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Trump asks justices to block the release of documents related to Jan. 6 riot

Amy Howe — Thu, 23 Dec 2021 20:34:03 GMT

Former President Donald Trump came to the Supreme Court on Thursday, asking the justices to block the release of White House records to the congressional committee investigating the Jan. 6 attack on the U.S. Capitol. The committee is seeking documents that would show Trump’s communications and activities in the lead-up to the riot.

Trump argues that as a former president he has the power to keep the documents secret, but two lower courts have rejected that argument. Trump now hopes to find a more receptive audience at the Supreme Court, where on Thursday he urged the justices to intervene. Trump argued that the stakes are high, and that his case will determine whether presidents can “rely upon executive privilege, separation of powers, and the Presidential Records Act to protect confidential Presidential records of deliberations from premature production to political rivals.”

The legal dispute now before the court began in August, when the Select Committee to Investigate the January 6th Attack on the Capitol asked the National Archives to turn over White House documents relating to activities on Jan. 6 such as the rally on the Ellipse, as well as documents regarding Trump’s schedule, phone records, and the efforts to contest the results of the 2020 election.

Trump contended that nearly 800 pages of documents that the U.S. archivist intended to turn over were covered by executive privilege, which allows a president to maintain the secrecy of documents reflecting presidential decision-making and deliberations. However, President Joe Biden told the archivist that the documents should be released to the committee, explaining that he had “determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the Documents.”

“The constitutional protections of executive privilege should not be used to shield, from Congress or the public,” Biden reasoned, “information that reflects a clear and apparent effort to subvert the Constitution itself.”

Trump went to federal court in Washington, D.C., on Oct. 18, seeking to stop the archivist from disclosing the documents. The district court denied Trump’s motion for a preliminary injunction.

Trump then went to the U.S. Court of Appeals for the District of Columbia Circuit, which agreed to temporarily block the release of the records until it could rule on Trump’s appeal. In a 65-page opinion by Judge Patricia Millett, a three-judge panel upheld the district court’s ruling, clearing the way for the archivist to release the documents.

Describing the events of Jan. 6 as “the most significant assault on the Capitol since the War of 1812,” Millett stressed that executive privilege is held by the executive branch for the country’s benefit, rather than the president’s. It protects, she observed, “the public interest in candid, confidential deliberations within the Executive Branch.” Moreover, she added, the privilege is not an absolute one: It can be waived by the sitting president. And in this case, she continued, both Biden and Congress “agree that there is a unique legislative need for these documents and that they are directly relevant to the Committee’s inquiry into an attack on” Congress. Trump had provided only “a grab-bag of objections” that were not enough for the court to overrule Biden’s decision to waive executive privilege, she concluded.

The court of appeals agreed to put its ruling on hold for 14 days to give Trump time to come to the Supreme Court, which he did on Thursday. In his petition for review of the D.C. Circuit’s decision, Trump complained that the lower courts had “declined to adopt an objective test providing for a reliable and politically neutral standard to decide disputes regarding access to former Presidents’ confidential records.” Instead, he argued, the lower courts’ decisions “support the invasion of presidential confidentiality on the basis that the incumbent President and one house of Congress support the involuntary waiver of the former President’s constitutionally and statutorily protected rights.” Moreover, Trump added, the dispute presents “an important problem that is likely to recur in an increasingly partisan political climate.”

Trump suggested that his case could be briefed and argued during the court’s 2021-22 term, which would allow the court’s decision to resolve not only the current dispute over the first set of documents that the archivist intends to turn over but also any future disputes that are likely to arise as the committee’s investigation continues. To that end, Trump asked the justices to put the D.C. Circuit’s decision allowing the disclosure of the first set of documents on hold and to block the archivist from turning over any other materials that could be privileged until the dispute is resolved.

The former president’s application to put the D.C. Circuit’s decision on hold goes initially to Chief Justice John Roberts, who handles emergency appeals from the D.C. Circuit. Roberts can act on the request alone or, as is more likely, refer it to the full court.

This article was originally published at Howe on the Court.

The post Trump asks justices to block the release of documents related to Jan. 6 riot appeared first on SCOTUSblog.

Scholz on Private Rights of Action & Privacy

Lawrence Solum — Thu, 23 Dec 2021 20:10:00 GMT

Lauren Henry Scholz (Florida State University - College of Law) has posted The Significance of Private Rights of Action in Privacy Law (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:

Many privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the power government has to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regime more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the general principle, I provide examples of how private rights of actions can improve privacy regulation in a suite of key modern privacy problems. We cannot afford to leave private rights of action out of privacy reform.

Chachko on National Security by Platform

Lawrence Solum — Thu, 23 Dec 2021 16:55:00 GMT

Elena Chachko (Harvard University, Law School) has posted National Security by Platform (Stanford Technology Law Review, Vol. 25, 2021, forthcoming) on SSRN. Here is the abstract:

Since 2016, platforms like Facebook, Google and Twitter have scaled up their efforts to meet a plethora of security and geopolitical challenges. They have gradually re- calibrated their organizational structures and practices for that purpose. The challenges include election security, disinformation and influence operations, foreign and domestic terrorism and atrocity prevention worldwide. As a corollary, platforms have expanded their interaction with government around these issues. They have also replicated traditional government methods for addressing them. Existing law facilitates instead of meaningfully constraining this relationship.

Scholars have examined platform governance predominantly through a freedom of expression lens. The security and geopolitical aspects of platform governance, however, remain surprisingly undertheorized. This paper shifts the focus from platform speech governance to platform security governance. It documents platforms’ geopolitical turn and how it shapes the public-private national security nexus. It argues that platforms’ growing security and geopolitical role is a novel mode of informal national security privatization— call it national security by platform—that deviates in form and substance from paradigmatic privatization models. The paper develops a theoretical framework for analyzing national security by platform and considers preliminary implications for regulation. The security lens illuminates regulatory considerations that may conflict with speech, competition and privacy concerns that have dominated the platform regulation debate to date.

Highly recommended.

The morning read for Thursday, Dec. 23

James Romoser — Thu, 23 Dec 2021 15:10:19 GMT

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at roundup@scotusblog.com.

Here’s the Thursday morning read:

Supreme Court to Hold Special Hearing on Biden Vaccine Mandates (Adam Liptak, The New York Times)
The Supreme Court showdown over Biden’s vaccine policies, explained (Ian Millhiser, Vox)
The Supreme Court has a fresh chance to rein in police lawlessness (George F. Will, The Washington Post)
New year, time for new thinking about the undemocratic nature of the high court (Katie Scofield, Fulcrum)
The Supreme Court’s Partisan Gerrymandering Decision Is Already a Disaster for Democracy (Yvette Borja, Balls and Strikes)

The post The morning read for Thursday, Dec. 23 appeared first on SCOTUSblog.

Feldman on Tort Deflationism

Lawrence Solum — Thu, 23 Dec 2021 12:30:00 GMT

Heidi Li Feldman (Georgetown University Law Center) has posted From Liability Shields to Democratic Theory: What We Need from Tort Theory Now (Journal of Tort Law, Vol. 14, No. 2, Forthcoming) on SSRN. Here is the abstract:

Among possible legal responses to a pandemic, quashing tort liability might seem startling. Common sense indicates that a deadly and debilitating disease would call for possible tort liability, to enable recovery for losses by those subjected to the disease because of others’ carelessness while also discouraging careless conduct that could lead to preventable cases illness in the first place. Yet, when faced with SARS-CoV-2 and COVID-19, the life-threatening disease caused by the virus, the first response of many American lawmakers was to enact, or attempt to enact, COVID-19 “liability shield” statutes. These laws introduced doctrine to eliminate or narrow grounds for tort claims against those who caused others to contract COVID-19.

As it turns out, the COVID-19 liability shields have an extensive pedigree in the American law of torts. In this article, I review the steady introduction of what I call “eliminative” tort doctrines, especially the wave of them dating back to the 1970s. Individually and together, these doctrines sharply reduce the grounds for personal injury claims, burden the injured’s ability to prevail in permitted claims, and restrict the recovery available even when such claims succeed. Eliminative tort doctrines appear in both federal and state law and apply in a variety of factual circumstances. I maintain that existing eliminative tort doctrines facilitated the rapid promulgation of intricate, detailed COVID-19 liability shield statutes.

A fifty-year surge in eliminative doctrines is a distinctive development. It calls for explanation and interpretation. In this article, I introduce a tort theory that centers eliminative tort doctrines, rather than dismiss them as aberrations or passing political fads. I title the theory “tort deflationism.” It is deflationary because it treats tort law as a field that should be modest in the legal liability it creates and the extent of the liability it allows. I argue that tort deflationism is latent in the post-1960s eliminative tort doctrines and their relationship to modern American conservatism, a broad social, intellectual, and political movement that arose after World War II and continues to the present day.

I myself do not endorse tort deflationism. I have chosen to articulate it in this article in order to explore its explanatory power, evaluative force, implications for alternative tort theories, and potential significance for democratic theory and practice. Tort deflationism deserves serious attention, if for no other reason than to clarify grounds for objecting to it or to criticize its conception of the law of personal injury.

The article examines the COVID-19 liability shields and their predecessors so as to identify the features that any theory geared to them must illuminate. It then spells out the mid-level principles central to tort deflationism and develops a full-blown theoretical synthesis of these principles by showing their ties to the intellectual and ethical commitments of modern American conservatism. Next, the article canvases how tort deflationism can make sense of developments in American tort law other than the post-1960s surge in eliminative tort doctrines, using as an example the law of workplace injury. Then, it covers how tort deflationism compares to other tort theories, showing how it serves as a useful foil. Finally, the article considers how tort deflationism relates to ongoing debates about the legitimacy of law in pluralist democracies.

Neuner on Paternalism in Private Law

Lawrence Solum — Thu, 23 Dec 2021 08:00:00 GMT

Jörg Neuner (University of Augsburg - Faculty of Law) has posted Paternalism in Private Law (Juristenzeitung (JZ), 269 et seqq. (2020)) on SSRN. Here is the abstract:

Paternalism is deeply rooted in the German legal system, especially in private law. Hard, soft, and mixed paternalism, in combination with other motives, restrict private autonomy and therefore raise the traditional question of legitimacy.

Gorlick on Rohingya Refugees

Lawrence Solum — Thu, 23 Dec 2021 04:55:00 GMT

Brian Gorlick (University of London, School of Advanced Study) has posted Political-Legal Considerations of the Rohingya Refugee Situation: Seeking Accountability, Relief, and Solutions on SSRN. Here is the abstract:

Half a decade after several hundred thousand Rohingya refugees from Myanmar fled to Bangladesh, joining a few hundred thousand fellow compatriots who arrived years earlier, there are still no long-term solutions in sight. Given escalating conflict and risk of civil war, prospects for safe and dignified return to Myanmar have vanished. Regrettably the Rohingya situation appears destined to become another protracted refugee displacement. In addition to displaced Rohingya in Bangladesh and the nearby region, large numbers of internally displaced persons continue to live in dismal and dangerous conditions in Myanmar. Growing armed conflict and lack of political will on the part of the authorities, notably the military junta which seized power in a coup d’etat, make Myanmar increasingly unsafe. The Myanmar military have no interest in seeing close to one million ethnic Rohingya ever returning, which sadly seals their fate as refugees unless other solutions are forthcoming. This paper reviews the situation in Myanmar and the regional, political, and operational limitations and progress, including within the United Nations, concerning the Rohingya refugee situation. While humanitarian operations in Bangladesh and Myanmar continue to receive significant support and international justice and accountability measures are gradually advancing, there is an urgent need to explore other avenues for solutions, in addition to accountability and mitigation measures available under international law. Beyond prospects for voluntary return, a broader view of solutions for Rohingya refugees is urgently required. Some options require significant shifts in policy by the Bangladesh government, other nation states, and the United Nations - never an easy task - and throughout the process the Rohingya must be empowered, and their voices heard and considered.

Justices will hear arguments on Jan. 7 in challenges to Biden vaccine policies

Amy Howe — Thu, 23 Dec 2021 01:55:40 GMT

With COVID-19 cases surging across the country, the Supreme Court fast-tracked two disputes over the Biden administration’s efforts to expand vaccinations. In an unusual move, the justices announced on Wednesday night that they will hear oral arguments on Jan. 7 on two federal policies: a vaccine-or-test mandate for workers at large employers, and a vaccine mandate for health care workers at facilities that receive federal funding.

The cases came to the court last week on an emergency basis, and the formal question in both disputes is whether the government should be allowed to enforce the policies while litigation challenging them continues. But the justices’ views on whether to grant emergency relief will likely be influenced by their views on the merits of the underlying challenges themselves.

The Occupational Safety and Health Administration issued the vaccine-or-test mandate on Nov. 5. It requires all employers with more than 100 employees to mandate that those employees be either fully vaccinated against COVID-19 or be tested weekly and wear masks at work. Several challenges to the rule were filed around the country, by (among others) business groups, religious groups, and Republican-led states, arguing that the mandate exceeds OSHA’s authority. The U.S. Court of Appeals for the 5th Circuit temporarily put the mandate on hold in November, but the challenges were consolidated in the U.S. Court of Appeals for the 6th Circuit, which reinstated the mandate last week.

The challengers went quickly to the Supreme Court, filing over a dozen separate requests asking the justices to block the 6th Circuit’s ruling. The justices on Wednesday night set two of those requests for oral argument – one filed by a group of trade associations and the other by a group of states, led by Ohio – on a highly expedited basis. The 6th Circuit’s ruling reviving the mandate will remain in force until the Supreme Court acts on the challengers’ request, although OSHA has indicated that it will not issue citations for failure to comply with the rule until Jan. 10 at the earliest.

The Biden administration also came to the court last week, asking the justices to allow it to temporarily enforce a rule issued by the Department of Health and Human Services that requires all health care workers at facilities that participate in the Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they are eligible for a medical or religious exemption. Lower-court rulings blocked the administration from enforcing the vaccine mandate in approximately half of the states. The justices will hear argument on whether those rulings should remain in place.

Shortly after receiving the emergency requests last week, the court set a deadline of Dec. 30 for responses in both disputes. The decision on Wednesday to hear oral argument on the emergency requests came as somewhat of a surprise: It seemed more likely that the court would dispose of the requests with a brief order, as it normally does on the so-called “shadow docket.” Instead, and perhaps in response to criticism of the increased use of the shadow docket to litigate major policy disputes, the justices fast-tracked the cases for oral argument, as they have already done twice this year when fielding requests for emergency relief in the battle over Texas’ controversial abortion law and a request by a Texas inmate to have his pastor touch him and pray out loud during his execution.

This article was originally published at Howe on the Court.

The post Justices will hear arguments on Jan. 7 in challenges to Biden vaccine policies appeared first on SCOTUSblog.

Dedek on Kelsen on Private Law & Democracy

Lawrence Solum — Thu, 23 Dec 2021 00:45:00 GMT

Helge Dedek (McGill University - Faculty of Law) has posted Private Law Rights as Democratic Participation: Kelsen on Private Law and 'Economic Democracy' (University of Toronto Law Journal 71:3 (2021) 376-414) on SSRN. Here is the abstract:

In the first edition of his famous treatise 'Reine Rechtslehre, Einleitung in die Rechtswissenschaftliche Problematik' (translated as 'Introduction to the Problems of Legal Theory'), Hans Kelsen makes the claim that the existing liberal, property rights-based private law of his era is a ‘democratic form of law’ and that private law rights are ‘political in the same sense as those rights that are usually characterized as political rights.’ In this article, I aim to explain how Kelsen developed his theory of private law and private rights within the theoretical and methodological framework of the ‘Pure Theory of Law’ and its philosophical underpinnings of relativism and ‘value neutrality,’ culminating in the connection between private law and democracy. I wish to highlight, in particular, the still often underappreciated fact that the Pure Theory saw itself as a critical project, aimed at exposing and exorcizing ‘ideology.’

To Kelsen’s contemporary audiences, drawing a connection between ‘capitalist’ private law and democracy must have appeared particularly counter-intuitive against the backdrop of one of the most important – if now almost forgotten – political debates of the Weimar era, the debate on ‘economic democracy’ (‘Wirtschaftsdemokratie’). It was a powerful trope in the inter-war period that the capitalist economy and its institutional safeguards – private, labour, commercial, and corporate law – were ‘undemocratic.’ I submit that Kelsen’s statement – which flipped the contemporaneous revisionist-socialist rhetoric on its head – may be better understood in the larger context of the precarity of democracy in the Weimar period and especially in the context of a theoretical and political challenge that contrasted the existing ‘bourgeois’ parliamentary democracy with a ‘true,’ ‘social’ democracy that would realize conditions of social and economic justice. By connecting ‘capitalistic’ law with ‘democracy’ and ‘socialistic’ law with ‘autocracy,’ Kelsen once more underscores that democracy, properly understood as a formal principle, is irreducible to substantive justice.

Sherry on Anonymous Opinions as a Remedy for Supreme Court Justice Celebrity

Lawrence Solum — Wed, 22 Dec 2021 18:55:00 GMT

Suzanna Sherry (Vanderbilt University - Law School) has posted Our Kardashian Court (and How to Fix It) (Iowa Law Review, Vol. 106, No. 181, 2020) on SSRN. Here is the abstract:

The Supreme Court is broken. After cataloging its dysfunctions, this Article suggests a contributing cause and proposes a solution. The contributing cause is that Justices have become celebrities, and, like other celebrities, play to their fan base. The solution is to limit their opportunities to use their official status to do so: Congress should pass a law prohibiting concurring or dissenting opinions and requiring each case to be decided by an unsigned opinion that does not disclose the number of Justices who join it. The Article outlines the advantages of such a law and considers possible objections to it, including both constitutional and nonconstitutional objections. It ultimately concludes that it would be constitutional and that although there are significant risks, the probable benefits outweigh the probable costs. And because it is a statutory solution rather than a constitutional one, it can be viewed as an experiment that can easily be terminated if it does not work out. In the current climate it is a risk worth taking.

Recommended.

Magner on NLRB Bargaining Orders

Lawrence Solum — Wed, 22 Dec 2021 16:55:00 GMT

Brandon R. Magner (National Labor Relations Board) has posted The Good-Faith Doubt Test and the Revival of Joy Silk Bargaining Orders on SSRN. Here is the abstract:

The last fifty-two years have borne witness to the swift degradation and virtual irrelevance of the bargaining order. By the end of the twentieth century even pro-enforcement officials in the NLRB were acknowledging the difficulty of obtaining an enforceable bargaining order, and the remedy rarely appears these days in the agency's published decisions.

This is not the product of the usual economic or political factors cited as reasons for the labor movement’s and its attendant regulating schema’s diminishment. Rather, the decline of the bargaining order can be explained almost entirely by the disappearance of the so-called Joy Silk doctrine from the labor law landscape in 1969. Under Joy Silk, the NLRB would order an employer to recognize and bargain with a labor union if the union represented a majority of the employees in an appropriate bargaining unit at the time it requested recognition, and the employer denied the request while lacking a good faith doubt as to the union’s majority status and took action calculated to dissipate that majority status. Under closer examination, it has become clear that the NLRB’s abandonment of the good-faith doubt test in favor of the misconduct-centric analysis enunciated in Gissel Packing Co. is intimately connected to the agency’s inability to enforce the law and, as a result, fulfill its statutory mission of encouraging collective bargaining.

This Article addresses the primary objections to the NLRB’s use of the good-faith doubt test in the realm of union requests for recognition that were raised in its heyday and elucidates their lack of historical, legal, and practical foundations. The NLRB’s inquiry into motive in the pre-recognition context was statutorily permissible, logically consistent, and effectively deterrent. Reviving the good-faith doubt test of Joy Silk and enforcing Section 8(a)(5) of the NLRA as written would better encapsulate the bargaining orders envisioned in past Supreme Court precedent and equip the NLRB with a tool historically proven to prevent misconduct in elections. Few initiatives in General Counsel Abruzzo’s agenda could prove more effective in carrying forth the Board’s statutory mission.

The morning read for Wednesday, Dec. 22

James Romoser — Wed, 22 Dec 2021 15:15:13 GMT

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at roundup@scotusblog.com.

Here’s the Wednesday morning read:

Supreme Court Justice Rejects Challenge to New Mexico’s Vaccine Mandate (Greg Stohr, Bloomberg)
After SCOTUS hearing, a new look at baby ‘safe haven’ laws (Astrid Galvan, Associated Press)
Democrats should apply Supreme Court’s abortion decision to firearms (Laurence H. Tribe, Jonathan M. Metzl, & David Hogg, The Boston Globe)
Dobbs and Democratic Legitimacy (Carson Holloway, Law & Liberty)
Supreme Options for OSHA’s Vaccine-or-Test Mandate (Shams Hirji & Colter Paulson, The National Law Review)

The post The morning read for Wednesday, Dec. 22 appeared first on SCOTUSblog.

Veljanovski on Machine Collusion

Lawrence Solum — Wed, 22 Dec 2021 12:30:00 GMT

Cento Veljanovski (Case Associates; Institute of Economic Affairs) has posted What Do We Now Know about ‘Machine Collusion’ (Journal of European Competition Law & Practice 2021) on SSRN. Here is the abstract:

Some legal academics have claimed that ‘machine collusion’ – tacit collusion generated by self-learning pricing algorithms without human involvement - is a real threat that will go uncheck by current antitrust. Half a decade after these claims received wide publicity the only evidence are a handful experimental desk-top computer simulations with uncertain real-world relevance but which suggest at best the theoretical possibility of machine collusion. The prospect of machine collusion is more limited and the law more adaptable than this literature assumed.

Krzizok on COVID-19 & Investment Arbitration

Lawrence Solum — Wed, 22 Dec 2021 08:00:00 GMT

Bianca Maria Krzizok (University of Zurich) has posted COVID-19 in Investment Arbitration. A Legal Answer (Prudentia Iuris, N. 92, pp. 65-96 (2021)) on SSRN. Here is the abstract:

During today’s situation of COVID-19, States take emergency measures which will be subject to investment arbitration claims sooner or later. The aim of this paper is to provide a possible solution to such cases where the State’s and the investor’s interests compete with each other. By analysing cases from the 21th century and ap- plying my findings to hypothetical COVID-19 cases, a general answer on how to solve COVID-19 related investment disputes shall be given.

Hsu on Comparative Judicial Review of Capital Punishment

Lawrence Solum — Wed, 22 Dec 2021 04:55:00 GMT

Jimmy Chia-Shin Hsu (Institutum Iurisprudentiae, Academia Sinica) has posted Right to Life and Capital Punishment in Transnational Judicial Dialogue (Asian Journal of Comparative Law, First View, pp. 1 - 27). Here is the abstract:

In this article, I bring the constitutional jurisprudence of major East Asian courts into reconstructive dialogue with that of the United States, South Africa, and several former Soviet-bloc countries, on per se review of capital punishment. This fills in a gap in the literature, which has failed to reflect new developments in Asia. Besides analysing various review approaches, I extrapolate recurrent analytical issues and reconstruct dialogues among these court decisions. Moreover, I place the analysis in historical perspective by periodising the jurisprudential trajectory of the right to life. The contextualised reconstructive dialogues offer multilayered understanding of my central analytical argument: for any court that may conduct per se review of capital punishment in the future, the highly influential South African Makwanyane case does not settle the lesson. The transnational debate has been kept open by the Korean Constitutional Court's decisions, as well as retrospectively by the US cases of Furman and Gregg. This argument has two major points. First, the crucial part of the reasoning in Makwanyane, namely that capital punishment cannot be proven to pass the necessity test under the proportionality review, is analytically inconclusive. The Korean Constitutional Court's decision offers a direct contrast to this point. Second, the exercise of proportionality review of the Makwanyane Court does not attest to the neutrality and objectivity of proportionality review. Rather, what is really dispositive of the outcome are certain value choices inhering in per se review of capital punishment.

Cantor on Advanced Medical Instructions & Dementia

Lawrence Solum — Wed, 22 Dec 2021 00:45:00 GMT

Norman L. Cantor (Rutgers University School of Law) has posted Dispelling Medical Misconceptions Impeding Use of Advance Instructions of Demented Patients Seeking to Hasten Their Demise (41:1-2 Journal of Legal Medicine 29-46 (July 23 2021)) on SSRN. Here is the abstract:

To avoid being mired in prolonged dementia, many people prefer to hasten death via advance instructions rejecting life-sustaining medical intervention at a point of decline they have defined as unacceptable. Some health care providers resist implementation of such advance instructions, especially as to demented patients who are not ostensibly suffering and no longer recall their prior instructions or the dignity concerns that underlay them. Also, some providers refuse to deem hand feeding as a form of medical care subject to advance instructions. This article defends the legal and moral status of advance instructions as applied both to non-suffering patients and to hand feeding.

Nielson & Stancil on Evasion of Judicial Review in Qualified Immunity Cases

Lawrence Solum — Tue, 21 Dec 2021 20:10:00 GMT

Aaron L. Nielson (Brigham Young University - J. Reuben Clark Law School) & Paul J. Stancil (Brigham Young University, J. Reuben Clark Law School) have posted Civil Rights Litigation in the Lower Courts: The Justice Barrett Edition (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

Now that Justice Amy Coney Barrett has joined the United States Supreme Court, most observers predict the law will shift on many issues. This common view presumably contains at least some truth. The conventional wisdom, however, overlooks something important: the Supreme Court’s ability to shift the law is constrained by the cases presented to it and how they are presented. Lower courts are thus an important part of the equation.

Elsewhere, the authors have offered a model of certiorari to demonstrate how lower courts in theory can design their decisions to evade Supreme Court review; they also explain why such “cert-proofing” tools are problematic. In this Article, they apply that model to civil rights litigation involving qualified immunity, with particular focus on Justice Barrett’s confirmation. On the assumption that Barrett’s views will be more like those of the late Justice Antonin Scalia (for whom she clerked) than those of the late Justice Ruth Bader Ginsburg (whom she replaced), the model predicts lower court judges who do not share Barrett’s views will be tempted, at the margins, to try to evade Supreme Court review. This temptation may be particularly strong for cases that involve qualified immunity, which present unique cert-proofing opportunities. At the same time, the model predicts judges who do share Barrett’s views will be less inclined to use such tools. Thus, although there likely will be no meaningful change in how most cases are decided, the upshot of the model is that in marginal cases it is possible that lower courts will change how they address civil rights litigation.

Highly recommended.

Levinson & Graber on "Justice Accused" by Cover

Lawrence Solum — Tue, 21 Dec 2021 16:55:00 GMT

Sanford Levinson (University of Texas Law School) & Mark Graber (University of Maryland - Francis King Carey School of Law) have posted Justice Accused at 45: Reflections on Robert Cover's Masterwork (Touro Law Review, Forthcoming) on SSRN. Here is the abstract:

We raise some questions about Robert Cover’s Justice Accused, not to criticize magnificent and audacious scholarship motivated by the most pressing moral concerns, but to consider the timeliness and timelessness of certain themes explored in that masterwork. Our concern is how the issues Cover raised when exploring the ways antislavery justices decided fugitive slave cases played out in the antebellum United States, played out in the United States when Cover was writing, and play out in the United States today. Cover’s opus was a work of the Great Society, even if the text discusses the American judiciary of more than a century before. The moral-formal dilemma faced by the justices Cover studied when adjudicating cases arising from the Fugitive Slave Acts of 1793 and 1850 was whether judicial decision-makers should interpret the law in light of the antislavery values of many northern constituencies or defer to laws that reflected the moral values of politicians eager to compromise on slavery to preserve a bisectional consensus. As times change, so does the moral-formal dilemma. The civil rights movement and, for many, the anti-War movement, at least as viewed from the academy in the 1960s, presented the moral-formal dilemma in pure form. Jim Crow laws were unjust. Young men were being drafted to fight an immoral war. Every respectable ethicist and every decent lawyer, at least as defined by the bulk of the academy, understood that morality and law were opposed. The sole question in the academy was whether laws widely agreed to be immoral should be respected and obeyed. One feature of much contemporary civil disobedience—consider illegal protests at abortion clinics or a public willingness to disobey state bans on abortion—is that the moral debate is marked by good faith disagreement on both sides. Pro-choice and pro-life activists in this environment face the same more-formal dilemma, as each decides the extent to which the Constitution reflects the values they cherish and the extent to which they have obligations to respect the Constitution or official decisions interpreting the Constitution that either fail to protect all women from exercising their fundamental right to reproductive choice or fail to prevent the wholesale slaughter of the unborn. Donald Trump and the contemporary Republican party may be providing Americans with a new variation on the moral-formal dilemma grappled with by nineteenth century justices in fugitive slave cases and twentieth century justices in civil rights cases. The moral-formal dilemma many Americans in institutions far remote from courts are facing is whether to follow the letter of the law and retain the basic structure of constitutional law in the United States even when following and maintaining the letter of the law threatens to warp the constitutional fabric, undermine the political regime, and risk an environmental catastrophe that could easily leave humans near extinction.

The morning read for Tuesday, Dec. 21

James Romoser — Tue, 21 Dec 2021 16:03:58 GMT

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at roundup@scotusblog.com.

Here’s the Tuesday morning read:

Challenges mount at high court over OSHA vaccine-or-test mandate (Kelsey Reichmann, Courthouse News Service)
University of North Carolina and civil rights advocates ask Supreme Court to sidestep affirmative action challenge (Joan Biskupic, CNN)
The Supreme Court opened the door to legal vigilantism in Texas. California will use the same tool to save lives. (Gavin Newsom, The Washington Post)
The Supreme Court’s Covid Vaccine Test (Editorial, The Wall Street Journal)
To Rein In the Police, Look to the States, Not the Court (Erwin Chemerinsky, The New York Times)

The post The morning read for Tuesday, Dec. 21 appeared first on SCOTUSblog.

Mulroy on Standing in Election Cases

Lawrence Solum — Tue, 21 Dec 2021 12:30:00 GMT

Steven J. Mulroy (University of Memphis - Cecil C. Humphreys School of Law) has posted Baby & Bathwater: Standing in Election Cases After 2020 (Dickinson Law Review 2021) on SSRN. Here is the abstract:

The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not share interests with the voters who supported them; and that only state legislatures, and not Electoral College nominees, had standing to sue under the Electors Clause (a relatively untested area).Moreover, many courts confused standing doctrine with the merits. All this threatens to create dangerous precedent which would improperly prevent full consideration of the merits of future meritorious voting rights and election suits.

Getting standing right is particularly important in election cases. Election challenges like these will recur regularly. Because elections ensure democratic health, and because the political process is often not incentivized to fix electoral problems, judicial intervention is particularly necessary. In addition, election cases raise unique standing challenges, because the asserted harms are often diffused. And they present timing problems: sue too far in advance, and courts will reject the alleged harms as speculative; sue later, and courts may decline relief under the Supreme Court’s “Purcell doctrine” cautioning against disrupting electoral rules on the eve of an election. This Article synthesizes the lessons to be derived from the 2020 election cases regarding election case standing, critiques where the courts’ analysis seems incorrect, and proposes general standing rules for voters, candidates, campaigns, Electors, and elected officials.

Venzke on Legal Change & Context

Lawrence Solum — Tue, 21 Dec 2021 08:00:00 GMT

Ingo Venzke (University of Amsterdam - Amsterdam Center for International Law) has posted The Path not Taken: On Legal Change and its Context (Forthcoming in Nico Krisch & Ezgi Yildiz (eds), Paths of International Law (OUP 2022)) on SSRN. Here is the abstract:

Legal change must be understood in relation to its context. But how? A reduction of law to its context, as approaches in political and legal realism tend to suggest, is unrealistic in its denial of law’s relative autonomy. The law offers reasons for its change that are no less real than those that emanate from context, be it political or otherwise. The present contribution builds on work that has studied law’s contingency—the possibility of alternative legal developments under unchanged contexts. What was the path not taken? This question pushes for law’s utter contextualization while keeping a critical distance. It does not stop asking why something happened until it is adequately explained, nor does it deny the alternative possibilities. The chapter first situates contingency in thinking about legal developments, drawing special emphasis to the travails of Third World Approaches to International Law (TWAIL). It then, second, expands on claims about law’s relative autonomy and, third, on claims about what would a difference also in the long run. What could possibly be path-breaking? The conclusions circle back to questions of what counts as context. Why politics?

Tjandra on Constitutional Injunctions

Lawrence Solum — Tue, 21 Dec 2021 04:55:00 GMT

Jonathan Tjandra (Australian National University (ANU)) has posted The Constitutional Injunction and Jurisdictional Error ((2022) 33(1) Public Law Review (forthcoming)) on SSRN. Here is the abstract:

This Article argues that the injunction in s 75(v) of the Constitution available to restrain government action that is unlawful but does not amount to jurisdictional error through the application of the approaches to the interpretation of the constitutional injunction in the recent High Court decision, Smethurst v Commissioner of Police. Using cases from the United Kingdom and the United States prior to Federation, I will demonstrate that the injunction has historically been issued in the courts’ equitable jurisdiction to prevent any and all breaches of the law by public officials. Further, the wide scope of the injunction also gives effect to Constitutional principles such as the rule of law and the long common law tradition of using private law principles to hold officials to account. Finally, I will discuss several consequences that derive from this conclusion, such as the relevance of discretionary factors, materiality, and any potential effects on the centrality of jurisdictional error to administrative law.

George on White Supremacy & Public Education

Lawrence Solum — Tue, 21 Dec 2021 00:45:00 GMT

Janel George (Georgetown Law) has posted Massive Resistance--The Remix: Anti-Black Policymaking and the Poisoning of U.S. Public Education on SSRN. Here is the abstract:

What is occurring today in state legislatures and school boards around the country—under the guise of conservative attacks on Critical Race Theory—is merely a remix of the same song of white supremacy in public education. This nation has witnessed the impact of legislative campaigns designed to undermine educational opportunity for Black students before. This article applies a Critical Race Theory approach to analyze the role of law and policy in replicating racial inequality in education. This article asserts that policymakers seeking to preserve white supremacy in education have invoked three primary legislative tactics over the years: (1) denying; (2) defunding; and (3) destroying. Policymakers have passed measures to deny Black children access to quality education, including by closing schools serving them. They have defunded schools serving Black children by diverting or threatening to cut off funds for public schools, including those seeking to integrate or implement inclusive curricula. Finally, legislative measures have been implemented to destroy educational opportunities for Black children, including by decimating the Black teaching workforce and undermining the public education system. This article focuses on two touchpoints in time—the era of Massive Resistance following the 1954 U.S. Supreme Court ruling in Brown v. Board of Education and 2021’s conservative campaign to prohibit classroom discussions about past and current racial inequality in American. Using these moments, it examines how these three legislative tactics have been—and are currently being—invoked by policymakers to undermine educational opportunities for Black students and maintain white supremacy. This article asserts that such efforts can be met with law and policy designed to expand access to quality educational opportunities for Black children, including through increased federal investment in public education. The future of the nation’s public education system could depend upon staving off these devastating legislative assaults. It will take concerted legislative advocacy and effort to meet the moment and change the same old song to a new tune.

Nielson & Stancil on Gaming Certiorari

Lawrence Solum — Mon, 20 Dec 2021 20:10:00 GMT

Aaron L. Nielson (Brigham Young University - J. Reuben Clark Law School) & Paul J. Stancil (Brigham Young University, J. Reuben Clark Law School) have posted Gaming Certiorari (University of Pennsylvania Law Review, Vol. 170, 2022 (Forthcoming)) on SSRN. Here is the abstract:

Just how “supreme” is the Supreme Court? By most accounts, the Supreme Court sits atop of the nation’s judicial hierarchy and—at least among judges—has the last word on what the law means. Yet this conventional wisdom overlooks something important: The Supreme Court’s ability to “say what the law is” is limited both by the cases presented to it and the manner of their presentation. This means that the Supreme Court’s supremacy in a sense depends on how lower courts tee cases up for the justices, which in turns means that lower-court judges—acting strategically—can influence which cases the Supreme Court decides. By understanding how the certiorari process works, lower-court judges can reverse engineer their decisions to make certiorari more or less attractive for the justices. It is more difficult, for example, for the justices to review decisions with cursory analysis, fact-bound rationales, or alternative holdings, and these or similar techniques are often available to a lower court seeking to avoid the Supreme Court’s attention.

This Article focuses on lower-court decisions that have been designed to evade or attract Supreme Court review. First, we offer a game theoretical model of the certiorari process to demonstrate how lower courts can manipulate certiorari. Second, using that model, we examine the emergence and operation of the Supreme Court’s so-called “shadow docket,” which—via summary reversal—allows the Supreme Court to reverse a lower court’s decision without expending the costs ordinarily associated with certiorari, and so can be understood as a tool to prevent some form of lower court manipulation. Third, we explore the doctrinal and normative implications of gaming certiorari, with particular focus on the externalities that it creates. Finally, we offer a menu of admittedly imperfect options to address efforts to game certiorari. Ultimately, though, the purpose of this Article is not to solve the problem but instead to present a more nuanced understanding of the judiciary as a whole.

Highly recommended. Download it while it's hot!

Vladeck on COVID-19 & Free Exercise

Lawrence Solum — Mon, 20 Dec 2021 16:55:00 GMT

Stephen I. Vladeck (University of Texas School of Law) has posted The Most-Favored Right: COVID, the Supreme Court, and the (New) Free Exercise Clause (NYU Journal of Law & Liberty, Vol. 15 (Forthcoming 2022)) on SSRN. Here is the abstract:

This paper, prepared in conjunction with the Pacific Legal Foundation's Center for Separation of Powers and NYU Journal of Law and Liberty's February 2022 symposium, "Responding to Emergency: A Blueprint for Liberty in a Time of Crisis," looks at how the U.S. Supreme Court has used its "shadow docket" to expand constitutional protections for religious liberty during — and in direct response to — the COVID pandemic. As it documents, the Supreme Court since Justice Barrett's confirmation has used emergency orders to effect a subtle but significant shift in the meaning of the Free Exercise Clause, in some cases by creating novel forms of emergency relief, and in others by ignoring well-established limits on the Court's statutory authority to issue emergency writs of injunction pending appeal. What's more, these rulings came even as the Court (1) turned away most other non-religion-based challenges to COVID restrictions; and (2) issued narrower rulings in religious liberty cases on its merits docket.

The Court never explained why religious liberty claims deserved such procedural and substantive favoritism. But some of the Justices' separate opinions have defended these rulings on the ground that the relevant government officials were hiding hostility to religion behind otherwise permissible restrictions. As the paper concludes, insofar as that is the most plausible explanation for the Court's approach, it suffers from three distinct flaws:

First, and most importantly, it assumes bad faith on the part of any number of government actors — bad faith that is, at best, inferred from circumstantial “evidence” in proceedings in which there is little to no opportunity to develop a factual record. Indeed, the Supreme Court is only asked to grant an emergency injunction pending appeal when both lower courts have refused to do so —usually based upon factual findings that are supposed to be reviewed on appeal only for clear error. The "shadow docket" is an especially poor context in which such aspersions should be cast.

Second, and related, there is a telling contrast between these same Justices’ willingness to carefully scrutinize the motives of government actors when it comes to claims of religious liberty in the COVID context and their unwillingness to do so when it came to President Trump’s travel ban. Recall that the central constitutional claim in Trump v. Hawaii was that the President had singled out the countries at issue because they were predominantly Muslim—a claim that relied upon public statements by President Trump to no less an extent than, for instance, Justice Gorsuch's Dr. A dissent relied upon public statements by Governor Hochul. Perhaps the implication is that governments require even stronger justifications (or nobler motives) for acting in a manner that impedes religious liberty during a pandemic than at other times? If that’s the theory, none of the Justices have ever publicly endorsed it.

And third, even if that is the best way of reconciling the Supreme Court’s unique treatment of religious liberty in COVID cases with its other jurisprudence, it’s normatively indefensible on its face. Ordinary modes of judicial review should not be abandoned during a public health crisis — in either direction. Thus, although governments should not be entitled to meaningfully more deference when adopting public health measures in response to the COVID pandemic, they should not be entitled to meaningfully less deference, either.

For those to whom religious liberty predominates over other constitutional protections, the Court's procedurally flawed expansion of the Free Exercise Clause may seem worth the price. But for those who care about the Court as an institution, and who believe that charges of inconsistency leveled by Justice Kagan in her Whole Woman’s Health dissent are not to be taken lightly, the new majority’s actions in religious liberty cases since November 2020 give more than a little reason for pause — regardless of whether, on the merits, they’ve gotten those rulings “right.”

The morning read for Monday, Dec. 20

James Romoser — Mon, 20 Dec 2021 15:09:17 GMT

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at roundup@scotusblog.com.

Here’s the Monday morning read:

U.S. COVID-19 vaccine mandate revived, Supreme Court showdown looms (Tom Hals & Mike Scarcella, Reuters)
Thoughts on Sixth Circuit OSHA Vax-or-Test Mandate Stay Decision and What Comes Next (Updated) (Jonathan H. Adler, The Volokh Conspiracy)
Democrats walk on eggshells around Breyer as GOP plans another blockade for any Biden Supreme Court pick (Edward-Isaac Dovere & Manu Raju, CNN)
Arnold & Porter Associate Takes Lead as High Court Grants Case (Jordan S. Rubin, Bloomberg Law)
The alternative to Supreme Court enlargement is surrender (E.J. Dionne Jr., The Washington Post)

The post The morning read for Monday, Dec. 20 appeared first on SCOTUSblog.

Reznik on Self-Defense

Lawrence Solum — Mon, 20 Dec 2021 12:45:00 GMT

Rafi Reznik (Georgetown University Law Center) has posted Taking a Break from Self-Defense on SSRN. Here is the abstract:

Legal theory has failed to acknowledge how central a concept self-defense is for the construction of American identities. Across demographic and ideological divides and throughout American history, self-defense has functioned as a mechanism to assert self-worth. This Article argues that this is an insidious baggage for self-defense to carry and that we would be better to jettison rather than claim it. The argument is grounded in an analysis of various manifestations of the American self-defensive culture. In law, these include developments in penal codes, constitutional criminal law, gun laws, procedural rules, the law of police, and prison law and policy. This compound proactively incites persons under all colors of law to seize opportunities to exercise self-defense, assigns virtuousness to self-defensive achievements, and augments their effectiveness. Thus, the contemporary ubiquity of self-defense serves to articulate, distribute, and breed aggression, re-legitimizing violence through the back door. Under this light, the Article suggests a moratorium on the idea that self-defense is a justification for violence.

Analytic criminal jurisprudence generally takes justification to be a category that applies across time and place. Although all the elements of a crime are satisfied, when a justification defense applies the act is morally permissible and hence exoneration is due. But the idea that self-defense justifies violence is culturally, historically, and politically loaded. These conditions ought to inform its jurisprudential analysis. The Article suggests incorporating a cultural receptivity criterion into the justification-excuse calculus, making meaningful the fact that the criminal law is public law. As a public institution, self-defense is detrimental to material welfare, equality, democracy, and ethics of cooperation and care, such that its social roles corrupt whatever justifiable moral core it ideally has. We should not want to give individual self-defenders the powers that justifications confer, nor vindicate the values that justificatory self-defense stands for or accept the socio-political conditions that self-defense laws create or perpetuate. Hence, we can hold that the functions that self-defense regimes serve in contemporary society render them unjustifiable, while remaining agnostic on the question of whether morality permits self-defense.

The Article proposes to understand self-defense as an excuse, which negates the doer’s punishability but not the unlawfulness of the act. Self-defenders would still be relieved of criminal liability, but for reasons anchored in social conditions and public values rather than private morality. Instead of celebrating self-defense as a vindication of natural justice, the normative question ought to shift to the communal failures that give rise to violence and that make it seem inevitable.

Recommended.

Neacsu on Social Services & COVID-19

Lawrence Solum — Mon, 20 Dec 2021 09:16:30 GMT

Dana Neacsu (Duquesne University School of Law) has posted Social Services and Mutual Aid in Times of Covid-19 and Beyond: A Brief Critique (The Human Rights Brief (American University Washington College of Law) Forthcoming 2022) on SSRN. Here is the abstract:

May 19, 2021, marked a crucial point in the United States’ fight against the COVID-19 pandemic: sixty percent of U.S. adults had been vaccinated. Since then, Americans have witnessed the beginning of the end of the COVID-19 pandemic, but its long-term effects are here to stay. Ironically, some are unexpectedly welcome. Among the lasting positive changes is an augmented sense of individual involvement in community well-being. This multifaceted phenomenon has given rise to #BLM allyship and heightened interest in mutual aid networks. In the legal realm, it has manifested with law students, their educators, lawyers, and the American Bar Association (ABA) proposing new educational standards: law schools ought to build a curriculum centered on social justice, equity, diversity, and inclusion rather than the traditional fixation of “thinking like a lawyer” law programs. Unfortunately, it has also put volunteerism at odds with government-provided welfare services. This articles addresses this paradox and calls for improved systemic services for a systemic problem, poverty.

Legal Theory Lexicon: Legitimacy

Lawrence Solum — Sun, 19 Dec 2021 14:00:00 GMT

Introduction

"Legitimacy." It’s a word much bandied about by students of the law. “Bush v. Gore was an illegitimate decision.” “The Supreme Court’s implied fundamental rights jurisprudence lacks legitimacy.” “The invasion of Iraq does not have a legitimate basis in international law.” We’ve all heard words like these uttered countless times, but what do they mean? Can we give an account of “legitimacy” that makes that concept meaningful and distinctive? Is “legitimacy” one idea or is it several different notions, united by family resemblance rather than an underlying conceptual structure?

This entry in the Legal Theory Lexicon theory will examine the concept of legitimacy from various angles. As always, the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

Normative and Sociological Legitimacy

Let’s begin with the distinction between normative legitimacy and sociological legitimacy. On the one hand, we talk about legitimacy as a normative concept. When we use “legitimacy” in the normative sense, we are making assertions about some aspect of the rightness or wrongness of some action or institution. On the other hand, legitimacy is also a sociological concept. When we use legitimacy in the sociological sense, we are making assertions about legitimacy beliefs--about what attitudes people have. Although these two senses of legitimacy are related to one another, they are not the same. That’s because an institution could be perceived as legitimate on the basis of false empirical beliefs or incorrect value premises. The opposite can be true as well: a controversial court decision (Roe, Bush v. Gore, etc.) could have been perceived as illegitimate, even if it had been a legitimate decision.

Process and Outcome

Legitimacy is a tricky concept but one thing is fairly clear. The legitimacy of an outcome is distinct from its correctness. Or to put it differently, a legal norm can be illegitimate but just, on the one hand, or morally bad but legitimate, on the other hand. One way to articulate this idea is to distinguish between process values and outcome values. Legitimate is usually thought to attach to the process by which a legal norm is created, whereas justice attaches to the legal norm itself. Thus, a democratic process can produce a legitimate but unjust legal norm.

Conceptions of Normative Legitimacy

Concepts and Conceptions--The distinction between normative and sociological legitimacy is important, but, by itself, it doesn’t get us very far. What does “legitimacy” mean? How is “legitimacy” different from “justice” or “correctness”? Those are deep questions—deserving of a book-length answer. My general policy in the Lexicon series is to steer a neutral course—avoiding controversial assertions about debatable matters of legal theory. But when it comes to legitimacy, it is difficult to stick to this plan. The difficulty is not so much that legitimacy is the subject of a well-defined debate; rather, the problem is that the concept of legitimacy is usually ill-defined and undertheorized.

So here is the strategy we will use. Let’s borrow the concept/conception distinction for a starting point. Let’s hypothesize that there is a general concept of legitimacy but that this concept is contested—different theorists have different views about what legitimacy consists in. Some theorists think that legitimacy is conferred by democratic procedures; others may think that legitimacy is a function of legal authorization; yet others believe that legitimacy is related to justice. Let’s take a look at four different notions of legitimacy.

Four Conceptions of Legitimacy

Legitimacy as Democratic Process--One very important and influential idea of legitimacy is connected with democratic procedures. Let’s begin with a simple example. Suppose you belong to a small-scale organization of some kind—maybe a law-school faculty. The executive of the organization can take various actions on her own authority, but there are some matters that must be decided by democratic procedures. For example, suppose the Dean of a law school decided that all first-year classes should be taught in small-groups with cooperative-learning techniques and without the traditional case method and Socratic questioning. This might be a marvelous innovation. (I’m not saying it would be.) But if the Dean made the decision without the input of the faculty (or a vote of the faculty), then it is quite likely that there would be vociferous opposition to the new organization of the curriculum on the grounds that the Dean’s decision lacked democratic legitimacy.

Let’s take a more familiar example. Federal judges are not directly elected. They are appointed for life terms. Although the President (who nominates federal judges) and the Senate (which confirms them) are both elected bodies, the judges who sit at any given time have an indirect and diffuse democratic pedigree. Moreover, their life terms make them relatively insular. So there is a question of legitimacy about the institution of judicial review. Does the fact that Supreme Court Justices are not elected make it illegitimate for them to invalidate actions taken by elected officials? Of course, that’s a big question. For our purposes, the important point is that the question itself is one about democratic legitimacy.

Legitimacy as Legal Authority--Another conception of legitimate seems to focus on legal authority. For example, when President Truman ordered the seizure of the steel mills during the Korean War, there was not question but that he had been elected in 1948. But despite the fact that Truman was elected democratically, there was still a question about the legitimacy of his action. Even if his action was democratic, it may not have been legal. When an official acts outside her sphere of legal authority, we sometimes say that here decision was “illegitimate.” When we use “legitimacy” in this way, we seem to be relying on the idea that legitimacy is connected to legal authority. Actions that are not legally authorized are frequently called “illegitimate” whereas actions that are lawful are sometimes seen as legitimate for that reason.

Legitimacy as Reliability--Yet another theory ties legitimacy to the reliability of the process that produces the decision. To see the point of the “reliability conception” of legitimacy, we need to step back for a moment. There is a difference between the “correctness” or “justice” of a decision, on the one hand, and its “legitimacy” on the other. Indeed, this seems to be a crucial feature of “legitimacy.” We think that an incorrect decision can nonetheless be legitimate, whereas a correct decision can lack legitimacy.

Reliability theories acknowledge this “gap” between legitimacy and justice, but insist that there is nonetheless a strong connection between the two. The idea is that legitimacy requires a decision making process that meets some threshold requirement of reliability. So tossing a coin would not be a legitimate method for deciding legal disputes. Even if the coin toss came out the right way and the party that would have won in a fair trial did win the coin toss, the decision that resulted from the flip of a coin would be criticized as illegitimate.

One important example of a reliability theory of legitimacy is found in Randy Barnett’s book, Restoring the Lost Constitution. Barnett argues that the legitimacy of a constitution depends on its reliability in producing just outcomes. A legitimate constitution guarantees a tolerable level of justice. A constitution that does not provide such a guarantee is illegitimate—or so Barnett argues.

The Liberal Principle of Legitimacy Let’s do one more theory of legitimacy. John Rawls’s has advanced what he called “the liberal principle of legitimacy.” Here is how Rawls states the principle:

[O]ur exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.”

Unpacking Rawls’s principle could take a whole article, but let me make three observations:

The distinctive feature of the principle is that it makes reasons count. That is, the principle bases legitimacy on reasonable endorsement “in the light of principles and ideals acceptable to . . . common human reason.” Readers of past lexicon entries will note that Rawls’s is referring her to his idea of public reason.

The principle does not require that citizens actually endorse the constitutional essentials. Rather, the requirement is that citizens “may reasonably be expected to endorse” the constitutional essentials. In other words, the constitutional essentials must be justified by public reasons in such a way that the justification is one that reasonable citizens could be expected to accept.

Citizens are asked to endorse the constitutional essentials “as free and equal”. That is, the principle assumes a certain political conception of citizens as free and equal members of society. The reasons are addressed to citizens conceived in this way, and not to citizens as they are, if that includes their rejection of the notion that each and every citizen should be regarded as a free and equal member of society.

Rawls’s liberal principle of legitimacy point us in the direction of a whole family of ideas about legitimacy. Rawls’s principle is tied to his idea of public reason, but we can imagine other theories of legitimacy that include particular kinds of reasons as legitimating or exclude categories of reasons as illegitimate.

Competing versus Complementary Conceptions

We began our investigation of various conceptions of legitimacy with the working hypothesis that these would be “competing conceptions,” i.e., that only one of these theories of legitimacy could be correct for a given domain of application. Now, let’s take a second look at that assumption.

Is it really the case that the various conceptions of legitimacy compete with one another? There is another possibility—that some (or all) of these conceptions are complementary. For example, we might say that a given judicial decision has legitimacy in the sense that it was made by legally authorized officials, but that the same decision lacks democratic legitimacy, because it was made by unelected judges contrary to the will of democratically elected legislators. If this way of talking is sensible, then it may be the case that the various conceptions of legitimacy do not compete with one another, but rather exist in some sort of complementary relationship.

Conclusion

We’ve barely scratched the surface, but I hope this entry has given you food for thought about the idea of “legitimacy.” My own sense is that one should be very wary about deploying the idea of legitimacy. Because legitimacy has different senses and is undertheorized, it is very easy to make claims about legitimacy that are ambiguous or theoretically unsound.

Related Lexicon Entries

Resources on the Internet

Fabienne Peter, Political Legitimacy, Stanford Encyclopedia of Philosophy (2010).

Bibliography

The Psychology of Legitimacy: Emerging Perspectives on Ideology, Justice, and Intergroup Relations (John T. Jost & Brenda Major eds. Cambridge University Press, 2001).
Frederick M. Barnard, Democratic Legitimacy: Plural Values and Political Power (McGill-Queen's University Press 2001).
Carl Schmitt, Legality and Legitimacy (Jeffrey Seitzer trans., Durham (North Carolina): Duke University Press, 2004).
Steven Wheatley, The Democratic Legitimacy of International Law (Studies in International Law) (Hart Publishing 2010).

(This entry was last revised on December 19, 2021.)

Justices field emergency requests on federal vaccine policies for workplaces, health care facilities

Amy Howe — Sun, 19 Dec 2021 01:03:33 GMT

As the COVID-19 pandemic enters its third year and the omicron variant causes a spike in cases, challenges to efforts by policymakers to respond to the pandemic continue to arrive at the Supreme Court.

On Friday night, within hours of a ruling by the U.S. Court of Appeals for the 6th Circuit that reinstated the Biden administration’s vaccine-or-test mandate for large employers, several of the plaintiffs challenging the rule came to the court, asking the justices to stay the 6th Circuit’s ruling while their appeals proceed. Also pending before the justices is an emergency request from the administration to lift lower-court rulings that have blocked a vaccine mandate for workers at health care facilities that receive federal funding.

The vaccine-or-test mandate was issued by the Occupational Safety and Health Administration on Nov. 5. It requires all employers with more than 100 employees to mandate that those employees either be fully vaccinated against COVID-19 or be tested weekly and wear masks at work.

Numerous challenges to the rule followed immediately in courts around the country, filed by (among others) employers, business groups, religious groups, and Republican-led states. They contend that the policy exceeds OSHA’s authority. The U.S. Court of Appeals for the 5th Circuit temporarily put the mandate on hold last month, calling the rule “fatally flawed” and “staggeringly overbroad.” But through an obscure process known as the multicircuit lottery, all of the challenges were subsequently assigned to the 6th Circuit. A divided panel of that court reinstated the OSHA mandate on Friday after the full 6th Circuit rejected, by a vote of 8-8, a request to have the case be decided by the full court.

Judge Jane Stranch began her 33-page opinion by noting that the “COVID-19 pandemic has wreaked havoc across America.” OSHA, Stranch stressed, “has long regulated health and safety in the workplace” – including to protect workers from infectious disease. And OSHA reasonably concluded, Stranch continued, that the mandate was necessary to guard against COVID-19.

Several of the challengers came quickly to the Supreme Court, asking the justices to follow the 5th Circuit’s lead and put the mandate on hold while litigation over its validity continues. One such request came from a group of companies (located in, among other places, Ohio and Michigan). The companies argued that although the mandate “is one of the most far-reaching and invasive rules ever promulgated by the Federal Government,” OSHA’s authority to issue the mandate rests on a “workplace-safety provision” that “contains no explicit authority to mandate vaccination for an extensive portion of the American people.” The companies also contended that the mandate “threatens to impose mass damage across the entire American economy including further hobbling already strained supply chains.”

Another request to freeze the 6th Circuit’s ruling came from a group of Christian non-profits and businesses. They told the justices that OSHA cannot regulate religious non-profits because they are not “employers.” And in any event, they added, the mandate violates the First Amendment because it “commandeers” the religious institutions to require their employees to comply with the mandate.

Louisiana grocery store owner Brandon Trosclair also asked the justices to stay the 6th Circuit’s decision allowing the mandate to go into effect, while a press release from First Liberty Institute indicated that the group similarly planned to seek emergency relief from the court.

The applications asking the justices to put the Biden administration’s test-or-vaccine mandate on hold came to the court just one day after the Biden administration sought emergency relief at the court regarding a different vaccine mandate. On Thursday, the federal government asked the justices to allow it to temporarily enforce a vaccine mandate, with religious and medical exemptions, for health-care workers at facilities that participate in the Medicare and Medicaid programs. Lower-court rulings have blocked the administration from enforcing that mandate in about half the states. The justices ordered the challengers in those cases to respond by the afternoon of Dec. 30.

This article was originally published at Howe on the Court.

The post Justices field emergency requests on federal vaccine policies for workplaces, health care facilities appeared first on SCOTUSblog.

Legal Theory Bookworm: "Democratic Law" by Shiffrin

Lawrence Solum — Sat, 18 Dec 2021 14:15:00 GMT

The Legal Theory Bookworm recommends Democratic Law by Seana Shiffrin. Here is a description:

In this book, based on her 2017 Berkeley Tanner Lectures, Seana Valentine Shiffrin offers an original, deontological account of democracy, law, and their interrelation. Her central thesis is that democracy and democratic law have intrinsically valuable, interconnected communicative functions. Democracy and democratic law together allow us to fulfill our fundamental duties to convey to each another messages of equal respect by fashioning the sorts of public joint commitments to act that a sincere message of equal respect requires. Law and democracy are essential to each other: the aspirations of democracy cannot be realized except through a legal system, and, conversely, law can fulfill its primary function only in a democratic context.

After defending these theses, Shiffrin explores two doctrinal examples to illustrate how a communicative conception of democratic law would yield concrete implications. First, articulating the special democratic character of judicially articulated common law, she resists instrumental, outcome-oriented conceptions of law and defends the essential importance of the common law duty of good faith in contracts. Second, appealing to the need for law to articulate a coherent set of moral commitments, she criticizes the U.S. Supreme Court's approach to constitutional balancing. In a set of commentaries, Niko Kolodny, Richard Brooks, and Anna Stilz offer illuminating and sometimes provocative discussion of both the philosophical and the legal aspects of Shiffrin's discussion. Shiffrin's responses expand upon themes concerning legal compliance, commitments, communication, dissent, political participation, and the permissible range of state interests.

Essential readings for anyone interested in normative legal theory and democracy. Highly recommended! Buy it!

Download of the Week: "The Present and Near Future of Self-Driving Contracts" by Casey & Niblett

Lawrence Solum — Sat, 18 Dec 2021 14:00:00 GMT

The Download of the Week is The Present and Near Future of Self-Driving Contracts by Anthony J. Casey & Anthony Niblett. Here is the abstract:

There has been a tidal wave of research in recent years examining the potential effects of artificial intelligence on the law. As early predictions from that literature begin to play out, small changes in the legal landscape are taking shape. This provides an opportune moment to take stock. In this chapter, we explore how AI is impacting automated private contracts today and in the near future.

We revisit the idea of ‘self-driving contracts.’ The self-driving contract consists of data-driven predictive algorithms, specified up front, that give the parties context-specific directives on how to comply with a contract’s objective. Rather than relying on human referees to fill gaps and reform provisions after disputes arise, these contracts would rely on micro-directives—which gather data about the current state of the world and account for the purpose of the contract—to update the parties’ obligations at the time of performance.

While the fully-specified self-driving contract may seem distant, this chapter discusses how AI technology is already being used to automate the building blocks of such contracts: self-driving provisions. We explore four examples of AI technology in this context: (1) dynamic pricing to automate the price of performance; (2) litigation analytics to automate the terms of non-performance; (3) legal review technology to automate legal compliance; and (4) negotiation technology to automate substantive obligations. The implications, lessons, and challenges presented by these technological developments are discussed.

Highly recommended. Download it while it's hot!

Giannopoulou on Data Protection by Design & the Blockchain

Lawrence Solum — Sat, 18 Dec 2021 04:55:00 GMT

Alexandra Giannopoulou (University of Amsterdam - Institute for Information Law (IViR)) has posted Putting Data Protection by Design on the Blockchain (European Data Protection Law Review, Volume 7 (2021), Issue 3, Pages 388 - 399) on SSRN. Here is the abstract:

The principle of data protection by design, as it is enshrined in article 25 of the GDPR, is difficult to apply in blockchains. This article will assess how the reliance on asymmetric encryption and other privacy enhancing technological architectures -necessary in a blockchain-based system- approach both user control and data protection by design compliance from the single scope of anonymization and unlinkability. Data subjects’ rights, accountability, and the potential shortcomings of applied technological constraints are thus sidelined. Ultimately, this limited understanding of technological privacy, acts as a misguiding set of principles for technological co-regulation through standardisation in blockchains. The standardization of these choices without a holistic analysis of data protection by design imperatives could ultimately weaken the position of data subjects, whose trust in the technological protections of personal data might prove to be relatively misplaced.

Maloney on Forced Marriage in Conflict Zones

Lawrence Solum — Sat, 18 Dec 2021 00:45:00 GMT

Kathleen M. Maloney (Lewis & Clark Law School) has posted Ending Impunity for Forced Marriage in Conflict Zones: The Need for Greater Judicial Emphasis on the Human Rights of Girls (Journal of International Criminal Justice, Volume 19, Issue 2, May 2021, Pages 327–358) on SSRN. Here is the abstract:

Countless women and girls have been abducted, raped, forcibly assigned as ‘wives’ to combatants and held captive within such forced marriages in conflict zones around the world. Forced marriage as an international crime remains controversial because it (i) is not codified in any international criminal statute, (ii) involves conduct overlapping with already-enumerated crimes against humanity and (iii) is inconsistently defined. Legal protections for girls in forced marriage reside in historical proscriptions against various forms of slavery — banned by jus cogens norms, international human rights and humanitarian law — including the crimes against humanity of sexual slavery and enslavement. Yet, despite similarities between forced marriage and numerous forms of slavery, international criminal courts have not yet prosecuted or convicted forced marriage as enslavement, and even its conviction as sexual slavery insufficiently captures the unique, multi-layered injuries its youngest victims suffer. International tribunals confronting evidence of very young girls captured as ‘wives’ and of female child soldiers serving as sex slaves have failed to adequately recognize or redress the egregious harms girl endure through forced marriage. Competing judicial and academic views on its proper classification have obscured courts’ oversight of forced marriage’s most vulnerable victims — female children. This article argues that, to advance justice for girls in conflict zones and end impunity for these atrocities, greater judicial emphasis is needed on the constellation of internationally recognized fundamental human rights of children violated by forced marriage, whether prosecuted as an ‘other inhumane act’ or slavery-related crime against humanity.

Climate change and immigration policies headline February argument calendar

Amy Howe — Sat, 18 Dec 2021 00:07:17 GMT

In an argument calendar released on Friday afternoon, the Supreme Court announced that it will hear oral arguments in seven cases over five days. The justices will tackle a wide range of issues, from the Environmental Protection Authority’s power to regulate greenhouse gases to an effort by a group of states to defend a controversial Trump-era immigration policy known as the “public charge” rule after the Biden administration declined to do so.

The justices will hear oral argument on Feb. 28 in West Virginia v. EPA, which is consolidated with three other cases: North American Coal Corp. v. EPA, Westmoreland Mining Holdings v. EPA and North Dakota v. EPA. The cases came to the justices from the U.S. Court of Appeals for the District of Columbia Circuit. That court vacated both the Trump administration’s decision to repeal the 2015 Clean Power Plan, which established guidelines for states to limit carbon dioxide emissions from power plants, and the Affordable Clean Energy Rule that the Trump administration issued in its place. The Biden administration urged the justices to stay out of the dispute, stressing that it intends to issue a new rule, but the court granted review in late October.

At the same time, the justices agreed to decide whether a group of 13 states, led by Arizona, can defend a Trump administration rule that broadened the definition of “public charge,” a term in immigration law for people who are ineligible for a green card if the government believes that they are likely to rely too heavily on government assistance. When two federal courts of appeals ruled in favor of groups challenging the rule, the Trump administration asked the Supreme Court to weigh in, and the justices agreed to do so. But the Biden administration and the challengers subsequently agreed to dismiss the case, prompting efforts by the states to intervene to defend the rule. The justices eventually granted review in Arizona v. City and County of San Francisco to decide whether states with an interest in the dispute should be allowed to intervene to defend a rule when the United States is no longer doing so.

Here’s the full list of cases scheduled for argument in February:

Ysleta del sur Pueblo v. Texas (Feb. 22): Whether a federal law that bars on tribal lands any gaming activities “prohibited by the laws of the State of Texas” bans any kind of gambling prohibited under state law, or whether it goes further and also prohibits any gaming that the state regulates.

Denezpi v. Texas (Feb. 22): Whether a prosecution in the Court of Indian Offenses can trigger the Constitution’s double jeopardy clause.

Arizona v. City and County of San Francisco (Feb. 23): Whether states should be permitted to intervene in litigation and defend a federal regulation when the federal government declines to do so.

West Virginia v. EPA (Feb. 28): Whether the Clean Air Act authorizes the EPA to issue significant rules that regulate greenhouse gases from power plants.

Ruan v. United States (consolidated with Kahn v. United States) (March 1): Whether a doctor who has the authority to prescribe controlled substances can be convicted for unlawful distribution of those drugs when he reasonably believed that his prescriptions fell within professional norms.

Marietta Memorial Hospital v. DaVita Inc. (March 1): A dispute over the interpretation of the Medicare Secondary Payer Act, which bars health plans from considering whether an individual is eligible for Medicare benefits because they suffer from kidney failure and from providing different benefits to such individuals.

Egbert v. Boule (March 2): Whether the court’s decision in Bivens v. Six Unknown Federal Narcotics Agents, allowing a private individual to sue a federal agent for violating his Fourth Amendment rights, extends to First Amendment retaliation claims and to Fourth Amendment claims involving immigration enforcement.

This article was originally published at Howe on the Court.

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Illegal firearm possession and courtroom closures

Andrew Hamm — Fri, 17 Dec 2021 21:54:04 GMT

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the prosecution in a case of illegal gun possession by a person with a nonimmigrant visa must prove he knew of his legal status, and the inquiry courts should follow in deciding to close the courtroom to the public.

Gun possession and immigration status

18 U.S.C. § 922(g) makes it unlawful for individuals in various categories to ship, transport, possess, or receive any firearm or ammunition affecting interstate or foreign commerce. Section 922(g)(5) concerns anyone “who, being an alien” is “illegally or unlawfully in the United States” (subparagraph (A)) or “has been admitted to the United States under a nonimmigrant visa” (subparagraph (B)). In Rehaif v. United States, the Supreme Court ruled that under Section 922(g)(5)(A), the prosecution must prove not only that a defendant knew he had a gun, but also that the defendant knew of his legal status as a prohibited person.

In Gear v. United States, Melvyn Gear, an Australian citizen who resides in Hawaii on an H-1B visa, asks the justices to decide whether Section 922(g)(5)(B) also requires proof of knowledge of collateral law. In Gear’s trial – six weeks before the decision in Rehaif – the jury instructions required the jury to find whether Gear knew he had a gun, but not whether he knew he was in the United States pursuant to a nonimmigrant visa. Following Rehaif, the U.S. Court of Appeals for the 9th Circuit affirmed the district court’s denial of Gear’s motion for a new trial, concluding that the evidence at trial sufficiently proved guilt on the Rehaif element. Gear also raises a question for the justices as to the opportunity that appellate courts must give a defendant to make an evidentiary proffer to show plain error.

Closing courtrooms over defendants’ objections

In Waller v. Georgia, the Supreme Court laid out four requirements for a court to consider before closing a courtroom to members of the public, including ensuring that the closure is no broader than necessary and making specific factual findings. In his petition in Huff v. Florida, Patrick Huff claims that a circuit split has emerged as to whether a court must apply Waller when a state has a statute governing courtroom closures. In Huff’s case, the prosecution requested that the courtroom be closed to the public during the testimony of the complainant in a case of sexual battery. Because Huff’s ex-wife was not entitled to remain in the courtroom under a Florida statute governing closure, the court removed her over Huff’s objection. In his petition, Huff maintains that state statutes should not supplant the Waller inquiry interpreting a defendant’s rights under the First and Sixth Amendments.

These and other petitions of the week are below:

Ham v. Breckon
21-763
Issue: Whether a district court has jurisdiction under 28 U.S.C. § 2241 to review a claim that a federal prisoner’s sentence is invalid in light of an intervening and retroactively applicable statutory-interpretation decision of the Supreme Court, when circuit precedent foreclosed the claim at the time of the prisoner’s prior motion under 28 U.S.C. § 2255.

Huff v. Florida
21-764
Issue: Whether, as the court below and two other states hold, trial courts may close a courtroom pursuant to a closure statute without undertaking an analysis under Waller v. Georgia; or, as nine states and the federal courts of appeals hold, the Sixth Amendment and Waller require an assessment of the specific facts of the case and proposed closure, notwithstanding the existence of a statute governing closure.

Williams v. United States
21-767
Issue: Whether a district court may consider the 2018 amendment to the sentences mandated by 18 U.S.C. § 924(c) in determining whether a defendant has shown “extraordinary and compelling reasons” warranting a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i).

Hawkins v. Banks
21-770
Issues: (1) Whether the U.S. Court of Appeals for the 8th Circuit wrongly denied qualified immunity to Officer Shelby Hawkins by finding the use of force was not reasonable as a matter of law when Hawkins had probable cause to believe there was a threat of serious physical injury or death; and (2) whether the 8th Circuit wrongly denied qualified immunity to Hawkins in the absence of any precedent finding a Fourth Amendment violation based on similar facts.

Herrera v. Cleveland
21-771
Issue: Whether Federal Rule of Civil Procedure 15(c)(1)(C) categorically excludes relation back — when a plaintiff files an amended complaint changing the name of a defendant and that amendment relates back to the date of the original complaint — if the plaintiff initially used John Doe placeholders in the complaint due to inadequate knowledge regarding the defendants’ names.

Marchand & Rossi, L.L.P. v. White
21-796
Issues: (1) Whether the fundamental utility of the False Claims Act — to incentivize private citizen investigation and prosecution of fraud against the United States — is jeopardized by precedent that allows dismissal of “second-filed” suits even in the absence of evidence that parallel schemes would have been discovered but for the second-filed suits; and (2) whether divergent standards of review utilized by circuits to evaluate first-to-file challenges contributes to lower courts’ failures to allow independently viable FCA claims to proceed on the merits; (3) whether in the absence of congressional intent, the FCA in any event can displace parallel state-law whistleblower remedies.

Gear v. United States
21-816
Issues: (1) Whether — given that the Supreme Court held in Rehaif v. United States that in a prosecution under 18 U.S.C. § 922(g)(5)(A), the government must prove that the defendant knew his legal status — other subdivisions of18 U.S.C. § 922(g) require knowledge of collateral law; and (2) whether appellate courts must give a defendant an opportunity to make an evidentiary proffer to satisfy his burden of demonstrating plain error.

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Bateman & Allen on Central Bank Creation of Reserve Requirements

Lawrence Solum — Fri, 17 Dec 2021 20:10:00 GMT

Will Bateman (Australian National University, Law School) & Jason Allen (Humboldt University of Berlin) have posted The Law of Central Bank Reserve Creation ((2021) Modern Law Review (advance access)) on SSRN. Here is the abstract:

This article explores legal and constitutional dimensions of central banks’ powers to create money, ‘central bank reserves’, through monetary policy operations. Despite the prominence of monetary authority since the Financial Crisis, the law supporting the creation of central bank reserves is very obscure, as is the role of law in structuring constitutional authority over money. We de-mystify those important matters in three steps. First, we explain, for a legal audience, the role of central bank reserves in the financial system and broader economy. Secondly, we analyse the legal basis for the creation of central bank reserves in three prominent ‘North Atlantic’ monetary jurisdictions: the US Dollar, Euro and Sterling systems. Thirdly, we show how the legal structure of central banking intermediates the constitutional state's authority over money through parts of the financial system, focusing on high-profile policy proposals, including ‘QE for the people’, and the creation of central bank digital currencies.

Casey & Niblett on Self-Driving Contracts

Lawrence Solum — Fri, 17 Dec 2021 16:55:00 GMT

Anthony J. Casey (University of Chicago Law School; ECGI) & Anthony Niblett (University of Toronto - Faculty of Law; Vector Institute for Artificial Intelligence) have posted The Present and Near Future of Self-Driving Contracts on SSRN. Here is the abstract:

Highly recommended. Download it while it's hot!

The morning read for Friday, Dec. 17

James Romoser — Fri, 17 Dec 2021 14:57:28 GMT

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. To suggest a piece for us to consider, email us at roundup@scotusblog.com.

Here’s the Friday morning read:

Justice Department asks high court to allow vaccine mandate (Associated Press)
Supreme Court sends Texas abortion case to appeals court instead of to judge who previously blocked the law (Robert Barnes & Ann E. Marimow, The Washington Post)
Populism Has Found a Home at the Supreme Court, Too (Anya Bernstein & Glen Staszewski, The New York Times)
The idea of expanding the Supreme Court to blunt its right-wing bias gains traction (Michael Hiltzik, Los Angeles Times)
US Supreme Court will hear case of Nazi-looted Pissarro painting (Martha Lufkin, The Art Newspaper)

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Crum on the Ratification of the 15th Amendment

Lawrence Solum — Fri, 17 Dec 2021 12:30:00 GMT

Travis Crum (Washington University in St. Louis--School of Law) has posted The Lawfulness of the Fifteenth Amendment (Notre Dame Law Review, Vol. 97, 2022) on SSRN. Here is the abstract:

One of the most provocative debates in constitutional theory concerns the lawfulness of the Reconstruction Amendments’ adoptions. Scholars have contested whether Article V permits amendments proposed by Congresses that excluded the Southern States and questioned whether those States’ ratifications were obtained through unlawful coercion. Scholars have also teased out differences in how States were counted for purposes of ratifying the Thirteenth and Fourteenth Amendments. This debate has focused exclusively on the Thirteenth and Fourteenth Amendments, dismissing the Fifteenth Amendment as a mere sequel.

As this Essay demonstrates, the unique issues raised by the Fifteenth Amendment’s ratification adds important nuance to this debate. New York rescinded its ratification at a time that is difficult to ignore. The Indiana state legislature lacked a quorum when it approved the amendment. Georgia was expelled from the Union not once, but twice—the latter instance after Congress had re-admitted it in July 1868. Georgia was then required to ratify the Fifteenth Amendment as a fundamental condition for its second re-admission. Georgia’s situation differs substantially from the Southern States that were consistently excluded from the Union. Under any theory—whether it endorses a loyal-, reduced-, or full-denominator—at least one of these States’ ratifications is necessary for the Fifteenth Amendment’s validity.

Notwithstanding these issues, the Fifteenth Amendment’s legality is on solid ground. Indeed, the Fifteenth Amendment showcases Reconstruction’s success. The majority of Southern States were represented in the Congress that passed the Fifteenth Amendment and those States ratified it free of any fundamental conditions. Given the demographics and political realities of Reconstruction, the Fifteenth Amendment was the first constitutional provision whose ratification was clearly attributable to the votes of Black men. More broadly, the fight to ratify the Reconstruction Amendments demonstrates that democracies must sometimes take extraordinary steps to protect themselves from secessionist, racist, and anti-democratic forces.

Brang on Carl Schmitt & China

Lawrence Solum — Fri, 17 Dec 2021 08:00:00 GMT

Lucas Brang (University of Cologne) has posted Homogeneity and Conflict: Interrogating the Political in Contemporary China on SSRN. Here is the abstract:

This is a draft paper for a special issue on “Carl Schmitt in the 21st Century: The Legal and the Political,” to be published in Public Jurist (Hong Kong Journal of Law and Public Affairs). The article provides a concise overview of the reception of Carl Schmitt’s thought in contemporary China, focusing on the concept of the political and its various theoretical ramifications. I argue that the notions of “homogeneity” and “conflict” as constituent elements of Schmitt’s political theory, and the dialectic tension between them, provides a useful entry point to contemporary Chinese debates about state unity and societal pluralism. Such a reading also suggests that, rather than giving rise to a straightforward and uniform authoritarian agenda, Chinese “Schmitt fever” has produced new political fault lines. One particularly pertinent schism in contemporary Chinese political discourse is that between authoritarian projects of political assimilation and liberal projects of constitutional patriotism – both of which are informed by diverging readings of Schmitt.

Vinceti on Compulsory Vaccination of Healthcare Workers and the Italian Constitution

Lawrence Solum — Fri, 17 Dec 2021 04:55:00 GMT

Silvio Roberto Vinceti (University of Modena and Reggio Emilia) has posted COVID-19 Compulsory Vaccination of Healthcare Workers and the Italian Constitution (Annali di Igiene, Medicina Preventiva e di Comunità, 2021) on SSRN. Here is the abstract:

On April 1, 2021, the Italian Government issued the Decree Law no. 44 establishing COVID-19 compulsory vaccination for healthcare workers. In covering the news, national and international commentators have foreshadowed controversy over its constitutional status. In fact, it seems sensible to wonder if mandatory vaccination is consistent with the right to medical self-determination in the Italian Constitution, and if vaccine mandates that exclusively apply to a specific part of the population can be squared with its Equality Principle. As it happens, both answers are in the affirmative. On the one hand, the Italian Constitution acknowledges medical self-determination, but it explicitly admits of public health coercive measures, as both the text of the Constitution and its original understanding make abundantly clear. On the other, as to the Equality Principle, the scientific literature has long attested to the unique benefits of vaccinating healthcare workers, which seem all the more appropriate amidst a pandemic. Moreover, the government’s choice of moderate penalties for vaccine refusal and the temporary nature of the mandatory regime further agree with the Italian Constitutional Court’s interpretation of the Equality Principle - the so-called “Reasonableness Criterion.” The Decree Law – meanwhile become, with minor modifications, Law 76 of May 28 2021 - is thus expected to pass foreseeable judicial review. However, it would be beneficial if the Italian government more vocally advocated the constitutionality of its vaccination policies in a general effort to contrast vaccine hesitancy.

Eliot on AI & Lawyer Reputation

Lawrence Solum — Fri, 17 Dec 2021 00:40:00 GMT

Dr. Lance B. Eliot (Stanford Center for Legal Informatics) has posted AI Being Used To Explicate The Reputations Of Human Lawyers on SSRN. Here is the abstract:

Lawyers are apt to care quite a bit about their professional reputations. An attorney with a stellar legal reputation can presumably glean rewards accordingly, while an attorney with a dour reputation might find their legal career stinted. To ascertain the reputation of a lawyer, some are turning to AI as a means of ferreting out and essentially explicating the standing and repute of human attorneys. This use of AI is either welcomed or at times considered contemptible.

Kopel on Tyrants with Gun Monopolies

Lawrence Solum — Thu, 16 Dec 2021 20:45:00 GMT

David B. Kopel (Independence Institute; Denver University - Sturm College of Law; Cato Institute) has posted Guns Kill People, and Tyrants with Gun Monopolies Kill the Most on SSRN. Here is the abstract:

This Article compares the relative dangers of excessive gun ownership and of excessive gun control based on the historical record of the twentieth century. Part I describes tensions in some treaties, declarations, and other legal documents from the United Nations and the European Union. On the one hand, they recognize the legitimacy of resistance to tyranny and genocide; on the other hand, the UN and EU gun control programs seem to make armed resistance nearly impossible.

Part II contrasts homicide data for the United States and Europe during the twentieth century. First, data about homicides from ordinary crimes are examined. Based on certain assumptions that bias the figure upward, if the U.S. had the same gun homicide rate as Europe’s, there might have been three-quarters of a million fewer deaths in America during the twentieth century. The figure is a data point for the dangers of insufficient gun control.

Next, Part II looks more broadly at homicide, to include homicides perpetrated by governments, such as the Hitler or Stalin regimes. In Europe in the twentieth century, states murdered about 87.1 million people. Globally, governments murdered well over 200 million people. The figure does not include combat deaths from wars.

As Part III explains, totalitarian governments are the most likely to perpetrate mass murder. The Part argues against the complacent belief that any nation, including the United States, is immune from the dangers of being taken over by a murderous government. The historical record shows that risks are very broad.

Part IV shows that governments intent on mass murder prioritize victim disarmament because they consider it to a serious impediment to mass murder and tyrannical rule.

Finally, Part V examines the efficacy of citizen arms against mass murdering governments. Citizen arms are most effective as deterrents. However, even without changing the regime, the twentieth century shows that armed resistance can accomplish a great deal and save many lives. The Conclusion suggests that the UN and EU adopt a more balanced gun control policy, recognizing the value of citizen arms in protecting the public from tyranny and mass murder.

Markovits & Atiq on Philosophy of Contract Law

Lawrence Solum — Thu, 16 Dec 2021 16:55:00 GMT

Daniel Markovits (Yale Law School) & Emad H. Atiq (Cornell University - Law School; Cornell University - Sage School of Philosophy) have posted Philosophy of Contract Law (Stanford Encyclopedia of Philosophy (Winter, 2021)) on SSRN. Here is the abstract:

The law of contracts, at least in its orthodox expression, concerns voluntary, or chosen, legal obligations. When Brody accepts Susan’s offer to sell him a canoe for a set price, the parties’ choices alter their legal rights and duties. Their success at changing the legal landscape depends on a background system of rules that specify when and how contractual acts have legal effects, rules that give the offer and acceptance of a bargain-exchange a central role in generating obligations. Contract law conceived as a body of rules empowering individuals to shape their own rights and responsibilities presents an object of philosophical study. The philosophy of contract includes two broad sets of projects. One set, the focus of the first part of this entry, targets the basic structure and normative justification of the law of contracts. The aim is to subsume a salient body of contract law rules under general principles in order to clarify contract law’s conceptual categories, distinguish it from other areas of law, and specify criteria relevant to its normative appraisal. This kind of philosophical work presupposes detailed knowledge of the law in existing legal regimes, and the entry begins by outlining the common law of contracts. A second set of projects draws on resources from the philosophy of language, philosophy of action, and moral and political philosophy to address debates within contract law. Questions about the nature of meaning and interpretation, intentionality, freedom in contract, and distributive justice drive contemporary legal debates concerning contract formation, interpretation, and enforcement. Philosophical work on these topics has attracted significant commentary which serves as the focus of the second part of this entry.

Highly recommended. Download it while it's hot!

Kundis & Ruhl on Prioritizing Environmental Law

Lawrence Solum — Thu, 16 Dec 2021 12:30:00 GMT

Robin Kundis Craig (USC Gould School of Law) & J. B. Ruhl (Vanderbilt University - Law School) have posted New Realties Require New Priorities: Heading Off the Climate Dystopia Death Spirals by Re-Prioritizing the Environment and Environmental Law (Chapter 1 in Keith Hirokawa & Jessica Owley, eds., Environmental Law, Disrupted 10-31 (Nov. 2021)) on SSRN. Here is the abstract:

This chapter argues that the existential threat of climate change (and its associated phenomena like ocean acidification) demands re-prioritization of political and economic capital toward the environmental Sustainable Development Goals and to environmental law more generally—especially in light of the increasing need for robust climate change adaptation measures on many fronts. To put it bluntly, environmental deterioration is not a challenge, as the U.N. would have it, but it is the challenge of our time—both to human development progress and to the continued existence of functional ecological systems. Our logic is simple, but it completely inverts natural human reactions and political instincts by requiring that humans take a long-term perspective on social well-being, fully acknowledging their dependence on environmental systems. As early sustainable development theorists acknowledged, the environment is the boundary of, and not co-equal to, development. As such, the environment constrains potential human progress both economically and socially and hence needs to be re-prioritized.

Recommended.

Voss on Smart Contracts & Data Protection

Lawrence Solum — Thu, 16 Dec 2021 08:00:00 GMT

W. Gregory Voss (Toulouse Business School; TBS Business School; University of Toulouse - Toulouse Business School) has posted Data Protection Issues for Smart Contracts (Smart Contracts: Technological, Business and Legal Perspectives (Marcelo Corrales, Mark Fenwick & Stefan Wrbka, eds., Hart Publishing/Bloomsbury, 2021)) on SSRN. Here is the abstract:

Smart contracts offer promise for facilitating and streamlining transactions in many areas of business and government. However, they also may be subject to the provisions of relevant data protection laws such as the European Union’s General Data Protection Regulation (GDPR) if personal data is processed. Initially, this chapter discusses the data protection/data privacy distinction in the context of differing legal models. However, the focus of analysis is the GDPR, as the most significant and influential data protection legislation at this time, given in part to its omnibus nature and extraterritorial scope, and its application to smart contracts.

By their very nature, smart contracts raise difficulties for the classification of the various actors involved, which will have an impact on their responsibilities under the law and their potential liability for violations. The analysis in this chapter turns on the roles of the data controller in the context of smart contracts, and this contract review the definition of that term and of ‘joint controller’ considering supervisory authority guidance. In doing so, the signification of the classification is highlighted, especially in the case of the GDPR.

Furthermore, certain rights granted to data subjects under the GDPR may be difficult to provide in the context of smart contracts, such as the right to be forgotten/right to erasure, the right to rectification and the right not to be subject to a decision based solely on automated processing. This chapter addresses such issues, together with relevant supervisory authority advice, such as the use of encryption to make data nearly inaccessible to approach as nearly as possible the same result as erasure. On the way, the important distinction between anonymized data and personal data is explained, together with its practical implications, and requirements for data integrity and confidentiality (security) are detailed.

In addition, the GDPR requirement of privacy by design and by default must be respected, when that that legislation applies. Data protection principles such as purpose limitation and data minimisation in the case of smart contracts are also scrutinized in this chapter. Data protection and privacy must be considered when smart contracts are designed. This chapter will help the reader understand the contours of such requirement. Even for jurisdictions outside of the European Union, privacy by design will be interesting as best practice.

Finally, problems related to cross-border data transfers in the case of public blockchains are debated, prior to this chapter setting out key elements to allow for a GDPR-compliant blockchain and other concluding remarks.

Mitchell & Marchese on Amazon & Antitrust

Lawrence Solum — Thu, 16 Dec 2021 04:55:00 GMT

Trace Mitchell (George Mason University - Mercatus Center; NetChoice) & Chris Marchese (NetChoice) have posted A Prime Target: The Attack on Amazon in an Age of Weaponized Antitrust on SSRN. Here is the abstract:

Amazon got its start in 1994 when a relatively young Jeff Bezos moved to Seattle and launched Amazon.com from a corner in his garage. For years the site was nothing more than an online boutique bookstore. But Amazon bet big that online shopping would one day be just as popular as shopping in malls and invested heavily in making that a reality. In fact, Amazon did not post a profit until five years after it first launched as it continued to reinvest revenue and innovate. Largely as a result of its investment strategy and commitment to low prices, convenience, and customer satisfaction, Amazon now sells over 12 million products across different markets and competes against the nation’s largest retailers, including Walmart, Target, and Home Depot. A significant majority of American households now have an Amazon Prime membership and hundreds of thousands of third-party sellers use Amazon and its distribution capabilities to sell their own products and services across the country and world. Even so, Amazon continues to lag well behind Walmart, which enjoys nearly twice the sales revenue.

In recent years Amazon and the outsized benefits it creates for consumers have come under attack as “Big Tech” becomes a favorite punching bag for politicians and pundits alike. The emergence of this newfound hostility for the major digital platforms threatens to undermine the innovation that has occurred over the past several decades as a result of the United States’ light-touch approach to tech regulation.

Perhaps not surprisingly, much of the recent scrutiny against Amazon is the result of its substantial growth since its founding and efforts by corporate competitors who are seeing their dominance decline. To many critics from all sides, it is “too big.” And they see antitrust as a weapon to bring it down to size (what size, they never say). Just recently the House Judiciary Committee released an antitrust report (the Report) attacking Amazon and calling for aggressive enforcement aimed at, among other things, breaking it up.

But the Report, along with many of the other recent criticisms levied against Amazon, ignores or downplays inconvenient facts, including all the benefits Americans receive from Amazon and its online marketplace. The Report also ignores the devastating effect that aggressive antitrust enforcement can have on the broader economy. And although it claims to be a “deep dive” into digital markets, it’s riddled with factual mistakes, loaded rhetoric, and baseless accusations. Even worse, it proposes drastic changes to the country’s antitrust laws to protect corporate competitors, not American consumers. Some policymakers and advocates would prefer antitrust law follow a “big is bad” subjective approach. Under this regime, large businesses like Amazon would be far more susceptible to antitrust litigation solely because their size itself would indicate unlawful behavior.

This approach, however, would harm both consumers and society by raising higher prices, lowering the quality of goods and services, and stifling innovation overall. It would also further politicize antitrust enforcement and open the door for misuse of the law by large corporations to advance their own interests and harm their competitors.

Elmendorf & Duncheon on the California Environmental Quality Act & the Housing Accountability Act

Lawrence Solum — Thu, 16 Dec 2021 00:40:00 GMT

Christopher S. Elmendorf (University of California, Davis - School of Law) & Timothy G. Duncheon (U.S. District Court for the Northern District of California) have posted When Super-Statutes Collide: CEQA, the Housing Accountability Act, and Tectonic Change in Land Use Law on SSRN. Here is the abstract:

This Essay explores the slow-motion collision between two statutes at the center of California’s housing crisis: the California Environmental Quality Act (CEQA) and the state’s Housing Accountability Act (HAA). Each statute has a bona-fide claim to being a “super-statute,” one which exerts a “broad effect on the law.” Yet the two statutes came of age in different eras—CEQA in the 1970s and the HAA in the 2010s—and have fundamentally different institutional and normative premises. After tracing the evolution of the statutes, we explore two problems at their intersection: (1) cities’ use of endless CEQA review to launder the denial of housing projects that the HAA means to protect; and (2) analytical disarray as to the correct reference alternative to use in determining whether a city’s approval of an HAA-protected project would cause a “significant” effect on the environment (the statutory trigger for an environmental impact report under CEQA). We propose solutions to these problems that harmonize the two laws – remaining faithful to the text and purpose of CEQA while fulfilling the HAA’s instruction that it be interpreted “to afford the fullest possible weight to the interest of … housing.” But our solutions are not inevitable. If courts and other actors are not thoughtful about these questions, CEQA may run roughshod over the HAA, crippling California’s efforts to provide more housing and, ironically, to respond to the threat of climate change as well.

Gundlach & Livermore on the Social Cost of Carbon

Lawrence Solum — Wed, 15 Dec 2021 20:15:00 GMT

Justin Gundlach (Institute for Policy Integrity at NYU School of Law) & Michael A. Livermore (University of Virginia School of Law) have posted Costs, Confusion, and Climate Change (Yale Journal on Regulation, Forthcoming) on SSRN. Here is the abstract:

In the United States the primary tool to value greenhouse gas emissions reductions in cost-benefit analysis is the social cost of carbon (SCC), which is a metric that estimates, in monetary terms, the damages associated with climate change. Recently, some prominent public policy experts and scholars have proposed that a “marginal abatement cost” (MAC) could be used as an alternative to the SCC. Indeed, some jurisdictions, such as the U.K., have integrated MAC-based approaches into climate policymaking. This article provides conceptual clarity about these metrics, focusing on how a MAC-based threshold could sensibly be used in climate policy, and explaining why it is not a substitute for the SCC. We relate the current conversation about valuing greenhouse gas emissions to the longstanding debate over the use of prices versus quantities in climate policy formulation and the more generic regulatory question of when it is appropriate to employ cost-benefit analysis versus cost-effectiveness analysis. In addition, we use illustrative hypothetical policy contexts to explain the roles that these tools should play.

Highly recommended.

Court to Hear Arguments in Religious School Funding Case

Steven D. Schwinn — Wed, 08 Dec 2021 14:51:58 GMT

Steven D. Schwinn, University of Illinois Chicago School of Law The Supreme Court will hear arguments on Wednesday in Carson v. Makin, the case testing whether a state can exclude private schools with an overtly religious educational mission from a...

Court to Hear Arguments in Mississippi Abortion Ban Case

Steven D. Schwinn — Wed, 01 Dec 2021 12:32:54 GMT

Steven D. Schwinn, University of Illinois Chicago School of Law The Supreme Court will hear oral arguments today in Dobbs v. Jackson Women's Health Organization, the case testing Mississippi's ban on abortion after 15 weeks of pregnancy . . ....

Court Hears Arguments in Austin Sign Case

Steven D. Schwinn — Wed, 10 Nov 2021 14:09:01 GMT

Steven D. Schwinn, University of Illinois Chicago School of Law The Supreme Court will hear arguments this morning in a case testing Austin's sign code, which allows digitization of on-premises signs, but not of off-premises signs. Here's my preview, from...

Court to Hear State Secrets, FISA Case

Steven D. Schwinn — Mon, 08 Nov 2021 12:55:20 GMT

Steven D. Schwinn, University of Illinois Chicago School of Law The Supreme Court will hear oral arguments this morning in a case testing the interplay between the state secrets privilege and the Foreign Intelligence Surveillance Act. Here's my argument preview,...

Check it Out: American Constitution Society Supreme Court Review

Steven D. Schwinn — Tue, 02 Nov 2021 22:54:08 GMT

The American Constitution Society just published its fifth annual Supreme Court Review, covering the 2020-21 Term. The volume includes an amazing group of top scholars and practitioners, and an introductory Term in Review by Garrett Epps.

Argument Preview: Can a State Require "Proper Cause" for Public Carry?

Steven D. Schwinn — Tue, 02 Nov 2021 20:10:12 GMT

Steven D. Schwinn, University of Illinois Chicago School of Law The Supreme Court will hear oral arguments tomorrow in a critical Second Amendment case testing New York's requirement that an applicant for a public carry license demonstrate "proper cause." Here's...

Argument Preview: Does an Elected Body Violate Free Speech When it Censures a Member?

Steven D. Schwinn — Tue, 02 Nov 2021 12:33:29 GMT

Steven D. Schwinn, University of Illinois Chicago School of Law The Supreme Court will hear oral arguments this morning in Houston Community College System v. Wilson, the case testing whether an elected body violates the First Amendment when it censures...

Court to Hear Arguments in Texas Abortion Cases

Steven D. Schwinn — Sun, 31 Oct 2021 21:11:13 GMT

Steven D. Schwinn, University of Illinois Chicago School of Law The Supreme Court will hear oral arguments tomorrow in the Texas abortion cases. Here's my oral argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:...

Missouri, Texas Sue Biden Administration for Stalling on Border Wall

Steven D. Schwinn — Sat, 23 Oct 2021 01:34:34 GMT

Steven D. Schwinn, University of Illinois Chicago School of Law Missouri and Texas sued the Biden Administration for stalling on wall construction along the southern border. The states claim that Congress appropriated funding for wall construction--and only wall construction--and that...

High Court Leaves Texas Abortion Ban in Place, but Expedites Appeal

Steven D. Schwinn — Sat, 23 Oct 2021 00:33:13 GMT

Steven D. Schwinn, University of Illinois Chicago School of Law The Supreme Court today declined to halt the Texas abortion ban, S.B. 8, but expedited appeals by abortion providers and the Biden administration in two separate orders today. Today's actions...