Legal Theory Blog

Frederic Perron-Welch (Leiden University) has posted Patents, Genetic Resources, and Traditional Knowledge: The WIPO Treaty and the Global Access and Benefit-Sharing Regime Complex on SSRN.  Here is the abstract:

The WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge (GRATK Treaty) represents a significant doctrinal development in international intellectual property law. It introduces a mandatory disclosure requirement obliging patent applicants to indicate the origin or source of genetic resources and associated traditional knowledge on which claimed inventions are based. This article situates the GRATK Treaty within the global access and benefit-sharing (ABS) regime complex, examining its interaction with the Convention on Biological Diversity and Nagoya Protocol. It argues that the Treaty constitutes a path-dependent yet normatively consequential response to the problem of biopiracy, strengthening procedural transparency within the patent system while maintaining coherence with existing international legal regimes. By analysing its disclosure, sanctions, mutual supportiveness and institutional provisions, the article demonstrates that the GRATK Treaty consolidates the benefit appropriation sub-regime despite not creating any new intellectual property rights. Although its effectiveness will depend on ratification and implementation by major patent jurisdictions, the Treaty marks an incremental but important step toward reconciling intellectual property governance with core elements of the global ABS regime.

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Lawrence Solum

William Baude (University of Chicago Law School) has posted The Jerome Hall Lecture: Beyond Tit-For-Tat on SSRN.  Here is the abstract:

Constitutional law is about setting the rules of the game, naturally posing the question of what incentive parties have to obey these rules over time and what they should do if the other side does not. The “tit-for-tat” strategy, popularized from various game theoretic accounts, provides a powerful story of how targeted retaliation can promote long-term rule-following. But, alas, as things stand today, there are multiple reasons to think that in constitutional law a tit-for-tat strategy will not work.

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Lawrence Solum

Josh Lerner (Harvard Business School), Namrata Narain (Harvard University), Dimitris Papanikolaou (Kellogg School of Management), Amit Seru (Stanford University), and Zunda Winston Xu (Stanford Graduate School of Business) have posted Chinese Sputnik Moments? on SSRN.  Here is the abstract:

China’s technological progress in recent decades has been viewed with admiration, alarm, and (in some cases) doubt. To better understand the Chinese innovation ecosystem, we compile a dataset of almost 14 million domestic Chinese patent publications. We focus on the subset of critical technologies identified by the U.S. Department of Defense. Several surprising patterns emerge from the data: Chinese patenting is strongly associated with other measures of innovative progress; patents are not concentrated in corporate giants such as Huawei; universities have played a key role in innovation, much greater than state-owned enterprises or government-owned facilities; and fewer than one in ten Chinese critical technology patents involves an inventor with U.S. experience or training. Finally, using four text-based measures of patent quality, we show that the rise of Chinese patenting in critical technologies has not been associated with a decline in quality relative to the U.S. awards.

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Lawrence Solum

Joshua Braver (University of Wisconsin Law School) and Ilya Somin (George Mason University – Antonin Scalia Law School) have posted The State Constitutional Case Against Exclusionary Zoning on SSRN.  Here is the abstract:

Exclusionary zoning is the biggest cause of the housing crisis besetting many parts of the United States. This Article shows how state constitutions can be used to combat it through two complementary paths: litigation under existing constitutional provisions and constitutional amendment. It provides the first comprehensive account of state constitutional jurisprudence on exclusionary zoning across all fifty states. It finds that state courts have rarely imposed meaningful limits, but uses this body of law as a foundation for expanding constitutional protection.

Most state courts have interpreted their takings clauses in lockstep with federal doctrine, including the highly deferential Penn Central test. New York, Pennsylvania, and New Jersey have developed more aggressive approaches. But their equivocal results have led many scholars to conclude that courts have little useful role to play.

We reject that conclusion. We identify two effective and judicially administrable approaches grounded in state takings and due process doctrine. The Article also proposes state constitutional amendments that would require compensation for exclusionary zoning, categorically prohibit specified exclusionary practices, or adopt more limited reforms. Together, litigation and amendment offer a practical state constitutional strategy for addressing exclusionary zoning.

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Lawrence Solum

Joanne Gottesman (Rutgers Law School) has posted Immigration Federalism and the Promise of State Constitutions on SSRN.  Here is the abstract:

This Article explores state constitutions’ promises and pitfalls for immigrant rights advocacy. This is a particularly urgent endeavor, given the anti-immigrant measures of President Trump’s second term and a U.S. Supreme Court that is willing to reverse longstanding precedent. Even cases like Plyler v. Doe, with its guarantee of free public education to undocumented children, could be vulnerable. While U.S. Supreme Court opinions protecting immigrant rights are the gold standard because they apply nationwide, state courts and state constitutions provide critical alternative avenues for relief that should not be overlooked. This Article considers some state constitutional provisions that may help expand noncitizens’ rights and thwart anti-immigrant measures. It examines state constitutional provisions that have no analog in the federal Constitution in areas such as equal protection, public education, public welfare, and workers’ rights, as well as some criminal procedure provisions that are analogous to the federal Constitution. It concludes that advocates should embrace state constitutional arguments and look to provisions already embedded in state constitutions, even if they are not explicitly pro-immigrant, particularly since explicitly pro-immigrant constitutional amendments may not be politically or practically feasible in the short term. Challenging state anti-immigrant measures based only on violations of the U.S. Constitution is a missed opportunity for advocates. In addition, examining only the role of state and local statutes and regulations is a missed opportunity for scholars of immigration federalism because state constitutions also play an important part in the United States’ complex federalist system.

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Lawrence Solum

Oisin Suttle (Maynooth University) has posted Why a Large Language Model cannot Explain itself: Explanation, Justification and Artificial Intelligence in Judicial and Administrative Decision-making on SSRN.  Here is the abstract:

Judges and administrative decision-makers are expected to explain themselves, giving reasons for their decisions. While the emergence of large language models has prompted renewed interest in the use of AI tools in judicial and administrative settings, existing scholarship identifies the ‘black box’ nature of machine learning tools as impeding transparency and reason-giving. This paper considers the status of the reasoning generated by LLMs in the context of duties of judicial and administrative reason-giving and the problem of explainability. It explains how the move from predictive or discriminative to generative artificial intelligence reshapes the problem of explainability and the limited explanatory value of LLM reasoning. It argues that, notwithstanding the analogous problem of establishing the causal character of human justificatory reasoning, human-generated reasons can be distinguished from machine-generated reasons by their role in a practice of accountability. The fundamental architecture of LLMs precludes their participation in that practice. In consequence, LLMs are incapable of giving reasons in the sense required to support judicial and administrative decision-making.

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Lawrence Solum

Andrew Hammond (Indiana University Maurer School of Law) has posted Welfare Litigation, State Courts, and Social Citizenship on SSRN.  Here is the abstract:

For half a century, federal courts have stood at the center of welfare rights enforcement. That era is ending. The One Big Beautiful Bill Act’s historic cuts to Medicaid and SNAP will generate an avalanche of benefit terminations, work requirement sanctions, and overpayment actions from state agencies. And with a federal judiciary increasingly hostile to the private enforcement of public law, state courts will become not just a concurrent forum for welfare litigation, but an increasingly important one. Understanding how state courts have handled welfare litigation over the past three decades, then, is essential to anticipating what comes next. This Article is the first to offer a typology of state court review of welfare administration across the United States over the last thirty years. Cases decided since the 1996 Welfare Reform Act reveal three distinct categories of litigation—challenges to agency decisions brought by claimants, overpayment actions brought by states, and reimbursement disputes brought by providers—each with different doctrinal patterns and access-to-justice concerns. The resulting picture challenges two scholarly understandings: the federal courts as the premier fora for civil rights, and state courts as mere sites of routinized dispute processing. State courts regularly adjudicate public benefit controversies, often involving unrepresented claimants, and have developed distinctive approaches to reviewing agency action. organizational infrastructure capable of transforming individual grievances into systemic challenges. The welfare rights tradition need not end, but it must find a new home.

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Lawrence Solum

Anik Bhaduri (University of Oxford) and Anupriya Dhonchak (Faculty of Law, University of Oxford) have posted Antitrust as Antidiscrimination: Competition Law Remedies Against Gender Wage Discrimination on SSRN.  Here is the abstract:

In recent years, competition authorities across the world have departed from their historical reluctance to engage with labour markets and are increasingly focusing on limiting the ability of employers to exploit workers in their pursuit of profits. While the ongoing debates on the application of competition law to labour markets have largely concentrated on the ability of employers to suppress wages and impose onerous terms on workers either unilaterally or through concerted action, the potential of monopsonistic employers to engage in wage discrimination among different categories of employees has received little academic attention. Building on the extensive economic literature on gender wage disparity and monopsonistic discrimination, this article demonstrates how employers enjoying market power are able to exploit socio-economic constraints on women’s labour mobility to remunerate them less than male counterparts. It argues that such monopsonistic wage discrimination constitutes a violation of EU competition law, and as such, competition law should complement constitutional guarantees and labour legislation as part of a broader regulatory framework to promote gender wage equality.

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Lawrence Solum

Luca Di Gennaro Splendore (University of Malta, Faculty of Banking and Finance) and Sevastian Sanchez (Columbia University, School of International & Public Affairs) have posted Untangling the Relationship Between Democracy, Data, and Development: A Dynamic Two-Stage Analysis of the Sustainable Development Goals on SSRN.  Here is the abstract:

As democratic institutions weaken globally, this paper investigates whether year-to-year fluctuations in democracy levels correspond to similar deviations in statistical capacity—a country’s ability to produce reliable statistics for policymaking. Utilizing a dynamic two-stage mediation framework, we further examine how these democratic fluctuations relate to country-level progress toward the UN Sustainable Development Goals. While previous research has uncovered correlations between democracy and statistical performance, democracy and sustainable development, and statistical capacity and development, the causal mechanisms and temporal dynamics of these relationships remain underexplored. We employ panel two-way fixed-effects and first-difference techniques with temporal lags to analyze within-country changes in democracy, statistical capacity, and SDG performance across 155 countries from 2016 to 2023. This research contributes to the understanding of the democracy-data-development nexus and could help inform policy interventions aimed at preserving statistical capacity and integrity during periods of political uncertainty.

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Sergio J. Campos (Boston College Law School) and Andrew Bradt (University of California, Berkeley) have posted The Ordinary and Extraordinary in Mass Tort Litigation (Cornell Law Review, Vol. 110, pp. 1823-1854) on SSRN.  Here is the abstract:

Mass torts have inspired a number of innovative procedural approaches. They include creative uses of class actions, multidistrict litigation (“MDL”) and, more recently, the bankruptcy system. These procedural innovations have been challenged as a “revolution” that departs from “traditional litigation goals,” particularly our “deep-rooted tradition” of one having their “day in court.” In this Essay, we question just how “traditional” or “deep-rooted” these goals are. While mass torts do indeed raise challenging issues of due process and federalism, we show that these issues are neither new nor do they depart from a “deep-rooted tradition,” at least not one that isn’t often honored only in the breach. Instead, we suggest that history reveals an alternative “tradition,” one that we argue is much more normatively appealing, sensitive to the interests of the parties, and accommodating of practical procedural efforts to resolve nationwide and dispersed disputes.

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Lawrence Solum