Legal Theory Blog

Pranoto Iskandar (McGill University – Centre for Human Rights and Legal Pluralism; The Institute for Migrant Rights; Tarumanagara University; University of Khorfakkan; Universitas Islam Indonesia) has posted National Ideology in International Law: The Indonesian Case on SSRN.  Here is the abstract:

In this paper, we attempt to show that the implicit, underlying, lived spirit of a received or domesticated form of international law is national ideology. There is nothing new about this assertion, obviously. But what makes this paper could be worth of another act of ink-spilling is related to its contextualization. That is, it takes the Indonesian context as a non-Western legal tradition to give empirical flesh to its argumentative bone. In addition, we also argue that the notion of national ideology as an analytical framework needs to be broadly understood as a way of explaining ideas that were deemed irrational and unreasonable. Through this broad conception of ideology, we unveil that national ideology is more than just a political instrument, it is deeply entrenched in the nation’s psyche. That said, this constitutes this is the unconscious force that maintains pattern to the domestic exceptionalism, cognitive source to resist change. In effect, we show that international law does not necessarily lead to, if any, meaningful changes.

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David G. Yosifon (Santa Clara University – School of Law) has posted Escaping Bad Faith: Corporate Law, Sartre, and the Fiduciary Way on SSRN.  Here is the abstract:

“Good faith” is the core command of modern corporate governance law. Corporate directors’ exposure to liability for breach of their fiduciary duties to the corporation and its shareholders has been narrowed by common law doctrines, statutory provisions, and charter innovations, to focus ever more particularly, if not exclusively, on behavior that is in “bad faith.” Even as the concept is enlisted to bear ever more weight in fiduciary analysis, the meaning of “bad faith” remains elusive in theory, doctrine, and practice. Here, I draw on the writings of Jean Paul Sartre to cultivate a deeper understanding of bad faith for use in corporate law jurisprudence. Drawing on Sartre’s insights, the article argues for recognizing passive but aware indifference as sufficient to meet the threshold of “conscious disregard” that is the touchstone of bad faith in prevailing corporate law dogma. This inquiry is undertaken both to advance a technical doctrinal understanding within corporate law, and to further a broader intellectual project concerned with excavating from corporate law discourse ideas that may prove useful to personal ethics and individual transformation. By bringing together corporate law and philosophical discourses on “bad faith,” both law and philosophy may be improved, and we may find some escape from bad faith, not only in corporate governance, but in personal conscience too.

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Joshua Robe (University of Notre Dame – Notre Dame Law School) has posted Common Law Roots of the Major Questions Doctrine (Notre Dame Law Review) on SSRN.  Here is the abstract:

Most scholars argue that the Major Questions Doctrine has little historical foundation. On this view, the Supreme Court invented the doctrine in the last few decades. This Note challenges that conclusion. Building on recent scholarship, I argue that Anglo-American common law as early as the 1700s contained the rule that extraordinary authority required clear authorization. In the common law of agency, “principal” powers had to be delegated expressly, while less important or “incidental” powers could be delegated implicitly. I argue that this rule applied to statutory interpretation as well. Courts applied the rule to legislative acts delegating power to municipalities, and later to statutes delegating power to the early administrative agencies. The “Major Questions” label is new, but the doctrine’s substance has deep roots in American law.

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Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted The Moral Obligations of Government Lawyers on SSRN.  Here is the abstract:

All over the world, government lawyers have crucial roles, but in many nations, they are under considerable pressure, and they may be marginalized, ignored, fired, or punished. Sometimes their independence is challenged, and they are asked to do the bidding of politicians. What are their moral obligations? Three different answers deserve pride of place. The first points to the Morality of Law Enforcement. The second points to the Morality of Legality. The third points to the Rule of Law. A nation whose lawyers reject these moral obligations is well on the road to authoritarianism.

Highly Recommended!

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W. Kip Viscusi (Vanderbilt University – Law School; National Bureau of Economic Research (NBER)) has posted The Value of a Statistical Life Year (Journal of Risk and Uncertainty, forthcoming) on SSRN.  Here is the abstract:

Embedded in the value of a statistical life (VSL) is a stream of valuations of each expected year of life. The value of a statistical life year (VSLY) has a policy-relevant role analogous to the VSL, except that it monetizes risks to short periods of life extension. This article reviews previous studies and reports new labor market estimates of the average VSLY and the variation of these values with age using two methods—inferring the average VSLY based on estimates of the VSL and a new method that provides direct empirical estimates of the valuation of a discounted life year. The direct estimates of the VSLY yield larger values than the constructed estimates. The VSLY based on fatality rates by industry and occupation is $600,000 to $800,000 at a 3 percent interest rate. Estimates based on age-adjusted fatality rates are somewhat lower. The discount rate used in assessing the VSLY has a pivotal effect on the estimated VSLY. The VSLY is substantially lower in the absence of discounting and more than doubled at a discount rate of 10 percent. Failure to use a positive discount rate greatly understates the VSLY. The article also reviews previous VSLY studies as well as estimates of the discount rate for years of life expectancy.

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Yvette Butler (Indiana University Maurer School of Law) has posted Traditionally Suspect: Common Occupations and the Right to Earn a Living (Washington and Lee Law Review, forthcoming) on SSRN.  Here is the abstract:

This Article is the first to fill a major gap in the literature on the scope of the right to earn a living. Courts have defined the right to earn a living as the right of an individual to earn their livelihood through any lawful, honest, and common calling, business, profession, or vocation they may choose, as long as the individual is not restricted by generally applicable and reasonable laws, such as criminal laws or occupational licensing requirements. Scholars have argued that economic liberties, such as the right to earn a living and occupational freedom, should be recognized as fundamental rights. As such, laws that overburden economic liberties, such as the right to earn a living, should be subject to meaningful judicial scrutiny. This article does not take issue with that claim.

Instead, this article argues that whether the right to earn is fundamental is not as relevant as (1) addressing the many threshold questions that the doctrine requires, especially the meaning of a “common occupation” and (2) articulating a just version of economic liberty that accounts for the relevant histories and experiences of multiple stakeholders, including marginalized groups. Thus, I argue that the right to earn a living should be interpreted in a way that accounts for multiple stakeholders, historical injustices, and present day realities.

In doing so, I show that the threshold “common occupation” inquiry essentially operates as a history and tradition test subject to the very same critiques as the one created by the Roberts Court. Under this test, an occupation is common only if it is not “traditionally suspect.” This may be demonstrated where there are a “host of cases” protecting the claimed interest. This test rewards litigants whose work the law has already embraced. It leaves the occupations that were historically condemned without an on-ramp to recognition. That structure risks building epistemic injustices into the threshold itself because it asks whether an activity was once condemned while not also asking why, and by whom.

Highly Recommended!

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Haiyun Damon-Feng (Yeshiva University – Benjamin N. Cardozo School of Law; NYU School of Law) has posted Conscripted Surveillance (Florida Law Review, forthcoming) on SSRN.  Here is the abstract:

Two powerful immigration detention systems have developed in tandem in the United States: the first, a network of physical detention facilities largely mirroring criminal incarceration; the second, an amalgamation of physical, electronic, and surveillance-oriented constraints that attach to immigrants subject to Immigration and Customs Enforcement’s (ICE) Intensive Supervision Appearance Program (ISAP). Although ISAP was originally developed as an “alternative” to physical immigration detention, it has morphed into its own pervasive form of carceral control that is administered through a multi-billion-dollar contract with one of the world’s largest for-profit prison companies. ISAP captures 2.6 times as many people as are housed in immigrant jails, and its potential for continued expansion faces fewer legal, structural, and financial barriers than those that constrain the expansion of physical detention. ISAP’s reach also extends beyond the individuals it supervises—it operates as a form of mass surveillance with the capacity to monitor immigrant communities and social networks through coercive and punitive tactics.

This Article provides a rich descriptive account of ISAP’s surveillance powers and posits a new theory of ISAP as a form of “conscripted surveillance.” ISAP’s incredible and invasive reach has largely been justified on the grounds that individuals consent to its terms, but this consent is a fallacy. It is based on a coercive choice—agree to ISAP or go to jail—and an empty threat—ICE could not actually send everyone it threatened with ISAP to jail if they refused. As such, ICE functionally conscripts immigrants into service as beacons of community surveillance, using the data it collects through ISAP to make mass arrests and facilitate mass deportations. Understanding ISAP in this way reveals how our administrative and legal systems fail to meaningfully oversee the harms that ISAP perpetuates, and provides a new lens through which to evaluate and critique the terms and scope of immigration detention in the United States.

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Ennis McBride has posted Legal Realism and Legal Positivism Are Expressly (Not Just Tacitly) Consistent on SSRN.  Here is the abstract:

In a recent article Priel takes issue with Leiter’s claim that Legal Realists are tacit positivists and argues that Leiter misunderstands both Legal Realism and positivism, thereby failing to provide an accurate account of the law. I agree that this dispute goes to central issues in jurisprudence and that it needs to be resolved if we are to make sense of the law. But I argue that while Priel identifies the key issues, he fails to make good his claim that there are irreconcilable differences between the schools of thought, owing to his mischaracterisation of each. I argue that Priel goes wrong partly owing to his respective conflation of three pairs of concepts: (1) rational indeterminacy and causal indeterminacy; (2) determinacy and predictability, and (3) the distinction between legal and nonlegal reasons inside the courtroom and that between law and society outside it. It is impossible to fully understand what either school argued without separating these concepts and it is this that leads Priel to misapprehend the true differences—and similarities—between these two schools. With this muddying of the waters cleared, we can see that any differences between the schools are ones of degree and emphasis rather than conceptual disagreement.

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Dvir Aran (Technion – Israel Institute of Technology), Ronen Perry (University of Haifa – Faculty of Law), and Shahar Shelly (Technion – Israel Institute of Technology; Mayo Clinic – Department of Neurology) have posted Clinical Liability Cases Reveal a Coupling Between Legal Defensibility and Medical Procedure Escalation in Large Language Models (Communications Medicine) on SSRN.  Here is the abstract:

Doctors increasingly rely on AI in making clinical decisions. This article tested whether AI-generated recommendations meet the legal standard of care (hence helping doctors avoid medical malpractice) and, if so, at what cost. It found striking variation in legal defensibility of AI-generated recommendations among different LLMs, particularly across different generations within each provider family. It also found that higher legal defensibility is generally (and unsurprisingly) associated with an escalation in medical procedure counts and costs but that some models utilize resources better than others, achieving greater (or similar) legal defensibility at lower cost.

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Erin M. Carr (Seattle University School of Law) has posted Nothing to See Here: Judicial Sanewashing and the Obfuscation of Constitutional Disorder (Review of Law and Social Justice) on SSRN.  Here is the abstract:

Less than two years after critics cautioned of the dystopian results of “sanewashing” Donald Trump’s incoherent and factually untethered public pronouncements during the 2024 presidential elections, the country’s political and legal landscape has become unrecognizable. The federal government is engaged in a coordinated campaign of racial and ethnic profiling, endorsed by the Supreme Court. Paramilitary government forces of masked men openly hunt immigrants and terrorize American cities. Public executions of unarmed citizens, captured on video for all to see, are refuted by government officials as legally justifiable and entitled to absolute immunity. The notion that we are a nation of laws, rather than of men, is increasingly difficult to defend.

The question is, how did we arrive here? How did basic due process protections, the rule of law, and an established system of checks and balances crumble so quickly and so spectacularly? The answer to that question is “judicial sanewashing.” We need only look to the Roberts Court and its sanewashed treatment of law and facts to see how the United States evolved from a nation of laws into a sanewashed system predicated on legal, political, and factual distortions.

This article builds on an earlier piece examining the concept of “judicial sanewashing,” a term used to describe a growing phenomenon in which the Roberts Court relies on contrived interpretive methods and legal standards to radically rewrite the law and distort the true effects of its judicial decisions. Building upon the theoretical and taxonomical foundation set out in the first article, I now attempt to concretize the concept by examining the effects of judicial sanewashing techniques across several discrete but interrelated (and far from exhaustive) areas of the Supreme Court’s sanewashed jurisprudence. This article examines the effects of judicial sanewashing, drawing upon case illustrations from the Court’s rapidly evolving jurisprudence with respect to the weakening of political and civil rights for disfavored groups, the erosion of separation of powers, and the expansion of executive power under the Trump regime. In this article, I also explore the particularly destructive convergence of sanewashing, whitewashing, and mansplaining.

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