Legal Theory Blog

Fabian Cardenas (Pontifical Xaverian University) and Andres Felipe Amaya have posted Reclaiming Common but Differentiated Responsibilities Principle: A Southern Critique of Environmental Action on SSRN.  Here is the abstract:

This article approaches the CBDR principle as the cornerstone of the Global South’s current status in international law. In a differentiated world where neoimperialism and neo-colonialism remain, the CBDR principle constitutes one of the most powerful argumentative means through which the South can still uphold its own needs. This paper invites the Global South to direct its international legal efforts to promote the consolidation of the CBDR principle as customary international law; bindingness still provides strength in a transitioning legal world. To that end, it is firstly proposed how international law can be appropriated and how it has been appropriated by the North, which essentially projects the idea that mainstream international law tends to be the expression of the North’s agendas despite the euphemisms of universalism. In that vein, and after presenting the rise, fall, and rise of the CBDR principle, it is advocated that the CBDR principle can be reappropriated by those to whom it belongs. It is finally concluded that an argumentative campaign for the consolidation of the CBDR principle as customary law should start in the South and be spread throughout the world.

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Lawrence Solum

Alejandro Salinas (Stanford Law School; Stanford University) et al., Law Professors Prefer AI Over Peer Answers on SSRN.  Here is the abstract:

Large language models (LLMs) are increasingly promoted as educational tutors, yet most evaluations focus on domains with a single ground truth. Many disciplines, however, hinge on judgment: reasoning, weighing ambiguity, and reaching defensible conclusions. Law provides a sharp test. We conducted a blinded evaluation of short-answer tutoring in contracts courses with sixteen U.S. law professors. Participants created 40 representative questions, wrote answers, and judged 2,918 anonymized comparisons between human and LLM responses. Professors rated LLMs far higher than their peers (average win rate = 75.33%), with models performing similarly to the best instructor. LLM responses were also rarely flagged as harmful (3.53% vs 12.06% for professors). Preferences for LLM answers were consistent across evaluators and reflected shared professional standards. Our evaluation can be reliably extended to additional models by employing a separate LLM as a judge, rendering expert agreement an effective, scalable method to evaluate AI tutors in judgment-rich domains.

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Edwin Hu (University of Virginia School of Law), Nadya Malenko (Boston College, Carroll School of Management), and Jonathon Zytnick (Georgetown University) have posted Other People’s Votes: The Law and Economics of Proxy Advice on SSRN.  Here is the abstract:

Proxy advisors play a central and controversial role in modern corporate governance. Institutional investors rely on advisory firms such as Institutional Shareholder Services and Glass Lewis to provide shareholder voting recommendations, research, and execution infrastructure across thousands of portfolio companies each year, enabling voting at scale. Critics argue that proxy advisors induce “robo-voting,” exercise excessive influence, operate with conflicts of interest, and dominate a concentrated market with limited accountability. In response, federal and state actors have launched an escalating series of investigations, executive actions, and novel statutory and regulatory regimes.

Many existing reform proposals misdiagnose the economic foundations of proxy advice and risk degrading voting quality or driving proxy advisors from the market altogether. Because institutional investors have limited attention budgets, weakening proxy advisory services would likely increase deference to corporate management rather than enhance shareholder oversight.

This Article offers an economic framework for evaluating proxy advice and the reforms proposed to regulate it. We develop a three-stage theory of shareholder voting in which investors (1) select proxy advisors, (2) specify customized voting policies ex ante, and (3) allocate scarce attention across proposals ex post. We complement this framework with empirical evidence on voting patterns that reassesses claims of “robo-voting” and advisor dominance. Together, our analysis situates proxy advice within the collective-action problem inherent in shareholder voting: investors bear the concentrated costs of informed voting while capturing only a fraction of its benefits. Building on this analysis, we propose a targeted reform agenda. First, we recommend requiring proxy advisors to provide “attention flags” identifying recommendations that involve material trade-offs, firm-specific context, or high-stakes decisions, thereby directing investor attention to where it is most valuable. Second, we propose strengthening fiduciary obligations governing proxy voting to ensure meaningful engagement where warranted. We also address firm-specific conflicts of interest and evaluate prominent regulatory approaches, including federal solicitation-based regulation and recent state legislation. Our regulatory framework improves the targeting of investor attention while preserving economies of scale, offering a more promising path forward.

Highly Recommended!

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Devon W. Carbado (University of California, Los Angeles (UCLA) – School of Law) has posted Can you be Black and Teach that?, New York University Law Review (forthcoming) on SSRN.  Here is the abstract:

Notwithstanding the broad literature on race and constitutional criminal procedure, scholars have rarely engaged the epistemological burdens Fourth Amendment law imposes on Black students and faculty. Those burdens derive from a fundamental and insufficiently acknowledged disjuncture: despite the rights-protecting language in the Fourth Amendment (in particular, its prohibition against “unreasonable searches and seizures”), Fourth Amendment law is, for Black people, a domain of existential violence. It is Fourth Amendment law that determines when and how the police may engage us in our homes, in our cars, at school, and on our streets—and it is Fourth Amendment law that produces and governs the anti-Black border between surveillance and death. This fraught and necrological feature of Fourth Amendment law sets the doctrinal terms on which Black students must learn, and Black faculty must teach, the law. In that regard, the violence Black people encounter in the context of engaging Fourth Amendment jurisprudence is against the very Black body they occupy. This Article describes that normalized epistemological environment. One might think of the account the Article provides as a pedagogy of the Black body, or more precisely, as an articulation of what the Black body can teach us about the racialized “field of pain and death” Fourth Amendment law produces. That field includes a constitutional archive that requires Black people to learn and teach law through our legally sanctioned disposability. Fourth Amendment law is thus not merely violent in its social effects; it is epistemologically violent—and legal pedagogy is one of the sites where that violence is reproduced.

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Matthew B. Lawrence (Emory University School of Law) has posted Antifragile “Administrative Law”: The Systemic Effects of Executive Lawbreaking on SSRN.  Here is the abstract:

Lawbreaking by executive branch actors can weaken democratic capacity by undermining the legitimacy of the administrative state, eroding the rule of law, driving expert civil servants from the workforce, shifting blame for legislative and executive inaction to the judiciary, and supporting a deconstructive attorney workforce skilled only in combatting agency action. From the perspective of longstanding movements that oppose democratic capacity, these systemic effects favor the use of lawbreaking as a deconstructive tool, a reason to err on the side of illegality while in power or even deliberately act without regard for law. In a word, the tendency of executive lawbreaking to weaken democratic capacity makes administrative law fragile; the more administrative laws are broken, the weaker the administrative state becomes.

It is possible to counteract the usefulness of lawbreaking as a deconstructive tool because lawbreaking by executive branch actors need not necessarily weaken democratic capacity. Executive lawbreaking can also strengthen democratic capacity by surfacing narratives about the benefits of administration, supporting a constructive attorney workforce, and facilitating constructive organizing. By harnessing the potential for executive lawbreaking to strengthen democratic capacity, institutional designers could make administrative law antifragile; the more administrative laws are broken, the stronger the administrative state becomes.

Those writing laws, crafting doctrines, or developing legal institutions with the goal of building durable democratic capacity must be realistic and work on the assumption that state power will be held, at one point or another, by those who would prefer to dismantle the administrative state. To build durable democratic capacity despite this inevitability, designers should avoid legal rules and institutions that enhance executive lawbreaking’s deconstructive effects. To that end, scholars and teachers hoping to build democratic capacity should avoid organizing scholarly inquiry and law school classes into trans-substantive, juris-centric fields like “administrative law” that create a deconstructive attorney workforce with the ability to identify and address the harms of state power but not to help devise and construct programs to secure its benefits in particular substantive domains. Instead, designers should embrace legal rules and institutions that lend antifragility to administrative law, including by expanding the availability of fee-shifting for non-profit entities under the Equal Access to Justice Act, integrating “administrative law” rules in substantively-focused courses rather than vice versa, leaning into the consideration of reliance interests in arbitrary and capricious review, and leveraging associational standing requirements that empower substantively engaged interest groups.

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Frank Pasquale (Cornell University – Law School; Cornell Tech) and Vanna Carter (Cornell Law School) have posted Agentizing Privacy Preferences Without Privatizing Data Protection Policy (Cornell Legal Studies Research Paper No. 26-08) on SSRN.  Here is the abstract:

This essay explores how consumers might exercise newly restored agency in a digital environment increasingly shaped by generative AI. Rather than expecting consumers to read privacy-related terms of service, policymakers should encourage the emergence of Automated Consumer Agents (“ACAs”) capable of interpreting privacy provisions and acting on behalf of users according to their stated preferences. These systems could automatically reject objectionable forms of data extraction, translating consumer values into actionable decisions in online transactions. Despite this promise, the rise of ACAs would also present new problems. Without supportive policy and legal frameworks, agentization of privacy preferences could itself reproduce or intensify existing asymmetries of power. Technology firms may develop biased or manipulative ACAs that steer consumers toward expansive data sharing while presenting themselves as neutral intermediaries. Moreover, individually rational bargains exchanging privacy for small conveniences or discounts may collectively dispossess consumers of the broader economic value generated by their data. Even if consumers are aided by powerful ACAs, privacy governance cannot be reduced to individualized market transactions. Regulatory interventions, including anti-retaliation protections and licensing or fiduciary obligations for ACAs, are necessary. ACAs are a potentially valuable but incomplete mechanism for advancing fairness in the contemporary data economy.

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William Marra (Harvard Law School), Litigation Finance Disclosure and the Federal Rules’ Generalism Principle, New York University Law Review (forthcoming 2026) on SSRN.  Here is the abstract:

The rise of non-recourse third-party litigation finance has generated significant debate about whether plaintiffs should have to disclose their funding. The leading forum for that question is the Advisory Committee on Civil Rules, which has debated for over a decade whether to amend the Federal Rules of Civil Procedure to mandate disclosure of non-recourse litigation funding agreements. Scholars and policymakers have debated the disclosure question at length, but they have focused on whether the disclosure of funding—and by extension, funding itself—is good or bad for civil justice.

This Essay raises a different, threshold question: whether the proposed disclosure rules would exceed the rulemaking authority that the Rules Enabling Act grants the Supreme Court and the Advisory Committee. Although scholars and advocates have overlooked this question, the Advisory Committee has repeatedly raised concerns that the proposed rules might violate the Act’s requirement that the Supreme Court and its committees enact only “procedural” rules without altering “substantive” rights.

This Essay argues that the proposed disclosure rules are improper subjects for federal rulemaking because they depart from the generalism principle underlying the Federal Rules. That principle provides that the Federal Rules should apply equally to all cases, without discriminating among causes of action, between forms of relief, or between plaintiffs and defendants. This principle derives from the Rules Enabling Act and cabins unelected judges’ rulemaking powers, limiting their ability to make substantive value judgments or exercise lawmaking powers reserved for the political branches.

The proposed disclosure rules violate the generalism principle because they are not general rules requiring the disclosure of all forms of third-party funding. Litigants routinely raise money from third parties to fund litigation. Third parties finance litigation through the contingent fee, debt capital, equity infusions, impact funding, and insurance subrogation, to name just a few forms of third-party funding. The proposed disclosure rules—drafted by interested lobbying groups like the U.S. Chamber of Commerce—are surgically crafted to require disclosure of only a small subset of third-party funding: the non-recourse kind used by plaintiffs rather than defendants, in cases seeking money damages rather than injunctive relief, and more likely used by small businesses and impecunious litigants rather than large corporations.

If the Court and the Advisory Committee wish to enact a third-party funding disclosure rule, they should enact a blanket rule requiring the disclosure of all forms of third-party funding. But the proposed disclosure rules would pick favorites among litigants and causes of action, making precisely the sorts of substantive policy distinctions that should be made, if at all, by the political branches.

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Gareth T. Davies (VU University Amsterdam, Faculty of Law) has posted Is it possible to be a conservative state in the European Union? on SSRN.  Here is the abstract:

To be a citizen of a state is to be a member of a political community. Citizens together define that community and choose laws which express their shared values and identity. If those values and that identity are significantly different from those in the majority of Member States, does EU law allow them to be sustained and expressed in law? The Court of Justice has recently intervened strongly to protect the rights of gay and trans people in the EU. The basis for most of its judgments was not EU jurisdiction over these matters as such, but the need to ensure free movement, which is only realistically possible if people can obtain recognition of their families and identities. Outside of the cross-border situation, it says, Member States retain competence over marriage and gender status and other identitarian issues. Yet that is not really true; the threshold for engagement of EU law has become so low, and the way that it can be deployed to obtain rights has become so broad, that de facto Member States no longer have jurisdiction over these matters, and their societies are subject to the same sexual and family norms as the more socially progressive Member States. Thanks to the way the Court has interpreted the scope of EU law, and because it sees no space for value diversity within that scope, it is legally no longer possible to be a conservative state in the European Union.

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Anna Luisa Walter de Santana (Pontifical Catholic University of Parana) and Jorge Ernesto Roa-Roa (Universidad Externado de Colombia) have posted The Power of Advice: The Deliberative Turn of the Inter-American Court of Human Rights, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2026-07 on SSRN.  Here is the abstract:

The Inter-American Court of Human Rights is undergoing the most significant institutional transformation in fifty years. This chapter argues that the Inter-American Human Rights System has moved from a contentious, coercive paradigm to a deliberative one, in which the Court’s authority is measured less by judgments and more by the regional deliberation each advisory process awakens. Reconstructing the Court’s trajectory in three stages —a foundational advisory period, a contentious era that built the Ius Constitutionale Commune of Latin America (ICCAL), and the current advisory revolution— it shows that the most consequential regional standards of the last decade arrived not through individual victims, but through advisory opinions: gender identity, asylum, the (impossible) denunciation of the American Convention, labour rights, persons deprived of liberty and the climate emergency. Advisory Opinion OC-32/25 —the advisory opinion on the survival of the species— is the highest expression of this turn. The chapter also warns against an advisory era’s dangers —geopolitical instrumentalization and selective domestic reception— and defends a Court grounded in its passive virtues: rigour in admissibility, deference in dialogue and serious recognition of their binding force. From San José, the advisory revolution opens a horizon of legitimate hope when force seeks to replace law.

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Lawrence Solum