the governor and weak leadership by university officials, and the federal court litigation over the governor's emergency measures and the university's disciplinary process afterward.

Lois A. Weithorn (UC Law SF) has posted The Intrusive State: Restrictions on Gender-Affirming Healthcare for Minors, Exceptions to the Doctrine of Parental Consent, and Reliance on Science and Medical Expertise (75 UC Law Journal 713 (2024)) on SSRN. Here is the abstract:

The provision of gender-affirming medical care to transgender or gender diverse (“TGD”) youth is currently the subject of substantial controversy despite an overwhelming consensus in the healthcare community as to the safety and potential benefits of recommended treatments. Much of the debate is fueled by misinformation and inaccurate characterization of research and practice. Against this backdrop, twenty-three states enacted restrictions or complete prohibitions on access to gender-affirming medical care for adolescents between 2021 and the time of this writing in early 2024. The policies typically place healthcare practitioners who provide such services at risk of license revocation. Some statutes create rights of enforcement in third parties or the state, some establish criminal penalties, and others restrict financing of services. Minor patients and their parents have sued to prevent enforcement of these policies, alleging violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Many federal and state district courts have issued preliminary injunctions staying enforcement of some or all of the provisions of the reviewed statutes. Some of these injunctions have been reversed or modified on appeal, creating a split in the federal circuits.

This Article reviews and examines the enacted state measures and the litigation challenging those policies. It focuses primarily on Due Process Clause challenges, analyzing the issues through the lens of the law governing healthcare decisionmaking for minors. Guided by federal constitutional law, state statutory and case law, scholarly commentary, and the new Restatement of Children and the Law, this Article reviews the doctrine of parental consent and its exceptions. It concludes that the recent state restrictions on access to gender-affirming care for TGD youth do not satisfy the legally recognized exceptions to that doctrine, and that therefore, the intrusions into family decisionmaking authorized by these statutes are unconstitutional under the Due Process Clause.

Proponents of these measures reject the scientific basis for the standards of care and the consensus positions of the healthcare community. In their place, the measures’ proponents proffer misinformation and in some instances, disinformation (that is, content disseminated with the intent of creating controversy, confusion, and uncertainty). Of additional concern, some federal appellate courts have given weight to these unsubstantiated assertions and misrepresentations of the scientific literature in reversing lower court decisions that were well-grounded in the science. This phenomenon reflects a broader trend: Politically and ideologically motivated efforts have infused misinformation into public discussions and legal decisionmaking, affecting the outcomes of legal decisions.

As the review of the scientific literature within this Article reveals, the measures—not the treatments they restrict—risk substantial harm to a highly vulnerable group of young persons and their families, isolating these individuals and families from much-needed professional sources of treatment and support. Although the denial of needed treatment is the most obvious harm, the infliction of pain on these children and their families through social stigmatization, rejection, and marginalization is among the many ripple effects of these legal measures.

William J. Magnuson (Texas A&M University School of Law) has posted Original Discontent (78 Vanderbilt Law Review (forthcoming 2025)) on SSRN. Here is the abstract:

There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the structure and substance of the draft Constitution. They worried that it would lead to anarchy and tyranny. They worried that it would enshrine injustice into the policies of the new nation. And they worried that it would foment civil conflict and violence. These were not mere quibbles, the ordinary outcome of the messy process of compromise and negotiation. Their discontent went to the very foundation of the constitution. In short, many founders believed that the Constitution they created was not, in fact, good law.

This Article argues that “original discontent,” that is, the discontent of the enactors with the Constitution they were creating, is both underestimated and essential for understanding our constitution. Original discontent carries important implications for a wide range of the most common methods of constitutional interpretation. For originalists, it suggests that we should take the public statements of proponents of the constitution for what they were: more propaganda than heart-felt statement of belief. For living constitutionalists, it suggests that, even if we accept that judges should interpret the Constitution as laying down broad principles subject to evolving norms and moral beliefs, we must recognize that the founders were skeptical of those basic principles. For common good constitutionalists, it provides essential context about the original understanding of the constitution and its effects on the nature of the political community.

More fundamentally, this Article argues that original discontent calls for a broader reconceptualization of the nature of constitutions. One of the basic tenets of constitutional interpretation has always been that a constitution is something like a social contract: it lets our past selves rule our future selves. But nothing about that formulation tells us which views should matter: is it the views of the most rabid proponent, or of the average citizen, or of the coalition that voted in favor? What about the views of dissenters, or the disenfranchised, or the enslaved? By uncovering the hidden history of discontent at the center of the constitution’s creation, this Article highlights the importance of incorporating a wider range of perspectives into modern constitutional interpretation. It also provides a powerful reason for judicial restraint. If the Constitution was not thought to be a wise document even by those who drafted it, judges must exercise caution before using it to strike down democratically-enacted laws.

And from the paper:

Despite their professed differences, all three versions of originalism— original intent, original public meaning, and original structure—all tie constitutional interpretation back to the ideas of the founding generation. Whether they focus on the intentions of the framers, or the understandings of the public, or the designs discernible from the text, the theories ultimately ask some version of the same question: how did people conceive of the Constitution at the time it was enacted? What did they think it would do, what did they hope it would do, and what did they design it to do?

I do not agree with this characterization of what "all three versions" of originalism maintain. Certainly not public meaning originalism. For a contrary view of that theory, see "Original Public Meaning."

Ori J. Herstein (The Hebrew University of Jerusalem, Faculty of Law; King's College London - Dickson Poon School of Law) & Ofer Malcai (Hebrew University of Jerusalem - Faculty of Law) have posted The Procedure of Morality (Journal of Ethics and Social Philosophy 27:1 (2024): 180-209) on SSRN. Here is the abstract:

Does morality have a procedure? Unlike law, morality is arguably neither posited nor institutional. Thus, while morality undeniably prescribes various procedures, that morality itself has a procedure is less obvious. Indeed, the coexistence of procedural moral norms alongside substantive moral norms might seem paradoxical, given that they often yield contradictory prescriptions. After all, one may wonder, is morality not substantive all the way down? Nevertheless, the paper argues that morality has a “procedural branch,” containing numerous norms which are themselves procedural. These norms comprise what we hold are the three hallmarks of a procedural norm: second-orderness; providing reasons on how to engage with other norms; and, outcome-neutrality. In this respect, morality is more like law than what one might have expected.

Recommended.

Ntandokazi Shazi (National University of Singapore Faculty of Law) has posted An Evaluation of the Safe Port Obligation in the Light of Smart and Autonomous Ships on SSRN. Here is the abstract:

The market for smart and autonomous ships – vessels propelled by highly innovative technologies such as blockchain, the internet of things, robotics, simulation and modelling, big data and business analytics – is estimated to reach US$165.61 billion by 2030. The potential benefits that smart and autonomous ships offer to international trade have captured the attention of major industry players and governments in various parts of the world. However, the widespread adoption of such vessels will necessitate the development of smart ports equipped with complementary advanced technologies, infrastructure, and processes to accommodate them safely. This need is especially critical in the context of the charterer’s contractual obligation only to send the vessel under charter to safe ports. This strict obligation will likely compel charterers to avoid sending any smart and/or autonomous ships under charter to ports that cannot safely accommodate them.

This paper will examine the law concerning the ‘safe port obligation’ of the charterer in the context of smart and autonomous ships. It will highlight that courts will likely allocate liability for any damages to smart and autonomous ships visiting ill-equipped ports to the charterer. Considering the current trends in investment to digitise ports, this paper will also argue that developing regions may struggle to digitise ports, leading charterers to avoid utilising these ports. Finally, this paper will question whether the current cyber security framework is adequate to enable charterers to determine the safety of a particular port in the context of smart and autonomous ships.

Murat C. Mungan (Texas A&M University School of Law) has posted The Blackstone Ratio, Modified on SSRN. Here is the abstract:

In his discussion of evidentiary policies, Blackstone famously noted that "it is better that ten guilty persons escape than that one innocent suffer" (Blackstone 1769). The conventional wisdom among lawyers, judges as well as academics holds that accepting this statement as a maxim necessitates the adoption of pro-defendant evidentiary rules. It is also commonly believed that costs associated with false convictions being greater than failures to punish offenders due to the presence of punishment costs provides a utilitarian rationale for Blackstonian principles. After formalizing Blackstonian ratios (either as marginal rates of substitution or, alternatively, as the ratio between quantities of errors), I show these conventional views are incorrect. I then consider a simple modification of the Blackstone ratio which would make it more consistent with commonly held views about its implications and justifications.

Kenneth S. Abraham (University of Virginia School of Law) has posted Free Speech, Breathing Space, and Liability Insurance on SSRN. Here is the abstract:

In New York Times v. Sullivan (1964), the Supreme Court began adopting First Amendment restrictions on liability for defamation and other speech torts (invasion of privacy and intentional infliction of emotional distress), so as to create “breathing space” -- additional protection against liability for speech that has no constitutional value in itself. The idea was that the threat of tort liability should not have a “chilling effect” on constitutionally protected speech.

Alongside the rules affording breathing space for the exercise of free-speech rights is a little-known but highly important liability insurance regime that also affords breathing space, by covering defendants against liability for harm caused by unprotected speech. The theory of constitutionally required breathing space, however, takes no account of the role that this insurance against speech-tort liability plays in the operation of free speech, in theory and in practice. There have been decades of extensive legal scholarship about the First Amendment’s restrictions on speech-tort liability. Yet this scholarship wholly ignores the fact that all of the liability for the speech torts that the First Amendment does permit can be and often is covered by liability insurance. In the last few years, Supreme Court Justices Clarence Thomas and Neil Gorsuch have separately criticized existing constitutional limitations on liability for defamation as too broad, without any mention of the widespread existence and availability of insurance protecting against liability for defamation. The Justices’ criticisms of defamation law garnered a lot of attention and a barrage of responses, which have also omitted any reference to the possible relevance and significance of liability insurance to the debate about the proper scope of defamation liability.

This Article takes insurance against speech-tort liability out of the shadows, bringing First Amendment theory and doctrine into the orbit of thinking about liability insurance and its operation in practice. The Article identifies and analyzes the sources and scope of the coverage that insurance provides against speech-tort liability, combining insights about the complex and intertwined consequences of the threat of speech-tort liability with what we know about how liability insurance both creates breathing space and attempts to mitigate excess risk-taking by those who are insured. Finally, the Article considers the relevance of liability insurance to analysis of the speech torts, arguing that, with an awareness of the breathing space that liability insurance provides on the table, we cannot avoid what would amount to a wholesale review of the proper scope of constitutional protections against speech-tort liability.

Highly recommended.

Dov Fox (University of San Diego: School of Law) & Mary Ziegler (University of California, Davis - School of Law) have posted The Lost History of 'History and Tradition' (Southern California Law Review, Vol. 98, No. 1 (2024), Forthcoming) on SSRN. Here is the abstract:

The Supreme Court has decided one blockbuster after another by appeal to “history and tradition,” deploying this trope to remake key features of the constitutional landscape: from overturning Roe to abolishing affirmative action, from narrowing the scope of public accommodations to widening the margin for church/state entanglements. The Court says that its history-and-tradition test emerged fully formed in 1997 from an assisted-suicide case that was designed to rein in the drift toward living constitutionalism under the Warren and Burger Courts. This origin story is compelling. The problem is it isn’t true—not where the test came or even what it is. That narrative erases decades of social movement conflict that this Article is the first to excavate. It marshals original archives to reveal that the history-and-tradition test was fashioned from the crucible of earlier struggles: over the value of deep and more recent history, over which communities and what kind of evidence define tradition, and, ultimately, over the role of America’s past in our constitutional present.

The contours of this debate were sharpened across doctrines and eras, inside the courts and beyond them. Recovering this history uncovers a rival vision of the history-and-tradition test—not entrenched but evolving. Taking seriously this dynamic alternative makes three contributions. First, it casts doubt on major decisions about race, abortion, guns, and God, while challenging the fixed-in-time conception of traditionalism these rulings stand on. Second, the more adaptive version of history and tradition sheds light on puzzles including the levels-of-generality problem, the constitutional progressive response to charges of judicial activism, and how a modern conservative legal coalition was forged out of fierce divisions over originalist methods and outcomes. Finally, that lost method bears surprising implications for claims that span the ideological spectrum: from fetal rights and gay marriage to gender-affirming care and conversion therapy. For instance, entrenched history and tradition probably wouldn’t operate to protect widely accepted rights such as interracial marriage and medical refusal. Whereas evolving traditionalism could protect yet-unrecognized rights that it wouldn’t protect right now, looking ahead to a sustained future that made a custom of aid in dying or assisted reproduction.

Highly recommended.

Andrew Jennings (Emory University School of Law) & Kimberly D. Krawiec (University of Virginia School of Law) have posted Vice Capital (15 U.C. Irvine Law Review __ (forthcoming 2025)) on SSRN. Here is the abstract:

Academic and market interest in environmental, social, and governance (ESG) investing has grown markedly in recent years. Although less prominent, a substantial literature also explores whether “sin pays” in the public capital markets. This literature’s underlying theory is that social norms discourage the funding of businesses that promote vice and that some investors, particularly institutions sensitive to social norms, such as pension funds and foundations, will shun such investments. A consequence of this vice aversion is a “vice premium” for those investors who will invest in such companies. Largely unexplored, however, is what industries or business models qualify as “vice,” how this definition is constructed and changes, how vice aversion affects startup corporate governance and finance, and what consequences vice aversion holds for the real economy.

We address these gaps through a series of interviews with startup founders, venture-capital (VC) and angel investors, and legal and financial practitioners. Descriptive data from commercial VC databases supplement our interviews. We find that the definition of “vice” is nuanced and shifts over time as the subjective preferences of investors and their constituents adapt to changing regulatory environments and social mores. We further find that compared to non-vice startups, vice startups face heightened regulatory and business-infrastructure hurdles. The findings hold especially for women and other minoritized vice entrepreneurs and those serving minoritized customer bases. These challenges implicate entrepreneurship, society, and capital markets, including by complicating the concept of the vice premium in finance theory and by showing the potential for vice aversion to shape both the vice and non-vice sides of the real economy.

Highly recommended. Download it while it's hot!

Jeffrey A. Parness (Northern Illinois University - College of Law) has posted Evaporating Natural Parent Childcare Liberties Under New Parentage Laws (Arkansas Law Review, Forthcoming) on SSRN. Here is the abstract:

In 1982 in Santosky v. Kramer, the U.S. Supreme Court held that a state needs to demonstrate permanent neglect (or other bad acts) by “clear and convincing evidence” before it can involuntarily terminate the childcare liberties of “natural” parents. It observed that the “fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” Further, in 1983 in Lehr v. Robertson, the U.S. Supreme Court recognized that a “natural” father has “an opportunity that no other male possesses to develop a relationship with his offspring.” This opportunity interest in childcare parentage has been extended to at least some “natural” mothers (i.e., egg donors who are not gestating parents).

Nevertheless, some members of the Court did later sanction the involuntary evaporation of fundamental natural parent childcare liberties without consent or neglect. In 1989 in Michael H. v. Gerald D., four justices found that it is “a question of legislative policy and not constitutional law” whether a state “will allow the presumed parenthood of a couple desiring to retain a child conceived within and born into their marriage to be rebutted” by a natural parent, via adulterous sex, who seeks visitation.

Even when the childcare liberties of “natural” parents are recognized, the Santosky burden of proof is often not employed under some new American state parentage laws when the “care, custody and management” liberties of the existing natural parent are ended or diminished. Since Santosky, nonadoptive and nonbiological childcare parents have significantly emerged through residency/hold out, de facto, voluntary acknowledgment, assisted reproduction, and altered spousal parent laws. These new laws frequently originate through state usages of the Uniform Parentage Acts (UPAs) (1973, 2000, or 2017). When such new parents are designated, natural parents often have their childcare liberties wholly ended or lessened without Santosky safeguards.

Upon reviewing the new parenthood forms and their current federal and state law limits, suggestions are offered on providing greater legal protections for existing and expecting natural childcare parents under the new forms of nonadoptive and nonbiological childcare parenthood. In demonstrating how the childcare liberties of natural parents can be better safeguarded, the need for state law variations is recognized as there is broad discretion on childcare parentage delegated to state lawmakers and as states have differing approaches to natural parent childcare liberties.

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School (HKS)) has posted AI, Reducing Internalities and Externalities on SSRN. Here is the abstract:

Many consumers suffer from inadequate information and behavioral biases, which can produce internalities, understood as costs that people impose on their future selves. In these circumstances, “Choice Engines,” powered by Artificial Intelligence (AI), might produce significant savings in terms of money, health, safety, or time. Consider, for example, choices among motor vehicles or appliances. AI-powered Choice Engines might also take account of externalities, and they might nudge or require consumers to do so as well. Different consumers care about different things, of course, which is a reason to insist on a high degree of freedom of choice, even in the presence of internalities and (to some extent) externalities. But it is important to emphasize that AI might be enlisted by insufficiently informed or self-interested actors, who might exploit inadequate information or behavioral biases, and thus reduce consumer welfare. AI might increase internalities or externalities. It is also important to emphasize that AI might show behavioral biases, perhaps the same ones that human beings are known to show, perhaps others that have not been named yet, or perhaps new ones, not shown by human beings, that cannot be anticipated.

Highly recommended.

Hanoch Dagan (Berkeley Law School) has posted Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture on SSRN. Here is the abstract:

Freedom of contract plays a key role in many of our legal and public debates, but its meaning is rarely explicitly interrogated. Often it is simply assumed that freedom of contract stands for the idea that the law should just enforce private deals and otherwise get out of the way. This conventional association of freedom of contract with negative liberty may explain why it typically ranks high in the list of arguments summoned by libertarians. It is likewise evident when liberal egalitarians fend off these arguments by claiming that public values must override parties’ freedom of contract.

My aim in this Lecture is to upset this seemingly obvious understanding of freedom of contract and to offer an alternative. I argue that contract is a power-conferring institution, with autonomy as its grounding principle, its telos. Contract’s crucial contribution to people’s self-determination implies an obligation to instantiate contract in law; it is also the ultimate justification for recruiting law’s coercive power for contract enforcement. But these propositions imply that contract law must be designed in line with the requirements of its autonomy-enhancing telos. Specifically, this liberal telos prescribes the proper boundaries of contract’s jurisdiction.

Freedom of contract is the freedom to use contract within the boundaries of its legitimate jurisdiction. Attempts to enlist the law in the service of an agreement that seeks to cross these boundaries – to use contract in clearly autonomy-reducing ways – must thus be summarily rejected as abuses of the idea of contract. This means that rather than an intervention in people’s freedom of contract, guarding contract’s boundaries along these lines must be understood as a necessary means for securing the integrity of contract and thus ensuring its continued legitimacy.

My first task in this Lecture is descriptive. Part I outlines the libertarian understanding of freedom of contract, which is shared by both friends and foes of a laissez-faire vision of the law. Using two timely work-law debates – dealing with the proper scope of workers’ inalienable rights and of employee non-compete agreements – Part I also demonstrates how this libertarian understanding of freedom of contract obscures the inner limits of contract’s jurisdiction. My second task is conceptual and normative. Part II shows that the view of contract implicit in the conventional understanding of freedom of contract is conceptually unnecessary and normatively impoverished. Building on my previous work in contract theory, it then goes on to develop the alternative, genuinely liberal conception of freedom of contract. Properly understood, I argue, freedom of contract is intrinsically bounded by liberal contract’s commitment to relational justice (that is: reciprocal respect for self-determination and substantive equality) and to the autonomy of the parties’ future selves. My third and final task is prescriptive and reformist. Part III applies the liberal conception of freedom of contract to the debates over workers’ rights and non-compete agreements. The intrinsic boundaries of the liberal conception of freedom of contract, I argue, entail both the entrenchment of workers’ rights and the careful limitations of non-competes.

Highly recommended. Download it while it's hot!

Megan Donaldson (UCL Faculty of Laws) has posted Ventriloquism in Geneva: The League of Nations as International Organisation on SSRN. Here is the abstract:

For international lawyers, the League of Nations is an institution of great symbolic and doctrinal importance. With its quasi-universal membership (‘universal’ of course heavily qualified), open-ended mandate, and inauguration of an ‘international' civil service, the League broke from the more limited institutional forms of nineteenth-century interstate cooperation, and helped shift ‘international organisation’ from a general aspiration of ordered interaction to a more specific legal category of inter-governmental entities. However, the League was an irritant in the international legal order as well as an agent of law’s expansion. It posed new legal questions concerning its own status and personality; the nature of relations with states and others; and the regulation of officials working within it. These questions invoked puzzles already familiar to political and legal thought, about artificial personality and collective agency, but against the backdrop of renewed ferment over the conceptualisation of the state and the nature of (international) law.

This chapter probes interwar thinking about the League, its nature and authority, as an instance of legal innovation. It focuses in particular on the way in which the League, like other institutions, presented more than a static object of inquiry. Its existence shifted understandings of the ‘international’ as a subject and source of authority, just as the League, in offering new sites and procedures for political discourse, gave both governments and new actors (‘civil society’, mandatory peoples, minority populations, aspiring member states, ostensibly impartial and cosmopolitan ‘experts’) a means of articulating claims, albeit not on terms exactly of their own choosing; and so reshaped prevailing legal and political categories. By tracing a concern with speech—a theme which recurs in disparate ways as contemporaries struggled to make sense of the League—the chapter brings out the elusive qualities of the international organisation in international law: at once abstract and concrete, artificial and material, its operation shaping the conditions of its own analysis.

Michael Murphy (United Nations - United Nations Educational, Scientific and Cultural Organization (UNESCO)) has posted Relational Legal Pluralism: Ethical Agency, Reflexive Communities, A-legality, and the Revitalization of Democratic Institutions on SSRN. Here is the abstract:

This concept paper introduces Relational Legal Pluralism (RLP), a novel approach to law and governance that disrupts traditional narratives about the nation-state and its centralized authority. As a capricious storyteller in the narratives of contemporary democracies, RLP challenges the legitimacy of established legal frameworks, particularly in the face of globalization and societal disillusionment. Drawing inspiration from Post-Western Cosmopolitan Social Theory (PWCST), RLP reframes law as arising from interconnected "legal spaces" shaped by identities, geography, history, and evolving power dynamics. It emphasizes several key principles: Ethical Agency, Reflexive Communities, Embracing A-legality, and a Decolonial Perspective. Ethical Agency recognizes the agency of individuals and communities, empowering them to critically engage with legal frameworks and co-create solutions grounded in their lived experiences. Reflexive Communities emphasize the importance of reflexivity and dialogue within communities, encouraging them to examine, negotiate, and adapt their internal legal norms. Embracing A-legality acknowledges the diverse expressions of justice that persist outside or challenge formal legal systems, legitimizing these alternative forms of law. The Decolonial Perspective challenges power structures within legal systems, prioritizing the voices and knowledge systems traditionally marginalized by colonial legacies. The paper critiques traditional legal pluralism, highlighting its limitations within a globalized context. It then introduces RLP's principles, underscoring its potential for reimagining law as dynamic and context dependent. The analysis argues that RLP can contribute to addressing the crisis of legitimacy in democratic institutions through the development of a transformative account of deliberative democracy (TDD). This fosters ethical agency, empowering reflexive communities and networked governance, and promoting justice through an awareness of a-legality. In conclusion, RLP presents a paradigm shift in law and governance, offering a more inclusive, responsive, and empowering approach to legal systems. It offers a new lens through which to view and address the complexities of contemporary democracies, potentially paving the way for a more equitable and inclusive legal landscape.

Josh Leopold (The University of Chicago Law School) has posted Searching for Standing: Are Improper Acquisition or Threatened Misappropriation of Trade Secrets Cognizable Injuries Sufficient for Article III Standing? (University of Chicago Law Review, Vol. 90, No. 8, 2023) on SSRN. Here is the abstract:

Trade secret litigation is on the rise. Meanwhile, modern standing cases have forced courts and commentators to reevaluate what sorts of legal injuries bring factual injuries with them, such that federal courts can adjudicate them as a “case” or “controversy” under Article III of the Constitution.

This Comment studies the intersection of Article III standing and federal trade secret law. It is the first piece to provide a taxonomy of trade secret violations and factual injuries in the shadow of standing doctrine’s demand for an injury-in-fact. This Comment submits a bold yet plausible claim: Article III standing should be in question for certain violations of the Defend Trade Secrets Act (DTSA)—improper
acquisition and threatened misappropriation. Challenging standing in these cases will ensure that federal courts remain within their constitutional mandate. Moreover, challenging standing in certain trade secret cases will help encourage employee mobility in the marketplace.

While this Comment urges courts to assure themselves of Article III standing in these cases, it acknowledges that plaintiffs will have forceful responses to standing arguments made against them. A back-and-forth rally between plaintiffs and defendants will help courts reach the correct results, as the adversarial process intends. At bottom, this piece challenges what some seem to take as a given: that
trade secret plaintiffs who plausibly allege a violation of the DTSA have necessarily suffered an injury-in-fact.

Ilya Somin (George Mason University - Antonin Scalia Law School) has posted Brown, Democracy, and Foot Voting (American Journal of Law and Equality, Symposium on the 70th Anniversary of Brown v. Board of Education, Forthcoming) on SSRN. Here is the abstract:

Traditional assessments of Brown’s relationship to democracy and popular control of government should be augmented by considering the ways it enhanced citizens’ ability to “vote with their feet” as well as at the ballot box. Brown played a valuable role in reinforcing foot voting, and this has important implications for our understanding of the decision and its legacy.

Part I of the article summarizes the relationship between foot voting and ballot box voting, and how the former has important advantages over the latter as a mechanism of political choice. Relative to ballot box voting, foot voting offers individuals and families greater opportunities to make decisive, well-informed choices. It also has special advantages for minority groups, including Blacks.

Part II considers traditional attempts to reconcile Brown and democracy, through arguments that the decision was actually “representation-reinforcing.” While each has its merits, they also have significant limitations. Among other flaws, they often do not apply well to the Brown case itself, which famously originated in a challenge to segregation in Topeka, Kansas, a state in which – unlike most of the South – Blacks had long had the right to vote.

Part III explains how expanding our understanding of Brown to include foot voting opportunities plugs the major holes in traditional efforts to reconcile the decision and democratic choice. Among other advantages, the foot-voting rationale for Brown applies regardless of whether racial minorities have voting rights, regardless of whether segregation laws are motivated by benign or malevolent motives, and regardless of whether the targeted ethnic or racial groups can form political coalitions with others, or not.

In Part IV, I discuss the implications of the foot-voting justification of Brown for judicial review of other policies that inhibit foot voting, particularly in cases where those policies have a history of illicit racial motivations. The most significant of these is exclusionary zoning.

Recommended.

John M. Kang (University of New Mexico - School of Law) has posted First Amendment Fetishism (Utah Law Review, Vol. 2024, No. 3, 2024) on SSRN. Here is the abstract:

The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:

• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium
• a White skinhead’s cross burning on the front lawn of a Black family’s house
• the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain that he would cause Americans across political persuasions
• the commercial trafficking of videos that gleefully depict pit bulls who are fighting each other to death as they were trained by their malevolent owners to do

In protecting such remarkably offensive speech, the Court has failed to take seriously the claims of the community in wanting to regulate speech which is violative of the community’s desire to create a public culture of civility, dignity, and mutual respect.

Going against the grain of scholarship which has celebrated the victories of the individual speaker against his community, this Article argues that the community’s right to regulate speech should be afforded far more deference by courts than the right has previously received. There has been a surfeit of theorization relating to why we need a right of speech. But there has been a dearth of such theorization for why the right of speech should be restricted in order to realize the collective aspirations of the community. The Article aspires to fill that gap. Specifically, the Article draws upon the insights afforded by originalism to fashion a jurisprudence that emphasizes the rights of the community to regulate extremely offensive speech.

Recommended. There is no discussion of the original public meaning of either the text of the First Amendment or of the Fourteenth Amendment Privileges or Immunities Clause. Nor is there any discussion of other form of originalism, e.g., original methods originalism or original law originalism. I am not quite sure what version of originalist theory forms the basis for the paper.

Danny Li (Yale Law School) has posted The Comstock Act's Equal Protection Problem on SSRN. Here is the abstract:

Following its victory in Dobbs, the antiabortion movement has set its sights on a national abortion ban. Intense popular backlash to abortion-restrictive legislation, however, has rendered immediate enactment of such a ban out of reach. So many movement actors have turned away from democratic politics and back to courts to revive the 1873 Comstock Act as a federal abortion ban. The budding Comstock debate has so far focused entirely on questions of statutory interpretation about whether Comstock’s text should be broadly construed to ban abortion. But these textual disagreements obscure a more fundamental infirmity: the Comstock Act is unconstitutional. This Essay argues that the Comstock Act violates the Fifth Amendment’s equal protection guarantee because it was enacted with the discriminatory purpose of inhibiting illicit sex to promote women’s sexual purity. Only contemporary reenactment of the law without constitutionally suspect motives can purge the Comstock Act of its discriminatory intent. In the alternative, these serious constitutional doubts justify adopting a narrower construction of the law as a matter of constitutional avoidance.

Angelo Golia (University of Trento; Luiss Guido Carli University - Department of Political Science) has posted Taxing Data as an Instrument of Economic Digital Constitutionalism: Elements for a Normative Agenda (Forthcoming in: European Law Open, vol. 3 (2024), issue 2) on SSRN. Here is the abstract:

Digital constitutionalism rarely focuses on value creation, extraction, and distribution. Using data taxation as an entry point, this article introduces a symposium that contributes to filling this gap and sketches the elements of a normative agenda. The contributions to the symposium advance different proposals, but they share the view that the externalities of informational capitalism have constitutional significance. Based on this view, this introduction shows the interconnectedness of four distinct issues: 1) the impact of excessive datafication on modern societies; 2) the role of data in contemporary economy; 3) the design of taxes; 4) the interaction of data taxation with other legal regimes and social justice issues, also at the global level. The first goal is to increase the dialogue among strands of legal scholarship that do not necessarily speak the same language. The second goal is to expand the analytical and normative scope of digital constitutionalism which—the articles concludes—cannot address such issues as accidental elements but needs to be (also) an economic constitutionalism. The article proceeds as follows. After the introduction, section 2 focuses on the link between the digital revolution and constitutional states, especially on their role in value creation, extraction, and distribution. Section 3 identifies such an issue as a gap in digital constitutionalism and opens the way to the following sections. Section 4 is divided into four subsections. Subsection 4.1 stresses the need for critical approaches to datafication, which needs to be seen as an autonomous object of regulation. Subsection 4.2 highlights the role of data within the data economy and offers normative justifications for its taxation. Subsection 4.3 highlights the need to include Pigouvian, progressive, and rent-targeting elements into concrete data tax design. Section 4.4 puts these issues within the context of (global) economic governance, highlighting the role of political institutions in creating, extracting, and distributing value and the political nature of the underlying policy choices. Section 5 concludes.

Interesting and recommended.

David Frydrych (Monash University - Faculty of Law) has posted Characteristic Uses of Trusts: A Response to Bennett & Hofri (Law Quarterly Review, vol 140(July) 2024) on SSRN. Here is the abstract:

In a recent article (OJLS 2021), Mark Bennett and Adam Hofri claim that the ‘characteristic use’ of trusts is to subvert other areas of law. This is mistaken. For one thing, their theory is sometimes really concerned with those other areas of law, e.g., tax. Further, their approach mystifies by framing matters as a conflict between trusts versus property, tax, etc., when determining a system’s real stance instead requires seeing how all relevant legal rules and norms operate in the aggregate. Their theory sometimes also treats different jurisdictions’ laws as if they serve a single legal system, which ignores the reality of jurisdictional competition. This article additionally scrutinises some methodological bases for ‘normative’ theorisation about private law, and then assesses Bennett and Hofri’s arguments about whether the impugned trust laws and practices are justifiable.

Alexis Hoag-Fordjour (Brooklyn Law School) has posted Back to the Future: (Re)Constructing Ineffective Assistance of Counsel (UC Davis Law Review, Vol. 58, 2025) on SSRN. Here is the abstract:

This Article explores a new way of determining whether a criminal defendant received constitutionally ineffective assistance of counsel. Under existing law, a defendant must show (1) that counsel’s performance was deficient, and (2) that such deficiency resulted in prejudice. Defendants have encountered great difficulty in meeting this two-prong standard. Even when a defendant demonstrates deficient performance, a reviewing court will deny the claim if the defendant is unable to prove prejudice. The standard fails to adequately protect defendants against poor representation, eroding defendants’ primary protection against unfair and unjust proceedings.

The current standard is young and ripe for reimagining. In constructing a new standard, this Article relies on the aims espoused during Reconstruction, a period in which lawmakers extended citizenship, rights, and legal protections to formerly enslaved people. Beyond adding text, the Reconstruction amendments had the potential to transform constitutional law. Combined, the Reconstruction amendments ended slavery, extended citizenship to formerly enslaved people, and guaranteed enslaved people protections against the deprivation of certain fundamental rights, including life and liberty. Lawmakers intended these rights to be unencumbered. Rooted in the spirit of Reconstruction, the new ineffectiveness standard removes a barrier to relief: the prejudice requirement. Instead, defendants would need only to demonstrate that counsel’s conduct was deficient relative to prevailing professional norms and considering the circumstances of the case.

A prejudice free ineffectiveness standard better reflects the Reconstruction framers’ vision for expanding procedural protections to a marginalized population of people. Given early right to counsel jurisprudence, which embraced due process, the new standard is also doctrinally viable. This Article demonstrates that considering the broader historical context in which the Reconstruction framers drafted constitutional text can provide a clarifying framework for interpreting fundamental rights in the present.

Mark Kende (Drake University Law School) has posted The U.S. Supreme Court's Dobbs Abortion Decision: a Bitter Pill to Swallow (Drake Law Review, Vol. 71, No. 1, 2024) on SSRN. Here is the abstract:

In 2022, the U.S. Supreme Court in Dobbs ruled six to three that women have no fundamental right to an abortion. This overturned an almost 50-year-old case relied on by women, Roe. The Court decided that neither the text of the Constitution, original public meaning, or precedents supported Roe. The Court’s decision, however, was flawed.

The Dobbs Court relied on historical records from times where women had almost no rights. The Court ignored a host of precedents. And the Court’s decision will likely cause more women to get dangerous abortions, either without doctors, after travel, or until much later in the pregnancy. This is not pro-life. Dobbs also barely discussed women. Dobbs has left the country in chaos. Red states, that only permit women to get abortions in emergencies, will force doctors to allow women to become sick before an abortion is administered. This is also not pro-life. And the situation will be especially difficult for women with limited resources.

Further, the U.S. Supreme Court has decided to hear a case regarding the repeated agency approval process for the almost 25-year-old popular abortion pill. The pro-life side cherry picked a federal district judge, who was a former anti-abortion movement lawyer, to hear the case. And separately, the Alabama Supreme Court ruled that an embryo was a person which therefore made IVF temporarily illegal. One of the concurrences relied almost solely on the Bible.

This Article will provide more detail on the Dobbs flaws, the forthcoming abortion pill case, and the other negative results from the situation.

Justin Driver (Yale Law School)'s The Strange Career of Antisubordination has been posted on the University of Chicago Law Review website. Here is the abstract:

Constitutional scholars have long construed the Equal Protection Clause as containing two dueling visions: anticlassification and antisubordination. Scholars advancing the first view contend that the Clause prohibits the government from racially classifying people. But scholars promoting the second view argue that racial classifications are permissible—provided that the government does not engage in racial subjugation. On no issue have these competing perspectives clashed more intensely than affirmative action. Where the anticlassification view deems those policies unconstitutional for exhibiting race consciousness, the antisubordination view finds them permissible because they do not racially subjugate anyone. Conventional antisubordination scholars portray the concept’s support for affirmative action as one part of its larger intellectual program that inexorably champions racial egalitarianism.

This Article challenges that conventional account by demonstrating that antisubordination’s career has been far more protean, complex, and—above all—strange than scholars typically allow. Some of the most reviled opinions in Supreme Court history were predicated upon antisubordination rhetoric, as that concept has been used both to challenge and to maintain racist regimes. Legal luminaries from across the ideological spectrum, moreover, have often contended that affirmative action marks Black and brown people as substandard. Indeed, it is impossible to understand last Term’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College without foregrounding antisubordination’s multiplicity. That decision introduced “antisubordination” into the U.S. Reports, reframed how affirmative action subjugates racial minorities, and witnessed the Justices talking past each other by wielding the concept in divergent fashions. Grappling with antisubordination’s complexity remains urgent today because the theory has been exported to an ever-growing, astonishingly diverse array of legal domains.

Highly recommended. Download it while it's hot!

Yonatan Gelblum Axon and the Myth That Agencies Cannot Adjudicate Constitutional Claims (33.2 George Mason Law Review (Forthcoming, 2025)) on SSRN. Here is the abstract:

The 2023 decision in Axon Enterprise, Inc. v. FTC is the latest of several recent Supreme Court rulings declining to require litigants asserting that agencies are unconstitutionally structured to present these claims to the agency before seeking relief in court. These decisions follow earlier rulings by the Court declining to require administrative exhaustion of other constitutional claims. Although they do not hold that constitutional claims need never be exhausted, these opinions deploy broad language implying a stark dichotomy between courts that can meaningfully address structural and other constitutional claims, and agencies that cannot. Lower courts, commentators, and some agency officials have similarly disparaged constitutional adjudication by agencies.

Building on a growing literature on executive branch engagement with the Constitution, this Article will challenge this perceived divide between agencies’ and courts’ ability to address constitutional claims. Even if agencies cannot “declare” statutes unconstitutional as courts can, they routinely address constitutional issues and—perhaps counterintuitively—have various means to grant relief on structural and other constitutional claims. Thus, despite language in Axon and other cases disparaging agency adjudication of constitutional claims, courts should not automatically excuse exhaustion in every case raising such claims. Instead, courts should apply a standard administrative exhaustion analysis that considers the agency’s ability and willingness to address constitutional claims, whether the agency’s rules provide a mechanism for obtaining immediate relief on collateral legal issues, and the potential relevance of related statutory issues on which the agency has expertise or factual questions on which it can develop a record.

Recommended.

Christopher Amoasi (University of Cape Coast) has posted Enforcement of Fundamental Human Rights in Ghana: a Comparative Study of Articles 2, 33 and 130(1) of the 1992 Constitution on SSRN. Here is the abstract:

The enforcement of fundamental human rights is a crucial aspect of any democratic society, ensuring the protection and preservation of individual freedoms and dignity. Ghana, as a democratic nation, has made significant strides in upholding and safeguarding fundamental human rights through legislative, judicial, and executive mechanisms. This study explores key legal instruments such as the 1992 Constitution, international treaties, and national laws that serve as the foundation for human rights enforcement in Ghana. This article explores the enforcement of fundamental human rights in Ghana by analysing the similarities and differences in the enforcement mechanisms outlined in Articles 33, 2, and 130(1) of the 1992 Constitution. Article 33 delineates fundamental human rights and freedoms, forming the basis for legal protection. Articles 2 and 130(1) emphasise on who can invoke the original jurisdiction of the of the apex court in enforcement and interpretation of the constitution, including these fundamental rights. The study highlights the common objective of upholding fundamental human rights across these articles, emphasising the importance of protecting individual freedoms. Additionally, it elucidates the nuanced enforcement approaches, elucidating the direct and indirect mechanisms each article employs. Understanding these dynamics is essential for comprehending the legal framework guiding the enforcement of fundamental human rights in Ghana.

Introduction

One approach to the meaning of language emphasizes the idea that meaning is conventional.  Thus, when we interpret a constitutional or statutory provision, we might like for the conventional semantic meaning of the word or phrase.  But there is another view in the philosophy of language that rejects the idea that all meaning is conventional.  This approach has its greatest intuitive appeal in the case of words like "gold" or "water" that refer to natural kinds.  Thus gold is the name of an element with an atomic structure, and water is the name for a substance defined by a molecular structure (H20).

The idea of natural kinds that have an essential structure could be extended to what might be called "moral kinds" or "functional kinds."  Thus it could be argued that legal concepts like "cruelty," "guilt," "reasonableness," or "causation" are not defined conventionally, but instead have an essence that defines their true nature.

This entry in the Legal Theory Lexicon provides a very short introduction to the idea of natural and moral kinds.  As always, the Lexicon is aimed at law students with an interest in legal theory.

Natural Kinds

A conventional approach to language might lead to the conclusion that a word like "gold" or "water" has whatever meaning is revealed by the patterns of usage that establish its conventional meaning, but there is a powerful argument that this is not the case.  Gold and water are natural kinds, the nature of which can be determined by scientific investigation.  Whether something really is gold or water doesn't depend on the way we talk, it depends on physics and chemistry.  A famous example is "jade," which was once thought to be a single substance.  When modern science revealed that what we had been calling "jade" was actually two different substances ("jade" and "jadeite"), we learned that we had been making a mistake when we called jadeite "jade."

The idea of natural kinds was developed by philosophers.  The key figures are Saul Kripke and Hilary Putnam.  Some of their writings are cited in the bibliography below.

Natural kind terms play a role in the law, but that role is limited.  For example, the United States Constitution refers to gold and silver in Article One.  If these substances are natural kinds, then their meaning in the constitutional text might be determined by the best scientific theory of their nature.  But the law frequently uses terms that do not refer to natural kinds that are investigated by science.  Examples might include "unreasonable" in the Fourth Amendment, "cruel" in the Eighth Amendment, or "freedom of speech" in the First Amendment.

Moral and Functional Kinds

The existence of natural kinds with essences that are revealed by natural science is relatively uncontroversial.  More controversial is the idea that there might be moral or functional kinds.  If this idea is correct that it would have important implications for the interpretation of legal texts.  When judges were trying to determine what is "unreasonable" they would investigate the nature of reasonableness; the best theory of what is reasonable would then guide the determination of what searches are "unreasonable" for Fourth Amendment purposes.  Likewise, judges interpreting the First Amendment would try to determine the true nature of "freedom of speech" and then apply that theory to determine what constitutes a violation of the First Amendment.

This idea has been most extensively developed by the great legal philosopher Michael Moore; his most important article on the notion of functional kinds and its role in legal interpretation is cited in the bibliography that appears below.  Moore's idea is very different that the use of the concept-conception distinction by Ronald Dworkin: that notion is explored in a separate Legal Theory Lexicon entry.

Conclusion

The notion of natural kinds and the related ideas of moral and functional kinds pose an important challenge to conventionalist accounts of legal interpretation.  This is a deep topic, but my hope is that this Lexicon entry provides a basic introduction that is accessible to students without background in philosophy.

Related Lexicon Entries

• Legal Theory Lexicon 028: Concepts and Conceptions

Bibliography

• Alexander Bird & Emma Tobin, "Natural Kinds", The Stanford Encyclopedia of Philosophy (Spring 2017 Edition), Edward N. Zalta (ed.), URL = <https://plato.stanford.edu/archives/spr2017/entries/natural-kinds/>.
• Saul Kripke, Naming and Necessity (1980).
• Michael Moore, The Semantics of Judging, 54 S. Cal. L. Rev. 151 (1980-1981).

(Last Modified on May 4, 2024)

The Legal Theory Bookworm recommends The Constitution of the War on Drugs by David Pozen. Here is a description:

This is an open access title available under the terms of a CC BY-NC-ND 4.0 International license. It is free to read at Oxford Academic and offered as a free PDF download from OUP and selected open access locations.

An authoritative and first-of-its-kind critical constitutional history of the war on drugs that shows how drug prohibition was shaped by constitutional law, and how constitutional law was shaped by drug prohibition.

The U.S. government's decades-long "war on drugs" is increasingly recognized as a moral travesty as well as a policy failure. The criminalization of substances such as marijuana and magic mushrooms offends core tenets of liberalism, from the right to self-rule to protection of privacy to freedom of religion. It contributes to mass incarceration and racial subordination. And it costs billions of dollars per year--all without advancing public health. Yet, in hundreds upon hundreds of cases, courts have allowed the war to proceed virtually unchecked. How could a set of policies so draconian, destructive, and discriminatory escape constitutional curtailment?

In The Constitution of the War on Drugs, David Pozen provides an authoritative, critical constitutional history of the drug war, casting new light on both drug prohibition and U.S. constitutional development. Throughout the 1960s and 1970s, advocates argued that criminal drug bans violate the Constitution's guarantees of due process, equal protection, federalism, free speech, free exercise of religion, and humane punishment. Many scholars and jurists agreed. Pozen demonstrates the plausibility of a constitutional path not taken, one that would have led to a more compassionate approach to drug control.

Rather than restrain the drug war, the Constitution helped to legitimate and entrench it. Pozen shows how a profoundly illiberal and paternalistic policy regime was assimilated into, and came to shape, an ostensibly liberal and pluralistic constitutional order. Placing the U.S. jurisprudence in comparative context, The Constitution of the War on Drugs offers a comprehensive review of drug-rights decisions along with a roadmap to constitutional reform options available today.

And from the reviews:

"The war on drugs has been a moral, political, and policy catastrophe. This stunningly original, powerful book shows that it has been a constitutional catastrophe as well. Fundamental guarantees of liberty, privacy, free expression, fair punishment, and racial equality―all have been sacrificed by the Supreme Court in service of the war effort. Mapping an alternative constitutional path toward sane drug policy and social justice, Pozen masterfully teaches a painful lesson about the failures, if not limits, of constitutional law." -- Daryl Levinson, New York University

"The Constitution of the War on Drugs is a profound achievement. Pozen uncovers a lost and expansive history of legal challenges to draconian drug policies. The result is a bracing and truly innovative work of legal reconstruction and moral argument, one that compels lawyers and scholars to fundamentally rethink the role of constitutional law in fortifying a failed carceral state. It is essential reading for anyone, academic or activist, committed to understanding how we got here and how to imagine a different horizon." -- Aziz Rana, author of The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them

"Constitutional litigation and drug liberalization have often gone hand in hand around the world. But not in the United States. Why not? What happened to the U.S. drug reform movement? And what does this tell us about modern American constitutional jurisprudence and social movement advocacy? In this brilliant and original new book, David Pozen answers these questions and more―leaving us with a profound sense of the limits of American constitutionalism as an answer to the challenges of our time." -- Rosalind Dixon, University of New South Wales

"David Pozen's The Constitution of the War on Drugs offers a masterful assessment of the clash between repressive drug policies and the values embedded in American constitutionalism. One inescapable lesson of the past half century is that criminalization of drug use and addiction have been costly (indeed deadly) and counterproductive. Pozen's detailed review sets the stage for long-overdue policy experiments relying less on criminalization while coming to terms with unavoidable tradeoffs between individual liberty and public health." -- Richard Bonnie, author of The Marijuana Conviction: A History of Marijuana Prohibition in the United States

"Pozen has produced a surprising, eye-opening account of how constitutional law might have been a bulwark against the worst excesses of the war on drugs if not for the highly contingent choices of lawyers and judges during the late twentieth century. Chock full of strategic insights and fascinating stories, The Constitution of the War on Drugs is essential reading for anyone who wants to understand how the drug war was created and sustained, as well as how it fits within the shifting landscape of American constitutional practice." -- Monica Bell, Yale University

"It can't have been easy to write a book whose central motif is that legal efforts to constitutionalize and decriminalize various drugs have usually led down 'paths to nowhere.' And yet the result is a triumph of the legal imagination. David Pozen's The Constitution of the War on Drugs offers a transcendent constitutional history of the last half-century of criminal drug bans. Brilliantly conceptualized and realized, filled with imaginatively researched stories, The Constitution of the War on Drugs is much more than a history of a particular arena of continuing constitutional failure, although the book is certainly that." -- Hendrik Hartog, Princeton University

"David Pozen's carefully researched and brilliantly argued book on the Constitution and the war on drugs is both illuminating and disturbing. No surprise there. Pozen is our country's most inventive and interesting young constitutional scholar." -- Louis Michael Seidman, Georgetown University

The Download of the Week is Four Views of the Nature of the Union by Jud Campbell (. Here is the abstract:

This Essay summarizes four Founding-Era views about the nature of the Union and the key interpretive implications that followed from those views. In doing so, it emphasizes the importance of social-contract theory and engages a recent scholarly debate over the influence of the law of nations on Founding-Era constitutional interpretation. Without taking a position about which view of the Union was correct, the Essay aims to illuminate the range of interpretive possibilities, including ones informed more by social-contractarian premises than by the law of nations.

Highly recommended. Download it while it's hot!

Brian C. Kalt (Michigan State University College of Law) has posted A Distinct System for Presidential Succession on Inauguration Day: Getting the Most Out of Section 3 of the Twentieth Amendment (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:

The current presidential-succession statute uses the same line of succession for every conceivable situation. But there are many different types of potential succession scenarios. Succession need not--and should not--be governed by a one-size-fits-all approach.

Before the Twentieth Amendment was ratified in 1933, the Constitution authorized Congress to provide only for double vacancies during the term, when there already is a President and Vice President. Recognizing this gap, Section 3 of the Twentieth Amendment empowered Congress to cover inauguration-day double vacancies: at the outset of a term, when nobody is available to become President or Vice President in the first place.

Significantly, Section 3 gives Congress much more flexibility for inauguration-day double vacancies than Article II allows for middle-of-the-term ones. But Congress has never fully embraced its Section 3 powers: When Congress wrote the current succession law in 1947, it chose a monolithic system that ignored the distinctive needs of inauguration-day succession and left Section 3’s flexibility unused. The time for Congress to make full use of its Section 3 powers is long overdue.

Anthony J. Gaughan (Drake University - Law School) has posted The Unsettled State of Corporate General Personal Jurisdiction (Nebraska Law Review, Vol. 103, 2024) on SSRN. Here is the abstract:

In the 2023 case of Mallory v. Norfolk Southern Railway Company, a sharply divided United States Supreme Court held that general-jurisdiction-by-registration statutes do not violate the Due Process Clause. The Court based its decision on the 1917 case of Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., which upheld Missouri’s registration-jurisdiction statute against a due process challenge. The plurality and concurring opinions in Mallory viewed Pennsylvania Fire as a controlling precedent that dictated a ruling in favor of Pennsylvania’s registration-jurisdiction statute.

Ironically, however, Mallory’s affirmation of Pennsylvania Fire implicitly repudiated a recent line of general jurisdiction cases known as the Goodyear trilogy. The Goodyear cases narrowed the scope of general jurisdiction for corporations, thus clarifying the law after decades of circuit splits and inconsistent rulings. By gutting the practical effectiveness of the Goodyear trilogy, Mallory threatens to set off a jurisdictional free-for-all in corporate litigation.

This article examines Mallory’s unsettling ramifications for corporate general personal jurisdiction. It proceeds in four parts. The first section explains the rationale behind the Court’s ruling. The second section examines the judicial uncertainty and inconsistent rulings that plagued corporate general personal jurisdiction before Goodyear. The third section argues that the Goodyear trilogy brought long overdue stability, consistency, and predictability to corporate general jurisdiction. When combined with the Court’s recent clarification of specific jurisdiction’s scope, Goodyear and its companion cases placed plaintiffs and defendants on a level playing field. But the Mallory decision destroys that equilibrium and creates a new era of instability in corporate general jurisdiction. The fourth section warns of the consequences if the Court fails to salvage at least some of the stability achieved by the Goodyear trilogy. As Justice Alito noted in his concurring opinion in Mallory, there is a strong case to be made that general-jurisdiction-by-registration statutes violate the Dormant Commerce Clause. At present, however, Mallory clears the way for legislatures to coerce foreign corporations to consent to all-purpose jurisdiction without running afoul of the Due Process Clause. Left unchecked, the ruling will give rise to a patchwork quilt of conflicting general jurisdiction rules and questionable choice-of-law determinations. Mallory may thus go down in history as the case that turned the clock back to the unsettled pre-Goodyear era of corporate general jurisdiction.

Ross E. Davies (George Mason University - Antonin Scalia Law School; The Green Bag) has posted Casey Meets the Court (27 Green Bag 2d 169 (2024)) on SSRN. Here is the abstract:

Ernest Lawrence Thayer, creator of “Casey at the Bat,” produced three versions of his poetical gift to baseball fans. The Supreme Court of the United States, creator of the “baseball antitrust exception,” produced three versions of its doctrinal gift to baseball owners. In Volume VIII of its series of Re-readings booklets, the Green Bag republished all three of Thayer’s versions of Casey, and compared the arc of their literary development to the judicial arc of development of the Court’s baseball antitrust exception. There was something missing, however, from this parallel treatment of Casey and the Court: the two arcs intersected in the end, via Justice Harry Blackmun. This is their story.

Adam Davidson (The University of Chicago Law School) has posted Administrative Enslavement (Columbia Law Review, Vol. 124, No. 3, 2024) on SSRN. Here is the abstract:

There are currently over a million people enslaved in the United States. Under threat of horrendous punishment, they cook, clean, and even fight fires. They do this not in the shadow of the law but with the express blessing of the Thirteenth Amendment’s Except Clause, which permits enslavement and involuntary servitude as punishment for a crime.

Despite discussions of this exception in law reviews, news reports, and Netflix documentaries, few have recognized that this enslavement happens silently. No prosecutor, judge, or defense attorney tells convicted people that they will be enslaved as punishment for their crime. It is only once they are incarcerated that a prison administrator informs them they will be forced to work.

This Article uncovers how this state of the world has come to be. It argues that our current regime is one of administrative enslavement: a constellation of judicial and legislative choices that places the punishment of enslavement outside the scope and processes of our traditional criminal punishment structure and into the hands of prison administrators. This Article is the first to provide a taxonomy of the administrative enslavement regime. It uncovers the weak jurisprudential underpinnings of that regime, and it surveys all fifty states’ and the federal government’s legislative implementation of the Except Clause. It concludes by utilizing this taxonomy to analyze administrative enslavement’s legal weaknesses as well as how the status quo might evolve in the face of growing attacks from states removing Except Clauses from their state constitutions.

Highly recommended.

Shai Dothan (University of Copenhagen - iCourts - Centre of Excellence for International Courts) has posted Courts and Social Justice (Forthcoming in 58 Loyola of Los Angeles Law Review (2025)) on SSRN. Here is the abstract:

Many scholars have argued that courts are either harmful or useless when it comes to improving social justice in society. There are three main reasons offered in support of this argument: (1) Courts are elitist institutions that support the high social class of the judges at the expense of the rest of society (2) The structure of litigation is geared towards harming the rights of people with modest economic means (3) Even when courts try to impose a higher standard of social justice, they are not able to initiate real social change. The purpose of this paper is to investigate these claims. The conclusion the paper reaches is that courts are able to initiate social change in favor of powerless social groups, primarily diffuse interests that are usually taken advantage of even in a functioning democracy. The reason has to do with social processes that take place after judgments are issued instead of with the ideology of judges.

Recommended.

Daniel P Astone (Stockholm University - Department of Law; Harvard University - Institute for Global Law and Policy) has posted Ablegality: a Primer on Systems Theory as a Critical Legal Framework on SSRN. Here is the abstract:

This article argues for a critique of political economy supported by Niklas Luhmann's systems theory. Luhmann’s work has significant synergies with mainstream law and economics, converging towards the possibility of ignoring the harm caused by unequal exchanges. Assuming that the law, at least in principle, rejects expropriation, the article demonstrates that accumulation in the market economy is made possible precisely through the selective recognition of instances where the expropriatory claim of property is present. The novel concept of "ablegality" – where legality is temporarily absent rather than negated – provides a framework for understanding the process of selective recognition. It contributes to restoring and engaging with normative tensions internal to the law, even though they are systemically invisible, positioning systems theory as a framework for dialectical critique.

Afreen Afshar Alam (Jamia Hamdard) has posted The Architects of Modern Indian Legal System: Warren Hastings and Charles Cornwallis on SSRN. Here is the abstract:

After winning the Battle of Plassey and obtaining the Diwani Rights (the right to decide tax and civil disputes, collect revenue, and keep the surplus), the East India Company recognized the necessity for a standard and efficient system of revenue collection and administration of justice. Hastings played an important role in the war and pleased Robert Clive, who urged that he become the British resident in Murshidabad, Bengal's capital, in 1758. Following a rapid ascent, he was appointed as the Governor of Calcutta in 1771. Not long after, he devised the Judicial Plan of 1772, his first proposal for judicial reform. Hastings instituted the establishment of a centralized court system. He aimed to simplify the management by dividing the executive and judicial roles. Lord Cornwallis succeeded Warren Hastings as the Governor-General. Throughout his term, he implemented numerous significant reforms to the court administration. He implemented a methodical administrative system in British India, and certain fundamental aspects of his reforms are still apparent in our current system. His role was to ensure that a stable social group of colonizers never developed in India and posed a danger to the imperial authority.

Jens Frankenreiter (Washington University in St. Louis - School of Law) has posted Studying Judicial Citations and Citation Data (The Oxford Handbook of Comparative Judicial Behaviour (Lee Epstein et al., eds.), forthcoming) on SSRN. Here is the abstract:

References to prior case law and other legal materials play a crucial role in justifying judicial decisions in many jurisdictions worldwide. This chapter provides an overview of research using quantitative methods to investigate citations in judicial opinions, offering a literature survey, a roadmap for gathering and analysing citation data, and a discussion of methodological challenges and opportunities for advancement in this field. In the literature review, the chapter distinguishes various streams of work, including macro-level studies that describe and compare citation patterns across different legal systems and micro-level analyses of judges’ citation decisions. It argues that micro-level studies are particularly well suited to produce results that inform our comparative understanding of judge behaviour. However, this work faces methodological challenges related to using traditional quantitative methods in the context of citation data, which have largely gone unnoticed in the legal literature. The chapter demonstrates these challenges through simulations and discusses ways to overcome them. The chapter also discusses the importance of methodological innovations and new research directions in the study of citations in legal opinions more generally. Beyond overcoming the previously mentioned methodological challenges, opportunities for improvement include conducting research that explicitly compares citation patterns across jurisdictions and developing theories that connect citation networks to relevant features of legal systems. Pursuing these opportunities can bolster the credibility of research investigating citation behaviour and contribute to a more nuanced understanding of the factors that influence the use of citations in legal systems across the globe and judicial behaviour more generally.

Danny Li (Yale Law School) has posted The Comstock Act's Equal Protection Problem on SSRN. Here is the abstract:

Following its victory in Dobbs, the antiabortion movement has set its sights on a national abortion ban. Intense popular backlash to abortion-restrictive legislation, however, has rendered immediate enactment of such a ban out of reach. So many movement actors have turned away from democratic politics and back to courts to revive the 1873 Comstock Act as a federal abortion ban. The budding Comstock debate has so far focused entirely on questions of statutory interpretation about whether Comstock’s text should be broadly construed to ban abortion. But these textual disagreements obscure a more fundamental infirmity: the Comstock Act is unconstitutional. This Essay argues that the Comstock Act violates the Fifth Amendment’s equal protection guarantee because it was enacted with the discriminatory purpose of inhibiting illicit sex to promote women’s sexual purity. Only contemporary reenactment of the law without constitutionally suspect motives can purge the Comstock Act of its discriminatory intent. In the alternative, these serious constitutional doubts justify adopting a narrower construction of the law as a matter of constitutional avoidance.

Hanoch Dagan (Berkeley Law School) has posted Freedom of Contract, Properly Understood: The 2024 Maastricht Private Law Lecture on SSRN. Here is the abstract:

Freedom of contract plays a key role in many of our legal and public debates, but its meaning is rarely explicitly interrogated. Often it is simply assumed that freedom of contract stands for the idea that the law should just enforce private deals and otherwise get out of the way. This conventional association of freedom of contract with negative liberty may explain why it typically ranks high in the list of arguments summoned by libertarians. It is likewise evident when liberal egalitarians fend off these arguments by claiming that public values must override parties’ freedom of contract.

My aim in this Lecture is to upset this seemingly obvious understanding of freedom of contract and to offer an alternative. I argue that contract is a power-conferring institution, with autonomy as its grounding principle, its telos. Contract’s crucial contribution to people’s self-determination implies an obligation to instantiate contract in law; it is also the ultimate justification for recruiting law’s coercive power for contract enforcement. But these propositions imply that contract law must be designed in line with the requirements of its autonomy-enhancing telos. Specifically, this liberal telos prescribes the proper boundaries of contract’s jurisdiction.

Freedom of contract is the freedom to use contract within the boundaries of its legitimate jurisdiction. Attempts to enlist the law in the service of an agreement that seeks to cross these boundaries – to use contract in clearly autonomy-reducing ways – must thus be summarily rejected as abuses of the idea of contract. This means that rather than an intervention in people’s freedom of contract, guarding contract’s boundaries along these lines must be understood as a necessary means for securing the integrity of contract and thus ensuring its continued legitimacy.

My first task in this Lecture is descriptive. Part I outlines the libertarian understanding of freedom of contract, which is shared by both friends and foes of a laissez-faire vision of the law. Using two timely work-law debates – dealing with the proper scope of workers’ inalienable rights and of employee non-compete agreements – Part I also demonstrates how this libertarian understanding of freedom of contract obscures the inner limits of contract’s jurisdiction. My second task is conceptual and normative. Part II shows that the view of contract implicit in the conventional understanding of freedom of contract is conceptually unnecessary and normatively impoverished. Building on my previous work in contract theory, it then goes on to develop the alternative, genuinely liberal conception of freedom of contract. Properly understood, I argue, freedom of contract is intrinsically bounded by liberal contract’s commitment to relational justice (that is: reciprocal respect for self-determination and substantive equality) and to the autonomy of the parties’ future selves. My third and final task is prescriptive and reformist. Part III applies the liberal conception of freedom of contract to the debates over workers’ rights and non-compete agreements. The intrinsic boundaries of the liberal conception of freedom of contract, I argue, entail both the entrenchment of workers’ rights and the careful limitations of non-competes.

Highly recommended.

Keith E. Whittington (Princeton University - Department of Political Science, Yale Law School) has posted On Institutional Neutrality and the Purpose of a University on SSRN. Here is the abstract:

In November 1969, the Council of the American Association of University Professors confessed that it found itself divided on the question of whether institutions of higher education should remain neutral on the political and social controversies of the day. The division on the AAUP Council mirrored the divisions within the professoriate more generally. Universities, academic departments, and scholarly societies were inundated with demands that they take a stance on the Vietnam War and various other matters. The debates of the 1960s were left unsettled, though as a practical matter numerous scholarly institutions did issue political statements as some of their constituent members insisted that they do. If the question of institutional neutrality died down along with American withdrawal from Vietnam, it was not laid to rest. Subsequent episodes of campus activism renewed the calls for universities to get off the sidelines and join the activists and renewed the debate over whether such actions would be appropriate.

The debate over whether a university should, as an institutional actor, take an official stance on matters of political and social controversy that do not immediately affect the operation of the university itself has surged back onto the agenda. Not only university faculty, but also university governing boards and state legislatures have taken an interest in the question.

I argue that universities and their subunits, as well as scholarly associations, should refrain from issuing such statements. Such statements have little upside benefit but substantial downside risks. For external audiences, such statements threaten to damage the support for the institutional autonomy of institutions of higher education. For internal audiences, such statements threaten to corrupt the mission of the university and impinge on the academic freedom of individual members of the campus community.

Highly recommended.

Rafał Mańko (Central European University, Democracy Institute) has posted Pašukanis on Ideology and the Juridical (A Note on The General Theory of Law and Marxism) (Przemysław Tacik, Cosmin Cercel and Gian Giacomo Fusco (eds), Legal Form: Pashukanis and the Marxist Critique of the Law (Routledge), Forthcoming) on SSRN. Here is the abstract:

The present chapter aims at reconstructing the views of Evgenij Bronislavovič Pašukanis on the relationship between the concepts of law and ideology on the basis of a close reading of his General Theory of Law and Marxism (1924). The chapter first examines Pašukanis's views on the social ontology of law which focused on its autonomy and distinctiveness from ideology and other elements of the "superstructure," before moving on to an analysis of his critique of juridical ideology. Within the latter, the chapter identifies three strands of ideology critique: (1) the critique of the ideology of juridical form, i.e. the fundamental and most general ideological presuppositions and implications of juridical form as such; (2) the critique of legal ideology, i.e. the ideological presuppositions and implications of a concrete system of positive law (on the example of bourgeois legal form); (3) the critique of juristic ideology, i.e. the professional (guild) ideology of the community of lawyers and jurists, including legal philosophers and theorists.

Yaniv Roznai (Interdisciplinary Center (IDC) Herzliya - Radzyner School of Law) has posted From the 'Hungarian Blitz' to the 'Polish Salami': The Judicial Overhaul in Israel as a Populist Project on SSRN. Here is the abstract:

This chapter describes the ‘judicial overhaul’ – a major set of reforms to the judicial system – promoted by Israel’s 37th government, during the period between November 2022 and September 2023, and the unprecedent civil protest movement the resisted the judicial overhaul. This protest movement forced the government to change its course of action: from a quick blitz to an incremental salami tactic. The chapter explains why these proposed reforms posed a serious threat to Israel's democracy and argues that they should be regarded as a populist constitutional project aimed to capture state institutions, weaken mechanisms of checks and balances and provide the executive with absolute powers. It also analyzes the abusive borrowing tactics taken by the govern – i.e., the manipulation of borrowing different constitutional elements from various countries in order to justify the reform, without taking into consideration other elements or the other system in its entirely. It further assesses the main challenge when constitutional capture takes the form of an incremental process ("the salami tactic"), and calls for a more contextual judicial review that takes into consideration the broader context of democratic erosion within which the constitutionality of a particular law or a constitutional amendment is reviewed.

Renato Costa (The University of Queensland) has posted John Finnis and the Central Case Constitution (49(1) Journal of Legal Philosophy (2024) 25–49) on SSRN. Here is the abstract:

This article formulates a novel conception of constitutions based on John Finnis’s jurisprudential work. The ‘central case constitution’ transcends the formal or functionalist analyses currently dominant in constitutional theory by considering a constitution as having a ‘double life’. Constitutions are necessarily and intrinsically normative and factual. The article explores Finnis’s natural law philosophy, emphasizing the central case constitution’s alignment with the practical reasonableness viewpoint and its role in directing a political community towards its common good. Focusing on key elements such as the rule of law and the context of a political community, the central case constitution emerges as a legal determination that structures society, frames political institutions and authoritatively directs communities towards justice. This ontological understanding has theoretical and practical implications, including identifying genuine constitutional purposes, safeguarding private associations from the overwhelming state presence, promoting community identity and accommodating diverse constitutional choices for self-determination.

Recommended.

Neal Devins (William & Mary Law School) & David E. Lewis (Vanderbilt University - Department of Political Science; Vanderbilt University - Law School) have posted The Independent Agency Myth (108 Cornell Law Review 1305) on SSRN. Here is the abstract:

Republicans and Democrats are fighting the wrong fight over independent agencies. Republicans are wrong to see independent agencies as anathema to hierarchical presidential control of the administrative state; Democrats are likewise wrong to reflexively defend independent agency expertise and influence. Supreme Court Justices also need to break free from this trap; the ongoing struggle over independent agencies should be about facts, not partisan rhetoric.

This article seeks to reframe the fight over independent agencies. By surveying executive branch and independent agency department heads and supervisors during the Obama (2014) and Trump (2020) administrations, we have assembled unique and expansive data for evaluating agency performance. This data is also uniquely reliable: Notwithstanding fundamental differences in the rhetoric and strategies of these two administrations, these surveys of 554 political appointees and 4,776 career executives reinforce each other. The hallmarks of independent agency design (staggered terms, for cause removal, partisan balancing) neither facilitate nonpartisan expertise nor shield independent agencies from presidential control.

Our findings are striking and disturbing. Contrary to the goals and assumptions of Progressive-era designers, independent agencies are not particularly expert, influential, or independent. Indeed, the very touchstones of today’s politics—party polarization and presidential unilateralism—cannot be squared with Progressive Era assumptions about both independent agency decision-making (expert, apolitical, fact-based, durable) and the willingness of political actors to support independent agency decision-making. Correspondingly, we recommend that Congress no longer turn to the independent agency design when establishing new federal programs. Our data also calls attention to a critical divide between major and smaller independents. In the maelstrom of party polarization and presidential efforts to gain control of major independent agencies, smaller independents are largely forgotten by a government that has too many agencies to manage and too many Senate-confirmed vacancies to fill. In other words, our government is overburdened and these agencies are its orphans. We recommend that smaller independents be relocated to the executive branch where they would benefit from coordinated executive branch initiatives, Department of Justice representation, and Office of Management and Budget review. For the major independent agencies, we argue that the independent agency design may not work well but ought not to be completely jettisoned. It is not obvious that these agencies will be more successful in the executive branch and there are risks of unintended negative consequences.

Big! Important! Highly recommended. Download it while it's hot!

Jud Campbell (Stanford Law School) has posted Four Views of the Nature of the Union (47 Harvard Journal of Law and Public Policy 13 (2024)) on SSRN. Here is the abstract:

This Essay summarizes four Founding-Era views about the nature of the Union and the key interpretive implications that followed from those views. In doing so, it emphasizes the importance of social-contract theory and engages a recent scholarly debate over the influence of the law of nations on Founding-Era constitutional interpretation. Without taking a position about which view of the Union was correct, the Essay aims to illuminate the range of interpretive possibilities, including ones informed more by social-contractarian premises than by the law of nations.

Highly recommended. Download it while it's hot!

Teemu Ruskola (University of Pennsylvania Carey Law School; University of Pennsylvania - School of Arts & Sciences) has posted The Limits of Liberal Justice: On Authoritarianism and Instrumental Theories of Law (Asia Pacific Law Review, 2024) on SSRN. Here is the abstract:

In this essay, I use Professor Sucheng Wang's recent book Law as an Instrument: Sources of Chinese Law for Authoritarian Legality as a point of departure for reconsidering the conventional opposition between liberal and authoritarian forms of legality. I suggest that opposition is in turn embedded in an even more elemental distinction between different state forms. Turning to Montesquieu's The Spirit of the Laws, I first investigate the historical and geopolitical processes by which modern political theory reduced the political universe into three species of states (republics, monarchies, and despotisms) and then merely two (democracies and authoritarian states). I then turn to the contemporary genealogy of the concept of rule of law, which arose first as a critique of the rise of the administrative state in the West and then became a means to delegitimize socialist conceptions of legality. I conclude by focusing on the People's Republic of China to evaluate the utility of assessing its legal order in terms of authoritarian legality as well as in terms of democracy more generally.

Highly recommended.

Thom Brooks (Durham University - Law School; Yale Law School) has posted The Relevance of State Misconduct for Mitigating Individual Punishment (In Julian V. Roberts, Jesper Ryberg and Leo Zaibert (eds.), Responding to the Culpable State: Is Sentence Mitigation Appropriate? Oxford: Hart, 2024,(forthcoming)) on SSRN. Here is the abstract:

This chapter is focused on the possible relevance of state misconduct for mitigating individual sentences. I argued that state misconduct can justify mitigation where a sufficient connection is made between the state misconduct and the offender in one of two ways. First, this may take the form of systematic discrimination whether or not intentional where offenders are subjected to overly harsh punishments as a result of bias against their protected characteristics, like race. Secondly, this may take the form of deliberate bad faith that may not be systematically applied, but no less problematic.

It is argued that state misconduct matters for mitigation as a form of provocation that impacts culpability. This might be understood differently by different penal theories, whether desert-based or consequentialist. Either way, this view of mitigation is coherent with a variety of very different penal theories even if each might justify mitigation in different ways.

This view rests on an important assumption that it applies to states that can and do acknowledge when they, as a state, have engaged in state misconduct. State misconduct happens and too often. But no view of mitigation is possible where it is impossible for the state to recognise its shortcomings. And, where it is found, the state should be compelled to ensure such misconduct is addressed so it is no longer a factor.

Recommended.

Andre LeDuc has posted Critical Race Theory Explained, reviewing Victor Ray, On Critical Race Theory: Why It Matters and Why You Should Care (2022) (Rutgers Law Record, Vol. 51, 2024) on SSRN. Here is the abstract:

Victor Ray’s new book, On Critical Race Theory, offers non-specialists the best available introduction to critical race theory. Before its publication, the standard introductions have been the classic works by legal scholars Kimberlé Crenshaw and by Richard Delgado. They were largely intended for legal theorists and academics; they had become somewhat dated, on the one hand, by the burgeoning application of the insights of critical race theory outside the law, and by the increasing controversy about critical race theory in the broader political and public discourse. Ray, a sociologist and an advocate of critical race theory, expressly tries to fill this gap, both explaining the expanding scope of critical race theory and defending it against its critics. Ray writes clearly and precisely about sometimes complex arguments. As a result, Critical Race Theory performs these two missions admirably.

Ray’s book is a simple, almost journalistic, contribution to the defense of critical race theory. That’s not a weakness; just such a work is what our public, political discourse requires. As Ray notes, his first draft was written in “a three- month sprint.” The book should be judged on this basis, rather than as a more deliberative assessment of the theory and its limitations.

From this perspective, it’s hardly fair to call out omissions that a reviewer might find significant in what is intentionally and self-consciously only a survey of an expansive, multi-disciplinary project. Readers will undoubtedly find their own gaps. Ray’s book offers a defense of critical race theory. It doesn’t pause to expressly acknowledge any substantive or rhetorical overstatement by critical race theory’s advocates. There are necessarily trade-offs in such an expedited publication schedule, both in the scope and the depth of the resulting product. In general, the pay-off in accessibility and timeliness that Critical Race Theory achieves more than outweighs these costs.

Jeremy Waldron (New York University School of Law) has posted The Dignity of a Human Lifetime on SSRN. Here is the abstract:

This paper examines the relation between human dignity as a general category and the dignity properly accorded to humans of different shapes and sizes: infants, teenagers, rational adults, the elderly, and so on. It asks what the relationship is between human dignity in general and human dignity as a basis for the specific forms of respect that humans of different kinds may command.

Highly recommended.

Lawrence B. Solum (University of Virginia School of Law) has posted Original Public Meaning (Michigan State Law Review, Vol. 2023, No. 807, 2023) on SSRN. Here is the abstract:

“Original public meaning” has become increasingly important in constitutional discourse. This Article investigates the nature of original public meaning in three steps. First, each word in the phrase “original public meaning” is explicated and clarified. The word “original” represents the idea that the meaning of the constitutional text is fixed at the time each provision is framed and ratified. The word “public” signifies that the relevant meaning is ordinary meaning, the understanding of the text conveyed to the public at the time each provision was framed and ratified. The word “meaning” refers to the set of ideas (concepts and propositions) that constitute the communicative content of the constitutional text. The second step situates original public meaning in the context of normative constitutional theory, explaining its role in both Public Meaning Originalism and nonoriginalist constitutional theories. The third and final step investigates the foundations of original public meaning in the philosophy of language and theoretical linguistics, via an exploration of the distinctions between (a) speaker’s meaning and sentence meaning, (b) semantics and pragmatics, (c) sense and reference, and (d) conceptual meaning versus prototypical meaning.

Each of the three steps contributes to the articulation of a conception of original public meaning that aims at conceptual clarity, precision, and theoretical depth. The original public meaning of the constitutional text is the communicative content (the set of concepts and propositions) that was conveyed to the public at the time each provision was drafted, proposed, and ratified. Both semantics (the meaning of words and phrases) and pragmatics (meaning conveyed by context) play essential roles in the complex multistage process by which constitutional communication occurs. For public meaning originalists, the original public meaning of the text ought to bind constitutional actors, including judges, legislators, and executive officials. Sometimes, the recovery of original public meaning is relatively easy—the absence of linguistic drift, common sense, and the immediate context make the meaning of the constitutional text readily accessible to contemporary readers. But sometimes, the original public meaning of the constitutional text is difficult to discern, requiring both a deep reading of the constitutional record and careful application of the methods of historical linguistics.

There are many new ideas in this article, which aims to present a concise and precise articulation of the idea of original public meaning.

Meredith Render (University of Alabama - School of Law) has posted Waste, Property, and Useless Things (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract:

How should the law respond to intentionally useless objects that are constructed from scarce materials and thrust into an overcrowded world? Approximately 60 million tons of electronic waste, or “e-waste” –e.g., discarded iPhones, refrigerators, desktop computers—is produced each year. This annual pile of electronic rubbish represents $62 billion worth of tangible raw materials (such as gold and other scarce metals) that has been rendered useless. In addition to wasting raw materials, e-waste clogs our landfills, poisons the ground water, and taxes our capacity to store it. Worst of all, much of this waste is intentionally created by electronics manufacturers through the profit-maximizing strategy of planned obsolescence.

Planned obsolescence is a strategy by which manufacturers intentionally limit the utility of their products so that consumers are forced to discard them and buy new products. Planned obsolescence creates intentionally useless objects and imposes significant social costs. While some of the costs of planned obsolescence are felt within the manufacturer-purchaser transaction (a purchaser must consider whether a product will last long enough to justify its price), the most significant social costs of the strategy remain external to that transaction.

This Article offers three principal contributions. First, a normative thesis: more of the social cost of intentionally useless objects should be borne by the manufacturers that profit from the strategy. Second, a theoretical insight: avoiding waste is a central commitment of property law. In fact, property law is rendered more coherent when it is understood as a series of instantiations of an anti-waste imperative. Often confused with an efficiency principle, property law’s anti-waste commitment best explains doctrinal choices that otherwise would seem inconsistent. Finally, a doctrinal analysis: the anti-waste imperative (when applied to the existing rules of property) disallows the conveyance of a fee simple in an intentionally useless object. Instead, manufacturers can only convey a defeasible interest in the object, retaining a reversionary interest that serves to correct some of the negative externalities associated with the strategy of planned obsolescence.

Recommended.

Felipe Jiménez (USC Gould School of Law) has posted Minimalist Textualism (Seton Hall Law Review, Forthcoming) on SSRN. Here is the abstract:

Textualism is now the dominant theory of statutory interpretation in the Supreme Court. This paper explores a series of conditions that all theories of statutory interpretation, including textualism, ought to satisfy. The conditions are Nonequivalence; Limited Domain; Legality; Specificity; Normativity; and Restricted Relevance. These conditions deny claims sometimes made by textualists—such as “the text is the law” or “the ordinary meaning of the statute governs.” They also qualify some of the normative arguments textualists use to justify their views. Textualist theories should satisfy these conditions because they are warranted requirements for statutory interpretation. Compliance with these conditions leaves space for a textualist approach that preserves commitment to statutory text and the rejection of appeals to purpose and legislative intent, while avoiding some common pitfalls in textualist theory, rhetoric, and practice. This minimalist textualism is thus a better version of textualism.

Highly recommended.  Download it while it's hot!

Shai Dothan (University of Copenhagen - iCourts - Centre of Excellence for International Courts) has posted Courts and Social Justice (Forthcoming in 58 Loyola of Los Angeles Law Review (2025) on SSRN. Here is the abstract:

Many scholars have argued that courts are either harmful or useless when it comes to improving social justice in society. There are three main reasons offered in support of this argument: (1) Courts are elitist institutions that support the high social class of the judges at the expense of the rest of society (2) The structure of litigation is geared towards harming the rights of people with modest economic means (3) Even when courts try to impose a higher standard of social justice, they are not able to initiate real social change. The purpose of this paper is to investigate these claims. The conclusion the paper reaches is that courts are able to initiate social change in favor of powerless social groups, primarily diffuse interests that are usually taken advantage of even in a functioning democracy. The reason has to do with social processes that take place after judgments are issued instead of with the ideology of judges.

Interesting and recommended.