Legal Theory Blog

Benjamin C. Zipursky (Fordham University School of Law) has posted Pragmatic Conceptualism, Public Nuisance, and the American Opioid Litigation (Forthcoming in 83 Wash. & Lee L. Rev. __ (2026) (Draft of March 20, 2026)) on SSRN. Here is the abstract:

Public nuisance as a part of American tort law has been as high profile in the first decades of this century as products liability law was in the last several decades of the 20th century. The American opioid litigation over the past decades is a spectacular example, filling headlines and generating billions of dollars of settlements. There is a plausible argument, however, that the doctrinal core of the opioid litigation is meritless because there simply is no “interference with public right” as required by public nuisance law. The first aim of the article is to articulate and assess that argument. However, the article simultaneously operates at a theoretical level by depicting three different perspectives that judges may occupy: an internal, “pragmatic conceptualist” perspective that illuminates the law in terms of the concepts and principles that constitute it; an external perspective examining the impact of various possible changes in the law and the relative merits of such changes; and an intermediate perspective that combines the internal and external perspectives and yields guidance on the ultimate judicial resolution. After arguing that the plaintiffs’ claims in the opioids litigation are fundamentally unsound as a matter of public nuisance doctrine, the article asks the question of whether courts should mold the doctrine to reach a result that would allow plaintiffs to prevail. Utilizing the intermediate perspective, it concludes that courts should not do so. This is so even if there are strong reasons for thinking – from an external point of view — that the opioids defendants should indeed face liability for the public health crisis they played a role in spawning. While appellate courts crafting tort law do have a substantial amount of power to craft and recraft the law within their proper institutional role, that power does not extend to the creation of post-hoc regulatory schemes and the selective transfer of broad public health expenditures.

Highly recommended.

Thomas Schultz (King’s College London; University of Geneva) has posted Arbitration and the Commodification of Justice on SSRN. Here is the abstract:

This paper examines what happens when justice is commodified. Not privatised; commodified. Privatisation concerns where adjudication is located and how it is governed; commodification concerns the criteria through which justice is valued, evaluated, and justified. Arbitration offers a particularly clear example to observe a broader transformation in contemporary legal life: justice increasingly understood not as a public institutional practice, but as a service defined by performance, expertise, responsiveness, flexibility, and user satisfaction. Arbitration’s familiar virtues are not merely procedural advantages; they are also standards through which justice itself is revalued.

Dimitry V. Kochenov (CEU Democracy Institute, Budapest; CEU Department of Legal Studies, Vienna) & Jacquelyn D Veraldi (Central European University (CEU) – Democracy Institute) have posted Supremacy Rule of Law in the Service of a Depoliticised Democracy: Pondering the Nature of the EU’s ‘Social Contract’ (ELJ 2026 (forthcoming)) on SSRN. Here is the abstract:

Seeing the EU roughly as a political system designed to remove the most essential political decisions from democratic control, while in a large part abiding by legal frameworks, we could speak about an opposition between technocratic legalism and democracy. At best, the EU offers a democracy of means, with limited capacity to affect the ends of the project. Most recently, even this limited democracy came under attack through a further reduction of transparency, a proliferation of omnibus legislation and constant executive overreach. In its current emanation ‘integration through law’ aims to shield all aspects of governance not only from democratic, but also legal contestation. It thereby structurally prioritises ‘supremacy’, ‘direct effect’, ‘mutual trust’ and other procedural aspects of its own functioning over the essential foundations of justice, democratic citizenship based on equality and dignity, and human rights protection. We could thus also speak of ‘supremacy rule of law’, which might or might not be an attack on the essential aspects of legality and justice, removing the added value of the rule of law as such. Consequently, distilling the essence of the ‘social contract’ in Europe today, one arrives at a bundle of oxymorons: the EU’s supremacy rule of law is in the service of a ever fading depoliticised democracy of means.

Highly recommended.

Jonathan Crowe (University of Southern Queensland – School of Law and Justice) has posted The Point of Legal Philosophy on SSRN. Here is the abstract:

What is the point of legal philosophy? Many law students have posed this question, particularly while suffering through the indignities of a compulsory jurisprudence course. The point of this field of study may not be easy to grasp for those accustomed to studying the black letter law—with one eye, perhaps, fixed on a lucrative career in a commercial law firm. This chapter explores the question and proposes an answer. The answer I give, in brief, is that legal philosophy enables us to examine and better understand the point of law and, by extension, the point of being a lawyer. For those of us who engage with law in our studies, careers and lives—including law students, lawyers, legal academics, judges and others—these questions are also related to the broader issue of the point of life in general.

Recommended.

Kevin P. Lee (North Carolina Central University School of Law) has posted AI and the Rule of Law: The End of the Political on SSRN. Here is the abstract:

Western legal systems traditionally rest on a foundational claim: that the legal subject is a moral agent endowed with reason and capable of normative participation. Today, the emergence of the Agentic State, characterized by automated, algorithmic governance, threatens to revoke that claim. This Article argues that the prevailing scholarly framework for AI regulation is built upon a fundamental category error: it mistakes computational complexity for ontological agency. While some proponents of the Agentic State utilize the language of Complexity Theory, they do so to serve a cybernetic goal of systemic equilibrium, reducing the legal order to a series of “Sense-Plan-Act” loops and the citizen to a behavioral data point. Drawing on the phenomenological thought of Hannah Arendt and Giorgio Agamben, this Article diagnoses the architecture of this displacement, demonstrating how the Agentic State suppresses human action in favor of automated behavior. It contends that the Rule of Law is not a complicated machine to be optimized, but a Complex Adaptive System reliant on the emergent agency of its participants. To preserve the moral meaning of the person, the Article asserts a new constitutional necessity: Ontological Due Process. This substantive right ensures that individuals are judged by human categories (intent, reason, and narrative) rather than computational correlations, preserving the “Right to be Wrong” as a precondition for moral agency in the algorithmic age. TABLE OF CONTENTS INTRODUCTION .

Ethan Seidenberg (University of Michigan at Ann Arbor, College of Literature, Science & the Arts, Department of Philosophy, Students) has posted Rights-Based Tort Reform on SSRN. Here is the abstract:

Although “rights-based” tort theory has flourished as an academic subject over the past fifty years by offering a philosophical alternative to law and economics, the movement has little to show for itself beyond the halls of legal academia. Militating against the tort reforms of the late 20th century, philosophical tort theory has become an apologist for the status quo, even as tort law’s problems–torpid litigation, ubiquitous settlement, porous insurance–continue to pile up. This Article breaks from this orthodoxy by proposing a new cause for philosophical tort theorists: rights-based tort reform–modifications to our existing system that promote the very aims theorists ascribe to tort law. Against the prevailing assumption that reform is antithetical to philosophical tort theory, I argue that rights-based theories can and should embrace ambitious institutional innovation. To show just how far we can push rights-based reforms while remaining true to tort theory, I offer a novel philosophical account of the reform proposal theorists have most vehemently rejected: social insurance. Tort theorists have long argued that social insurance systems, which replace private causes of action with state-funded insurance payouts, are anathema to the aims of tort law, which concern interpersonal accountability. But this view rests on a mistake. I argue that tort law and social insurance relate to interpersonal accountability in two fundamentally different ways. Tort law facilitates accountability, a fact tort theorists readily acknowledge. Meanwhile, social insurance changes what counts as interpersonal accountability in the first place, a fact both tort and moral theorists have entirely overlooked. Understanding these two distinct roles enables us to consider a vast array of institutional arrangements that have previously gone unexamined, such as a “hybrid” social insurance and tort system. I argue that such a system bests tort law by theorists’ own lights by offering greater access to humane civil recourse. Thus, I conclude that theorists’ longstanding opposition to social insurance is unfounded, as is their more general resistance to reform. Pursuing rights-based tort reform can allow us to retain the valuable insights from philosophical tort theory while working to rectify tort’s greatest flaws in practice.

Henry Zhuhao Wang (Florida State University – College of Law) has posted Inference Rules Reconsidered (102 Indiana Law Journal __ (forthcoming 2027)) on SSRN. Here is the abstract:

Evidence law is built around gates of admissibility. Its core doctrines regulate what information may be heard, excluded, or conditionally admitted. But in modern adjudication—dominated by bench trials, administrative proceedings, and arbitration—the decisive work is rarely done at the gate. It is done in the reasoning that connects admitted evidence to findings of fact. This Article argues that contemporary evidence law is therefore conceptually incomplete: it possesses an elaborate law of admissibility, but no explicit law of inference.

Recovering a tradition largely obscured by the rise of jury-centered gatekeeping, the Article shows that legal systems have long regulated not only what evidence may be considered, but how it may justify belief. Modern doctrine continues to do so, though in a dispersed and untheorized way—through constitutional constraints on factfinding, presumptions and burdens of proof, expert methodology, and the negative architecture of exclusionary rules. The Federal Rules of Evidence, on this view, are best understood as a system of negative inference rules: they forbid particular inferential moves while presupposing, but almost never articulating, the standards that make other inferential paths legally acceptable.

The Article’s central contribution is to reconstruct those missing standards. It develops a unified framework of positive inference rules—mid-level principles that organize and discipline legal reasoning under uncertainty without mechanizing judgment—organized around four justificatory foundations: probabilistic reliability, institutional efficiency, constitutional and moral principles, and methodological guidance for complex proof. In doing so, it reorients evidence law from a regime of exclusion toward an articulated framework for reasoning from evidence to fact.

Ahesan Kabir (Institute of Social Welfare and Research, University of Dhaka; Supreme Court of Bangladesh) has posted The Institutional Authority of Law: Reconstructing Legal Positivism beyond Command and Coercion on SSRN. Here is the abstract:

Scholars of jurisprudence have, since its earliest stages, attempted to define what law is. Yet many of the definitions that have shaped our conceptual understanding were formulated under political conditions that are largely absent today, including hierarchical authority, coercive governance, and a focus on subjects rather than citizens. Bentham, for instance, sought to distinguish law from morality at the stage of legal analysis, while Austin portrayed law as a sequence of commands backed by sanctions. Although these formulations represented important intellectual achievements, they prove inadequate when applied to modern legal systems characterized by institutional continuity, dispersed powers, rightsbased structures, and administrative processes that extend beyond punishment. The purpose of revisiting positivist foundations in this article is not to dismiss other schools of thought, but to recognize that positivism alone treats law as an analytical problem whose nature must be understood before it can be evaluated, interpreted, or described sociologically. This approach should not be dismissed as mere reductionism. When examined more closely, it reveals that coercion-centered definitions obscure the concept of legal authority and blur the distinction between mere compliance and institutional legitimacy. The present article refines the positivist conception by proposing that law is an institutional order of authority created and maintained through specific political procedures. Although legal authority may be supported by coercion, it cannot be reduced to coercion. This definition situates the idea of law within the reality of modern institutions while preserving the positivist commitment to social fact and analytical rigor.

Jonathan Crowe (University of Southern Queensland – School of Law and Justice) has posted Pseudolaw, Folk Law and Natural Law: How to Tell the Difference on SSRN. Here is the abstract:

Pseudolaw presents false or distorted, but superficially plausible, claims about legal doctrine. It is a dangerous and costly social phenomenon, with the potential to undermine social cohesion and the rule of law. Pseudolaw is dangerous, in part, because it is easily confused with two other phenomena that play important and legitimate, albeit widely overlooked, roles in legal processes: folk law and natural law.

This chapter explicates the concepts of folk law and natural law, including their relationship to positive law and their place in legal decision-making. It distinguishes these concepts from pseudolaw, while also explaining why they tend to be conflated with it. I argue that folk law and natural law, properly understood, are crucial components of social cohesion and the rule of law; pseudolaw is harmful partly because it obscures and distorts the proper task of these notions in supplementing positive legal enactments.

Highly recommended.