Law’s Entities: Complexity, Plasticity and Justice

In the early twenty-first century, and looking beyond it, the landscapes of law’s operation are characterised by a growing degree of complexity and pressure. Law is called upon to coordinate relations in a world facing a significant complexities produced by a convergence between bio-technological developments capable of transforming the very conditions of life itself, climate-change pressures and the threat of the collapse of bio-diversity and eco-systems, and intensifying global inter-dependencies deepening vulnerability on a whole set of scales and measures

Constitutional jurisprudence

Justice Markandey Katja (Judge, Supreme Court of India) explains and illustrates the concept of 'constitutional jurisprudence' - as a kind of philosphy of constitutional law, seeking to explain in general terms ideas such as: What is a constitution? What is its purpose? What is its position in the legal system of the country

Reliance Interests in Statutory and Constitutional Interpretation

People and companies rely on public law when they plan their activities; society relies on legal entitlements when it adapts to new technology, economic conditions, and social groups; legislators, administrators, and judges rely on settled law when they pass, implement, and interpret statutes (respectively). Such private, societal, and public “reliance interests” are the “dark matter” of America’s law of interpretation. They underwrite most interpretive doctrine, and their perceived force broadly and deeply affects the application of doctrine. Reliance interests anchor the constitutional bias in favor of interpretive continuity, and they provide guardrails for the leading theories of interpretation-—namely-—textualism or original public meaning, legal processor purposivism, and cost-benefit economic theory. Because reliance interests themselves evolve, they can also provide an orderly process for updating old norms, under whatever the predominant theory of interpretation might be. Nonetheless, reliance interests do not always prevail. In recent statutory and constitutional decisions, the Roberts Court has applied traditional reliance interests selectively-—a signal that the Court is introducing a regime change that may scramble reliance interests as massively as the New Deal and Brown Courts did in the last century. Without a strong electoral endorsement of the emerging new regime, this is risky for an institution whose authority depends on its rule of law credibility, and it is doubtful that the Roberts Court will be as successful in overcoming or resetting reliance interests as the New Deal and Brown Courts

Algorithms and Speech

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance – algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt a limiting conception of the First Amendment, but any nonarbitrary exclusion of algorithm-based decisions would require major changes in the Court’s jurisprudence. I believe that First Amendment coverage of algorithm-based decisions is too small a step to justify such changes. But insofar as we are concerned about the expansiveness of First Amendment coverage, we may want to limit it in two areas of genuine uncertainty: editorial decisions that are neither obvious nor communicated to the reader, and laws that single out speakers but do not regulate their speech. Even with those limitations, however, an enormous and growing amount of activity will be subject to heightened scrutiny absent a fundamental reorientation of First Amendment jurisprudence

From Grutter to Fisher: Is Justice Sandra Day O’Connor’s Legacy in Danger?

[Excerpt] “This paper explores the impact of Justice O’Connor on the Court’s race and education jurisprudence, both in the context of primary through secondary school education and in public universities. Section II outlines Justice O’Connor’s biography and explores several external influences on the Justice. Section III reviews the Court’s race and education jurisprudence prior to Justice O’Connor’s appointment to the Court. Section IV exposes the Court’s jurisprudence in this area during Justice O’Connor’s time on the Court, with an emphasis on those opinions authored by Justice O’Connor. Section V offers an analysis of the aftermath of Justice O’Connor’s race and education jurisprudence, beginning with Section V(A) addressing the state of the law after Justice O’Connor’s majority opinion in Grutter v. Bollinger. Section V(B) discusses the Court’s race and education jurisprudence following Justice O’Connor’s tenure, primarily through an analysis of Parents Involved in Community Schools. Finally, Section V(C) hypothesizes the future of race-conscious decision-making in education and Justice O’Connor’s legacy through the lens of Fisher v. University of Texas at Austin. Section VI concludes this paper.

Algorithms and Speech

One of the central questions in free speech jurisprudence is what activities the First Amendment encompasses. This Article considers that question in the context of an area of increasing importance – algorithm-based decisions. I begin by looking to broadly accepted legal sources, which for the First Amendment means primarily Supreme Court jurisprudence. That jurisprudence provides for very broad First Amendment coverage, and the Court has reinforced that breadth in recent cases. Under the Court’s jurisprudence the First Amendment (and the heightened scrutiny it entails) would apply to many algorithm-based decisions, specifically those entailing substantive communications. We could of course adopt a limiting conception of the First Amendment, but any nonarbitrary exclusion of algorithm-based decisions would require major changes in the Court’s jurisprudence. I believe that First Amendment coverage of algorithm-based decisions is too small a step to justify such changes. But insofar as we are concerned about the expansiveness of First Amendment coverage, we may want to limit it in two areas of genuine uncertainty: editorial decisions that are neither obvious nor communicated to the reader, and laws that single out speakers but do not regulate their speech. Even with those limitations, however, an enormous and growing amount of activity will be subject to heightened scrutiny absent a fundamental reorientation of First Amendment jurisprudence

Closing the Cracks and the Courts: A Comparative Analysis of Debt Collection Regulation in the United Kingdom and the United States

Consumers who borrow from a lender today cannot count on dealing with that same lender later if they default on their debt. In today\u27s world of debt collection, the lender will outsource collection to a thirdparty debt collector, or those consumers\u27 defaulted debt will be bought and sold numerous times for pennies on the dollar until eventually a debt buyer decides to pursue payment. Either way, under the current US debt collection laws and regulations, both third-party debt collectors and debt buyers can act outside the scope of debt collection regulation in the United States, and many will take that opportunity to engage in abusive debt collection practices, including abusing the courts as an enforcement mechanism. Through a comparative analysis of the central statutes and regulations governing debt collectors in the United States and the United Kingdom, this Note finds that the accountability gap for debt collectors in the United States stems from the US statute\u27s narrow scope and sparse restrictions on judicial action by debt collectors. In order to close this accountability gap, the United States should adopt the United Kingdom\u27s broad definition of debt collector and a version of the UK Debt Respite Scheme which allows consumers to delay judicial action by debt collectors

Confucian Virtue Jurisprudence

Virtue jurisprudence is an approach to legal theory that develops the implications of virtue ethics and virtue politics for the law. Recent work on virtue jurisprudence has emphasized a NeoAristotelian approach. This essay develops a virtue jurisprudence in the Confucian tradition. The title of this essay, “Confucian Virtue Jurisprudence,” reflects the central aim of our work, to build a contemporary theory of law that is both virtue-centered and that provides a contemporary reconstruction of the central ideas of the early Confucian intellectual tradition. This essay provides a sketch of our contemporary version of Confucian virtue jurisprudence, including a view of (1) the ends of law, (2) legislation and the judiciary, (3) the nature of law. We shall argue that the highest value of Confucian ethical, political theory is the virtue of citizens and the harmony of society and individuals. From the perspective of the use of evaluative language, the Confucian doctrine of Correcting Names gives us an explanation of the mechanism of internalization of legal rules in terms of the relationship among social norms, law and thick evaluative concepts. This might throw light on our normative understanding of legislation and the judiciary,and it also provides a functional account of the nature of law

The Global Artificial Intelligence Revolution Challenges Patent Eligibility Laws

This Article examines patent eligibility jurisprudence of artificial intelligence in the United States, Europe, France, Japan, and Singapore. It identifies de facto requirements of patent-eligible artificial intelligence. It also examines the adaptability of patent eligibility jurisprudence to adapt with the growth of artificial intelligence

When Choice Itself Hurts the Quality of Life

“When Choice Itself Hurts the Quality of Life” (how the results of choice may be seen as the fault of the chooser), Human Life Review, vol. XLII, No. 4, Fall 2016. For a more extensive analysis, see Her Choice, Her Problem: How Having a Choice Can Diminish Family Solidarity , International Journal of the Jurisprudence of the Family, 2 Intl. J. Jurisprudence Fam. 179 (2011