The Role of the Jurist: Reflections around Radbruch

Many different kinds of professionals work with law, but often they seek to use law for particular governmental or private purposes, they focus on some specific areas or aspects of its creation, interpretation or application, or they study it for its interest judged by criteria that are given by fields of scholarly practice outside it. Is there a special significance for a role exclusively concerned with analysing, protecting and enhancing the general well‐being or worth of law as a practical idea? This article argues that such a role is important. Building on Gustav Radbruch's juristic thought, it asks how that role could be elaborated and how a professional responsibility for discharging it might be envisaged. Many professionals concerned with law adopt such a role incidentally or intermittently, but it needs more prominence and clear demarcation. The article suggests that it might be seen as the specialised role of the jurist, treated as a particular kind of legal professional. The term “jurist” would then have not just an honorific connotation. It would indicate a Weberian “pure” type that may approximate some current understandings of “juristic” practice; but it would also identify a normative ideal—something intrinsically valuable. Seen in this way, the jurist is one who assumes a certain unique responsibility for law.     

Case Baiting

In 2014, New Jersey passed the Sports Wagering Act, permitting sports betting at state casino and racetrack venues, in direct conflict with the federal Professional and Amateur Sports Protection Act. In 2017, South Dakota passed Senate Bill 106, requiring that certain e-commerce retailers collect and remit sales tax, in violation of federal law. The two U.S. Supreme Court decisions arising from challenges to these state statutes—South Dakota v. Wayfair and Murphy v. NCAA—exemplify U.S. Supreme Court “case baiting.” Case baiting is a tactic states implement to challenge federal directives by passing state legislation that directly conflicts with federal law to lure the Court into granting certiorari and ruling in their favor. This article argues that South Dakota's and New Jersey's triumphs pave the way for other jurisdictions to pursue similar strategies across multiple legal issues such as abortion restrictions and immigration law. In addition, this article suggests that case baiting invites further scholarly exploration of important policy considerations, including the use of this tactic as a novel approach to the application of law and strategy, whether case baiting promotes the Court's progression toward a more quasi-legislative role, and whether passing conflict legislation violates state legislators’ oaths of office.     

Tax Fraud and Selective Law Enforcement

This article presents a new conceptual framework for research into tax fraud and law enforcement. Informed by research approaches from across tax law, public economics, criminology, criminal justice, economics of crime, and regulatory theory, it assesses the effectiveness, and the legitimacy, of current approaches to combating tax fraud, bringing new dimensions to previously identified trends in crime control. It argues that, whilst the last decade has witnessed a significant intensification of measures that purportedly target tax fraud, preference has been consistently given to enforcement measures that maximize revenue gains rather than combat the fraud itself, even where the effect is to aggravate the non-revenue costs of tax fraud. These developments demonstrate a significant shift from tax fraud suppression to tax fraud management. The article concludes that this shift not only undermines tax equity and overall tax compliance, but also leads to selective tax enforcement, thus representing a significant risk to the rule of law.     

Public Rewards and Innovation Policy: Lessons from the Eighteenth and Early Nineteenth Centuries

There has been renewed interest in recent years in using prizes and rewards to promote innovation. History has played a central role in public debates in the UK about the merits of such interventions, with the Longitude Prize 2014 being self‐consciously modelled on its eighteenth century precursor. Similarly, historical case studies have been used extensively in the scholarly literature in this area. However, it is striking that there has been little engagement with parliament's role generally in rewarding inventors in the eighteenth and early nineteenth centuries and how this formed part of a broader system of rewards. The article explores how this system operated and demonstrates that it formed an established part of the legal landscape for many decades. It considers the extent to which a more complete understanding of the historical use of prizes and rewards during the key period of Britain's industrialisation might inform current debates.     

The Middlemen: The Legal Profession,the Rule of Law,and Authoritarian Regimes

Scholars are increasingly interested in exploring ways to strengthen the rule of law in authoritarian states—especially when deeper political reforms are not attainable. The article contributes to this discussion by revisiting the story of the emergence of the so‐called socialist legality in the communist states of Eastern Europe. Using the historical record from Poland, the author demonstrates a previously unnoticed, yet pivotal, role of legal professionals in facilitating socialist legality's rise to prominence. Using the lenses of Pierre Bourdieu's theory of fields, the article chronicles the evolving dynamic between the legal profession, the authoritarian regime, and society. These observations challenge conventional explanations of the emergence of the rule of law in nondemocratic conditions.     

Ideologies in Law Time: The Oxford History of the Laws of England

In the introduction to the new Oxford History of the Laws of England 1820–1914, the authors suggest that their task is to tell the “history of the law itself.” This review essay examines what can be learned from a history told from law's internal point of view rather than through the perspectives of other disciplines, such as economics or philosophy. It considers whether and how the common law responded to industrialization and laissez‐faire ideology, the influence of salient philosophical movements—such as utilitarianism—on statutory change, and how all history is an exercise in ideology. In considering the public sphere, it suggests that this work should form the inspiration for further inquiry.     

University Third mission in Italy: organization,faculty attitude and academic specialization

In the last decades Third mission of Universities (encompassing Technology and Knowledge Transfer) has come abreast of the two traditional tasks of Universities. Organization of Universities and attitude of researchers in this field still needs to undergo research. The present work provides experimental evidence of the differences existing in such terms between a specialized technological University and a generalist “Humboldtian” one (with particular regards to its scientific departments). The experimental study is performed on two Italian Universities with similar formal structure and external environment, but with different specialization and research/teaching subjects. Two databases—one agent-based, the second institutional-based—are exploited in order to highlight characters. Results show different organization and attitudes. This may be due either to different organization of internal competencies and responsibilities, or to a different historical path of external relations. Results might prove relevant for the organization of Third mission activities with particular regard to Technology Transfer.     

Employment Discrimination Law and Industrial Psychology: Social Science as Social Authority and the Co‐Production of Law and Science

This article combines Monahan and Walker's classification of social facts, social authority, and social frameworks with political‐institutionalism's view of law and science as competing institutional logics to explain how, and with what consequences, employment discrimination law and industrial‐organizational (I‐O) psychology became co‐produced. When social science is incorporated into enforcement of legislative law as social authority—rationale for judicial rule making—law's institutional logic of relying on precedent and reasoning by analogy ensures that social science will have ongoing influence on law's development. By helping set research agendas and providing new professional opportunities, institutionalized legal doctrine shapes social science knowledge. But because of differences in institutional logic, wherein legal cumulation is backward looking whereas scientific cumulation is forward looking, co‐production of law and science may produce institutional mismatch between legal doctrine and scientific knowledge.     

Singapore's Culture War over Section 377A: Through the Lens of Public Choice and Multilingual Research

The 2007 debate over the retention of Singapore's male sodomy law provision set off a vigorous and passionate public debate reminiscent of the US culture war. However, the Singapore government's final decision reflects an interesting compromise. The law was retained, but its moral content was severely curtailed. This article critically examines this episode and explores the political dynamics driving the compromise. Enriching public choice theory on interest group capture, this article argues that the ruling party's political dominance coupled with limited but real political competition is surprisingly effective in aligning the government's position with the preference of the majority despite concerted pressure from well‐mobilized minority interest groups. Current legal scholarly work on this debate has focused on the “vigorous debate” in the English‐language forums. In this article, the examination of the contemporaneous discourse in Chinese and Malay newspapers enables a more accurate and comprehensive appreciation of this culture war episode.     

Rediscovering the public/private divide in EU private law

This article explores the role of the public/private divide within EU private law. It shows that although EU private law cuts across the boundaries of public and private law, the conceptual distinction between these well‐established categories does matter within it and may lead to better law‐making in the EU more generally. The legal grammar of a particular EU harmonisation measure—which can be more “public” or “private”—may have important implications for the position of private parties at national level, for the CJEU's likely activism in this context, and ultimately for the measure's ability to realise its policy goals. Therefore, instead of ignoring the existing differences between public and private law, EU law should explicitly adopt the public/private law language in its discourse, without, however, introducing any sharp divide between these two areas.     

EXPANDING COLLABORATIVE DIVORCE THROUGH THE SOCIAL SCIENCES

Since collaborative law was first proposed, collaborative practitioners have expanded its concepts and methods as it has grown in acceptance by professionals and the public. This article addresses how collaborative law can further expand its theoretical and practical base by drawing from social science perspectives on negotiation, conflict resolution and third‐party interventions. It also explores how collaborative practice draws upon two prevailing models of negotiation, the strategic problem‐solving and the social‐psychological model, and demonstrates how tools from each model can be used at different points in a collaborative case's lifecycle.     

Spatial Frameworks and the Management of Dissent: From Parks to Free Speech Zones

The space in which dissent is performed, and the way that space is used to manage dissent, has generally been understudied in the legal literature. This article examines how spatial frameworks—popular ideas about the importance of space to democracy—have influenced legal decisions about the management of dissent. Three spatial frameworks, Property, Place and Planning, are identified. It is suggested that each framework brings with it assumptions about the value of dissent to society, the use of public space for expressive purposes, and the amount of expressive freedom citizens enjoy in the realization of democracy. Through an examination of the historical transition from Property, through Place, to today's Planning Framework, this article demonstrates how different frameworks have influenced the management of dissent. It concludes by arguing that today's Planning Framework, as played out in the creation of free speech zones, undervalues the importance of dissent to society.     

The History of Genres: Reaching for Reality in Law and Literature

Genres are historical formations; their ability to generate knowledge depends on their interrelationships within a culture. Since law, too, can be viewed as a genre, studies of specific historical relationalities between law and other genres are necessary for law's own history and theory. This essay discusses differentiations between Victorian law and literature, starting out from the recent publication of Ayelet Ben‐Yishai's Common Precedents: The Presentness of the Past in Victorian Law and Fiction (2013), which reveals some of that history. I examine two points: differentiations in legal and literary approaches to probabilistic knowledge, and differentiations in the author functions in law and literature. These differentiations bear multiple implications. I discuss implications for evidence‐law debates about probabilistic evidence, for contract‐law debates about the centrality of autonomy and self‐authorship, and for understandings of legal reasoning itself—the elusive notion of “thinking like a lawyer.”     

The USPTO economics research agenda

This article outlines the creation of the Chief Economist’s Office at the US Patent and Trademark Office in March, 2010, and the publication of the Office’s first economics research agenda. In describing the elements of the research agenda—the role of intellectual property (IP) in economic growth, performance, and employment; IP and technology standards; the economics of trademarks; the economics of United States Patent and Trademark Office initiatives; and IP and the markets for technology—we both review the state of knowledge and outline ongoing initiatives and future possibilities. The article also suggests opportunities for ongoing public–private research collaboration on these issues, particularly between government and academic researchers.     

Equating U.S. Tax Treatment of Dividends and Capital Gains for Foreign Portfolio Investors

The U.S. tax law equates the tax rate on dividends and long‐term capital gains on stock owned by U.S. citizens and residents. However, the taxation of these two types of rewards in the hands of foreign portfolio investors remains dramatically different from each other, with the capital gain being fully exempt. Several reasons support this article's proposal to no longer exempt these gains. Extending finance theory and prior normative tax research, this article argues that foreigners’ portfolio dividends and capital gains should be taxed in the same manner because they are economically equivalent and emanate from the same source. Three recent empirical developments also support repeal of the foreigner's exemption. First, there is now extensive use by U.S. corporations of stock repurchases—which are taxed to selling shareholders as capital gain—as a form of corporate payout that was in the past primarily accomplished through dividends. Second, foreign ownership of U.S. stocks has continued to increase, with an estimated one‐third of these stocks owned by foreigners. Third, the modern tax compliance environment—including aspects of the Foreign Account Tax Compliance Act that apply to foreigners—reduces past congressional and academic concerns about enforcing the taxation of foreigners’ portfolio gains.     

Driving Legislators' Policy Preferences: Constituent Commutes and Gas Taxes

Understanding differential policy costs across constituencies, and how they link to legislators' policy preferences, can facilitate policy changes that solve pressing problems. We examine the role of policy costs on constituents by studying legislator support for taxing gasoline. Analysis of survey responses from US state legislators, as well as of their voting records, shows that legislators whose constituents would be most affected by an increased gas tax—those whose constituents have longer commutes—are more likely to oppose higher gas taxes. Separately estimating the impact of time spent driving to work versus using public transit shows that the effect of commute times comes from those who have long drives, not from those who ride public transit, highlighting how the policy costs to constituents is a major driver in legislators' considerations. We finish the article by discussing the implications of our findings for combating climate change and for understanding policy feedbacks.     

Transportation versus Imprisonment in Eighteenth- and Nineteenth-Century Britain: Penal Power, Liberty, and the State

Existing explanations for historical changes in punishment in Britain have tended to examine the replacement of disorderly prisons and public executions with national penitentiaries from the late eighteenth to the mid‐nineteenth century. Despite their significant contributions to our understanding of how punishments operate in a broader social, political, and economic context, these scholarly accounts have narrowed debate on the mechanisms of penal change to the intentions of penal reformers. This analysis extends this time frame and uses historical data to compare the development of the penitentiary in Britain to its primary, yet less studied, penal substitute, the transportation of felons to America and Australia. In doing so, it provides an alternative explanation for the ascendancy of national penitentiaries. I argue that the development of these penal institutions in Britain was historically made possible by two interdependent sets of changes: (1) changes in the structure and administration of the state's penal apparatus (from decentralized to centralized and patrimonial to bureaucratic); and (2) transformations in popular understandings of the state's power to punish in correspondence with the expansion of a broader and more equal definition of citizenship (democratization). In conclusion, I argue for the value of perspectives on punishment that identify the explicit relationships between state organization and social relations in order to clarify how culture inheres in material conditions to influence specific penal outcomes.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

(Un)Authorized: A Study on the Regulation of Street Vending in Latin America

This article offers an examination of the official rules that participate in the organization of street vending activities in Latin American cities. It does so by explaining the legal assemblages that serve to define how, where, and by whom certain Latin American public spaces may be occupied, and by empirically illustrating the way in which the legal status of street vendors—that is, whether or not they are willing or able to get official recognition to work in these public spaces—affects the way they use and occupy the urban landscape. The information gathered here suggests that securing access to official permission to work on the streets does significantly affect vendors' locations as well as their working modalities. The subsequent analysis also illustrates a significant relationship between vendors' legal status and specific interactions with urban authorities and other actors. These findings suggest that, although law cannot prevent the unauthorized occupation of public spaces for commercial purposes, it could certainty avert the reproduction of other illegal practices and, perhaps most importantly, protect the urban poor from the vulnerability they face before state and nonstate violence.     

Interpreters of International Economic Law: Corporations and Bureaucrats in Contest over Chile's Nutrition Label

This article analyzes the everyday interpretive practices of corporations and bureaucrats that shape the meaning and force of international economic law. To understand how common practices such as public consultation submissions, corporate threat letters, and external legal assistance influence regulators' understanding of their “legally available” policy space, we study the contested introduction of a pioneering nutrition labeling regulation in Chile. The transnational food industry powerfully challenged the regulation's legality under World Trade Organization law. But Chilean health bureaucrats, in coordination with segments of the country's legally highly competent economic bureaucracy, effectively defended the legality of their proposed regulatory measure. Drawing on data from freedom-of-information requests and in-depth interviews, the article argues that the outcomes of such interpretive contests are substantially shaped by participants' knowledge of the entitlements created by international economic law and thus by the international legal expertise they have access to. This often but not always puts transnational corporations at an advantage over national regulators in the strategic interpretation of international economic law.