Legal Theory Blog

Abdul Aziz Meslat (International Criminal Court) has posted Recalibrating the Plenary Power Doctrine After Trump v. Hawaii, Thuraissigiam, and Loper Bright on SSRN.  Here is the abstract:

This Article reexamines the constitutional foundations and contemporary operation of the plenary power doctrine in U.S. immigration law. For more than a century, the doctrine has afforded Congress and the Executive substantial authority over the admission, exclusion, detention, and removal of noncitizens while limiting the judiciary’s role in reviewing immigration decisions. The Article asks whether that exceptional level of judicial deference remains constitutionally justified in light of modern separation-of-powers principles, equal protection norms, and the Supreme Court’s post-Chevron approach to statutory interpretation.

The Article traces the development of immigration exceptionalism from the Chinese Exclusion era through the modern administrative state. It demonstrates that the plenary power doctrine was not derived from an express constitutional provision but developed through judicial decisions that accorded the political branches broad authority over immigration. At the same time, the Court has repeatedly recognized constitutional and statutory limits on that authority, particularly in cases involving noncitizens within the United States, detention, due process, equal protection, and habeas corpus.

The Article then examines the significance of Trump v. Hawaii, Department of Homeland Security v. Thuraissigiam, Garland v. Gonzalez, and United States v. Texas. These decisions reveal that contemporary immigration law does not operate under either absolute judicial deference or ordinary unrestricted judicial review. Instead, the availability and intensity of review vary according to the nature of the governmental action, the individual’s legal and geographic status, the source of the challenged authority, and the procedural vehicle through which judicial review is sought.

Particular attention is given to Loper Bright Enterprises v. Raimondo and the Supreme Court’s rejection of Chevron deference. Loper Bright reaffirmed that courts, rather than administrative agencies, must exercise independent judgment in determining the meaning of federal statutes. The Article argues that this development has important implications for immigration law. Although Loper Bright does not itself abolish the plenary power doctrine, it weakens the justification for allowing immigration agencies to receive broad deference concerning questions of statutory meaning merely because those questions arise in the immigration context.

The Article also incorporates comparative perspectives from Canada, the United Kingdom, Germany, and South Africa to examine how constitutional democracies reconcile sovereign control over borders with meaningful judicial oversight. Drawing on these domestic and comparative developments, the Article proposes a calibrated framework for recalibrating rather than abolishing plenary power. Under this framework, courts should retain structural review to protect separation-of-powers principles and the Suspension Clause; apply meaningful rationality review, including scrutiny for impermissible animus, in appropriate entry and exclusion cases; and conduct full Administrative Procedure Act review of executive agency action, including arbitrary-and-capricious review without Chevron deference.

The Article’s central contribution is to bring together doctrinal developments that have frequently been examined separately. Trump v. Hawaii demonstrates the continuing force of immigration deference; Thuraissigiam illustrates the consequences of restricting the availability of judicial review; and Loper Bright reaffirms the judiciary’s independent responsibility to interpret federal law. Read together, these decisions provide a basis for distinguishing legitimate political-branch discretion from judicial abdication. The Article therefore argues that plenary power can survive as a limited recognition of congressional and executive authority over immigration while its most expansive forms of judicial deference are recalibrated. Such an approach would preserve legitimate governmental authority over borders and foreign affairs while restoring a meaningful judicial role in enforcing statutory boundaries, constitutional limitations, and individual rights.

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Lawrence Solum

Menesh S. Patel (University of California, Davis – School of Law) and Merritt B. Fox (Columbia University – Law School; European Corporate Governance Institute) have posted Common Ownership: Evidence, Mechanisms, and Policy Restraint (Research Handbook on Antitrust and Finance, Marco Corradi & Samuel Weinstein eds., forthcoming) on SSRN.  Here is the abstract:

The common ownership hypothesis—the claim that overlapping institutional shareholdings across rival firms dampen competition even absent any coordination or communication among common owners—has generated one of the most vigorous debates in modern antitrust. This chapter evaluates the hypothesis along two independent dimensions and concludes that, at current levels of common ownership, it is not plausible.

First, the chapter reviews the empirical literature. While initial empirical studies suggested a causal connection between common ownership and competitive harm, a substantial body of subsequent research has failed to find any causal link. The weight of the well-constructed empirical evidence does not support the hypothesis.

Second, and more fundamentally, the chapter examines whether any plausible mechanism could link common ownership to competitive harm in the absence of coordination or communication. A firm’s competitive decisions are made by its managers, not directly by its shareholders, and managers operate within a corporate governance structure that continues to discipline them toward own-firm profit maximization even where common ownership is present. The chapter evaluates the leading mechanisms proposed in the literature to reconcile common ownership with competitive harm and finds each unconvincing given how corporate governance actually operates.

These conclusions counsel policy restraint. Proposals to significantly curtail institutional investors’ diversified holdings or to mount widescale antitrust investigation of common ownership would not remedy any demonstrated competitive harm, while imposing real costs on the diversification benefits enjoyed by millions of investors. At the same time, the chapter’s conclusions do not support blanket immunity. In specific circumstances, common ownership has the potential to generate competitive harm. In those circumstances, the chapter’s corporate governance framework offers courts and enforcers a workable method for assessing whether common ownership is, in fact, distorting firms’ incentives to compete.

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Lawrence Solum

Anton Abramov has posted Invisible Inconsistency: Information Burdens in Administrative Review on SSRN.  Here is the abstract:

Administrative consistency review often assumes that the relevant administrative past is already available for comparison. That assumption becomes problematic when a claim depends on a pattern dispersed across nonprecedential decisions. A challenger may locate contrary outcomes yet lack the information needed to define the relevant comparison class or establish representativeness. This Article identifies threshold circularity: corpus-level information may be necessary to make the showing required before an agency must account for that information. It distinguishes the authority of a disposition from its comparability and representativeness, and reconstructs two neighboring evidentiary lines. Atlanta College and Pomona Valley require a response after an independently sufficient claimant showing; Canadian Commercial addresses production after an agency’s historical practice is already material. Neither supplies the earlier trigger examined here. The Article proposes a limited preliminary response when a corpus-dependent consistency concern has an objective basis, is properly before the agency, and has been pursued about as far as realistically available information permits. If material information remains inaccessible to the challenger but reasonably derivable from information maintained by the agency, the agency should not reject the concern solely for insufficient pattern evidence without accounting for that barrier. The ultimate burden of persuasion remains with the challenger. The proposal creates no general discovery right, presumption of inconsistency, prospective recordkeeping duty, or judicial authority to design agency information systems. An adequately explained inability to reconstruct practice may suffice. Mass adjudication serves as a stress test: scale matters when the informational demands of proof grow faster than usable access, not because large or automated systems are inherently suspect.

Recommended!

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Lawrence Solum

Christopher K. Odinet (Texas A&M University School of Law), Andrea Tosato (Southern Methodist University – Dedman School of Law), and Yesha Yadav (Vanderbilt University – Law School; European Corporate Governance Institute (ECGI)) have posted The Moneyness of Stablecoins (Yale Law Journal, forthcoming) on SSRN.  Here is the abstract:

Money is omnipresent. Yet defining its fundamental character proves surprisingly difficult. Functional descriptions tell us what money does, not what money is, and they certainly do not explain how something becomes money in the first place. These questions rarely surface in everyday commerce, but they become unavoidable when a new instrument emerges claiming to be money. Stablecoins present precisely this challenge: dollar-pegged digital assets projected to reach $4 trillion in issuance by 2030 and promising to transform the global payment system.

To determine how effectively stablecoins can serve as money, this Article develops an original framework for “moneyness,” a concept that captures the degree to which an instrument’s legal and institutional architecture enables it to perform monetary functions. To be sure, economists have long theorized moneyness by distilling the attributes that allow diverse assets to function as money within market economies. Financial regulation scholars have advanced this understanding by demonstrating that moneyness is fundamentally a legal phenomenon. They have shown that safety and information insensitivity that characterize reliable money can be achieved only through public law interventions, including deposit insurance, central bank liquidity facilities, prudential supervision, and resolution frameworks. We build on this work to identify a critical yet undertheorized dimension of moneyness: an instrument’s capacity to operate effectively within the domain of private law. The degree to which something functions as money, we argue, depends not only on public protections but also on the measure in which an instrument can ground an enforceable claim, settle obligations, and circulate freely among holders. To that end, we identify four constitutive elements of moneyness: the legal nature and substance of the claim, its safety, its discharge capacity, and its negotiability.

We begin our analysis by deconstructing the architecture of stablecoins, drawing on the contractual and regulatory frameworks of the two dominant issuers, Tether and Circle, to reveal a significant disconnect between the aspiration to create effective monetary instruments and the legal architecture underlying them. We then apply our framework to assess the moneyness of stablecoins before and after the enactment of the GENIUS Act, the first comprehensive federal stablecoin legislation. We observe that the Act brings genuine improvements yet fails to resolve critical deficiencies (and indeed, it introduces new ones).

Should policymakers seek to enhance the moneyness of stablecoins, we counsel for the adoption of five targeted reforms: Federal Reserve master account access for qualifying issuers, industry-funded insurance for claimholders, a secured interest regime to replace the Act’s flawed bankruptcy provisions, finality rules establishing when stablecoin transfers conclusively discharge obligations, and express tokenization of the stablecoin redemption right. Underlying these proposals is a broader insight: successful financial regulation demands careful attention to the private law foundations that structure the transactions and the claims it seeks to govern.

Highly Recommended!

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Lawrence Solum

Michel Rosenfeld (Yeshiva University – Benjamin N. Cardozo School of Law) has posted Constitutional Justice for Minority Religions in Liberal Secular Democracies on SSRN.  Here is the abstract:

Constitutional justice operates along three distinct dimensions of distributive justice: material redistribution; identity recognition; and democratic participation. Prior to the Enlightenment, minority religions, even if tolerated, were victims of many injustices given that the majority religion was officially endorsed and institutionalized throughout the realm under the principle of cujus regio eius religio. Liberal constitutional democracies originating in the age of the Enlightenment American and French revolutions, on the other hand, were grounded on a disentanglement between religion and the state under the ideal of institutional secularism (to be distinguished from ideological secularism). This ideal aims at separation between the state and religion as evinced by the Religion Clauses of the First Amendment. The two core requirements of institutional secularism are: accommodation of the greatest possible plurality of religions (and non-religious conceptions of the good) within the constitutional unit consistent with preservation of their peaceful coexistence within the polity; and, refraining from adopting laws or policies based on controverted metaphysical precepts embraced by some religions but rejected by proponents of other religions or by those committed to ideological secularism.

The ideal of institutional secularism has never come close to realization, but it has given rise to six different constitutional models capable of satisfying its two core requirements. These are: the militant secularist; the agnostic secularist; the confessional secularist; the official State religion with institutionalized tolerance for minority religions; the millet system; and the conflation one equating secularism with the majority religion. All these models produce identitarian based injustices to all religions subject to restraints within the constitutional order. Moreover, minority religions are likely to suffer greater injustices than majority ones. Pursuant to the hypothesis that the constitution is supposed to secure a minimum of justice, the “justice essentials” (leaving the rest to infra-constitutional dealings), the article examines the potentials and pitfalls of each of the six models. The article then proposes some categorical and some proportionality based criteria to better secure the justice essentials.

Recommended!

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Lawrence Solum

Eli Nachmany (Harvard Law School) has posted Deference Undisturbed (Notre Dame Law Review) on SSRN.  Here is the abstract:

The Supreme Court’s departure from Chevron deference threatened to upend the administrative state. To mitigate the consequences of its opinion in Loper Bright Enterprises v. Raimondo, the Court established that all existing decisions that relied on Chevron deference would get “statutory stare decisis.” That prevents the re-litigation—at least to some extent—of regulations that were previously upheld under Chevron. But attaching “statutory stare decisis” to these decisions makes little sense. These cases do not stand for “statutory precedents,” despite the Court’s characterization of them as such. A precedent that applied Chevron to uphold a regulation is not a statutory ruling—it is a determination about a regulation’s validity under the Administrative Procedure Act. To be sure, a loose form of statutory interpretation was a step along the path to that determination of validity. But a Chevron-deference-grounded decision is not a conclusion about a statute’s meaning. And the distinction between statutory stare decisis and regulatory stare decisis has important implications for agency flexibility to depart from regulations that have been upheld under Chevron in the past, notwithstanding the statutory stare decisis paragraph in Loper Bright. Going forward, agencies have the flexibility to depart from regulations that courts have upheld under Chevron. But an agency, at a later time, cannot reinstate the old regulation and claim stare decisis. This flexibility and these limits inhered in Chevron’s framework, and they remain after Loper Bright.

Highly Recommended!

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Lawrence Solum

Mark Graber (University of Maryland Francis King Carey School of Law) has posted A Constitutional Revolution? (SCOTUS 2026, Howard Schweber ed., Palgrave Macmillan, forthcoming) on SSRN.  Here is the abstract:

Americans are talking about a possible constitutional revolution. Many supporters of Donald Trump are hopeful that his two elections are bringing about relatively enduring fundamental changes in the constitutional order of the United States that will align public policy more consistently with eighteenth century principles. Critics of the Trump administration agree that Americans in the third decade of the twenty-first century are experiencing a constitutional revolution, although they believe recent constitutional developments undermine rather than restore fundamental principles. This chapter explores the history of constitutional revolution in the United States, the conditions of constitutional revolution, the extent to which Trump administration has met those conditions, and what Trump and his supporters must achieve in the future to claim fully the mantle of constitutional revolutionaries.

Recommended!

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Lawrence Solum

Anthony Kennelly (University of Limerick) has posted The Rule of Law Legacy of Sinn Féin Funds on SSRN.  Here is the abstract:

The High Court and Supreme Court decisions in Buckley v Attorney General (commonly known as ‘the Sinn Féin Funds case’), though celebrated ever since, are significant for an overlooked reason. Although the decision is celebrated for asserting the importance of the separation of powers, this article takes a broader view, arguing that in the early decades of the State’s history, a practice here described as ‘jurisdiction stripping’ presented a serious challenge to the rule of law. The article contends that, in defending the separation of powers, the High Court and Supreme Court decisions in Buckley v Attorney General overcame this challenge to the rule of law and deserve praise for this overlooked success.

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Lawrence Solum