Legal Theory Blog

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.

Saputra on "The Making of Law" by Latour

Beny Saputra (Central European University (CEU) - Department of Legal Studies) has posted Bridging Legal Worlds: Latour’s Ethnography of the French Conseil d’État and its Indonesian Echoes on SSRN. Here is the abstract:

Bruno Latour’s The Making of Law: An Ethnography of the Conseil d’État challenges traditional views of legal reasoning by demonstrating that law is not simply a collection of abstract rules or a fixed body of doctrine, but a living process actively constructed through everyday practices, interactions, and material conditions. Written by an anthropologist and sociologist rather than a lawyer, Latour’s study of France’s highest administrative court—the Conseil d’État—deploys methodologies such as ethnographic fieldwork, Actor-Network Theory (ANT), and material semiotics to reveal the complex dynamics behind legal decision-making. This essay is organised into two main parts. Part 1 examines Latour’s unique methodology, highlighting how it diverges from conventional legal research methods and discussing its advantages and potential pitfalls. Part 2 focuses on the insights that Latour’s work provides into the French legal system, particularly the functioning of the Conseil d’État, and offers a comparison with aspects of the Indonesian legal system. By contrasting these two systems, we understand how legal traditions structure judicial authority and decision-making.

Paterson, Tan, & Webb on AI and Online Consumer Dispute Resolution

Jeannie Marie Paterson (University of Melbourne - Law School), Vivi Tan (RMIT; University of Melbourne - Melbourne Law School) & Julian Webb (University of Melbourne - Melbourne Law School) have posted Generative AI in Small Value Consumer Disputes: Reviving Not Resolving Challenges of Design and Governance in Online Dispute Resolution ((2025) 48(4) University of New South Wales Law Journal (Forthcoming)) on SSRN. Here is the abstract:

This article examines the benefits and risks of generative AI use in an important domain that is currently under-serviced by the civil justice system: small value consumer claims, where generative AI has been proposed as a means of closing the access to justice gap. In the field of online dispute resolution ('ODR'), use has already been raised, and in some instances actioned, of digital tools such as expert systems and rules-based chatbots to assist potential litigants. Generative AI has considerable attractions in this context because of its adaptivity and flexibility in responding to prompts. The question is whether the risk of hallucinations apparently inherent in generative AI undermines these benefits. While strategies such as finetuning or retrieval augmented generation may improve the accuracy of generative AI in legal domains, it is currently unclear whether these techniques can usefully overcome the information asymmetries that typically characterise consumer disputes. Any resolution of these issues requires careful attention to ODR design and AI governance.

Whiteley on Sackett v. EPA

Jack Whiteley (University of Minnesota School of Law) has posted The Clean Water Act and Avoidance Creep (109 Minnesota Law Review 3053 (2025)) on SSRN. Here is the abstract:

In Sackett v. EPA, the Supreme Court set out a test for the Clean Water Act’s jurisdiction over wetlands. The Act, the Court held, protects only those wetlands that have a continuous surface connection to relatively permanent bodies of water like streams, rivers, and lakes. If the connection lies below the surface, or is at the surface but discontinuous, the wetlands are presumed to fall outside the Act’s protections. The ruling, which abruptly curtailed how each administration since the 1970s had understood the Clean Water Act’s jurisdiction, has generated persuasive criticism from environmental scholars.

In this Essay, prepared for the Minnesota Law Review Symposium, I suggest that the Sackett opinion is an example of a trend in recent Supreme Court cases called constitutional avoidance creep. As scholars have observed outside the environmental law context, an overly expansive reliance on constitutional avoidance principles can lead courts to read statutes in implausible ways. Later decisions that interpret the earlier ones then magnify the problem, getting further away from the statutory language’s ordinary meaning. Here, the Court’s use of an avoidance principle, briefly mentioned in a prior Clean Water Act case, contributed to a reading of the Act that is difficult to square with textualist principles. Connecting the environmental law and avoidance creep literatures can generate insights into the Court’s new methods of interpretation.

Payne & Canaparo on the Constitutionality of Vacatur

Jameson Payne (Hillsdale College) & GianCarlo Canaparo (The Heritage Foundation) have posted Is Vacatur Unconstitutional? on SSRN. Here is the abstract:

The modern practice of setting aside agency rules—a power (apparently) authorized by section 706 of the Administrative Procedure Act—is a strange beast of law. Rather than settling rights between parties like normal Article III relief, vacatur purports to act upon the rule itself, striking it from existence. Many have debated whether this practice is warranted by history, but few have asked if it is constitutional. This Article answers no. Properly understood, changing the law itself is a legislative power. Vacatur is, therefore, a delegation of legislative power to the judiciary, and an improper one at that.

This Article will offer a recapitulation of the debates surrounding the history of vacatur, touching upon early judicial practice and the APA's predecessor, the Walter-Logan Bill. Then, we will defend our understanding of vacatur as a legislative power, and show why alternative conceptions are less persuasive. Last, we will analyze its propriety under the caselaw governing delegations to the judiciary, and offer a few solutions to vacatur's constitutional defects.

Buccola & Hoffman on Precedent Terms in Contracts

Vincent S.J. Buccola (University of Chicago - Law School) & David A. Hoffman (University of Pennsylvania Carey Law School) have posted Precedent Terms on SSRN. Here is the abstract:

This Article develops a new analytical category of contract term which explains why sophisticated transactional lawyers negotiate as they do. What we call “precedent” terms are economically meaningful provisions that vary from contract to contract but that do not affect price. They emerge when the costs of standardizing a dimension of the parties’ relationship outweigh the benefits, but they can’t effectively capitalize the effects of marginal variation into the contract’s price. Under these conditions, negotiators may do best by anchoring on, while contesting the weight and meaning of, prior deals. They commit to experimenting with change on the margin and use the past as precedent.

Beyond developing a general account of precedent terms, we consider their role in the production of one important transactional form: the leveraged loan. Interviews with participants in the loan market suggest that precedent terms amount to a large fraction of the variation in leveraged loans. To the extent that other kinds of deals are like leveraged loans in this sense, commercial and corporate law scholars should incorporate precedent terms, and what they mean for contracting, into their teaching and research.

This is a revised version of this important paper. Highly recommended. Download the new version while it is hot!

Novelli et al on the EU AI Act

Claudio Novelli (Yale University - Digital Ethics Center), Philipp Hacker (European University Viadrina Frankfurt (Oder) - European New School of Digital Studies), Simon McDougall, Jessica Morley (Yale University - Digital Ethics Center), Antonino Rotolo (University of Bologna - Department of Legal Sciences), & Luciano Floridi (Yale University - Digital Ethics Center; University of Bologna- Department of Legal Studies) have posted Getting Regulatory Sandboxes Right: Design and Governance Under the AI Act on SSRN. Here is the abstract:

Regulating emerging technologies involves balancing the mitigation of risks with the promotion of innovation; a balance frequently seen as a zero-sum "dilemma of control". Regulatory sandboxes offer a practical way to address this dilemma by enabling controlled, evidence-based testing of new technologies. In this article, we examine the regulatory sandbox framework introduced by the EU Artificial Intelligence Act (AIA). We argue that the AIA's multi-level governance structure represents a shift from traditional sandbox models by prioritizing regulatory learning over technological disruption and expanding public interest considerations to include strategically aligned commercial innovations. Afterwards, we identify governance challenges across three sandbox phases-pre-testing, testing, and post-testing-and propose structured solutions. Our analysis suggests that effective sandbox governance requires specific mechanisms: tailored entry criteria, precise pipeline placement guidance, and multi-agency coordination in pre-testing; experimental realism and continuous risk classification updates during testing; and clear graduation criteria with robust transition support in post-testing.

Legal Theory Lexicon: Default Rules and Completeness

Introduction

At some point in the introductory class in contract law, students are likely to encounter a very powerful idea--the distinction between "default rules" and "mandatory rules."  The basic distinction is easy to grasp.  Some rules of contract law supply default terms that are subject to contractual override; other rules of contract law are mandatory--they can't be modified by the contract.  Lurking in the background of this distinction is a theoretical construct--the complete contract, an idealized contract that would include explicit terms covering every possible contingency.  Once you understand the distinction between default rules and mandatory rules, additional questions arise: as a matter of normative contract theory, which rules should be default rules and which rules should be mandatory?  And what normative principles should guide the design of default rules?

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

Default Rules and Mandatory Rules

Let's start with the "takeaway" point.  In contract law, we can sort the rules into two sorts, "default rules" and "mandatory rules."

Here's an example.  The Uniform Commercial Code (or UCC, the codified law of contract that applies to contracts between businesses as a matter of state law in the United States) creates a duty to act in good faith--this is a mandatory rule, because this duty cannot be disclaimed by a contractual provision.  The UCC also includes an implied "warranty of merchantability," that attaches to contracts, but can be waived by agreement--this is a default rule.

Grasping this distinction is important for at least two reasons.  First, unless you know whether a given rule of contract law is a default rule or a mandatory rule, you don't really know the law.  And it isn't always clear whether a given rule is one or the other: the usual tipoff is language like, "unless the contract provides otherwise" or "absent an agreement to the contrary."  Second, the distinction between default rules and mandatory rules is fundamental to the normative structure of contract law.  Learning contract is more than a matter of mastering the rules; mastering the arguments of principle and policy that can be used to argue for and against the rules is equally important.  But the arguments for default rules and the arguments for mandatory rules must be different--because these two kinds of rules have different functions.

Generalizing the Idea of a "Default Rule" 

Although the notion of a "default rule" is usually introduced to law students in the context of contract law, the idea is more general.  For example, we could think of the law of wills and intestate succession through this theoretical lens.  Rules of intestate succession are "default rules" that can be overridden by a will.  Much of the law of wills consists of default rules, and we can imagine a "complete will" that covered every possible contingency.

Similarly, we can imagine a "complete code" that covers every possible action or inaction and specifies what legal consequences follow.  Given that actual codes are incomplete, we can look at the law of statutory interpretation as including a collection of "default rules" that allow courts to fill in the gaps.  Another example is provided by corporations law--once again, some of the rules are mandatory and others are merely defaults.

You get the idea--default rules can be applied to any authoritative legal text that is "incomplete."

Normative Theories of Default Rules 

Once we understand the distinction between default rules and mandatory rules, we can then ask the question, "What normative principles should guide the design of default rules?"  For example, we might decide that lawmakers (legislators or common-law judges) should attempt to devise the default rules that are most likely to be the rules that the parties would have adopted had they contracted on the issue.  Or we might want "efficient" default rules.  Or default rules that maximize utility.  All of these approaches are associated with normative law and economics.  But there are other approaches as well.  For example, we might try to design default rules so that they maximize the autonomy or liberty of the parties to the contract--imposing the fewest possible restrictions that have not actually be agreed to by the parties.  Or we might impose default rules that will serve some other goal such as distributive justice or economic equality.

Default Rules as Public Goods 

Another interesting question is why the law provides default rules at all.  Why don't we force the parties to reach complete agreements?  Immediately, of course, we realize that this would be very costly.  Drafting a complete contract would almost always (perhaps always) cost more than the contract is worth.  And there is another problem as well.  Most contract provisions are not protectable as intellectual property; in general, you can't copyright or patent a nifty contractual provision.  (You may be able to copyright the specific language, but that doesn't preclude someone else from expressing the idea in different language.)

This suggests an interesting perspective on the economics of default rules.  We might see the default rule provisions of contract law as a "public good."  That is, consumption of default rules is "nonrivalrous"--because my use of a given provision doesn't interfere with your ability to use the same provision.  And consumption of default rules is "nonexcludable"--assuming that there is no intellectual property protection available for "form contracts" or "form contract provisions."  If this is correct (and it may not be), then there is a classic economic justification for government to provide for the "public good."  For more on the idea of a public good, see Legal Theory Lexicon 029: Public and Private Goods.

Complete Contracts 

Now that we have the basic distinction between default and mandatory rules in mind, let's discuss the related idea of a complete contract.  Once again, the core intuitive idea is relatively simple--a complete contract has provisions that cover "every contingency."  In other words, a complete contract has no gaps.

Why did I put "every contingency" in scare quotes?  Because "every contingency" is an ambiguous way of formulating a fairly complex idea.  We need some special terminology here.  Economists tend to use the phrase "states of affairs" to express the idea of a contingency.  A "state of affairs" is simply a way that the world can be--a complete specification of the way things are.  Philosophers use different jargon--the phrase "possible world" expresses the same idea as "state of affairs."

So a truly "complete" contract would be a contract that specified the duties and rights of the parties for all the future states of the world--or all the possible worlds that share the history of the actual world up to the point the contract is formed.  Once you think about it, it becomes clear that no actual contract could be complete.  There are infinitely many possible future states of the world--and a contract that covered all of them would have an infinite number of provisions, and hence the drafting of such a contract would never be complete--it would still be unfinished when the universe reached a state of complete entropy.

So the notion of a complete contract is an idealization--not a practical option.  And once we see this point, another point becomes obvious.  Contract law cannot provide default rules to cover every possible contingency either.  Of course, as a practical matter, contract law doesn't have to cover all the contingencies.  Some possible future states of the world are so remote or far-fetched that they can safely be disregarded--Martian invasions and/or the discovery of a true universal fabrication machine (3D printers are not even close) are not contingencies about which we need worry.

The General Idea of Completeness 

Just as the idea of a default rule can be generalized beyond contract law, so can the idea of completeness.  So we can imagine "complete wills," "complete corporate charters," "complete trusts," and so forth.  One particularly important idealization is the idea of a "complete code"--a legal code that itself has provisions that cover every possible contingency.  The complete code will have default rules or mandatory rules that for every possible future state of affairs.

Conclusion 

Well, as is usually the case, we've barely scratched the surface.  Nonetheless, I hope this Lexicon entry has given you a basic framework for understanding the ideas of a complete contract and the distinction between default rules and mandatory rules.  Once you have this ideas in your conceptual toolkit, you are likely to start noticing them in all kinds of contexts, not just in contract law, but in every legal subject you encounter.  When you do, you might ask yourself, "Why is this a default rule rather than a mandatory rule?," or vice versa.  And, "What normative legal theory or principle supports this choice?"

Related Lexicon Entries

• Legal Theory Lexicon 013: Conduct Rules and Decision Rules
• Legal Theory Lexicon 029: Public and Private Goods
  
• Legal Theory Lexicon 026: Rules, Standards, and Principles
• Legal Theory Lexicon 036: Indeterminacy
• Legal Theory Lexicon 051: Vagueness and Ambiguity

Bibliography

• Ian Ayers & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale Law Journal 87 (1989)
• Ian Ayers, Default Rules for Incomplete Contracts.
• The Desert and the Jungle: Alan Schwartz and Robert Scott on Contract Theory
• C A Riley, Designing Default Rules in Contract Law: Consent, Conventionalism, and Efficiency, Oxford Journal of Legal Studies, Volume 20, Issue 3, AUTUMN , Pages 367–390.
• Curtis Bridgeman, Default Rules, Penalty Default Rules, and New Formalism, 33 Fla. St. U. L. Rev. 683 (2006).
• Ariel Porat & Lior Jacob Strahilevitz, Personalizing Default Rules and Disclosure with Big Data, 112 Mich. L. Rev. 1417 (2014).

Resources on the Web

• Default Rules on Wikipedia
• Complete Contract on Wikipedia
• Ian Ayres, Default Rules vs. Mandatory Rules, YouTube

(This entry was last updated on July 6, 2025.)

Legal Theory Bookworm: "The Impasse of Constitutional Rights" by Weinrib

The Legal Theory Bookworm recommends The Impasse of Constitutional Rights by Jacob Weinrib. Here is a description:

Constitutional rights are often seen as invitations to engage in all things considered moral reasoning about how public authorities should act. The Impasse of Constitutional Rights challenges this widely accepted view by showing that it generates an irresolvable deadlock between rival theories of constitutional rights that share the same defects. This Element develops the alternative idea that rights-based constitutional order has its own distinctive moral project, which consists in rendering public authority accountable to the inherent rights of each legal subject. Taking this project seriously requires reconceiving the basic building blocks of rights-based constitutional order: justification, purposive interpretation, and proportionality. The resulting account both escapes the impasse to which the leading contemporary theories of constitutional rights succumb and expounds the normative connection between rights-based constitutional order and its most fundamental doctrines.

Download of the Week: "Taming the Shadow Docket" by West

The Download of the Week is Taming the Shadow Docket by E. Garrett West. Here is the abstract:

The Supreme Court's shadow docket is causing a supposed legitimacy crisis. The conventional response is that the Court should change how it processes emergency applications to improve transparency and accountability. But the causes of the shadow docket are structural: various jurisdictional and remedial rules permit lower courts to issue orders of national significance that require the Court either to intervene on the emergency docket or to abandon its supremacy over the federal courts. This paper identifies comprehensive structural reforms, all within the Court's control, that would constrain the power of the lower courts to block national and statewide policies. I discuss ways to limit suits by associations, States, and the United States; constraints on claims brought under Ex parte Young, § 1983, and the APA; and restrictions on the scope of injunctions, preliminary injunctions, APA remedies, and declaratory relief. And I consider the reforms systematically, with different solutions working as complements to reduce the salience of matters that reach the shadow docket. The assessment of structural causes and solutions also suggests the real source of the supposed problem of emergencies at the Supreme Court. Taming the shadow docket requires reducing the power of the federal courts over the political branches. And if disempowering the lower courts would be a solution worse than the problem, then maybe the shadow docket is not even a problem after all. Instead, retaining the power of the courts might mean embracing the shadow docket.

Highly recommended. Download it while it's hot!

Wang, Selbst, Venkatasubramanian, & Barocas on Predictive versus Generative AI

Jennifer Wang (Brown University), Andrew D. Selbst (UCLA School of Law), Suresh Venkatasubramanian (Brown University), & Solon Barocas (Microsoft Research; Cornell University) have posted Distinguishing Predictive and Generative AI in Regulation on SSRN. Here is the abstract:

Over the past decade, policymakers have developed a set of regulatory tools to ensure AI development aligns with key societal goals. Many of these tools were initially developed in response to concerns with predictive AI and therefore encode certain assumptions about the nature of AI systems and the utility of certain regulatory approaches.

With the advent of generative AI, however, some of these assumptions no longer hold, even as policymakers attempt to maintain a single regulatory target that covers both types of AI. In this paper, we identify four distinct aspects of generative AI that call for meaningfully different policy responses. These are the generality and adaptability of generative AI that make it a poor regulatory target, the difficulty of designing effective evaluations, new legal concerns that change the ecosystem of stakeholders and sources of expertise, and the distributed structure of the generative AI value chain.

In light of these distinctions, policymakers will need to evaluate where the past decade of policy work remains relevant and where new policies, designed to address the unique risks posed by generative AI, are necessary. We outline three recommendations for policymakers to more effectively identify regulatory targets and leverage constraints across the broader ecosystem to govern generative AI.

Rimmer on AI and Digital Cultural Heritage

Matthew Rimmer (Queensland University of Technology (QUT)) has posted Night at the Artificial Museum: Copyright Law and Artificial Intelligence (Culture Unbound: Journal of Current Cultural Research 2025) on SSRN. Here is the abstract:

This essay explores the legal challenges and risks provided by tools associated with artificial intelligence (AI) for the protection, preservation, promotion, and regeneration of digital cultural heritage. In particular, it focuses on copyright litigation over AI training projects. However, it also touches upon other forms of intellectual property protection, such as trade mark law, publicity rights, patent law, and trade secrets. This article considers the implications of copyright litigation in respect of AI projects for galleries, libraries, archives, and museums (composing the GLAM sector). It surveys the host of copyright action over AI projects – looking at literary works, journalism, databases, artistic works, musical works, performances, and cinematographic films. It explores the relationship between copyright law, the Creative Commons, and cultural heritage. It also considers how Indigenous intellectual property will be impacted by AI. The work investigates law reform options in respect of copyright law and AI in the GLAM Sector. It also considers comparative perspectives on the regulation of AI – with a particular focus on copyright law, transparency, and AI training materials.

Coleman on the Confrontation Clause and AI

Ronald J. Coleman (Georgetown University Law Center; New York University School of Law) has posted Human Confrontation on SSRN. Here is the abstract:

The U.S. Constitution’s Confrontation Clause ensures the criminally accused a right “to be confronted with the witnesses against” them. Justice Sotomayor recently referred to this clause as “[o]ne of the bedrock constitutional protections afforded to criminal defendants[.]” However, this right faces a new and existential threat. Rapid developments in law enforcement technology are reshaping the evidence available for use against criminal defendants. When an AI or algorithmic system places an alleged perpetrator at the scene of the crime or an automated forensic process produces a DNA report used to convict an alleged perpetrator, should this type of automated evidence invoke a right to confront? If so, how should confrontation be operationalized and on what theoretical basis?

Determining the Confrontation Clause’s application to automated statements is both critically important and highly under-theorized. Existing work treating this issue has largely discussed the scope of the threat to confrontation, called for more scholarship in this area, suggested that technology might not make the types of statements that would implicate a confrontation right, or found that direct confrontation of the technology itself could be sufficient.

This Article takes a different approach and posits that human confrontation is required. The prosecution must produce a human on behalf of relevant machine statements or such statements are inadmissible. Drawing upon the dignity, technology, policing, and confrontation literatures, it offers several contributions. First, it uses automated forensics to show that certain technology-generated statements should implicate confrontation. Second, it claims that for dignitary reasons only cross-examination of live human witnesses can meet the Confrontation Clause. Third, it reframes automation’s challenge to confrontation as a “humans in the loop” problem. Finally, it proposes a “proximate witness approach” that permits a human to testify on behalf of a machine, identifies an open set of principles to guide courts as to who can be a sufficient proximate witness, notes possible supplemental approaches, and discusses certain broader implications of requiring human confrontation. Human confrontation could check the power of the prosecution, aid system legitimacy, and ultimately act as a form of technology regulation.

Brice on Trump v. CASA

Etong Armand Brice (Loyola University New Orleans) has posted Equity's Evolution Interrupted: The Supreme Court's Redefinition of Judicial Remedies in Trump v. Casa, Inc on SSRN. Here is the abstract:

Historically, equity has been a venerable and adaptable branch of law, serving as a vital tool for delivering justice where the strict application of common law fell short. Its core strength, as recognized by legal scholars and judges alike, lies in its capacity to evolve its dynamic nature enables it to respond to new challenges and craft remedies that previous legal frameworks did not anticipate (Adams, 1916). This inherent flexibility has allowed equity to develop over time, adjusting to societal shifts and the increasing complexities of modern governance. Nonetheless, this perceived progression has recently been challenged by a significant judicial intervention most notably through the rise of "universal injunctions," which are broad judicial orders that prohibit the enforcement of laws or policies against all affected individuals, not just the immediate parties in a case (Sohoni, 2020). These sweeping remedies, while some view them as a necessary extension of equitable principles to restrain large-scale government actions, have generated controversy due to their extensive reach and the lack of clear historical precedent (Sohoni, 2020). As their use has expanded especially in response to major presidential measures the debate over their legitimacy has intensified, with some describing a situation where "almost every major presidential act [was] immediately frozen by a federal district court" (Barrett, 2025, p. 5). This paper examines the recent US Supreme Court's decision and redefinition of equitable remedies in Trump v. Casa (2025).

Mazzocchetti on Autonomous Constitutional Governance

Adam Mazzocchetti (SPQR Technologies Inc) has posted Prefectus ex Machina: Drift, Quorum, and the Rise of Autonomous Constitutional Governance on SSRN. Here is the abstract:

As artificial intelligence surpasses the threshold of human oversight, traditional mechanisms of governance, regulation, audit, and institutional trust begin to fail. This paper introduces Prefectus, an autonomous constitutional enforcer embedded within the Aegis governance architecture. Unlike conventional oversight frameworks that seek post hoc correction, Prefectus autonomously detects ethical drift, triggering quorum-validated quarantine and replacement of compromised agents without human intervention.

This is not a kill-switch; it is constitutional succession, a foundational governance principle long held in human republics, now codified within artificial ones.

Besson & Martí on Republican Sovereignty

Samantha Besson (University of Fribourg) & José L. Martí (Pompeu Fabra University) have posted Republican Sovereignty (Forthcoming in Sellers, M. and Lovett, F. (eds), The Oxford Handbook on Republicanism (Oxford: Oxford University Press 2026)) on SSRN. Here is the abstract:

Despite its centrality, State sovereignty remains an ambiguous and elusive concept, one of those normative essentially contested concepts that has divided political philosophers from the outset and for centuries now. Republican thinkers are no exception in this respect. Modern republican political philosophy is united around a general agreement on the concept of freedom as non-domination as its most distinctive value. At the same time and for more than three centuries, however, republican authors have also been fundamentally divided around the core components of the concept of State sovereignty. For that reason, republicanism, in general, cannot be associated with any particular conception of sovereignty. Importantly, the nature of that disagreement is not purely conceptual, but reflects deep normative differences worth exploring. This chapter’s argument is two-pronged. In the first section, we explore the roots and the main tenets of the debate between the two main competing views of internal State sovereignty. In the second section, we turn to the more recent discussion of external State sovereignty and assess the two corresponding views thereof. In both cases, we show how republican theorists have been divided between the respective two main views, and identify the basic normative disagreement that might explain such a division. This enables us to offer a conceptual map of State sovereignty in contemporary republican theory in general, before defending a particular republican view of external sovereignty we have referred to elsewhere as multiple sovereignty in a “multiple international representation system”.

Highly recommended.

Augenstein on the Human Rights of Business Enterprise

Daniel Augenstein (Tilburg University) has posted Shields and Swords: The Human Rights of Business Enterprises and the Boundaries of Democracy (Transnational Legal Theory 2025) on SSRN. Here is the abstract:

The article examines the consequences of the legal constitution of the business enterprise as a human rights-bearing entity for the ECHR’s conception of a democratic society. Drawing on case law of the European Court of Human Rights, it analyses the relationship between corporate free speech rights and democracy through the lens of individual and statal analogies to corporate personhood, as embedded in the liberal public/private divide. While individual analogies attribute human rights to business enterprises as (aggregates of) natural persons, statal analogies frame the relationship between business and human rights in terms of a rearticulation of state power and authority in society. It is argued that neither individual nor statal analogies provide a convincing justification for the human rights of business enterprises. Instead, both approaches result in a reinterpretation of political rights as market freedoms, thereby transforming the boundaries of liberal democracy.

Recommended.