Legal Theory Blog

Manal Totry-Jubran (Bar Ilan University Faculty of Law) and David Kretzmer (Hebrew University of Jerusalem) have posted Parliaments as Constituent Assemblies in the Age of Populism: The Case of Israel on SSRN.  Here is the abstract:

This article examines how parliamentary systems that unite legislative and constituent authority within a single body face distinctive risks of constitutional erosion in an age of populism. When the same institution both enacts and amends the constitution, the absence of entrenched procedures or cross-partisan restraints enables majorities to reshape constitutional norms for short-term political advantage. Using Israel as its focal case, the article traces the evolution from the 1950 Harari Resolution through the Mizrahi Bank doctrine to the 2024 Unreasonableness Amendment decision, showing how these developments transformed a provisional compromise into an unbounded exercise of constituent power. Placing Israel in comparative perspective, the article identifies the institutional and cultural factors that determine whether parliamentary constituent power becomes self-restraining or self-entrenching. Building on this analysis, it proposes a framework of procedurally constrained constituent power based on three principles: temporal distance (preventing self-serving reform), consensus and inclusion (ensuring cross-partisan legitimacy), and a substantive requirement that constitutional amendments preserve the democratic character of the state—reinforced by judicial oversight as a procedural guardian. Together, these safeguards, the article contends, provide the foundation for constitutional legitimacy, which depends on process rather than textual rigidity.

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Lawrence Solum

Tawia B. Ansah (Florida International University College of Law) has posted Beyond the Artifact Fallacy: AI as a Relational Milieu on SSRN.  Here is the abstract:

Legal doctrine and public regulation overwhelmingly treat artificial intelligence as either a sophisticated mathematical tool or an incipient digital mind. This conceptual framing traps law within a substance ontology that reifies a distributed, continuously process into a discrete object. This artifact fallacy functions as an ideological decoy: by directing legal attention toward posthoc outputs, individual consent, and ex post liability, it allows the true nature of AI—as a continuous, metabolic, and metastable assemblage—to evade structural oversight, insulating the concentrated corporate infrastructures that control its computational flow.

This Article advances a process-ontological alternative. Drawing on Gilbert Simondon’s theory of individuation and the associated milieu, it re-theorizes artificial intelligence not as an isolated artifact, but as a relational medium. Under this framework, computational systems do not operate as standalone products within a static background; rather, they continuously modulate and are modulated by the technical, institutional, and environmental milieus in which they are embedded.

By diagnosing the artifact fallacy, the Article explains why existing doctrinal remedies inevitably fail when applied to dynamic optimization models across loss landscapes. In place of entity-based oversight, the Article establishes a process ontology for technology law, laying the theoretical foundation for anticipatory, scale-sensitive legal governance.

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Lawrence Solum

Cori Alonso-Yoder (University of Maryland Francis King Carey School of Law) has posted Indigenous Immigration Control on SSRN.  Here is the abstract:

Tensions between federal and local policies on immigration dominate the headlines. From ending birthright citizenship, to local cooperation with federal immigration enforcement, the debates echo the earliest days of immigration law when the states and federal government grappled to determine who would define membership. In the late nineteenth century, the Supreme Court determined immigration policy fell within the exclusive purview of the federal government. Racial considerations were key to the development of this federalized immigration system. Contemporaneous legal developments also justified a policy of territorial expansion, building a U.S. overseas empire that remains in place today. Millions of Americans in the U.S. territories live under legal frameworks that vary widely from the system of law governing the states. Stunningly, this includes a system of immigration regulation that defies the immigration federalism considered central to U.S. immigration doctrine: For well over 100 years, the U.S. territory of American Samoa has retained sole control over its system of immigration. Remarkably, it has done so with the complete acquiescence of the federal government. From American Samoa’s lack of birthright U.S. citizenship to broad restrictions on immigration, the territory’s system bears little resemblance to federal immigration law. This article offers the first comprehensive analysis of Samoan immigration and nationality law, demonstrating how its anomalous approach developed around questions of race, ethnicity, and indigeneity. While some have praised the restrictive system as justifying greater limitations on entry into the U.S. mainland, Samoan immigration control is instead a unique example of self-governance created to resist settlercolonialism.

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Shalev Gad Roisman (University of Arizona – James E. Rogers College of Law) has posted Fact Avoidance (140 Harvard Law Review, forthcoming 2026) on SSRN.  Here is the abstract:

The legality of the President’s exercise of statutory power depends on questions of both law and fact. Yet courts often focus exclusively on the former, without engaging with the latter. This Essay suggests that this is no coincidence—that one reason courts focus on legal interpretation is that it permits them to avoid second-guessing the President’s factual determinations. The Essay identifies this phenomenon of “Fact Avoidance” by focusing on two major cases in the Supreme Court’s last term, Learning Resources v. Trump and Trump v. Illinois, that reflect this tendency.

Whether motivated by a conscious decision to avoid factual review or not, fact avoidance is worth grappling with. After identifying the phenomenon, the Essay explains why courts might be drawn to it. It then assesses both the costs of fact avoidance and the benefits of factual review. It closes by providing a method that courts could use to review the President’s factfinding in a principled way.

Fact avoidance might be an understandable impulse, but it need not be an inevitable one. Ultimately, the Essay argues that courts need not be as wary of reviewing the facts as they often appear to be. Factual review will entail the exercise of judgment, to be sure, but judgment is also exercised when the Court interprets the law. It need not be confined there. To the contrary, there is much to be gained by reminding the public—and the President—that the facts matter.

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Eric Ufomadu (Stetson University) has posted The Undischargeable Duty: Attorney Verification of Legal AI and the Case for Reliance Disclosures on SSRN.  Here is the abstract:

The legal profession has answered the arrival of generative AI with a single instruction: verify. ABA Formal Opinion 512 requires “an appropriate degree of independent verification or review”; state bar opinions and more than twenty-five federal standing orders say the same in different words. This article argues that the instruction, as applied to retrieval-augmented legal research tools, is presently undischargeable: the duty it states cannot be performed, because performing it requires information about how a given tool fails, namely its error composition, its detectability characteristics, its temporal coverage, and its silent design behaviors, that only vendors possess and no vendor discloses. The argument is doctrinal, not empirical: professional duties presuppose epistemic access to the facts that make compliance possible, and where a duty’s informational preconditions are controlled by a third party, the duty propagates into a demand on that party. The article’s constructive half specifies the demand. It derives, requirement by requirement from the law of lawyering, a documentation artifact, the Reliance Card, stating what a legal AI vendor must disclose for an attorney’s use of the tool to be capable of satisfying Rules 1.1, 3.3, and 5.3. A qualitative gap analysis against the public record shows that no current commercial tool satisfies any tier of the specification. The article contributes to legal scholarship a systematized impossibility argument with a doctrinal mechanism for resolving it, and to computer science a documentation standard in the lineage of Model Cards whose fields are derived not from ethical aspiration but from enforceable professional obligation, a derivation method portable to medicine, engineering, and every other profession whose members are now being told to verify.

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Lawrence Solum

Nicholas Bednar (University of Minnesota Law School) and Todd Phillips have posted A Faithful Execution Exception to Slaughter on SSRN.  Here is the abstract:

In Trump v. Slaughter, the Supreme Court held that Article II permits a President to remove principal officers at will. Ostensibly, the removal power allows the President to fulfill his constitutional obligation to “take Care that the Laws be faithfully executed” by removing principal officers who are derelict in their duties. But Slaughter has opened a significant loophole in the Constitution, allowing a deregulatory President to handicap government functioning. Slaughter enables the President to remove appointees from multimember commissions, breaking their quorums and preventing them from transacting business. Because the Vacancies Act does not extend to multimember commissions, no acting official steps in to ensure the agency continues to function.

This Essay argues that quorum-breaking removals violate the President’s obligation under the Take Care Clause. It cannot be the case that preventing agencies from functioning constitutes taking care that the laws are faithfully executed, and indeed, the Supreme Court has held that the President lacks any power to forbid the law’s execution. To that end, courts should adopt an objective test when removals are challenged, asking whether the President’s action leaves the remaining commissioners—if there are any—able to transact business.

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Sergio J. Campos (Boston College Law School) has posted An Alternative to Iqbal: A Commitment Not to Settle (California Law Review, Vol. 114, pp. 1057-1075) on SSRN.  Here is the abstract:

This Essay was prepared for a symposium to recognize the fifteenth anniversary of Ashcroft v. Iqbal. It examines the plausibility standard developed in Iqbal and first articulated in Bell Atlantic Corp. v. Twombly, specifically its objective of discouraging nuisance or in terrorem lawsuits. This Essay explores methods other than heightened pleading to address the problem of nuisance suits and makes the case for one alternative: defendants committing not to settle.

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Enrico Bonadio (City University London, The City Law School) and Gursharan Kaur (St. George’s University of London) have posted Video Game Modding between Discretionary Enforcement, Copyright Control and Co-Creation (in Despoina Farmaki & Leonid Shmatenko (eds.), The Global Guide to Esports Law (Hart forthcoming 2027)) on SSRN.  Here is the abstract:

The modern video gaming industry is a multi-billion-dollar powerhouse globally. Yet, such success also thrives on a paradox: publishers often reap the rewards of community-made mods while keeping them in a legal grey zone, forcing modders to build on ‘borrowed land’. This chapter explores the tension between the community-driven creativity that is an extension of existing product lifecycles and the legal copyright framework that favours publisher control. Through an analysis of industry giants and targeted case studies, we make the point that the boundary between copyright infringement and follow-on creativity is frequently drawn by a publisher’s perceived “bottom line”. The chapter further evaluates the legal frameworks governing modding in the US and EU, with a focus on End User License Agreements as a primary mechanism of controlling the market where modders continue to operate in a state of “tolerated infringement”, as highlighted by the existing literature. The chapter concludes by exploring scholarly proposals and seeking a way to reconcile the proprietary rights of videogame publishers with the cultural and economic necessity of user-led innovation.

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Lawrence Solum