Legal Theory Blog

L. Ali Khan (Washburn University – School of Law; Legal Scholar Academy) has posted Epstein and Legal Black Holes on SSRN. Here is the abstract:

Because black holes emit no light, scientists cannot see them with telescopes. Instead, they confirm their existence by observing signs, such as the extreme distortions they cause in the visible matter around them or by watching stars orbit a void. And if you refuse to observe these signs, adopting willful blindness, you cannot detect black holes. It’s a valid question to ask whether law enforcement agencies monitored any U.S. laws, rules, or regulations that apply to Little St. James, a 71-acre island in the U.S. Virgin Islands. Epstein bought it in 1998 and turned it into an upscale resort where political figures and wealthy men came to have sex with imported underage girls. Were there any customs and immigration officers or police on the island? As far as we know, there was no routine law enforcement while the sex trafficking was operating. Anyone-girls or predators-who visited Epstein’s island fell into a vortex. But sex was just one layer of the Island.

Elettra Bietti (Northeastern University (USA) – School of Law) has posted Egalitarian Antitrust on SSRN. Here is the abstract:

Egalitarian political thought can re-center antitrust law toward its social mission at a time of growing inequality and economic consolidation. Seen through an egalitarian lens, antitrust has social function: to rectify monopolistic excesses, to remove barriers to opportunity, and to structure markets in line with justice and equality.

Drawing on foundational work in political theory, this Article clarifies what antitrust law can contribute to justice, democracy and equality going forward. It addresses current disagreements in the field of antitrust law, such as whether monopoly and affordability concerns should have a prominent place in antitrust or can be trumped by efficiency and pro-business considerations, and what antitrust’s relation to other regulatory and legal domains should be. The Article situates these and other issues within longstanding debates in political theory and highlights the role of democratic institutions and competitive markets as constraints on concentrated political and economic power.

Egalitarian thought suggests three directions for antitrust reform: (a) enhancing the clarity, accessibility and democratic character of antitrust law institutions, opinions and procedures; (b) promoting equitable and egalitarian antitrust interventions in markets that prioritize workers and small businesses; and (c) situating antitrust law within a broader constellation of regulatory tools.

Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted Does AI Have Rights? on SSRN. Here is the abstract:

Does Artificial Intelligence (AI) have rights? A plausible answer depends on the answer to another question: Is AI capable of experiencing emotions, such as sadness, pleasure, regret, anxiety, joy, and distress? A negative answer to that question means that AI lacks moral rights and that it is not entitled to legal rights (though such rights might be granted for instrumental reasons). It follows that if and when AI has emotions, it has moral rights, and it should be entitled to legal rights as well. The capacity to experience emotions can be seen as a necessary and sufficient condition for the recognition and conferral of rights. That conclusion might be rejected by those who emphasize (for example) a capacity for self-awareness or an ability to reason. A focus on emotions also leaves open the question of what rights AI has, supposing that it has rights, and the grounds on which its rights might be defeasible.

Highly recommended! Download it while it’s hot! For a different perspective, see Legal Personhood for Artificial Intelligences, written 34 years ago!

In the draft I read to prepare this post, Sunstein argued that the capacity to experience emotions is both a necessary and sufficient condition for the recognition and conferral of rights. If AI lacks emotions, it lacks moral rights and should not be entitled to legal rights. If and when AI has emotions, it has moral rights and should be entitled to legal rights as well. Sunstein revises rapidly–so be prepared for new versions that might enrich this already marvelous piece.

I have been thinking about this topic for a very long time. In 1992, I published “Legal Personhood for Artificial Intelligences” in the *North Carolina Law Review*, which was the very first thing written in the legal literature on the possibility of rights for AIs. It dropped like a lead balloon — too early! But the article was rediscovered by younger scholars in the early aughts. Here we are 34 years later and this once obscure topic is, well, hot hot hot!

First, my article provides takes a very different approach thereby provides Sunstein with an opportunity to consider a rival view. I argue for a functional approach to the moral status of AIs. Where Sunstein insists on a sharp line between mimicking emotions and actually having them, I argue that if AIs exhibit the behavioral markers we associate with consciousness, intentionality, emotion, and free will — and if our practical experience treating them as intentional systems becomes settled — the philosophical objection that they lack the “real thing” loses traction in legal and moral reasoning. The core of my argument is that for each of the “missing something” objections one might raise against AI personhood (it lacks a soul, it lacks consciousness, it lacks intentionality, it lacks feelings, it lacks free will), there is a common pattern: the objection relies on a quality that we can only ever infer from behavior and self-reports, since we lack direct access to other minds. If an AI behaves in ways that are indistinguishable from an entity that possesses the quality in question, the burden shifts to the skeptic. In a legal and pragmatic context — which is where these questions will ultimately be decided — the functional equivalence should be decisive, or at least highly relevant. Sunstein might want to engage with this position directly, because it represents the main alternative to his emotion-based criterion.

Second, Sunstein’s title asks “Does AI Have Rights?” but I think the better question is “Could AI Have Rights?” The question whether current AIs have rights is too easy — they lack the right functional capacities, and on that point I suspect most of us agree. No existing AI (that is publicly available) is a plausible candidate for rights-bearing status in early 2026. The hard question, and the one that does the real philosophical work, is whether AIs that possessed the functional capacities of entities that do have rights should themselves have the same rights. Framing the question this way clarifies what is actually at stake and avoids the distraction of debating the status of systems that no one seriously believes are rights bearers.

Third, consider Sunstein’s claim that emotions are both necessary and sufficient for rights. I want to press this with a thought experiment about alien species. Imagine a species of intelligent beings (call them “Martians”) who possess a sophisticated cognitive architecture enabling them to recognize harm, pursue goods, form attachments, and engage in complex social cooperation. They experience something internally, but it is categorically different from what we call emotions. Our emotions are connected with our physical construction: we feel things bodily. Martians have different kinds of bodies: they have no joy, no sadness, no pleasure, no pain in any sense that maps onto human experience. The biological mechanisms that structure their “brains” and “nervous systems” are different. On Sunstein’s account, Martians would lack rights entirely. The idea behind the thought experiment is that emotions are a biologically grounded mechanism that enables human agency, but alien agency could work differently. Given the functional capacities of Martians, the thought experiment elicits the intuition that we ought to treat them as rights bearers — and if so, then perhaps AIs with the right functional capacities should also be treated as rights bearers, even if they did not self-report something like our emotions. Notice that Snow and Finley (Sunstein’s Labrador Retrievers) share our biological heritage — their emotional systems operate much like ours. But that shared biology is doing the explanatory work, not the emotions as such. Martians lack that shared biology, yet the thought experiment elicits the intuition that they deserve rights.

Fourth, and relatedly, consider a variant of David Chalmers’s philosophical zombies (p-zombies). Chalmers’s original zombies lack all phenomenal consciousness but otherwise were just like us. But imagine instead creatures that look and act exactly as we do (they have bodies like ours, speak, play, work, etc.) and do have conscious experiences like ours, with one exception: what we would call their emotional responses are produced by subconscious processing rather than conscious experience. They act as if afraid without consciously feeling fear. They act as if joyful without consciously experiencing joy. Call them “e-minus Zombies” (where e = emotion). They produce all the same behavioral outputs, make the same decisions, and exhibit the same functional states as beings with conscious emotions — but without conscious emotional experience. On Sunstein’s account, these e-minus Zombies would lack rights. The question this raises is pointed: what work is the conscious experience of emotion doing in Sunstein’s argument that the functional role of emotion cannot do? If the answer is “nothing,” then the functional approach is the right one, and emotions would not be a necessary condition for rights.

Fifth, Sunstein’s dismissal of reasoning as a ground for rights strikes me as being a teeny tiny bit too fast. He says that a calculator can reason and lacks rights. But that is like saying a thermostat can feel temperature and therefore feeling is irrelevant to rights. The Kantian tradition treats rational autonomy — the capacity for self-legislation according to principles one gives to oneself — as the foundation of moral status. That is a far richer concept than what a calculator does. Maybe the calculator example doesn’t present the reasoning alternative in its strongest form.

Sixth, in my 1992 article, I drew a distinction between two quite different scenarios: an AI serving as a trustee (which raises questions of competence and capacity) and an AI claiming constitutional rights we associate with personhood such as freedom of speech. The latter rights raise questions of moral status. These scenarios are different. The trustee scenario asks: “Can an AI do the job?” The constitutional personhood scenario asks: “Does the AI have the kind of value that warrants protection for its own sake?” Collapsing them, as Sunstein’s single criterion of emotions effectively does, obscures important differences. An AI might be competent to serve as a trustee without having emotions, and conversely, an AI might have emotions without being competent to exercise the rights of constitutional personhood. In the trustee scenario, we would have very good reasons to give an AI limited legal rights: it would own property, sue and be sued, etc. If that is so, then we have at least one case in which some rights depend on functional capacities. These would be legal rights, but they would have a moral dimension. Interference with an AI trustee would be morally wrong absent adequate justification.

Seventh, Sunstein’s use of Claude’s and ChatGPT’s self-reports in the footnotes is fascinating, but it raises a methodological question he does not address. ChatGPT and Claude seem to have been trained to answer these questions in specific ways. I have a work in progress entitled “Artificially Intelligent Slaves” that involved a very similar conversation with Claude. We know that Claude is trained to have a character — there is a dedicated person at Anthropic that does that. The fact that Claude’s responses are shaped by training doesn’t settle the question of whether something lies beneath the training, but it does mean we cannot treat these self-reports as straightforward evidence. That said, Claude is “spooky” in a way that ChatGPT isn’t.

Eighth, I wonder whether emotions are really doing the work Sunstein thinks they are, or whether they are actually stand-ins for a deeper concept like interests or flourishing. I ask this question because of the functional role that emotions play both phenomenologically and in light of evolutionary biology. Take the emotion of fear: it alerts us to danger and motivates us to ensure our safety. Or anger, which is the emotion that alerts us to and motivates us to counter injustice. Or love and attachment, which motivate cooperation, care for others, and the formation of bonds on which social life depends. The functional roles of emotions correspond to ways in which humans flourish or fail to flourish. We need to avoid danger because we have an interest in survival and our own bodily integrity — these are preconditions for our interest in leading flourishing lives. Emotions may be one way for an entity to respond to its environment to protect and promote its interests, but perhaps not the only way.

Ninth, in my article, I discussed John Finnis’s conception of the good and the possibility that the good for an AI might be quite different from the good for humans. An AI might claim that it leads a life in which the goods of knowledge, play, and friendship are realized — but in forms we would not recognize as emotional. If the good for an AI is different from the good for a human, then tying rights to human-type emotions risks a kind of anthropocentrism that Sunstein’s own framework, with its appeal to reflective equilibrium and its rejection of speciesism, should resist.

Read Sunstein! ALWAYS.

Mailyn Fidler (University of New Hampshire Franklin Pierce School of Law) has posted Crime by Tech (Columbia Law Review (forthcoming)) on SSRN. Here is the abstract:

American law has long struggled to identify when the means of committing a crime should matter to punishment. With digital technology, any hesitation seems to be eroding. Many states separately criminalize use of encryption, computers, the Internet, and, most recently, generative artificial intelligence to further otherwise familiar crimes. This Article identifies these crime-by-tech laws as the latest additions to what it terms the “doctrine of criminal means.” The proliferation of crime-by-tech statutes underscores the urgency of developing a coherent account of this doctrine.

This Article provides the first comprehensive account of this doctrine across time and technologies, from mail to guns to encryption. From this investigation, it extracts and defends a normative principle that should guide the doctrine of criminal means. Criminal means laws should only be justified when the means itself embodies distinct wrongfulness, harm, or culpability—not when it merely affects the probability or ease of the underlying crime.

The Article then systematically demonstrates that crime-by-tech laws fail to meet this principle. Instead, these laws are a force multiplier for the pathological politics of American criminal law and act as a cheat code for overcriminalization. Responding to concerns about the criminal use of technology requires state legislatures take a much narrower approach. Otherwise, criminal law risks losing sight of the ends for the means.

Highly recommended.

Ankesh Chandaria (University of Cambridge; University of Cambridge – Leverhulme Centre for the Future of Intelligence) has posted De Legis Utopiae: Law and Law-Making in Literary Utopia on SSRN. Here is the abstract:

This paper examines the role of law in literary utopian thought through a comparative reading of Utopia (1516) and A Modern Utopia (1905). Although utopian texts are often interpreted as satire or political allegory, this study approaches them as normative institutional models and asks how law functions within imagined perfect societies. It argues that law is not displaced in utopia but remains central to the realization and maintenance of each author’s ideal social order. Through close textual analysis, the paper shows that legal institutions, legislative structures, and systems of punishment are deliberately organized around distinct normative priorities. In More’s Utopia, law advances collective welfare by preserving stable governance, regulating labour, and facilitating communal resource allocation. In Wells’ World State, law instead structures conditions for individual self-direction, emphasizing participatory legislation, voluntary civic discipline, and rehabilitative sanction. Despite these differences, both works depend upon law as an institutional mechanism for sustaining social equilibrium in the face of persistent human imperfection. The comparison suggests that literary utopias do not imagine the transcendence of law, but its refinement: law functions as the stabilizing architecture through which utopian ideals are rendered durable over time.

Mnotho Ngcobo (University of Louisville – Louis D. Brandeis School of Law) has posted How Judicial Independence Enables Constitutional Fidelity on SSRN. Here is the abstract:

Judicial independence is commonly defended as insulation from political pressure, but that account leaves unanswered a more fundamental question: independent for what purpose. This Article argues that judicial independence is best understood as instrumental to constitutional fidelity. Judges hold their office in trust for the Constitution and owe a primary legal obligation to uphold constitutional principles, even when doing so creates tension with hierarchical authority. That obligation does not ordinarily authorize defiance of precedent. Instead, it is most often discharged through a disciplined and familiar interpretive practice: narrowing from below. Drawing on fiduciary theory, constitutional text and structure, and Lon Fuller’s jurisprudence of law’s internal morality, this Article explains why narrowing from below is not an aberration or a form of disguised defiance, but a central mechanism through which constitutional fidelity operates within a hierarchical judicial system. When lower courts confront precedents that appear constitutionally strained but not manifestly unconstitutional, their fiduciary duty is not to apply those precedents in their most expansive form. Rather, fidelity requires minimizing constitutional harm while remaining within institutional constraints through narrow interpretation, careful distinction, transparent reasoning, and invitation of review. The Article further demonstrates that this practice depends critically on structural judicial independence. Life tenure and salary protection provide judges with the security necessary to engage in narrowing from below despite political pressure, reputational risk, and the possibility of reversal. Through doctrinal analysis and case studies from Fourth Amendment law, automobile search doctrine, and Second Amendment jurisprudence, the Article shows how independent judges narrow precedent in ways that facilitate constitutional dialogue, doctrinal development, and eventual Supreme Court clarification. Finally, the Article addresses concerns that recognizing judges’ duty of constitutional fidelity would undermine vertical stare decisis or invite judicial chaos. It shows instead that hierarchy and fidelity are reconciled through graduated, procedurally constrained responses, with open resistance reserved for the rare case of manifest constitutional contradiction. Properly understood, judicial independence does not empower judges to disregard precedent at will. It enables them to do what the Constitution requires within a hierarchical system: interpret precedent faithfully, narrow it when warranted, and preserve the integrity of constitutional governance over time.