Ethan J. Leib's research while affiliated with University of Tulsa and other places

Publications (64)

Article
How, if at all, do motives matter to loyalty? We have argued that loyalty (and the duty of loyalty in fiduciary law) has a cognitive dimension. This kind of “cognitivist” account invites the counterargument that, because most commercial fiduciary relationships involve financial considerations, purity of motive cannot be central to loyalty in the fi...
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Cambridge Core - Jurisprudence - Fiduciary Government - edited by Evan J. Criddle
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What has happened to contract since Grant Gilmore famously pronounced it dead in 1974? This Article points a way past theoretical paralysis caused by the perplexing mismatch between doctrine devised for living and breathing contracts, and behaviors of courts and contracting parties produced by what we refer to as "zombie exchange." "Zombie contract...
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“Fiduciary political theory” is a burgeoning intellectual project that uses fiduciary principles to analyze public law. This Essay provides a framework for assessing the usefulness and limitations of fiduciary political theory. Our thesis is that fiduciary principles can be fruitfully applied to many domains of public law. However, other domains ar...
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There are significant domains of legality within the administrative state that are mostly immune from judicial review and have mostly escaped the attention of legal theorists. Although administrative law generally focuses on the products of agency action as they are reviewed by the judiciary, there are important aspects of regulatory activity that...
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This essay investigates the structure of fiduciary obligations, specifically the obligation of loyalty. Fiduciary obligations differ from promissory obligations with respect to the possibility of “accidental compliance.” Promissory obligations can be satisfied through behavior that conforms to a promise, even if that behavior is done for inappropri...
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Reforming Democracies: Six Facts About Politics That Demand a New Agenda. By ChalmersDouglas A.. New York: Columbia University Press, 2013. 192p. $29.50. - Volume 12 Issue 1 - Ethan J. Leib
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Because public office is a public trust, fiduciary architecture can help orient us in figuring out how political power should be exercised legitimately. Part of the appeal of conceiving the political relationship between representative and represented in fiduciary terms is that it regards politics in more realistic and textured ways — as a constell...
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This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (su...
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The voting levers in candidate elections and in direct democracy elections are identical. The political obligations that bind the citizens that pull them are not. This Essay argues that voters in direct democracy elections, unlike their counterparts in candidate elections, serve as representatives of the people and are, accordingly, bound by the et...
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This paper argues for more attention to citizens’ point of contact with our legal system within local courts – and makes an effort to conceptualize local judges as parts of local governments. Once the paper highlights the role of local courts within the constellation of local government, it offers an argument for why certain forms of "localist judg...
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Full-text available
This paper reports on the state of contracts scholarship in the United States, utilizing two methods of approximating where scholarship has focused since 2007 and where it is headed in the future.
Article
Too often popular political power – whether it is in the form of direct democracy or other more innovative forays in participatory or deliberative democracy – presents itself as a counterweight to the political power parties wield. Yet setting up “popular democracy” and “party democracy” in opposition to one another in the American political landsc...
Article
For centuries, legal theorists and political philosophers have unsuccessfully sought a unified theory of judging able to account for the diverse, and oftentimes conflicting, responsibilities judges possess. How do we reconcile the call of judicial independence — a function of a judge’s obligation to uphold the rule of law — with that of judicial re...
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Deliberative democrats have expended most of their efforts mapping what deliberation should look like at two different levels of decision-making: the deliberation among citizens themselves in exercises of direct and participatory democracy – and the deliberation among legislators or other official actors within the organs of state government. Altho...
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Recent work on “fiduciary representation” has opened up a useful avenue for understanding how state leaders should navigate their representative roles in democratic political systems and for specifying the ethical duties that come with political office. Political theorists throughout the ages have generally thought of the democratic representative...
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It is probably the case that after Prop. 8 few people think of California as at the frontier of civil rights in this country. Professor HoSang's book helpfully reminds us that this is not news but a pattern. This review essay analyzes HoSang's historical lens into that pattern: that California's repeat performances can be traced to "racial liberali...
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This paper examines how respondents in the United States would perceive hypothetical wrongs perpetrated against them by an acquaintance, co-worker, or good friend – and whether and when respondents might turn to law to resolve these disputes. We seek to ascertain whether relational context makes any difference in people’s perceptions of the nature...
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Finding methodological consensus for statutory interpretation cases is all the rage these days. Some in the academy sing the praises of a singular judicial approach to questions of statutory interpretation and bemoan the frustrations associated with judges implementing a mélange of interpretive techniques. And now, thanks to Abbe Gluck’s magisteria...
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In our recent book, Privilege or Punish: Criminal Justice and the Challenge of Family Ties (OUP 2009), we examined and critiqued a number of ways in which the criminal justice system uses family status to distribute benefits or burdens to defendants. In their review essays, Professors Alafair Burke, Alice Ristroph & Melissa Murray identify a series...
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Last year, we published a book entitled Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford 2009). Recently, the New Criminal Law Review published a series of provocative and challenging reviews of this book by Professors Doug Berman, Naomi Cahn, and Jack Chin. Needless to say, we appreciate their very kind words about ou...
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This symposium includes three review essays by Professors Doug Berman, Naomi Cahn, and Jack Chin. The review essays are focused on a recent book by Professors Dan Markel, Jennifer M. Collins and Ethan J. Leib entitled 'Privilege or Punish: Criminal Justice and the Challenge of Family Ties' (Oxford 2009). You can download the entire book for free at...
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Full-text available
This Article addresses a series of situations in which the exercise of police discretion, while passing current constitutional thresholds, seems unfair and unforeseeable. We call this problem "inequitable enforcement." Current constitutional review of police action assesses all stops, searches, and arrests—regardless of how minor the offense— by fo...
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This book answers two basic but under-appreciated questions: first, how does the American criminal justice system address a defendant's family status? And, second, how should a defendant's family status be recognized, if at all, in a criminal justice system situated within a liberal democracy committed to egalitarian principles of non-discriminatio...
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This article aims to give the relational theory of contract some new life, sharpening some of its claims against its competitors by refracting its theory of relational contracts through an analogy to friendship. In drawing the analogy between friendships and relational contracts and revealing their morphological similarities, I offer a provocative...
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This Response addresses the criticisms of our project by Professors Rick Hills and Michael O'Hear. Before we address those challenges, we first want to reiterate our gratitude to the B.U. Law Review for hosting an exchange based on our article, Punishing Family Status (forthcoming BU LR, December 2008), and to Professors Hills and O'Hear for their...
Article
The Article argues that the law of fiduciary duties provides a good framework for friends to understand their duties to one another better, gives courts a useful set of rhetorical and analytical tools to employ when they are forced to entertain disputes that arise between close friends, and, finally, can help direct courts to furnish betrayed frien...
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This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of "family tie...
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Those focused on the questions surrounding how courts ought to interpret the statutory products of direct democracy pay relatively little attention to the variety of processes that could give rise to such laws. There are two core processes of direct democracy that produce statutes, though the specific mechanics vary in the many states that employ t...
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In this age of renewed interest in comparative constitutionalism and more focused attention on the legal regimes of foreign democracies, it is astonishingly difficult to learn about other countries' jury systems. There is no central, short, and easily-accessible English source to which scholars and policymakers interested in how the criminal jury f...
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This is a book review of two new books that present themselves as critiques of deliberative democracy: Diana C. Mutz's Hearing the Other Side (Cambridge University Press, 2006) and Andrew Perrin's Citizen Speak (University of Chicago Press, 2006).
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John McGinnis and Michael Rappaport have made multiple contributions over the last decade to many important legal and political debates with their careful attention to the design and desirability of supermajoritarian rules in our practices of self-government. But they now go too far. In "A Pragmatic Defense of Originalism," they seek to explain why...
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Hearing the Other Side: Deliberative versus Participatory Democracy. By Diana C. Mutz. New York: Cambridge University Press, 2006. 184p. $60.00 cloth, $20.99 paper. Citizen Speak: The Democratic Imagination in American Life. By Andrew J. Perrin. Chicago: University of Chicago Press, 2006. 208p. $45.00 cloth, $19.00 paper. Deliberative democracy is...
Article
Jean-Jacques Rousseau famously rejected representative democracy. He thought that citizens living under representative political institutions are free, at best, one day a year: Election Day. After casting their ballots, citizens are enslaved—and denuded of the very power and authority that is exercised in their names. Delegation of decision-making...
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It certainly seems like the originalists are winning. Professor Jack Balkin - finding that he couldn't beat 'em - joined them. Living constitutionalists used to turn to Balkin as a reliable advocate; he recently wrote we are all living constitutionalists now. But Balkin has forsaken them. Losing such an important advocate might be a sign that what...
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Every election cycle a great number of citizens take to the polls to vote on public policy matters directly. Direct democracy has problems. And an account of deliberative democracy — far from being a source to critique direct democracy — might provide a solution. I have three goals in this short Essay. First, I hope to identify some problems with t...
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This Article asks two basic questions: When does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwiths...
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This Article's central argument is that the law needs to do a better job of recognizing, protecting, respecting, and promoting friendships. The law gives pride of place to other statuses - family and special professional relationships are obvious ones - but the status of the friend is rarely relevant to legal decision-making and public policy-makin...
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Participatory and deliberative democrats are increasingly relying on groups of "lay" citizens to have a direct hand in policy formation and consultation. However, these theorists have not adequately addressed how these "citizen representatives" should be selected and how their activities can be truly deemed "representative". We find these lacunae u...
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Linking choice with responsibility is a seduction our voluntarist society often cannot resist. We generally wish to hold people responsible in our tort and criminal law for their free choices - and conceive of responsibility as intimately bound up with personal choice. Samuel Scheffler may have diagnosed why many redistributive forms of liberalism...
Chapter
When I shared with friends that I was going to China to participate in a conference about how to institutionalize forms of deliberative democracy there, most people asked me the same questions: how can you talk about deliberative democracy in China without first talking about democracy more generally? Is it not more important to democratize China i...
Chapter
Full-text available
Western theories of deliberative democracy have developed at a time when many in the West feel that the institutions of liberal democracy have become divorced from the promises of classical democratic theory. As a critique of liberal democracy, deliberative democracy usually presents principles to renew the democratic project and practices to deepe...
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This piece argues for a supermajoritarian decision rule for conviction by a criminal jury and a simple majority decision rule for acquittal. It rejects requiring high degrees of consensus for acquittals above the majority threshold so that we can (1) give due respect to the presumption of innocence, (2) lower the number of hung juries, and (3) ince...
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This short piece exposes a central shortcoming of all general theories of contract that purport to be comprehensive and descriptive: they tend to exclude whole types of contracts to make their theories fit. As the essay explains, there are contracts between individuals (Type (1)), between organizations (Type (3)), and between individuals and organi...
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This article attempts to argue - contra Danforth and Casey - for a man's right to participate in the abortion decision and provides some legal mechanisms to implement such a right.
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A case recently decided by a three-judge panel in the Southern District of New York, Rodriguez v. Pataki, where plaintiffs challenge the 2002 New York State Senate redistricting plan, presents a new kind of redistricting dilemma. Rodriguez raises the issue of what to do about bizarrely-shaped white districts that are constructed or preserved using...
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The feast of the republican revival in the law reviews is long over, and one is more likely to encounter a commemorative symposium upon the anniversary of its death than a celebration of its continued vitality in legal scholarship. But this article mines the republican discourse for its oversights. Investigation into its relationship with the Guara...
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Frustrated by the failure of theorists of deliberative democracy to envision concrete institutional design proposals that the theory recommends, the author proposes a fourth branch of government called the Popular Branch. The Article recommends replacement of the initiative and referendum processes with deliberative assemblies, where stratified ran...
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There is a certain intimacy in the morning ritual at home. Grinding the beans and pouring that first cup of coffee leads to a few minutes sitting at the breakfast table with my partner and children. We plan the day's drop-offs and pick-ups, and talk about what is going to happen at school, what we will bring for show-and-tell this week or next. Aft...
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This is an essay reviewing Kwame Anthony Appiah's recent book, Cosmopolitanism (Norton 2006).

Citations

... Additionally, some of the advantages of interdisciplinary research that this method hopes to benefit from include some logistical advantages such as a wider audience and other, loftier goals such as possibly more 'normative' conclusions, which might be more well-rounded and humane and consider "trade-offs" and "principles" (including ethical concerns) [30]. Also, writing for a larger, multi-disciplinary audience not only encourages more productive solutions that may not have occurred otherwise, but also provides a close textual study that is qualitative and holistic. ...
... Using a case study of state-led participatory planning in Egypt, I explore how such deliberative processes can be shaped by power in political settings which are only formally democratic, and in which 'participation' is a largely unfamiliar activity. Prompted by this empirical material the paper also aims to contribute to theorising about deliberative democracy, sharing with He and Leib (He, 2006;He & Leib, 2006) the goal of confronting concepts largely developed in liberal democracies with questions arising from very different political contexts-a confrontation which raises issues about the possible functions of deliberation in relation to democracy and democratisation. legitimate, more reasonable, more informed, more effective, and more politically viable' (Warren, 2007, p. 272). ...
... Further, some scholars have identified civil-society organizations as integral to nurturing deliberation under authoritarianism. According to Leib (2006), "nongovernmental institutions" in authoritarian states such as China contribute to policy deliberation in part by "filtering information" about issues and policies and then basing their policy-debate interventions on such information (pp. 123-124). ...
... The second point is that "privacy" is a word that has many meanings, and it is important to distinguish between the types of privacy that we aim to protect (see e.g. Solove's taxonomy of privacy [Solove, 2006]). Our goal is to quantify informational privacy-that is, how much information about a protected individual can be deduced from the output of an analysis. ...
... It appears that today there is no longer any disagreement about the need to teach legislation courses in American law schools (Newton 2012), to the extent that supporters of studying the judicial process are envying the state of education about legislation (Shannon 2016). Today, the debate turned to questions such as whether legislation should be an elective course or a mandatory first-year course (as roughly 40 law schools, including Harvard, NYU and Michigan, have already decided to do) (Brudney 2015;Leib 2008;Gluck 2015); and whether the basic course should focus exclusively on legislation or on legislation and regulation (Manning & Stephenson 2015;Gluck 2015). 6 To be sure, many legislation scholars and teachers would probably argue that much more should still be done, and that the picture should not be painted in excessively bright colors. ...
... For decades, a lack of access to the institution of marriage prevented gay and lesbian individuals and couples from exercising fully recognized and sanctioned parentage (Wolfson, 2007). When the U.S. Supreme Court decision in Obergefell v. Hodges (2015) extended marriage rights to same-sex couples across the country, the civil rights landscape for gay and lesbian citizens changed (Huntington, 2015;Leib, 2015). The ramifications of the Obergefell decision extend beyond marriage to influence parenting rights for same-sex couples by changing the interpretation and application of family law related to queer parenting issues and moving toward greater equity in the treatment of different-sex and same-sex parenting couples (Lenhardt, 2015;NeJaime, 2016). ...
... Because both citizens and officials are vulnerable to the Trustee court's judgments, the judges are bound by a set of robust obligations. The most important of these fiduciary dutiestypically formalised as (i) loyalty, (ii) accountability, and (iii) deliberative engagement -apply to the trustee judge (Leib, Ponet and Serota 2013;Stone Sweet and Brunell 2013). As Leib et al. (2013) argue, loyalty refers to the judge's duty to protect rights in ways that ensure that public officials act in accordance with the UPR. ...
... XI ch. 6;Rousseau, 1968, p. III.i.7;Criddle, 2017;Criddle & Fox-Decent, 2016;Fox-Decent, 2005Leib & Ponet, 2012). When exercising powers, government agents are bound by a duty of loyalty to act in the public interest in good faith, as they understand it, even if false, and a duty of care to do so diligently and competently. ...
... Populist democracy conforms the 'standard story [that] popular democracy is fundamentally as odds with party-based representative democracy'. 21 In effect, populism brings to surface a contradiction that has belaboured representative government since its inception in the 18th century: the distrust of parties as repositories of prejudices to be eradicated. Representative politics was born in the tradition of Jean-Jacques Rousseau, with the assumption of a predeliberative general interest that unifies the people, 'generates new and powerful sources of anti-partisanship, rooted in the idea that the entire society can escape partisanship -or, put differently, can be enlightened'. ...
... According to the theory, the legitimacy of democratic decisions can be enhanced if such decisions are preceded by deliberation that is as free as possible from bias and unequal power relations among deliberators (Held, 1992). Deliberative Democrats are divided into those focusing on reflection within political elites and those with a more populist orientation and engage in debates among lay citizens (Ponet and Leib, 2011). In Europe, there are historical cases where populist-oriented elite become effective (direct or indirect) promoters of populist tendencies in society (especially the model of direct democracy is very useful for such tendencies). ...