Legal Theory Blog

All the theory that fits.

  • Zhang & Jing on Defining Trustee Liability in Chinese Law

    Xiaotao Zhang (China University of Political Science and Law) & Jeremy Hui Jing (The University of Hong Kong) have posted Defining Trustee Liability in Chinese Law, European Business Organization Law Review (forthcoming 2026), on SSRN.  Here is the abstract:

    This article examines the ambiguity and inconsistency surrounding trustee liabilities in Chinese law, with a particular focus on the scope of a trustee’s liability in transactions involving trust assets. It highlights the absence of explicit statutory provisions, resulting in uncertainties that undermine the effectiveness and attractiveness of trust structures in both commercial and private contexts. Through comparative analysis, the article argues that the English unitary model of trustee liability is ill-suited to the Chinese context, given China’s professionalised trust industry, trust registration requirements, and legislative emphasis on transparency and transactional certainty. Instead, it advocates the adoption of a division approach, whereby trustees’ liability is generally limited to trust assets except in cases of misconduct or wrongdoing. The final section proposes an analytical framework centred on three key factors: the nature of trustee conduct, the transparency of trust arrangements, and the mutual agreement of transaction parties. It contends that it is the combined and interactive effect of these factors that should determine the scope of a trustee’s liability.

    Recommended!

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    Lawrence Solum

  • Legal Theory Lexicon: Tort Theory

    First year law students encounter many important concepts for the first time in their torts course. The “reasonable person” and Learned Hand’s formula appear in the Carroll Towing case. The mysteries of causation are introduced in Palsgraf. And debates over whether negligence or strict liability should provide the standard for imposing liability introduce important debates in normative legal theory. Behind these doctrinal questions lies tort theory.

    The doctrinal questions of tort law prompt deeper theoretical questions of tort theory. Why does the law require some people to pay damages to others for the harms they cause? What kinds of conduct should trigger liability? When the law does impose liability, what is it really doing—compensating victims, deterring dangerous behavior, or giving expression to some idea of justice between the parties? What normative theory should guide tort doctrine, consequentialism, deontology, or something else? Tort theory aims to provide systematic answers to these questions and others.

    This entry in the Legal Theory Lexicon provides an overview of the major theoretical approaches to tort law. As always, the Lexicon is aimed at law students, especially first-year students with an interest in legal theory.

    Let’s begin with the most basic questions. What is a tort? And what is a theory of tort law?

    What Is Tort Theory?

    A tort is a civil wrong, other than a breach of contract, for which the law provides a remedy—typically money damages. The core of the first-year course is the law of negligence, but the field also includes intentional torts (battery, trespass, defamation) and various forms of strict liability (liability for abnormally dangerous activities, products liability). Tort theory asks what, if anything, holds this body of law together and what justifies it.

    It is useful to distinguish four kinds of question that tort theorists ask.

    The first is the question of justification: why should the law impose liability at all? When a defendant injures a plaintiff, the law might do nothing, leaving the loss where it falls. Or it might provide compensation through some public scheme, as workers’ compensation systems and the New Zealand accident compensation scheme do. Tort liability is a particular response—it requires one private party to pay another—and that response calls for justification.

    The second is the question of the standard of conduct: what must a defendant have done, or failed to do, to be held liable? The central divide here is between fault and strict liability. A fault standard holds defendants liable only when they have behaved wrongfully—most often, negligently. A strict-liability standard holds defendants liable for the harms they cause regardless of whether they took reasonable care. Much of tort theory is an argument about which standard is appropriate, and why.

    The third is the question of remedy: when liability is established, what should the defendant be required to do, and why? Tort law’s standard remedy is compensatory damages measured by the plaintiff’s loss. But theorists disagree sharply about what this remedy is for. Is it a device for spreading or deterring losses, or is it the law’s way of undoing a wrong as between the two parties?

    The fourth is a question that helps fix the boundaries of the field: how and why is tort liability different from criminal punishment? Both tort and criminal law respond to wrongful conduct, and the same act—a punch, a reckless drive—can give rise to both a tort suit and a criminal prosecution. But the two differ in structure. A criminal case is brought by the state and aims at punishment; a tort case is brought by the injured party and aims at compensation. The criminal defendant who is convicted pays a debt to society; the tort defendant who loses pays damages to the plaintiff. The standard of proof differs too: guilt must be proved beyond a reasonable doubt, while tort liability need only be established by a preponderance of the evidence. As we will see, this distinctive structure—a private plaintiff seeking a remedy against a private defendant—is something that some theories of tort treat as merely incidental and others treat as essential.

    There are other questions as well. For example, tort law needs an account of causation—a topic that has its own Legal Theory Lexicon entry: Legal Theory Lexicon 020: Causation. This Lexicon entry focuses on the questions that have occupied tort theorists in recent years, but tort theory is a dynamic field: old questions sometimes fade into the background, and new questions become the focus of attention.

    The discussion that follows focuses on some of the most important approaches to tort theory. They are presented here in roughly the order in which they came to prominence in the modern academic debate, beginning with the economic analysis of tort law that reshaped the field in the 1960s and 1970s.

    Economic Theories of Tort Law

    The economic analysis of law transformed the study of torts. On the economic approach, the central purpose of tort law is not to do justice between the parties but to promote efficiency—to minimize the total social costs associated with accidents. This idea was developed in different ways by Guido Calabresi, whose book The Costs of Accidents (1970) framed the problem of accident law as one of cost minimization, and by Richard Posner, who argued that the common law of negligence could be understood as if it were designed to produce efficient outcomes.

    The economic approach begins from a simple observation: accidents are costly, but so is preventing them. This approach to tort law has its theoretical roots in the work of Ronald Coase; for an introduction to his approach, see Legal Theory Lexicon 002: The Coase Theorem. Driving more slowly reduces the risk of collisions but also makes everyone late. The goal, on this view, is not to eliminate accidents—that would be far too expensive—but to find the level of precaution at which the combined costs of accidents and accident avoidance are as low as possible. Tort law promotes this goal by giving potential injurers an incentive to take cost-justified precautions, and only cost-justified precautions. A related idea is that liability should sometimes be placed on the cheapest cost avoider—the party best positioned to prevent the harm at the lowest cost—because doing so gives the right party the incentive to act.

    The most famous expression of this idea is the Hand formula, named for Judge Learned Hand. In United States v. Carroll Towing Co. (1947), Hand suggested that whether a defendant was negligent could be analyzed in terms of three variables: the burden of taking a precaution (B), the probability that harm would occur without it (P), and the magnitude of the harm if it did occur (L). On this analysis, a defendant is negligent when the burden of precaution is less than the expected harm it would prevent—that is, when B is less than P multiplied by L. The intuition is straightforward: it is unreasonable to fail to take a precaution that costs less than the harm it would avoid, and reasonable to forgo a precaution that costs more than it is worth. Economists read the Hand formula as an instruction to weigh the costs and benefits of precaution at the margin, and they treat it as evidence that negligence law is, at bottom, about efficient deterrence.

    Economic theories come in several varieties and face several objections. Some economists emphasize deterrence (giving actors incentives to take care), while others emphasize loss spreading (placing losses on parties, such as manufacturers, who can distribute them across many transactions through prices and insurance). Critics object that the economic approach mismeasures or ignores values that tort law seems to care about—that it cannot easily account for the moral significance of wronging a particular person, and that its focus on aggregate social welfare sits uneasily with tort law’s bilateral structure, in which a particular plaintiff sues a particular defendant. It is this last objection that animates the corrective justice theories to which we now turn.

    Corrective Justice Theories

    Beginning in the 1980s, a number of theorists mounted a sustained challenge to the economic account, arguing that tort law is best understood not as an instrument of social policy but as an expression of corrective justice. The idea of corrective justice is ancient—it traces to Aristotle’s Nicomachean Ethics, which distinguished corrective justice (concerned with rectifying wrongful losses and gains between two parties) from distributive justice (concerned with the fair allocation of goods across society as a whole). The leading modern exponents include Ernest Weinrib, Jules Coleman, and Richard Wright.

    The central claim of corrective justice theory is that tort law responds to a wrong done by one person to another, and that the defendant’s duty to repair the harm flows directly from the fact that the defendant wrongfully caused it. On Weinrib’s influential account, developed in The Idea of Private Law (1995), the structure of a tort case is correlative: the plaintiff and defendant are linked as the two parties to a single transaction, and the law’s job is to undo the wrong that runs between them. This bilateral structure is not, as the economist would have it, an awkward administrative feature to be explained away. It is the very point of the enterprise. Weinrib famously insisted that private law should be understood on its own terms rather than as a vehicle for external goals—a view often summarized by his remark that the only purpose of private law is to be private law.

    Corrective justice theorists thus take seriously features of tort law that the economic approach struggles to explain: that the plaintiff must have been wronged, that the defendant must have caused the harm, and that the remedy runs from this defendant to this plaintiff rather than into a general compensation fund. Critics respond that corrective justice theory describes the form of tort law without justifying it—that it tells us tort law has a bilateral structure but does not explain why society should maintain such an institution rather than replacing it with a more efficient compensation scheme. The standard of conduct also remains contested: corrective justice theorists differ among themselves about whether the wrong at the heart of tort law requires fault or can rest on the mere causation of harm.

    Civil Recourse Theory

    A distinct and influential approach, developed primarily by John Goldberg and Benjamin Zipursky, is civil recourse theory. Civil recourse theory shares the corrective justice theorists’ conviction that tort law is about wrongs rather than efficient loss allocation, but it locates the heart of the matter somewhere different. On the civil recourse view, tort law does not impose a duty of repair on wrongdoers. Rather, it empowers those who have been wronged—it gives the victim of a tort a legal avenue of recourse against the person who wronged her.

    The point is best seen by attending to the structure of a tort suit. Tort law does not automatically transfer money from injurers to victims. It gives the injured party the power to sue, and leaves it to her whether to exercise that power. This, Goldberg and Zipursky argue, is no accident. It reflects a principle with deep roots in political theory: when the state prohibits private violence and self-help, it owes those who are wronged an alternative—a civil action through which they can hold wrongdoers answerable. Tort law is the law’s substitute for private redress. This is where the contrast with criminal punishment, flagged earlier, becomes theoretically central: the criminal law vindicates the public interest through state prosecution, whereas tort law equips the private victim with a means of acting against the person who wronged her.

    Civil recourse theory and corrective justice theory are close cousins, and the differences between them are subtle. Both insist that tort law concerns wrongs and that its bilateral structure is essential. The principal disagreement is over whether tort law is fundamentally about the wrongdoer’s duty to repair (corrective justice) or the victim’s power to obtain redress (civil recourse). Critics of both approaches sometimes wonder whether this difference makes a practical difference; defenders respond that it explains otherwise puzzling features of tort doctrine, such as the plaintiff’s freedom to decline to sue and the law’s insistence that the plaintiff personally have been wronged.

    Rights-Based and Kantian Theories

    Closely related to corrective justice, but worth distinguishing, are theories that ground tort law in a structure of individual rights. On these accounts, tort law protects the rights persons have against one another—rights to bodily integrity, to property, to reputation—and a tort is, at bottom, the violation of such a right. The remedy gives effect to the right by requiring the violator to answer for the violation.

    Two strands deserve mention. The first is the Kantian account developed by Arthur Ripstein, who argues in Private Wrongs (2016) that tort law expresses a system of equal freedom: each person is entitled to independence from the choices of others, and torts are violations of that independence. On this view, the wrong in a tort is the defendant’s use of the plaintiff—or the plaintiff’s body or property—as a means to the defendant’s own ends, without the plaintiff’s consent. The second is the rights-essentialism of Robert Stevens, who argues in Torts and Rights (2007) that tort law is best understood as a law of rights and their infringement, and that damages substitute for the right that was violated. These theories share with corrective justice an emphasis on the relationship between the parties, but they place the concept of a right rather than the concept of a wrongful loss at the foundation.

    A recurring example illuminates the rights-based perspective. In Vincent v. Lake Erie Transportation Co. (1910), a ship’s owner deliberately kept the ship tied to a dock during a storm to save the ship, and the dock was damaged as a result. The court held the shipowner liable for the damage even though keeping the ship moored was reasonable—indeed, the privilege of necessity made it lawful. Rights-based theorists find this result congenial: the dock owner’s property right was infringed, and the infringement called for compensation, even though the defendant acted reasonably. The case is a puzzle for any theory that ties liability tightly to wrongful conduct, and it remains a favorite battleground among tort theorists.

    Mixed, Pluralist, and Instrumentalist Theories

    Not every theorist believes that tort law has a single unifying purpose. Many take a pluralist or mixed view, holding that tort law serves several aims at once—deterrence, compensation, corrective justice, the vindication of rights—and that no monistic theory captures the whole. Others defend frankly instrumentalist accounts, treating tort law as one policy tool among many for managing the social problem of accidents.

    Several positions fall under this heading. Gregory Keating has developed accounts that draw on contractualist moral theory, asking which risk-imposing arrangements could be justified to all affected by them, and using that idea to illuminate the line between negligence and strict liability. The mid-twentieth-century enthusiasm for enterprise liability—the idea that businesses should bear the accident costs of their activities because they are well placed to spread those costs—reflects an instrumentalist sensibility, as does much of modern products-liability law. And some theorists argue that the search for a single grand theory is misguided: tort law, on this view, is a historically evolved institution that does several jobs imperfectly, and the theorist’s task is to understand and improve it rather than to reduce it to one idea. Kenneth Simons exemplifies a related analytic sensibility: rather than defending a single master theory, he has dissected the building blocks of tort law—the concept of negligence, the role of mental states, the consensual rationale for assumption of risk—in ways that cut across the economic and corrective justice camps.

    Pluralism has obvious attractions—it fits the messy reality of tort doctrine—but it faces a challenge of its own. A theory that says tort law serves many values must also tell us how to proceed when those values conflict, as they frequently do. Without an account of how the competing aims are to be weighed, pluralism risks describing the disagreement rather than resolving it.

    Critical and Distributive Perspectives

    A final family of approaches steps outside the internal debate among economists, corrective justice theorists, and rights theorists to ask broader questions about tort law’s social role. Theorists working in the critical legal studies tradition, in feminist legal theory, and in the study of law and inequality have argued that tort law’s apparently neutral concepts—the “reasonable person,” the measure of damages by lost earnings—can encode and reproduce existing social hierarchies. When damages for lost future income are calculated using gender- or race-based wage tables, for example, the law may entrench the very inequalities it purports to ignore.

    These perspectives raise the question of distributive justice—the fair allocation of resources and risks across society—which the dominant theories of tort largely set to one side. Most corrective justice theorists insist that distributive questions, however important, belong to other parts of the legal system (taxation, social welfare) rather than to tort law. Critics reply that this division of labor is itself a choice with distributive consequences, and that tort law cannot be neatly insulated from questions about who bears the burdens of accidents in an unequal society. This entry treats these perspectives briefly, but they form an important counterpoint to the theories surveyed above.

    Cross-Cutting Doctrinal Questions

    Several doctrinal questions cut across the theoretical debates and offer good test cases for any theory of tort.

    The first is the choice between negligence and strict liability, already introduced above. Why does the law require fault in some domains (most ordinary accidents) but not in others (abnormally dangerous activities, defective products)? Economic theorists explain the choice in terms of incentives and activity levels; corrective justice and rights theorists explain it in terms of the kind of wrong involved. The objective character of the negligence standard is itself a puzzle: in Vaughan v. Menlove (1837), the court held a defendant to the standard of a reasonable person even though he may have done his honest best given his limited intelligence. Why should tort law judge defendants by an external standard rather than by their individual capacities? Each theory must say something about this. Kenneth Simons has examined these questions with particular care, distinguishing the “conduct negligence” that dominates tort law from the “cognitive negligence” more central to criminal law, and analyzing the several institutional functions that an objective negligence standard serves. His work on the consensual rationale for assumption of risk—the idea that a plaintiff who knowingly and voluntarily confronts a risk may have no claim—further illuminates how the law weighs the choices of victims, not just the conduct of injurers.

    A second question concerns causation. Tort liability ordinarily requires that the defendant’s conduct have caused the plaintiff’s harm, but causation raises notorious difficulties—both factual (would the harm have occurred anyway?) and legal (is the harm too remote, or too unforeseeable, to count?). The famous case of Palsgraf v. Long Island Railroad Co. (1928) crystallizes the problem of proximate cause and the related question of the duty of care: to whom is a careless defendant answerable, and for which consequences? Theories of tort are tested by how well they explain why the law draws the lines it does.

    A third question concerns the measure of damages. If tort law aims at deterrence, damages should be set at the level that gives optimal incentives. If it aims at corrective justice, damages should restore the plaintiff to the position she occupied before the wrong. If it aims at the vindication of rights, damages should substitute for the right infringed. These aims do not always point in the same direction, and the law of damages—compensatory, punitive, nominal—remains a fertile field for theoretical disagreement.

    Conclusion

    Tort theory is a debate about what a whole field of law is for. The economic approach sees tort law as a system for minimizing the costs of accidents; corrective justice theory sees it as an institution for rectifying wrongs between persons; civil recourse theory sees it as the law’s provision of an avenue of redress to those who have been wronged; rights-based theories see it as the protection and vindication of individual rights; and pluralists deny that any single account can capture the whole. For the first-year student, the value of these theories is not that one of them is simply correct, but that each illuminates features of the doctrine that might otherwise pass unnoticed—and that learning to see tort law through these competing lenses is itself a central part of learning to think like a lawyer.

    Related Lexicon Entries

    Legal Theory Lexicon 001: Ex Ante & Ex Post

    Legal Theory Lexicon 002: The Coase Theorem

    Legal Theory Lexicon 004: The Reasonable Person

    Legal Theory Lexicon 008: Utilitarianism

    Legal Theory Lexicon 010: Deontology

    Legal Theory Lexicon 018: Justice

    Legal Theory Lexicon 020: Causation

    Legal Theory Lexicon 049: Distributive Justice

    Legal Theory Lexicon 052: Property Rules and Liability Rules

    Legal Theory Lexicon 060: Efficiency, Pareto, and Kaldor-Hicks

    Legal Theory Lexicon 061: Feminist Legal Theory

    Legal Theory Lexicon 113: Property Theory

    Legal Theory Lexicon 114: Contract Theory

    Bibliography

    The current version of this entry was created on June 9, 2026.

    Link to the Most Recent Version of this Lexicon Entry

    Legal Theory Lexicon 115: Tort Theory

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  • Legal Theory Bookworm: “Taking American Citizenship Seriously” by Upham

    The Legal Theory Bookworm recommends Taking American Citizenship Seriously: The Recovery of the Fourteenth Amendment by David R. Upham. Here is a description:

    In this ambitious volume, Professor David R. Upham offers a comprehensive account of the original understanding of the Fourteenth Amendment, shedding new light on its often-overlooked Privileges or Immunities Clause. Drawing on a close textual reading as well as a wide range of primary sources—some newly discovered—Upham argues that the framers intended the amendment as a measure designed to strengthen existing constitutional protections for the rights of both human personhood and American citizenship. Upham contends that the amendment secures for all individuals the basic rights to life, liberty, and property through guarantees of due process and equal protection, while also reaffirming the birthright principle that grants citizenship to nearly all born on U.S. soil. Moreover, the Fourteenth Amendment safeguards longstanding privileges and immunities of citizenship, including the rights to travel, engage in commerce, speak freely, bear arms, and enjoy protection from racial discrimination and other forms of civic exclusion. By recovering the Amendment’s original meaning, this book reshapes our understanding of constitutional rights and citizenship, with far-reaching implications for contemporary legal and political debates.

    And from the reviews:

    “Ten years ago, David R. Upham’s work forced constitutional scholars to rethink what they thought they knew about the history of interracial marriage. Now, he has produced the best book yet on the Fourteenth Amendment. Taking American Citizenship Seriously is a beautifully thorough canvass of evidence from the moment that America constitutionally committed herself to equal citizenship. Upham courageously and candidly follows the evidence wherever it leads him and explains compellingly how America can rediscover the original meaning of her most important constitutional anchor to freedom and equality.” —Christopher R. Green, Associate Director, Chase Center for Civics, Culture, and Society, The Ohio State University, USA

    “No serious student of the Fourteenth Amendment can ignore David R. Upham’s impressive scholarship in Taking American Citizenship Seriously. Upham powerfully articulates a distinctive vision of the Amendment, based on a painstaking analysis of the extensive primary sources and a thoughtful and spirited engagement with the voluminous literature on the subject. Whether you agree with all of his conclusions or not, the reader will come away with a much deeper understanding of this immensely important area of constitutional law and theory.” —Christopher Wolfe, Distinguished Research Scholar, University of Dallas, USA; author of The Rise of Modern Judicial Review

    “David Upham’s Taking American Citizenship Seriously is a landmark achievement of scholarship on the Fourteenth Amendment that should significantly reshape how judges, lawyers, scholars, and ordinary citizens understand it. Over and against regnant understandings of the Fourteenth Amendment, Upham shows that the meaning of section 1—and, in particular, of the “privileges or immunities” clause—is not vague or indeterminate but, rather, coherent and precise, the product of an original consensus among the Amendment’s supporters. Taking American Citizenship Seriously is a model of legislative history that demonstrates how far the majority opinion in the Slaughterhouse Cases and subsequent legal opinion departed from the Amendment’s original meaning, resulting in a jurisprudence detached from the Amendment’s text. When it comes to interpreting the Fourteenth Amendment and the “privileges or immunities” clause, Upham sets the bar for scholarly rigor.” —Paul R. DeHart, Professor of Political Science at Texas State University, USA; author of The Social Contract in the Ruins: Natural Law and Government by Consent

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  • Download of the Week: “Prosecuting Contempt” by Bray & Bamzai

    The Download of the Week is Prosecuting Contempt by Samuel L. Bray and Aditya Bamzai.  Here is the abstract:

    Under Supreme Court precedent and the Federal Rules of Criminal Procedure, federal courts may appoint prosecutors for criminal contempt. In this way, and many others, contempt prosecutions depart from the ordinary, adversarial model associated with criminal cases. Because such prosecutions and appointments arguably involve judges seizing the executive power of prosecuting crime, they are controversial, and their lawfulness has been disputed. This Article explores the lawfulness of judicial appointment of prosecutors for criminal contempt. It surveys the historical development of the idea that judges have an “inherent power” of contempt, as well as the historical origins of “criminal contempt” as a distinctive category. It concludes that the power to punish contempts, whether civil or criminal, was historically understood as a judicial power. That conclusion has implications for a variety of questions, including the lawfulness of attorneys appointed to prosecute contempt, whether governmental or non-governmental attorneys. Such attorneys do not exercise executive power, but rather assist the court in the exercise of its inherently judicial power of punishing contempt. The judicial appointment of prosecutors for criminal contempt, which now happens in federal court pursuant to Federal Rule of Criminal Procedure 42, is therefore lawful.

    Highly recommended!  Download it while it’s hot!

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  • Chandaria on Constitutional AI and Democratic Legitimacy

    Ankesh Chandaria (University of Cambridge; Leverhulme Centre for the Future of Intelligence) has posted When Constitutional AI Becomes Public Infrastructure: A Threshold for Democratic Legitimacy on SSRN.  Here is the abstract:

    Constitutional AI (CAI) governs large-language-model behaviour through privately authored normative frameworks. As these systems become embedded across public administration, they raise democratic-legitimacy questions not adequately captured by existing critiques of opacity, community disconnect, or public-authority publicity. This paper argues that such frameworks create a legitimacy deficit once they cross the Infrastructure Threshold: the point at which a CAI system ceases to be a product users may decline and becomes a condition of access to entitlements they cannot meaningfully avoid. The threshold is reached when three conditions converge: institutional embedding, practical indispensability, and normative gatekeeping. Above it, democratic legitimacy must attach to the authorship of governing norms, not merely to their outputs. The argument is anticipatory, addressing a governance model being institutionalised through public-sector pilots, procurement, and AI-use inventories before it hardens into settled infrastructure. Drawing on Rousseau, Habermas, and Pettit, the paper identifies democratic self-authorship as the relevant legitimating condition. The resulting deficit persists even where systems are transparent, outputs are reasonable, and procurement frameworks attempt to constrain them. Procurement reform may offer a tractable near-term intervention, but cannot fully satisfy self-authorship.

    Recommended!

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    Lawrence Solum

  • Simon on Mass Tort Democracy

    Lindsey Simon (Emory University School of Law) has posted Mass Tort Democracy, Florida Law Review, forthcoming 2026, on SSRN.  Here is the abstract:

    In recent years, an increasing number of mass tort defendants have used bankruptcy to address crushing litigation exposure. Through a plan of reorganization, well-advised debtors facing billions in potential liability can impose binding terms on all claimants that would be unavailable in any other forum. The Bankruptcy Code places important democratic checks on debtors, including a mandatory voting process and imposition of minimum creditor approval thresholds. This is especially meaningful in mass tort cases, where claimants’ desire for justice and a day in court is an uneasy juxtaposition with Chapter 11’s twin objectives of preserving value and equitably distributing assets. Bankruptcy stakeholders and the general public operate under conflicting myths about the voting process. Those suspicious of bankruptcy voting blame lawyers and claims agents for a rigged system, while supporters tout the independence and efficiency of modernized solicitation norms. As is often the case, the truth lies somewhere in between. Despite the critical role of voting in Chapter 11 cases, scholars have dedicated little attention to how democracy actually works in mass tort bankruptcy and the various ways it can (and cannot) be manipulated. This Article examines voting in mass tort bankruptcies, starting from the perspective of survivors in the Boy Scouts of America case. While the victim-centered perspective on mass tort democracy is not well developed in bankruptcy literature, it takes inspiration and guidance from a long line of legal scholarship emphasizing the importance and value of surfacing the too-often-hidden human side of legal processes. In cases riddled with voting controversy, letters to the court show just how significant a vote may be to mass tort claimants. This Article is among the first to confront common misconceptions about bankruptcy voting and set the story straight. Most importantly, it identifies ways to modify the status quo that would meaningfully improve the democratic process in mass tort cases.

    Recommended!

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    Lawrence Solum

  • Raj et al. on Platform Compliance with the Take It Down Act

    Annika Raj (National Coalition Against Deepfake Abuse), Zachary Kam (Duke University), Aiden Tauro (Duke University), Raiyan Choudhary (Duke University), and Nikhil Osuri (Duke University) have posted TAKE IT DOWN at Year One: A Public Record Review of Platform Compliance with the Federal Take It Down Act (2025-2026) on SSRN.  Here is the abstract:

    Nonconsensual intimate media (NCIM) inflicts significant harm, and the proliferation of AI-generated deepfakes has exacerbated the problem. The Take It Down Act (Public Law 119-12) established the first federal mandate requiring platforms to remove nonconsensual intimate media within 48 hours. We conducted a public record review of compliance across 10 distribution platforms during the Act’s first year (May 2025 to May 2026). We found that 9 of 10 platforms do not publish NCII-specific enforcement data, making compliance with the 48-hour standard unverifiable. The largest documented source of AI-generated NCII during the study period was Grok, an image generator operated by X, a platform simultaneously subject to the Act’s removal requirements. At the generation layer, two investigations identified over 100 Nudify applications across app stores, with a combined 705 million downloads, that operate entirely outside the Act’s statutory scope. We identified 19 school incidents since 2023 and a 16-month federal guidance vacuum following the vacatur of the 2024 Title IX rule. We stress the need for amendments to address the generation gap and discuss the implications for enforcement.

    Recommended!

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    Lawrence Solum

  • Engstrom et al. on Sealing Orders in the Federal Courts

    Nora Freeman Engstrom (Stanford Law School), David Freeman Engstrom (Stanford Law School), Jonah Gelbach (UC Berkeley School of Law), Austin Peters (Stanford University), Matthew Brundage (J.D. Stanford Law School), Othman Bensouda Koraichi (J.D. Stanford Law School) & Amy Cass (J.D. Stanford Law School) have posted [Sealed Document]: An Empirical Study of Sealing Orders in the Federal Courts on SSRN.  Here is the abstract:

    American courts have long embraced the principle that judicial records should be presumptively public. Public access reveals threats to public health and safety. It makes law legible to those who must conform their conduct to it. And it permits citizens to watch power, both public and private. Open courts are, as the Fifth Circuit recently put it, “Law 101.” Standards for sealing are accordingly strict: A litigant who seeks to conceal judicial records must demonstrate a compelling interest in secrecy, and the trial court must make specific, on-the-record, document-by-document findings explaining why sealing is justified. Failure to do so, longstanding appeals court precedent holds, constitutes an abuse of discretion. But do trial judges actually subject motions to seal to the searching scrutiny the law demands? Over the past half-century, this question has been the subject of speculation in scores of scholarly articles, congressional hearings, and judicial opinions. Yet, to this point, an answer has proven elusive. This Article offers overdue clarity—and our results are staggering. Using docket data from over 2 million federal civil cases, and combining state-of-the-art machine learning techniques with careful hand-coding, we find that at least 90% of motions to seal are granted. Further, although judges, when granting sealing motions, are duty-bound to supply specific on-the-record findings, most don’t. Most do not so much as cite the governing standard, and, when a standard is offered, it’s very frequently wrong. These findings are a lightning bolt, with sweeping implications for the open courts principle, public health and safety, judicial hierarchy, and the Advisory Committee on Civil Rules’ current deliberations. In a litigation system already defined by the vanishing trial, courts and policymakers must confront the implications of a vanishing record.

    Highly Recommended!

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    Lawrence Solum

  • Klick on the Hidden Costs of Climate Superfund Laws

    Jonathan Klick (University of Pennsylvania Carey Law School) has posted You Can’t Tax the Past Without Pricing the Present: The Hidden Costs of Climate Superfund Laws on SSRN.  Here is the abstract:

    State climate change superfund laws aim to retrospectively tax producers of fossil fuels to defray the costs associated with climate change. Supporters of these laws suggest that companies like ExxonMobil and Chevron are responsible for the damage caused by the emissions generated when their products are extracted, processed, and ultimately used by end consumers. Following the “polluter pays” principle, advocates of the laws assert producers should pay the associated costs that come with remediation and mitigation of climate change harms.

    Fearing backlash from consumers, politicians have been quick to insist that these backward-looking surcharges will not affect the prices people will face for fossil fuel products. They argue that because the fines will be levied as a fixed amount based on past production and sales, marginal cost is unchanged, leaving current prices unaffected. Instead, they argue, the costs will come from the ample profits of the oil and gas industry, falling on shareholders, not consumers.

    There are a number of problems with these arguments. First, while the fines are retrospective, they set a clear precedent that production will inevitably entail costs in the future. Those expected costs do constitute a current increase in marginal cost, leading prices to go up today. Second, given how widely oil and gas industry stocks are held (including in most public pensions funds), the portion of the costs borne by shareholders will fall not just on modern-day Rockefellers but also on teachers, garbagemen, cops, and fire fighters.

    Further, even the widely invoked “polluter pays” principle is a poor fit in the context of state climate change superfund laws. A large part of the principle’s motivation is the desire to build external costs into the supply and demand curves faced by decisionmakers in a market. By ensuring that all social costs are internalized, buyers and sellers face the right incentives leading them to make value maximizing choices. However, as suggested, supporters disclaim the idea that costs will be internalized. This precludes the main efficiency benefit of the polluter pays principle. If producers do prospectively incorporate future fines, as foreshadowed by the current state superfund laws, the polluter pays principle could be back on track. That said, given the way emissions are allocated to producers in current models, there is no mechanism to encourage producers to engage in pollution-minimizing extraction and production methods, nor is there any incentive for consumers to favor emission-minimizing suppliers. Current climate change attribution models make little allowance for anything other than quantity decisions by suppliers.

    Indeed, the existing attribution models primarily allocate emissions to the end-use (i.e., burning) of fossil fuels, which highlights a normative or fairness problem with the use of the polluter pays principle in the context of the state superfund laws. The motivation used by the laws’ advocates paint producers as the cause of emissions when the attribution models themselves indicate that consumption is the primary cause of the emissions at the root of climate change.

    Furthermore, returning to the potential efficacy of the laws in terms of reducing emissions, most economic models suggest that individual firm supply responses have little effect on overall production, as other firms offset marginal reductions of a given firm. Demand side effects, however, can have a durable effect on overall output. From both fairness and efficiency perspectives, focusing primarily on producers seems misguided.

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    Lawrence Solum

  • Abraham on Particularity and Generality in Torts and Regulation

    Kenneth S. Abraham (University of Virginia School of Law) has posted Particularity and Generality in Torts and Regulation, 61 Wake Forest Law Review, forthcoming 2027, on SSRN.  Here is the abstract:

    This Essay, written in honor of Professor Michael D. Green, explores an aspect of the relation between tort law and regulation: the varying levels of particularity and generality that the two sources of law employ and reflect. The Essay reveals both similarities and differences between these two regimes that have not garnered as much attention as many of their other features. The Essay emphasizes several features of this phenomenon. First, although the greater particularity of much tort law usually enables it to serve corrective justice and civil recourse more effectively than regulation, most tort law and most regulation also serve what the Essay calls “preventive” justice, through the deterrence of harmful conduct. Second, despite its greater particularity, there still is much in tort law that operates at a level of generality analogous to regulation. And third, the Essay considers how the different possible interactions between tort and regulation can serve the purposes of these two sources of law in different ways.

    Highly Recommended!

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    Lawrence Solum