Bridget C.E. Dooling (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Outside Helpers, Rulemaking, and the Presumption of Regularity (Theoretical Inquiries in Law, forthcoming) on SSRN. Here is the abstract: It is no longer hypothetical: U.S. government agencies are using AI to write regulations. We therefore must grapple with the intersection of the Administrative Procedure Act (APA) and the undetectability of AI-generated material.

Danielle D’Onfro and Daniel Epps (both Washington University in St. Louis – School of Law) have posted Constitutional Rights and General Private Law (Harvard Law Review, forthcoming) on SSRN. Here is the abstract: Public and private law are treated as doctrinally siloed opposites. But the two are surprisingly interrelated in the arena of constitutional rights. Courts must define, for constitutional purposes, various private law entitlements: what interests constitute property, when a contract has been made, and when government conduct constitutes the tort of trespass, among other pervasive issues.

Neil Siegel (Texas A&M University School of Law) has posted Judicial Self-Protection in the Shadows (Northwestern University Law Review, forthcoming) on SSRN. Here is the abstract: Because the U.S. Supreme Court is not only powerful but also vulnerable, it is both inevitable and (within limits) appropriate that it seeks to protect its institutional authority when it faces acute political threats to that authority.

Michael L. Smith (University of Oklahoma - College of Law) has posted Oklahoma’s Mandatory Constitutional Convention Referendum (Oklahoma Law Review, forthcoming) on SSRN. Here is the abstract: The Oklahoma Constitution requires that every twenty years, voters must decide whether to convene a convention to amend, revise, or replace the state constitution. But this mandate has been neglected for decades. The last vote over holding a convention took place in 1970.

Jorge Luis Fabra-Zamora (University at Buffalo Law School) has posted Sets and Systems: A Reinterpretation of Hart’s Fable (Jurisprudence, forthcoming) on SSRN. Here is the abstract: HLA Hart’s famous ‘fable’ in which the ‘legal system’ remedies the defects of a ‘pre-legal society’ is typically understood as offering an account of law. This article challenges the standard interpretation of Hart’s project and develops an alternative reading.

Leah Litman (University of Michigan Law School), Katherine Shaw (University of Pennsylvania - Carey Law School), and Melissa Murray (New York University School of Law) have posted Is the Unitary Executive Democratic or Autocratic Governance? on SSRN. Here is the abstract: This essay examines whether the unitary executive theory provides for democratic or autocratic governance. It argues that the unitary executive theory’s underlying account of government authority is the same account of government that comparative political scientists have identified as facilitating democratic decline and autocratic takeover. To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack. Lawrence Solum

Peter O’Loughlin (University of Galway - School of Law) has posted Economic Analysis within Law (Jurisprudence: An International Journal of Legal and Political Thought, forthcoming) on SSRN. Here is the abstract: Traditionally understood as methodological substitutes, doctrinal analysis and economic analysis have operated as separate perspectives on law and legal systems. Most conceptions and iterations of their debates, however, have manifested at law’s substantive periphery, like its purpose or its normative goals.

Yifat Naftali Ben Zion (Tel Aviv University – Buchmann Faculty of Law; Harvard Law School) has posted A Systems Theory of Good Faith (Theoretical Inquiries in Law) on SSRN. Here is the abstract: Both the Uniform Commercial Code (UCC) and the Restatement (Second) of Contracts recognize the duty of good faith and fair dealing as a foundational principle of American contract law.

Daniel M. Klerman (University of Southern California Gould School of Law) and Alex Klerman (University of Chicago) have posted Forum Shopping and Judge Shopping: An Empirical Analysis of Immigration Policy Cases (Journal of Institutional and Theoretical Economics, forthcoming) on SSRN. Here is the abstract: This article measures the extent of forum and judge shopping in cases challenging the legality of immigration policies during the Biden and Trump administrations.

Bijal Shah (Boston College Law School) has posted Administrative Procedural Discretion (Cornell Law Review, forthcoming) on SSRN. Here is the abstract: The conservative Supreme Court has established maximum presidential control over formal administrative adjudication, despite the resulting impact on independence and expertise in adjudicatory process. Concurrently, a progressive public law perspective advocates for agencies to be released from procedure to allow them to accomplish more, regardless of the fact that procedures create important guardrails for agency action.

Nicholas Stephanopoulos (Harvard Law School) and Ruth Greenwood (Harvard Law School) have posted The Death and Rebirth of Vote Dilution (Supreme Court Review, forthcoming) on SSRN. Here is the abstract: For more than half a century, federal law recognized the concept of racial vote dilution. Members of a racial group experience this condition when voting is racially polarized, the group is proportionally underrepresented, and a lawful alternative policy would likely improve the group’s representation.

Ava Liu (Harvard University - Harvard Law School) has posted Technology Governance in the Age of AI: From Redistribution to Predistribution on SSRN. Here is the abstract: What should we do about labor automation in the age of artificial intelligence? Early proposals such as Universal Basic Income focused on taxing and redistributing the proceeds of AI. Now, an emerging slate of ideas tagged to the concept of “predistribution” proposes distributing ownership through citizen stakes in AI or sovereign wealth funds.

Climate change is challenging many of the foundational pillars of international law. One of the most significant is the concept of the state. The seventeenth century vision of the territorial state…

Jamal Greene (Columbia University – Law School) and David Pozen (Columbia University – Law School) have posted Back to Philadelphia? The Uneasy Case for a New Constitutional Convention on SSRN. Here is the abstract: No country has ever had a written constitution in longer continuous operation than the United States. Such resilience is cause for commemoration. But for constitutions, as for people, longevity tends to be a mixed blessing.

Reviewing Aderson Bellegarde François & Helen Hershkoff, Pennoyer, Due Process, and the End of Reconstruction, __ N.Y.U. L. Rev. __ (forthcoming), available at SSRN (Aug. 4, 2026).Allan ErbsenImagine…

Cosim Sayid (Clemson University - Department of Philosophy & Religion) has posted The Ontological Problem with Equal Protection Liability for Discriminatory Gerrymandering on SSRN. Here is the abstract: I present an ontological problem for arguments seeking to show that partisan or racial gerrymanders violate the equal protection clause because they are discrimination by the legislature. Since discrimination is an intentional act, it’s implausible to ascribe discriminatory intent to the legislature, absent lexical intent to classify people unlawfully.

In recent decades, capitalists have largely succeeded in undermining the state's capacity to act, leaving it too weak to carry out social democratic reforms even with a favorable government in place.

Mauro Zamboni (Stockholm University - Faculty of Law) has posted Artificial Intelligence in Legislative Governance: A Legal-Institutional Framework for Allocating AI on SSRN. Here is the abstract: Artificial intelligence is becoming increasingly embedded in the processes through which legislation is prepared, adopted, implemented, evaluated, and revised. The central legal question is therefore no longer whether AI should be used in legislation, but what role it may legitimately perform within legislative governance.

Liviu Damsa (University of Warwick - School of Law) has posted The Five Logics of Contemporary Fractured State on SSRN. Here is the abstract: Legal doctrine is pervasively indeterminate, but the dominant explanations locate the source in the wrong place, whether in the semantic open texture of rules, the contestability of principles, or the incompleteness of institutional plans. This Article argues that a deeper source of indeterminacy is structural.

William Boyd (UCLA School of Law) has posted Fact-making and Epistemic Virtue in the Administrative State (Building Democratic Capacity: Essays on Administrative Law’s Futures, Cambridge University Press, forthcoming) on SSRN. Here is the abstract: This chapter highlights the vital importance of government fact-making for the project of reimagining administrative law. It begins with Max Weber’s observation that bureaucracy depends fundamentally on knowledge production, and canvasses some of the most important examples of government fact-making, including especially regulatory science.

Adeno Addis (Tulane University - Law School) has posted Community and Jurisdictional Authority on SSRN. Here is the abstract: We live in a world full of boundaries. Some boundaries are defined by geography. Others are marked by religion, ethnicity, language, and the like. These boundaries make communal life and individual identity possible, but they also limit or exclude other possibilities that might otherwise have flourished.

Randy E. Barnett (Georgetown University Law Center) and Josh Blackman (South Texas College of Law Houston) have posted Landor v. Louisiana Department of Corrections: Bringing Clarity to the Necessary and Proper Clause (Harvard Journal of Law & Public Policy, forthcoming) on SSRN. Here is the abstract: It is often said that bad facts make bad law. Landor v. Louisiana Department of Corrections is an exception to this rule.

All the theory from yesterday.

Amy J. Sepinwall (University of Pennsylvania - Legal Studies Department) has posted Complicity in Compelled Speech (Philosophical Topics, forthcoming) on SSRN. Here is the abstract: We typically think of the right to free speech as a right to say what we would like. In fact, though, the right also protects individuals from saying what they would rather not. Indeed, the law often considers state-compelled speech to be an even worse affront than government censorship.

Joseph Blocher (Duke University School of Law) and David Pozen (Columbia University – Law School) have posted The Excluded Middle of Law: Constitutional Drivers of Extremism in Gun and Drug Policy (Supreme Court Review, forthcoming) on SSRN. Here is the abstract: American drug and gun regulation is difficult to defend from almost any perspective. Federal and state laws heap criminal penalties on a small subset of users, burden many others whose possession poses no direct threat to third parties, and yet fail to prevent staggering social harms.

Simon Stern (University of Toronto - Faculty of Law) has posted The Reasonable Person as a Narrative Device on SSRN. Here is the abstract: One question about the “reasonable person” standard, rarely asked by legal theorists and historians, is why the standard is personified and how a personification lands differently from an abstract version. I have begun to explore that question in other work and turn here to the question of how the personification first emerged, around the middle of the nineteenth century.

Ming-Sung Kuo (University of Warwick - School of Law) has posted Time of Legal Populism and America’s Presidential Constitution (The Cambridge Handbook of Legal Populism, forthcoming) on SSRN. Here is the abstract: Trump 2.0 not only stands out from its earlier edition but also sets itself apart from other populist takeovers of constitutional government through the ‘salami tactic’ around the globe, with its blitzkrieg-like lawfare on institutions.

Introduction This installment of the Legal Theory Lexicon is a very brief introduction to utilitarian moral and political philosophy tailored to law students (especially first-year law students) with an interest in legal theory. Law students learn early on that classroom discussion of cases and statutes may begin with questions about what the rule is but is likely to turn to questions about…

The Legal Theory Bookworm recommends Contract Hazards: Lawyers and Their Landmines by Stephen J. Choi, Mitu Gulati, and Robert E. Scott. Here is a description: In today's global markets, commercial contracts are the backbone of complex financial and corporate transactions. Yet despite their centrality, these documents are often riddled with flaws-ambiguous terms, outdated provisions, and strategic traps-that persist across deals and markets.

The Download of the Week is The General Law Renaissance and the Common Law by Neil Duxbury. Here is the abstract: Of late, there has emerged an important body of legal scholarship sympathetically reassessing the concept of “general law” — unwritten legal norms discoverable by courts. This article shows that these reassessments run up against a problem when the general law in question is common law.

Siyi Lin (The Chinese University of Hong Kong (CUHK) - Faculty of Law) has posted Domestic and Foreign Illegality: Towards a Unified Flexible Approach? on SSRN. Here is the abstract: This article examines the recent movement towards a ‘unified’ approach to the law of illegality. Traditionally, the two main rules of foreign illegality established in Ralli Bros and Foster have been applied in a categorical sense.

Jessica A. Clarke (University of Southern California Gould School of Law) has posted B.P.J.’s Deviation From Heightened Scrutiny (Yale Law Journal Forum, forthcoming) on SSRN. Here is the abstract: In West Virginia v. B.P.J., the Supreme Court upheld a state law barring transgender girls and women from girls’ and women’s sports. In doing so, it reasoned that the law met the heightened scrutiny standard that applies to sex-based classifications under the Equal Protection Clause.

Lance Walker (Walker Law, PLLC; University of Oklahoma College of Law) has posted “Not a Particle of Choctaw Blood”: Samuel Caldwell’s Four Citizenship Trials, 1896–1904 on SSRN. Here is the abstract: This Article recovers a case that has not been examined in the scholarly literature since the tribunal that decided it closed its doors in 1904: Samuel C. Caldwell, et al.

Hanoch Dagan (University of California, Berkeley – School of Law) and Avihay Dorfman (University of Texas at Austin School of Law) have posted Why Relational Justice on SSRN. Here is the abstract: In “Relational Justice” (OUP 2024) we rethink the normative foundations of private law and chart the path for a just reconstruction. We claim that the fundamental maxim of reciprocal respect for self-determination and substantive equality – relational justice, as we dub it – is (or should be) the distinctive normative commitment of a genuinely liberal private law.

William A. Fischel (Dartmouth College - Department of Economics) has posted The Origins of American Counties Part IV: The Great Plains and Mountain States: Counties as All-purpose Governments on SSRN. Here is the abstract: This is the fourth of five papers of a book in progress, “The Origins of American Counties.” For a full introduction, see Part I, “Theory and New England.” My book explains why counties were formed in a complex dance between localities that wanted to be a county seat and state legislatures eager to control their territory, and then frozen within rigid configurations in the twentieth century.

Julian Jonker (University of Pennsylvania – Legal Studies Department) has posted Stability in Contract on SSRN. Here is the abstract: Contract law involves the public and therefore coercive enforcement of private claims. The coercive nature of contract consists in the fact that contract enforcement goes beyond acknowledgement that the underlying claims are binding. This coercive element stands in need of justification.

Neil Duxbury (London School of Economics - Law School) has posted The General Law Renaissance and the Common Law (Notre Dame Law Review, forthcoming) on SSRN. Here is the abstract: Of late, there has emerged an important body of legal scholarship sympathetically reassessing the concept of “general law” — unwritten legal norms discoverable by courts. This article shows that these reassessments run up against a problem when the general law in question is common law.

Sam Bookman (Harvard University, Law School, Students; University of Melbourne - Melbourne Law School) has posted Climate Presentism on SSRN. Here is the abstract: Climate-related harm affects real people. Yet too often, litigation and scholarship frame climate change as a future problem. In this article, I argue that US climate tort litigation should more squarely center these present harms—“climate presentism”—rather than treating climate suits primarily as vehicles for managing future risks and adaptation costs.

Arafat Rahman Akram (International Islamic University of Malaysia - Ahmad Ibrahim Kulliyyah of Laws) has posted Who Bears the Cost of Public Purpose? Compulsory Land Acquisition, Compensation and Judicial Review in Bangladesh through the ECHR Fair-Balance Principle on SSRN. Here is the abstract: Compulsory land acquisition sits at the point where development policy becomes an individual constitutional burden. Bangladesh formally protects property under Article 42 of the Constitution and the Acquisition and Requisition of Immovable Property Act 2017 provides a structured acquisition process, enhanced compensation, arbitration and appeal.

Dave Owen (UC Law, San Francisco) and Eric Biber (University of California, Berkeley - School of Law) have posted Fixing Wildfire Law (Boston College Law Review, forthcoming) on SSRN. Here is the abstract: Wildfire law in the United States is an uncoordinated mess. Air quality laws generally do not address wildfire, even though wildfire smoke is one of the nation’s largest sources of air pollution.

Jessica Owley (University of Miami - School of Law; University of Groningen - Faculty of Law) has posted Resilient Conservation Servitudes: Using Resilient Property Theory to Protect Environmental Amenities Without Leaving Social Values Behind (The Future of Housing, forthcoming) on SSRN. Here is the abstract: Conservation easements have become the dominant tool for conserving private land in the United States, restricting more than forty million acres.

Gregory Ablavsky, Stanford Law School , has posted Original Understandings of the U.S. Territories : Recently, judges and scholars alike hav...

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School (HKS)) has posted Interpretation Is Many Things on SSRN. Here is the abstract: The word “interpretation” covers a range of practices, including but not limited to the identification of intended meaning; use of original public meaning; and efforts both to fit and to justify existing materials. We can find different understandings of the word “interpretation” within and across fields, including literature, art, music, dance, and law.

Thomas C. Galligan (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Death in Admiralty on SSRN. Here is the abstract: This is an article about legal history: the development of the law governing recovery for wrongful death in American admiralty law. Simultaneously, because the discussion spans the time period from 1865 to the present, it is a piece about the current state of the law.

Chad Squitieri, Congress in the Mouth of a Lawyer, 78 Ala. L. Rev. __ (forthcoming), available at SSRN (Apr. 07, 2026).Jodi ShortChad Squitieri’s Congress in the Mouth of a Lawyer is one of the most…

M. Henry Ishitani (Yale University - Law School; University of Tulsa College of Law; Yale University - Department of History) has posted Making Sense of Federal Recognition on SSRN. Here is the abstract: This Article offers the first comprehensive account of federal recognition power—the authority to recognize the sovereignty of other states. The recognition of foreign sovereigns undergirds international law. Likewise, federal recognition of tribal sovereignty serves as the bedrock of federal Indian law.

David Schleicher (Yale University - Law School) has posted The Great American Property Tax Freak Out on SSRN. Here is the abstract: There has been a lot of news over the last two years, so it is understandable that neither the mass media nor the legal academy has focused on what is happening with the steady mainstay of local government finance, the property tax.

Carmine Guerriero (Department of Economics, University of Bologna) and Yasir Amin (Alma Mater Studiorum University of Bologna; Erasmus University Rotterdam; University of Hamburg) have posted Climate Shocks and Property Rights to Land on SSRN. Here is the abstract: While the direct economic effects of adverse climate shocks are well-known, their indirect institutional impact is still unclear. To shed light on this issue, we focus on the most agricultural countries, and we test the idea that adverse climate shocks push elites unable to commit to future transfers to grant the non-elites strong property rights to land to convince them that a sufficient part of the returns on common farming innovations would be shared via public good provision.