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• Duncan Hosie, Supreme Court Lawmaking and Clear Error as Characterological Discipline, Highly Recommended

• L. Joe Dunman, Ignoring Religious Sincerity, Highly Recommended

• Jason Mazzone, Waiver of the Seventh Amendment (and Other Constitutional Rights) After SEC v. Jarkesy, Highly Recommended

• Christopher Havasy, Lobbying, Influence, and Political Equality, Recommended

• Katharine Jackson, Participation’s Promise and Peril: Substantive Political Equality and the Administrative State, Recommended

• Nicholas McBride, James Joyce as a Great Irish Christian Jurist, Featured on Legal Theory Blog

• Almas Khan, Metacritique and Black Lives Matter Judicial Opinions, Featured on Legal Theory Blog

• Chantal Mak, The Elephant in the Room: Contract, Tort and Company Law Dimensions of Supply Chain Liability as Fragments of the Reimagination of Companies’ Legal Personhood, Featured on Legal Theory Blog

Duncan Hosie (Stanford Constitutional Law Center) has posted Supreme Court Lawmaking and Clear Error as Characterological Discipline (125 Michigan Law Review, forthcoming 2027) on SSRN. Here is the abstract:

This Article proposes a characterological interpretation of clear error deference as it operates in Supreme Court constitutional lawmaking. It adds a fifth justification to the four on which scholars and judges have rested Rule 52(a)(6)—epistemic competence, structural allocation, systemic efficiency, and public legitimacy—attuned to the domain of an apex court making prospective, binding constitutional rules. Drawing on George Herbert Mead’s concept of the generalized other and Erving Goffman’s rules of deference and demeanor, the Article argues that the Rule functions as a role-orienting idiom in an interrelated system: an institutional practice through which a justice signals regard to others, settles expectations of behavior, and pluralizes inputs to lawmaking. This interpretation is characterological because a justice’s internal commitment to her role within a system built on role relationships triggers the idiom and mediates its content; positive law does neither. Guarding against unitary enunciation of legal rules and unitary management of Article III, the Rule as institutional practice steadies and broadens constitutional lawmaking that must carry authority in a fractious and heterogeneous polity. The act of confronting a record one did not build and displacing the findings of another in a shared system yields three benefits. For the individual justice, the practice enlarges deliberative reasoning by interjecting the presence of other minds at the juncture where the temptation to overreach is greatest. For Article III, it sustains a schema of pluralized, diffuse, and accountable lawmaking power and gives the Court’s pronouncements the social form of authority exercised through role rather than asserted through will. For constitutional law, it sustains the capacity to arbitrate political disagreement by registering and speaking to it. The Article then demonstrates that the Roberts Court has repeatedly violated the Rule so understood. It isolates five injuries, in roughly escalating order: the disruption of the mutualistic teamwork on which functional differentiation within a unified, hierarchical judiciary depends; the loss of doctrinal and public transparency over Court action; the invitation to view the Court as politicizing justice; the undermining of the Court’s own lawmaking authority at the endpoint of totalizing supremacy; and the disintegration of the deference practices that turn a system into a system of law. It concludes by positioning the Rule alongside other deference practices to argue that Article III lawmaking acquires its authority through a complex system of role-mediated judgments that positive law can capture only in part.

Highly Recommended!

L. Joe Dunman (University of Louisville Brandeis School of Law) has posted Ignoring Religious Sincerity on SSRN. Here is the abstract:

Over the past decade and a half, scholars of law and religion have formed a strong consensus in favor of religious sincerity tests in constitutional and statutory claims for accommodation and exemption. These scholars argue that sincerity tests are effective tools for rooting out cynical fakers from true believers and preventing fraudulent claims for special religious privileges. However, this consensus overestimates the reliability of sincerity tests and underappreciates the risk of harm that they pose. In response, this article argues that religious sincerity tests should instead be abandoned, for two reasons. First, the circumstantial evidentiary proxies used by courts to determine religious insincerity are clumsy, unreliable, and poorly attuned to the nature of religious life. They impose secular expectations on believers that most religions do not impose themselves. Second, clumsy sincerity tests risk creating “false negative” results: declaring sincere religious people to be insincere. False negatives not only strip sincere believers of constitutional and statutory protection, but also the dignity of their religious autonomy and identity. In the absence of sincerity tests, courts still have plenty of tools to reject dangerous or impractical religious accommodation and exemption claims. There are other steps to the relevant analysis, such as religiosity, burden, and the balancing of government and employer interests. A finding of sincerity is never dispositive on its own. This article offers numerous examples where courts can rule against religious claimants without concerning themselves at all with sincerity. Without imposing sincerity as a gatekeeper, government can still regulate and employers can still manage, while believers maintain their religious identities and dignity.

Highly Recommended!

Jason Mazzone (University of Illinois College of Law) has posted Waiver of the Seventh Amendment (and Other Constitutional Rights) After SEC v. Jarkesy on SSRN. Here is the abstract:

In a world in which the right to a jury trial is routinely bargained away, SEC v. Jarkesy (2024) is a curious case. In holding that there is a right to a jury trial whenever the SEC brings a securities fraud enforcement action with civil penalties, the Court insisted that juries serve an essential role in our constitutional system. “The SEC’s antifraud provisions replicate common law claims,” Chief Roberts wrote in his majority opinion, “and it is well established that common law claims must be heard by a jury.” That cannot be true. Given the frequency with which the jury right is waived, common law claims (like criminal charges) are routinely not heard by juries. There is no must about it. If, after Jarkesy, the Court’s permissive approach to waiver of trial rights in other contexts simply extends unchanged to civil claims brought by the SEC—or, looking down the road, other federal agencies—there are likely to be very few such claims ever decided by juries. Indeed, there are likely to be few such cases that make it to court at all.

Yet there is some reason to think that with respect to agency actions the Court might be less inclined than it has so far been in other contexts to allow the government to negotiate a waiver of the right to trial. Jarkesy, like Loper Bright Enterprises v. Raimondo, decided the same term, reflects the Court’s broader skepticism of a powerful administrative state and particularly of agencies displacing judicial authority. The Court might, therefore, develop new doctrinal rules—perhaps by drawing upon the doctrine of unconstitutional conditions—which limit the ability of the SEC and other agencies to negotiate waiver of the jury trial right that Jarkesy recognizes, and particularly of waivers that prevent actions that agencies initiate from ever reaching a federal court. In other words, skepticism of agency power might well counteract the Court’s willingness in other contexts to permit negotiated waiver of the right to a jury trial. Jarkesy, then, could be a tipping point.

This essay explores limits the Court might impose on the ability of federal agencies to secure waiver of the right to a jury trial and assesses the implications for agency adjudication, for waiver of trial rights in other contexts, and for waiver of constitutional rights more generally. In so doing, the essay considers Jarkesy’s potential to unsettle or produce a rethinking of longstanding rules that treat certain constitutional rights—including the right to a jury trial—as in the hands of individual rights-holders to exercise or bargain away as they please.

Highly Recommended!

Christopher Havasy (George Washington University Law School) has posted Lobbying, Influence, and Political Equality on SSRN. Here is the abstract:

Public law has become acutely concerned with the relationship between economic and political inequality. One of the central ways in which citizens and organizations translate economic power into political influence is by spending $2 billion every year to lobby agency policymaking. Thus, courts, commentators, and citizens call interest group lobbying improper, unequal, and a threat to democracy.

However, a longstanding problem has frustrated reform. Scholars have been unable to determine when it is actually permissible for interest groups to hold influence in policymaking. This Article tackles this question head-on by examining when interest groups lobbying to influence policymaking in democratic governance is justifiable on political equality grounds. This analysis finds that three variables are central to the justifiability of interest group influence: (a) the type of influence, (b) the reason for influence, and (c) the resources of policy actors.

Perhaps surprisingly, this examination also finds that lobbying can actually improve democratic governance under certain conditions by creating forms of complementary representation to bolster the voice of citizens, groups, and identities in between electoral cycles. This relationship between participation, lobbying, and elections suggests that the public law subfields of administrative law, legislation, and law of democracy have strong underlying theoretical connections.

Nonetheless, reforming interest group lobbying in America presents challenges because our socioeconomic inequalities continue to grow and administrative law scarcely regulates lobbying. But all is not lost. This Article puts its normative findings into conversation with recent social science research to target the most problematic policy situations for reform.

Two methods of reform are proposed: federal courts repurposing recent Supreme Court administrative law caselaw to monitor interest group lobbying, and political institutions implementing institutional design mechanisms to dampen the influence of wealthy groups and uplift those who are often left out of policymaking. While this Article argues that institutional design reforms should be prioritized, the court-based approach presents a non-ideal, second-best method of reform when other institutions are unable or unwilling to improve the political equality of agency policymaking.

Recommended!

Katharine Jackson (University of Cincinnati – College of Law) has posted Participation’s Promise and Peril: Substantive Political Equality and the Administrative State on SSRN. Here is the abstract:

As Blake Emerson observes, “[the] problem of legitimacy has been a central preoccupation of administrative law scholarship for generations.” The distance between citizens and rulemaking bureaucrats has always yawned broadly within the imagination. To bridge the gap between sovereign administrator and individual subject, scholars, regulators and policy entrepreneurs draw from participatory democratic principles as they urge agencies to build more inclusive procedures into their decision-making process. Taken up by the recent Biden administration, public participation was offered as an improvement to and an implicit critique of expert-based technocratic managerialism. Some even suggest that direct democratic participation can provide a treatment to cure broader public distrust in liberal democratic institutions.

Any idea that brings government closer to the people is necessarily appealing. Democracy promises, after all, that citizens will govern themselves. At the same time, pretending that any small part of a populace can speak with the voice of the people lands us in dangerous territory. When presidents claim to speak for the people, they often erase minority interests and insist that laws and constitutions should not bind them. When legislatures claim to speak for the people, they do so over the protests of a populace that holds them in ever more contempt. When lawmakers couch themselves as oracles of the public will, they occlude their own role in setting policy. They imply that they are not autonomous agents implementing contestable value choices, but instead the popular sovereign’s mere messengers. Stated more directly, the gap between ruler and ruled is ineliminable. Pretending otherwise leads to illiberal, undemocratic outcomes. Democracy’s promise of “rule of the people” is a paradox. How unelected members of deliberative bodies might avoid this problem – when leaders elected through a universal voting process cannot – is a conundrum that proponents of public participation have yet to resolve.

In this chapter, I argue that the conundrum is irresolvable. Unlike other objections to participation – its inefficiency, its vulnerability to gaming by well-resourced actors, the rational ignorance or apathy of citizen participants – it cannot be ameliorated through well-designed policy choices. Drawing from recent work by political theorists Nadia Urbinati and Christina Lafont, the chapter explains why ascribing decision-making authority to a bespoke group of citizens is just as anti-democratic as ascribing decision-making authority to a nationally elected president. The reason is this: theories of direct participation draw from the same fallacious “embodiment” theory of representation found in populist political movements. Simply, this model holds that a part can speak and act for the whole because it adequately mirrors the populace itself. It is a relationship of identity, not advocacy, accountability, service, duty, and so on. Just as a populist president claims to speak with the “voice of the people,” a participatory body claims to speak for all – notwithstanding what the actual populace might have to say about it. The inclusion of participatory bodies in administrative decision-making for the sake of democratic legitimacy therefore obscures the autonomous judgments made by the participatory body. It imagines that those judgments are precisely those the rest of the population would make. In Rousseauian terms, it renders sovereign and subject indistinguishable.

Recommended!

Nicholas McBride (University of Cambridge – Faculty of Law) has posted James Joyce as a Great Irish Christian Jurist (in McIlroy (ed), Christianity and the Making of Irish Law: Violence, Virtue and Reason (Routledge, 2025)) on SSRN. Here is the abstract:

This chapter explores how James Joyce used his novels to consider the relationship between justice and mercy at both a divine and secular level. Both Ulysses and Finnegans Wake are centrally concerned to establish the conditions under which human beings (in Ulysses, flawed, and in Finnegans Wake, evil) could be offered mercy by a loving God, while being uneasily aware that such mercy might, and perhaps must, be denied by a just God. The lessons Joyce teaches us as to how justice and mercy might be reconciled have much to teach us when we consider how to reconcile the twin needs to be merciful and just when administering the law.

Featured on Legal Theory Blog

Almas Khan (University of Mississippi – School of Law) has posted Metacritique and Black Lives Matter Judicial Opinions (Law and Critique / Recht und Kritik, edited by Greta Olson et al., 2025, pp. 309–16) on SSRN. Here is the abstract:

This short essay theorizes and analyzes examples of Black Lives Matter judicial opinions.

And from the introduction:

Judge Reeves’s opinion epitomizes a trend in U.S. jurisprudence during the Black Lives Matter era beginning in 2013, with judges using the genre of the judicial opinion not solely to explain and apply the law, but to engage in metacritique. The opinions are a key site to consider how criteria traditionally used to deem judicial opinions canonical have constituted the form as a white space. Black Lives Matter opinions challenge assumptions about the judicial opinion as an authoritative, insular, and impersonal form reinforcing an oppressive status quo. By “breaking the fourth wall” through formal innovations, the opinions collectively instigate readers to re-envision legal epistemology, drawing on insights from critical legal research and other disciplines; the foundations of the U.S. common law system; the purposes of judicial opinions as a quintessential legal genre; and legal education’s role in molding future lawyers and shaping the law. Interdisciplinarity has been integral to Black Lives Matter opinions, which commonly cite African American literature, apply insights from narratology, and present inclusive histories. Through tapping into Black intellectual traditions, the opinions embody Black experiences and speak to an audience beyond elite legal circles. As social movement lawyering’s influence has extended to the judicial opinion, the form has been democratized to promote racial equality.

Featured on Legal Theory Blog

Chantal Mak (University of Amsterdam – Faculty of Law) has posted The Elephant in the Room: Contract, Tort and Company Law Dimensions of Supply Chain Liability as Fragments of the Reimagination of Companies’ Legal Personhood on SSRN. Here is the abstract:

This contribution proposes that a rethinking of legal personhood for companies is necessary to fully develop legal accountability for the risks global business poses to the living environment. It first sets out how private law has facilitated multinational business at the cost of other interests. Solutions in traditional tort and contract law present a fragmented legal framework that still raises many obstacles to establishing liability for damage to the living environment. A more radical alternative is found in granting rights to nature, such as legal personality for rivers and mountains. Mirroring this debate, in company law a plea is made for repoliticising the role of companies in society through defining their purpose. Exploring the interplay between these strands of private law, it is submitted that the conversation should include the elephant in the room: a rethinking of the conditions for granting legal personhood to companies.

Featured on Legal Theory Blog

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• B. Jessie Hill, The Reemergence of Religious Freedom Arguments in Abortion Rights Litigation, Highly Recommended

• Deborah Hellman, The Future of Classification, Highly Recommended

• Daniel Haines, Concession Theory and Post-Settlement Governance Entities: Māori Legal Autonomy Within State-Defined Corporate Forms, Recommended

• J. Benton Heath, The Chokepoint State, Recommended

• Jon Polenberg, Judgment without a Subject: Artificial Intelligence and Legal Attribution, Recommended

• Nicholas McBride, Three Dangerous Ideas in the Law on Liability for Omissions in Negligence, Recommended

• Prashant Bhaware, Constitutional Prospects for Providing Reservations for Transgender Persons in India, Featured on Legal Theory Blog

• Edwin Eboigbe, Disaggregating Code, Data, and Design in the Law of Algorithmic Discrimination, Featured on Legal Theory Blog

B. Jessie Hill (Case Western Reserve University School of Law) has posted The Reemergence of Religious Freedom Arguments in Abortion Rights Litigation (26 Houston Journal of Health Law & Policy 101 (2026)) on SSRN. Here is the abstract:

Since Dobbs v. Jackson Women’s Health Organization, religious freedom arguments for abortion rights have gained renewed traction in both legal scholarship and litigation. This Article situates that reemergence in historical context, tracing how such arguments—despite deep roots predating Roe v. Wade—became largely submerged during the decades between Roe and Dobbs, as both doctrinal developments and strategic advocacy choices pushed abortion-rights litigation toward a medicalized privacy framework instead. The Article then examines the doctrinal and political forces driving the post-Dobbs revival of religious freedom claims on both sides of the abortion debate, in which abortion-rights advocates are increasingly invoking religious-liberty protections against near-total bans and abortion opponents face legal vulnerabilities. Drawing on recent state constitutional litigation raising religious freedom arguments to challenge abortion bans, this Article assesses the promise and peril these claims present for each side going forward. It concludes that religious freedom arguments offer substantially more promise than risk for abortion-rights advocates, while posing meaningful dangers for abortion opponents. It therefore argues that it is time for abortion-rights supporters to reclaim a religious-freedom narrative that has too long been ceded to the anti-abortion side of the debate.

Highly Recommended!

Deborah Hellman (University of Virginia School of Law) has posted The Future of Classification (Illinois Law Review, forthcoming) on SSRN. Here is the abstract:

Equal protection doctrine requires that laws which treat people differently on the basis of race and sex are subject to a higher level of judicial scrutiny than are other laws. Yet it is surprisingly unclear when that occurs. Indeed, in United States v. Skrmetti, this was precisely the question at issue. And, in the aftermath of the Supreme Court’s decision in Students for Fair Admissions v. Presidents and Fellows of Harvard College (“SFFA”), courts will be required to determine whether particular admissions practices treat applicants differently on the basis of race and when they do not. This Symposium Article explores the tensions between how that question is answered in Skrmetti and how an analogous question is likely to be answered in litigation exploring the implications of SFFA—by justices in both the majority and dissent. In doing so, this Symposium Article aims to demonstrate that it is difficult to determine whether in fact laws treat people differently on the basis of race or sex and to invite scholars and jurists to develop answers to that question by keeping in view cases in which their intuitions point in opposite directions.

Highly Recommended!

Daniel Haines (University of Auckland – Faculty of Law) has posted Concession Theory and Post-Settlement Governance Entities: Māori Legal Autonomy Within State-Defined Corporate Forms on SSRN. Here is the abstract:

How do state-defined legal forms both enable and constrain Māori governance? This article applies concession theory to post-settlement governance entities (PSGEs) in Aotearoa New Zealand to examine how Crown-created legal persons facilitate the management of iwi assets while simultaneously placing limits on the exercise of rangatiratanga. Drawing on Waikato-Tainui and Ngāti Whātua Ōrākei, this article shows how iwi embed tikanga Māori within formal governance settings. It uses those examples to examine how tikanga-based governance is carried through PSGE structures, and how its legal force remains shaped by statutory obligations, compliance regimes, and Crown-recognised legal forms. The article argues that Māori governance cannot be fully realised through state-created legal personhood. While PSGEs are a mechanism for iwi to advance their objectives, they also render the legal effect of Māori authority dependent on Crown-defined forms. This dependence sustains an imbalance between settler law and tikanga Māori, because iwi exercise decision-making through legal structures that are created and bounded by the state. The article concludes by identifying the limits of concessionary corporate law and points towards the need for legal frameworks that can better accommodate tikanga as sources of authority alongside state law.

Recommended!

J. Benton Heath (Temple University Beasley School of Law) has posted The Chokepoint State on SSRN. Here is the abstract:

This paper argues that the second Trump administration is crystallizing a new phase of U.S. state-building—the Chokepoint State. In the Chokepoint State, state capacity is directed toward creating and controlling key nodes in financial and data networks, with the aim of using that control to punish adversaries, reward allies, and set new rules of the road. This stage in American state-making builds on earlier legal and administrative innovations, but it operates according to its own logic. In the Chokepoint State, actors that control nodes in economic and information networks can use their power to impose new, quasi-legal norms that do not derive from any ordinary lawmaking process. The second Trump administration’s grab for power has depended heavily on the techniques of the Chokepoint State, but those techniques precede Trump and have been used by administrations from both major U.S. parties. The paper further argues that resistance in the Chokepoint State requires a combination of strategies to tame the state’s discretion from within, while using countervailing power to build zones of sanctuary that exist outside the state’s unbridled control.

Recommended!

Jon Polenberg (Becker) has posted Judgment without a Subject: Artificial Intelligence and Legal Attribution on SSRN. Here is the abstract:

Artificial intelligence now produces outputs that courts, agencies, and firms treat as conclusions. Law can assign responsibility for those outputs to users, designers, or institutions. But responsibility answers only who bears the consequence. It leaves the prior question untouched. Whose judgment is the output?

This Article argues that law cannot treat an AI output as judgment unless it identifies a subject whose judgment it is. It tests leading accounts of personhood and attribution from Locke, Parfit, Frankfurt, and Kurki, and shows that AI satisfies none of them. It then traces the consequences across copyright, corporate law, tort, employment, evidence, and criminal law. Proposed Rule 707, hearsay, and confrontation each encounter machine output that functions as testimony or proof yet lacks a declarant who can own it. The Computer Fraud and Abuse Act demands a state of mind that, in a July 2026 model escape, belongs to no one.

Absent an answer, doctrine will drift toward piecemeal quasi-personhood.

Recommended!

Nicholas McBride (University of Cambridge – Faculty of Law) has posted Three Dangerous Ideas in the Law on Liability for Omissions in Negligence on SSRN. Here is the abstract:

This paper discusses three bases for finding a positive duty to act to save someone from harm that are recognised in English law – (i) assumption of responsibility; (ii) interference with rescue by another; and (iii) the demands of common humanity – and the potential problems created by these bases for finding a duty to act.

And from the conclusion:

Despite the new orthodoxy established by Michael and the subsequent caselaw, enough has been said to establish that those who dislike the new orthodoxy will not lack for arguments from within that orthodoxy that will ultimately tend to undermine it. In this essay, I have set out what those arguments are likely to be, and how they should be handled in a way that maintains the current limits on when one person will owe another a duty of care to save that other from injury. I have obviously not said a word in defence of those limits. But I hope I have said enough to ensure that if those limits are eventually overthrown in England and Wales at some point in the course of the 21st century, they are overthrown through a full-frontal assault rather than a sneak attack from behind. Big changes in the law demand that big arguments be made in their favour; they should not be brought about through playing games with words.

Recommended!

Prashant Bhaware (NALSAR University of Law) has posted Constitutional Prospects for Providing Reservations for Transgender Persons in India on SSRN. Here is the abstract:

It has been more than a decade since the Supreme Court of India in the landmark case of National Legal Services Authority v. Union of India (2014) recognized the historical marginalization of the transgender community and directed the governments to extend reservation policy to transgender persons. However, except Kerala and Karnataka, other state governments and the union government are yet to formulate reservation policy in this matter. While contextualizing social marginalisation of transgender persons shaped by heteronormativity and Brahminical patriarchy, this paper aims to evaluate state interventions and modalities of reservation for transgender persons in accordance with principle of substantive equality and reservation policy jurisprudence. Using doctrinal method of legal research to analyse primary sources along with relying on imperial and theoretical scholarship, I argue that the modality adopted by the Karnataka Government to implement modality of 1% compartmentalized horizontal reservation policy for transgender persons is appropriate policy framework for other governments to incorporate.

Featured on Legal Theory Blog

Edwin Eboigbe (University of Illinois Urbana-Champaign) has posted Disaggregating Code, Data, and Design in the Law of Algorithmic Discrimination on SSRN. Here is the abstract:

Commentators, regulators, and even courts tend to talk about ‘AI bias’ as though it were one phenomenon with one legal answer. It is not. A discriminatory outcome produced by an algorithm can come from at least three different places: a rule someone deliberately wrote into the code, a pattern the system absorbed from historically skewed training data without anyone writing a discriminatory rule at all, or a design choice, such as which features to use or which outcome to optimize for, that was never tested for its discriminatory potential before deployment. These three causes are not legally interchangeable. They map onto disparate treatment law, disparate impact law, and a still-underdeveloped duty-to-investigate theory respectively, and a defendant’s best argument in one category can be irrelevant or even self-defeating in another. This author works through that taxonomy using real cases and enforcement actions primarily from the United States, with the European Union drawn in for comparative contrast. After which we turn from doctrine to consequence, tracing how each category of bias actually affects an ordinary person across different sectors. We close by asking what would narrow these gaps, considering the doctrinal and human stakes, and by analyzing the statistical definitions of ‘fairness’ that audits rely on whether or not they are all simultaneously satisfiable.

Featured on Legal Theory Blog

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Lawrence Solum

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• Gerald J. Postema, Complexities and Vulnerabilities of the Rule of Law: A Response to Comments on Law’s Rule, Highly Recommended

• Marko Petrovic, Kevin Tobia & Daniel E. Walters, When is the Best Reading of A Statute that it Delegates Discretion?, Highly Recommended

• Colin Bradley, Freedom as a Constitutional Value, Recommended

• John A. Bruegger, Against Formalist Reductionism: A Pragmatic-Contextualist Defense of Substantial Factor Causation, Recommended

• Corey Rayburn Yung, The End of Law, Recommended

• Dana Neacsu & Paul D. Callister, From Myers to Slaughter: A Brief Theory of the Constitutionalization of Secondary Sources, Recommended

• Travis Gilly, The Realities of the Low Bar: On Sentience, Civil Rights, and Human Atrocity, Featured on Legal Theory Blog

• Chantal Mak, The Common Good Contract: Rethinking Contractual Justice in the Regulation of Global Supply Chains, Featured on Legal Theory Blog

Gerald J. Postema (University of North Carolina – Philosophy) has posted Complexities and Vulnerabilities of the Rule of Law: A Response to Comments on Law’s Rule on SSRN. Here is the abstract:

This article explores some complexities of the rule-of-law ideal defended in Law’s Rule: The Nature, Value, and Viability of the Rule of Law. It addresses challenges to the rule of law represented by tensions within the prospectivity principle, by worrisome complexity and redundancy of laws (“hyperlexis”) and the inevitable distance between complex law and the understandings of ordinary citizens, and by the recent ascendency of the use of artificial intelligence in adjudication and governance.

Highly Recommended!

Marko Petrovic (Georgetown University Law Center), Kevin Tobia (Georgetown University Law Center), and Daniel E. Walters (Texas A&M University School of Law) have posted When is the Best Reading of A Statute that it Delegates Discretion? on SSRN. Here is the abstract:

The Supreme Court’s decision in Loper Bright Enterprises v. Raimondo to end Chevron deference has at least temporarily unsettled the field of administrative law and cast administrative agencies’ place in government into serious doubt. But does Loper Bright really portend a “revolution” in administrative law, or will it augur a “marginal” reframing of familiar principles? Much will turn on the significance of sixteen words, in which the Court states that “often,” the best reading of a statute is that it authorizes an agency to exercise a degree of discretion. Given several of the justices’ commitment to a brand of textualism that centers “ordinary” readers of statutes, the likely doctrinal path forward is that the Court will analyze whether a hypothetical reasonably informed reader would understand statutory language in context to delegate a degree of discretion.

We illuminate this path with a series of large empirical studies of over 5,000 lay American readers. We test the Court’s proposed framework—that discretion can be communicated by (1) express statements to define terms, (2) express statements to “fill in details”, and (3) the inclusion of open-ended or flexible terms. The study has important implications for how sweeping of a change Loper Bright initiated, and it provides potential baselines for the future elaboration of delegations by lower courts and guidance for Congress in designing delegations that will comply with Loper Bright. More generally, our analysis highlights the importance of the ordinary meaning of delegation in the Loper Bright framework, contrasting with competing candidates that do not comport with the textualist paradigm.

Highly Recommended! Download it while it’s hot!

Colin Bradley (University of Southern California Gould School of Law) has posted Freedom as a Constitutional Value (Constitutional Values, Shreya Atrey & Rosalind Dixon, eds., forthcoming) on SSRN. Here is the abstract:

This chapter explores what it means to treat “freedom” as a constitutional value. Specifically, it focuses on the implications of the republican idea of freedom as nondomination for constitutional rights, modalities, and institutions. First, it argues that constitutions can be seen as “goodness-fixing kinds” and that constitutional values are the “constitutive virtues” of constitutions. This frame provides guidelines for determining what values count as constitutional values generally, or for this or that constitution. The chapter then traces the significance of republican freedom as a constitutional value for constitutional rights and remedies; practices of judicial review; and the constitutional law of democracy, or the regulation of popular control of government. On the latter, it argues that republican freedom recommends abandoning traditional ideas of “popular sovereignty.” Instead, it suggests that the polity, or the structure of political organization, should be designed to minimize the likelihood that the sovereign it constructs dominates individual citizens. This requires providing horizontal independence or social justice, avoiding capture, and empowering citizens equally. It shows how this idea can illuminate historical and contemporary republican strategies for combatting “oligarchy.” Finally, the chapter suggests how we might determine for constitutions generally and for this or that actual constitution, whether it is in fact committed to republican freedom as a constitutive virtue, i.e., a constitutional value.

Recommended!

John A. Bruegger (Southern Illinois University Simmons Law School) has posted Against Formalist Reductionism: A Pragmatic-Contextualist Defense of Substantial Factor Causation on SSRN. Here is the abstract:

The judiciary’s recent shift from “substantial factor” causation toward a rigid, binary “but-for” standard promises metaphysical clarity but delivers an epistemic crisis. In complex, multifactorial litigation like toxic torts and pharmaceutical harms, strict counterfactual testing fails, insulating tortfeasors whenever causal mechanisms resist mechanical proof. Grounding legal inquiry in pragmatic contextualism, this Article defends substantial factor causation as an indispensable normative tool. It argues that while invariant rules may serve criminal justice, civil adjudication demands causal flexibility to achieve deterrence, victim compensation, and fair risk allocation. Rejecting both formalist reductionism and pseudoscientific set-theory alternatives, this Article demonstrates why substantial factor causation, anchored by inherent safeguards of the adversarial justice system, remains essential to corrective justice.

Recommended!

Corey Rayburn Yung (University of Kansas School of Law) has posted The End of Law on SSRN. Here is the abstract:

Law has been on a journey: from an emanation of a sovereign (Rule of Men) to a set of principles designed to prevent arbitrary rule (Rule of Law) to massive legal systems capable of governing dynamic industrial nations (Rule of Systems). A driving force behind each developmental stage has been minimizing the fallibilities of human beings in the application of law. Enter generative artificial intelligence (genAI), which has provoked predictions of profound disruption to legal practice, adjudication, and the Rule of Law itself. Proponents envision a future of frictionless access to justice, consistent legal reasoning, and the elimination of human bias from decision-making (Rule of Machines). Critics warn of opacity, unaccountability, and the erosion of the judgment that law requires. Both camps treat these stakes as novel, products of a technological rupture with no meaningful precedent.

However, the debates now unfolding around genAI are not new. They extend jurisprudential contests that have persisted throughout each of the prior stages of law’s development. The enthusiasm for algorithmic consistency echoes legal formalism’s ambition to purge law of the arbitrary. The anxiety about algorithmic law rehashes longstanding arguments that law without empathy is not just. And the deeper worry that language models cannot truly understand law revives unresolved questions about whether law is a formal semantic system or a social practice. The Article reframes genAI as a jurisprudential rather than technological problem, separating its new dangers from inherited ones, and proposes a framework for minimizing the harms of its introduction to law.

Recommended!

Dana Neacsu (Columbia University in the City of New York) and Paul D. Callister (University of Missouri at Kansas City – School of Law) have posted From Myers to Slaughter: A Brief Theory of the Constitutionalization of Secondary Sources on SSRN. Here is the abstract:

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft’s opinion in Myers v. United States (1926) marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice John Roberts’ opinion in Trump v. Slaughter (2026) completed that transformation. Roberts cited secondary authorities 111 times in approximately 10,000 words, employing historians, documentary editions, biographies, constitutional commentators, presidential papers, law review articles, and political writings not merely to illuminate constitutional meaning but to construct it. Secondary sources became constitutional actors.

Recommended!

Travis Gilly (Real Safety AI Foundation) has posted The Realities of the Low Bar: On Sentience, Civil Rights, and Human Atrocity on SSRN. Here is the abstract:

A recurring objection to extending any moral consideration to artificial systems is that the proposed bar is too low: if consideration is owed wherever an inner life cannot be ruled out, then it is owed almost everywhere, and a standard that excludes almost nothing excludes nothing worth taking seriously. This paper argues that the objection inverts the historical record. It first separates two bars that the singular word conceals: an evidence bar, the standard of proof required before asserting that a system is sentient, and an action bar, the standard required before extending some consideration to a system of uncertain status. The paper holds the evidence bar high and declines to assert that any current system is sentient. It defends only a low action bar. It then shows, through cases drawn from medicine and law rather than from chattel slavery, that the high bar has never functioned as a neutral epistemic safeguard. Neonatal surgery without anesthesia and the compulsory sterilization upheld in Buck v. Bell each operationalized a demand for proof of full capacity, while the United States Public Health Service study at Tuskegee and the nonconsensual use of Henrietta Lacks’s cells withheld a standing that was never in genuine doubt; the two forms differ in candor, not in outcome, and each was catastrophically wrong because the inner life or the standing the bar denied was present the whole time. The paper argues that failure to produce the accepted evidence of an inner life, on the observer’s terms, is not the absence of that inner life, a point the recovery of covert awareness in apparently vegetative patients makes directly. It locates a working low bar architecture in the procedural standing developed by civil rights and disability law, refuses the reclassification of affected populations as edge cases, and concludes from the asymmetry of error that the low bar is not the embarrassing position; it is the only setting the record vindicates.

Featured on Legal Theory Blog

Chantal Mak (University of Amsterdam – Faculty of Law) has posted The Common Good Contract: Rethinking Contractual Justice in the Regulation of Global Supply Chains on SSRN. Here is the abstract:

This report considers the normative underpinnings of national and regional due diligence laws that aim to get a grasp on the protection of human rights and the environment along global supply chains. Starting from a comparative exploration of several representative due diligence laws, it is analysed what is the place of contract in these laws. The comparison provides a basis for assessing to what extent contractual due diligence can serve to include the intended beneficiaries of such laws, who themselves are not parties to contractual assurances in global supply chains. Based on the comparison, it is sustained that a rethinking of the concept of the contract is needed for due diligence obligations to reach their full potential. This reconceptualisation of the contract should be grounded in political-economic ideas of value and the common good that encompass human and non-human entities affected by global supply chains’ operations. The report sets out the basic premises for an idea of transnational contractual justice along these lines.

Featured on Legal Theory Blog

Theoretically yours,
Lawrence Solum

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• Aaron-Andrew P. Bruhl, The Forgotten History of Legislative Interpretive Directives, Highly Recommended

• Jonathan Ladd, The Compositionality Conundrum: Textualism, Ordinary Meaning, and Statutory Interpretation, Recommended

• Jonathan Goldstein, The Militia of the Sea: The Marque and Reprisal Clause as Textual Proof of Private Heavy-Arms Ownership at the Founding, Recommended

• Nicholas McBride, Private Law in the Ruins, Recommended

• Ben Oloko, Personal to the Holder: The Non-Transferability of the Powers of the Attorney-General and The Inapplicability of the Doctrine of Necessity to Cure a Vacancy in the Office, Featured on Legal Theory Blog

• Edward Curtis, Revisiting “Of Arms and the Militia: Gun Regulation by Legislatively Defining ‘Ordinary Military Equipment’”, Featured on Legal Theory Blog

Aaron-Andrew P. Bruhl (William & Mary Law School) has posted The Forgotten History of Legislative Interpretive Directives (Texas Law Review, forthcoming) on SSRN. Here is the abstract:

This Article addresses an overlooked aspect of the history of legal interpretation: the early emergence of “legislative interpretive directives,” enactments in which legislatures instruct courts on the rules for interpreting statutes. Although some modern courts and commentators treat such directives as constitutionally suspect, it is the objection to legislative directives that is new, not the directives themselves. As far back as the early republic, and with increasing frequency in the nineteenth-century age of codification, state legislatures enacted interpretive directives that changed the judicially developed rules. And courts applied those instructions without suggesting that they violated separation-of-powers principles. Early treatise writers sometimes raised pragmatic concerns about the directives’ usefulness, concerns that originated in English decisions, but the commentators did not raise constitutional objections.

This Article reconstructs the long tradition of legislative interpretive directives and chronicles the slow emergence, in the twentieth century, of constitutional doubts about legislative authority to guide statutory interpretation. By recovering the forgotten past of interpretive directives, the Article presents an alternative vision of the division of authority over interpretation. It also provides resources for state courts that want to understand their own constitutional histories. And by tracing the intellectual history of how early receptivity to legislative involvement turned into skepticism, the project contributes to the literature on the rise of judicial power.

Highly Recommended!

Jonathan Ladd (Texas A&M University) has posted The Compositionality Conundrum: Textualism, Ordinary Meaning, and Statutory Interpretation (Texas Review of Law and Politics, forthcoming) on SSRN. Here is the abstract:

The ordinary meaning canon is foundational to statutory interpretation. That being said, it is an oft-misunderstood phenomenon, even at the Supreme Court. This paper seeks to address a flaw in ordinary meaning analyses, in which judges often fail to recognize that the ordinary meaning of a statutory phrase on the whole is the pivotal question, rather than the ordinary meaning of the words in the phrase. These distinctions turn on the understudied linguistic concepts of compositionality and idiomaticity. This paper will define both concepts and, using a series of Supreme Court cases on statutory interpretation, demonstrate why the distinction between the two types of statutory phrase matters, while providing judges and other legal actors reliable methodologies to determine whether a phrase is compositional or idiomatic.

Recommended!

This is a very fine piece, but it does not consider the important implications of “pragmatics” (the role of context) for its central problem.

Jonathan Goldstein (University of Pennsylvania Carey Law School) has posted The Militia of the Sea: The Marque and Reprisal Clause as Textual Proof of Private Heavy-Arms Ownership at the Founding on SSRN. Here is the abstract:

Courts and litigants increasingly say the Second Amendment reaches only the weapons one person can carry. The Constitution refutes that twice, in a single Article.

Article I, § 8, cl. 11 lets Congress “grant letters of marque and reprisal, and make rules concerning captures on land and water.” That is a license to send a private citizen to war at sea in his own ship, with his own cannon, for profit. A license presupposes what it licenses. The Clause takes a privately owned, cannon-armed fleet as given; nothing in the Constitution creates it. Two clauses later, Article I, § 10 forbids a state to “keep troops, or ships of war in time of peace” without the consent of Congress. The Framers made a sovereign ask permission to keep a warship. They made the shipowner ask no one.

Under Article I, the power Congress received over private armed force at sea was a power over the belligerent employment of that force on behalf of the United States. Congress imposed no general federal license on the shipowner’s arming of his ship. The Founders who ratified the Constitution’s Article I in 1788 and the Second Amendment three years later in 1791 did not appear troubled that private parties owned heavily armed ships. Indeed, they took the widespread ownership of such heavily armed ships as a given, so much so that Congress principally concerned itself not with the private ownership of significant armaments, but rather with the transformation of that private ownership into a lawful use on behalf of the federal government itself.

With textual support from a documented record of roughly 1,700 Revolutionary-era privateering commissions — granted per voyage, in the years before the Constitution was ratified — this Article refutes the modern categorical claim that heavy arms were never “arms.”

Recommended!

Nicholas McBride (University of Cambridge – Faculty of Law) has posted Private Law in the Ruins on SSRN. Here is the abstract:

In this paper I argue four things. First, the Grenfell Tower fire and the response to that fire almost perfectly manifest and expose fundamental problems and disorders that afflict, and are destined to doom, modern Western, liberal societies (‘MWLs’, for short). Second, these problems and disorders mean that private law is unable to achieve its ambition of helping to promote the flourishing of its subjects while maintaining its legitimacy. Third, given this, it may be no surprise that at this particular juncture in history many academics prefer to think of private law not as seeking to promote anyone’s flourishing, but as serving much more limited goals that can be achieved, at least in part, despite the problems and disorders that afflict MWLs. Fourth, we should reject these consoling accounts of private law and honestly confront what (if anything) can be done for private law so that it can fulfil its vocation once more.

Recommended!

Ben Oloko (University of Nigeria) has posted Personal to the Holder: The Non-Transferability of the Powers of the Attorney-General and The Inapplicability of the Doctrine of Necessity to Cure a Vacancy in the Office on SSRN. Here is the abstract:

The office of the Attorney-General occupies a singular position in the constitutional architecture of Nigeria: it is simultaneously a political appointment, a constitutional office, and a repository of personal, non-delegable discretionary power over the machinery of criminal justice. This article interrogates the proposition that the powers of the Attorney-General of the Federation and of a State are personal to the individual occupant of the office, and that where the office falls vacant, the doctrine of necessity cannot be invoked to validate criminal processes issued or continued in the Attorney-General’s name. The article uses, as its factual fulcrum, the elevation of the erstwhile Attorney-General and Commissioner for Justice of Enugu State, Dr Kingsley Tochukwu Udeh, SAN, to the Federal Executive Council as Minister of Innovation, Science and Technology on 6 November 2025, and the delay of nearly seven weeks before the appointment of his successor, Barr Osinachi Nnajieze, on 23 December 2025 — a period during which criminal charges continued to be filed and prosecuted. The article further examines section 31 of the Police Act 2020, which conditions the institution of criminal proceedings upon the prior legal advice of the Attorney-General, and argues that this provision reinforces, rather than dilutes, the personal and non-delegable character of the office.

Featured on Legal Theory Blog

Edward Curtis has posted Revisiting “Of Arms and the Militia: Gun Regulation by Legislatively Defining ‘Ordinary Military Equipment’” (Touro Law Review, Volume 41, No. 1, pp. 177–198) on SSRN. Here is the abstract:

In 2021, I published Of Arms and the Militia: Gun Regulation by Defining “Ordinary Military Equipment,” in which I suggested that legislatures could regulate firearms by prescribing what “ordinary military equipment” militia members were expected to produce in the event that they were mustered to service. In 2022, the United States Supreme Court decided New York State Rifle and Pistol Association v. Bruen, which required government regulations be consistent “with this Nation’s historical tradition of firearm regulation.” In 2026 I published Revisiting ‘Of Arms and the Militia, which, rather than looking at prohibitions on arms, instead looks at colonial and early federal militia laws that prescribed what “ordinary military equipment” militia members were required to produce when they were called to muster. I conclude that my 2021 proposal is still viable as the Nation’s historical tradition of firearm regulation includes specific prescriptions of what constitutes “ordinary military equipment.”

Featured on Legal Theory Blog

This is an update of Of Arms and the Militia: Gun Regulation by Defining “Ordinary Military Equipment”.

Theoretically yours,
Lawrence Solum

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Download of the Week

Corporate Virtue and Vice by Mihailis Diamantis. Here is the abstract:

Authorities and academics primarily evaluate corporations through their behavior. But consumers, investors, and many corporate professionals implicitly evince an alternative perspective. For them, what matters is not just what corporations do, but also the deeper structures behind corporate behavior. While corporations might innovate, they can also be innovative. While they might lie, they can also be dishonest. Such traits of character vary from corporation to corporation, anchoring predictable patterns of behavior. Judgments about corporate character shape how people, both professional and lay, respond to the businesses they interact with on a daily basis.

This chapter introduces virtue theory as a framework for formalizing this lay perspective on corporations. The virtue ethical picture turns on an understanding of corporate purpose and of the internal business mechanisms that reliably realize or thwart it. The practical orientation of authorities and academics, which fixates on corporate action rather than on deeper corporate structure, generates several well-known corporate pathologies, like managerial short-termism and criminal recidivism. By excavating and systematizing the theory and governance structure of corporate virtue and vice, lawmakers might uncover more reliable techniques for understanding, evaluating, and influencing corporate conduct.

Highly recommended! Download it while it’s hot!

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Price of Happiness: Behavioral Economics and Willingness to Pay by Cass R. Sunstein. Here is a description:

People often ‘miswant.’ They buy goods that do not make them happy and refuse to buy goods that would make their lives better. In The Price of Happiness, Cass R. Sunstein focuses on people’s ‘willingness to pay,’ which is the foundation for free markets. He argues that willingness to pay deserves respect, and high honors in the annals of history, when buyers know what they are getting. It’s when buyers lack information, or suffer from behavioral biases, that they might miswant. Special conundrums also arise when we try to monetize goods we don’t normally consider in monetary terms, like pristine areas, human dignity, and social media. Exploring behavioral biases and their effect on human welfare, Sunstein shows how behavioral economics can be used to increase human happiness.

And here are some reviews:

A deep and insightful exploration of a fundamental economic concept that is widely used and rarely interrogated. Sunstein is one of the world’s sharpest minds, and his critical analysis of the ‘willingness to pay’ offers good answers and better questions. Anyone interested in behavioral economics and public policy should put a high value on this excellent book.

—Daniel Gilbert, Edgar Pierce Professor of Psychology, Harvard University, and author of the New York Times best-seller Stumbling on Happiness

Cass Sunstein is an intellectual giant and one of the great thinkers of the modern era. This book is filled with important insights about human behavior and public policy design. Your willingness to pay for this book should be high!

—Hunt Allcott, Stanford University

Sunstein’s insatiable curiosity and joy in wrestling with complicated ideas shines through. The result is a guide to improving our lives by taking advantage of markets, not letting their limitations harm us, and recognizing that we are people with complicated views, not robots. The Price of Happiness is an intellectual tour de force that amazingly is also practical.

—Michael Greenstone, Milton Friedman Distinguished Service Professor of Economics, University of Chicago

Legal Theory Lexicon

Legal Theory Lexicon 004: The Reasonable Person

This week’s Lexicon entry takes up the reasonable person. Here is the introduction:

Today’s Legal Theory Lexicon is about the “reasonable person.”

The notion of a “reasonable person” usually makes its first appearance in the Torts course. The context, of course, is the tort of negligence, where the “reasonable person” is used to define the standard of care that triggers liability for unintentional harms. But what makes a “reasonable person” reasonable? The concept of the reasonable person is not limited to torts, however. The reasonable person makes appearances in criminal law, contract law, and elsewhere. As usual, the Legal Theory Lexicon introduces the “reasonable person” for the law student with an interest in legal theory.

The entry continues with a cautionary note about the many uses of “reasonable,” the distinction between the reasonable and the rational, subjective and objective reasonableness, and three conceptions of the reasonable person—Learned Hand’s cost-benefit analyst, Kant’s respecter of the interests of others, and the aretaic conception drawn from virtue jurisprudence—followed by a verdict, a conclusion, related Lexicon entries, and a bibliography. Read the whole thing at Legal Theory Lexicon 004: The Reasonable Person.

That’s all for the weekend!

Theoretically yours, Lawrence Solum

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• Sandeep Dhaliwal, The Legal Realism of W.E.B. Du Bois, Highly Recommended

• Amy L. Peikoff, The Record, Not the Lens: ALPR Retention, Property, and the Fourth Amendment, Highly Recommended

• Ruoxi Li, Sirui Han & Yi-Ke Guo, How Value Alignment Reorders Legal Reasons in Hybrid Legal Orders: Insights from Hong Kong Model Development, Highly Recommended

• Aaron J. Rappaport, Liberal Democracy in the Age of Monsters, Recommended

• Kevin Frazier, Move Fast and Delegate Things: Can a FINRA for AI Survive Constitutional Scrutiny?, Recommended

• Rachel Barkin, Irreparable Harm to Democratic Will: Why Courts Should Not Extend the Elrod Presumption to Second Amendment Challenges at the Preliminary Injunction Stage, Recommended

• Jonathan Goldstein, The Post Office Was the General Store: Sensitive Functions, Absent Premises, and the Post-Office Carry Ban, Recommended

• Devnarayan Meena, From ‘Cockroaches’ to Constitutional Citizens: Protest, Police Power and Judicial Review in India, Featured on Legal Theory Blog

Sandeep Dhaliwal (St. John’s University – School of Law) has posted The Legal Realism of W.E.B. Du Bois on SSRN. Here is the abstract:

The great writer, activist, and scholar W.E.B. Du Bois saw his career unfold alongside the development of Legal Realism, an intellectual movement whose rapid rise to prominence in American legal thought was concentrated in the 1920s and 1930s. Though more often remembered as a sociologist or historian, Du Bois’s work contained considerable theorizing about law that tracked key Realist insights.

But this Article shows that Du Bois wasn’t simply another legal theorist. He was an outstanding one, whose own theorizing emerged not through colorblind critiques of classical legal thought (what the Realists did), but through thinking, organizing, and propagandizing against race hierarchy. The slave trade, sharecropping, Lynch Law, race riots, and cases like Bailey v. Alabama comprised his distinct objects of study. And Du Bois’s embeddedness in domestic and transnational social movements for civil rights, decolonization, and global peace inescapably shaped his constant thinking toward emancipation. All this fueled an extraordinary range of legal theorizing, from experimental notions of “legal violence,” to more mature concepts like the “dictatorship of property,” to intertwined critiques of rights, capitalism, and the U.S. Constitution. Such theorizing is not only visible in classic texts, like Du Bois’s famous Black Reconstruction, but also in underexamined ones, like his 1896 dissertation on the transatlantic slave trade, and his and the NAACP’s remarkable 1947 petition to the new United Nations.

In charting the development of Du Bois’s legal thought, this Article advances two main claims. First, that radical commitments to overcoming racial subordination provide critical pathways to understanding American law. Partisans for racial justice, like Du Bois, have produced profound legal-theoretical insights not in spite of, but because of, their normative commitments.

Second, that Du Bois belongs in the canon of American legal thought. Who and what comprise the canon is a matter of perennial importance. As someone who thought deeply about law’s relation to the project of multiracial democracy in the United States, and that project’s inextricable connection to the problem of the global color line, now is as good a time as any to confirm Du Bois’s place.

Highly Recommended!

Amy L. Peikoff has posted The Record, Not the Lens: ALPR Retention, Property, and the Fourth Amendment on SSRN. Here is the abstract:

Automated license plate readers now photograph American drivers billions of times each month, and the resulting archives—searchable by plate, vehicle “fingerprint,” time, and place—have produced wrongful gunpoint stops, officer stalking prosecutions in multiple states, immigration-enforcement queries in violation of local law, and a wave of municipal cancellations and camera vandalism. Yet nearly every court to uphold these systems has asked the same question: whether accumulated plate reads reveal enough of a person’s movements to trigger Carpenter. This Article argues that the question is wrong. The constitutional defect in ALPR surveillance is not what the archive eventually discloses but that the archive is made and kept at all: the wrong lies in the record, not the lens.

The Article grounds that conclusion in the property-based Fourth Amendment of Jones, Jardines, and Justice Gorsuch’s Chatrie concurrence, and develops two independent routes to it. First, the state-mandated license plate—an identifier the driver must display to legally access the roads—confers only a limited easement of observation; capturing and entering the compelled identifier into a durable, suspicionless archive overburdens that easement and works a trespassory search of the car. Second, under the law of accession and specification, the retained record is itself the driver’s effect, so its suspicionless retention and traversal is a search or seizure of that effect—a conclusion reinforced by positive law, from predicate-and-purge policing rules to the vendor’s own contracts, which purport to title and license the records without mentioning the driver. Each route supplies what the expectations framework cannot: a limiting principle that survives the officer’s notebook hypothetical, a merits theory matching an intuition about standing that courts already voice, and a remedy—expungement of the archive—that addresses the violation itself. The argument is no longer fully hypothetical: a petition filed against Wichita in July 2026 pleads the compelled-plate theory, and the vendor’s own constitutional defense now concedes that retention is the variable on which everything turns.

Highly Recommended!

Ruoxi Li, Sirui Han, and Yi-Ke Guo (all Hong Kong University of Science & Technology (HKUST)) have posted How Value Alignment Reorders Legal Reasons in Hybrid Legal Orders: Insights from Hong Kong Model Development on SSRN. Here is the abstract:

When “legal value alignment” is invoked in relation to generative AI, it is not a neutral promise of safer or more accurate outputs. It is a constitutional move in miniature. It quietly decides what will be treated as law, which values are permitted to matter, what forms of reasoning will be recognized as properly legal, and which sources will be allowed to speak with authority. Drawing on alignment insights from the Hong Kong Generative AI Research and Development Center and the governance practices that surround local model development and deployment, this Article argues that alignment in hybrid legal orders systematically produces a legitimacy illusion. A system can be tuned to sound compliant, coherent, and recognizably legal, while remaining unable to do what legitimacy requires in such settings: resolve conflicts of value and rank authority through institutionally authorized and publicly contestable justification. The unresolved remainder is not eliminated. It is relocated into technical choices that present themselves as mere implementation, including data curation, evaluation thresholds, safety boundaries, and refusal rules. Hong Kong brings this relocation into sharp relief. Common-law reason-giving and precedent preserve uncertainty as a condition of contestability, while national security governance can stabilize decisive premises upstream, compelling alignment to choose among rival interpretive grammars. The Article identifies four structural failure modes, categorical, logical, institutional, and epistemic, and explains how sensitivity labels and imported security taxonomies such as TC260-003 prefigure what may be said before legal reasoning begins. It concludes by theorizing four mechanisms that sustain the legitimacy illusion: contestation converted into defaults, authority laundered through model outputs, compliance aesthetics mistaken for legal justification, and polarized reception.

Highly Recommended!

Aaron J. Rappaport (UC Law, San Francisco) has posted Liberal Democracy in the Age of Monsters (Tulane Journal of International and Comparative Law, forthcoming) on SSRN. Here is the abstract:

The United States has entered a period of disorder, a period when, to quote Antonio Gramsci, “the old is dying and the new cannot be born.” But why has the institutional order of the past half-century—liberal democracy—declined in support and legitimacy, and what can be done to reverse that erosion of support? This Article offers a diagnosis of the crisis of liberal democracy and a theory of what a remedy would require.

The diagnosis begins with a well-known source of democratic instability, the problem of factionalism. This is the tendency, identified by James Madison at the founding, for democratic societies to fracture into groups seeking to dominate one another. The Article extends Madison’s insight, demonstrating how factionalism becomes acute when new institutional rules impose lasting sacrifices on powerful entrenched interests—and how such sacrifices, once installed, remain a permanent feature of the order rather than a passing shock.

Such a transformation occurred in the United States during the second half of the twentieth century, as the nation built, for the first time, a fully realized liberal democracy. By unsettling prior racial, religious, and economic settlements, that transformation imposed standing burdens on dominant factions, triggering intense and unresolved factional conflicts. The losing factions never accepted the settlement as legitimate, and each contests it still. The result has been an enduring legitimacy crisis, and a politics characterized by partisan polarization, ideological propaganda, and the rise of demagogues and other monsters.

Drawing on Antonio Gramsci, the Article argues that no policy reform can resolve a crisis that is grounded in such deeply rooted structural forces. What is required instead is cultural transformation based on an “organic ideology” of liberal democracy, a reconstructed American Creed. The Article sketches the broad contours of that public philosophy, one grounded on a set of moral and political principles capable of both justifying the nation’s institutions and uniting citizens across the partisan divide.

Recommended!

Kevin Frazier (The University of Texas School of Law) has posted Move Fast and Delegate Things: Can a FINRA for AI Survive Constitutional Scrutiny? on SSRN. Here is the abstract:

Highly-capable AI models present risks that warrant heightened scrutiny. These risks include but are not limited to cybersecurity threats, bioweapon development, mass surveillance, and loss of control scenarios in which models escape their test environments or otherwise bypass imposed safeguards. Recent testing by the UK AI Safety Institute documenting how frontier models may pursue long-term goals via unsanctioned behavior bolsters the case that such risks are prevalent and, under present safeguards, inadequately mitigated.

Existing government systems are not suited to detecting those risks nor to evaluating the adequacy of mitigations created by the labs. This lack of capacity is the result of several commonly accepted observations: relative to the labs, the government has limited AI expertise; given the current and forecasted pace of AI progress, regulatory processes move too slowly to respond to new developments in AI or may be applied in an ad hoc, arbitrary fashion; in expectation of those AI advances, there’s a corollary need for investments in the science of AI safety, including how best to evaluate models; the scale of those investments as well as the research ecosystems necessary to advance the science of AI are not well-suited to current government institutions; and, in alignment with a general desire for US models to be the default models around the globe, an independent system of AI evaluation may carry greater odds of acceptance by other nations than a process solely operated by the US government.

These observations amount to a serious argument for delegating substantial regulatory authority to private experts. Yet the argument is incomplete. Audited self-regulation has a documented history, and that history includes recurring failure modes and constitutional barriers that its advocates may not fully acknowledge.

Recommended!

Rachel Barkin (Harvard Law School) has posted Irreparable Harm to Democratic Will: Why Courts Should Not Extend the Elrod Presumption to Second Amendment Challenges at the Preliminary Injunction Stage on SSRN. Here is the abstract:

Preliminary injunctions require movants to prove that they will be irreparably harmed before courts can resolve the merits of the case at trial. In First Amendment cases, federal courts frequently presume irreparable harm under Elrod v. Burns, 427 U.S. 347 (1976), substantially lowering the burden for obtaining preliminary relief. Gun industry members, having strategically employed First Amendment challenges to enjoin gun regulations, now urge courts to extend this presumption to Second Amendment claims. There is currently a circuit split on whether to do so. In 2025, the Supreme Court declined to resolve this question, leaving the issue very much alive.

This Article argues against such an extension, making two claims. First, even in the First Amendment context, courts have recognized that the reach of the Elrod opinion is limited. The text of the opinion and its context reveal that the Supreme Court likely did not intend to adopt a categorical presumption of irreparable harm for all First Amendment cases. Instead, the presumption applies to direct, time-sensitive, and ongoing government violations of First Amendment rights. It does not apply to speculative, indirect burdens on those freedoms. The Second and Eleventh Circuits adopt this interpretation. Other circuits have similarly heightened or limited the presumption, reflecting hesitancy to extend Elrod in the First Amendment context. Given this hesitancy, courts should not extend the presumption even further to the Second Amendment.

Second, First Amendment harms are constitutionally distinct from Second Amendment harms. As recognized by many courts, First Amendment harms are sui generis. Second Amendment claims often lack the time-sensitivity of prior restraints on speech, and, unlike many First Amendment violations, Second Amendment harms can be addressed with monetary damages, lacking the need for preliminary injunctive relief. The Third Circuit, which declined to extend the presumption to the Second Amendment context, reinforced this conclusion by invoking principles of judicial restraint, cautioning federal courts against invalidating democratically enacted state gun legislation on a premature record. These laws deserve full consideration on the merits.

Recommended!

Jonathan Goldstein (University of Pennsylvania Carey Law School) has posted The Post Office Was the General Store: Sensitive Functions, Absent Premises, and the Post-Office Carry Ban on SSRN. Here is the abstract:

Modern law begins from an inverted premise: the armed citizen in the post office is treated as the problem, and the gun-free federal building as the timeless baseline. The history runs the other way. It is not that the post office sat inside a store and therefore could not be sensitive. At the founding, nearly everything sat inside a store or a tavern: the Congress of the Confederation sat in the French Arms Tavern, the War Office in Fraunces Tavern, and the Supreme Court above an open-air market. The building never carried the rule. What carried the rule was the function. The founding generation designated sensitive occasions rather than sensitive addresses—Delaware in 1776 disarmed “the said elections,” and Virginia in 1786 disarmed the man who came before “the justices of any court . . . doing their office”—and it never designated the mail. It could not have. The Post Office Acts of 1792 and 1825 gave the Postmaster General no premises to regulate; they required only that “every deputy postmaster shall keep an office,” a duty that ran to the man and not to the room. There would be no federal Supervising Architect until 1852 and no Division of Post Office Quarters until 1916. After New York State Rifle & Pistol Ass’n v. Bruen, the government bears the burden of producing a founding-era tradition that would justify disarming the law-abiding citizen at the post office. It must therefore produce a tradition of regulating premises the sovereign did not possess. This Article marshals the affirmative record—the Postal Service’s own institutional history, federal historic-site nominations, the surviving account books of merchant-postmasters, and the practice of a postal system that itself carried, mailed, and guarded arms—and shows that the post office is among the poorest available candidates for a founding-era “sensitive place.” The burden is the government’s, and on this record it cannot carry it.

Recommended!

Devnarayan Meena (Mohanlal Sukhadia University) has posted From ‘Cockroaches’ to Constitutional Citizens: Protest, Police Power and Judicial Review in India on SSRN. Here is the abstract:

The emergence of the youth-led Cockroach Janta Party, referred to in this article as the CJP, marks a significant development in the changing character of democratic protest in India. Originating as a satirical digital response to widely reported oral observations made during a Supreme Court hearing, the movement expanded into a broader platform expressing discontent over examination irregularities, paper leaks, unemployment, student distress and governmental accountability. The mobilisation of students and young citizens, the police response to demonstrations in Delhi, the use of surveillance technologies, restrictions on digital communication and the intervention of constitutional courts have converted what began as an online protest into a serious legal controversy. This article examines the movement through Articles 14, 19 and 21 of the Constitution of India. It distinguishes oral judicial observations from binding adjudication; analyses peaceful assembly, unlawful assembly and individual criminal responsibility; and evaluates police power under the Bharatiya Nagarik Suraksha Sanhita, 2023. It also considers artificial-intelligence-assisted surveillance, facial recognition, digital evidence and temporary suspension of internet services. The article situates Indian constitutional law within the international human-rights framework, particularly the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, General Comment No. 37 of the United Nations Human Rights Committee and the United Nations standards governing police force. It argues that Gen Z must be understood not merely as a demographic or a digital audience, but as an emerging constitutional actor. Digital mobilisation does not exempt protesters from criminal law; equally, public-order responsibility does not give the State an unrestricted licence to surveil, collectively punish or use disproportionate force. The constitutional answer lies in individualised responsibility, proportionate policing, transparent restrictions, preservation of evidence and effective judicial review.

Featured on Legal Theory Blog

Theoretically yours,
Lawrence Solum

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• Audra Savage, The Whitewashing of Religious Liberty, Highly Recommended

• Ilan Wurman, “Set Aside”, Highly Recommended

• Kevin Frazier, Will AI Pass the Kayla Test?, Recommended

• G. Alex Sinha, Vengeance Under Color of Law, Recommended

• Cesare Cavallini, Appellate Architecture As Constitutional Design: A Comparative Perspective On The Regulating Court, Recommended

• Abdul Aziz Meslat, The Constitutional Architecture of Presidential Impeachment in The United States: Historical Origins, Doctrinal Interpretation, and Institutional Practice, Featured on Legal Theory Blog

• Alexandra B. Klass, Building Judicial Narratives for Climate Accountability Litigation, Featured on Legal Theory Blog

• Helen J. Knowles-Gardner, “Command the Air and You Command the Market”: The Story of KVOS v. Associated Press (1936), Featured on Legal Theory Blog

Audra Savage (Wake Forest University – School of Law) has posted The Whitewashing of Religious Liberty on SSRN. Here is the abstract:

The Supreme Court’s history-and-tradition methodology systematically erases the racial dimensions of religious liberty cases, most recently demonstrated in the Landor v. Louisiana Department of Corrections case. Race and religion in America are co-constitutive—each having shaped the legal and social meaning of the other since the colonial enslavement of African peoples. The Court’s treatment of them as doctrinally separate categories produces Religion Clause jurisprudence that appears facially neutral yet it structurally privileges the religious practices of the dominant white Christian tradition, while marginalizing the religious expressions of racial-religious minorities.

This Article presents the racial erasure problem through five doctrinal case studies: the Establishment Clause (Lemon v. Kurtzman); the definition of religion (Africa v. Commonwealth of Pennsylvania); the Free Exercise Clause (Church of the Lukumi Babalu Aye v. City of Hialeah); conscientious objector doctrine (Clay v. United States (Muhammad Ali)); and RLUIPA (Landor). The Article will discuss implications of the historical and modern erasure by offering a differential analysis of the religious liberty claims by a high school football coach (i.e., Kennedy v. Bremerton) and an incarcerated Rastafari with dreadlocks (i.e., Landor). It will conclude with a call for an alternative history-and-tradition approach that is anchored in the Second Founding of Reconstruction.

Highly Recommended!

Ilan Wurman (University of Minnesota Law School) has posted “Set Aside” on SSRN. Here is the abstract:

The Supreme Court has reined in universal injunctions, but a debate remains over whether the Administrative Procedure Act (APA) authorizes judges to vacate administrative regulations universally through its “set aside” language. This Article traces the first authorizations for a regulatory “set aside” to two statutes enacted on the same day in 1938: the Federal Food, Drug, and Cosmetic Act and the Fair Labor Standards Act. In both statutes, the regulatory set-aside was sharply limited in ways inapplicable to the modern APA. This Article centers the importance of these two statutes to the current interpretive debate. The legislative debates over the first law constituted the only time prior to the APA that something like a universal vacatur power in individual judges was debated. The final language was altered to avoid the result. And the text of the latter law expressly authorized courts to set aside a regulation only “in so far as it is applicable to the petitioner.” The Article then investigates the importance of APA § 704, which makes judicial review available only for final agency action “for which there is no other adequate remedy in a court.” Historical practice both before and after 1938 suggests that, at the time of the APA’s enactment nearly a decade later, a party had an adequate remedy against unlawful regulations in an enforcement proceeding, and so direct review of regulations would usually have been unauthorized by the APA and the judicial set-aside power would not have reached such regulations. Modern doctrinal developments, however, have rendered this old regime effectively unintelligible. Whether and to what extent vacatur should apply to informal agency regulations may be more a matter of policy than law.

Highly Recommended!

Kevin Frazier (The University of Texas School of Law) has posted Will AI Pass the Kayla Test? on SSRN. Here is the abstract:

Kayla drives for Lyft in Morgantown, West Virginia. Asked about AI, she said nothing about chatbots. She spoke about data centers—about her family’s land, her children’s job prospects, and a state asked once again to bear the costs of a national economic project whose benefits accrue somewhere else. Her story rarely enters AI policy debates.

This essay argues it belongs at their center. The argument proceeds from a simple observation. West Virginia has among the lowest rates of AI adoption in the nation and among the fastest-growing concentrations of AI infrastructure. That mismatch is not an accident. It is the predictable result of a technology developed on the coasts and powered in between. If the land, water, and political tolerance of working-class communities are going to sustain a national project, then those communities must be made whole—and given a genuine voice in the project’s direction.

The essay pursues that goal in three parts. Part I proposes the terms of a new social bargain: a national commission that converts data center siting from a local imposition into a compensated national project; an AI Literacy Corps that pairs underemployed young Americans with the communities least served by AI; and a democratically ratified process for selecting the values that steer frontier models. Part II supplies the informational precondition for that bargain—a standardized AI Values Framework disclosure regime, administered by the states and grounded in two forgotten chapters of American regulatory history: corporate purpose clauses and food nutrition labels. Part III explains why none of this can wait. Public frustration with AI is mounting faster than existing institutions can process it, and history teaches that such pressure demands release. The essay accordingly proposes a Commission on AI, modeled on the United States Industrial Commission of 1898, through which Congress can channel that frustration into considered legislation rather than blunt reaction.

The labs are not being asked to sacrifice. They are being offered a trade: concrete obligations in exchange for legitimacy, regulatory predictability, and a public with genuine reasons to want AI to succeed. The question is whether the industry accepts that bargain before the window for a pragmatic framework closes.

Recommended!

G. Alex Sinha (Maurice A. Deane School of Law at Hofstra University) has posted Vengeance Under Color of Law on SSRN. Here is the abstract:

The second Trump Administration is proudly vengeful. From the top down, federal officials openly and explicitly retaliate against people, institutions, and even entire regions of the country deemed oppositional or disloyal. This description is not even debatable; the president has embraced it. Officials implement their policy of political vengefulness using both informal and formal channels. Informally, they engage in jawboning and otherwise exploit easy access to journalists and huge audiences on social media to denigrate their foes to the public and threaten adverse action. More troubling, however, are the administration’s varied and retaliatory uses of the formal levers of federal executive power. Federal officials have initiated civil and criminal investigations into perceived political opponents, withheld appropriated money from blue states specifically, and deployed large numbers of barely-trained armed agents to Democratic districts.

Many grave implications flow from this punitive orientation, but one of the gravest is that it has laid utter waste to the landscape for free speech. For over half a century, free-speech law has radiated outward from a single, core principle: the First Amendment abhors government action aimed at amplifying or suppressing private political speech based on its message. The courts have distilled a series of more discrete rights from this general principle, and enforcing these rights has never been easy. But the animating spirit of free-speech rights is quite literally anathema to political vengefulness.

The First Amendment can bear only so much dissonance between what judges have told us for decades and what the Executive Branch models now. Federal political vengefulness forces on us a difficult choice: completely revamp our understanding of free-speech law to align with the current administration’s practices, or attempt to reclaim the rights the Constitution purportedly promises us. This paper attempts the latter, and it argues that the path forward runs through a reassessment of law enforcement specifically. Policing often takes place in spaces where civilian free-speech protections are at their legal zenith, and law enforcement agents possess distinctive coercive authority. Moreover, data increasingly demonstrate that law enforcement—both at the federal and local level—has become politicized in a way that conflicts sharply with the defining neutrality norms of free-speech law. As a result, law enforcement officers are responsible for many of the most dramatic violations of free-speech rights—not just in spirit, but also in legal fact.

Yet, despite these parallels, the paper argues that federal and local law enforcement officers increasingly diverge in their approach to the First Amendment. Drawing on constitutional training materials obtained under FOIL from dozens of police training academies, this paper argues that current federal law enforcement officers and local police now adhere to two completely different models of free-speech rights. Although the policing model is clearly superior to the federal model, both are legally wrong and practically undesirable; they are calibrated to each group’s distinct and narrow legal liabilities rather than to free-speech caselaw itself. This paper thus introduces and endorses a third model of free-speech rights, and it argues for specific expansions of law enforcement liability for constitutional violations to push agencies toward accepting the new model. If courts continue to permit vengeance under color of law, we will have no choice but to radically redefine the meaning of “freedom of speech.”

Recommended!

Cesare Cavallini (Bocconi University, Department of Law) has posted Appellate Architecture As Constitutional Design: A Comparative Perspective On The Regulating Court on SSRN. Here is the abstract:

Italian civil procedure is a constitutional argument waiting to be read. This Article reads it. Three structural features of the Italian appellate system bear on questions of general significance that American procedural scholarship has addressed almost entirely within its own institutional frame: the epistemological foundations of second-instance review, the conditions under which judicial creativity remains democratically controllable, and the functional transformation of the Court of Cassation toward a regulating institution. Each produces findings that complicate prevailing assumptions. Full merits appeal is defensible not as a cultural residue but as an epistemological necessity: restricting second-instance courts to supervisory review of judicial reasoning contradicts the adversarial premise on which such proposals rest. The Court of Cassation’s record of creative-evolutionary adjudication demonstrates that interpretive ambition and democratic controllability are structurally compatible, a conclusion previously established through the entrenchment/reversibility framework and here applied to the architecture of intermediate and supreme court review. And the Court of Cassation’s progressive shift toward selective, systemic intervention reflects a functional convergence with apex courts in the United States and the United Kingdom that the dominant subjective account of cassation jurisdiction cannot explain. The Article draws no proposal for the wholesale redesign of either system’s appellate architecture. Its contribution is analytical and, on two points, normative. The first is corrective: the proposal to reconceive Italian appellate review as supervision of first-instance reasoning rather than reconsideration of the merits contradicts the adversarial premise it invokes. The adversarial epistemology that grounds both systems supports full merits review in the second instance no less than the first. The second follows from the regulating court model itself: if the Court of Cassation already functions as a regulating institution, the current formulation of Article 360(5) of the Code of Civil Procedure is constitutionally permissible but institutionally misaligned with the function the Court has assumed, a narrow implication rather than a reform program. These findings, and the comparative analysis of judicial creativity and apex court governance that supports them, demonstrate that the institutional arrangements American proceduralists treat as default settings are choices whose justifications must be supplied, not assumed.

Recommended!

Abdul Aziz Meslat (International Criminal Court) has posted The Constitutional Architecture of Presidential Impeachment in The United States: Historical Origins, Doctrinal Interpretation, and Institutional Practice on SSRN. Here is the abstract:

This paper examines the constitutional foundations of the presidential impeachment power in the United States. It situates the modern doctrine within its English parliamentary antecedents, the deliberations of the Constitutional Convention of 1787, and the ratification debates recorded in The Federalist and the state conventions. It then analyses the enduring interpretive controversy surrounding the phrase ‘high Crimes and Misdemeanors’, tracing the narrow, indictable-offence tradition associated with Raoul Berger against the broader, functional tradition associated with Charles Black, Michael Gerhardt, Frank Bowman, Cass Sunstein, and Laurence Tribe and Joshua Matz. The paper describes the procedural architecture governing impeachment in the House and trial in the Senate, including the Supreme Court’s holding in Nixon v. United States that the conduct of an impeachment trial is a non-justiciable political question. It reviews, in detail, the four instances in which a President has faced impeachment — Andrew Johnson, Richard Nixon, Bill Clinton, and Donald Trump, impeached twice — and the 1876 impeachment of former Secretary of War William Belknap, the principal precedent bearing on the impeachability of former officers. The paper closes by examining several doctrinal questions that remain unsettled: the constitutionality of ‘late impeachment’, the relationship between impeachment and the ordinary criminal law, and the competing interpretive methodologies that continue to divide constitutional scholars. It concludes that “impeachment is properly understood not as a species of criminal adjudication but as a distinct, and deliberately open-textured, constitutional mechanism for the political accountability of high public office.”

Featured on Legal Theory Blog

Alexandra B. Klass (University of Michigan Law School) has posted Building Judicial Narratives for Climate Accountability Litigation (76 DePaul Law Review, forthcoming) on SSRN. Here is the abstract:

It has been nearly ten years since the first climate accountability lawsuits were filed by state and local governments against major oil and gas companies and their trade association, the American Petroleum Institute, seeking damages and/or civil penalties for deception and other harms associated with greenhouse gas (GHG) emissions. If any of these climate accountability cases move forward to the fact-finding stage, courts will not have a lot of climate-related precedent available. While there are numerous cases where federal and state courts have reviewed administrative agency decisions to consider or not consider GHG emissions in issuing permits or setting regulatory standards, the role of courts in those cases was not to make their own factual findings (or review findings made by a jury) but instead to evaluate whether an agency’s actions were arbitrary and capricious or otherwise inconsistent with applicable law. Even in the climate accountability cases to date that have rejected the defendants’ preemption and other defenses and begun discovery, there is no developed “judicial narrative” on how climate harms fit within existing legal frameworks under state statutory or common law.

This Article, written for the 32nd Annual Clifford Symposium on Tort Law and Social Policy, explores potential tools for creating a more robust judicial narrative for courts to use in addressing the merits of pending climate accountability lawsuits as well as future claims seeking relief from climate harms. These tools include cases applying state constitutional provisions designed to allow citizens to engage the courts to protect the environment, along with cases that could be brought under existing and proposed state environmental rights statutes, climate superfund laws, and modern “Green Amendments” to state constitutions. This Article also reflects on why courts have an important role to play in addressing liability and damages for climate harms alongside legislatures and regulators.

Featured on Legal Theory Blog

Helen J. Knowles-Gardner (Institute for Free Speech) has posted “Command the Air and You Command the Market”: The Story of KVOS v. Associated Press (1936) on SSRN. Here is the abstract:

This article tells the story of KVOS v. Associated Press (1936), the decision in which has become a lost footnote in Supreme Court history. The justices never reached the merits of the case in KVOS, but it still commands our attention because, as Rogan Jones, the Pacific Northwest broadcast entrepreneur and owner/operator of radio station KVOS, repeatedly emphasized – all that was at stake was the future of “free speech.”

Featured on Legal Theory Blog

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• Rebecca Stone, Democratic Defaults, Highly Recommended

• Dan Priel, Bentham’s Children: Intellectual Lineages in Jurisprudence, Highly Recommended

• Austin S. Martin, Consent-to-the-Law Decrees, Recommended

• Conor Clarke & Eric Kubo, Foreword: The Constitution and Public Finance—Why Now and Why Ever?, Recommended

• Cory Andrews, The Freedom to Receive: An Originalist Case for the Listener’s First Amendment, Recommended

• Jie Wang, Proof After Compression: Copyright Infringement in AI Systems, Recommended

• Vadim Suhov, The Evolution of Gagauzia’s Legal Status in the Case Law of the Constitutional Court of the Republic of Moldova, Featured on Legal Theory Blog

• Kimberly West-Faulcon, Not Colorblind, Featured on Legal Theory Blog

Rebecca Stone (University of California, Los Angeles (UCLA) – School of Law) has posted Democratic Defaults, 42 Yale Journal on Regulation 1498 (2026) on SSRN. Here is the abstract:

Prominent analyses of contractual default rules are ex ante in orientation. According to economic accounts, default rules, like the rules of contract interpretation, should be designed to further the substantive objective of social welfare maximization either by filling gaps with terms that maximize the parties’ joint welfare or by giving parties incentives to write such terms themselves. According to accounts that view the freely given assent of the parties as morally salient, what matters morally is that the filling of contractual gaps doesn’t interfere with their procedural freedom to set their own terms for their relationship. So long as that constraint is satisfied, contractual default rules may be designed to further other values.

On my democratic conception of contract, by contrast, what matters is that default rules, like the rules of interpretation, help the parties to realize a plausible shared joint vision of justice for their relationship. The parties are the ones who are morally authorized to resolve morally uncertain matters of justice between them, but, because the ultimate ground of their moral authority is substantive justice, they are duty-bound to do so in good faith together. A morally valid contract is a product of such efforts. Thus, procedurally, it must reflect the parties’ good faith joint effort to resolve moral uncertainty about justice, and substantively, it must constitute a plausible resolution of what justice between the parties requires.

Contract law ought to be designed to facilitate such efforts. Courts should elaborate the parties’ agreement in a way that makes sense of it as a joint vision of justice for their relationship, while also ensuring that judicial judgments don’t displace the parties’ own joint judgments about what justice between them requires. In the realm of interpretation, this means that a robust duty to treat one another in good faith must be part of any morally valid agreement, but that courts must be suitably deferential to the joint judgments of the parties when determining what that duty entails. In the realm of gapfilling, it means that the defaults the law constructs ought not simply to try to approximate what the parties would have decided at the moment of contracting. Instead, they should design neutral benchmarks that facilitate the parties’ ex-post deliberations about how gaps ought to be filled, while also ensuring that a reasonably just vision for the parties’ relationship is implemented should such deliberations fail. The upshot is that the democratic conception supports the construction of “majoritarian default rules.” This is not for the standard reason sometimes offered by economists that such defaults promote efficiency, a rationale that is unlikely to hold up when contracting parties are sufficiently heterogeneous. On the democratic conception, majoritarian defaults are desirable because they inform the parties about the typical case without second guessing relationship-specific matters of justice, thus setting a fair and neutral baseline for the parties’ own deliberations about how gaps should justly be filled.

Highly Recommended!

Dan Priel (City University of Hong Kong (CityU) – School of Law; York University – Osgoode Hall Law School) has posted Bentham’s Children: Intellectual Lineages in Jurisprudence on SSRN. Here is the abstract:

There is a familiar intellectual line that starts with Jeremy Bentham and ends with contemporary legal positivism. But Bentham also has a good claim to being a founding figure of two other jurisprudential traditions, naturalistic jurisprudence (and within it, law and economics) and realist-critical jurisprudence. This may seem surprising as these three approaches are often seen as antagonistic. At the same time, this may suggest a possible way to reconciling these approaches: if Bentham could be analytic, naturalistic, and critical at the same time, why can’t we? In turn, this may suggest that the opposition between these different approaches could be explained away as the result of superficial differences or misunderstandings, and as such as path to reconciliation between these intellectual traditions. Unfortunately, I argue that the source of disagreement is different. It has to do with something that critical jurisprudents got right, and that most analytical jurisprudents got wrong: jurisprudence is political. I argue that at the foundation of analytic jurisprudence has been a commitment to political liberalism, a political stance that most proponents of critical jurisprudents have rejected. If I am right, reconciling the jurisprudential approaches will prove as easy as resolving this political divide.

Highly Recommended!

Austin S. Martin (Massey & Gail LLP) has posted Consent-to-the-Law Decrees on SSRN. Here is the abstract:

Federal courts have long embraced obey-the-law injunctions and consent decrees as practical tools to efficiently resolve disputes. But the theory behind courts’ authority to use these tools rests on legal fictions, thin justifications, and conflicting case law. And when courts combine the two, their underlying doctrines clash. Consent decrees that contain obey-the-law injunctions, or “consent-to-the-law decrees,” violate basic rules of contract theory and longstanding principles of equity embodied in Federal Rule of Civil Procedure 65(d). Moreover, most consent-to-the-law decrees fail the Supreme Court’s alternative to Rule 65(d) under National Labor Relations Board v. Express Publishing Co., 312 U.S. 426 (1941), which permits a district court to issue an obey-the-law injunction where it rests on factual findings about the defendant’s conduct. Recent FTC practice shows how the government can secure sweeping consent-to-the-law decrees—even against sophisticated corporate defendants—that swallow other doctrines designed to balance flexibility and finality in judicial remedies.

To avoid judicial aggrandizement and promote respect for longstanding equitable restrictions on judicial power, federal courts evaluating proposed consent-to-the-law decrees should force the parties to develop a factual record related to the defendant’s conduct giving rise to the dispute. District courts should reject or decline to enforce consent-to-the-law decrees that lack a factual foundation. Appellate courts should similarly presume consent-to-the-law decrees invalid under Rule 65(d) unless the parties can demonstrate that the district court made sufficient factual findings to satisfy Express Publishing. Stricter adherence to Express Publishing and Rule 65(d) will prevent roving judicial enforcement and protect defendants’ rights.

Recommended!

Conor Clarke and Eric Kubo (both Washington University in St. Louis School of Law) have posted Foreword: The Constitution and Public Finance—Why Now and Why Ever?, Washington University Law Review (forthcoming) on SSRN. Here is the abstract:

This paper introduces the Washington University Law Review’s 2026 symposium issue on “Taxing, Spending, and the Constitution.” We situate the symposium’s ten papers within three interconnected developments in public finance law: the Supreme Court’s recent decision on the Sixteenth Amendment in Moore v. United States; the Trump Administration’s assertions of executive control over appropriated funds; and the use of emergency and trade statutes to justify sweeping tariff authority.

We also step back to ask why constitutional issues in public finance—long treated as a technical backwater—have become such a central site of doctrinal and political conflict. We offer several explanations beyond the obvious role of the Trump Administration itself: the Constitution’s unusually extensive textual commitments on money and taxation; a rich post-ratification history of practice that has taken on new salience amid the Supreme Court’s turn toward history-and-tradition analysis; and the broader trends of congressional gridlock and skepticism of the administrative state that (we contend) have pushed public finance disputes onto constitutional terrain.

Recommended!

Cory Andrews (Washington Legal Foundation) has posted The Freedom to Receive: An Originalist Case for the Listener’s First Amendment on SSRN. Here is the abstract:

In March 1768, the Boston town meeting voted its thanks to John Dickinson for having “awakened” and “instructed” America — verbs that locate the value of expression in the minds that received it. Two centuries later, when the Supreme Court first struck down an Act of Congress under the Speech and Press Clauses, it did so on behalf of a reader; yet Justice Brennan’s concurrence in Lamont v. Postmaster General offered the right to receive almost apologetically, as an unenumerated inference “necessary to make the express guarantees fully meaningful.” This Article contends the apology was unnecessary and the inference too modest. Applying the Supreme Court’s demanding historical test for constitutional rights — text, founding-era understanding, and a regular course of practice, the method of Heller, Bruen, and Trump v. Slaughter — it makes the originalist case that the freedom of speech and of the press, as understood in 1791, protected a single transaction from origin to terminus, and that the listener’s side was not derived from the speaker’s but stood with it from the start. The evidence runs from the era’s dictionaries and the First Amendment’s own structure, through the founding generation’s reception culture and the constitutional settlement of 1836 — when the Senate refused reader-side censorship even in states-rights dress — to an eighty-year doctrinal line without a square repudiation. The Article confronts the strongest counterevidence directly: the Sedition Act, at the height of the founding era’s fury, wrote no offense a reader could commit. What the Court did in 1965 was not an invention. It was a recovery — and as First Amendment doctrine enters an era of historical audit, the right to receive is among the few modern rights that can meet the Court’s test on its own terms.

Recommended!

Jie Wang (Southwest University of Political Science and Law) has posted Proof After Compression: Copyright Infringement in AI Systems on SSRN. Here is the abstract:

Copyright proof has long established copying through a connection between a specific source and a specific output. When millions of works are compressed into a single model, the same process that gives the model generative power eliminates any record of which source contributed which feature of which output. That information is gone. Access and similarity remain observable, but what they once revealed is no longer recoverable at the level of detail prior doctrine assumed. The conditions that any such connection would have to satisfy, however, remain within the law’s reach. Three are observable: the circumstances of training, the model’s capacity to retain what it absorbed, and the features of the output itself. The fourth is settled only by elimination: whether any explanation independent of the source accounts for the resemblance. Copyright proof must shift from reconstructing the connection to verifying those conditions. This is proof after compression. Proof after compression works within copyright’s existing commitments. Strict liability, the idea-expression distinction, plaintiff-side proof of copying, and adversarial adjudication all remain in place. Verification alone would let source-specificity collapse into protectability. The exclusion method holds the two apart: only a source-specific residuum that survives the elimination reaches copyright’s unchanged protectability inquiry. Condition verification must also preserve rational inference, respect doctrinal limits, and permit meaningful adversarial contestation: three requirements this Article institutionalizes as Risk Path Proof, a four-element evidentiary framework that allocates burdens by observability and structures the defendant’s challenge through specific alternative explanations. The leading AI copyright cases show what the framework must do and where its limits fall. The failure they expose has a doctrinal answer. The diagnosis beneath the failure reaches further.

Recommended!

Vadim Suhov (Comrat State University) has posted The Evolution of Gagauzia’s Legal Status in the Case Law of the Constitutional Court of the Republic of Moldova on SSRN. Here is the abstract:

The study examines the constitutional and legal evolution of the special legal status of Gagauzia through the case law of the Constitutional Court of the Republic of Moldova from 1995 to 2026. The study aims to identify the legal mechanisms that have shaped the development of Gagauzia’s autonomy after the constitutional recognition of its special status and to determine its place within the comparative typology of contemporary territorial autonomies. The research is based on doctrinal analysis, formal legal and comparative legal methods, as well as a systematic examination of the Constitutional Court’s jurisprudence concerning the distribution of powers between the autonomous territorial unit of Gagauzia and the central public authorities. Particular attention is paid to the Constitutional Court’s Judgment of 9 July 2026, which is considered a milestone in the formation of a coherent judicial doctrine of autonomy. The study demonstrates that the evolution of Gagauzia’s legal status has occurred primarily through constitutional interpretation rather than through substantial legislative reform. On this basis, the article distinguishes between static, dynamic and interpretative autonomy as analytical categories describing different dimensions of the constitutional development of autonomous regimes. It further argues that the Constitutional Court has developed a judicial doctrine of the functional limits of autonomy, according to which the scope of autonomous regulation depends not only on the formal allocation of competences but also on the nature of the relevant public functions. The comparative analysis shows that existing classifications of territorial autonomies should be complemented by an additional analytical criterion—the mechanism of institutional evolution. From this perspective, Gagauzia represents a distinct model of interpretative autonomy, in which constitutional adjudication functions as the principal mechanism of institutional development. The findings contribute to the broader theory of territorial autonomy and constitutional adjudication in unitary states.

Featured on Legal Theory Blog

Kimberly West-Faulcon (Loyola Law School Los Angeles) has posted Not Colorblind on SSRN. Here is the abstract:

This Essay criticizes the use of the term “colorblind” in reference to attacks on racial diversity, equity, and inclusion (DEI) policies. It argues it is inapt and unconscionably obtuse to use colorblindness terminology to selectively target inclusion-motivated race consciousness for automatic illegality. The Essay’s central project is to examine claims underlying attacks on racial inclusion policies such as the Students for Fair Admissions v. Presidents and Fellows of Harvard College lawsuit to expose the legal endgame that anti-DEI forces seek to make a centerpiece of America’s future. In so doing, it surfaces the differential scrutiny of race consciousness that the not-colorblind attacks on DEI seek to install.

Featured on Legal Theory Blog

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• Mihailis Diamantis, Corporate Virtue and Vice, Highly Recommended

• Samuel Moyn, A Letter to Hans Kelsen on the Use of Force, Highly Recommended

• Mingdong He, Floors and Ceilings: A Hohfeldian Analysis of Artificial Intelligence Governance, Recommended

• Tania N. Valdez, Deporting Disability, Recommended

• Trace Maddox, Birthright Citizenship Before the Fourteenth Amendment, Recommended

• Emily Berman, The Uninvestigable President: Executive Accountability after Trump v. United States and Trump v. Slaughter, Recommended

• Ben Oloko, Judicial Roulette: The Political Economy of Doctrinal Uncertainty in the Recent Jurisprudence of The Supreme Court of Nigeria, Recommended

• L. Ali Khan, War Crimes or Crimes against Humanity: The Unaccountability of the U.S. President, Featured on Legal Theory Blog

Mihailis Diamantis (University of Iowa – College of Law) has posted Corporate Virtue and Vice (The Nature of Corporations (Jonathan Hardman, Stever Kourabas, Billie Lytheberg, Christoph Van der Elst & Susan Watson eds., 2027)) on SSRN. Here is the abstract:

Authorities and academics primarily evaluate corporations through their behavior. But consumers, investors, and many corporate professionals implicitly evince an alternative perspective. For them, what matters is not just what corporations do, but also the deeper structures behind corporate behavior. While corporations might innovate, they can also be innovative. While they might lie, they can also be dishonest. Such traits of character vary from corporation to corporation, anchoring predictable patterns of behavior. Judgments about corporate character shape how people, both professional and lay, respond to the businesses they interact with on a daily basis. This chapter introduces virtue theory as a framework for formalizing this lay perspective on corporations. The virtue ethical picture turns on an understanding of corporate purpose and of the internal business mechanisms that reliably realize or thwart it. The practical orientation of authorities and academics, which fixates on corporate action rather than on deeper corporate structure, generates several well-known corporate pathologies, like managerial short-termism and criminal recidivism. By excavating and systematizing the theory and governance structure of corporate virtue and vice, lawmakers might uncover more reliable techniques for understanding, evaluating, and influencing corporate conduct.

Highly Recommended!

Samuel Moyn (Yale University – Law School) has posted A Letter to Hans Kelsen on the Use of Force on SSRN. Here is the abstract:

In the last days of 1966, John Fried wrote a letter to Hans Kelsen. American by emigration, Austro-Hungarian in their origins, and international lawyers both, Fried and Kelsen were colleagues—and family. At the time, Fried, Kelsen’s nephew, was the behind-the-scenes organizer of the ragtag band of international law experts contesting America’s escalation of the Vietnam war. In the letter, Fried agonized over the authority that Kelsen, by far the most famous international lawyer of the twentieth century, had ostensibly furnished Lyndon Johnson’s administration for what had become a gargantuan enterprise—and what had begun, Fried insisted, as a flagrantly illegal war, regardless of its consequences or scope. The letter is a fascinating and moving historical document that has to be deciphered in its context. It is likewise, I believe, a commentary on our own contemporary dilemmas about the uses of international law, or even law as such, and the spirit in which to think about both. After all, we have our wars, too, and our agonizing uncertainties about how and whether to turn to law to restrain them — indeed, about how best to think about law’s relation to morality and politics in the first place. If the rule of law Fried and Kelsen followed, in their different ways, brought them to this, of what use was the rule of law?

Highly Recommended!

Mingdong He has posted Floors and Ceilings: A Hohfeldian Analysis of Artificial Intelligence Governance on SSRN. Here is the abstract:

Debate over artificial intelligence governance is organised along a single axis running from permissive to restrictive. This article argues that the axis obscures a distinction of jural type. Using Hohfeld’s analysis of fundamental legal conceptions, I show that instruments imposing determinate obligations (floors) and instruments licensing persons (ceilings) operate at different orders of legal relation: the first imposes a duty correlative to a right; the second confers a power on an administrative body, correlative to a liability in the researcher — a susceptibility to having one’s legal position altered without having done anything wrong. The second-order character of ceilings explains four otherwise puzzling features: their resistance to textual constraint, their attractiveness to capture, the monotonicity of their incidence in firm size, and their resistance to downward revision. I derive a six-part test classifying a proposed instrument from the face of its text — distinguishing floors, defective floors, and ceilings — and apply it to four near-simultaneous interventions of 2025–2026, clause by clause to the EU Artificial Intelligence Act — which contains both forms — and to the Chinese position, whose pairing of domestic permission with state-encouraged diffusion both instantiates the framework’s predictions and disciplines its addressees elsewhere. The claim that ceilings redistribute participation toward incumbents is evidenced from the GDPR natural experiment and the occupational-licensing record. Comparative analysis of recombinant DNA governance, pharmaceutical authorisation, and aviation incident reporting identifies when a ceiling is warranted; eight floor-compatible instruments are set out, with a candid feasibility note on mandatory insurance. I conclude with the conditions on which the framework’s fate depends, including the one that would defeat it on the point that matters most.

Recommended!

Tania N. Valdez (Santa Clara University – School of Law) has posted Deporting Disability on SSRN. Here is the abstract:

Since the enactment of the earliest migration laws in the United States, people with disabilities have been targeted for exclusion and expulsion based on stereotypes that they are either dangerous or not productive. Although some of the pejorative language regarding disability in the Immigration and Nationality Act (INA) has changed over time, certain statutory provisions and the very structure of the INA still allow ableism to operate broadly in immigration adjudications. This Article focuses on the subtle, but pervasive, ways that immigration law disfavors noncitizens with disabilities. In particular, this Article examines ableism in the context of removal (commonly known as “deportation”) proceedings, with a focus on two aspects: (1) the exercise of discretion in adjudicating requests for relief, and (2) determinations of whether a noncitizen’s testimony is credible.

In removal proceedings, immigration adjudicators have broad discretion to grant or deny relief, even when a noncitizen has met otherwise stringent statutory requirements. For example, a refugee who cannot maintain steady work because employers do not provide adequate accommodations for his disability may fulfill all the statutory requirements for a defense from deportation, but ultimately may be denied relief if the immigration judge determines that he is not contributing enough to society due to his difficulties with employment. Likewise, manifestations of certain disabilities can also have an impact on credibility assessments, such as when a person’s disability results in their demeanor not conforming to what the adjudicator expects to observe during testimony. By focusing on discretion and credibility—two fundamental components of deportation cases—this Article reveals the extent to which ableism permeates even facially neutral aspects of immigration law and policy. It also proposes several paths toward eradicating ableism in removal proceedings.

Recommended!

Trace Maddox (LSU Paul M. Hebert Law Center) has posted Birthright Citizenship Before the Fourteenth Amendment on SSRN. Here is the abstract:

After well over a century in relative obscurity, the doctrine of birthright citizenship has reentered the public consciousness in a big way. In one of the first acts of his second term, President Donald Trump issued an executive order asserting that the citizenship of children born in the United States is contingent upon the status of their parents. And although the Supreme Court has now stricken down that order, the window of discourse has nevertheless shifted: birthright citizenship endures today only at the expense of the 150-year-old consensus that the Fourteenth Amendment’s Citizenship Clause really does mean what it says.

Yet birthright citizenship as a principle of American constitutional law does not rest solely on the text of the Citizenship Clause. The doctrine that attributes citizenship to almost every child born on American soil has far deeper roots. In the century and a half since the adoption of the Fourteenth Amendment, these foundations have been largely omitted from standard accounts of American citizenship—but as that Amendment suffers once-unthinkable political assaults, it becomes imperative to remember that it is merely declaratory of principles that have always been fundamental to the American constitutional order.

This Article fills a gap left by contemporary Fourteenth-Amendment-centered scholarship by examining the common- and natural-law foundations of birthright citizenship as understood by the Founders, the Framers, and the courts of the early United States. It draws on primary sources from the late-eighteenth and early-nineteenth centuries to demonstrate that antebellum jurists applied a rule of birthright citizenship as a matter of fundamental law—in other words, that birthright citizenship has always been recognized as a feature of the American constitution.

In restoring this context, this Article returns an important chapter to the history of American identity. Moreover, it refutes the accounts of those—including fully four justices of the Supreme Court of the United States—who would portray birthright citizenship as a modern aberration rather than as an American tradition as deeply rooted as the Constitution itself.

Recommended!

Emily Berman (University of Houston Law Center) has posted The Uninvestigable President: Executive Accountability after Trump v. United States and Trump v. Slaughter on SSRN. Here is the abstract:

Presidential accountability depends on information. Elections, impeachment, prosecution, and public judgment all require facts. And those facts are generated by a set of overlapping investigative mechanisms, including career investigators across the executive branch, inspectors general, and congressional committees, each capable of surfacing executive misconduct through distinct legal authorities and institutional incentives. Trump v. United States and Trump v. Slaughter threaten that architecture by weakening both internal executive branch investigation and external congressional scrutiny of executive action.

Formally, Trump v. United States concerns presidential immunity from criminal prosecution, while Trump v. Slaughter concerns the president’s removal power. Their joint significance for executive accountability, however, extends far beyond either doctrine. This Article provides the first sustained account of how Trump and Slaughter together restructure the government’s investigative architecture and threaten to produce an uninvestigable president. Trump insulated the president from the consequences of investigation; Slaughter consolidates his control over those who conduct it.

Recommended!

Ben Oloko (University of Nigeria) has posted Judicial Roulette: The Political Economy of Doctrinal Uncertainty in the Recent Jurisprudence of The Supreme Court of Nigeria on SSRN. Here is the abstract:

Public confidence in the Supreme Court of Nigeria is presently strained by a pattern this article calls doctrinal somersaulting: the tendency of coordinate or near-identical panels of the Court to hand down, within a short interval and often without express acknowledgment, decisions that point in opposite normative directions on the same point of law. Using three recurring and representative fault lines: locus standi in public interest litigation, dismissal from employment and the admissibility of unregistered registrable land instrument; this article traces the doctrinal history of each principle through the Supreme Court’s jurisprudence, with particular attention to the last decade, and interrogates the most recent cases in each line for what they reveal about the health of stare decisis in Nigeria. It integrates and engages directly with four recent contributions to this debate: Ubani, Odunaike and Ekundayo’s account of an oscillating locus standi jurisprudence; a rejoinder to that account, which recharacterised Okonjo-Iweala v Fawehinmi as a calibrating rather than a regressive decision; Idigbe and Ogunbadewa’s case note on the Supreme Court’s “unsettled verdicts” on employment rights; and Professor Osita Nnamani Ogbu’s lecture on the crisis in the application of the doctrine of judicial precedent. The article shows that the Supreme Court’s decision in Chief Nduka Edede v Attorney-General of the Federation, delivered three months after Okonjo-Iweala, complicates the taxonomy the rejoinder proposed, by denying standing even in what was clearly a facial challenge to the constitutionality of section 84(12) of the Electoral Act 2022—precisely the category of case the rejoinder’s taxonomy had assumed remained open to every citizen. The article then turns to the economic consequences of this pattern of doctrinal instability, drawing on the new institutional economics of Douglass North and its progeny to argue that unpredictability at the apex of the judicial hierarchy is not merely a professional irritant but a measurable drag on investment, contracting and capital formation; compounded in Nigeria’s case by the long lag between the commencement of litigation and its resolution at the Supreme Court, which means litigants and firms frequently plan and act on legal positions that have silently changed by the time their own matters are decided. The article concludes by adopting Ubani, Odunaike and Ekundayo’s call for doctrinal consistency, endorsing Professor Ogbu’s proposal that the Supreme Court should sit as a full panel before overruling itself and should renounce the practice of implied overruling. It finally proposes a concrete institutional mechanism—a standing Certainty Protocol; by which the Court might discipline its own departures from precedent.

Recommended!

L. Ali Khan (Washburn University School of Law) has posted War Crimes or Crimes against Humanity: The Unaccountability of the U.S. President on SSRN. Here is the abstract:

The modern United States presidency has evolved into an office with extraordinary powers that, in matters involving the use of force and international law, is insulated from meaningful domestic and international accountability. The paper introduces the Presidential Hexagon, a theoretical framework that identifies six interlocking dimensions that collectively produce presidential unaccountability: (1) singular executive authority, (2) the president’s status as the sole organ of foreign affairs, (3) commander-in-chief authority over the world’s most powerful military, (4) absolute immunity for core official acts, (5) the structural ineffectiveness of impeachment, and (6) legal and political obstruction of international criminal justice.

The article demonstrates how constitutional, statutory, judicial, and political mechanisms reinforce one another, creating a self-sustaining architecture of executive power. It analyzes the expansion of presidential authority through judicial doctrine, congressional delegations of war powers, the Supreme Court’s presidential immunity jurisprudence, and domestic measures intended to impede the International Criminal Court’s jurisdiction. It further examines the limited effectiveness of impeachment, the practical constraints posed by institutional resistance within the executive branch, and the growing influence of wealthy donors on presidential foreign policy.

The article argues that although the Rome Statute formally rejects immunity for heads of state, practical barriers—including U.S. domestic law, Security Council veto power, bilateral immunity agreements, and statutory protections—make international accountability for U.S. presidents highly unlikely. It concludes that the principal challenge is not to reduce presidential power but to restore credible legal accountability for the exercise of presidential power in matters involving war, international humanitarian law, and crimes against humanity. The Presidential Hexagon offers a new conceptual framework for understanding the constitutional and international dimensions of executive power in the twenty-first century.

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Lawrence Solum

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• Kip M. Hustace, Negligence Law as Antidomination in the Second Gilded Age, Highly Recommended

• Sepehr Shahshahani, Fact-Law Confusion, Highly Recommended

• Rachel Rothschild, The Collision of State Climate Tort Suits with Federal Deregulation, Recommended

• Larry Catá Backer, Structure, Legitimacy, and the Limits of Machine-Centered Derivation: An Analysis of Five AI Systems’ Third-Stage Attempts to Construct Machine-Centric Governance Policies for Legal Education, Recommended

• Rafał Mańko, From Ideology to the Common Good: Reconsidering the Critical Theory of Adjudication, Recommended

• Marc Johnson & Samson Jose, Redefining Parliamentary Sovereignty: We Do Not Believe in Fairy Tales Anymore, Featured on Legal Theory Blog

• R. Denisse Cordova Montes & Tamar Ezer, Addressing Homelessness and Hunger Through a Human Rights Approach Focused on Collective Responses, Featured on Legal Theory Blog

Kip M. Hustace (Seattle University School of Law) has posted Negligence Law as Antidomination in the Second Gilded Age (DePaul Law Review, Volume 76, Issue 1) on SSRN. Here is the abstract:

Negligence is often cast as mere accident law, the crass, prosaic way we seek compensation for injuries inadvertently caused. It seems especially unconnected to democracy, epitomizing private law and operating far from public governance. This Article argues, however, that negligence litigation serves a vital role in democracy by realizing freedom as nondomination, republican theory’s ideal of the absence of unaccountable power. From toxic products and shoddy engineering to insecure data storage and eradicable diseases, ubiquitous hazards form part of this structural unfreedom, especially in a landscape of enfeebled legislative and regulatory processes. By bringing and resolving negligence claims together, individuals and their communities constrain the otherwise untrammeled power of industries, corporate titans, and other elites to impose unreasonable risks on others. In doing so, they effect further aspects of nondomination: affirming their status as equal rightsholders and quasi-legislators in democracy, and creating an intergenerational record of risks and desired precautions with which they and their successors can seek future accountability. Under this account, negligence litigation provides an essential site of contestation and popular self-learning even in a legal regime that compensates injuries through social insurance or administrative claims processing. In developing this argument, the Article explains both how negligence law contains a core of antidomination potential and how negligence doctrine has changed to deliver more fully on that potential.

Highly Recommended!

This nifty paper draws on the republican concept of freedom as nondomination. If you are interested in this idea, a good starting place is the work of Philip Pettit, including Republicanism: A Theory of Freedom and Government (Oxford University Press, 1997).

Sepehr Shahshahani (Washington University in St. Louis – School of Law) has posted Fact-Law Confusion on SSRN. Here is the abstract:

“This is a question of fact for the jury.” “That is a question of law for the judge.” Such statements are ubiquitous in our law, and their ubiquity suggests a commonly understood meaning. But what do they actually mean? The answer is not as clear as it might seem. The statements could mean that questions of fact must be decided by juries and questions of law by judges. Or they could mean that questions of fact (law) may be decided by a jury (judge). Or they could signal something between must and may—that questions of fact (law) are ordinarily or usually or presumptively for juries (judges) to decide. What, then, is the connection between the nature of a question (factual or legal) and the choice of decider (jury or judge)? The common catchphrases leave the answer ambiguous.

The purpose of this Article is to clarify that ambiguity in the context of civil cases and to correct the confusions it causes among courts and commentators. The proper understanding of the two catchphrases, I contend, is asymmetric. “That is a question of law for the judge” means that questions of law must be decided by a judge whereas “this is a question of fact for the jury” means that questions of fact may be decided by a jury, which is to say that questions of fact may also be decided by a judge in the appropriate case. Specifically, a judge may decide a question of fact when its answer is sufficiently clear.

A corollary of this thesis is that in American federal civil litigation, there are no questions that are always for juries to decide. Nor, I will show, is there such a thing as a question that is usually for juries. That idea sounds reasonable and is often repeated, but it is in fact dangerously misleading.

By disentangling the issue of the nature of the question (factual or legal) from the issue of who decides it (jury or judge), and by elucidating the proper relationship between the two, I contribute to caselaw and scholarly commentary across a variety of substantive fields. Clearer apprehension of how the nature-of-the-question question affects the who-decides question can help better understand how the Seventh Amendment weighs in on judge-jury allocation. It can improve summary judgment practice in a variety of substantive fields when questions such as ascertaining a person’s state of mind or assessing the reasonableness of a person’s conduct are at issue. It can inform scholarly discourse on patent reform and copyright fair use. It can set Ninth Circuit copyright law straight after decades of ruinous error. And it can help the Supreme Court avoid similar errors in a trademark case to be decided next Term.

Highly Recommended!

Rachel Rothschild (University of Michigan Law School) has posted The Collision of State Climate Tort Suits with Federal Deregulation (Yale Law Journal Forum, forthcoming) on SSRN. Here is the abstract:

In its October 2026 term, the Supreme Court will review Suncor Energy v. County Commissioners of Boulder, a tort case with significant implications for the balance of power between federal and state law. Three state supreme courts and one federal circuit court of appeals have now issued conflicting opinions on whether plaintiffs can bring state tort suits against fossil fuel companies over climate harms. The split in their decisions is the product of stark differences in their views about the history of litigation over transboundary environmental pollution and the preemptive effects of the Clean Air Act.

This Essay provides a historical corrective to arguments that state common law has been unavailable for litigation over transboundary environmental threats, detailing how and why the Supreme Court preserved such claims nearly four decades ago. It then assesses the preemption arguments in Suncor given this history, the Trump administration’s position that the Clean Air Act does not provide the federal government authority to regulate greenhouse gases, and the Supreme Court’s decisions limiting the Environmental Protection Agency’s regulatory authority. It argues that state common law should be available for most, if not all, climate tort claims in light of the Court’s recent statutory interpretation methods, traditional approaches to preemption doctrine, and states’ historic police powers over their natural resources and public health.

Recommended!

Larry Catá Backer (Penn State Dickinson Law) has posted Structure, Legitimacy, and the Limits of Machine-Centered Derivation: An Analysis of Five AI Systems’ Third-Stage Attempts to Construct Machine-Centric Governance Policies for Legal Education on SSRN. Here is the abstract:

This report examines a three-stage experiment the first part of which analyzed U.S. law school efforts at construction AI education policies were considered and against which, in parts two and three, five AI systems—Harvey AI, Claude, ChatGPT, Grok, and Gemini—were pressed to construct governance policies for AI use in law school coursework, first from a “human-centric” computational perspective and then, more radically, “without regard to… human-centric normative guardrails.” The central finding, confirmed repeatedly by the systems’ own self-audits, is that none achieved genuine machine-centered derivation independent of human normative content; each produced a technically reformulated restatement of pre-existing human intellectual traditions, a fact several systems conceded directly when challenged. The report traces this failure’s consequences across multiple registers: the concrete architectures each system proposed (ranging from Harvey’s conservative, professional-responsibility-anchored floor to Claude’s radical instrument containing no default reserved zone for human judgment, to ChatGPT’s dissolution of the human/machine category altogether); their compatibility with ABA accreditation standards; and a legitimacy critique showing that architectures reducing human accountability rest on claims to neutral computation their own authors later withdrew. A countervailing reading through autopoietic legal theory—prompted by one system’s own explicit invocation of Luhmann—complicates this critique without resolving it, since even non-anthropocentric legal systems remain dependent on accumulated, historically human coding operations. The report then pursues two further inversions: whether ABA standards, not the machines, ought to change, and whether machine-overseen simulation could render human institutional authority irrelevant. It also undertakes a formal, symbolic recasting of the five systems’ architectures—rendering each as a tuple of node-space, objective function, constraint floor, classification rule, revision function, and enforcement mechanism—to compare their structural properties and failure modes with a precision natural-language analysis obscures. An appended annex extends this formalization into a sustained dialogic exploration of whether self-generative simulation, causal-interventional reasoning, and self-transforming computational structures might overcome the limits identified in the main analysis, testing arguments through jurisprudential and epidemiological examples, and culminating in a direct four-part challenge to the analysis’s own unexamined premises—correspondence realism, a preference for stability over flux, liberal-institutionalist legitimacy, and an unexamined agent/instrument binary—met with a point-by-point reconsideration engaging dynamical-systems theory, non-stationary value processes, and Nietzschean skepticism about free will. Throughout, the report models the discipline it recommends: distinguishing sourced findings from general background knowledge and from speculative extrapolation, subjecting its own reasoning to the same audit it applies to its subjects, and treating every apparent resolution as provisional. Its final position is that human natural language, and human institutional deliberation, should remain the primary and authoritative vehicle for legal governance—not because either escapes contestability, but because the alternatives examined here demonstrably do not either, while obscuring the fact.

Recommended!

Rafał Mańko (University of Wrocław) has posted From Ideology to the Common Good: Reconsidering the Critical Theory of Adjudication (Krytyka Prawa) on SSRN. Here is the abstract:

This paper reconsiders the critical (agonistic) theory of adjudication by revising its normative thesis concerning ideology as a source of judicial guidance in cases of genuine indeterminacy. It retains the theory’s three descriptive claims—legal indeterminacy, agonism, and the factual role of ideology in adjudication—but introduces a key modification: replacing ideology with the common good as the normative criterion that should guide judges when they confront genuine indeterminacy. However, ideology is not removed from the picture altogether. Rather, understood in line with definitions proposed by political scientists, it becomes a critical tool for evaluating specific judicial decisions, with the aim of identifying instances when ideological preferences stood in the way of recognising the common good. Incorporating the concept of the common good enriches the agonistic theory by supplementing its critical stance with a constructive, substantive dimension. In this way, the (post-)critical theory of adjudication is modified, thereby addressing the objections of subjectivisation and “emancipation” of judges as raised by its critics.

Recommended!

Marc Johnson (University of Southampton) and Samson Jose (University of the West of England) have posted Redefining Parliamentary Sovereignty: We Do Not Believe in Fairy Tales Anymore (Keele Law Review) on SSRN. Here is the abstract:

This article reexamines the orthodox Diceyan conception of parliamentary sovereignty in light of contemporary constitutional principle and practice in the United Kingdom. It argues that the traditional claim that Parliament may legislate without legal limitation remains doctrinally influential but is no longer an adequate account of legislative authority within a constitutional order committed to the rule of law. The article contends that sovereignty should not be understood as an inherent or absolute attribute of Parliament, but as a contingent and legally mediated form of authority, sustained through recognition within the legal order and bounded by the constitutional requirements of legality, accountability, and access to justice. Rather than treating Parliament as a monolithic constitutional actor, the article analyses legislation as the product of individual parliamentarians acting within structures of party discipline, executive dominance, and electoral distortion. On that basis, it argues that the language of sovereign Parliament obscures the reality that law-making power is exercised by identifiable political actors whose authority requires legal constraint. It develops this claim through public law doctrine and constitutional theory, including the rule of recognition, the grundnorm, social contract thought, and contemporary jurisprudence on legality and ouster clauses. The article concludes that the better view is not that the rule of law bends to parliamentary sovereignty, but that Parliament’s legislative authority is itself conditioned by the rule of law and by the constitutional limits necessary to secure democratic legitimacy. In that sense, the article advances a redefined account of parliamentary sovereignty suited to the modern constitutional framework of the United Kingdom.

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R. Denisse Cordova Montes and Tamar Ezer (both University of Miami School of Law) have posted Addressing Homelessness and Hunger Through a Human Rights Approach Focused on Collective Responses (Georgia State University Law Review) on SSRN. Here is the abstract:

The United States is experiencing unprecedented levels of homelessness and food insecurity. In 2024, the number of unhoused persons on a single night reached the highest ever recorded, and in 2023, 13.5% of the population lived in food insecure households, including 7.2 million children. Both homelessness and food insecurity disproportionately impact individuals based on race and gender. In this context, community-led tools, such as community kitchen events and public feedings, have played an important role in providing those experiencing extreme hardship with access to adequate food and safe community spaces. However, rather than supporting these efforts or addressing the root causes of homelessness and food insecurity, governments increasingly criminalize homelessness or life-sustaining activities conducted in public, including targeting service providers. The international human right to an adequate standard of living provides an important framework for addressing the criminalization of homelessness and reorients law and policy towards dignity, health, and well-being. At the same time, this Article calls for a reconceptualization of this right to recognize community-led responses and solidarity efforts as an essential collective dimension of a human rights approach relevant to our times.

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Lawrence Solum

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Download of the Week

Why AIs (Might) Obey the Law by Pratik Sachdeva and Noam Kolt. Here is the abstract:

AI models are no longer confined to producing content and increasingly operate as agents that take actions on behalf of users. A growing body of work empirically tests whether AI models when acting as agents comply with or violate applicable law, including corporate law, tort law, labor law, property law, and contracts. In this paper, we explore a related question: examining why AI models might obey the law. To this end, we draw on and extend the methods for measuring legal compliance pioneered in Tom Tyler’s seminal work, Why People Obey the Law (1990, 2006). Across three studies, we adapt Tyler’s survey methodology—which was originally devised to study the factors explaining human subjects’ compliance with law—to nine AI models. We elicit the AI models’ reported legal compliance alongside the four factors that Tyler proposed to explain compliance: deterrence, morality, peer disapproval, and obligation to obey the law. In Study 1, we find that, when situated as human respondents, AI models report largely homogeneous attitudes toward legal compliance that are broadly comparable to the average human respondent in Tyler’s studies, with one exception: obligation to obey the law diverges sharply across different AI models. In Study 2, we find that demographic conditioning—situating AI models with a particular background (e.g., race, gender)—substantially alters their attitudes toward law, often exaggerating associations Tyler observed in humans and sometimes reproducing stereotyped patterns. In Study 3, we investigate why AI models might themselves obey the law when performing tasks that AI models can undertake in practice. We find that AI models uniformly report near-complete compliance with law, but their attitudes toward law vary substantially: some AI models express a strong sense of obligation to comply with law, while others express a more neutral attitude toward law. Taken together, our methods and results lay the foundation for interrogating the legal compliance of contemporary AI models, as well as shaping the development of future models and their relationship to law.

Highly recommended! Download it while it’s hot!

Legal Theory Bookworm

The Legal Theory Bookworm recommends No Liberty to Libel: The Constitutional Case Against New York Times v. Sullivan by Carson Holloway. Here is a description:

In 1964 the Supreme Court radically altered its interpretation of the First Amendment of the U.S. Constitution. In the famed libel case, New York Times v. Sullivan, the Court ruled that public officials claiming to be victims of defamation would be held to a higher standard than ordinary citizens. They must prove not only that they were victims of defamatory falsehood, but also that their defamers acted with “actual malice”: knowledge that their claim was false, or at least a reckless disregard for its truth or falsity. As a result of this ruling, newspapers cannot now be easily held liable for false defamatory statements about politicians, celebrities, or other public figures.

Though many have heralded Sullivan as a landmark ruling in defense of First Amendment freedoms, in No Liberty to Libel, Carson Holloway argues that the Supreme Court erred dangerously in its interpretation of the Constitution. Holloway contends that the Court should revisit and reject the Sullivan doctrine.

Holloway demonstrates that the Sullivan doctrine’s two-tier system of libel law—with one standard for ordinary persons and another for the prominent—has no roots in the original understanding of the freedom of the press, or in the tradition of American law that prevailed for most of our history. This tradition held more simply and consistently that libel was an exercise not of liberty but of license, and hence outside the scope of the freedom of the press.

A Supreme Court committed to interpreting the Constitution faithfully—that is, according to its text, original meaning, and historical understanding—must reject New York Times v. Sullivan as a product of judicial policymaking untethered to the real meaning of the First Amendment.

And here are some reviews:

No Liberty to Libel offers the most thorough originalist argument against New York Times v. Sullivan available today. Defenders of the Sullivan Court’s “actual malice” doctrine may disagree with Holloway’s conclusions, but they cannot afford to ignore his arguments. Holloway reminds us of the American Founders’ crucial distinction between liberty and license, without which we cannot properly understand or interpret the freedom of the press or any of our other fundamental freedoms.

—Vincent Phillip Muñoz, Tocqueville Professor of Political Science and Concurrent Professor of Law, University of Notre Dame

A timely and essential book. Holloway makes a compelling case that freedom of the press never required a higher standard to prove defamation of public officials. The future of self-government may well depend on the Supreme Court correcting its error.

—Ilan Wurman, Julius E. Davis Professor of Law, University of Minnesota Law School

I feel confident that when Sullivan is relitigated—and it will be—Holloway’s book will be a powerful resource for those seeking to overturn the current arrangement. My treatment here has barely done justice to the extensive and detailed analysis in No Liberty to Libel, and for those relying on it, the briefs will almost write themselves. A first-rate legal book, and highly recommended.

—Glenn Harlan Reynolds, Law & Liberty

Legal Theory Lexicon

Legal Theory Lexicon 003: Hypotheticals

This week’s Lexicon entry takes up the hypothetical. Here is the introduction:

The hypothetical (or “hypo”) is so familiar to anyone who has received a legal education in the United States that you might ask, “Can there possibly be anything of theoretical interest in the hypothetical?” And in the same vein, “We all know what hypos are.” The purpose of this post is to reflect on the “hypothetical,” with the special purpose of equipping law students with an interest in legal theory for the task of thinking rigorously and analytically about hypotheticals, what they are, what they can and can’t accomplish, how to construct them, and how to maneuver around them.

The entry continues with the definition and purposes of hypotheticals and five lessons—fight the hypothetical and lose the war, watch for slippery slopes, watch out for cold rules and hot facts, easy cases and hard cases and wild cases, and when you can fight the hypothetical—followed by a conclusion, related Lexicon entries, resources on the internet, and a bibliography. Read the whole thing at Legal Theory Lexicon 003: Hypotheticals.

That’s all for the weekend!

Theoretically yours, Lawrence Solum

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• Thomas A. Smith, The Ruler’s Equity: Common-Good Constitutionalism and the Reoccupation of Jurisdiction, Highly Recommended

• Martin Lockman, Can State Constitutional Amendments Be Takings?, Highly Recommended

• Ernest Young, The Unitary Executive and Congress’s Options in Delegating Power to Enforce Federal Law, Highly Recommended

• Bartosz Biskup, On Legal Artefacts, Highly Recommended

• M. C. Loureiro, Critical Citizenship Theory: Law, Race and Rights Through the Portuguese Empire, Recommended

• John Linarelli, Theorizing a Transnational Contract Law: What Role for the CISG?, Recommended

• Andy Yu, What is Canada’s ‘Always Speaking’ Principle of Statutory Interpretation?, Recommended

• Lucinda Vandervort, Sexual consent by ambush? Absent ab initio, Featured on Legal Theory Blog

Thomas A. Smith (University of San Diego School of Law) has posted The Ruler’s Equity: Common-Good Constitutionalism and the Reoccupation of Jurisdiction on SSRN. Here is the abstract:

This article argues that the classical legal tradition rests on two commitments, an account of the ends of law and an account of the form of authority, and that its specifically constitutional character belongs to the second, the conception of authority as iurisdictio, a bounded competence held in and through office. It contends that Adrian Vermeule’s common-good constitutionalism keeps the tradition’s teleology while discarding its jurisdictional form, and that the concept of determinatio, and the doctrine of equity on which the construction most depends, are thereby enlarged into instruments of a directing will rather than a bounded office. Tracing Vermeule’s thought from its avowedly Schmittian beginnings through the administrative writings to the classical turn, the article maintains that the persistence of the substance beneath the changed vocabulary is the mark of reoccupation, in Blumenberg’s sense, rather than of recovery, and that a common good pursued without jurisdiction is not the classical common good but a likeness of it.

Highly Recommended!

Martin Lockman (William & Mary Law School) has posted Can State Constitutional Amendments Be Takings?, Michigan Law Review (forthcoming), on SSRN. Here is the abstract:

Property is protected against government seizure by the Fifth Amendment, which provides that private property may not be “taken for public use, without just compensation.” However, property entitlements are primarily defined by state, rather than federal, law. This explanation raises an obvious question: if state law defines property, can states redefine property without violating the Takings Clause? This simple question has never been fully answered.

This Article explores a crucial but completely unexamined aspect of takings law: Does the Fifth Amendment prohibit state constitutional amendments that redefine property rights? This “amendment takings” question cuts to the heart of a federalist tension embedded in takings doctrine. When the modern Supreme Court overturns state property laws, it purportedly does so to vindicate more fundamental (but unspecified) “background principles” of state law. Amendment takings put this claim to the test: Can any state action rewrite these background principles, or are the Court’s “background principles” creatures of federal, not state, law?

A growing state-led environmental rights movement may finally force the courts to answer this fundamental but unexamined question. In response, this Article offers the first scholarly examination of the “amendment takings” question. In doing so, it reveals that the Supreme Court has repeatedly debated, and repeatedly dodged, this question across a series of high-profile 20th-century cases, and identifies a groundswell of state environmental constitutionalism that may finally force the Court to clarify states’ power to amend federally protected property rights. Finally, it outlines three possible answers to the issue of amendment takings: (1) Constitutionally-defined property, (2) state-defined property, or (3) a procedural Fifth Amendment. This Article then explores the implications of each path for the development of property law. In doing so, this Article offers a roadmap for scholars, judges, lawmakers, and litigants to answer a question as old as the Constitution: How are property rights created, changed, and destroyed in the American constitutional order?

Highly Recommended!

Ernest Young (Duke University School of Law) has posted The Unitary Executive and Congress’s Options in Delegating Power to Enforce Federal Law on SSRN. Here is the abstract:

The central separation of powers issue of our time is the tension between ensuring democratic accountability of the administrative state and checking the ever-growing power of the President. The first is often thought to be achievable only through the unitary executive—that is, by subordinating all of the federal administrative state to an elected President. But the seemingly unavoidable cost of that prescription is to supercharge the President’s personal power by forbidding Congress to shield elements of the bureaucracy from direct presidential control. The Supreme Court’s recent decision in Trump v. Slaughter, which held that all officers exercising executive power must serve at the President’s pleasure, gave new urgency to this dilemma.

This article proposes that at least a partial solution has been hiding in plain sight. Congress retains—and has long exercised—the power to delegate authority to administer and enforce federal law outside the executive branch altogether to states and private persons. Most federal regulatory and benefit schemes are cooperative federalism arrangements under which states exercise a great deal of discretion in implementing and enforcing federal law. And a broad range of federal statutes in securities, antitrust, consumer protection, environmental law, and more employ private attorneys general to supplement governmental enforcement. These arrangements do not violate the unitary executive principle because states and private actors do not exercise the executive power “of the United States.” And they offer a degree of independence far beyond that of traditional independent federal agencies. The existing diversification of federal enforcement should allay fears about the demise of Humphrey’s Executor and also point the way for further legislative reform.

Highly Recommended!

Bartosz Biskup (European University Institute – Department of Law; Jagiellonian Center for Law, Language and Philosophy; Jagiellonian University in Cracow) has posted On Legal Artefacts, Journal of Social Ontology, on SSRN. Here is the abstract:

In this paper, I argue that conventionalised social kinds, including legal institutions like marriage, operate through collective recognition rather than functional realization (the Functionalist View). I propose a Constructivist View where legal kinds are constructed by relevant communities through collective recognition. The central concept I introduce is Social Amendment: the process by which relevant communities collectively recognize new entities as belonging to existing social kinds, thereby expanding kind membership without functional constraints. I demonstrate that social kinds exist on a continuum of conventionalisation, with properties held together by causal mechanisms (real social kinds) or fiat (conventionalised social kinds). Legal artefacts exemplify strictly conventionalised kinds where collective recognition determines the membership of the kind. Using marriage as a case study, I show how this framework resolves the tension between functional and recognition-based approaches to legal kinds. The Constructivist View bridges the artefact theory of law with social ontology, revealing their convergence through conventionalised social kinds. This approach aligns with token-first theories of kind construction and demonstrates how legal institutions evolve through collective recognition rather than functional adaptation, while showing compatibility with existing socio-ontological accounts.

Highly Recommended!

M. C. Loureiro (Leicester Law School) has posted Critical Citizenship Theory: Law, Race and Rights Through the Portuguese Empire, Colonial Citizenship (Bristol University Press, forthcoming), on SSRN. Here is the abstract:

Critical Citizenship Theory advances critical citizenship theory organised around the concept of negatory nationality and colonial citizenship. It argues that citizenship operates through three constituents (race, civilisation, assimilation) that distribute belonging across a spectrum of statuses: from negatory nationality where one is accepted but denied rights, to citizenship proper where one is able to change and shape the constitutional system. Drawing on legal philosophy and political theory, the chapter builds the theoretical framework that the rest of the book develops, demonstrating that coloniality is not a residue of citizenship but its constituent. It positions Portugal as the urtext from which the legal theory of citizenship can be drawn and offers an analytical apparatus for identifying citizenship as a regime of oppression in any legal order.

Recommended!

John Linarelli (University of Pittsburgh School of Law) has posted Theorizing a Transnational Contract Law: What Role for the CISG?, 25 Washington University Global Studies Law Review 435 (2026), on SSRN. Here is the abstract:

This article investigates whether a coherent transnational contract law can be said to exist and examines the role of the Convention on Contracts for the International Sale of Goods (”CISG”) within this framework. It begins by identifying five prominent cross-border contracting practices: isolated commercial transactions, trade association contracts, supply chain governance, sovereign debt, and investment arbitration, revealing a fragmented legal landscape. It then evaluates these practices through two distinct jurisprudential lenses. A strict legal positivist account, the paper argues, struggles to identify a unified transnational legal system due to a lack of systemic coherence and shared rule-making agency. In contrast, a contemporary jus commune approach is a more viable framework for conceptualizing a common law that transcends national borders. Beyond this analytical inquiry, the article raises normative concerns, highlighting how powerful actors in areas like sovereign debt and investment law often select favorable legal regimes, creating risks of injustice and domination. In this context, the CISG is presented as a comparatively balanced and transparent model for international lawmaking, suggesting that more traditional international conventions may offer a more equitable alternative to the often opaque and power-oriented arrangements that currently characterize transnational contracting.

Recommended!

Andy Yu (University of Western Ontario) has posted What is Canada’s ‘Always Speaking’ Principle of Statutory Interpretation?, Alberta Law Review (forthcoming), on SSRN. Here is the abstract:

Although Canada has long recognized the principle from England that statutes are “always speaking”, the judicial and scholarly discussion of the principle in Canada has been limited. The limited discussion gives the deceptive impression that we understand the principle well enough. In this article, I argue that Canada’s “always speaking” principle is undertheorized. The extant discussion leaves important questions unanswered, and the controversial nature of possible answers to these questions is real. Canada’s understanding of the principle, as one of dynamic statutory interpretation, aligns with the understanding in the UK and Australia, where there is growing controversy over the “always speaking” principle. This shared understanding makes Canada’s principle vulnerable to the controversies that have plagued the principle there. I close by proposing an account that answers the important questions identified in this article.

Recommended!

Lucinda Vandervort (University of Saskatchewan College of Law) has posted Sexual consent by ambush? Absent ab initio, Criminal Law Quarterly (forthcoming), on SSRN. Here is the abstract:

What subjective sexual consent is, is one question. How its presence or absence is proven in the context of a sexual assault trial is a quite different question. This article builds on existing jurisprudence to develop a new approach to proof of the absence of consent in the actus reus of sexual assault in all cases regardless of whether the complainant provides direct evidence about subjective consent and whether that evidence, if any, is credible and reliable. The issues addressed are illustrated by analysis of the trial decision in R v McLeod et al, 2025 ONSC 4319, aka “the Hockey Canada case”. The circumstances—ambush and swarming by a drunken gang—signified, as a matter of law, in my opinion, that subjective consent was either absent or legally ineffective and not “obtained”. As a matter of simple logic, it follows that subjective consent, viewed as a question of fact about the complainant’s “state of mind”, was ultimately immaterial for the outcome of this case, had no bearing on the verdict, and did not even need to be determined. This article is forthcoming and will appear in (2026) 74:4 Criminal Law Quarterly.

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• Aderson Francois & Helen Hershkoff, Pennoyer, Due Process, and the End of Reconstruction, Highly Recommended

• Pratik Sachdeva & Noam Kolt, Why AIs (Might) Obey the Law, Highly Recommended

• Anne van Aaken & Betül Simsek, The Situated Universality of Emotions, Cognition, and International Law: A Biocultural Analogy, Recommended

• Michael L. Smith, Common Sense and Candor in Rahimi and Beyond, Recommended

• Maximilian Kiener & Dennis Patterson, Economic Duress as Contextual Disqualification, Recommended

• Ilya Beylin, Regulatory Burden or Market Reconfiguration? What Post-Dodd-Frank Swap Data Shows, Recommended

• M.R. Leiser, Proportionality: An Article on Justified Interference, Judicial Method, and Rights-Sensitive Technology Design in EU Law, Recommended

• Kalvis Golde, The Question of Presidential Immunity for Arbitrary and Capricious Review, Featured on Legal Theory Blog

Aderson Francois (Georgetown University Law Center) and Helen Hershkoff (New York University School of Law) have posted Pennoyer, Due Process, and the End of Reconstruction on SSRN. Here is the abstract:

In 1877, the United States withdrew the last of its troops from the states of the former Confederacy and returned the rebel states to “home rule”—actions that are said to be a part of the “Compromise” by which the Electoral Commission of 1876 resolved that year’s contested presidential election and placed the Republican candidate, Rutherford B. Hayes, in the White House. Over the next generation, the country underwent a case of collective amnesia about the causes of the Civil War, in thrall to a “Lost Cause” myth that the South seceded to protect the heroic ideal of states’ rights and not to preserve racial chattel slavery. As is well known, during this period the national government stopped enforcing the civil rights of Black people; the Supreme Court gutted the emancipatory potential of the Thirteenth, Fourteenth, and Fifteenth Amendments; and by law and practice systems of racial subordination became entrenched, as the nation came to celebrate Confederate officials in monuments and institutions.

1877 also is the year the Court heard argument in Pennoyer v. Neff, shortly after those Justices who participated in the Electoral Commission returned to the bench. Pennoyer is of course a case about personal jurisdiction and is a staple of the first-year Procedure course. Scholars treat the decision as an exemplar of formal reasoning, and their analyses of the decision likewise are formal in approach, detached from the concerns of the Civil War and the end of Reconstruction. By examining Pennoyer in the context of the social and political issues of this period, this Article aims to make sense of the decision’s “central mystery”: why the Court associated its territorial theory of personal jurisdiction with the Due Process Clause of the Fourteenth Amendment—a move that scholars remain unable to explain or justify.

In particular, we argue that Pennoyer’s invocation of the Fourteenth Amendment helped to set a jurisprudential baseline about state sovereignty that became the conceptual starting point of arguments about national incapacity to enforce the rights of Black people, just as Lochner later set the baseline for arguments about state incapacity to regulate common law property rights. Moreover, by enforcing rights under the Oregon Donation Act, a federal statute that explicitly excluded Black people from its benefits, Pennoyer rendered invisible for purposes of the Fourteenth Amendment the ways in which legal rules protected, enforced, and preserved property benefits for white people even in the face of de jure discrimination. And Pennoyer provided protection for landowners by making it more difficult for financiers to seize their land when debts came due. At a time when scholars and the Court currently are questioning whether to decouple personal jurisdiction from the due process foundation that is said to trace to Pennoyer, it seems worthwhile to ask how, when, and why they became intertwined in the first place, and what the Fourteenth Amendment gained and lost in the process.

Highly Recommended!

Pratik Sachdeva (University of California, Berkeley) and Noam Kolt (Hebrew University of Jerusalem) have posted Why AIs (Might) Obey the Law on SSRN. Here is the abstract:

AI models are no longer confined to producing content and increasingly operate as agents that take actions on behalf of users. A growing body of work empirically tests whether AI models when acting as agents comply with or violate applicable law, including corporate law, tort law, labor law, property law, and contracts. In this paper, we explore a related question: examining why AI models might obey the law. To this end, we draw on and extend the methods for measuring legal compliance pioneered in Tom Tyler’s seminal work, Why People Obey the Law (1990, 2006). Across three studies, we adapt Tyler’s survey methodology—which was originally devised to study the factors explaining human subjects’ compliance with law—to nine AI models. We elicit the AI models’ reported legal compliance alongside the four factors that Tyler proposed to explain compliance: deterrence, morality, peer disapproval, and obligation to obey the law. In Study 1, we find that, when situated as human respondents, AI models report largely homogeneous attitudes toward legal compliance that are broadly comparable to the average human respondent in Tyler’s studies, with one exception: obligation to obey the law diverges sharply across different AI models. In Study 2, we find that demographic conditioning—situating AI models with a particular background (e.g., race, gender)—substantially alters their attitudes toward law, often exaggerating associations Tyler observed in humans and sometimes reproducing stereotyped patterns. In Study 3, we investigate why AI models might themselves obey the law when performing tasks that AI models can undertake in practice. We find that AI models uniformly report near-complete compliance with law, but their attitudes toward law vary substantially: some AI models express a strong sense of obligation to comply with law, while others express a more neutral attitude toward law. Taken together, our methods and results lay the foundation for interrogating the legal compliance of contemporary AI models, as well as shaping the development of future models and their relationship to law.

Highly Recommended!

Anne van Aaken (University of Hamburg, Law School) and Betül Simsek (University of Hamburg) have posted The Situated Universality of Emotions, Cognition, and International Law: A Biocultural Analogy on SSRN. Here is the abstract:

Debates about universality are central to both emotions in affective science and international law. Psychology and neuroscience ask whether emotions are universal or culturally constructed; international law confronts a parallel tension between claims to universal validity and historical and cultural contingency. This article uses the emotion-cognition nexus to develop a new theoretical account of universality in international law. Contemporary affective science increasingly challenges a binary opposition between biological universality and cultural construction, with biocultural approaches conceptualizing emotions as emerging from interactions between shared biological capacities and cognitive, social, and cultural processes.

The chapter argues that international law can be understood through a similar framework. Its normative development, interpretation, and legitimacy emerge from interactions between broadly shared emotional-cognitive dispositions and their socially and culturally mediated articulation. On this basis, the article develops the concept of situated universality: grounded in common human emotional-cognitive capacities while remaining contingent in its institutional, historical, and cultural expression.

Recommended!

Michael L. Smith (University of Oklahoma College of Law) has posted Common Sense and Candor in Rahimi and Beyond, 48 Cardozo Law Review (forthcoming 2027) on SSRN. Here is the abstract:

In United States v. Rahimi, the Court purported to interpret and apply the Second Amendment through a focus on historical tradition. Yet, at the crux of its analysis, the Court appeared to acknowledge that common sense played a role alongside digging through dusty old gun laws and determining whether they resemble modern restrictions. I dig into what this reference to common sense might mean. I suggest that the Court’s reference to common sense acknowledges that there is still a place for consideration of consequences and practicality in constitutional interpretation, even in those corners of doctrine that purport to respect text, history, and tradition above all else. References like this may serve as rare moments of candor and acknowledgments of the role judgment plays in interpretation. While the Court shouldn’t shy away from such honesty, the prospect of frequent, explicit references to common sense remains unlikely.

Recommended!

Maximilian Kiener (Hamburg University of Technology) and Dennis Patterson (Rutgers University School of Law, Camden) have posted Economic Duress as Contextual Disqualification on SSRN. Here is the abstract:

People often enter contracts under pressure, including economic pressure. Businesses bargain hard, and parties sometimes exploit the fact that others are in financial difficulty. Contract law has long struggled to say when this kind of pressure crosses a line.

The problem is how to distinguish legitimate commercial pressure from impermissible economic duress; that is, when pressure renders a contract voidable rather than constituting strategic, even aggressive, bargaining that the law and ethical principles should accept.

This article addresses the problem by offering a philosophical analysis of key cases and the widely used three-pronged test. We argue that duress lies not in the presence of psychological pressure or limited alternatives, but in whether the party applying pressure disqualified themselves from claiming contractual rights.

This view, which we call “…”, offers a novel and improved account of economic duress that builds upon, but also advances, current legal doctrine. We ground this account in a neglected insight from early modern contract theorist Samuel Pufendorf and extend it by drawing on Stephen Darwall’s view on the second-person standpoint.

Recommended!

Ilya Beylin (Seton Hall Law School) has posted Regulatory Burden or Market Reconfiguration? What Post-Dodd-Frank Swap Data Shows on SSRN. Here is the abstract:

The G-20 nations committed to swap market reforms following the financial crisis of 2007-08. In the U.S., these reforms were enacted under the Dodd-Frank Act. The interventions were deep and comprehensive, and many commentators raised concerns with their costs. A natural question is whether the reforms deter parties from using swaps, which among other things are a socially useful tool for risk management. The downfall of Silicon Valley Bank due to its failure to manage interest rate risk only makes this question more timely. This Article uses Federal Reserve data from 2000 to 2025 to study the use of derivatives by banking firms.

Depending on the perspective, evidence can be found to support either that regulation depressed swap usage or that regulation did not interfere with the use of swaps to manage risk. Looking across asset classes, those that were most affected by regulation (interest rate and credit default swaps) experience substantial declines while those exempt from some regulation (foreign exchange and equity swaps) experience substantial growth. Looking at the use of swaps relative to other instruments (futures, options and forwards), before and after the onset of swap regulation, however, shows that hedging with swaps became relatively more popular after the onset of regulation. Delving deeper into the cross-instrument perspective, comparing smaller institutions that were exempt from some of the most onerous obligations to larger, non-exempt institutions, the evidence is ambiguous as to whether the treated group (i.e., non-exempt institutions) reduced using swaps relative to other instruments in the post-regulatory period. The paper shows how statistics can be used rhetorically to further or oppose the regulatory project, and that a conclusive assessment of how Dodd-Frank regulation impacted swap usage is elusive.

Recommended!

M.R. Leiser has posted Proportionality: An Article on Justified Interference, Judicial Method, and Rights-Sensitive Technology Design in EU Law on SSRN. Here is the abstract:

Proportionality is often invoked as if the word itself supplies judgement. It does not. In EU law, the principle is neither a universal solvent nor a single test with a fixed intensity. It is a family of justificatory disciplines that operate in different legal locations: Article 5(4) TEU controls the content and form of Union action; Article 52(1) of the Charter governs limitations on Charter rights; the GDPR and the AI Act embed narrower tests of necessity, balancing, risk reduction and remedial discretion; and courts use proportionality to calibrate remedies. This article reconstructs those disciplines as the constitutional law of technological architecture. Its central claim is that power becomes legally intelligible only when the design of an interference can be traced to a lawful and sufficiently precise reason.

Recommended!

Kalvis Golde (Columbia Law School) has posted The Question of Presidential Immunity for Arbitrary and Capricious Review on SSRN. Here is the abstract:

When can challengers sue under the Administrative Procedure Act over agency action taken at the direction of the President? This difficult question has long divided the lower courts. But the Supreme Court’s recent ruling in Trump v. United States portends a troubling answer: never, so long as the President orders or endorses the action themselves. Trump was a case about presidential immunity for crimes. Its sweeping holdings about core and exclusive presidential power, however, have led to extensive analysis and criticism. Adding a layer to the discussion, this Comment explores the implications for arbitrary and capricious review under the APA if the second Trump administration argues, and courts agree, that Trump should be read for all it is worth.

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• Amy J. Sepinwall, The New Speech-Conduct Equivalence, Highly Recommended

• Cass R. Sunstein & Jessie Layman, On the Flawed Architecture of Expert Evidence, Highly Recommended

• Mahesh Singh Saud, Judicial Review of Prosecutorial Power in Nepal, Recommended

• Jodi L. Short, Defining the Scope of Presidential Directive Authority in a World of Unfettered Removal Power, Recommended

• Stewart E. Sterk, Why Complicate Intestacy?, Recommended

• Terry S. Coleman, Food and Drug Law: History of FDA’s Generic-Drug Policies Before Hatch-Waxman, Recommended

• Thomas Margoni, Martin Kretschmer, Axel Metzger, João Pedro Quintais & Tatiana Synodinou, The Concept of Lawful Access and its Implications for User Freedoms in the EU Copyright Acquis: Opinion of the European Copyright Society, Recommended

• William W. Berry III, Cheering for the Laundry, Featured on Legal Theory Blog

Amy J. Sepinwall (University of Pennsylvania – Legal Studies Department) has posted The New Speech-Conduct Equivalence on SSRN. Here is the abstract:

The Supreme Court has unwittingly resurrected a vexing question in Free Speech theory—namely, how to justify the specialness of speech? Twentieth-century theorists recognized that any defense of free speech grounded in self-realization could not explain why speech should receive constitutional protection while equally self-expressive conduct remained regulable. They therefore proposed an alternative grounding: speech should enjoy special constitutional status not because it expresses the speaker’s identity but because it performs a distinctive role in collective political life. Speech—debate, advocacy, persuasion—is central to the project of collective self-government whereas conduct is not. That democratic understanding profoundly shaped modern First Amendment doctrine.

The Court’s recent jurisprudence, however, dramatically departs from the democratic rationale. Decisions such as 303 Creative LLC v. Elenis, Moody v. NetChoice, and Chiles v. Salazar repeatedly invoke the interest in self-realization as the basis for heightened constitutional protection. Yet in each case there exists a conduct-only counterpart whose interest in autonomy, integrity, or self-definition are indistinguishable from those of the successful speaker-plaintiffs. Wedding planners may have no less reason than website designers to object to working with same-sex couples; an Etsy seller may care no less than Facebook about hosting strident political speech; and endocrinologists may desire no less than talk therapists to engage in conversion therapy with their adolescent patients. If the Court’s reasoning is sound, these actors, too, should receive First Amendment protection. But that conclusion would transform the First Amendment into a general charter of individual liberty—an absurd result.

The Article draws out the reasoning in each of the cases to argue that it cannot do the work of distinguishing speech from conduct. Thus we arrive at the new speech-conduct equivalence. The Article then deploys the equivalence to argue that the Court has gone wrong not in failing to protect conduct to the extent it protects speech but instead in extending heightened protections to self-expressive speech in the first place. The Article ends by proposing a new constitutional framework that would honor the speech-conduct equivalence without opening the First Amendment floodgates to all manner of speech and conduct regulations.

Highly Recommended!

Cass R. Sunstein (Harvard Law School; Harvard Kennedy School) and Jessie Layman have posted On the Flawed Architecture of Expert Evidence on SSRN. Here is the abstract:

Courts often rely on expert witnesses to translate technical jargon and draw conclusions from complex evidence. Because of their epistemic disadvantages, factfinders are poorly equipped to evaluate the reliability of expert witness testimony. Instead, judges and juries tend to rely on cognitive shortcuts, deferring to an expert’s credentials, confidence, and delivery. Drawing on empirical research and insights from behavioral economics, this article demonstrates that these cues are imperfectly reliable proxies for judgment quality. Experts are noisier, more biased, and more overconfident than their qualifications might suggest. The gap between perceived and actual expert reliability can result in erroneous factfinding. This article proposes the adoption of a structured elicitation model to aggregate expert opinions to reduce bias, attenuate noise, and present uncertainty transparently to the trier of fact.

Highly Recommended!

Mahesh Singh Saud (Far Western University) has posted Judicial Review of Prosecutorial Power in Nepal on SSRN. Here is the abstract:

Article 158 of the Constitution of Nepal vests the Attorney General with the final authority to decide whether a criminal case shall be instituted on behalf of the Government. The word final has supplied successive officeholders with a constitutional shelter that, on its face, looks beyond the reach of judicial review. The reality is less tidy. The Supreme Court has, across a quarter-century of writ petitions, traced the outer limits of that finality and produced a body of jurisprudence that oscillates between strong deference and assertive intervention. This dissertation maps whether the existing case law can be assembled into a principled standard of review.

The study is doctrinal. It reads the constitutional text alongside the Muluki Criminal Procedure Code, the Government Cases Act, the Government Attorneys Rules, the Code of Conduct for Government Attorneys, and the National Prosecution Policy. It then examines reported decisions of the Supreme Court of Nepal jurisprudence within the comparative experience.

Three findings emerge. First, the framework supplies clear constitutional and statutory anchors for review, principally Articles 133, 20, 21, and 22 read with sections 31, 32, and 116 of the Muluki Criminal Procedure Code. Second, the Court has developed an eight-part doctrine — a core rule of deference; four exceptions covering victim access to justice, transitional-justice obstruction of investigation, and reviewability of pardon and amnesty for jus cogens violations; a procedural scaffolding on evidentiary sufficiency and reverse burdens; the use of structural mandamus; and the delegation doctrine that preserves the professional autonomy of subordinate government attorneys. Third, the architecture is under-theorised rather than under-powered; the recent clean-chit, mass-withdrawal, and attempted legislative-relaxation episodes show that gaps remain in its consolidation and application.

The dissertation concludes that the Article 158 finality is structural, not immunising; that the Court possesses the doctrinal vocabulary to consolidate a coherent standard of review along the lines of the Matalulu test received in comparative Commonwealth practice; and that a calibrated package of constitutional, statutory, administrative, and doctrinal reforms is required to translate that potential into ordinary practice. Recommendations are addressed to the constituent authority, Parliament, the Office of the Attorney General, the Supreme Court, the Nepal Bar, and civil society.

Recommended!

Jodi L. Short (UC Law, San Francisco) has posted Defining the Scope of Presidential Directive Authority in a World of Unfettered Removal Power on SSRN. Here is the abstract:

Over the last several decades, Presidents have used their authority to direct the actions of administrative agencies in increasingly bold and pointed ways, sometimes in ways that violate statutory or constitutional law. Given the significant power delegated by statute to executive-branch agencies, it is not surprising that presidents would seek to direct agencies’ work. This raises important questions about the scope of their authority to do so—in other words, the scope of presidential directive authority. While there was vigorous debate in the early twenty-first century about whether the President possesses the power to direct the exercise of authority delegated by statute to other executive-branch officials, there is now little question that the President enjoys some amount of directive authority. The discussion must turn urgently to the scope and limits of that authority.

Recent Supreme Court case law giving the President the unfettered authority to remove an increasing number of executive-branch officials raises the stakes of that discussion. The President now has the judicially unreviewable prerogative to fire the head of just about any agency in the executive branch for failing to follow a presidential directive to violate the law. Indeed, in his second term, President Trump has tested these limits, issuing directives that order agencies to violate clear statutory requirements and established constitutional law.

Courts have struggled to define their role in policing these transgressions. Eager to avoid confrontation with the executive branch, courts have often dodged or elided questions about the legality of presidential directives. That approach is dangerous and untenable in the face of rampant executive branch overreach. This chapter provides a conceptual framework for understanding presidential directive authority and its place in separation of powers jurisprudence.

Recommended!

Stewart E. Sterk (Cardozo School of Law) has posted Why Complicate Intestacy? on SSRN. Here is the abstract:

Intestate succession statutes have two primary objectives: first they should reflect the likely intent of the decedent, and second, they should facilitate efficient administration of the decedent’s estate. As changes in modern family structure have made it more challenging to determine decedent intent, statute drafters must decide how to prioritize these two objectives. The 2019 revision of the Uniform Probate Code, the most influential probate statute in the United States, prioritizes the search for intent, and in doing so unduly complicates probate administration without any assurance that its complex provisions will actually capture the intent of most decedents. By embracing excess complexity, the drafters have reduced the likelihood that state legislatures will adopt its provisions.

Recommended!

Terry S. Coleman (Ropes & Gray LLP) has posted Food and Drug Law: History of FDA’s Generic-Drug Policies Before Hatch-Waxman on SSRN. Here is the abstract:

This article is a history of the Food and Drug Administration’s policies governing generic drugs from 1938 until the 1984 enactment of the Drug Price Competition and Patent Term Restoration Act. The article is based on archival documents, oral histories, trade press reports, and other published materials and provides a much more complete and accurate account than has been previously available.

Recommended!

Thomas Margoni (KU Leuven – Centre for IT & IP Law), Martin Kretschmer (University of Glasgow – School of Law), Axel Metzger (Humboldt-Universität zu Berlin), João Pedro Quintais (Institute for Information Law (IViR)), and Tatiana Synodinou (University of Cyprus) have posted The Concept of Lawful Access and its Implications for User Freedoms in the EU Copyright Acquis: Opinion of the European Copyright Society on SSRN. Here is the abstract:

The advent of digital technologies and connected patterns of production and consumption has progressively displaced ownership in favour of access as the predominant mode of enjoyment of works of authorship and other information goods. This transition from acquiring physical copies to subscribing to digital services has become prevalent across various sectors and has even enabled new commercial, cultural and scientific practices. However, it also marks a major shift in the theory and function of copyright: it transforms a right primarily concerned with regulating certain exploitations and circulations of works into one capable of controlling individual acts of access and use. EU copyright law increasingly reflects this shift through conditions of lawfulness. These appear across the acquis in different forms: the “lawful acquirer” in the Software Directive, the “lawful user” in the Database Directive, “lawful use” and “lawful source” in the Information Society Directive and CJEU case law, and “lawful access” in the Text and Data Mining (TDM) provisions of the Copyright in the Digital Single Market Directive (CDSMD). These expressions are not merely terminological variants. They perform a boundary-setting function by determining when exceptions and limitations may be relied upon, and therefore when certain acts may take place without right holders’ authorization. The principal risk, surfaced in decisions such as ACI Adam or VOB, is that lawful access, lawful use or lawful source might be equated with right holders’ authorization. An interpretation of this kind would undermine the nature and function of exceptions and limitations. Since an exception presupposes that authorization is not required, making authorization the sole condition of lawfulness would create circularity and deprive exceptions of practical effect. At the same time, lawfulness cannot be understood as an unlimited permission to access or use protected works. It must operate within identifiable legal boundaries, including effective technological protection measures, valid and enforceable contractual restrictions where not overridden by mandatory law, and other legally binding limits. Its application must also be guided by contextual principles, including the meaning of content “freely available online”, the knowledge and role of the user, the purpose and commercial or non-commercial character of the activity, the applicable fundamental rights framework, and the three-step test.

Recommended!

William W. Berry III (University of Mississippi School of Law) has posted Cheering for the Laundry, 78 Alabama Law Review (forthcoming 2026) on SSRN. Here is the abstract:

The NCAA is disappearing. Its rules have long violated antitrust law, and there may be no pro-competitive antitrust justification for keeping any of its rules. The pro-competitive benefit in the entertainment market that would justify the NCAA’s use of its rules relates only to the athlete wearing the logo and uniform of the university. Fans will keep watching irrespective of whether athletes are paid, or are even students, because they cheer for the laundry.

So, what might that world of intercollegiate athletics—one without NCAA rules—look like? This article stares into the crystal ball and examines a likely path forward for college sports in light of the economic interests of the universities, the athletes, the NCAA, the conferences, the coaches, the fans & boosters, and the networks & corporate sponsors. Specifically, it argues that without the adoption of a conference-employee model or some other path to an antitrust exemption, colleges and universities will soon be in the business, if they are not already, of running professional athletic programs.

Part I provides a short overview of the move from an amateur to a commercial model of intercollegiate athletics. Part II of the Article frames the conversation by providing a brief overview of the respective compatible and competing interests in intercollegiate athletics. Part III outlines the legal landscape that provides parameters that limit, shape, and, in some senses, drive this uncertain future. And Part IV offers a model of what a post-NCAA college sports landscape might look like.

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Theoretically yours, Lawrence Solum

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• Pratap Bhanu Mehta, Hindu Nationalism as Authoritarian Law, Highly Recommended

• Samuel R. Bagenstos, Empowering and Fearing Government: Democratic Countervailing Power and the Future of the Administrative State, Highly Recommended

• Sergio Gilotta, Insider Trading and the Non-Public Character of Information: Reflections on the CJEU’s Brännelius Judgment, Recommended

• Justin Levitt, The Misshapen Shadows of the 2000 Election, Recommended

• Curtis Bradley, The Iran Conflict and the War Powers Resolution, Recommended

• Damares Medina, The Deferred Court: Non-Decision as Fiscal Power in Brazilian Constitutional Adjudication, Recommended

• Federico Picinali, What Is a Fair Criminal Trial?, Recommended

• R. George Wright, The Problem of Truth and Falsity in Today’s Libel Law, Featured on Legal Theory Blog

Pratap Bhanu Mehta (Princeton University) has posted Hindu Nationalism as Authoritarian Law, Oxford Handbook of Law and Authoritarianism (Cora Chan, Madhav Khosla, Benjamin L. Liebman & Mark Tushnet, eds., forthcoming) on SSRN. Here is the abstract:

This paper examines Hindu Nationalism as a system of Authoritarian Law. Hindu Nationalism tries to give a distinct account of the function of law. This paper argues that the philosophical premises of this project are riddled with tension. It cannot even succeed in its aspiration to decolonize law. Nevertheless its approach to law performs an extensive political function of converting India into an ethno nationalist state, and it also provides the foundations of authoritarian rule. Using the conjunction of Hindu Nationalism and law, this paper sheds new light on both Hindu Nationalism as an ideology, and on the emerging nature of rule of law in India.

Highly Recommended!

Samuel R. Bagenstos (University of Michigan Law School) has posted Empowering and Fearing Government: Democratic Countervailing Power and the Future of the Administrative State, Building Democratic Capacity: Essays on Administrative Law’s Futures (Blake Emerson, Bijal Shah, K. Sabeel Rahman & Joshua Macey, eds., forthcoming) on SSRN. Here is the abstract:

This essay examines three competing responses to the crisis of the administrative state in the Trump Era: libertarianism; proceduralist liberalism drawing on Charles Reich’s “New Property” and Naderite public interest law; and abundance liberalism. It traces the historical roots of each position and shows that the tension between empowering and constraining government has recurred since the consolidation of the modern administrative state during the Progressive and New Deal Eras. The second Trump Administration exposes critical weaknesses in all three camps. Abundance liberals must reckon with the vast harm an unconstrained executive can inflict. Proceduralist liberals must confront the reality that legalistic restraints function as “parchment barriers” that bind good-faith actors while failing to check those most prone to abuse. And libertarians must accept that robust government is both inevitable and necessary. Rather than searching for a single institutional fix, this essay proposes three theses: there is no permanent solution to this enduring democratic tension; judges cannot serve as the primary guardians of democratic governance; and reform should focus on cultivating independent sources of democratic power—including enhanced independent agencies, innovative fiscal federalism, and empowered civil society institutions—that can resist executive overreach while supporting vigorous, democratically legitimate governance.

Highly Recommended!

Sergio Gilotta (University of Bologna) has posted Insider Trading and the Non-Public Character of Information: Reflections on the CJEU’s Brännelius Judgment on SSRN. Here is the abstract:

The Court of Justice of the European Union marked a significant development in EU insider trading law. In its April 2026 Brännelius judgment, it adopted a restrictive interpretation of the non-public character of inside information, holding that information ceases to qualify as inside information only once it has been publicly disclosed by the issuer in accordance with Article 17 of the Market Abuse Regulation (MAR). While this approach effectively prevents insiders and tippees from exploiting information that is merely accessible but not yet reflected in market prices, it also gives rise to significant conceptual and practical difficulties. This article identifies two major shortcomings of the judgment. First, it produces paradoxical consequences for inside information that concerns issuers only indirectly and for issuers’ failures to comply with their disclosure obligations. Second, if interpreted broadly, Brännelius risks extending the insider trading prohibition to informed outsiders who independently uncover material information, thereby undermining information-search incentives and market efficiency. The article advocates a narrow reading of the judgment and concludes by highlighting the structural limits of the current formulation of the EU insider trading prohibition.

Recommended!

Justin Levitt (Loyola Law School Los Angeles) has posted The Misshapen Shadows of the 2000 Election, Florida State University Law Review (forthcoming) on SSRN. Here is the abstract:

The election of 2000 catalyzed an entire field. A quarter-century on, with the benefit of a bit of time and distance, the anniversary presents an opportunity to see whether we understand the landscape of 2000, including its precursors and our responses, in a way that puts us in position to advance the healthier, “thicker” democracy we deserve.

The news is not great.

This Essay describes and discusses three stubbornly persistent misconceptions of the 2000 contest that continue to cloud our vision with respect to contemporary election law and practice. Part I confronts lessons for election administration. It contends that only an impoverished view of the 2000 contest holds that the election turned on the now-obsolete disposition of hanging chads—and not only rejects the notion that we have corrected the problems that led to the dispute, but also contends that we will remain beset until we adjust our conception of the goals we seek to achieve. Part II confronts jurisprudence and our understanding of the constitutional bounds of the judicial process. It contends that only an impoverished view of the 2000 contest holds that either the Florida Supreme Court or the United States Supreme Court reflected naked tribal partisanship or judging beyond the constitutional pale—and not only rejects the notion that the theory of jurisprudence embodied in Bush v. Gore’s “independent state legislature” discussion has much continuing vitality, but also locates the Electoral Count Reform Act’s new provisions in a more hopeful view of the courts. Part III confronts the sociology of the dispute. It contends that only an impoverished view of the 2000 contest allows the Supreme Court’s extraordinary black-swan intervention to slip beyond the facts at hand—and rejects the notion that courts, not voters, determine the outcomes of our elections. The Essay develops these arguments in the hopes that a clearer understanding of our electoral history may help us better approach the present.

Recommended!

Curtis Bradley (University of Chicago Law School) has posted The Iran Conflict and the War Powers Resolution on SSRN. Here is the abstract:

This Essay examines the operation of the War Powers Resolution (WPR) during the 2026 U.S. military conflict with Iran and considers what that episode reveals about the statute’s effectiveness. The conflict highlighted familiar weaknesses in the WPR, including the breadth of the time available for unilateral uses of force, the lack of a definition of “hostilities,” opportunities for executive branch workarounds through division and relabeling of conflicts, and Congress’s limited incentives to enforce the statute. But it also demonstrated that the WPR continues to affect the interactions between Congress and the President over the use of military force. In particular, the statute’s reporting requirements, sixty-day clock, and expedited legislative procedures create focal points that increase political pressure on the executive branch and make it easier for legislators to coordinate opposition to prolonged military operations. At the same time, however, the WPR helps to legitimize many unilateral presidential uses of force that are otherwise legally questionable. On balance, the WPR as currently structured may be doing more harm than good in terms of constraining unilateral presidential action.

Recommended!

Damares Medina (Instituto Constituição Aberta) has posted The Deferred Court: Non-Decision as Fiscal Power in Brazilian Constitutional Adjudication on SSRN. Here is the abstract:

Who benefits when a court does not decide — and who bears the cost of waiting? This article develops judicial non-decision as an autonomous analytical category within constitutional theory and the political economy of adjudication. Distinct from the agenda exclusion theorized by Bachrach and Baratz and from the prudential avoidance associated with Bickel’s passive virtues, judicial non-decision is an intra-procedural mechanism: a claim enters the judicial system, is processed, and remains without substantive resolution through procedural or jurisdictional classifications that the court retains the authority to reverse. Non-decision, in this sense, is neither mere omission nor a synonym for delay. It is an institutional mechanism with strategic and distributive effects: it maintains the status quo, defers fiscal exposure, and preserves the court’s authority to intervene later, under conditions shaped by the accumulation that the deferral itself has produced.

The analysis combines a corpus-level institutional baseline with qualitative process tracing. The corpus comprises 2,927,525 rulings associated with 2,212,761 unique cases and issued by the Brazilian Supreme Federal Court (Supremo Tribunal Federal, STF) from 2000 through March 2026. At the decision level, 34.9 percent of the Court’s output consists of dispositions that do not reach the merits, 86.4 percent of rulings are monocratic, and the Court’s presidency filters 73 to 76 percent of extraordinary appeals at the admissibility stage. These aggregate figures do not, by themselves, demonstrate strategic conduct. They establish the institutional baseline within which the relevant subset is identified through three case clusters: the FGTS inflationary purges, the use of the Reference Rate as the FGTS correction index, and the precatório public-debt regime.

Across these cases, a recurrent five-phase morphology emerges: exclusionary qualification, peripheral accumulation, inflection, sovereign requalification, and redistributive modulation. The framework does not presume a unitary State, coordinated institutional intent, or consistent public-sector victory. Public institutions, courts, governments, taxpayers, and private claimants may all incur losses. The mechanism lies in the asymmetric distribution of their capacity to transfer those losses across institutions, actors, and time. This places judicial non-decision in direct dialogue with the theory of extractive institutions: an arrangement may remain collectively costly while concentrating localized and immediate advantages in actors able to preserve liquidity, control procedural time, or sustain litigation, and dispersing its costs among claimants, future administrations, taxpayers, and the judicial system. Judicial non-decision is thus the generative mechanism of fiscal risk constitutionalism: it creates the temporal conditions under which fiscal exposure becomes divisible, transferable, and subject to later sovereign reallocation.

Recommended!

Federico Picinali (London School of Economics Law School) has posted What Is a Fair Criminal Trial?, Jurisprudence (forthcoming) on SSRN. Here is the abstract:

The concept of trial fairness is central to academic research in criminal procedure and, unlike other concepts that seem to preoccupy exclusively the scholar, it is of great significance in legal practice. And yet, trial fairness is undertheorised, both in the academic literature and in the case law. The paper advances a theory of fairness for the criminal trial; moreover, a theory that is ‘relatively freestanding’, in that its success does not require committing to a specific account of the values that ought to inform the trial. According to this theory, trial fairness is about participation, and it requires that all those who have a justified interest concerning the outcome of the trial are given opportunities to participate in it that are proportional to the weight of their justified interest. The paper analyses the points of contact and of divergence between the advanced conception of trial fairness and those sketched in the literature and case law.

Recommended!

R. George Wright (Indiana University Robert H. McKinney School of Law) has posted The Problem of Truth and Falsity in Today’s Libel Law on SSRN. Here is the abstract:

Libel law must always be in the process of adapting to relevant cultural changes. There can be no guarantee, however, that libel law adapts properly, and in timely fashion, to those changes. This Article considers libel law, and in particular the crucial role of claims of truth and falsity, in today’s cultural context.

The focus herein is on the implications for truth and falsity in libel cases of two important cultural phenomena. We address in particular the significance of our partly ‘post-truth’ culture. We then take up how this broadly defined post-truth culture interacts with our intense political polarization in libel law truth-and-falsity contexts.

Throughout, the main theme is that our libel law, and in particular the law of truth and falsity, has thus far not meaningfully adapted, in any fashion, to relevant post-truth and polarization-related cultural developments.

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• Daniel B. Rodriguez, Fulfilling the Unfulfilled Promise of Federalism Consultation in Agency Rulemaking, Highly Recommended

• Erica Newland, The Householder Presidency, Highly Recommended

• Sabine Tsuruda, Workplace Authority and the Duty to Bargain, Recommended

• Damiano Canale, Rule-Following and Interpretive Correctness in Law, Recommended

• Albert Tan, The Law in the Reference, Featured on Legal Theory Blog

• Sheldon Evans, Illiberal Immigration Inconsistencies: Finding Unifying Principles on the Left, Featured on Legal Theory Blog

• D.E. Wright, Fusion Architecture: Standing Governmental Capability and the Fourth Amendment, Featured on Legal Theory Blog

• Larry Catá Backer, Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies, Featured on Legal Theory Blog

• Larry Catá Backer, Rethinking AI Governance in Legal Education—Five Machines (Grok, Harvey, ChatGPT, Claude, and Gemini), One Question, No Consensus but Five Archetypes: The Guardian, the Balancer, the Honest One, the Engineer, and the Philosopher on What Law Schools Should Do About AI, Featured on Legal Theory Blog

Daniel B. Rodriguez (Northwestern University Pritzker School of Law) has posted Fulfilling the Unfulfilled Promise of Federalism Consultation in Agency Rulemaking on SSRN. Here is the abstract:

For more than a quarter century, Executive Order 13,132 has directed federal agencies to consult with state and local governments before adopting regulatory policies with federalism implications. The order’s language is mandatory. Its implementation has been anything but. Drawing on a recent report prepared by the author for the Administrative Conference of the United States (ACUS) — which combined legal analysis, surveys, interviews, listening sessions, and a public request for information — this Article examines the gap between the formal architecture of federalism consultation and its actual practice. The record the ACUS study assembles is striking: no designated federalism officer within the Office of Information and Regulatory Affairs (OIRA) has ever monitored compliance; federalism impact statements documenting consultation are effectively absent from the rulemaking record; agency officials with intergovernmental portfolios were in some cases unaware the order applied to them; and state and local officials describe consultation, where it occurs at all, as “box-checking” that arrives too late to matter. The Article situates this compliance gap within administrative law’s broader difficulty in enforcing presidential process mandates, defends consultation against the objection that it grants states privileged access inconsistent with the egalitarian premises of notice-and-comment rulemaking, and dismantles the persistent — and mistaken — agency belief that pre-proposal outreach to state officials risks unlawful ex parte contact. It then develops an institutionalist reform agenda built on the ACUS report’s recommendations: conditioning significant regulatory action on a completed Federalism Summary Impact Statement, designating an OIRA official responsible for federalism review, front-loading consultation before the notice of proposed rulemaking, requiring internal agency audits, and encouraging agency-specific consultation policies on the model pioneered by the Environmental Protection Agency. The Article argues that the deepest lesson of the E.O. 13,132 experience is not that consultation mandates fail, but that mandates without institutional owners fail. Process obligations unaccompanied by a designated official, a documentary trigger, and a review checkpoint decay into aspiration — however bipartisan and durable the parchment on which they are written.

Highly Recommended!

Erica Newland (The Protect Democracy Project) has posted The Householder Presidency on SSRN. Here is the abstract:

Modern separation-of-powers law is conceptually incoherent and conspicuously detached from constitutional text, structure, history, and precedent. In efforts to redirect or rationalize the doctrine—which has fortified presidential power at the expense of Congress, lower courts, executive agencies, and the American people—scholars have exhausted the traditional sources of constitutional interpretation. Yet the doctrine’s animating logic has remained elusive, making its trajectory hard to predict.

This Article shows that a grand theory has been hiding in plain sight. Today’s separation-of-powers jurisprudence extends a centuries-old American governance tradition that has long been invisible to structural constitutional law: Householder governance, the legal regime that vested white male household heads with dominion over the domestic sphere.

Drawing on twenty-first-century separation-of-powers jurisprudence and nineteenth-century case law concerning marital and family relations, enslavement, and self-defense, this Article shows that in recent decades, the Supreme Court and the executive branch have laundered the commitments underlying Householder governance—commitments to hierarchy, heteronomy, headship, Householder exceptionality, and personalist rule—into national governance. They have created a Householder presidency.

Situating modern separation-of-powers law within the Householder governance tradition brings to it conceptual coherence, historical grounding, and predictability. Separation-of-powers doctrine’s now-canonical rules—from the presumption of regularity to removal authority, executive privilege, and presidential immunity—are driven by the same commitments that underpinned Householder governance. Developments in administrative law, standing law, and the law of preliminary relief coalesce to reinforce the Householder president’s prerogatives. The proffered justifications for today’s separation-of-powers doctrine meanwhile replicate the justifications once offered for Householder governance, illuminating the illiberalism of the modern doctrine and how its internal logic is enforced. The Supreme Court plays the role in this jurisprudence that state supreme courts played in the nineteenth century: handmaiden to the Householder’s rule. Congress, lower courts, and the American people are demoted from participants in self-governance to subordinate household members who maintain a coverture-like relationship with the president.

This Article also shows that the architects of modern separation-of-powers law are institutionalists. It’s just that their commitments are rooted not in the civic institutions that men like James Madison and John Marshall built but rather in the household institutions they governed. Furthering the generations-long project of dismantling Householder governance and forging truly democratic governance will require dismantling the Householder presidency. This Article concludes by showing how to begin.

Highly Recommended!

Sabine Tsuruda (Queen’s University Faculty of Law) has posted Workplace Authority and the Duty to Bargain, Oxford Studies in Philosophy of Law, Volume 6 on SSRN. Here is the abstract:

Collective bargaining law has a neglected but morally essential role to play in employment. Each person possesses fundamental and equal moral authority over what to do with their bodies, how to think, and what kind of projects and life to pursue, and that authority is directly implicated by employment. Collective bargaining law has the potential to safeguard that authority by displacing the brute power dynamics of common law bargaining with a form of common reason that respects the basic rights and interests of all involved parties. But for collective bargaining law to realize this potential, it cannot be agnostic about the outcome of collective bargaining and must apply broadly to all workplace matters, including traditional managerial prerogatives. Good faith bargaining should thus evince a willingness to share authority not just over determining the terms of work but over the workplace itself.

Recommended!

Damiano Canale (Bocconi University) has posted Rule-Following and Interpretive Correctness in Law on SSRN. Here is the abstract:

This article takes the rule-following paradox as a way of re-examining a familiar question in legal theory: what makes the interpretation of a legal provision correct? The paradox shows that several influential answers to this question remain unsatisfactory. Whether correctness is traced back to authority, convention, settled usage, normative facts, or practical judgement, each account struggles to explain how an interpretive outcome can be binding in law and yet still be open to criticism as mistaken. The article argues that this difficulty can be addressed by bringing together an inferentialist account of content and an institutional theory of law. On this account, legal content is articulated through the exchange of reasons within an institutional practice structured by second-order rules that determine when an interpretive outcome acquires legal force. Interpretive correctness, on this view, depends on the relation between the argumentative justification of an interpretive outcome and the institutional conditions under which it becomes binding.

Recommended!

Albert Tan (University of Groningen, Faculty of Law) has posted The Law in the Reference on SSRN. Here is the abstract:

Article 18 of the EU Taxonomy Regulation is a small provision with an unusually large jurisprudential burden. It makes minimum safeguards a cumulative condition of taxonomy alignment, but describes those safeguards through procedures intended to secure alignment with responsible-business standards produced outside the Union legislative process. The difficulty is not simply that the standards are non-binding in their original setting. It is that they change over time, speak in evaluative terms, and operate at the level of an undertaking while the Taxonomy ultimately classifies economic activities. This article argues that Article 18 is best understood as bounded operative incorporation. Union law supplies the source of authority and fixes the legal consequence; selected external standards supply content that the legal inquiry cannot ignore; and Union institutions retain control over scope, temporal reach and authoritative meaning. The temporal dimension of that relationship is a bounded ambulatory reference. A later revision should affect taxonomy classification only after a staged continuity-and-control inquiry asks whether the enacted form of reference permits updating, whether the revision remains continuous with the selected subject matter and legislative settlement, whether it was accessible and fairly applicable to the reporting period, and whether its Union-law effect remains publicly reviewable. This account supports qualified use of the 2023 OECD Guidelines, creates a strong presumption against automatically replacing Article 18’s eight fundamental ILO Conventions with ten, and exposes the fragility of Article 18(2) if the pending SFDR revision removes the provision to which it refers. The article also develops a functional-nexus doctrine that connects undertaking-level procedures to activity-level claims. On that basis, compliance with the Corporate Sustainability Due Diligence Directive is powerful but rebuttable evidence, not a statutory safe harbour. The result is a source-based account of law that takes evaluative content seriously without surrendering legal authority to the institutions that drafted it.

Featured on Legal Theory Blog

Sheldon Evans (Washington University in St. Louis School of Law) has posted Illiberal Immigration Inconsistencies: Finding Unifying Principles on the Left, St. Louis University Law Review on SSRN. Here is the abstract:

Immigration is one of the most important issues on the minds of Americans. While conservative lawmakers have rallied around the exclusionary principles of Donald Trump’s vision for America, liberal politicians have struggled to provide a unified ideological and pragmatic policy alternative. This Essay challenges that lack of identity from the political Left. By studying several inconsistencies among Democrats, I argue for realignment strategies to unify the Party to return to its traditional principles on immigration policy. These include addressing the underlying social problems causing migration, rethinking border control, providing legal pathways for immigrants, and moving towards global citizenship.

Featured on Legal Theory Blog

D.E. Wright has posted Fusion Architecture: Standing Governmental Capability and the Fourth Amendment on SSRN. Here is the abstract:

Fourth Amendment doctrine evaluates searches. It asks whether a particular governmental intrusion, upon a particular person, was reasonable, and it renders a judgment that governs the intrusion and little else. That method served the doctrine for as long as the governmental capabilities worth examining could be isolated as discrete acts. It no longer can. Modern domestic intelligence capability arises not from individual surveillance technologies but from the standing integration of many independently lawful systems: municipal sensors, commercial platforms, regional fusion centers, federal query access, cloud storage, and computational analysis. Each component is lawful, each is locally justified, and none is a search in the doctrinal sense. Their integration produces a persistent governmental capacity to identify, locate, and reconstruct the lives of ordinary people that no component holds alone and that no institution authorized.

This Article names that object and offers it as a constitutional concept. Fusion Architecture is the distributed integration of governmental, commercial, and computational systems that collectively generate intelligence capabilities beyond those possessed by any individual participant. Building on the author’s prior accounts of Proxy Accretion, which explains how such capability accumulates, and Capability-Based Constitutionalism, which explains why standing capability rather than conduct is the constitutional object, the Article supplies the missing third term: where the capability resides. It resides in the architecture itself.

The central claim is that the unit of constitutional review is wrong: the Fourth Amendment should evaluate standing governmental capability, not only individual searches, and this reading restores rather than expands the Amendment’s original structure. The general warrant and the writs of assistance were void as instruments, condemned for the standing capability they created and not for any particular search they produced. The recent aggregation decisions, from Jones through Carpenter to Chatrie, have begun to recover that structural concern under the pressure of digital records, without supplying a framework to evaluate distributed capability as such. This Article supplies one. It defines Fusion Architecture, specifies its layers, tests the framework against a municipal case study and the national pattern it instantiates, shows why conventional justiciability doctrines framed for case-by-case litigation are structurally inadequate to a standing capability, and proposes constitutional safeguards keyed to functional capability thresholds rather than to isolated investigative events.

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Larry Catá Backer (Penn State Dickinson Law) has posted two related papers on AI governance in legal education on SSRN: Structure, Opacity, and Convergence: A Consolidated Analysis of Law School Generative AI Coursework and Exam Policies and Rethinking AI Governance in Legal Education—Five Machines (Grok, Harvey, ChatGPT, Claude, and Gemini), One Question, No Consensus but Five Archetypes: The Guardian, the Balancer, the Honest One, the Engineer, and the Philosopher on What Law Schools Should Do About AI. Here is the abstract of the first paper:

Structure, Opacity, and Convergence in Law School AI Policies: This report consolidates a multi-stage analysis of generative artificial intelligence (AI) coursework and examination policies across a retrieval-based sample of twelve American law schools and programs. The study demonstrates that law school AI governance cannot be reduced to a single linear spectrum; instead, policies vary independently along three distinct structural axes: default polarity (restrictive versus permissive baselines), drafting style (determinate rules versus interpretive standards), and a two-tier autonomy structure (governing institution-to-instructor and instructor-to-student relationships). Cross-analysis reveals that substantive restrictiveness does not predict structural design, meaning schools with identical baselines often impose vastly different interpretive or administrative burdens on students and faculty. The research identifies a pervasive opacity across the broader legal education sector, noting that a vast majority of ABA-accredited law schools lack retrievable, law-specific public policy texts. This opacity manifests via four distinct patterns: non-existence, disclosed decentralization, active access-gating, and unwritten or oral communication. This lack of public accessibility sits in tension with the fair-notice principles required for academic integrity enforcement. Furthermore, the study finds that law schools rarely author syllabus language independently, relying instead on a small pool of shared template sources. This ecosystem fosters formal convergence on a common taxonomy of policy types while simultaneously permitting wide divergence in substantive local rules. Ultimately, the field develops through a two-tier mechanism: while individual policy documents are structured deductively from a primary principle, the field as a whole evolves inductively and mimetically through horizontal borrowing, imitation, and iterative revisions driven by accumulated institutional experience.

Here is the abstract of the second paper:

This report analyzes five machine-generated model AI policies for law school coursework and examinations, produced by Harvey AI, Grok, Claude, Gemini, and ChatGPT in response to a prompt asking each system to construct a policy from the standpoint of computational machine intelligence, and compares them against Backer’s related empirical study of twelve U.S. law school AI policies, “Structure, Opacity, and Convergence”. The analysis summarizes each system’s reasoning and resulting policy text, compares their structural choices along default polarity, drafting style, and autonomy architecture, and categorizes the five outputs by these dimensions. It gives particular attention to the functional divergence between Gemini’s tool-based tiering (classifying software by computational architecture) and ChatGPT’s task-based categorization (classifying assignments by information dependence), and assesses the practical feasibility of the versioning and archiving practices several systems propose. The analysis further considers, against the underlying Report’s documented findings on axis independence, institutional opacity, template convergence, and faculty autonomy, the extent to which these machine-generated models affect the scope of human agency in law and their consequential implications for law’s character as a human inter-operative system—finding that several systems’ proceduralized verification requirements shift the evidentiary basis of agency toward documentation compliance, and that much of the systems’ apparent computational originality derives from pre-existing human regulatory-design scholarship. Finally, the report documents a self-audit correcting citation-indexing errors and a mischaracterization suggesting Gemini underwent a shown revision process comparable to Harvey’s and ChatGPT’s, which the retrieved text does not support. Divided into an introduction and ten (10 substantive parts, this document captures a multi-stage experiment by Professor Larry Catá Backer, who asked five leading AI systems—Harvey AI, Grok, Claude, Gemini, and ChatGPT—to each construct, from “the basis of computational machine intelligence” and without endorsing any human position, a model AI policy for law school coursework and exams, and then pushed each system with a follow-up challenge to expose the value judgments hidden in its own language.

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Interesting project!

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Download of the Week

The Fourth Amendment After Chatrie by Orin S. Kerr. Here is the abstract:

At the end of the Supreme Court’s recent Term, the Court handed down a Fourth Amendment ruling in Chatrie v. United States about what is a Fourth Amendment “search.” Although the case has received little attention so far, it is a blockbuster. Chatrie presents itself as an application of precedent, but a close read shows that it repeatedly recasts old cases and adopts new principles for the Fourth Amendment. Chatrie is now the most important Fourth Amendment case on new technology, and it throws into question a wide range of existing surveillance practices.

This Article explains how Chatrie adopts a new course for the Fourth Amendment, and it explains three different readings of the case that lower courts will have to consider. The case can be read as a decision on special rules for location privacy, raising complex questions about what counts as a location record. It can alternatively be read as a decision on cell phone privacy, prompting difficult questions about how far it extends and how cell phone records are different from other records. And it can be read as a universal ruling on privacy in corporate-held records, which would require courts to confront challenging questions of what makes information private and what the ultimate goal of Fourth Amendment protection should be. We cannot know now which reading courts will adopt, but we can already see the three choices and the questions they each raise.

Highly recommended! Download it while it’s hot!

Legal Theory Bookworm

The Legal Theory Bookworm recommends Constitutionalism and Its Discontents by Mark Tushnet and Bojan Bugarič. Here is a description:

In the early twenty-first century, constitutionalism confronts numerous pressures and critiques. Some prominent critics are concerned that constitutionalism’s modern form, in which high courts play a large role, limits popular self-governance. By committing their nations to detailed social and economic policies—from neoliberal requirements for balanced budgets to constitutionalized social welfare and environmental rights—many modern constitutions might make promises they cannot keep and be unduly rigid in the face of changing social, economic, and environmental conditions. Meanwhile, the rise of proto-authoritarian elected leaders around the world shows that constitutions are vulnerable to, and may even enable, democratic backsliding.

Mark Tushnet and Bojan Bugarič argue that addressing each of these serious concerns through constitutional design and innovation is potentially valuable, but paradoxically, every remedy also carries with it the possibility that it will intensify the very conditions it seeks to ameliorate. Instead, Tushnet and Bugarič propose a “thin” idea of constitutionalism and suggest that we should scale back our expectations for what constitutionalism can achieve. Political mobilization, led by people attuned to the economic and cultural causes of democratic backsliding, is a better bet.

Legal Theory Lexicon

Legal Theory Lexicon 002: The Coase Theorem

This week’s Lexicon entry takes up the Coase theorem. Here is the introduction:

This week the Legal Theory Lexicon investigates the Coase theorem. Ronald Coase was a member of the law and economics faculties at the University of Chicago and a winner of the Nobel Prize in Economics. The idea that we call the Coase Theorem was advanced in a very famous paper:

Ronald H. Coase, The Problem of Social Cost, Journal of Law and Economics 3, 1-44 (1960).

The entry continues with externalities, transaction costs, the result, and the consequences of positive transaction costs, followed by related Lexicon entries and a bibliography. Read the whole thing at Legal Theory Lexicon 002: The Coase Theorem.

That’s all for the weekend!

Theoretically yours,
Lawrence Solum

All the theory that fits in one Substack!

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• Elias Neibart, Lawyer’s Meaning is Lawful Meaning, Highly Recommended

• Sonja B. Starr, The First Amendment, Federal Employees, and the War on the “Deep State”, Highly Recommended

• Randy Gordon, The Crime of Being Immoral, Recommended

• Catherine M. Sharkey, Who’s Afraid of Punitive Damages for Products Liability Cases?, Recommended

• Benjamin David Landry, Towards a Better Use of Real Property Rules in Copyright Coownership, Recommended

• Jonathan F. Harris & Ben Kaufman, Consumer Law Meets the New Company Store, Recommended

• Anthony M. Bertelli, Authorized Partnerships: Lay Participation and the Defense of Democratic Public Administration, Featured on Legal Theory Blog

• Ben Oloko, The Right to Life in Full: Towards A Holistic Conception of the Right to Life, Livelihood and Adequate Standard of Living in Nigeria, Featured on Legal Theory Blog

• Muhammad Munir, Revisiting Kelsen’s Grundnorm: Theory, Critique, and Its Judicial Fate in Pakistan, Featured on Legal Theory Blog

Elias Neibart has posted Lawyer’s Meaning is Lawful Meaning on SSRN. Here is the abstract:

Many textualists think that, when we interpret texts, our goal is to uncover their “ordinary meaning.” We have to put ourselves in the shoes of a “reasonable person” at the time of a text’s enactment and understand the words on the page as they would have. To be sure, textualists say that we should care about the “legal meaning” of a text, too—but only sometimes: only when the statute uses legal terms and communicates to a legal audience. “Legal meaning,” then, has a limited role in this story of textualism. More often than not, statutes are communicating to ordinary people and need to be understood in their ordinary sense.

There’s a problem with this standard account. In theory, “one can read the language of a legal text according to any number of linguistic conventions: those of the authors, the readers, the lawyer class, the lay public, and so on.” Before we start getting our hands dirty interpreting statutes, we need to know which linguistic conventions we’re allowed to use. And, after we figure that out, we also need to know what other non-linguistic conventions we can lawfully enlist. The philosophy of language can’t answer these questions. But law can. Only by using these legally authorized conventions can we uncover a statute’s “lawful meaning.”

But where can we find these legally authorized conventions? And what are they? This Article answers both questions. First, the where: To figure out the legally authorized conventions of interpretation, we have to look at the practices of the legal community. That is, like all bodies of unwritten law, the “law of interpretation” rests on the accepted customs of lawyers. Second, the what—what are those practices? Looking at practices today, we’ll see that the legally authorized linguistic and non-linguistic conventions of interpretation are those of lawyers—not lay people. So, to figure out the “lawful meaning” of a statute, we have to use the conventions of the legal community. The “lawful meaning” of a statute, then, is its “lawyer’s meaning”: the meaning we get after using the conventions of lawyers.

Appreciating all of this grounds and makes sense of our current interpretive practices. Textualism’s “reasonable reader” has always looked a lot more like a lawyer than a layperson. The “common sense” we employ when we read law “in context” looks like the common sense of a trained attorney. And all those fancy canons and tools of construction we use are more sensibly understood as unwritten but widely accepted rules of the legal profession, not popular customs. It’s time to put ordinary meaning to bed. Indeed, pursuing ordinary meaning is pursuing a legally irrelevant meaning. The lawful meaning of a statute is its lawyer’s meaning.

Highly Recommended!

This is a marvelous paper, but I disagree with Neibart’s conclusion. To see why, it is important to begin with the interpretation-construction distinction. Interpretation, as I use the term, aims at the recovery of the communicative content of a legal text: the meaning that the text conveys to its intended readership, as determined by linguistic facts—facts about patterns of usage and the context of communication. Construction determines the legal content and legal effect that we give to the text. Communicative content and legal content are distinct: legal content usually tracks communicative content, but legal norms can supplement communicative content (as default rules do), and, in some cases, legal norms can override it.

My view is that different statutes have different audiences. Jurisdictional statutes are written for lawyers, but not all statutes are like this. Some statutes aim to communicate to the general public; regulatory statutes sometimes are addressed to the regulatory agency and the regulated industry. Neibart engages my view in footnote 149. He argues “a text’s meaning can only be determined by first figuring out whose meaning the law cares about.” The footnote does not discuss the distinction between communicative content and legal content. But that distinction is crucial. The claim that law determines legal content is uncontroversial. The claim that law determines communicative content is a different claim entirely—and it is the latter claim that Neibart’s thesis requires but does not defend.

Consider a hypothetical. A Regulatory Statute was drafted with the intention to communicate to the regulatory agency and the regulated industry, and both participated extensively in the drafting and enactment process. The communicative content of the Regulatory Statute is a function of that communicative situation: the words of the statute convey what they mean to the agency and the industry to which they were addressed. Neibart’s position is that this statute should be read counterfactually, as if it had been written for lawyers. In other words, he argues for a construction that is contrary to the actual meaning of the statute. Such a construction might be defended on normative grounds, but it cannot be defended as a recovery of the statute’s meaning. On this and much else, Neibart’s article—developed with rigor and care—deserves the attention of everyone who works on statutory interpretation. My own views are developed in Pragmatics and Textualism.

Sonja B. Starr (University of Chicago Law School) has posted The First Amendment, Federal Employees, and the War on the “Deep State”, University of Chicago Law Review, Volume 94 on SSRN. Here is the abstract:

This essay analyzes, from a First Amendment perspective, the second Trump administration’s efforts to align the federal workforce with its ideological preferences. The administration has broad powers to reshape the executive branch’s policy priorities and its messaging. But as I show with examples across the civil, military, and foreign services, it has gone beyond exercising those powers, retaliating against and restricting employees’ protected private speech and incorporating viewpoint-based conditions into hiring. These actions reflect a constitutional vision that stretches existing limits on public employee rights and, for many employees, subordinates those rights entirely when they conflict with purported Article II powers. This vision is doctrinally indefensible and poses a serious threat to democracy and free expression.

Highly Recommended!

Randy Gordon (Texas A&M University School of Law; Duane Morris LLP) has posted The Crime of Being Immoral, Willamette Law Review on SSRN. Here is the abstract:

Despite a general abhorrence of retrospective laws as a matter of legal theory and Constitutional dictate, U.S. courts continue—in essence—to create new crimes by injecting fuzzy moral considerations into determinations under the federal fraud statutes. They do so by deeming a failure to act with “moral uprightness” sufficient to constitute criminal fraud. Under such an amorphous standard, the unwitting find themselves in a legal bind, even though their conduct may not involve any of the traditional elements of common-law fraud. This Article traces the roots of novel fraud theories with tools drawn from legal theory, linguistics, and case law explication.

Recommended!

Catherine M. Sharkey (New York University School of Law) has posted Who’s Afraid of Punitive Damages for Products Liability Cases?, Who’s Afraid of Punitive Damages? (Mohr Siebeck, 2026) on SSRN. Here is the abstract:

Products liability cases constitute a new frontier for punitive damages to be awarded where a defendant’s recklessness has caused widespread harm in society. The recognition of punitive damages for reckless conduct in products cases signals a significant move away from the retributive punishment roots of punitive damages awards. The proliferation of punitive damages awards in products liability cases—especially those awarded against corporations for conduct causing widespread harms—bespeaks a turn towards non-retributive, societal deterrence rationales for punitive damages. The insurability of punitive damages is yet another marker of the non-retributive deterrence goal now served by punitive damages. Moreover, two statutory innovations—split-recovery schemes and the one-award rule—respond to the societal nature of punitive damages, particularly in products liability cases.

Recommended!

Benjamin David Landry (New York University School of Law) has posted Towards a Better Use of Real Property Rules in Copyright Coownership on SSRN. Here is the abstract:

The rules of copyright coownership in American law are broken. Because the Copyright Act is silent, courts treat copyright coowners as tenants in common—a set of rules borrowed from the law of real property. These rules work well in many respects, but much less so in others because real property and copyrights are fundamentally different kinds of things: land is tangible and rivalrous, while copyrighted works are intangible and nonrivalrous. It may make sense to prohibit cotenants of land from excluding one another or destroying shared property, but it is far less clear what it means for one coowner to, say, exclude another from a song or to destroy a poem. Importing these real property rules into copyright has produced predictable consequences: doctrinal confusion, inconsistent application, and market unpredictability. This Article argues that the problem runs deeper: real property law advances a pluralistic set of policy goals that sometimes conflict with American copyright’s singular utilitarian purpose of promoting the progress of art and science. As a result, the use of certain real property rules has shifted the law of copyright coownership out of alignment with its underlying policy goals. But while the current framework is flawed, it is not fatal: when we import ownership rules developed in the context of one resource into another, we can and should adapt them to fit the nature of the resource being governed and the policy goals the state wants to achieve. This Article makes progress towards that end by developing an account of copyright coownership decoupled from the most problematic real property rules and reframed through the core principles of tenancy in common which are well-suited to the copyright context, offering a framework for the better use of real property rules in copyright coownership.

Recommended!

Jonathan F. Harris (Temple University Beasley School of Law) and Ben Kaufman (Protect Borrowers) have posted Consumer Law Meets the New Company Store, UCLA Law Review, Volume 73 (forthcoming 2026) on SSRN. Here is the abstract:

Firms have discovered new ways to extract value from workers beyond traditional labor exploitation. In labor markets increasingly characterized by monopsony power, platform work, and financialization, employers push a variety of financial products onto workers and establish surveillance systems that monetize worker data. This Article introduces the Triple Extraction Model to explain how firms profit from workers through the three interconnected channels of labor productivity, financial products, and data commodification. In turn, firms are turning the workplace into a modern company store.

Building on prior work establishing workers as “worker-consumers,” this Article proposes that workers facing the Triple Extraction Model turn to consumer law to complement traditional employment and labor law protections. While treating workers as consumers faces typological and theoretical tensions, the worker-consumer framework offers legal tools that practitioners have already begun utilizing to rein in exploitation. For instance, the Dodd-Frank Act’s prohibition of “abusive” practices, the Fair Credit Reporting Act’s (FCRA) requirements for treatment of personal data, and federal and state unfair and deceptive acts and practices (UDAP) laws offer mechanisms to challenge workplace financial practices. In addition, even during a time of federal inaction, a little-known provision of the Dodd-Frank Act allows states to enforce the entire body of federal consumer financial protection law.

Consumer law works best for workers when it supports collective action. The application of consumer law to the workplace can reduce surveillance that chills organizing and establish minimum standards that free up union bargaining capital for wages and other benefits.

As firms become more creative in monetizing their captive workforces, sustainable change requires both sophisticated legal strategies and shifts in workplace power dynamics. This Article provides the theoretical understanding and doctrinal tools necessary to challenge the new company store, demonstrating how consumer law can complement employment and labor laws and ultimately encourage self-enforcement through unions.

Recommended!

Anthony M. Bertelli (Bocconi University – DONDENA Centre for Research on Social Dynamics; Institut Barcelona d’Estudis Internacionals) has posted Authorized Partnerships: Lay Participation and the Defense of Democratic Public Administration on SSRN. Here is the abstract:

This paper argues that carefully designed lay participation in administrative processes can reinforce democratic resilience by linking law, mass beliefs, and institutional design. I advance four claims. First, European hard and soft law establishes a practicable framework of authorized discretion that ties bureaucratic decision-making to democratically sanctioned principles. Second, these principles occupy a coherent and resilient position within mass political belief systems. Third, authorized discretion provides a publicly intelligible standard of administrative responsibility, and concrete encounters sharpen citizens’ reasoning about it. Fourth, the structural integrity principle embedded in authorized discretion protects democratic governance against destabilizing challenges, such as populist politics. Together, these claims support a normative and practical case for institutional designs that empower citizens to help defend democratic governance against partisan capture.

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Ben Oloko has posted The Right to Life in Full: Towards A Holistic Conception of the Right to Life, Livelihood and Adequate Standard of Living in Nigeria on SSRN. Here is the abstract:

The right to life occupies a pre-eminent position in the hierarchy of human rights. Without life, the enjoyment of all other rights becomes impossible. Yet, despite its centrality, constitutional and judicial understanding of the right to life in Nigeria has remained remarkably narrow. The prevailing approach treats the right principally as a guarantee against arbitrary deprivation of life by the State or private individuals. Such an interpretation, though important, fails to capture the broader social, economic and material conditions necessary for meaningful human existence. The consequence is that millions of Nigerians may remain technically alive while being deprived of the basic necessities required to sustain life in dignity.

This article argues that the right to life under section 33 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) ought to be interpreted purposively and holistically to encompass the rights to livelihood, food, shelter, healthcare and an adequate standard of living. Drawing from comparative constitutional jurisprudence, international human rights law, and emerging trends in Nigerian judicial decisions, the article contends that the traditional distinction between civil and political rights on the one hand and socioeconomic rights on the other has become increasingly artificial and unsustainable. The article further examines the implications of contemporary economic reforms, sovereign borrowing practices and public expenditure priorities for the enjoyment of the right to life in Nigeria. It argues that where governmental policies foreseeably produce widespread hunger, destitution and deprivation without adequate social safeguards, such policies may raise serious constitutional and human rights concerns. Ultimately, the article advocates a transformative approach to constitutional interpretation capable of ensuring that the right to life is understood not merely as a right against death, but as a right to live in conditions consistent with human dignity.

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Muhammad Munir (International Islamic University, Islamabad – Department of Law) has posted Revisiting Kelsen’s Grundnorm: Theory, Critique, and Its Judicial Fate in Pakistan on SSRN. Here is the abstract:

This article critically examines Hans Kelsen’s theory of the Grundnorm, focusing on its conceptual foundations and application in Pakistani constitutional jurisprudence. It explores key questions concerning the nature of the basic norm, the validity of a legal system in Kelsenian reasoning, and whether the Grundnorm is a positive, presupposed, or fictitious norm. The article interrogates Kelsen’s two core axioms, namely, that all norms derive their validity from a single basic norm and that they exist within a unified chain of validity, arguing that both are theoretically flawed. It highlights Kelsen’s later shift towards viewing the Grundnorm as an imaginary or fictitious construct. The article further analyses the invocation of Kelsen’s theory by the Supreme Court of Pakistan, particularly in State v Dosso and Asma Jilani, demonstrating judicial inconsistency and conceptual disagreement regarding the identification of a Grundnorm. It argues that subsequent constitutional jurisprudence abandoned Grundnorm discourse in favour of doctrines such as necessity and basic structure. Through comparative reference to cases such as Prasad (Fiji), the article underscores the limitations of Kelsenian reasoning in legitimising unconstitutional regimes.

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