Legal Theory Blog

Stuebner on Consular Non-Reviewability

Jake Stuebner (Columbia Law School) has posted Consular Non-reviewability After Department of State v. Muñoz: Requiring Factual and Timely Explanations for Visa Denials (124 Colum. L. Rev. 2413 (2024)) on SSRN. Here is the abstract:

The visa application process is laden with discretion and reinforced by consular nonreviewability-an extensive form of judicial deference. Until recently, courts recognized a small exception to consular nonreviewability. Under this exception, courts engaged in limited review of a consular officer's decision when visa denials implicated the fundamental rights of U.S. citizens. The Court curtailed this exception in United States Department of State v. Muñoz, anointing consular officers with nearly complete power over visa decisions. This deference jeopardizes the integrity and fairness of the immigration system, leaving visa applicants and their U.S. citizen sponsors at the mercy of consular officers. This not only fosters an arbitrary visa system but also conflicts with broader immigration system and administrative law trends. This Note traces the accidental history of consular nonreviewability-from its racially motivated origins to its full-fledged indoctrination in Muñoz. This Note proposes an amendment to the Immigration and Nationality Act: Consular officers should be required to provide factual and timely explanations for visa denials. Such a requirement would inject greater fairness into the visa application process and better align it with broader immigration law-without sacrificing the values underpinning consular nonreviewability.

O'Grady & O'Grady on AI Agents as Ethics Counsel

Catherine Gage O'Grady (University of Arizona - James E. Rogers College of Law) & Casey O'Grady (Harvard University - Harvard Law School) have posted Agentic Workflows in the Practice of Law—AI Agents as Ethics Counsel (39 Geo. J. Legal Ethics (forthcoming 2025)) on SSRN. Here is the abstract:

Generative AI is reshaping legal practice as law firms invest in AI technology and prepare for a future where AI agents operate alongside human lawyers. While such a future raises numerous ethical concerns, it also opens new opportunities for ethical practice. This article explores the potential for AI agents to improve ethical decision-making within legal practices. We start by defining key concepts such as AI agents and agentic workflows. We then provide a brief overview of the role of ethics counsel in law firms and discuss critical behavioral challenges in the human practice of law. Finally, we introduce a new model of AI agents acting as dedicated ethics counsel. These agents should be specialized, accountable, and systematic to provide comprehensive ethical guidance in a firm’s legal workflows. These ethical agents have the potential to mitigate the human biases in traditional legal practice and offer an efficient and scalable approach to ensure ethical compliance in an increasingly AI-driven legal landscape. To demonstrate this model, we end with real-world examples of what initial ethical agent contributions could look like in practice.

Very interesting and recommended.

Tang on the Lessons of Janus

Aaron Tang (University of California, Davis - School of Law) has posted On Unions, Resistance, and the Supreme Court: What I Learned From Being Wrong After Janus (103 N.C. L. Rev. ___ (forthcoming 2025)) on SSRN. Here is the abstract:

"Crippling." "Crushing." "Devastating." That's how progressive commentators described the Supreme Court's 2018, watershed ruling against organized labor in Janus v. AFSCME, Council 31. I know, because I was one of them. Now, six years later, anti-union groups are running a victory lap. One group recently boasted that Janus had caused public sector unions to lose over a million dues-paying members-a staggering figure that would represent more than 20% of their membership rolls.

Drawing on a range of data sources, the Article shows that the percentage of union members who have quit their unions after Janus is closer to 2%-3%, which continues the pre-Janus trendline. Union budgets, too, have been largely stable. Far from the doomsday feared at first by progressives and claimed now by union opponents, the truth is that public sector workers have resisted Janus with surprising success. Six years ago, in other words, I was wrong. And anti-union groups are wrong today.

After identifying these errors, this Article explores three lessons worth learning. The first concerns the role of legal scholarship in social change: labor's resilience after Janus reveals the value of a scholarly approach that attends to the experiences of the people who bear the brunt of judicial decisions. This is a lesson that is deeply personal; the fundamental error in my own, earlier work on Janus was my failure to engage in an inclusive, bottom-up process for thinking about the case and its consequences. A second lesson concerns how labor has maintained its strength. Put simply, union members took matters into their own hands. Teachers, nurses, firefighters, and other public employees held millions of conversations with their coworkers about the value of sticking with their unions. And it worked. For those interested in revitalizing modern labor law, the takeaway is clear: any such effort must begin with labor's greatest strength-organizing. Finally, Janus's aftermath offers insights into progressive debates over the Supreme Court and constitutional theory. Rather than concentrating our responses to the rulings we abhor on the Constitution and the Court that issued them, perhaps we should center the things people are doing to resist-and bypass-the Constitution and Court altogether.

Recommended.

Schwartz on Dred Scott and Enumeration

David S. Schwartz (University of Wisconsin Law School) has posted An Ugly Common Ancestor: Dred Scott, Roe, And Enumerationism on SSRN. Here is the abstract:

The Dred Scott case holds a deserved place in the constitutional “anti-canon” of Supreme Court decisions that exemplify rejected constitutional views. But the complex history of the case, the convolution of the lead opinion by Chief Justice Roger Taney, and the complicated relationship between its two primary holdings have generated multiple, often conflicting arguments about its negative “lessons.” Such arguments—particularly that of Robert Bork arguing that Dred Scott is the “very ugly common ancestor” of Lochner v. New York and Roe v. Wade—have masked an important element of the Taney opinion: its central reliance on “enumerationism,” the doctrine of limited enumerated powers. This essay argues that the reasoning underlying Dred Scott’s holding striking down the Missouri Compromise—the holding that created the Republican backlash at the time—reflected, not a strong precedent for substantive due process, which was a mere makeweight argument, but instead turned on the core values of enumerationism. The opinion, whatever other lessons it supplies, demonstrates the close connection between enumerationism and slavery as well as the internal contradictions and incoherence of limited enumerated powers.

Highly recommended.

Sachs on Rights of Nature

Noah Sachs (University of Richmond - School of Law) has posted Anti-Democratic Rights of Nature (Georgetown Environmental Law Review, Volume 37) on SSRN. Here is the abstract:

The global Rights of Nature (RoN) movement, which seeks to confer enforceable rights on organisms and ecosystems, has become a political force, and governments are now codifying legal rights for nature in legislation. But policymakers and legal scholars are overlooking how assertions of vague rights held by a limitless class of non-humans could lead to repressive, anti-democratic outcomes. Many scholars view recognition of nature’s rights as an expansion of the boundaries of democracy, but a critical examination of RoN scholarship and advocacy shows that RoN principles are designed to check and constrain democratic institutions. Core tenets of the RoN movement are deeply antagonistic to democratic self-government and would damage representative institutions in ways that are not widely understood.

In this Article, I argue that the RoN vision for governance under a system of enforceable rights for all living things would have pernicious effects for democracy and human wellbeing if nature’s rights were implemented widely, as advocates intend. I do not suggest that the RoN movement currently poses a threat to democracy or that every piece of RoN legislation is harmful. Instead, I argue that the long-term governance upheaval sought by RoN proponents—assuming it could be achieved—is both politically and ecologically undesirable. The fulfillment of the RoN vision would undermine legislative autonomy, human rights, public input, and representation, with no assurance that nature would be protected any better under RoN principles.

Focusing on the distortions that RoN governance would cause to legislative and judicial functions, I argue that widespread recognition of rights for all living beings would shift immense power to courts and would straitjacket representative institutions, making them less responsive and less effective for solving social and environmental problems. Given the urgency of climate change and other global environmental harms, policymakers should work within liberal democratic institutions, rather than discarding or distorting them, to promote effective solutions.

Highly recommended.

Duarte on Immunities

David Duarte (University of Lisbon - School of Law) has posted Immunities as Mere Propositions About the Law (Singapore Journal of Legal Studies, Sep 2024, pp 396–413) on SSRN. Here is the abstract:

It is recognised here that normative systems do not confer the position of not being targeted by an agent without power, which then implies that nobody can properly claim, from the internal perspective, to be the holder of an immunity. In its Hohfeldian meaning, the word “immunity” is just a mere linguistic resource used to describe some consequences coming from the absence of power. Since there is no normative way to confer an immunity, namely because a “norm of incompetence” is not a norm, speaking about an immunity as a legal position is to confuse norms with norm propositions. And once an immunity is seen as a mere deontic nothingness, there is no possible use of the word beyond the description of such a normative absence.

Recommended.

Halpin on Theoretical Approaches to Rights

Andrew Halpin (National University of Singapore (NUS) - Faculty of Law) has posted Analytical, Normative, Aspirational: Connecting and Disconnecting Theoretical Approaches to Rights (Singapore Journal of Legal Studies, Sep 2024, pp 414–433) on SSRN. Here is the abstract:

This article explores the relationship between descriptive and normative work in general legal theory by focusing on the possibility of describing contingent evaluations, as contrasted with a theoretical commitment to such an evaluation. This gives rise to a crucial distinction between analytical-descriptive and aspirational-normative theoretical work. Part I traces different levels of theoretical analysis, and the recognition of different theoretical roles in tackling normative subject matter. Part II introduces a triple-level analytical scheme developed to expand the Hohfeldian analysis of legal rights. This additional analytical resource is then utilised in working through different levels of the analysis of legal rights, and to reveal some points of overlap with the different levels of analysis of law’s normativity found in Part I. This broader understanding is then related to the different theoretical roles identified in Part I, so as to produce a classification of theoretical approaches to rights, with the aim of revealing where intelligible discourse between them is possible.

Highly recommended.

Arriagada on Legal Positions

María Beatriz Arriagada (Universidad Diego Portales - Facultad de Derecho) has posted Do Legal Positions Exist? (Singapore Journal of Legal Studies, Sep 2024, pp 377–395) on SSRN. Here is the abstract:

Assuming that the vocabulary of the so-called “legal positions” is, under certain circumstances, interchangeable with the normative vocabulary, this work reformulates the question of whether legal positions exist as the question of whether they are ontologically reducible to (dismissible and replaceable by) legal norms. Since there is no doubt that the so-called “legal positions” are part and parcel of the reality that is assumed as existent in specialized legal discourses, the question raised by this work is situated at the level of meta-legal theory. In Parts II and III two different answers to this question are reconstructed: the affirmative answer that seems to be dominant in legal theory, and the negative answer elaborated by Ross. In Part IV both answers previously reconstructed are translated into the language of reduction, where the question of whether legal positions exist is reformulated again, this time as the question of whether legal theory must consider them to exist or not. Building on the distinction between different types of reduction, the ultimate goal is to distil, refine or shape the dominant discourse of legal theory according to which legal positions must be accepted as existent.

 

Levinson & Pozen on Consent

Daryl J. Levinson (New York University School of Law; New York University School of Law) & David Pozen (Columbia University - Law School) have posted Disconsents on SSRN. Here is the abstract:

Consent is an indispensable standard and organizing principle in any liberal legal order that prizes self-directed autonomy, self-identified preferences, and collective agreement. Yet consent’s capacity to advance those values has become increasingly uncertain in a society beset by power imbalances, information asymmetries, and multiple forms of polarization. In this paper, we document how the rise of neoliberalism has led to greater reliance on consent throughout U.S. law, while at the same time leading to greater doubts about its moral efficacy and empirical feasibility. Connecting and generalizing pathologies of consent that have been identified within myriad domains, we identify a systemic crisis of consent that has unsettled not only regimes of private ordering but also constitutional democracy and global governance. We offer a typology of legal strategies available to those who wish to shore up specific types of consent or accommodate their failure. And we raise the question whether such strategies are enough to enable effective cooperation, protect vulnerable parties, and vindicate the values consent is meant to serve.

A major statement. Deeply interesting. Highly recommended! Download it while it's hot!

Watson on "Law Is a Moral Practice" by Hershovitz

Bill Watson (University of Illinois College of Law) has posted In What Sense Is Law a Moral Practice? on SSRN. Here is the abstract:

Scott Hershovitz’s book Law Is a Moral Practice argues that law is, well, a moral practice—though what that means is less than clear. This Review takes up the book’s titular claim and considers the senses in which that claim is true and those in which it is false or at least controversial. To that end, the Review first differentiates several ideas that Hershovitz appears to lump together under the slogan “law is a moral practice.” One of those ideas is the “one-system view” associated with Ronald Dworkin’s late work, on which law is a branch of morality, such that legal norms are a subset of moral norms. The Review then reconstructs Hershovitz’s argument for the one-system view and critically examines the argument’s premises, ultimately concluding that the argument is unsuccessful. Nevertheless, the argument is worth considering for, among other reasons, the light it sheds on general jurisprudence’s methodology.

Highly recommended.