Legal Theory Blog

Sergio J. Campos (Boston College Law School) has posted An Alternative to Iqbal: A Commitment Not to Settle (California Law Review, Vol. 114, pp. 1057-1075) on SSRN.  Here is the abstract:

This Essay was prepared for a symposium to recognize the fifteenth anniversary of Ashcroft v. Iqbal. It examines the plausibility standard developed in Iqbal and first articulated in Bell Atlantic Corp. v. Twombly, specifically its objective of discouraging nuisance or in terrorem lawsuits. This Essay explores methods other than heightened pleading to address the problem of nuisance suits and makes the case for one alternative: defendants committing not to settle.

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Lawrence Solum

Enrico Bonadio (City University London, The City Law School) and Gursharan Kaur (St. George’s University of London) have posted Video Game Modding between Discretionary Enforcement, Copyright Control and Co-Creation (in Despoina Farmaki & Leonid Shmatenko (eds.), The Global Guide to Esports Law (Hart forthcoming 2027)) on SSRN.  Here is the abstract:

The modern video gaming industry is a multi-billion-dollar powerhouse globally. Yet, such success also thrives on a paradox: publishers often reap the rewards of community-made mods while keeping them in a legal grey zone, forcing modders to build on ‘borrowed land’. This chapter explores the tension between the community-driven creativity that is an extension of existing product lifecycles and the legal copyright framework that favours publisher control. Through an analysis of industry giants and targeted case studies, we make the point that the boundary between copyright infringement and follow-on creativity is frequently drawn by a publisher’s perceived “bottom line”. The chapter further evaluates the legal frameworks governing modding in the US and EU, with a focus on End User License Agreements as a primary mechanism of controlling the market where modders continue to operate in a state of “tolerated infringement”, as highlighted by the existing literature. The chapter concludes by exploring scholarly proposals and seeking a way to reconcile the proprietary rights of videogame publishers with the cultural and economic necessity of user-led innovation.

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Nicola Lucchi (Universitat Pompeu Fabra – Department of Law) has posted The Invisible Author: Generative AI and the Auditability Gap on SSRN.  Here is the abstract:

Without verifiable attribution, copyright operates on a presumption it cannot test. The evidence needed to trace protected expression back to human creative choices is held inside developer infrastructure and systematically withheld from courts, editors, and rightsholders, creating an auditability gap that converts current access arrangements into structural legal protection for AI developers. This comment reframes AI-assisted authorship as an auditability problem in human-AI workflows, distinguishing three evidentiary levels, output, interaction and model-side, and showing that existing instruments including detection tools, disclosure requirements, content provenance standards and AI transparency rules all intervene at the evidential level that the gap forecloses. It then examines how frictionless interaction design produces a cognitive delegation loop that erodes authors’ own capacity to reconstruct their contribution. The paper identifies four requirements for judgment-preserving interaction logs, tamper-evidence, privacy-bounding, signal-to-noise handling and semantic grounding, as open research problems, and asks whether auditability and performance can be treated as compatible design objectives in future generative systems.

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Constance Van Kley (University of Montana Alexander Blewett III School of Law) has posted Legislative Privilege and Partisan Gerrymandering in the States (Kansas Law Review, Vol. 74, pp. 561-609) on SSRN.  Here is the abstract:

After Rucho closed the door on federal review of partisan gerrymandering, state courts became the exclusive forum for challenges to partisan gerrymanders. Most state courts to consider the question have found such claims justiciable, generally requiring plaintiffs to prove that the map’s drafters acted with discriminatory partisan intent. This Article identifies an obstacle facing these plaintiffs: at the same time state courts have been recognizing gerrymandering claims, most have also extended legislators an absolute or near-absolute evidentiary privilege under state Speech or Debate Clauses or separation-of-powers principles, shielding the very communications and deliberations that would supply direct evidence of discriminatory intent. Surveying legislative-privilege rulings from redistricting and related litigation across more than a dozen states, the Article shows that this combination — an intent requirement paired with an unyielding privilege — can render state constitutional protections against partisan gerrymandering effectively unenforceable, regardless of how favorably a court rules on justiciability. The Article traces the reasons for this problem in turn: the post-Rucho wave of state gerrymandering litigation and the divergent paths state courts have taken on justiciability; the historical origins of legislative privilege and its modern application to state legislators; and the range of approaches state courts have taken to the scope and waivability of that privilege in redistricting cases, from Virginia and Maryland’s essentially absolute protections to more limited versions applied in New Mexico and Florida. It also catalogues the different textual sources state constitutions use to constrain gerrymandering — dedicated anti-gerrymandering clauses, independent redistricting commissions, neutral districting criteria, and general voting-rights or equal-protection guarantees — and shows how courts’ interpretation of these provisions interacts with, and is often undermined by, their privilege doctrine. The Article concludes with two linked prescriptions for state courts. First, where a state constitution expressly targets legislative purpose or intent in prohibiting partisan gerrymandering, courts should recognize at most a qualified legislative privilege that yields when necessary to vindicate that guarantee, rather than importing the absolute privilege federal courts apply to Congress. Second, where state constitutional text does not clearly demand proof of intent, courts should resist reflexively importing an intent requirement from federal equal protection doctrine and should instead consider effects- or proportionality-based standards — an approach modeled on Alaska’s — that are less vulnerable to being neutralized by assertions of legislative privilege. Together, these recommendations aim to ensure that state constitutional guarantees against partisan gerrymandering are enforceable in practice.

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Jeremy Christiansen (Regent University School of Law) has posted Natural Law, Unjust Laws, and Judicial Recusal: A Response to the “Natural Law” Originalists (Notre Dame Journal of Law, Ethics & Public Policy, Vol. 41) on SSRN.  Here is the abstract:

America is experiencing a revival of the classical legal tradition. Although this “natural law moment” has made considerable ground within the conservative movement as of late, it faces resistance from established conservative ideological hegemony in the form of certain predominant strands of textualism and originalism. One point of contention between these camps is the case of the conflict between positive law and natural law: what is a judge to do when faced with a statute that violates natural law? Some scholars that we might call “natural law originalists”—those with an existing commitment to textualism and originalism who seek to invoke classical natural law to justify these theories—contend that when there is a true conflict between natural and positive law, natural law requires the judge to recuse from the case or resign from office, because declaring that an unjust statute is void or ignoring it is impermissible itself as a matter of natural law, amounting to judicial usurpation. This Article provides the first critique of the natural law originalist position from the classical perspective, arguing that the “recusal” theory of natural law originalists represents a substantial deviation from the classical view, is a convenient means of justifying continued adherence to originalism under the veil of natural law thinking, and turns out to be terribly unworkable.

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Cass R. Sunstein (Harvard Law School) has posted Hayekian Liberalism vs. Conservatism on SSRN.  Here is the abstract:

Friedrich Hayek is a hero and an inspiration to conservatives all over the world, but in one of his sharpest essays, he explained why he is not a conservative. He urged that while conservatives seek to impose a salutary brake on change, they do not tell us where to go. He argued that conservatives do not sufficiently respect freedom and that they are far too willing to override it. He believed that conservatives do not make enough space for pluralism. He claimed that they are wrongly opposed to novelty as such and fall prey to “obscurantism,” particularly in rejecting science. He vigorously objected to conservative nationalism and saw it as a precursor to collectivism. Although he agreed with conservatives on many things, including the importance of traditions and incremental change, he insisted that they have something in common with socialists, and that liberals of his distinctive kind offer a different and better path.

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Bryna Godar (University of Wisconsin Law School) has posted Property, State Power, and the Unfolding Federalism Fight on SSRN.  Here is the abstract:

Over the past year, property law has emerged as a central site of state and local pushback on federal action. From zoning to trespass to nuisance, states and localities are flexing their long-held, “quintessential” power over property to oppose the expansion of ICE detention facilities and block federal officers from using state and local property. The federal government and its contractors are pushing back in turn, filing lawsuits seeking wide-reaching exemptions from state and local regulations.

These disputes are exposing the cracks in existing federalism doctrines, underscoring the ways in which they are poorly equipped to handle the shift from cooperation to heightened antagonism in federal-state relations. In particular, the federal government and its contractors are seeking to exploit the ambiguities of intergovernmental immunity, pushing to broaden the already confused doctrine in ways that would upend core federalism and separation of powers principles.

This Article maps these disputes, laying out the property-based tools states and localities are using to push back on federal conduct and analyzing how these efforts intersect with existing federalism doctrine and theories. Given the minimal attention intergovernmental immunity has received in legal scholarship and case law—and its central role in ongoing litigation—this Article pays particular attention to this doctrine, examining its origins, limits, and exploitation. The Article argues that courts should resist the Trump Administration’s efforts to further expand the doctrine, instead allowing states to serve as one of the few remaining checks on federal executive overreach.

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Christoph Engel, Yoan Hermstrüwer, and Johannes Kruse (all Max Planck Institute for Behavioral Economics) have posted Can doctrine harness silicon law clerks? on SSRN.  Here is the abstract:

Large language models have arrived in the court room: not as decision-makers, but as decision-aids. Realistically, the human judge in the loop can only do so much. What can be done to prevent the AI clerk from surreptitiously introducing ideological bias, and from being manipulated by the parties? We investigate experimentally whether an institutional constraint that has a guiding effect on human judges also helps to discipline silicon law clerks. Specifically we study how strongly the obligation to reason in terms of established legal doctrine constrains AI outputs, on two channels: by directing attention to relevant precedents, and by imposing structure on the reasoning process. Six treatments are designed to isolate and reinforce these two channels through which legal doctrine operates. We emulate similarity-based reasoning with a Vector RAG and structural reasoning with a Graph RAG, and combine both interventions. We test seven LLMs, comparing both outcomes and a rich set of metrics for the quality of legal reasoning, using decisions by the European Court of Human Rights as ground truth. Even without RAG, frontier models produce impressive outputs. But RAG interventions align outcomes and explicit reasons significantly and substantially more with the human benchmarks.

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Stephen J. Choi (New York University School of Law) and Mitu Gulati (University of Virginia School of Law) have posted The Last Casebook Hero on SSRN.  Here is the abstract:

Every generation of law students learns the law from a handful of judicial heroes: Cardozo, Hand, Traynor, and, for the last four decades, Posner and Easterbrook. We ask who is next in line. Cross-referencing the 148 active judges of the U.S. courts of appeals against fifty-one current casebooks spanning thirty-four subjects, we find . . . nobody. The teaching canon of the mid-2020s is dominated by the same two Reagan appointees who dominated it a quarter century ago—one retired since 2017, the other turning seventy-eight this year. The cohorts appointed over the last twenty years, by presidents of both parties, barely register. We document the collapse, work through the innocent explanations (mostly reject them), and end with a less comforting one. The tournament that today’s ambitious judges are playing no longer rewards writing for the casebooks. Nobody is asking for judicial heroes anymore.

Spoiler alert: Posner and Easterbrook!

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Morten Kinander (BI Norwegian Business School) has posted Cyclopes on the Bench: Courts, Climate Litigation, and the Structural Limits of Adjudication on SSRN.  Here is the abstract:

Climate litigation is transforming human rights from shields against state power into swords compelling state action. Courts across Europe, in Urgenda, Neubauer, and KlimaSeniorinnen, have ordered governments to intensify climate policy, treating inadequate emissions reductions as violations of fundamental rights. The pattern has since reached the apex of international adjudication, in the International Court of Justice’s 2025 advisory opinion on the climate obligations of states. This paper argues that the transformation exposes a deep structural mismatch between the institutional design of courts and what climate adjudication demands of them. The argument proceeds along six axes. These are the negative-to-positive rights transformation, Fuller’s polycentricity, Ely’s representation-reinforcement theory, Waldron’s legitimacy argument under moral disagreement, the distinction between epistemic and political authority in relation to climate science, and the tradition of judicial restraint from Bickel through Carolene Products to the Norwegian Kløfta decision. Two moves distinguish the analysis from a catalogue of familiar objections. The first diagnoses a category collapse, in which courts invoke the rights that attract the most searching review to compel outcomes in the domain that demands the most deference. The second reframes the contested claims as questions about the distribution of goods rather than the vindication of rights. Before any of these structural objections can be pressed, however, a prior doctrinal question must be addressed. Articles 2 and 8 ECHR are open-ended provisions whose extension to climate obligations is itself a legal-political choice that does not follow from the legal materials. The paper also presses the leading defences of climate adjudication and finds the strongest of them outcome-dependent, justified only by assuming the cause is right, so that the same reasoning would license courts to override democratic majorities for ends far less benign. Juridification of climate policy thus risks undermining both democratic legitimacy and judicial authority itself.

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Lawrence Solum