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Historical Analogy and the Role Morality of Reason-Giving
Get PDFThe Supreme Court has turned ever more to analogical reasoning from history and tradition to decide significant matters of public policy. Nowhere is this phenomenon more evident than in the Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen.
The Court’s crafting of a Second Amendment test that turns almost entirely on the strength of analogies—and on a topic of such intense public salience—has thrust analogical reasoning to the forefront of judicial and academic debate. While many have questioned the workability of Bruen’s focus on historical analogs, this Essay is less concerned about the pragmatics of Bruen and more focused on the ethical implications of this type of reasoning. In sum, if the Supreme Court is going to decide constitutional cases through historical analogies, it should do so in a way that is functional as law and is intelligible to the three hundred million people for whom it rules.
After outlining the role morality of reason-giving by judicial officers in our system of judicial review, this Essay provides an overview of the psychology of reasoning by analogy by both lawyers and lay persons and the role of generality, systematicity, and rules of relevance in constructing such analogies.
It then identifies three hazards confronting courts attempting to apply Bruen’s analogical method: reliance on surface rather than structural similarities; analogs that lack any stable or discernable rule of relevance; and finally, use of analogs so unmoored from public intuition and experience that they appear unreasonable or contrived.
Using Second Amendment litigation as an example, the Essay concludes by showing how the Court can articulate a system of analogical reasoning from history and tradition that avoids these pitfalls and is consonant with the role morality of judicial officers who must offer intelligible legal reasons for their decisions
Democratizing Administrative Law
Get PDFWhen agencies make statements about the law, people listen. This insight yields a fundamental tension. According to one set of views, such agency statements, and their ability to influence public behavior, are critical not only for a well-functioning bureaucracy but also for our entire system of government. According to another set of views, this agency power, if left unchecked, could border on tyranny.
Administrative law responds to this tension through an extensive, purportedly comprehensive, framework that attempts to police agency statements. The framework places different types of agency statements into different legal categories. On the one hand, legislative rules make new binding law. On the other hand, less formal guidance (including interpretive rules and policy statements) offers an agency’s interpretive or policy positions about the law. Scholars and courts have long debated the categorization effort as well as what legal consequences flow from it.
This Article identifies a striking gap in this categorization framework. As a critical part of their service to the general public, agencies often simply explain the law. Although such explanations are central to agency interactions with the public, the intricate administrative law framework that applies to agency statements fails to capture such explanations. Agency explanations of the law could be seen as a subset of existing categories of agency statements (such as “legislative rules,” “interpretive rules,” or “policy statements”), but agency explanations do not fit comfortably into any of these categories. All of these regimes assume that agencies are communicating what the law is or what agencies believe it to be. But when agencies provide such explanations to the public, they often present the law as simpler than it is or what agencies believe it to be.
We argue that administrative law’s failure to address communications between agencies and the general public reflects a broader “democracy deficit.” Administrative law fails to ensure that agency communications with the general public occur in ways that are consistent with essential features of democratic governance, such as transparency, public scrutiny, and debate. In contrast, when sophisticated parties and industry insiders engage with agencies regarding formal guidance, there are ample protections to engender agency transparency and provide affected parties with opportunities to contribute to the guidance.
After identifying the democracy deficit in administrative law, we propose a framework for infusing agency communications with the general public with the same administrative law and democratic values as those that apply in interactions between agencies and sophisticated parties. These reforms would encourage public participation in drafting and issuing agency explanations of the law, provide opportunities to challenge published agency explanations, and allow members of the public to rely on certain agency explanations and to bind the agencies to follow these statements in enforcing the law. We also identify the types of agency communications with the public that most urgently need reform
Can ChatGPT Keep a Secret? An Evaluation of the Applicability and Suitability of Trade Secrecy Protection for AI-Generated Inventions
Get PDFThe rising popularity of generative artificial intelligence has sparked questions around whether AI-generated inventions and works can be protected under current intellectual property regimes, and if so, how. Guidance from the U.S. Copyright Office and recent court cases shed some light on the applicability of copyright and patent protection to AI-generated products; namely “authors” and “inventors” are limited to natural persons. But further developments in copyright and patent law are still lagging behind generative-AI’s rapid growth. Trade secrecy emerges as the most viable path forward to protect AI-generated works and inventions because ownership of trade secrets is not limited to natural persons. But trade secrecy has its drawbacks too, primarily inadequate protection outside of misappropriation. Further, trade secrecy precludes disclosure, which hinders greater scientific development and progress. This Note examines the suitability and applicability of copyright, patent, and trade secret protection for AI-generated outputs and proposes alternative protection schemes
The Adult Rights-Bearing Archetype and How It Stifles Young People\u27s Equal Protection
Get PDFAmerican constitutional law is defined by a rights-bearing archetype that prioritizes adults—and the Equal Protection Clause is no exception. The Supreme Court has recognized children as constitutional persons and proclaimed that neither the Fourteenth Amendment nor the Bill of Rights is for adults alone, but courts mostly see autonomous, rational, individualistic, income-generating grown people as rights-bearers. For the first time, this article reveals six adult-rights-bearing analytical traps that limit children\u27s equal protection, and proposes jettisoning the rigid Carolene Products test in favor of a nascent youth-based framework. Instead of shoehorning children\u27s rights into a web of laws and principles designed for an adult rights-bearing archetype, discrimination against children merits a framework on its own terms. This article concludes by introducing three youth-based paths to heightened scrutiny when laws: (1) use children as a means to create or maintain a caste system; (2) punish children for matters over which they have no control; or (3) erect an insurmountable barrier to children\u27s ability in the political process to remedy large-scale catastrophic harm inflicted upon them, such as the disproportionate injuries to young people from the climate crisis and gun violence. This article lays the groundwork for a children\u27s equality law that both accommodates young people\u27s qualities, characteristics, and needs and provides them equal protection of laws
Made in China, Sued in the U.S.: the Exploitation of Civil Procedure in Cross-Border e-Commerce Trademark Infringement Cases
Get PDFDuring the period of economic resurgence after the subprime mortgage crisis, China became a manufacturing powerhouse, with Amazon playing a pivotal role. Amazon\u27s attractive policies lured Chinese e-commerce sellers to its platform, subsequently drawing many more customers with their competitive pricing. This surge, however, also invited Chinese counterfeiters onto Amazon\u27s platform. Major brands responded by suing those counterfeit sellers for trademark infringement. As most Chinese sellers failed to attend trials, these cases almost always resulted in uncontested wins for the brands, thereby granting them access to the sellers\u27 financial accounts as a means to satisfy the damage claimed. Many U.S. businesses saw this as a lucrative opportunity. They replicated the strategies by bringing suits against numerous Chinese sellers for guaranteed profits. Yet, these cases against Chinese defendants likely possess four procedural flaws: the arguable invalidity of service pursuant to the Hague Convention on the Service Abroad, the questionable jurisdiction of U.S. courts over Chinese sellers, the potential impropriety in joining numerous sellers in one suit, and the inadequate notice for many Chinese sellers
The Line: AI and the Future of Personhood
Get PDFThe line that distinguishes people from animals, systems, and things is getting harder to draw. For all the concern about AI and genetic engineering, there has been surprisingly little discussion of the possible personhood of the new entities this century will bring us: what about their claims to be inside the line, to be us -- not machines or animals but persons -- deserving all the moral and legal respect that any other person has by virtue of their status?https://scholarship.law.duke.edu/faculty_books/1008/thumbnail.jp
Relocating Location Incentives
Get PDFIn recent years, a growing share of state and local budgetary resources has been diverted to a small number of firms through multibillion-dollar location incentive megadeals, as represented by Amazon’s HQ2 search and Wisconsin’s Foxconn boondoggle. These companies have become adept at devising new mechanisms for extracting the public resources of local communities to secure a competition advantage over their market rivals. But legal scholarship has not considered the possibility that dominant firms’ incentive demands might implicate the statutory protections enacted to protect against unfair methods of competition and corporate dominance more broadly. This Article develops a historical, economic, and institutional case for using latent authority under the Federal Trade Commission Act to study the market consequences of inefficient incentive megadeals—and regulate certain anticompetitive practices that cause cognizable harms.
This Article uses location incentive megadeals to explore how federal regulation could help address a classic concern of state and local governance: structural corporate power over local communities. I demonstrate that the populist movement responsible for the enactment of our initial antimonopoly protections was substantially motivated by opposition to the lavish incentives demanded by private railroad companies, from competing towns, during the late nineteenth century. When Congress later strengthened those protections by creating the Federal Trade Commission in 1914, legislators were addressing harms understood to be created by unregulated interstate competition for mobile corporate tax location. Reviewing recent reporting and empirical findings, this Article suggests that contemporary megadeals create harms directly analogous to those of concern to past legislative drafters: to healthy product competition; to consumers of private and public goods; to labor market structure; and to democratic self-governance. Finally, this Article argues that federal market supervision offers various institutional advantages as compared to previous (unsuccessful) attempts to rein in this source of public resource misallocation—accommodating key policy considerations and overcoming the coordination challenges that prevent localities from acting on their own
United States Constitutional Law
No full textUnited States Constitutional Law guides law students, political science students, and engaged citizens through the complexities of U.S. Supreme Court doctrine--and its relationship to constitutional politics--in key areas ranging from federalism and presidential power to equal protection and substantive due process. Rather than approach constitutional law as a static structure or imagine the Supreme Court as acting in isolation from society, the book elaborates and clarifies key constitutional doctrines while also drawing on scholarship in law and political science that relates the doctrines to large social changes such as industrialization, social movements such as civil rights and second-wave feminism, and institutional tensions between governmental actors. Combining legal analysis with historical narrative and sensitivity to political context, the book provides deeper understanding of how constitutional law arises, functions, and changes in a complex, often-divided society. This second edition documents the profound changes in judge-made constitutional law that have occurred in the five years since the first edition was published. Farber and Siegel have written an excellent introduction to American constitutional law and constitutional theory that emphasizes the continual interactions between constitutional law and constitutional politics. Clear, concise, and judicious, this splendid book will interest professors, lawyers, and students alike. --Jack M. Balkin, Yale Law School Dan Farber and Neil Siegel have given us a book on constitutional law that takes law seriously while also taking political science and history seriously. Anyone with an interest in constitutional law will find this book accessible and engaging; experts in the field will learn a lot from it. This is a genuinely impressive achievement. --David A. Strauss, University of Chicago Law School.https://scholarship.law.duke.edu/faculty_books/1029/thumbnail.jp