Legal Theory Blog

Christopher Markou (University of Nottingham – School of Law) has posted Judged in Advance: Legal Outcome Prediction and the Temporal Structure of Adjudication (Law, Innovation and Technology, forthcoming) on SSRN.  Here is the abstract:

What happens when law learns to predict its own future? Systems forecasting judicial outcomes are typically assessed for accuracy and bias. This article argues the challenge is more fundamental: prediction reconfigures adjudication’s temporal structure, collapsing the distinction between anticipation and judgment on which law’s authority depends. Reconstructing that structure through Hart, Fuller, and Dworkin, it shows each presupposes a diachronic ordering in which conduct precedes judgment and legal meaning is fixed retrospectively through public reasons.

Legal outcome prediction inverts that order. Once forecasts circulate as actionable probabilities embedded in case selection, settlement, and strategy, they become operationally prior to judgment, and reason-giving gives way to expectation management. Recent scholarship embracing algorithmic adjudication as textualism’s endpoint confirms the trajectory rather than refuting it.

The stakes are constitutive, not regulatory: the erosion of temporal openness is an erosion of legal freedom—the space in which one acts first and is judged later.

Highly Recommended!

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Lawrence Solum

Rachel Leow (London School of Economics – Law School) has posted Agency in the Law: Definitions, Concepts, and Complications (Theory of Agency Relationships, Andrew Gold, Paul Miller & Deborah DeMott eds., forthcoming) on SSRN.  Here is the abstract:

What do we mean when we talk about agency? The answer depends on one’s discipline. Agency has different meanings and normative significance in law, morality, politics, economics, and other disciplines. It might be thought, as the brief for this conference suggested, that ‘For legal settings, such relationships have a widely accepted meaning.’, though ‘[b]eyond law, agency is more loosely defined’.

My aim in this chapter is three-fold. The first aim is to first complicate this relatively optimistic account of agency in the law. Agency in the law may have a more widely accepted meaning than in other fields, but it is not all that stable either. Existing definitions are insufficiently precise, and there are many problem cases that do not neatly fit the definitions. Having complicated the relatively optimistic account, the second aim of the paper is then to show how the idea of legal agency can be rescued. I argue that it is still possible to rescue agency and present a coherent and normatively attractive definition of agency in the law by focusing on what I call the agent’s ‘proxy power’.

The third aim of this chapter is a background one running through the entire chapter. It is to illuminate the distinctive approach and background assumptions of those working in the law, including judges, legal scholars, and practicing lawyers. I hope to explain and illuminate why those working in the law may adopt definitions of agency that may not be shared by those working in other disciplines. This is because in law, agency is a unique legal relationship distinct from other legal relationships, with its own legal incidents. To say, or conclude, that a relationship is one of agency is to say something important about the legal rights, duties, powers, and responsibilities both between the parties in the agency relationship as well as to others outside the agency relationship.

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Lawrence Solum

Jason G. Allen (Singapore Management University – Centre for Digital Law; CCAF) and Florian Gamper (Singapore Management University – Yong Pung How School of Law; Maastricht University – Faculty of Law) have posted Artificial Intelligence, Liability and Agency on SSRN.  Here is the abstract:

This paper examines how artificial intelligence (AI) technologies intersect with traditional legal frameworks governing liability, legal personality, and public law accountability. Rejecting proposals to grant AI systems legal personality as well as the simplistic view of AI as “mere tools,” the authors propose a four-part conceptual framework—artifactuality, affordance, agentivity, and attribution—to analyse machine behaviour without untethering responsibility from human control.

The authors argue that liability must ultimately attach to natural or legal persons, evaluating how features such as autonomy, opacity, and unpredictability impact both fault-based and strict liability regimes. Through a multi-dimensional matrix, they illustrate how varying degrees of transparency, supervision, and predictability dictate appropriate legal responses—ranging from conventional fault-based liability to strict liability and regulatory prohibitions.

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Benjamin Edwards (University of Nevada, William S. Boyd School of Law) and Carliss Chatman (Southern Methodist University – Dedman School of Law) have posted DExit for Dollars: A Response to Professor Bainbridge (Journal of Corporation Law) on SSRN.  Here is the abstract:

In DExit Drivers, Professor Stephen Bainbridge offers a careful assessment of Delaware’s corporate-law dominance and concludes that recent departures pose little serious threat to the First State. We agree with much of his analysis but write to refine and update it considering recent developments. Since the article went to print, several of the differentiators Bainbridge identified have shown new signs of erosion: Andreessen Horowitz has publicly left Delaware and urged others to follow; Delaware’s share of IPOs appears to have fallen from a historical mean near 87% to 61.8% in 2025; Texas has created a dedicated business court; and Nevada has launched dual-track reforms aimed at facilitating efficient adjudication of business cases.

Our principal contribution is expanding on the impact of Delaware’s franchise tax, methods to mitigate it and implications for capital formation. The recurring annual nature of Delaware’s franchise tax warrants additional attention. Because corporations are theoretically perpetual and the tax recurs every year, we believe it helps to think about it as something akin to a perpetuity. Framed this way, Delaware’s franchise tax may be a material recurring cost that can justify the expense and disruption of reincorporation for a sizeable group of public companies. To explore the issue, we consider two mitigation strategies—authorized-share reductions and outright DExit—and analyze how each interacts with capital-raising flexibility and stockholder voting dynamics and rules. We close by showing that corporations operating in Texas face a distinct calculus because Texas’s margin-based franchise tax cannot be avoided through reincorporation, Texas firms must weigh whether Delaware’s governance infrastructure offers some outstanding marginal benefit over what Texas offers to justify a domicile tax stacked atop an unavoidable activity-based one.

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R. George Wright (Indiana University Robert H. McKinney School of Law) has posted An Institutional Purpose-Driven Approach to the Student Speech Cases on SSRN.  Here is the abstract:

Optimally promoting the recognized and legitimate basic purposes of public schools should be central to resolving typical student speech cases. Importantly, the schools, elected school boards, and other relevant elected officials, as distinct from the courts, are typically in the best position to develop a sense, whether articulated or not, of the most valued educational purposes at a given public school, along with their tradeoffs under particular circumstances. The courts should, however, also account for the cases in which a school is evidently not reasonably seeking to promote its own professed basic purposes. Ultimately, though, whether a fully justified judicial focus on a school’s promoting its own basic purposes would increase or decrease the scope of student speech rights, overall, cannot be determined in the abstract.

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Lee Anne Fennell (University of Chicago – Law School) has posted Slices and Lumps: Division and Aggregation in Law and Life on SSRN.  Here is the abstract:

Human well-being depends on assembling useful lumps and carving out useful slices—from “lumpy goods” like bridges and highways that are valuable only when complete, to resources and assets that become more useful when artfully subdivided. As increasing urbanization and environmental threats raise the stakes for assembling resources and cooperation, emerging forms of unbundling, from jobs to cars to homes to entertainment, have refined the slices in which we produce and consume. Challenges of aggregation and division are ubiquitous, appearing not only in high-profile contexts like eminent domain and the sharing economy, but also in a wide range of collective action and personal decision settings, as well as throughout property, tort, criminal law, and regulatory policy. This book emphasizes configuration’s significance as a unifying concept and as a promising focus of public and private innovation. It examines the difficulties and opportunities that slicing and lumping present in multiple domains, including personal and public finance, work, consumer markets, housing, cities, and the many areas of law and policy that involve thresholds, cliffs, and bundles.

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Adeno Addis (Tulane University – Law School) has posted Law as a Process of Communication: Reisman Meets Habermas on SSRN.  Here is the abstract:

This chapter is a lightly revised version of a paper presented at a conference honoring W. Michael Reisman of Yale Law School. The chapter explores Reisman’s notion of law as a process of communication. It does so by comparing it with Jürgen Habermas’ discourse theory of law. In both Reisman’s theory of law as communication and Habermas’ discourse theory, law is viewed as a means of resolving (mediating) the tension between the world of social and political reality on the one hand and the normative world of legitimacy on the other hand. For Reisman, it is between control intention and authority signal and for Habermas it is between facticity and normativity.

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Lior Strahilevitz (University of Chicago Law School) has posted The Past, Present, and Future of Universal Opt-Out Mechanisms on SSRN.  Here is the abstract:

Suppose that a consumer has the legal right to opt out of receiving certain communications, being tracked across the Internet by advertisers, or having their personal data transferred from one company to another. Should the consumer be able to exercise a one-time universal opt-out that effectively binds all similarly situated companies with whom the consumer does business? Or must the consumer invoke their opt-out right repeatedly, communicating their preference to each potential transaction partner individually? This question arises in numerous different privacy contexts and elsewhere. In many instances, the answer to this procedural question of whether universal opt-out mechanisms are an option is substantively decisive because it is unreasonably burdensome for consumers to play opt-out Whac-a-Mole. Perhaps surprisingly, however, privacy law does not answer the question consistently across contexts, with the legal regime sometimes facilitating universal opt-outs (or universal opt-ins) and other times thwarting them. This article examines the privacy law contexts where universal opt-out rights do exist and those where they don’t presently exist but ought to. It identifies the factors that dictate when permitting universal opt-outs is appropriate and has been largely successful, explains why efforts to establish universal opt-out mechanisms have failed in seemingly promising contexts, analyzes the recent rise and successful implementation of private sector universal opt-out mechanisms, and points to instances where facilitating universal opt-outs and opt-ins may be an appropriate legal or market reform.

Highly Recommended!

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Anthony Sangiuliano (York University – Osgoode Hall Law School) has posted Fair Labelling and Social Justice Tort Theory (Journal of Tort Law, forthcoming) on SSRN.  Here is the abstract:

Modern scholarship on social justice tort theory has a predominately deconstructive orientation, critiquing how tort doctrines disadvantage marginalized groups or perpetuate social subordination. This article introduces a constructive theoretical method for deploying tort law as a tool for advancing social justice that invokes the principle of fair labelling, which informs the individuation and naming of criminal offences, but whose potential for creating new tort causes of action has been underappreciated. According to this method, even if a plaintiff might arguably be entitled to a remedy for commission of a private wrong that is partially captured by an existing cause of action that, if the specific way the wrong is committed also undermines a public or constitutional value, such as social equality, courts may recognize and distinctively name a new subspecies of cause of action to expressively vindicate that value. I argue that this method is extricable from two recent Supreme Court of Canada judgments concerning the creation of new torts. Its legitimacy is also supported by familiar features of tort law that serve an expressive or vindicatory function, namely, rights of action and damage awards.

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Aitor Sevillano Orbegozo (Aitor Sevillano – Legal Services) has posted The Mechanics of Opportunism: Hobbesian Anthropology and the Legal Economics of Efficient Breach on SSRN.  Here is the abstract:

The theory of efficient breach holds that a party to a contract may reasonably decide not to perform if the benefits of breaching, after paying expectation damages, exceed the benefits of performing. Law-and-economics scholars support this idea as a way to improve how resources get allocated. However, this article argues that the doctrine assumes a certain view of human behaviour. When compared to Thomas Hobbes’s ideas about agreements, self-interest, and coercion, efficient breach sees contract performance as a matter of calculation, not as a moral duty. This article looks at how efficient breach changes breach of contract from a moral wrong to a legal option with a price, and considers whether this alteration may weaken the trust and relationships which support long-term market cooperation.

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Lawrence Solum