Legal Theory Blog

Cass R. Sunstein (Harvard Law School) has posted Ethical Nudging on SSRN. Here is the abstract:

All over the world, governments are using nudges as regulatory tools. Is this ethical? When? Much of the answer depends on whether nudges promote or instead undermine welfare, autonomy, and dignity. Many nudges, and those that deserve support, promote some or all of those ideals, and undermine none of them. If welfare is our guide, much nudging is actually required on ethical grounds, even if it comes from government. If autonomy is our guide, much nudging is also required on ethical grounds, in part because some nudges actually promote autonomy, in part because some nudges enable people to devote their limited time and attention to their most important concerns. Finally, nudges should not, and need not, compromise individual dignity, which many nudges actually promote. There is, however, a risk that some nudges might count as manipulation, as in the case of “dark patterns”; an emphasis on welfare, autonomy, and dignity helps to show how to avoid that risk.

Highly recommended!

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Tan Boston (Northern Kentucky University) has posted Proportionate NIL Paradigms in Kansas Law Review, Volume 75, on SSRN. Here is the abstract:

Gender equality is the prerequisite for a fair and just society. To this end, Title IX of the Education Amendments of 1972 (“Title IX”) seeks to end sex discrimination in educational settings and, ultimately, society as a whole. Yet despite storied progress in higher education, women still experience unequal treatment. Recently, this has become more noticeable in intercollegiate athletics, where name, image, and likeness compensation (NIL) for male athletes exponentially outpaces that of female athletes. This persistent reality has produced national uncertainty over the applicability of Title IX to NIL generally, and to the multibillion-dollar House v. NCAA settlement specifically. The U.S. Department of Education sought to resolve this uncertainty by issuing guidance that categorized NIL as “financial assistance” subject to Title IX’s proportionality requirement. However, the new administration rescinded the guidance less than a month later. This Article examines the effect of the rescission on Title IX’s promise of gender equality in educational settings. It concludes that the rescission does not alter Title IX’s reach. Rather, it defers resolution of the issue to other authorities. Because Title IX applies to the activities of educational institutions, the operative question for these authorities is not whether Title IX’s promise of equality applies to NIL provided by colleges and universities, but rather, how it applies. This Article argues that although Congressional authority would be ideal, ultimately, the responsibility will fall on the courts. Lastly, given the lack of statutory direction regarding NIL, this Article evaluates prevailing approaches to statutory interpretation and proposes that courts adopt the approach that best harmonizes Title IX’s text, purpose and legislative intent.

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Siyabonga Hadebe (Maastricht University, Faculty of Law) has posted AGOA’s Expiry as a Neo-Colonial Rupture: Tariffs, Critical Minerals and the Right to Development Sovereignty in Africa on SSRN. Here is the abstract:

The expiry of the non-reciprocal African Growth and Opportunity Act (AGOA) on 30 September 2025 marked the end of 25 years of preferential trade relations between the United States and Africa. This paper contends that AGOA institutionalised a neocolonial dependency by using conditional market access in ways that subordinated African development priorities to US political and security interests. Although its lapse, combined with the unilateral imposition of reciprocal US tariffs, caused a significant economic rupture, it did not translate into African economic sovereignty. Instead, it exposed Africa’s deep entanglement within an international economic system governed by multilateral trade rules, sovereign debt discipline, investment arbitration and private capital. The subsequent political effort to restore AGOA reflects a broader shift towards a securitised and transactional US trade policy in which market access is used as a bargaining tool for securing strategic minerals and advancing geopolitical objectives. Within this context, this analysis engages the “dilemma of Pan-Africanism”: the tension between immediate national priorities and long-term continental agency. Past failures are treated not as grounds for retreat, but as a basis for strategic caution. Against this backdrop, the paper presents a deliberately limited and conditional argument that Africa’s bargaining power lies in its endowment of critical minerals. However, translating this advantage into developmental gains requires disciplined continental coordination and robust legal frameworks. Accordingly, the paper proposes a three-pillar strategy grounded in the Right to Development: (1) reciprocal mineral-technology arrangements; (2) operationalising the African Green Minerals Strategy; and (3) the expansion of regional value chains under the African Continental Free Trade Area.

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Howard Herman has posted Plausibility Sans Precision: Large Language Models and the Limits of Automated Statutory Interpretation (Ejusdem Generis) on SSRN. Here is the abstract:

Ejusdem generis, a foundational canon of statutory interpretation, requires courts to infer the common genus uniting enumerated specific terms and apply that genus to constrain general catchall language. This paper argues that contemporary large language models (LLMs) are architecturally incapable of performing authentic ejusdem generis reasoning. This Article traces the doctrine’s development through Supreme Court jurisprudence from United States v. Palmer (1818) through Yates v. United States (2015), demonstrating that ejusdem generis requires intensional, ontology-grounded, context-sensitive inductive abstraction with explicit rule reification. This Article then analyzes how transformer-based LLMs, trained via next-token prediction on subword-tokenized text, produce only subsymbolic, extensional, statistically-grounded interpolation with implicit pattern-matching. The mismatch is not merely a matter of training data or prompting strategy; it is architectural and objective-level. This Article presents evidence from tokenization studies, computational complexity theory (particularly the TC⁰ constraint on transformer expressivity), and distributional semantics research to establish that character-level tokenization does not remedy these limitations. The gap between what ejusdem generis requires and what LLMs provide has significant implications for the deployment of AI systems in legal interpretation contexts.

Highly recommended! This paper suggests substantial technical competence on the part of the author. I am genuinely uncertain about the validity of the reasoning, but this paper does a better job than most at excavating the core technical issues.

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Jeremy Ross (University of Virginia) has posted The End of Peremptory Strikes?: Free Exercise and Religion-Based Batson Challenges in 87 Montana Law Review 11 (2026), on SSRN. Here is the abstract:

This article explores and applies recent changes in free exercise doctrine to analyze how courts may evaluate proposals to extend the protections of Batson v. Kentucky to religious affiliation, status, and/or belief. It argues that recent shifts in free exercise doctrine are almost certain to bar peremptory strikes that discriminate on the basis of religious affiliation alone. These new limits will further degrade the peremptory system, which has increasingly lost its original form and function as new nondiscrimination requirements have been foisted on the use of peremptories. Nonetheless, as with race- and sex-based strikes, attorneys are likely to maintain numerous tools to employ peremptories based wholly or in part on religious belief, as opposed to affiliation, despite some evidence that free exercise doctrine likewise should prohibit these strikes.

Recommended.

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D. Carolina Núñez and Lucy Williams (Brigham Young University – J. Reuben Clark Law School) have posted Apophatic Interpretation, Birthright Citizenship, and the Anti-Aristocratic Constitution, BYU Law Research Paper No. 26-12, on SSRN. Here is the abstract:

In January 2025, President Trump issued an executive order declaring that children born in the United States to undocumented residents or temporary visitors are ineligible for birthright citizenship. The order threatened to upend nearly 150 years of precedent interpreting the Fourteenth Amendment to guarantee citizenship to every child born on U.S. soil. It also reignited a decades-old academic and political debate about what it means to be “subject to the jurisdiction” of the United States as the Fourteenth Amendment’s Citizenship Clause requires. For the last 40 years, participants in this debate have used various interpretive methods—especially textualist and originalist approaches—to seek the affirmative meaning of the Citizenship Clause. In this Article, we depart from that conventional approach by introducing a new interpretive framework, which we call “apophatic interpretation.” Modeled after apophatic or “negative” theology and philosophy, which explores concepts and ideas through negation, apophatic interpretation does not seek to identify what the Constitution affirmatively means. Instead, it identifies the values, systems, and institutions that the Constitution deliberately eschews and derives constitutional meaning(s) from those rejections. Applying this framework, we demonstrate that the Constitution is a profoundly anti-heredity document that comprehensively and emphatically rejects inherited civic status in all its forms. We trace this commitment across multiple constitutional provisions. We begin with the Guarantee Clause, which ensures republican government fundamentally incompatible with hereditary rule. We then turn to the Titles of Nobility Clauses, which specifically embody a rejection of hereditary civic privilege, and the Corruption of Blood Clause, which rejects hereditary civic disability. We argue that these provisions, taken together, form an integrated anti-hereditary architecture that forecloses any interpretation of the Fourteenth Amendment conditioning citizenship on parental status.

Highly recommended.

Apophatic interpretation is related to constitutional pluralism via the constitutional values modality. For background, see the Legal Theory Lexicon entry on Constitutional Pluralism.

Jennifer Lee Koh (Pepperdine University — Rick J. Caruso School of Law) has posted Incapacitating the Immigration Courts, forthcoming in S.M.U. Law Review, on SSRN. Here is the abstract:

Amidst the dizzying array of developments taking place under the banner of mass deportation, the second Trump Administration is engaged in a sustained effort to fundamentally transform the country’s immigration courts by incapacitating them. Although the immigration courts have long been the subject of extensive criticism, they also seek to function as neutral forums in which the Department of Justice adjudicates the removability of noncitizens and certain types of immigration relief, governed by due process principles. Rendering those courts unable to perform their functions could potentially give rise to a more fundamental deterioration of even the semblance of due process in immigration adjudication. This Article identifies several mechanisms used to achieve this incapacitation. The first is the expansion of removals designed to bypass immigration court adjudication altogether. The second involves the transformation of immigration courts into physical sites of chaos and violence. Third, management strategies designed to alter the composition of the immigration judge (IJ) corps through the firing, politicization, and hiring of judges have impacted the courts. The trends described in this Article carry implications for due process doctrine, the role of the federal judiciary in overseeing immigration policy, and administrative adjudication more broadly.

Recommended.

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Liza Vertinsky (University of Maryland Carey School of Law) has posted How Law Facilitates AI Capture of Democratic Information Networks in Research Handbook on Law in the Age of Superintelligence (Woodrow Barfield & Jonathan Blitz eds., forthcoming), on SSRN. Here is the abstract:

This chapter explores the ways in which digital information technologies—information technologies involving some combination of the internet and use of AI—have impacted the information networks underpinning our market democracy, and what we might expect in the future as the influence of an increasingly intrusive AI on information networks expands. I argue that U.S. law has not just allowed, but facilitated, a breakdown in the information ecosystem needed to support a robust market democracy, leaving us ill-prepared to respond to the challenges that an ever more intelligent, and perhaps one day superintelligent, AI raises for preserving a democratic information ecosystem. I conclude with the hope that we are still at an inflexion point, in which human governance of our information networks is possible and democratic information networks still within reach. Yet without radical changes in how we govern our information networks—including but not limited to change in the law, and corresponding changes in the commercial incentives currently dominating design choices for AI technologies—it seems likely that AI will end up deciding not just what information we receive, but what we believe and how we behave as a result.

Highly recommended!

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Jason A. Cade (University of Georgia School of Law) has posted Welcome to the Trump Administration’s Board of Immigration Appeals. The Immigrant Always Loses., forthcoming in Yale Law Journal Forum (2026), on SSRN. Here is the abstract:

Volume 29 of the Board of Immigration Appeals’ precedential decisions is not a collection of independent legal judgments. It is a project. The Trump administration has used the Attorney General’s self-referral power and a reconstituted, ideologically aligned Board to issue approximately 89 precedential decisions, at more than three times the historical pace, in its first fourteen months. The goal is to engineer a body of precedents that reliably produces one result: removal. This Article organizes this body of decisions into four primary categories: (1) narrowing relief for noncitizens alleging persecution; (2) accelerating the removal of vulnerable persons—including crime victims and abused children—who are on congressionally authorized pathways to status; (3) expanding mandatory detention while narrowing discretionary release; and (4) maximizing the immigration consequences of criminal history. An emerging fifth category reveals a Board that weaponizes its own procedural delays against the litigants whose claims it has sat on for years. A parallel set of rule changes—most recently an interim final rule that a federal court partially vacated in early March—has sought to insulate most deportation orders from any meaningful appellate review. The Article identifies three implications of this project for federal courts. First, Loper Bright‘s elimination of Chevron deference, combined with the Board’s institutional redesign and the uniformity of its outcomes, undermines any claim to persuasive weight, and many of the Board’s decisions should not survive de novo statutory review. Second, the exhaustion doctrine’s justifications collapse when the administrative body to be exhausted has been rebuilt to foreordain a result. Third, the Board’s selective deployment of the civil/criminal distinction, invoking it to deny protections when it benefits the government, and to exclude favorable criminal law developments when it benefits the noncitizen, is itself a doctrinal choice that post-Loper Bright courts should examine without deference, as it has invariably cut against the noncitizen.

Recommended.

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