Legal Theory Blog

Jesse Reiblich (University of Rhode Island) et al. have posted Protecting California’s Surf Breaks Using the Coastal Act’s Local Coastal Programs on SSRN.  Here is the abstract:

Surf breaks are important resources for many reasons, including their recreational value for surfing and many related wellbeing and societal benefits. Protecting these resources is a relatively nascent endeavor. Furthermore, surf breaks are typically overlooked or undervalued in coastal planning processes. Surf breaks are particularly valuable and important to California, where surfing is the state sport and surfing and coastal visits account for a large part of its economy and personality. But even California has faced surf break destruction, and its breaks are routinely under threat from development and environmental degradation. Efforts have been made to use laws designed for other purposes to protect California surf breaks (e.g. using the National Historic Preservation Act to protect Malibu), but more comprehensive tools and approaches are needed to protect against further destruction of surf breaks. Local Coastal Programs (LCPs) provide one important option. LCPs are mandatory coastal policy and land use plans that local governments in California’s coastal zone must prepare to control how development and land uses are managed in these communities. These long-term planning documents can be used to prioritize and directly protect surf breaks, or at least make sure that they are reliably considered in coastal development planning processes. This paper assesses the current policy implementation gap for these potential roles by identifying and evaluating LCPs that already reference surf breaks. We then discuss how surf breaks can be consistently addressed in all LCPs in future iterations.

To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.

Lawrence Solum

Kelly-Brown Ochieng Odhiambo (Umma University) has posted The Automaton as Intervening Cause: Algorithmic Amplification, Causal Attribution and the Quantum Conundrum in Kenyan Digital Defamation on SSRN.  Here is the abstract:

Digital publication has fractured an assumption upon which much of defamation law has historically operated: that the person responsible for communicating defamatory matter is also substantially responsible for determining the audience to which it travels. Algorithmic recommendation, ranking, and personalisation systems separate those functions. A media organisation may originate defamatory material, while an independent platform determines whether, when, and to whom that material is subsequently presented. The resulting problem is not simply one of intermediary liability; it is a fundamental problem of causation and remedial attribution.

Kenyan defamation law presently possesses no developed doctrine addressing the causal consequences of autonomous distribution. Its existing rules concerning publication, material contribution, novus actus interveniens, remoteness, republication, and damages nevertheless provide the conceptual materials from which a distribution-sensitive account of the tort can be developed. The central proposition advanced here is that algorithmic amplification should be treated neither as legally irrelevant automation nor as an autonomous tortfeasor. It is a distinct causal mechanism whose legal significance depends upon the structural relationship between the originating defendant, the distributional system, and the resulting injury.

The article develops this proposition through a jurisprudential distinction between cause in-fact and scope of liability. Drawing upon Hart and Honoré, Wright, and Stapleton, it argues that an originating publication and an independent amplification event can constitute distinct causal contributions without requiring either to be characterised as the exclusive cause of the claimant’s injury. Drawing upon corrective-justice theory, it further argues that attribution must remain correlative: the defendant should answer for the consequences of the wrong attributable to that defendant, not for an aggregate digital injury simply because another responsible actor is immune or unavailable.

The article articulates the concept of algorithmic causal independence as a factual condition in which an automated distribution mechanism is sufficiently independent of the originating publisher, and sufficiently material to the subsequent injury, to require separate causal attribution. This framework resolves the ongoing attribution-quantum disconnect in digital actions, provides a structured methodology for dividing damages between original platforms and viral systems, and proposes a model for statutory reform through a newly drafted Section 16B of the Defamation Act (Cap 36).

Recommended!

To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.

Lawrence Solum

Ahmed Aziz (Licensed Lawyer at Sindh Bar Council) has posted Beyond Judicial Backlog: A Rights-Based Triage Framework for Alternative Dispute Resolution in Pakistan on SSRN.  Here is the abstract:

Pakistan’s debate on Alternative Dispute Resolution (ADR) is frequently framed as a response to judicial backlog. This article argues that backlog alone is an inadequate basis for deciding whether a dispute should leave ordinary adjudication. The more important question is which disputes are legally and practically suitable for ADR, through which mechanism, and subject to what safeguards.

Using a doctrinal-comparative method and a structured purposive review of fifteen reported Supreme Court decisions from 2018 to 2026, the article examines Pakistan’s federal and provincial ADR frameworks, domestic and foreign arbitration, statutory family-law reconciliation, community-based dispute resolution and recent institutional reform.

It proposes a three-stage Rights-Based ADR Triage Framework examining: first, legal eligibility, including statutory authority and arbitrability; second, rights and process suitability, including consent, safety, bargaining inequality and the need for judicial protection; and third, institutional fitness, including neutral competence, proportionality, enforceability and judicial supervision. The framework also distinguishes consensual facilitation of legally compoundable offences from the judicial determination of criminal guilt or punishment.

The article argues that Pakistan’s next ADR challenge is not indiscriminate expansion but disciplined case selection, institutional coordination and measurable implementation. ADR should complement a functioning judiciary rather than substitute for one.

To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.

Lawrence Solum

Matthew Brown (Matthew Brown Companies) has posted Agentic Artificial Intelligence and Pro Se Federal Litigation: A Participant Observer Case Study of SEC v Brown on SSRN.  Here is the abstract:

This Article presents a participant-observer case study of artificial intelligence used across the lifecycle of an active federal securities-enforcement action. In SEC v. Matthew Brown and Matthew Brown Companies, LLC, the individual defendant proceeded largely pro se while using a network of commercial language models, retrieval systems, application programming interfaces, document repositories, and specialized agents to support research, drafting, discovery, deposition preparation, record analysis, adversarial testing, and remedies briefing. The district court granted the Securities and Exchange Commission partial summary judgment on liability; remedies remained pending as of September 26, 2026. The case therefore does not establish that artificial intelligence can replace counsel, and the adverse liability result supplies an essential counterweight to any account of productivity. It does, however, provide unusual evidence about how AI can reduce analytical latency, externalize litigation memory, permit asynchronous production, and unbundle some forms of legal labor from the professional judgment with which they have traditionally been sold. The Article distinguishes docket facts from the author’s recollection, describes the architecture and controls used, identifies consequential failures, and develops five provisional findings. First, the relevant unit of analysis is increasingly a human-machine workflow rather than a single chatbot. Second, orchestration and verification may matter more than raw model performance. Third, AI can expand the feasible boundary of self-representation without equalizing institutional power. Fourth, low software prices obscure substantial costs in operator time, technical skill, and error risk. Fifth, access-to-justice gains and professional responsibility risks arise from the same capability: inexpensive production of plausible legal work at scale. The Article closes with a governance framework for AI-assisted litigation and a research agenda for more systematic study.

Recommended!

To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.

Lawrence Solum

Prentiss Cox (University of Minnesota Law School) has posted Reclaiming Homeowner Wealth: A Conversation with Barry, Fried, and Hatfield (Iowa Law Review Online) on SSRN.  Here is the abstract:

Homeowners in the United States pay residential real estate brokers commission rates that are about twice as high as the commission charges by brokers in comparable countries. Given the enormous size of the residential home sale market—both in aggregate terms and as a percentage of wealth owned by the average homeowner—this cost discrepancy results in U.S. homeowners transferring tens of billions of dollars each year to brokers that would be saved in a more competitive and fair market. In Et Tu, Agent? Commission-Based Steering in Residential Real Estate (“Et Tu?”), Jordan M. Barry, Will Fried, and John William Hatfield provide a superb study establishing the existence of steering by buyer brokers and explaining why this steering creates inflated costs in the U.S. market. This Response lauds the market analysis in Et Tu?, but argues that the solutions proposed by the authors fall short of what is needed to create a competitive and fairly priced residential real estate brokerage. This Response suggests focusing on public enforcement of existing standards-based antitrust, fiduciary duty, and “UDAP” laws. It concludes by identifying three models for public enforcement cases that might yield the necessary market reform—the big case, the catalyst state case, and the piranha method.

To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.

Lawrence Solum

Rachel Bayefsky (University of Virginia School of Law) has posted Tradition and the Federal Judicial Power (Stanford Law Review, forthcoming) on SSRN.  Here is the abstract:

Tradition is most well known today for starring in blockbuster Supreme Court cases about controversial social issues, notably abortion and firearms. But tradition also plays a role, less visible but highly significant, in cases shaping the federal judicial power. This Essay identifies and critically analyzes the Court’s traditionalist turn in several settings implicating federal judicial power, including Article III standing, the breadth of equitable relief, the division of labor between Article III and non-Article III federal tribunals, and state sovereign immunity. I argue that the Court’s traditionalist turn implicitly privileges a certain vision of a civil lawsuit—the individualized dispute among private parties—as the model against which the legitimacy of federal court litigation is to be assessed. I propose a more capacious view of tradition permitting courts to recognize traditions that do not follow the private suit pattern but are nevertheless rooted in longstanding practice.

Highly Recommended!

To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.

Lawrence Solum

Jessica Owley (University of Miami – School of Law; University of Groningen – Faculty of Law) has posted Radically Reimagining Expropriation: A Nature-Centered Approach to Just Compensation in the United States on SSRN.  Here is the abstract:

American property law places human title holders at its center, treating nature as the backdrop to human ownership rather than an interest deserving legal recognition. This chapter brings that critique to the law of eminent domain—and specifically to its most neglected element, the just compensation requirement. Courts treat just compensation as a mechanical exercise: calculate fair market value, pay the title holder, and proceed. That complacency obscures deep normative questions. Reconsidering why compensation exists, who should receive it, and what form it should take reveals that fair market value serves none of compensation’s underlying purposes—deterrence, fairness, and legitimacy—when ecological values are at stake. The chapter’s central move is to reinterpret those purposes. Taking the purposes seriously extends compensation beyond title holders to neighbors, communities, future generations, and nature itself, and beyond cash to remedies such as habitat restoration. Most radically, I advocate for recasting just compensation as a threshold question: where a loss cannot be compensated because an old-growth forest, wetland, or carbon sink cannot be replaced, that impossibility should bar the taking rather than trigger an inadequate payment. Both grounding conceptions of eminent domain—inherent sovereign power and popular consent—support this move. As climate change and biodiversity loss raise the stakes of every condemnation, taking nature seriously as a subject of just compensation—rather than an externality to it—reframes a doctrine long assumed settled and opens expropriation law to ecological realities it can no longer afford to ignore.

Recommended!

To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.

Lawrence Solum

Conor Clarke (Washington University in St. Louis – School of Law) and Ari Glogower (Northwestern Pritzker School of Law) have posted The Indirect Taxes (Notre Dame Law Review, forthcoming) on SSRN.  Here is the abstract:

Article I of the Constitution empowers Congress to “lay and collect Taxes, Duties, Imposts and Excises.” It is arguably Congress’s most important power. A government’s first task is to fund itself, and the absence of an enforceable funding mechanism under the Articles of Confederation was a primary reason for the Constitution in the first place. Yet scholarly and judicial attention has focused mostly on the term “taxes” (and specifically what constitutes a “direct tax” that must be apportioned) while largely overlooking the three terms that follow—the duties, imposts, and excises that are collectively known as the “indirect taxes.”

While poorly understood, these indirect taxes are critical to determining the overall scope of the taxing power. The Supreme Court has always treated a tax as either direct or indirect, with nothing in between. Because apportioned direct taxes are generally considered unworkable, the scope of indirect taxation defines what Congress can realistically do—an issue the Court left conspicuously open in Moore v. United States.

This Article offers a comprehensive new account of the indirect taxes, grounded in evidence that has gone largely unexplored: the hundreds of late-eighteenth- and nineteenth-century statutes in which Congress expressly enacted and modified indirect taxes—laws far outnumbering the handful ever apportioned as direct taxes. We use that evidence to construct a positive account of what Congress did and can tax, rather than what it cannot.

The indirect tax practice reveals a wider understanding of the taxing power than has been appreciated. From the beginning (and without constitutional controversy), Congress used duties, imposts, and excises as malleable, overlapping tools, continually adapted to a changing economy. Innovations that might be treated as contested outliers or recent inventions—unapportioned taxes on property, income, and broad classes of business activity—in fact sit squarely within a long and continuous practice. This account undercuts the view that the taxing power should be cabined by formalistic distinctions between economically similar tax instruments and offers precedent for further evolution concerning the most pressing tax questions of today.

Highly Recommended!

To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.

Lawrence Solum

Keiichi Ito (Government of the United States of America – U.S. Attorney’s Office) has posted Reconstructing the Doctrine of Permitted Risk in the Age of Autonomous Driving: A Case for Shifting Liability to Public Authorities on SSRN.  Here is the abstract:

This paper argues that the German-originated doctrine of permitted risk (erlaubtes Risiko)—historically the theoretical basis for individualizing negligence liability in traffic accidents—contains a structural asymmetry: society has tolerated the existence of risk from motor vehicle use for the sake of its own benefit, while the burden of that risk’s realization has been assigned almost exclusively to individual drivers. This asymmetry, sustained by the practical convenience of fault-based liability and reinforced by psychological and sociological mechanisms of individualizing blame, becomes untenable once autonomous driving systems remove the driver’s judgment from the causal chain. The paper proposes reconstructing autonomous-driving accidents as an extra-statutory ground of justification, with liability shifting to the public authorities that approve and supervise the technology, funded through a manufacturer-contribution scheme modeled on nuclear damage compensation. It situates this proposal within existing scholarship on the distribution of risk in negligence theory and on the “vacancy of attribution” in autonomous-vehicle liability debates.

To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.

Lawrence Solum

Peter Agiri (University of Lagos) has posted LIEN, Language, and the Limits of Title: A Critical Analysis of Afrotec Technical Services (Nig) Ltd v MIA & Sons Ltd vis-à-vis Property-Passing Under the Sale of Goods Act on SSRN.  Here is the abstract:

Few decisions in Nigerian sale of goods law reveal the difficulty of determining when property passes as clearly as Afrotec Technical Services (Nig) Ltd v MIA & Sons Ltd. The decision sits at the intersection of two distinct incidents of an unpaid seller’s rights: the possessory lien and the reservation of the right of disposal. This paper revisits the Supreme Court’s reasoning under sections 16 to 19 of the Sale of Goods Act 1893, questioning the majority’s characterisation of the transaction as a conditional sale. It argues that the reasoning gives insufficient distinction to the operation of a possessory lien, which ordinarily terminates upon delivery, and a reservation of title, which concerns the passing of property itself. Considered alongside the comparative retention-of-title jurisprudence in Clough Mill Ltd v Martin and Re Bond Worth Ltd, the contractual clause relied upon in Afrotec appears ill-suited to sustain a genuine Romalpa-style reservation of title. The dissenting reasoning of Ayoola JSC, applying section 18, rule 1 to an unconditional credit sale of specific goods in a deliverable state, therefore offers a more coherent doctrinal account. The paper nevertheless suggests that the practical protection sought by the majority could have been reached through the narrower footing of section 48(4), which preserves the unpaid seller’s right of resale. Viewed against the subsequent Secured Transactions in Movable Assets Act 2017, Afrotec ultimately illustrates the difficulty of fitting contractual security over movable goods within a doctrinal framework built primarily around the passing of property.

To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.

Lawrence Solum