Legal Theory Blog

Startari on Neutrality in LLMs

Agustin V. Startari (Universidad de la Republica; Universidad de Palermo; Universidad de la Empresa (UDE)) has posted The Grammar of Objectivity: Formal Mechanisms for the Illusion of Neutrality in Language Models on SSRN. Here is the abstract:

Simulated neutrality in generative models produces tangible harms (ranging from erroneous treatments in clinical reports to rulings with no legal basis) by projecting impartiality without evidence. This study explains how Large Language Models (LLMs) and logic-based systems achieve simulated neutrality through form, not meaning: passive voice, abstract nouns and suppressed agents mask responsibility while asserting authority.

A balanced corpus of 1 000 model outputs was analyzed: 600 medical texts from PubMed (2019-2024) and 400 legal summaries from Westlaw (2020-2024). Standard syntactic parsing tools identified structures linked to authority simulation. Example: a 2022 oncology note states “Treatment is advised” with no cited trial; a 2021 immigration decision reads “It was determined” without precedent.

Two audit metrics are introduced, agency score (share of clauses naming an agent) and reference score (proportion of authoritative claims with verifiable sources). Outputs scoring below 0.30 on either metric are labelled high-risk; 64 % of medical and 57 % of legal texts met this condition. The framework runs in <0.1 s per 500-token output on a standard CPU, enabling real-time deployment.

Quantifying this lack of syntactic clarity offers a practical layer of oversight for safety-critical applications.

Bostan on Global Administrative Space

Alexandru Bostan (Free International University of Moldova) has posted Global Administrative Space: Redefining Boundaries in Governance and Law on SSRN. Here is the abstract:

This paper explores the concept of the Global Administrative Space (GAS) as an integral element of Global Administrative Law, a framework that emerges from the need to address the complexities of governance in an increasingly interconnected and globalized world. The research examines how GAS redefines traditional boundaries between national and international legal orders, dissolves distinctions between public and private regulatory functions, and accommodates the diverse, fragmented, and polycentric nature of global governance. Through a comparative legal approach, the study evaluates the structural evolution of GAS, contrasting it with European Administrative Space and traditional administrative law models. The findings contribute to doctrinal developments in administrative law and emphasize some key characteristics of GAS and offer an original definition for Global Administrative Space.

Aroney on Comparative Study of Courts in Federal Systems

Nicholas Aroney (The University of Queensland - T.C. Beirne School of Law; Emory University - Center for the Study of Law and Religion) has posted A Framework for the Comparative Evaluation of Federalism Jurisprudence Motifs, Taxonomies and Scales of Political Salience on SSRN. Here is the abstract:

This article presents a methodological approach to the comparative study of courts in federal systems. The article begins by recounting the fundamental epistemological challenge faced by comparative federalism studies generally: the difficulty of constructing explanatory theories that can account for the common features that all federal systems possess while also accommodating the particular features that each system uniquely exhibits. It is argued that this challenge is best addressed through the development of explanatory concepts that are more finelytextured than those provided by standard definitions of federalism, and which delve more deeply into the variant features of federal systems than standard distinctions between various types of federal system can provide. Towards this end, it is proposed that each federal system, as a "compound polity" composed of "constituent polities", uniquely exhibits a specific "singularity-plurality" motif expressed in the particular ways in which the singular polity and the plurality of polities are constitutionally related. Building on this conceptual framework, the article then offers a taxonomy of the federalism disputes that commonly arise for consideration by courts in federal systems and the particular interpretive modalities and archetypical arguments that are frequently applied by the courts when addressing such questions. Recognising that the functioning of courts in federal systems also has a very important "political" element, the article then addresses the relationship between law and politics in federalism cases through the formulation of a scale of political salience that can be applied to the characteristic forms of legal reasoning and decision-making undertaken by the courts when * Distinguished Global Visiting Professor of Law, Notre Dame Law School (2024); Professor of Constitutional Law, The University of Queensland. This article was first developed as a paper presented at the Law and Politics of Federalism conference held at Montpelier, VA and hosted by Northwestern Law School in 2022. My thanks are due to the participants of the conference and especially A.J. Bellia, Barry Cushman, Erin Delaney and Zach Price for comments on earlier versions of this article.

Recommended.

Hirschl on Comparative Constitutionalism

Ran Hirschl (University of Toronto) has posted Comparative Constitutional Inquiry: The North American Angle on SSRN. Here is the abstract:

In this article, I reflect on the state of comparative constitutional inquiry from a North American perspective. I begin by addressing the global expansion of constitutions and constitutional jurisprudence, and the corresponding rise of comparative constitutional studies-a distinctly cross-disciplinary area of inquiry that transcends the traditional disciplinary divide between the legal and social scientific study of constitutionalism across time and place. I then proceed to evaluate the increasingly diverging trends in the United States' and Canada's constitutional paths over the last few decades and the possible lessons that these differing patterns may offer for comparative constitutional theory. To that end, I examine from a comparative perspective (i) patterns of democratic backsliding and constitutional retrogression in the United States; (ii) the rise of a distinct "us first" constitutional approach to climate change in the United States; and (iii) recent developments in Canadian constitutional law and politics with respect to the Charter's section 1 and section 33-two of Canada's constitutional innovations that are frequently addressed in comparative constitutional literature.

Highly recommended.

Shugerman on Originalism and the 7th Amendment and Article III

Jed H. Shugerman (Boston University - School of Law) has posted A Historical Case for a Robust But Non-Remedial Seventh Amendment on SSRN. Here is the abstract:

In SEC v. Jarkesy, the Supreme Court rightly held that the Seventh Amendment required a jury trial for a case fundamentally similar to common law fraud, and it rightly limited the scope of the "public rights" exception to the Seventh Amendment. Grounded in historical and originalist methods, this essay makes four suggestions to continue along the same lines as Jarkesy:

1. Continuing a more robust enforcement of the right to a jury trial, the courts should eliminate the “public rights” exception to the Seventh Amendment, which does not appear to have an original historical grounding in the Seventh Amendment. The “public rights” exception seems to have been a pragmatic spil-over from Article III “judicial power” jurisprudence, where it also has limited support in original public meaning.

2. Relatedly, the courts should more informally enforce Article III “judicial power,” which has a more ambiguous original public meaning. If the courts de-emphasize Article III’s “private rights” protections, then the counterbalance from a “public rights” exception would be less necessary, and thus it would be possible to abandon the dubious public rights/private rights distinction entirely.

3. As these questions are more a matter of an individual right to a jury than a structural separation-of-powers matter, individual waiver of the Seventh Amendment right would be more valid.

4. Whereas Jarkesy focused on both substance and remedy in interpreting “the common law,” the scope of the “common law” should be based on the substance (the right, the wrong, or the duty), and not the remedy.

The overall result would be a Seventh Amendment jurisprudence and an Article III “judicial power” jurisprudence more consistent with original public meaning, but also unlikely to lead to an originalist revolution overturning significant institutions of the administrative state.

Highly recommended.

Richard Fallon, In Memoriam

I am saddened to learn of the passing of Richard Fallon, the Story Professor Law, at Harvard Law School.  I have known Dick for more than 40 years. I was in his Federal Courts class during his first year of teaching at Harvard. We exchanged many emails, appeared together at conferences, and engaged each others work in print on many occasions.

Dick Fallon was a a superb teacher, a wonderful human being and a towering figure in constitutional theory. When I learned of his death this morning, I was devastated to lose a treasured friend and colleague far too soon.

My first memories of Fallon are of his Federal Courts class.  My friend, Steve Marzen, and I were both in his class, which shaped my teaching methods in a variety of ways. I have vivid memories of Dick writing an outline of the material on the board at the start of each class. In hindsight, I realize that teaching Federal Courts for the first time is a monumental enterprise--daunting because of the complexity of the material and the sheer number of relevant cases. Dick taught from Hart and Wechsler--the famous casebook of which he subsequently became an author. His command of the material seemed magisterial at the time, but I now realize that he must have labored long hours to present a clear, immaculately organized, and erudite vision his first time through the course. He was a magnificent teacher.

Fallon was a great constitutional theorist. His books include The Changing Constitution: Constitutional Law in the Trump-Era Supreme Court (forthcoming in September), Law and Legitimacy in the Supreme Court (winner of the Thomas Cooley Book Prize), Law and Legitimacy in the Supreme Court, The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny, The Dynamic Constitution: An Introduction to American Constitutional Law and Practice, and Implementing the Constitution. There were, of course, many many articles.

Fallon and I engaged in an ongoing debate about constitutional interpretation. I was especially proud of Themes from Fallon on Constitutional Theory, which appeared in the Georgetown Journal of Law and Public Policy in 2020. The title was an intentional echo of Themes from Kaplan, a festshrift for the great philosopher, David Kaplan. Fallon's critique of originalism was especially important. Many critics of originalism utterly failed to engage originalist theory in its strongest form, and it is not unusually to read strident denunciations by prominent scholars that contain basic errors. Fallon, on the other hand, always attempted to engage his opponents with charity, seeking to present their arguments in their strongest form. His criticisms were always analytically deep.  In my estimation he has been the most powerful and important critic of originalism--and of course his positive views about constitutional theory are among the most important and influential. In my view, Fallon, the constitutional theorist, stands with Ely and Scalia in the small group of theorists whose views will have lasting importance.

Fallon was extraordinarily kind, patient, and supportive.  I will never forget the deep encouragement he gave me as a student. I treasured the dinner invitation he extended to Steve Marzen and me during our third year in law school. And despite our deep disagreements about constitutional theory, Fallon was always supportive, respectful, and encouraging. He was a mentor to me and many others, a treasured colleague, and a friend. I will miss him more than I can say.

If I might offer a word of advice: reach out to the important people in your life and let them know how much you value them! Sometimes, we have the great good fortune of growing old together with our treasured colleagues, but there are no guarantees!

Tallarita on a Hohfeldian Reframing of the Corporate Purpose Debate

Roberto Tallarita (Harvard Law School) has posted Hohfeld in the Boardroom on SSRN. Here is the abstract:

For nearly a century, debates over corporate purpose have framed the issue as a clash between two contested visions: Should corporations maximize profits, or should they pursue broader social goals? This Article argues that this conventional framing obscures the true nature of the dispute. Using Wesley Hohfeld's map of rights, duties, privileges, and no-rights, I argue that the corporate purpose debate is fundamentally about the scope and design of managerial privilege, rather than abstract commitments to shareholders or stakeholders. The Article shows that traditional "shareholder primacy" and "stakeholder governance" theories are merely generalized permutations of Hohfeldian legal relations, which can and do co-exist in practice, and proposals for stakeholder governance often mask reforms that quietly expand managerial privilege while resting on risky empirical bets about corporate actors' benevolence. The Article proposes a pragmatic principle for designing stakeholder-oriented governance: expand managerial privilege only when the benevolence of the relevant corporate actors is verifiable; otherwise, pair privilege with enforceable duties or countervailing powers.

Highly recommended.

 

Marques Moreira on Deepfakes and Crime

Jose Marques Moreira (Universidade Católica Portuguesa) has posted The Use of Deepfakes in the Criminal Justice Domain: An Emerging Reality? on SSRN. Here is the abstract:

The scientific advances of recent years in the field of artificial intelligence have undoubtedly brought significant benefits to its users. However, alongside these developments, there has been a notable increase in the use of such technologies to commit criminal offences, particularly in the context of phishing and deepfakes. In this brief essay, without any claim to exhaustiveness, we aim to analyze one of these scenarios under Portuguese law, discuss the available legal mechanisms the State may employ to combat this phenomenon, and, ultimately, reflect on the need for legislative amendments in the criminal justice framework to keep pace with the scientific evolution of this technology.

Wright on Trump v. CASA and Departmentalism

Lawson Wright (Princeton University) has posted The Departmentalist Problem with Universal Injunctions: Three Insights into Trump v. CASA on SSRN. Hereis the abstract:

On the final day of its most recent term, the Supreme Court in Trump v. CASA held that federal courts lack the authority to issue universal injunctions—remedies that prohibit government action not only against the plaintiffs in a case, but against anyone, nationwide. While the Court grounded its decision in the Judiciary Act of 1789, focusing on the historical limits of equitable remedies available in English common law and at the Founding, this article argues that a deeper and more enduring rationale supports the result in CASA: departmentalism. At the founding, Americans widely believed that all three branches of government shared coequal authority to interpret the Constitution for themselves in their own spheres. This departmentalist tradition—embraced by Hamilton, Madison, Jefferson, Lincoln, and others—sheds new light on Trump v. CASA and the broader debate over universal injunctions.

Departmentalism strengthens the Court’s reasoning in CASA three key respects. First, it provides additional support, separate and apart from historical equity practice, for concluding that the Judiciary Act does not authorize federal courts to issue universal relief. Second, it helps answer a broader, still-unresolved question: even if the Judiciary Act did authorize universal injunctions—or if Congress were to authorize this relief today—would such a grant violate the limits of Article III? It would. Finally, departmentalism provides a compelling justification for why overbroad injunctions cause irreparable harm, bolstering the majority’s lackluster explanation and undercutting one of the principal dissent’s main arguments.

Seen through the lens of departmentalism, Trump v. CASA is not just a case about remedies—it is a reaffirmation of the Constitution’s structural commitment to co-equal, separated powers and to the judiciary’s limited, dispute-resolution role.

A very interesting student paper.

Marcus on the Class Action and Trump v. Casa

David Marcus (UCLA School of Law) has posted The Class Action After Trump v. CASA (73 UCLA L. Rev. Discourse, forthcoming 2025) on SSRN. Here is the abstract:

To every court to consider its merits, Donald Trump’s order purporting to end birthright citizenship for children born in the United States to undocumented parents violates the Fourteenth Amendment. But in Trump v. CASA, the U.S. Supreme Court vacated a “universal” injunction that had shielded all children from the order’s enforcement. Federal courts can only issue remedies to benefit parties. Courts can rarely protect non-parties, even from policies that are illegal under all circumstances. Thus, unless every undocumented parent sues, President Trump may wield his unconstitutional order to deny citizenship to tens of thousands of children.

The federal courts had issued dozens of universal injunctions before Trump v. CASA, to stop the enforcement of executive orders that threaten transgender servicemembers, healthcare providers, scientists, and more. Many of the people these injunctions had shielded now stand in the same vulnerable position as children born to undocumented parents. They too must sue. Otherwise, the violation of their rights may well go unremedied.

Fortunately, many of the cases that had generated universal injunctions, including the birthright citizenship cases, can proceed as class actions. Much, if not all, of this litigation challenges uniform, across-the-board policies whose legality can be determined for everyone at once. The federal courts have invariably favored class certification under such circumstances. Upon a class’s certification, everyone who comes within the class’s boundaries gets joined to the case as a party. Consistent with Trump v. CASA, a federal court can enjoin an illegal policy’s enforcement across-the-board, protecting the entire class and not just one person at a time.

Well-settled doctrine overwhelmingly favors the certification of a birthright citizenship class, as well as classes in many of the other cases that had generated universal injunctions. Indeed, no twenty-first precedent poses the slightest barrier to the swift and efficient grant of class certification in the birthright citizenship litigation. Only the radical, unprincipled reinvention of class action doctrine – a reinvention wholly at odds with rule text, history, structure, and governing precedent – could deny the benefits of class action procedure to children and many other victims of President Trump’s illegal policies.

Highly recommended. Download it while it's hot!

Diab on Intrinsic Human Equality

Robert Diab (Thompson Rivers University - Faculty of Law) has posted Intrinsic Human Equality: A Critical Overview of Recent and Historical Theory (NOTRE DAME JOURNAL OF LAW, ETHICS & PUBLIC POLICY | Vol. 39 | 2025) on SSRN. Here is the abstract:

A common assumption in constitutional, democratic, and liberal theory is that all human beings have equal intrinsic or moral worth, a belief that underpins equal human and constitutional rights. The arguments for intrinsic or basic equality have been advanced primarily in moral and political philosophy, despite the centrality of the issue for constitutional jurisprudence. This article presents a critical overview of theories of intrinsic equality in canonical political theory, twentieth century scholarship, and post-millennial theory to advance three claims: No attempt to ground equality can defeat the moral skeptic; defenses of intrinsic equality invariably involve positing the moral value of a shared property rather than deducing our moral equality from it; and contemporary (post-millennial) theory has offered more nuanced variations on earlier, failed attempts. Intrinsic equality, whether as a moral or constitutional principle, is best understood as an axiomatic assumption.

Recommended.

Roosevelt on Choice of Law and Statutory Interpretation

Kermit Roosevelt (University of Pennsylvania Law School) has posted Choice of Law and Statutory Specifications of Scope (Journal of Transnational Law & Policy, Vol. 34, p. 49, 2025) on SSRN. Here is the abstract:

Choice of law problems, it is often said, arise because legislatures do not specify the scope of their laws: they do not state explicitly to whom a law grants rights, or where. But what if they do? One view, adopted in the draft Third Restatement of Conflict of Laws, is that choice-of-law analysts should accept the help and follow legislative instruction about the scope of state laws. Another view, put forward during debates over the draft Third Restatement and more recently in law review articles, is that courts should ignore what legislatures say about the laws they are writing. This essay attempts to explain why the Third Restatement takes the position it does and to give readers greater insight into the difficulties of the contrary perspective.

Highly recommended.

Ishitani on Section 3 of the 14th Amendment

M. Henry Ishitani (Yale Law School; Yale University - Department of History; University of Tulsa College of Law) has posted The Fourteenth Amendment is Not a Bill of Attainder: Uncovering the Fundamental Contradictions in Chief JusticeChase’s Argument That Section Three Is Not Self-Executing on SSRN. Here is the abstract:

This Essay brings new historical evidence to bear questioning the reliability of Griffin’s Case as a precedent for Donald Trump’s argument in Trump v. Anderson that Section Three disqualification does not execute without prior Congressional implementation. Chief Justice’s position in Griffin flatly contradicts his characterization of disqualification throughout the 1866-70 Test Oath Cases. Instead, Chase’s personal correspondence suggests that he believed that only the removal of state officers already sitting in 1868 required prior Congressional authorization.

Legal Theory Lexicon: Vagueness and Ambiguity

Introduction

This week the Legal Theory Lexicon entry focuses on "ambiguity" and "vagueness"--two important concepts for the theory of interpretation.  Some legal texts are ambiguous--they contain words or phrases that can have two or more distinct meanings.  And some legal texts are vague--they use concepts that have indefinite application to particular cases.  And some legal texts are both vague and ambiguous--they have multiple meanings, some (or all) of which have indefinite applications.  Because "vagueness" and "ambiguity" are basic concepts in the theory of interpretation, its important to master each of them and to understand the difference between them.

As always, this entry in the Legal Theory Lexicon is aimed at law students, especially first year law students, with an interest in legal theory.

Vagueness  

What does it mean to say that a concept, term, or phrase is vague?  Let's start with some examples and then try for an elucidation of the concept.  "Tall" is a good example of a vague concept.  Some humans are definitely not tall--Danny DeVito, for example.  Others definitely are tall--Boban Marjanović, for one.  But the term "tall" is vague.  5'11 is almost definitely tall for a woman in the United Sates, but might be a borderline case for men.  "Tall" is not the sort of quality for which there are definite criteria that sort the world into "tall" things and "not tall" things.  In other words, "tall" is vague.

There are lot's of terms that are like tall: short, strong, weak, heavy, light, warm, and cool--all of these are terms that seem to have borderline cases.  And that is one way that we might define vagueness.  A term is vague, we might say, if and only if it has borderline cases.  A term is not vague just in case it has no borderline cases.

As you might guess, the fact of vagueness creates a variety of issues in the philosophy of language.  Is vagueness built into the fabric of the universe?  Or is vagueness merely a feature of the imprecision of human language?  Is vagueness a property of things?  Or is it a property of our knowledge of things?  We won't worry about these deep questions.  For the purposes of this rough and ready introduction, it is sufficient simply to see that there are such problems and that a philosophical theory of vagueness should propose to answers to them or show that they aren't true problems at all.

Ambiguity  

What about "ambiguity"?  A word or phrase is ambiguous if it has more than one meaning.  Take "cool" for example.  One meaning of "cool" has to do with temperature, and in this sense, "cool" contrasts with "warm," "cold," and "hot."  Another meaning of "cool" has to do with fashion and social attractiveness.  And there are other senses of "cool" as well, as in, he kept his cool in a very pressured situation.  So, the word "cool" is ambiguous because it has multiple senses, with each sense representing a different concept.

In a particular context, the meaning of an ambiguous term may be clear.  In the sentence "He's one cool dude," the word "cool" is likely to refer to social attractiveness and not temperature.  By considering the word "cool" in the context of the whole sentence, we are able to disambiguate and identify the relevant sense of "cool."  But in some contexts, the ambiguity may be difficult to resolve: "The aviation is a cool drink" could refer either to the fact that aviations are served chilled but not icee cold or to the fact that aviations are fashionable and popular among some social groups.

And this last example, "cool" can be used to illustrate the fact that the same term can be both vague and ambiguous in the same context.  If I say, "Bring me a cool drink!", my utterance may be both ambiguous--do I mean fashionable or coldish?--and vague--how far below room temperature is "cool" or are aviations still "cool" or are they now "out of style"?

Interpretation of Vague or Ambiguous Texts 

Now that we have a basic grasp of vagueness and ambiguity, we are in a position to see that each of these two concepts has a role to play in a theory of the interpretation of legal texts.

Many legal texts are vague.  In fact, most law students become very familiar with a variety of vague terms early in their law school careers.  Take "reasonable"--was the tort defendant's conduct "reasonable" under the circumstances?  There will be clear cases of unreasonable conduct: driving 150 mph in a residential area.  But there will also be borderline cases.  Was it reasonable to drive at 55 mph in a light fog?

Some legal language general, abstract, and vague.  For example, the phrase "equal protection" in the 14th amendment of the United States Constitution might refer to a very general and abstract idea of equality.  Given this generality and abstraction, it might be that the "borderline" cases seem to make up the whole of equal protection doctrine.  What would count as a clear example of "equal" or of "unequal"?  In a common law system, general and abstract language may be translated into relatively more particular and concrete rules through case-by-case adjudication.

Vagueness is ubiquitous in the law, and frequently legal actors (courts and others who apply the law) must resolve borderline cases.  Every law student is familiar with the strategies that are employed, which include case-by-case balancing tests, supplementary doctrines that provide bright-line rules to implement vague legal texts, and so forth.

Ambiguity may be less common, because many potentially ambiguous terms or phrases are disambiguated by context.  "Seizure" can refer to a physical taking or it can refer to a medical symptom, but in the Fourth Amendment of the United States Constitution, it is clear that the correct meaning is the former rather than the latter.

Beyond Vagueness and Ambiguity

Both vagueness and ambiguity can be viewed as forms of underdetermination: the communicative content of a legal text cannot fully determine the legal effect of the text if the communicative content is vague or irreducibly ambiguous.  But there may be other forms of underdetermination.  Some texts may be "open textured" and others may have multidimensional content with dimensions that are incommensurable.  And there may be other forms of underdetermination as well.  These phenomena require their own Lexicon entry.

Relationship to the Interpretation-Construction Distinction

The distinction between vagueness and ambiguity is related to the interpretation-construction distinction--discussed in a separate entry in the Legal Theory Lexicon.  Roughly, the distinction is that interpretation of a text aims at recovering its linguistic meaning or semantic content. Construction involves the "tranlation" of the semantic content into legal content: we we construe a legal text we formulating legal rules that enable application of the text to particular cases.

Interpretation and Ambiguity--In many cases, problems of interpretation involve ambiguity: a legal text uses a word with more than one meaning and the interpreter looks to context to resolve the ambiguity.

Construction and Vagueness--But when a text is vague, it is usually the case that interpretation cannot resolve the vagueness.  Why not?  Because interpretation only can take us as far as the meaning of the text: if the linguistic meaning is vague, then something else will be required if we must apply the text to a particular case.  Construction allows legal actors (e.g., judges) to devise a supplementary rule or procedure that resolves the vagueness.  Thus, a legal text may supply a vague standard ("freedom of speech"), but construction may yield a more particular rule ("no prior restraints").  (There is a Lexicon entry on rules, standards, and principles.)

An Example: Ambiguity and Vagueness in Chevron

Why is the ambiguity-vagueness distinction important?  Does the distinction make any practical difference?  We can approach these questions via an exploration of the role of the word "ambiguity" in the famous Supreme Court decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the case that gave rise to what is called the "Chevron Doctrine." Chevron was overruled by the Court's subsequent decision in Loper Bright, but it still can serve as an illustration of how vagueness and ambiguity work in context.

In a super-simplified nutshell, the Chevron Doctrine required courts to defer to "interpretations" of statutes by administrative agencies when a statute is "ambiguous."  But as Professor Cass Sunstein and I show in an article entitled "Chevron as Construction," the Chevron case itself actually involved a provision that was vague or open-textured.  The problem in Chevron wasn't that some word or phrase in the statute had multiple sense, but instead involved an agency making a judgment about how to precisfy an underdeterminate provision.  Then, decisions subsequent to Chevron extended the doctrine to cases in which the language of the statute was ambiguous (multiple senses).  Much of the criticism of Chevron focuses on these cases, where deference to the agency seems inconsistent with the traditional notion that statutory interpretation (determinations of meaning) is the province of judges and not administrative agencies.

Conclusion

"Vagueness" and "ambiguity" are important concepts in the theory of legal interpretation generally, and as a consequence, they are important to constitutional theory and the theory of statutory interpretation.  I hope this Lexicon entry has clarified the distinction between these two concepts.

Related Lexicon Entries

• Legal Theory Lexicon 063: Interpretation and Construction

Resources on the Internet

• Lawrence B. Solum & Cass R. Sunstein, Chevron as Construction, 105 Cornell Law Review 1465 (2020). 
• Roy Sorensen, Vagueness, Stanford Encyclopedia of Philosophy (2006).
• Adam Sennett, Ambiguity, Stanford Encyclopedia of Philosophy (2011).
• Dominic Hyde, Sorites Paradox, Stanford Encyclopedia of Philosophy (2005).
• Wikipedia Article on Vagueness
• Vagueness in Law by Timothy A. O. Endicott

Bibliography

• Timothy A.O. Endicott, Vagueness in Law  (Oxford University Press, 2001)
• Cuts and Clouds: Vaguenesss, its Nature and its Logic  (Richard Dietz & Sebastiano Moruzzi eds., Oxford Press, 2010).
• Vagueness: A Reader  (Rosanna Keefe & Peter Smith eds., MIT Press, 1999)
• Timothy Williamson, <Vagueness (Problems of Philosophy) New Edition by Williamson, Timothy published by Routledge Paperback  (Routledge, 1996)
• Israel Scheffler, Beyond the Letter (Routledge Revivals): A Philosophical Inquiry into Ambiguity, Vagueness and Methaphor in Language  (Routledge, 2010)
• Ralf Poscher, Ambiguity and Vagueness in Legal Interpretation in The Oxford Handbook of Language and Law, Lawrence Solan & Peter Tiersma, eds., Oxford University Press, 2012).
• Scott Soames, Vagueness and the Law in The Routledge Companion to Philosophy of Law (Andrei Marmor ed. 2012).

(This entry was last revised on July 13, 2025.)

Legal Theory Bookworm: "Marital Privilege" by Mayeri

The Legal Theory Bookworm recommends Marital Privilege: Marriage, Inequality, and the Transformation of American Law by Serena Mayeri. Here is a description:

How the privileged legal status of marriage survived decades of constitutional struggle and social change
 
The United States is unusual among wealthy western nations in the degree to which the law channels public benefits and private economic resources through marriage. This remains so despite seismic changes in American family life in the last several decades of the twentieth century. During this period, marriage rates declined while divorce and nonmarital childbearing soared. Social movements—for racial and economic justice, women’s and gay rights and liberation, civil liberties, and reproductive freedom—transformed the legal landscape.
 
In Marital Privilege, Serena Mayeri tells the stories of parents and partners, activists and lawyers who challenged the legal primacy of marriage. They made innovative constitutional claims in courts and launched grassroots efforts to change laws and practices that penalized nonmarital relationships. But even though reforms eliminated the most visible discrimination against women, people of color, and children born to unmarried parents—and, eventually, against gay and lesbian Americans—marriage’s privileged status endured. Because marriage increasingly correlated with education and wealth, marital primacy intensified racial and economic inequality. Marital Privilege explains how, as American law selectively incorporated principles of liberty and equality, the benefits of marriage became increasingly unavailable to those who needed them most.

And from the reviews:

“Serena Mayeri’s hugely ambitious project is to map the changing legal status of marriage from the perspective of single women of color, gays and lesbians, feminists who wanted to reform (or even abolish) marriage, alternative family units, and unmarried fathers, among so many others. While the history of marriage looks different when considered from its edges, Mayeri ultimately demonstrates the resilience of an institution that so many labored to change over decades and decades.  This astonishingly comprehensive and organically intersectional book is a masterpiece that will be influential for years to come.” —Margot Canaday, author of Queer Career: Sexuality and Work in Modern America

“Mayeri masterfully shows how legal challenges to marriage over the past several decades made marriage itself more egalitarian but left intact marriage’s dominant legal status and preserved marital status as an engine of inequality.”—Douglas NeJaime, Yale Law School

“‘Marriage is everywhere in American law.’ What often goes unnoticed by those who enjoy its manifold benefits and privileges is painfully written on the lives in its shadow. In this brilliant history, Serena Mayeri explains how despite a half century of challenges, marriage remains a key engine in the reproduction of inequality today.”—Barbara Young Welke, University of Minnesota

Download of the Week: "Personhood as Participation" by Toomey

The Download of the Week is Personhood as Participation by James Toomey. Here is the abstract:

“Legal personhood” is thought to be a concept of foundational and systemic importance to the legal system, encompassing all living human beings, born alive, and certain collectivities called corporations. The problem is that the more one tries to square these uncontroversial intuitions with one another, the less the concept hangs together. Many things that we do not call “legal persons” are treated in legally identical ways to entities that we do call “legal persons”—and entities within the class of “legal persons” are treated in radically different ways among themselves. To be sure, we can call anything we want “legal persons”—but not without trivializing the concept.

This Chapter makes two claims. First, I argue that the concept of legal personhood, as currently understood, is not doing the work it is widely thought to. There is no account of why some entities are called “legal persons” and others are not—at least not one consistent with the intuition that legal personhood is a systemically significant concept. Second, I argue that there is an organizationally foundational concept at the heart of our notion of legal personhood—the class of entities capable of participating in the law on their own terms. This class, comprised—at the moment and as far as we know—of only roughly cognitively healthy human adults, is narrower than the way in which the term “legal person” is used. But it is a category that captures the foundational organizational role we have long presumed of the concept.

Highly recommended.

Zucca on Poetic Wisdom

Lorenzo Zucca (King's College London – The Dickson Poon School of Law) has posted The Art of Navigating Uncertainty: Norms, Nature, and Poetic Wisdom on SSRN. Here is the abstract:

In an age dominated by algorithmic precision and techno-scientific promises of control, this lecture argues for the enduring importance of poetic wisdom in confronting the deep uncertainties that shape human existence. Drawing from Shakespeare’s Hamlet, Shylock, and Prospero, the paper explores the limitations of philosophical, legal, and technological “certainty projects.” Through a re-reading of Dante’s Ulysses and Shakespeare’s King Lear, it advances the idea that uncertainty is not a flaw to be engineered away but a vital condition of freedom, creativity, and ethical judgment. Poetic wisdom—defined as the capacity to “see feelingly”—is presented as an essential method for navigating complexity and ambiguity in law, politics, and life. The lecture concludes by urging legal scholars and practitioners to embrace a jurisprudence that combines reason and imagination, precision and empathy, acknowledging that our most profound insights often emerge not in spite of uncertainty, but because of it.

Barbas on Civil Rights Groups and Hate Speech Laws

Samantha Barbas (University of Iowa - College of Law) has posted How American Civil Rights Groups Defeated Hate Speech Laws (Journal of Free Speech Law, Vol. 6, Issue 1 (2025)) on SSSRN. Here is the abstract:

In the United States, “hate speech” is generally protected by the First Amendment. Hate speech is considered to be “free speech” unless it provokes imminent violence or constitutes a “true threat” or “fighting words.” No other nation protects the right to express hate so vigorously.

This article explains one potential reason for the absence of hate speech laws in America –the historic opposition of minority civil rights groups to hate speech laws. Since the beginning of the twentieth century, civil rights groups such as the National Association for the Advancement of Colored People (NAACP) and the American Jewish Committee spoke out against hate speech laws and campaigned to defeat proposed hate speech laws on the theory that such laws were ineffective in curtailing hate speech, and that limitations on freedom of speech would hinder the efforts of minority groups to achieve racial and religious equality. These civil rights groups concluded that the most effective way to reduce racial and religious hatred was to combat hate speech through counter-speech and education. This article tells the story of how and why civil rights organizations opposed hate speech laws, and how that opposition changed American law and public policy.

Stone on the Democratic Conception of Contracts and Consumers

Rebecca Stone (University of California, Los Angeles (UCLA) - School of Law) has posted A Democratic Conception of Consumer Contracts (15 HBLR 93 (2025)) on SSRN. Here is the abstract:

I sketch and briefly evaluate two standard ways of conceptualizing the problem that is posed by consumer contracts and defend a third view, which is based on my democratic conception of contract. According to the first, the power asymmetry between sellers and consumers means that we should not view consumer contracts as genuine contracts but rather as illegitimate exercises of private law-making by sellers for their consumers. According to the second, which broadly aligns with the approach of the Restatement of Consumer Contracts, consumer contracts are genuine contracts but of a procedurally defective kind. On the view I defend, the essence of the problem is not the compromised assent of consumers, but rather the tendency of sellers to set terms without regard for consumers’ interests. Individual consumers have little interest in acquiring the knowledge they would need to be more involved in the setting of the terms of their relationships with sellers, though they have an interest in doing so collectively. Sellers, by contrast, are well positioned to take on that responsibility because they deal with multiple consumers on the same terms at the same time. According to my democratic conception of contract, sellers are under robust duties of good faith to set terms with an eye to articulating a vision of justice for their relationships with consumers, rather than seeking their own advantage or undermining the mechanisms via which consumers can collectively assert themselves. Legal regulation of consumer contracts should accordingly be directed towards ensuring sellers discharge those duties of good faith when they set the terms of their agreements with consumers.

Highly recommended.

Ishitani & Fay on the Indian Law Plenary Powers Doctrine

M. Henry Ishitani (Yale Law School; Yale University - Department of History; University of Tulsa College of Law) & Alexandra Fay (University of Tulsa College of Law) have posted Revising the Indian Plenary Power Doctrine on SSRN. Here is the abstract:

The federal Indian law doctrine ef Congressional plenary power is long overdue for an overhaul. Since its troubling nineteenth-century origins in Kagama v. United States (1886), plenary power has justified invasive Congressional interventions and undermined Tribal sovereignty. The doctrine's legal basis remains a constitutional conundrum. This Article considers the Court's recent engagement with plenary power in Haaland v. Brackeen (2023). It argues that the Brackeen opinions may signal judidal readiness to reevaluate the doctrine. The Article takes ahold ef Justice Gorsuch's critical assessment and runs with it, ultimately proposing a method for cleaning up this destructive and constitutionally dubious line ef case/aw.

Recommended.

Sample on the Supreme Court Code of Conduct

James J. Sample (Hofstra University, Maurice A. Deane School of Law) has posted The Supreme Court’s Specious Code of Conduct (46 Cardozo L. Rev. 1855 (2025)) on SSRN. Here is the abstract:

Congressionally-imposed ethics enforcement would enhance the Supreme Court’s exercise of constitutional powers by reducing the interference of improper personal motives during its factual and legal determinations. The Court has long recognized the self-evident truth that “no man can be a judge in his own case.” The Framers recognized the limits inherent in human nature: humans are not angels. Accordingly, the Constitutional scheme of separated powers, as elucidated by Madison,“[does] not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” Congress rightly has the constitutional means and motive to promote due process by bolstering impartiality and the appearance thereof. It can do so while also strengthening the Court’s proper constitutional role. Congress can and should enact an ethics enforcement mechanism that brings the Justices within a system that checks their individual interests. The Supreme Court’s ersatz Code, in its present form, is manifestly insufficient. With permissive language and no meaningful enforcement mechanism, the Code serves only as a clever loophole, designed to suppress public scrutiny of the Court, without enacting real change.

Anello on Fasting and the Right to Food

Giancarlo Anello (University of Parma) has posted The Duty of Fast: Religious Abstinence and the Quest for Food Security on SSRN. Here is the abstract:

Despite the universal declaration of the right to food, global hunger remains a persistent crisis. Paradoxically, many of the world's major religions incorporate fasting as a central practice, seemingly at odds with the fundamental need for sustenance. This essay explores this apparent contradiction, focusing on major religious traditions to examine the nuanced relationship between the right to food and the duty of fast. It argues that religious fasting, far from undermining food security, can cultivate values such as self-restraint, communal responsibility, and empathy for the hungry, indirectly supporting efforts to ensure more equitable access to food resources. Religious rules on fasting, in fact, can be instruments for managing the challenges of food insecurity. This paper analyses different meanings of fasting in religious laws, summarizing the altruistic view that underpins them. Moreover, this matter could be a point of the "strategy of dialogue" that is currently being developed in the EU under the umbrella of the Article 17 of the Treaty on the Functioning of the European Union The ultimate goal is to demonstrate that religious duties can be considered valuable legal resources in achieving global food security.

Wagner, Kuebler, Zalnieriute on Humans in the Loop

Ben Wagner (Delft University of Technology - I:TU Interdisciplinary Transformation), Johanne Kuebler (Inholland University of Applied Sciences, Amsterdam), & Monika Zalnieriute (Vilnius University) have posted Humans in the loop: exploring the challenges of human participation in automated decision-making systems on SSRN. Here is the abstract:

“Human in the loop” (HITL) refers to a process or system design where human oversight, intervention, and collaboration are integrated into Automated Decision Making Systems (ADMS) at strategic points. In this editorial, we discuss questions about the concrete frameworks in which humans interact with automated decisions. For instance, what kind of decision options are humans provided, what data are made available to inform their decisions, is the time they are allocated to make their decisions sufficient and what level of oversight, accountability and liability are attached to human-made decisions? Most importantly, effective human-machine collaboration requires that human input is meaningful, and not just rubber-stamping decisions from ADMS. The articles in this Research Topic contribute to the debate how HITL should evolve beyond simplistic “human approval” models toward more sophisticated collaborative frameworks where humans and automated systems complement each other's strengths while mitigating respective weaknesses. Implementing effective human oversight remains challenging, and, most importantly, responsible development of automated systems means to go beyond merely implementing technical safeguards, and instead to thoughtfully design human-machine relationships that align with societal values and priorities. Available open access.

Harmon et al on Execution of Persons with Intellectual Disabilities

Talia Roitberg Harmon (Niagara University), Michael L. Perlin (New York Law School), Maren Geiger (Niagara University, Department of Criminal Justice), Lea Roitberg (Niagara University), & Stacy Bielic (Niagara University) have posted "When the Death Count Gets Higher": An Empirical Examination of Whether the Federal Courts of Appeals Have Authentically Enforced Atkins v. Virginia on SSRN. Here is the abstract:

The United States Supreme Court held in Atkins v. Virginia, 536 U.S. 304 (2002), that subjecting persons with intellectual disabilities to the death penalty violates the Eighth Amendment, as those with disabilities in areas of reasoning, judgment, and impulse control “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” Here the Court added: “Some characteristics of mental retardation undermine the strength of the procedural protections that our capital jurisprudence steadfastly guards.” The Court has returned to this question on multiple occasions, clarifying that a determination of intellectual disability cannot be limited to a bare numerical “reading” of an IQ score (Hall v. Florida, 572 U.S. 701 (2014), and that state rules based on inaccurate and out-of-date medical standards are similarly unconstitutional (Moore v. Texas I, 572 U.S. 701 (2017); Moore v. Texas II, 586 U.S. 133 (2019)). Scholars have written about counsel’s ability to understand the meaning of intellectual disability; the importance of cultural competency; the extent to which experts can adequately explain the meaning of intellectual disability in this context; the extent to which judges actually understand the meaning of expert testimony in this context, and perhaps most importantly, the extensive concerns about the “fear of faking” that were focused on by Justice Scalia in his dissent in Atkins. Nonetheless, there has been little attention paid to the question of how lower courts have construed Atkins and its progeny, and to the extent to which Atkins has been more than a “paper victory.”

Here, we find that any relief under Atkins was only granted in 20 of the 152 cases in which substantive Atkins claims were raised and considered in these circumstances. We discuss the Atkins case, and the significance of the post-Atkins cases referred to above (on the question of their reinforcement of some of Atkins' most important points). We then look at the “pressure points” of post-Atkins litigation, to determine which have been of significance to the reviewing courts. Then, we look at the actual decisions in all Federal circuits, and assess which (if any) of these “pressure points” seem to have had an actual impact on judicial decision making. Next, we apply principles of therapeutic jurisprudence -- a legal school of thought that requires the legal system to treat all people with dignity and compassion, and ensure them authentically adequate counsel. We sought to determine the extent to which courts deciding Atkins cases followed or ignored these principles. Finally, we offer some conclusions to assist judges in deciding future cases that join this cohort as well as scholars who write about this important topic.

Anderson, Buenaventura, Mahler, & Pace on Hensler on Tort

James M. Anderson (RAND Corporation), Maya Buenaventura (RAND Corporation), Amy Mahler (RAND Corporation), & Nicholas M. Pace (RAND Corporation) have posted Empirical Tort Law (and Theory)-An Essay in Honor of Deborah Hensler on SSRN. Here is the abstract:

In this essay to honor Deborah Hensler, we summarize an update to her classic study on claiming behavior and explore its policy implications. More specifically, we empirically document how those with significant medical conditions utilize the civil liability system, particularly in terms of making claims against others, seeking the advice of legal professionals, and initiating litigation. We find that few who are injured or fall ill believe that another party is responsible, and even among that group, relatively few seek compensation against that party. Still fewer contact attorneys or file a lawsuit. Our findings have implications for the social welfare system, the role of tort law, and the way the selection of cases shapes the common-law. In particular, the significant non-random winnowing of the universe of harms litigated we observe can result in normatively undesirable path-dependence in the evolution of the common law.

Pryor on Contract Theory Pluralism

Scott Pryor (Campbell University - Norman Adrian Wiggins School of Law) has posted Person-Centered Pluralism About Contract Theory on SSRN. Here is the abstract:

Since Ronald Coase first applied neo-classical economic analysis to contract law, many contracts scholars in America have framed their accounts of contract law in terms of welfare maximization. In turn, theories grounded in visions of personal sovereignty are regularly advanced. And, on a smaller scale, virtue ethics has become a resource for contract theory. While the internal perspective of the New Private Law has found a place in contract theory, competing theories remain in tension. What does the fissiparous variety of contract theories in the American context suggest?

From an internal perspective, those who engage in contracting and the profession of contract law—judges and legislators, lawyers and contract parties—see themselves as part of something that has a foundation. Contract law is more than a collection of rules.

This article provides a grounding for contract theory by incorporating person-centered resources. It will proceed in three parts. Part I begins with a brief survey of some recent developments in contract theory. Theories of personal sovereignty have moved beyond the vaguely Kantian, while welfare-maximization theorists have responded to moralistic criticisms. Part I will conclude with a discussion of refinements in virtue-based accounts of private law.

Part II draws on the study of the phenomenon of personhood by which the movement toward pluralism can be tethered to a fuller understanding of the human person.

Part III concludes by evaluating two issues in contract law by drawing on the insights of person-centered pluralism: boilerplate contract terms and pernicious contracts

Bernstein on Occupation Categories and Tort Values

Anita Bernstein (Brooklyn Law School) has posted Extend Tort Principles to Tort Principals (in A Research Agenda for Torts (Ellen M Bublick & John Goldberg eds. 2025)) on SSRN. Here is the abstract:

This chapter examines occupational categories (here called “principals”) that effect the values or ends (“principles”) that tort law pursues. The most familiar of tort Principals is the judge. Judges create tort law overtly in the decisions they write and the case law they choose to reference in support of what they decide. Attorneys who advocate for injured persons and injurers, an undertaking that includes integrating these clients’ experiences and perspectives into legal arguments, also function as tort Principals.

Four less familiar tort Principals occupy this chapter. Among the actors who through their occupations make under-recognized contributions to the substance of tort law in the United States are arbitrators, lead counsel in multiparty litigation, special masters, and partisan speakers in court. Principals like these have a claim to attention from torts researchers because they participate in the creation, undoing, and enhancement of tort principles.

Highly recommended.

Bhakuni & Miotto on Transitional Health Justice

Himani Bhakuni (University of York) & Lucas Miotto (University of Surrey - Centre for Law and Philosophy) have posted Transitional Health Justice (Justice in Global Health: New Perspectives and Current Issues. Routledge (2023)) on SSRN. Here is the abstract:

In the past few years, health and human rights scholars have stressed upon the need for rebuilding or reforming our health systems to make them both more resilient to health emergencies and less prone to nurturing inequalities. Discussions about health reform often centre on the ends of reform: the kind of health systems that should be built and the demands of justice that they should be able to satisfy once reformed. However, little has been said about the demands of justice in or during health reforms. This chapter intends to start that discussion. Borrowing from the literature on transitional justice, we argue that an analogous problem of transitional justice exists in the context of health. We outline some of the key elements of transitional health justice, including some of its key demands, practices, and corresponding institutional framework. We conclude by highlighting an important relationship between transitional health justice and transitional justice.

Tomuleț on the Evolution of Natural Law

Cristina Tomuleț (Babeș-Bolyai University, Faculty of Law) has posted On The Evolution Of Natural Law on SSRN. Here is the abstract:

In this article, I approached the concept of natural law, starting with the analysis of some of its first definitions developed by Cicero. Moving toward recent history, I proved the utility of this concept when dealing with legal systems specific to dictatorial regimes. Next, I presented arguments proving the existence of natural law, and I determined its content, referring to the general principles included in it, which underpin positive law, and to its importance in terms of ensuring respect for fundamental rights. In the final part of this article, I analyzed the confrontation between jusnaturalism and legal positivism to highlight even more the features of natural law. Last but not least, I stressed the importance of choosing a jusnaturalistic legal mindset in order to prevent and fight against legal systems that are manifestly contrary to natural law.

Kieffaber, Gandall, Foster, & McLaren on LLMs and Classifiers

Jack Kieffaber (Harvard University - Harvard Law School), Kimo Gandall (Harvard University, Harvard Law School), Steven M. Foster, Jr. (U.S. Army), & Kenny McLaren (Harvard University - Harvard Law School) have posted LLMs Are Bad Judges. So Use Our Classifier Instead on SSRN. Here is the abstract:

Large Language Models suffer from prompt variance—meaning they'll give you totally different legal answers depending on how you phrase your question. Jonathan Choi demonstrated this recently when he asked ChatGPT five legal questions, each rephrased 2,000 times, and watched as the bot spat out different answers every time. When you tell somebody that AI is going to replace the judge, the lawyer, and the legal system in the next twenty years, Choi's article has become the go-to rebuttal; it's the crown jewel of the "AI bad" genre.

Choi's absolutely right that LLM's are bad judges. And, if every AI was an LLM, your biglaw job would be safe. But there's this other type of AI—it's a classifier, and we built one called Arbitrus. We put it through a mini-Choi test and it mopped the floor with the competition, delivering perfect consistency across all prompt variants with zero hallucinations. We're going to tell you how it works, why it's better than an LLM and, ultimately, why it's better than you. And we'll close with the frank assertion that a judge's highest telos—in any legal system—is amendable consistency. That means the Choi test, simple though it may seem, isn't just a "gotcha" for chatbots; it's the defining test of judicial qualification.

Toomey on Legal Personhood

James Toomey (University of Iowa - College of Law) has posted Personhood as Participation on SSRN. Here is the abstract:

“Legal personhood” is thought to be a concept of foundational and systemic importance to the legal system, encompassing all living human beings, born alive, and certain collectivities called corporations. The problem is that the more one tries to square these uncontroversial intuitions with one another, the less the concept hangs together. Many things that we do not call “legal persons” are treated in legally identical ways to entities that we do call “legal persons”—and entities within the class of “legal persons” are treated in radically different ways among themselves. To be sure, we can call anything we want “legal persons”—but not without trivializing the concept.

This Chapter makes two claims. First, I argue that the concept of legal personhood, as currently understood, is not doing the work it is widely thought to. There is no account of why some entities are called “legal persons” and others are not—at least not one consistent with the intuition that legal personhood is a systemically significant concept. Second, I argue that there is an organizationally foundational concept at the heart of our notion of legal personhood—the class of entities capable of participating in the law on their own terms. This class, comprised—at the moment and as far as we know—of only roughly cognitively healthy human adults, is narrower than the way in which the term “legal person” is used. But it is a category that captures the foundational organizational role we have long presumed of the concept.

Highly recommended.

Broughton on Models of Precedential Constraint

Gabe Broughton (Princeton University) has posted Weakening the Plaintiff's Case without Strengthening the Defendant's (Forthcoming in Legal Theory) on SSRN. Here is the abstract:

The reason model of precedential constraint is supposed to generate a stricter doctrine than the minimalist result model. In the standard setting in which these models were originally formalized, that is exactly what we find. Surprisingly, however, in the more complex dimensional setting, the models become indistinguishable. In this paper, we provide an illuminating explanation of the collapse. We also shed light on recent proposals to modify the reason model, or the underlying dimensional setting, in order to avoid it. Finally, we show how the models can be made to collapse even in the simpler standard setting.

Highly recommended.  There are many other interpretations of the "reason model," including for example, the view that the holding of a case is the legal norm (e.g., rule or standard) that follows from the articulated reasons that are necessary to the outcome given the legally salient factual characteristics of the case and the issues raised by the parties or the court prior to decision.

Perlin et al on the ADA and Death Row

Michael Perlin (New York Law School), Talia Roitberg Harmon (Niagara University), Maren Geiger (Niagara University, Department of Criminal Justice), & Chelsea Henning (Niagara University) have posted "Tolling for the Outcast": A Therapeutic Jurisprudence Consideration of the Relationship Between the Americans with Disabilities Act, Death Row Conditions, and Capital Punishment on SSRN. Here is the abstract:

The press has regularly reported on the level of abysmal conditions on death rows in those states that have retained capital punishment. Death-row prisoners are often incarcerated in solitary confinement, and are subject to much more deprivation and harsher conditions than other prisoners. As a result, many experience declining mental health, and it has become clear that persons with mental illness are disproportionately put to death. Some litigants have turned to the Americans with Disabilities Act (ADA) as a potential source of relief; the Supreme Court’s decision in Pennsylvania Department of Corrections v. Yeskey underscored that the act’s language “unmistakably includes State prisons and prisoners in its coverage.

But very few of the hundreds of cases about death row conditions involve allegations that the ADA has been violated by the conditions in question: The results in these cases, to be charitable, have been a mixed bag. Of the 23 cases in which the ADA was raised at any post-conviction juncture by death row defendants, seven have been executed, four have died while on death row, three have had their sentence commuted, one was resentenced, and seven remain on death row, having not been executed as of the time this paper was written Besides cases involving conditions of confinement on death rows (and issues related to jury selection in such cases), there have also been three ADA cases involving claims that prisoners’ rights were violated under that law for failure of the state to provide reasonable accommodations to elect an execution by nitrogen hypoxia instead of lethal injection.

Until now, there has been virtually no scholarship that has focused specifically on the issue we consider here: what impact, if any, has the ADA had on these conditions, and to what extent have cases broadly interpreting the ADA had any value to the civil plaintiffs alleging harm under that Act? We tackle these questions in this paper, and find that in the 23 cases in which Courts recognized valid ADA claims, only seven defendants received any success in the courts. As noted above, there is a subset of these cases that focuses not on actual conditions in the prison in which the defendants are housed, but on the means of execution.

In our paper, we first discuss the relevant aspects of the ADA, describe our methodology, and then assess the individual cases that have sought relief under that law. Next, we examine the denouement of those cases in which a court had preliminarily granted some ADA-based relief (with a separate focus on nitrogen hypoxia-based cases). Further, we consider these issues through the filter of therapeutic jurisprudence (TJ). Here we conclude that it is imperative that the courts and counsel for prisoners weigh the TJ implications of prison conditions that violate the ADA.

Zalnieriute on the GDPR and Facial Recognition

Monika Zalnieriute (Vilnius University) has posted Beyond Procedural Fetishism: The Inadequacy of GDPR in Regulating Facial Recognition Technologies and Public Space Surveillance (in M. Ebers and K. Sein (eds.) Privacy, Data Protection and Data-Driven Technologies, Edgar Elgar, 2024, p. 328-367) on SSRN. Here is the abstract:

Facial recognition technology (FRT) is assisting governments and business to monitor crowds and employees, identify customers and collect taxes. The General Data Protection Regulation (GDPR) provides only a generalist approach towards FRT use, which does not adequately account for the significant FRT risks to undermine privacy, due process, political protests and equal protection. This chapter demonstrates how FRT has significantly expanded state and corporate power, arguing that the GDPR is engaging in a procedural fetishism-a tendency to focus on procedural safeguards, grounded in the assumption that these can adequately protect against power expansion and abuse. To counter procedural fetishism in FRT governance, the laws and jurisprudence must engage with substantive questions about how to limit the state and corporate power that FRT expands. The new FRT regulation must redistribute power by fortifying regulatory enforcement, adopting prohibitive laws and breaking, taxing and democratizing tech companies by making them public utilities and giving people a say in how they should be governed. It must also decolonize FRT discourse through recognizing colonial practices of extraction and exploitation. With these efforts, the new FRT regulation will debunk procedural fetishism to ensure that political protests, privacy and due process can flourish in the modern state.

Recommended.

Buhmann & Feld on the EU Corporate Sustainability Due Diligence Directive

Karin Buhmann (Copenhagen Business School (CBS) - CBS Centre for CSR; Dpt of Management, Society and Communication; Centre for Law, Sustainability & Justice) & Leonard Feld have posted Shifting boundaries: A transnational legal perspective on the EU Corporate Sustainability Due Diligence Directive. on SSRN. Here is the abstract:

Aiming to address harmful impacts of transnational business operations, legislation requiring companies to exercise human rights and environmental due diligence is on the rise in several jurisdictions. This article examines the EU Corporate Sustainability Due Diligence Directive (CSDDD) and its obligations on large companies domiciled or operating in the EU to cascade demands drawn from international soft law onto business partners, including those in third countries, as examples of transnational law. Emphasising the international law origin of the risk-based due diligence approach, it demonstrates that the CSDDD fits the understanding of transnational law as being public law, targeting private actors, concerned with human rights and the environment in the context of business operations, and inducing companies to advance the normative ideals drawn from international law through private forms of law targeting value chains operations. Moreover, it outlines implication for evolving transnational law theory to accommodate the proliferation of such laws.

The manuscript for this article was completed prior to the Omnibus ('simplification') package. The theoretical points still apply, even if the Omnibus initiative may eventually result in amended thresholds for CSDDD in-scope companies and postponed application dates.

Shah on Presidential Administrative Discretion

Bijal Shah (Boston College Law School) has posted Presidential Administrative Discretion (N.Y.U. Law Review (forthcoming)) on SSRN. Here is the abstract:

The Supreme Court has amplified Article II appointments and removal power over formal administrative adjudication. Both those in favor of and against this trend share assumptions about presidential influence over administrative power. For instance, both assume administrative discretion is at odds with political control. More specifically, unitary executive theorists view presidentialism as keeping agencies in line, while those in favor of an autonomous administrative state believe that the civil service is generally insulated from political control. In addition, this conversation overlooks the large expanse of informal administrative adjudication and enforcement decisions, which are neither conditioned by constitutional requirements nor anchored by consistent procedural requirements specified by the Administrative Procedure Act.

Building on this observation, this Article explores and demonstrates how administrative discretion, particularly within informal administrative procedures, is a significant mechanism for advancing presidential influence and control over agency action. This work is based in case studies arising in regulatory areas including education, food safety, and immigration. Sometimes, informal administrative adjudication is shaped by presidential administration. Other times, White House directives to agencies, or pressure from an overarching presidential agenda, can result in particularized prosecutorial and enforcement discretion.

This Article argues that these examples shed light on under-valued aspects of the relationship between presidential and administrative authority. First, these dynamics show that unitary executive theory and anti-administrativism are, in fact, at odds, because presidents leverage administrative authority and “autonomy” to meet their goals. Second, these dynamics suggest that the civil service is less insulated from the Presidential than is generally assumed. Sometimes, this leads to administration that favors the interests of a vulnerable public. More recently, presidential administrative discretion has reduced access to fair process and lawful administrative outcomes.

Lastly, this Article suggests alterations in longstanding, conventional frameworks of political control over agency action. First, agencies might combat the politicization of administrative discretion with the democratization of administrative procedure. This could be accomplished by engaging the internal separation of powers to leverage a dissenting civil service, ramping up quality assurance within agencies, and—controversially—involving public stakeholders in administrative adjudication. Second, the co-equal branches could check the executive. Indeed, the legislature could define informal procedure with greater nuance, through oversight and legislation. Also, the Court’s skepticism toward administrative discretion and role in preserving due process could serve to constrain problematic forms of presidential administrative discretion.

Gensler & Menand on Presidential Supremacy and Administrative Agencies

Gary Gensler (Massachusetts Institute of Technology (MIT) - Sloan School of Management) & Lev Menand (Columbia University - Law School) have posted Presidential Supremacy Over Administrative Agencies on SSRN. Here is the abstract:

In the United States, the public has long benefited from the role played by administrative agencies with a degree of autonomy from the White House, each agency with distinct duties and authorities to implement the law as set out by Congress. In its first hundred days, the second Trump administration has moved rapidly to centralise control over all administrative agencies, including so-called independent agencies, which have long operated at a greater remove from the White House . The administration is asserting an interpretation of the Constitution known as “unitary executive theory” which, in its pure form, holds that the President has the inherent power to fully control all federal agencies, regardless of statutory design. Such presidential supremacy, in a break with history, significantly increases the role of White House staff in the operations of independent agencies. It also changes how all departments and agencies operate, with less insulation for their adjudicatory proceedings and less protection for civil servants. In this chapter, we examine what these changes may mean for the economy. We build on the broad economic research consensus on the value of agency autonomy in central banking (a consensus that is generally shared by political observers and policymakers in both parties). First, we explore Congress’ goals in setting up agencies and granting them some degree of autonomy from the White House. Second, we describe five major moves that the new administration has made to take greater control of all federal agencies. Third, drawing on empirical evidence where available, we consider how the resulting loss of agency semi-autonomy may affect the economy. Lastly, due to the critical importance of the Federal Reserve, we assess what these changes might mean for the conduct of monetary policy, inflation, and economic growth.

Young on Human Rights and Networks, Platforms, and Utilities

Katharine Young (Boston College - Law School) has posted HUMAN RIGHTS AND NETWORKS, PLATFORMS AND UTILITIES: POSITIVE RIGHTS CONNECTIONS on SSRN. Here is the abstract:

The connections between the fields of human rights and Networks, Platforms and Utilities (NPU) law help illuminate the relationship between the individual and the state in legal and regulatory and governance theory and practice. This Article maps the connections. It considers how the subset of human rights known as "economic and social rights" represent, for NPU industries, (1) a globalized repertoire of normative arguments about state obligations; (2) an architecture of monitoring and accountability, including by courts; and (3) a practice of advocacy and resistance that is global, national and local. These interplays are both constructive and disruptive, on both sides. NPU law informs the institutional pathways of human rights implementation, just as it aligns with sources of power that increasingly threaten human rights. In reverse, human rights law raises challenges and questions for NPU law and policy. This is salient for the so-called "positive" rights to to housing, water and health care (the Article's main examples), whose protection rely inevitably on resources and public goods, state capacity, essential services provision, and pathways of globalized access or competition. In addition, the Article explores contemporary and evolving aspects of American exceptionalism and human rights, and positive rights and positive obligations frameworks. This chapter was part of conference proceedings at Vanderbilt University, June 305, 2024 and will be included in the Cambridge Handbook on Networks, Platforms and Utilities, edited by Ganesh Sitaraman, Morgan Ricks and Ewan McGaughey.

Elinson on Dobbs, Loper Bright, and Party Politics

Gregory Elinson (Northern Illinois University - College of Law) has posted Unraveling the Ties That Bind: How Dobbs and Loper Bright Might Reconfigure American Party Politics (57 Loy. Chi. L.J. (forthcoming 2025)) on SSRN. Here is the abstract:

What happens to partisan politics when long-standing doctrinal equilibria are upended? In search of answers, this essay engages in an extended comparison of two recent landmark Supreme Court rulings: Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade, and Loper Bright Enterprises v. Raimondo, which overruled Chevron USA v. Natural Resources Defense Council.

It begins with the observation that opposition to abortion and judicial deference on the right, and support for abortion and judicial deference on the left, helped unite the major party coalitions, forging durable alliances among elected officials, organized interests, donors, activists, and voters on both sides of the aisle. It is not surprising, then, that the twin demise of Roe and Chevron has already begun to unsettle coalitional arrangements in both parties. On the right, it has exposed disagreements about the use of national power to prohibit abortion and the extent to which the administrative state should be uprooted. On the left, it has promoted new thinking about how to best defend abortion rights and strengthen federal regulatory policy.

Situating these developments in a broader theoretical framework, the essay explores why doctrinal upheaval can alternately fracture and revitalize co-partisan alliances. For those who oppose the doctrinal status quo, change often precipitates coalitional instability, as one-time allies debate what the new doctrinal equilibrium should be. For supporters of the doctrinal status quo, the loss of a favorable equilibrium may be painful, but it also encourages innovation in strategy and communication, which may in turn permit new alliances to be formed. The analysis developed here suggests that party coalitions are likely to change in tandem with changes in legal doctrine.

Revesz on Executive Branch Responses to Changes in Regulatory Law

Richard L. Revesz (New York University School of Law) has posted New Challenges for Federal Regulations: Executive Branch Responses on SSRN. Here is the abstract:

Over the last decade, federal regulations have faced increasingly more challenging hurdles. The Supreme Court's 2024 decision in Loper Bright v. Raimondo, putting an end to Chevron deference, and its 2022 decision in West Virginia v. EPA, announcing the "major questions doctrine," have gotten the most attention. But the Court's 2024 decision in Ohio v. EPA and its 2015 decision in Michigan v. EPA are also part of the equation. And since the second term of the Obama Administration, state attorneys general of the party opposing the president have become aggressive litigants, often filing cases in single-judge divisions of judicial districts before sympathetic judges who frequently grant nationwide injunctions against the challenged rules. Moreover, since the first term of the Trump Administration, incoming administrations have begun using a variety of tools, including disapprovals under the Congressional Review Act, to undo the regulatory output of predecessors of the opposite party. Largely through empirical work, this Article explores how the Executive Branch has responded to these challenges-particularly during the last two years of the Biden Administration-to make its regulations more resilient. First, the Article examines efforts to publish rules reflecting important administration policy priorities relatively earlier in the last year of the president's term, thereby shielding them, to a far greater extent than had previously been the case, from hostile actions by an incoming administration. Second, the Article studies the far greater and far more robust use of severability as a tool to protect portions of regulations even if other portions of the same regulations are struck down. Third, the Article looks at the similarly more robust efforts that agencies have undertaken to discuss the regulatory antecedents for their actions, as a way to improve their litigation position following Loper Bright and West Virginia v. EPA.

Highly recommended.

Mańko on Legal Survavals and Epistemic Authority

Rafał Mańko (Central European University, Democracy Institute) has posted Legal Survivals and Juristic Epistemic Authority on SSRN. Here is the abstract:

The concept of "legal survivals" has been first championed by American jurist Oliver Wendell Holmes, ostensibly under the influence of Darwinian evolutionary theories. Later on, notable contributions to the study of legal survivals were made by one of the founding fathers of sociology of law, Karl Renner, as well as, more recently, by British sociologist of law Simon Deakin. In contemporary literature, legal survivals are defined as legal forms (such as: legal institutions, i.e. functionally interlinked sets of legal forms, legal concepts, or legal norms, including both rules and principles) which had been introduced under an earlier socioeconomic , political, or ideological context, that were functional to that context and/or linked to it causally, and which have survived despite the disappearance of that original context. Under evolutionary theories of legal survivals, inspired by the legacy of Holmes, the fact of their endurance is explained by their "adaptation" to new conditions. The goal of this paper is to provide an alternative explanation, pointing to the importance of juristic epistemic authority in the survival of legal forms after revolutions, transitions and transformations. This explanation is conceived of as a supplementary one, which-without the goal of replacing the evolutionary explanation-can, nonetheless, shed a new light on the phenomenon of legal continuity and open up avenues for empirical research focused not only on the changing social functions of legal survivals, but also about the role of the juristic community and its epistemic authority in the preservation of old legal forms despite major societal discontinuities.

Highly recommended.