LAW, NORMS & INFORMAL ORDER eJOURNAL

"While They Waited: Pre- Obergefell Lives and the Law of Nonmarriage" Free Download
Yale Law Journal Forum, Vol. 129, p. 1, July 2019

MICHAEL J. HIGDON, University of Tennessee College of Law
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In the wake of Obergefell, the United States now has a large class of married, same-sex couples whose relationships began at a time when marriage was unavailable to them. The law must therefore wrestle with the question whether any portion of a pre-Obergefell relationship should count toward the length of the ensuing marriage — an important question given the number of marital benefits tied directly to this calculation. As courts and legislators alike wrestle with this difficult question, they will need to examine how these couples ordered their relationships during a time when “nonmarriage? was the only option. This Essay argues that such an examination provides a unique opportunity for the law to not only move toward true marriage equality, but also reconsider its overall approach to nonmarriage in general. Specifically, this Essay identifies three lessons that can be gleaned from same-sex couples whose relationships spanned both sides of the marriage equality movement. It argues that each of these lessons can help us craft greater protections for nonmarital relationships.

"Legal Systems, Intentionality, and a Functional Explanation of Law" Free Download
Jurisprudence 10(2) 2019, pp. 229-236

LUKA BURAZIN, University of Zagreb, Faculty of Law
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One of the main questions raised by Ken Ehrenberg's book The Functions of Law (OUP, 2016) is how to remain a legal positivist and still adhere to the view that law should best be understood in terms of its ends or functions. Ehrenberg illuminatingly provides answers to both sides of the question by exposing his ontological understanding of law, claiming that law is best understood as a genre or kind of institutionalised abstract artifact. While I in general agree with Ehrenberg's analysis of the artifactual and institutional character of law and share a great many ideas he elaborated in the book, I still have some doubts and reservations regarding some of the particulars of his theoretical position. For the purpose of this comment, I will limit myself to three points. The first regards Ehrenberg's identification of the object of inquiry and the possibility of making ontological inferences from individual laws to law as a type (genre or kind). The second concerns his explanation of the artifactual character of customary laws and his general view on the form and degree of intentionality required for the artifact to be brought into existence. The third refers to the methodology he advocates for getting to the general notion of laws' functions and his characterization of law's function stemming from law's artifactual and institutional character.

"Reliance on Executive Constitutional Interpretation" Free Download
Boston University Law Review, Vol. 100, 2020, Forthcoming

ZACHARY PRICE, University of California Hastings College of the Law
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Federal executive officials routinely authorize government personnel to violate otherwise applicable laws based on contestable constitutional interpretations. This practice raises an important and unresolved question, one that arose in connection with George W. Bush Administration interrogation practices and could easily arise again: What legal effect, if any, should internal executive guidance on constitutional questions have in subsequent civil or criminal litigation against officials who relied on it?

This article offers a needed systematic analysis of this question. Building on existing case law in related areas, it argues that any sound reliance defense in this area must balance three competing constitutional considerations: (1) a fairness principle, reflecting the intuitive unfairness of penalizing officials who relied in good faith on internally authoritative legal guidance; (2) an anti-suspending principle, reflecting separation-of-powers limitations on the executive branch’s authority to eliminate or disregard applicable statutory constraints; and (3) a departmentalism principle, reflecting the longstanding assumption that the executive branch holds at least some authority to interpret the Constitution independently from courts in performing executive functions. Contrary to past accounts, which have tended to argue categorically against or in favor of a general reliance defense, properly balancing these competing considerations should yield a set of calibrated reliance defenses that vary according to the nature of the executive determination and the character of the litigation.

"Pufendorf's Secular Ethics" Free Download

DOUG MAGENDANZ, Independent
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This paper provides a preliminary assessment the role of law and power in Samuel Pufendorf’s secular ethics. Pufendorf designed his ethics for “this life?, and grounded morality within a geometric network of obligations that connected the sovereign to the actors of the sovereign’s office. One of the most interesting aspects of Pufendorf’s ethics is how he links freedom and power. We are totally free in the state of nature, yet powerless. We have power as citizens, but limited freedom. Comparison is made with the political ethics of John Rawls.

"Insights From the Historical German Codification Debate With Relevance for the Development of a Uniform Civil Code for India" Free Download
Wulf, A. J. "Insights from the German Codification Debate between Thibaut and Savigny for a Uniform Indian Civil Code", Journal of the Indian Law Institute, 60, 2018 (2), 121-136.

ALEXANDER J. WULF, SRH Hochschule Berlin
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In this essay I present a summary of the historical German Codification debate between Thibaut and Savigny and discuss its relevance for the development of a Uniform Civil Code for India. In the nineteenth century the German jurists Thibaut and Savigny conducted a debate on the need for a common civil code for all German states. In this historical debate the problems inherent in drafting a civil code were addressed. While Thibaut suggested that a legislative assembly could formulate the civil code by applying democratic-like voting procedures, Savigny argued that this attempt was doomed to failure. In their debate the two opponents disagreed mainly about the nature and foundations of the law. My aim here is to investigate whether we can gain insights from (the study of) this historical German debate that are also relevant for the ongoing discussion on the Uniform Civil Code in India. Drawing comparisons between the historical and modern legal debates has already been fruitful in other contexts such as the debate on a European contract law and a European civil code. I argue that as in the historical German example, different conceptions of the law may also be relevant in today's debate on the Indian Uniform Civil Code, namely a positivistic conception of the law and a historical, i.e. organic conception of the law. Recognizing these different understandings of what law is and how it is brought about may therefore help to reconcile the opposing sides.

"Should Public Figures Apologize? Preliminary Evidence and Speculations" Free Download

CASS R. SUNSTEIN, Harvard Law School, Harvard University - Harvard Kennedy School (HKS)
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In the modern era, the statements and actions of public figures are scrutinized with great care, and it often emerges that they have said or done things that many people consider objectionable, hurtful, offensive, or despicable. A persistent question is whether public figures should apologize for those statements or actions. Suppose that an apology has a purely strategic motivation: helping a politician to be elected or reelected, helping an executive to keep his job, helping a nominee to be confirmed by the U.S. Senate. Empirical work presented here suggests that an apology might well turn out to be futile or even counterproductive. One reason is Bayesian; an apology produces updating that can be unfavorable to the apologizer (by, for example, resolving doubts about whether the apologizer actually said or did the objectionable thing, and about whether what the apologizer did was actually objectionable). Another reason is behavioral; an apology triggers the public’s attention, makes the public figure’s wrongdoing more salient, and can help define him or her. But many open questions remain about the reasons why apologies by public figures fail, and about the circumstances in which they might turn out to be effective.

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About this eJournal

This eJournal distributes working and accepted paper abstracts concerning the interaction of formal and informal order. Topics include social and group norms, conventions, customs, customary law, folk law, legal pluralism, private organizational rules, civil society, self-enforcing contracts, informal sanctions (such as gossip, shame, and guilt), self-help (including feuds), and the origins of law and legal institutions.

Editor: Richard H. McAdams, University of Chicago

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Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

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Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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Advisory Board

Law, Norms & Informal Order eJournal

LISA E. BERNSTEIN
Wilson-Dickinson Professor of Law, University of Chicago - Law School, University of Oxford - Centre for Corporate Reputation

JOHN BRAITHWAITE
School of Regulation & Global Governance (RegNet)

ROBERT C. ELLICKSON
Walter E. Meyer Professor of Property and Urban Law, Yale Law School

SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology

DAN M. KAHAN
Elizabeth K. Dollard Professor of Law & Professor of Psychology, Yale University - Law School

PAUL G. MAHONEY
David and Mary Harrison Distinguished Professor, University of Virginia School of Law

PHILIP N. PETTIT
L.S. Rockefeller University Professor of Human Values, Princeton University, Australian National University (ANU) - Research School of Social Sciences (RSSS)

ERIC A. POSNER
Kirkland and Ellis Professor of Law, University of Chicago - Law School

ERIC BENNETT RASMUSEN
Dan and Catherine M. Dalton Professor, Indiana University - Kelley School of Business - Department of Business Economics & Public Policy

CHRIS WILLIAM SANCHIRICO
Samuel A. Blank Professor of Law, Business, and Public Policy, University of Pennsylvania Law School, University of Pennsylvania Wharton School - Business Economics and Public Policy Department

STEVEN SHAVELL
Director, John M. Olin Center for Law, Economics, and Business, Samuel R. Rosenthal Professor of Law and Economics, Harvard Law School, National Bureau of Economic Research (NBER)

THOMAS S. ULEN
Swanlund Chair, Director, Illinois Program in Law and Economics, University of Illinois College of Law

JAMES Q. WHITMAN
Ford Foundation Professor of Comparative and Foreign Law, Yale Law School