Legal Theory Blog

D'Angelo on Separation of Powers after Loper Bright

Joseph A. D'Angelo (Florida International University (FIU), College of Law, Students) has posted Chevron Solutions: Restoring the Separation of Powers in a Post-Chevron Landscape (35 U. Fla. J.L. & Pub. Pol'y (forthcoming Apr. 2025)) on SSRN. Here is the abstract:

The erosion of congressional authority in the face of expanding executive power, particularly through administrative agencies, is critical. A robust and functional Congress is essential for maintaining the balance of power within the democratic system. This paper delves into the history and impact of Chevron deference. This doctrine granted agencies interpretative authority over ambiguous statutes, highlighting the consequences of Congress’s failure to assert its policy-making responsibilities. This passive legislative stance has allowed the executive branch to dominate national policy decisions, often leading to legal disputes and unstable policies subject to change with each presidential administration. The Court’s recent decision in Loper Bright v. Raimondo overturned that doctrine but left no clear next steps. This paper does. It advocates for reforms to reclaim Congress’s central role in governance, ensuring it effectively checks executive power and upholds constitutional principles; a clear definition of the limits of congressional delegation by defining generally applicable rules of private conduct; or no action at all, following the states use of deference in a post-Chevron context.

Sherwin on the Political Theology and Constitutional Beliefs

Richard K. Sherwin (New York Law School) has posted The Challenge of Legal Chorology: Rethinking Political Theology on SSRN. Here is the abstract:

Liberal democracy has historically been associated with an assumption of neutrality concerning religious or moral feelings and beliefs. Illiberal critics like Carl Schmitt have seized on this assumption to argue that moral neutrality deprives liberal democracy of any claim to legitimation or, for that matter, political coherence. But liberal democracy’s core commitment to a creed of freedom among equals belies this critique. As illiberal forms of governance gain strength worldwide, it is incumbent on allies of freedom to articulate a compelling and comprehensive narrative in its defense. To this end, legal chorology brings to light the historical, cultural, emotional, and spiritual conditions under which ‘constitutive power’ founds, transforms, or sweeps away political and legal states. This originary, generative force exceeds, even as it courses through, the names we assign it throughout history. That unbearable excess (“the sacred”) is the defining feature of constitutional over-beliefs. Constitutional over-beliefs embody different clusters of ideas, beliefs, and affective states around which polities arise and cohere. By tracing the rise and fall of discrete, historically privileged, constitutional over-beliefs, legal chorology holds out the prospect of identifying potent cross- cultural and interreligious resources for political belief and commitment. At the same time, reconceiving political theology as a genealogy of the sacred releases the field from Schmitt’s narrow illiberal vision. Liberal democracy, chorologically construed, rests upon an ethical metaphysic that conceives freedom among equals as an offshoot of each other’s infinite worth. As it turns out, liberal democracy’s ethos of epistemological modesty and experiential openness amidst abundance also emulates the very nature and dynamics of khôra herself.

Baker on Christian Realism and Mass Incarceration

Jeffrey R. Baker (Pepperdine Caruso School of Law) has posted Christian Realism and the Sins of Mass Incarceration (Georgia Criminal Law Review (forthcoming 2025)) on SSRN. Here is the abstract:

This article is a study of Reinhold Niebuhr’s Christian Realism, a progressive school of social ethics rooted in Christian theology, and its critical evaluation of American mass incarceration. Christian Realism seeks justice in society under law, formed by love as its fundamental organizing principle. It acknowledges a world with endemic structural injustices and social immorality, but it finds temperate hope in the human potential for love, redemption, and generosity. Christian Realism reckons that any institution committed to justice must inevitably compromise to achieve incremental progress toward good. But it projects steady, hopeful progress toward justice, even as systems calibrate themselves to stave off the worse effects of human nature. On this tricky ground, Christian Realism wrestles with individual morality within flawed systems, the universal struggle to act morally when social realities drive people to self-interest and antagonism.

Christian Realism issues a call to evaluate society’s injustices, then to implement steps that approach justice, without regard for dogma or party. Niebuhr acknowledges that people will break the law and harm others and that society must protect itself from violence and disorder. He recognizes that every choice requires grueling negotiations between liberty and coercion, freedom and order. In this thicket, Christian Realism takes the side of the oppressed, excluded, and impoverished against entrenched powers, because a just society will provide equal opportunity for all life, rooted in an abiding love among neighbors.

Evaluating the American criminal legal system, Christian Realism critiques and condemns mass incarceration and the ascendant preference for violent retribution. The society that sustains mass incarceration fails on three fronts, at least. First, mass incarceration is maximally coercive, signaling a failure of stable, fair means for confronting conflict in society. Second, the entrenched interests of mass incarceration impose corrupting pressures on individual officers and judges invested with discretion, limiting their ability to exert moral force within an unjust system. Third, economic powers have captured the carceral system to advance business interests to the detriment of human dignity, equal opportunity, and love, calcifying the criminal justice system and suppressing movements for reform.

Retribution and incarceration are policy choices. A jurisprudence of love that grounds the law in human dignity opens the way for serious alternatives for measured punishment, public safety, therapeutic rehabilitation, community restoration, and social redemption. These may include polices of restorative and therapeutic justice; constructive reentry programs; shorter sentences; decriminalization; reformed plea bargaining; increased investment in education; or other novel ideas to address the forces that drive people to do harm, to treat people justly when they cause harm, and to advance restoration and redemption for the sake of a just society.

Christian Realism tests every policy against its commitments to justice and love and its real consequences in the world, even when compromising for incremental, sustainable progress. Thus, Christian Realism welcomes experiments to meet the needs of a just society – order through minimal coercion, fair and stable mechanisms for addressing conflict, the empowerment of the poor and disenfranchised, and laws founded in love.

Waldron on Raz on Rights

Jeremy Waldron (New York University School of Law) has posted Raz on Rights and Interests: A Straightforward Account on SSRN. Here is the abstract:

Joseph Raz's "interest theory" of rights is sometimes made to appear needlessly difficult, not least by Raz himself. This chapter sets out the theory in straightforward terms, focusing on the role of interests in Raz's account and the importance of duties. It explains why Raz's additional comments on the capacity to be a bearer of rights and on the analytics of legal derivation involve undue complication and should not be read in a way that scares users away from the essential--and valuable--features of Raz's argument.

Highly recommended. We owe Waldron a debt of thanks for making Raz accessible.

Wurman on the Necessary and Proper Clause and the Administrative State

Ilan Wurman (University of Minnesota Law School) has posted The Necessary and Proper Clause and the Law of Administration (George Washington Law Review, Volume 92, Forthcoming) on SSRN. Here is the abstract:

The Necessary and Proper Clause is what authorizes Congress to establish and shape the administrative state. But the clause is rarely cited in the relevant Supreme Court opinions or litigant briefs. This is a mistake. In several of the Court’s recent prominent cases, the clause’s meaning and effect could have been dispositive. This Article makes that case. It demonstrates that there are plausible arguments against the Supreme Court’s removal and Seventh Amendment jurisprudence as they relate to public administration, though this Article takes no strong position on those arguments. The Court recently and correctly held, on the other hand, that the CFPB’s funding structure does not violate the Appropriations Clause. But even if Article II’s Vesting Clause, the Seventh Amendment, and the Appropriations Clause do not get in the way of Congress’s relevant statutes, it does not follow that those statutes would be constitutional under the Necessary and Proper Clause. This Article does not seek to resolve definitively how the Court’s recent cases should come out under that clause, but rather to center the clause as an important source of authority—and limits—on Congress’s power to structure administration. It further offers a framework in which the Court’s emphasis on history and tradition might be both relevant and more disciplined.

Highly recommended.

Hanemaaijer, Ketel, & Marie on Salience and Bias in Dutch Criminal Justice for Individuals of Moroccan Descent

Kyra Hanemaaijer (Erasmus University Rotterdam (EUR)), Nadine Ketel (Vrije Universiteit Amsterdam; University of Gothenburg - Department of Economics and Statistics; IZA Institute of Labor Economics; University of Amsterdam; Tinbergen Institute; CEPR), & Olivier Marie (London School of Economics - Centre for Economic Performance (CEP)) have posted Minority Salience and Criminal Justice Decisions on SSRN.  Here is the abstract:

When decision-makers overemphasize salient features under limited attention, biased decisions can result in settings in which decisions should be unbiased. We exploit a sudden shock in the salience of individuals of Moroccan descent in the Netherlands to test the vulnerability of decisions of various actors in the Dutch criminal justice system to biases. Using high-quality data on decisions made from arrest through appeal in the Dutch CJS, we find that the sentence length of individuals of Moroccan descent convicted of a crime increased by 79% after the shock. Heterogeneity analyses indicate that more-experienced judges mitigate this effect. Finally, we find suggestive evidence of longer-term costs for defendants of Moroccan descent in that their labor income drops by 40% over the four years following their judgment of conviction.

Sevel on the Rule of Law

Michael Sevel (The University of Sydney - Faculty of Law) has posted The Rule of Law: A Thought Pattern (Eleanor Cowan, Kit Morrell, Andrew Pettinger, and Michael Sevel (eds.), The Rule of Law in Ancient Rome (Oxford University Press, 2025) (forthcoming)) on SSRN. Here is the abstract:

The interdisciplinary revival in rule of law studies over the last quarter century has produced an impressive diversity of views about the ideal's content, priority, and value. That diversity has sometimes encouraged the skeptical view that it has no conceptual core or nature, and is either 'essentially contested' or else only empty political rhetoric. I argue that amongst the various views about the rule of law developed over the centuries, there is a discernible, recurring thought pattern upon which the many variations have been proliferated. Whatever else it is, the rule of law is realized when a political community has an efficacious legal system with certain enabling and pervasive characteristics, which protects its members from something presumed in that community to be undesirable, often identified as the arbitrary exercise of power. I explain and illustrate each aspect of this pattern, and draw a few lessons about how it guides, or fails to guide, current rule-of-law debates.

Highly recommended.

Evans on a Liberty-Balancing Approach to Criminal Law

Sheldon Evans (Washington University in St. Louis - School of Law) has posted A Liberty-Balancing Approach to Crime (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

At its core, the criminal legal system is an ecosystem of institutions that seek to balance liberty interests. The insightful theories and complex practices of crime policy coalesce around questions on how crime impacts the liberties of individuals and communities to be safe, and how this correlates with the deprivation of liberty from offenders through our punishment system. But modern criminal policy, most often associated with the problems of overcriminalization and mass incarceration, has wholly abandoned any such delicate and nuanced balancing. Instead, the system thrives on sacrificing the liberties of offenders in a perverse and ineffective regime that leads to a net loss of liberty for all.

This Article argues for a new theoretical framework that prioritizes the liberty-balancing function rooted in criminal punishment. This Liberty-Balancing Approach incorporates contributions from constitutional and political theory to argue that substantive criminal laws should be conceptualized as a political exercise that defines and protects a narrow set of individual liberties. In turn, protecting these individual liberties must be contextualized within broader community interests of public safety and building public trust. Finally, these criminal laws and ultimately their punishments must be properly balanced with depriving only as much liberty from the offender as is necessary and legitimate to achieving these social outcomes. This return to first principles in criminal law also explores the practical impacts of the Liberty-Balancing Approach, including rethinking victimless proxy crimes, crimes against organizations, and the liberty impacts on communities of color.

Peterson on Originalism and Constitutional Amendments

Farah Peterson (University of Chicago Law School) has posted The Fourteenth Amendment and the Vénus Noire (66 William & Mary Law Review 191 (2024)) on SSRN. Here is the abstract:

This Essay reflects on art to make two points. It first argues that originalism is not a promising path for progressive causes. It then argues that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed.

Highly recommended.

Chabot on Justice Jackson's Concurrence in Consumer Financial Protection Bureau v. Community Financial Services Ass’n

Christine Kexel Chabot (Marquette University - Law School) has posted The Power of the Purse and the Constitution's Missing Text on SSRN. Here is the abstract:

Congress’s power of the purse has become a new focal point in high-profile separation-of-powers disputes. In Consumer Financial Protection Bureau v. Community Financial Services Ass’n, the Supreme Court rejected arguments that Congress unconstitutionally delegated its power of the purse to the Bureau by a 7-2 vote. This Essay focuses on Justice Jackson’s concurrence and argument that these constitutional challenges conflicted with “the plain meaning of the text of the Appropriations Clause” and led the Fifth Circuit to exceed its “proper judicial role.” Justice Jackson’s textualist critique raises important concerns for future of separation of powers challenges to funding laws. At the same time, it is difficult to conceptualize a general understanding of the spending power and its limits by considering only the plain meaning of the Constitution’s text. My Essay grounds the spending power and its limits in implicit understandings that go beyond the Constitution’s express text. It explains how these implicit limits on delegation of spending power have operated in recent litigation over funding for the Consumer Financial Protection Bureau as well as the FCC’s universal service program. I conclude that Justice Jackson’s concerns about judicial overreach and deference to the political branches remain equally important under a broader interpretive framework which encompasses implicit meaning.

Highly recommended.