Legal Theory Blog

All the theory that fits.

  • Carter on Universities and Free Speech

    William M. Carter, Jr. (University of Pittsburgh – School of Law) has posted Universities, Free Speech, and Tyranny on SSRN. Here is the abstract:

    The Trump Administration has relentlessly attacked freedom of speech. The First Amendment rights of university students, faculty, and staff have been especially targeted. In far too many cases, university leaders have not only failed to defend their constituents from these attacks: they have actively cooperated with the Administration in carrying them out.

    The systemic violation of civil rights and liberties throughout history has always required the participation of private persons and non-governmental institutions. As powerful as it is, the federal government cannot by itself suppress the free speech of the hundreds of millions of people in the United States. Only we can do that, either by engaging in self-censorship or by participating in the Administration’s anti-First Amendment crusade.

    As a former university administrator, the Author is aware that university leaders have found themselves confronted with a series of difficult, and often agonizing, choices in the Trump era. But by enlisting in the Trump Administration’s war on freedom of speech, they have chosen poorly. They have also acted unlawfully. This Article argues that university administrators can and should be held liable for their actions pursuant to federal civil rights statutes enacted in response to an earlier historical episode in which freedom of speech was sacrificed: namely, the brutal suppression of anti-slavery speech prior to the Civil War and the equally vicious suppression of speech advocating Black civil rights after emancipation.

    The Framers of the Nation’s Second Founding following the Civil War believed deeply in the freedom of speech and adopted constitutional provisions and civil rights statutes designed to protect it. This Article argues that two of those statutes, 42 U.S.C. Sections 1985 and 1986, are particularly well suited to addressing university administrators’ participation in the Trump Administration’s campaign to suppress freedom of speech in higher education. Section 1985 provides a federal civil cause of action against any persons, public or private, who conspire to violate federally-protected civil rights and liberties. Section 1986 imposes an affirmative duty on any person (public or private) who knows of such a conspiracy to take appropriate action to prevent it from being carried out. University administrators can be held liable under these statutes for agreeing among themselves or with Trump Administration officials to unlawfully restrict the speech of students, faculty, and staff as well as for failing to protect the targets of those attacks.

  • Krishnan on Immigration Advice and Legal Deserts

    Jayanth K. Krishnan (Indiana University Maurer School of Law) has posted Advice without Lawyers? Immigrants, Legal Deserts, and Reflections on Who Can Practice Law (William & Mary Law Review, Volume 68 (Forthcoming 2027)) on SSRN. Here is the abstract:

    Immigration law exposes the depth of America’s access-to-justice crisis. During periods of intensified enforcement, including the recent federal immigration operations in Minneapolis, noncitizens have been arrested at worksites and in residential neighborhoods. Families have been separated without warning, and removal proceedings have been initiated within days, sometimes within hours. Furthermore, for immigration cases, there is not a publicly funded right to counsel. Additionally, detention facilities can be overcrowded and filthy and lack basic medical care. Communication is also restricted, and detainees are often held far from family, lawyers, and community support. These conditions deepen fear and disorientation at moments when immigrants are most vulnerable.

    Unfortunately, as many immigrant-rights activists note, there are not sufficient numbers of immigration lawyers available, and representation rates remain persistently low. In many “legal desert” communities, there are effectively no lawyers at all. In this vacuum, nonlawyer community advocates often provide the only immediate assistance. Yet state unauthorized-practice-of-law (“UPL”) regimes have long treated such individualized assistance as illegal, penalizing the help most urgently needed during enforcement crises.

    In September 2025, the Second Circuit confronted the issue of nonlawyer services in Upsolve, Inc. v. James. Although New York’s UPL rules were recognized as restrictions on speech, prohibitions on nonlawyer services were upheld as content-neutral regulations subject to intermediate scrutiny. By contrast, other jurisdictions have directly authorized nonlawyer pilot programs for communities where lawyer-based assistance is functionally unavailable.

    This Article argues for a tiered “Justice Advocate” framework authorizing trained, supervised, and certified nonlawyers to provide narrowly defined legal assistance under robust ethical safeguards. When properly designed, such a scheme honors consumer-protection goals while expanding lawful assistance in legal deserts. Moreover, it better aligns First Amendment values with the rule-of-law promise for immigrants who are in desperate need, particularly given our current political moment.

  • Shahriari-Parsa on the Canadian Notwithstanding Clause and American Judicial Review

    Tascha Shahriari-Parsa has posted The Constrained Override: Canadian Lessons for American Judicial Review (137 Harv. L. Rev. 1725 (2024)) on SSRN. Here is the abstract:

    Since the turn of the century, the U.S. Supreme Court has claimed to have the last word on what the Constitution means. But in Canada, the “notwithstanding clause” allows legislatures to override judicial interpretations of the constitutional bill of rights for five-year periods. This Chapter asks what the experience of the notwithstanding clause can teach about how to optimize for an enduring, rights-protecting constitutional democracy. Based on those lessons, it proposes that Congress should adopt a model “constrained override” power that leverages the benefits of the NWC but avoids its drawbacks. The Court may be the least dangerous branch, but the constrained override would yield the least dangerous system.

  • Pojanowski on Formalism

    Jeff Pojanowski has posted Faces of Formalism on the Virginia Law Review website. Here is the abstract:

    Formalist approaches to legal interpretation, such as textualism and originalism, are ascendant in federal statutory and constitutional law. Yet with success have come uncertainty and dissatisfaction. Formalists and their critics observe that textualism and originalism can seem as open-ended as the purposive and dynamic methods they were supposed to replace. This Article tries to diagnose the source of this discontent. It does so by identifying two different faces of formalist interpretation: the formalism of authority—adherence to original sources of law—and the formalism of method—constraint through predictable, rule-bound interpretation. Defenses of formalism often assume these two paths to constraint run together, but they can come apart. The careful search for an authoritative source is not readily amenable to rules. At the same time, seeking certainty and impersonality through mechanical methods risks interpretive drift from original, authoritative norms.

    Once we notice this tension, we see it everywhere in arguments about interpretive formalism: intentionalism versus public meaning, what kind of intentionalism, what kind of public meaning, the force of original expected applications, whether to treat interpretive method as law, and the centrality of rules over standards. Answers to these questions turn on how we reconcile or prioritize these two faces of formalism. It turns out that the standard contrasts between “form and substance,” or “form and function,” or “letter and spirit,” miss important parts of the picture. Different substantive visions about law and interpretation compete within the confines of form. Method formalism’s goals are more functional, while the spirit of authoritative formalism is less likely to confine itself to the letter. Although no synthesis should obscure either face of formalism entirely, the most plausible approach places the search for authority at the center of the practice.

    Highly recommended. Download it while it’s hot!

  • Six Thoughts on Originalism and the Birthright Citizenship Clause

    On Wednesday, April 1, 2026, the Supreme Court will hear oral argument in Trump v. Barbara. Much of the debate about the clause has focused on the original meaning of the first Clause of Section One of the Fourteenth Amendment:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

    Some of the Justices may focus on the Original Public Meaning of the Clause. Here are six thoughts about their task.

    First Thought: Party Presentation Has Focused on the Original Meaning of the Clause

    Sometimes, the Supreme Court decides a constitutional question on the basis of nonoriginalist precedent because the parties have not raised originalist arguments, but that is not the case here. Instead, the parties have made originalist arguments and cited the scholarly literature. Of course, it simply isn’t possible for either the briefs or oral argument to explore all of the most important evidence of original meaning, but originalists should not understand the party presentation principle to require the Justices to limit their judgments about the original meaning of the clause to statements quoted in the party’s briefs: raising the constitutional issue satisfies the Party Presentation Principle—as Randy Barnett and I have argued in “Making the Party Presentation Principle Safe for Originalism” Both the Citizenship Clause and its original meaning have been raised by the parties.

    Second Thought: The Justices Must Decide Whether “Subject to the Jurisdiction Thereof” Has an Ordinary Meaning or a Technical Meaning

    One of the central ideas of Public Meaning Originalism is that the original meaning of the constitutional text is its original public meaning—a meaning that is either understood by or accessible to the public, ordinary citizens. But the Constitution sometimes uses technical language, phrases like “Letters of Marque and Reprisal.” Was “subject to the jurisdiction thereof” a technical phrase, the meaning of which depended on the common law of natural born subjects in England? Or was the phrase intended to have an ordinary meaning, based on the way that ordinary citizens would understand “subject to the jurisdiction”? From an originalist perspective, the key question is this: “Would citizens in 1868 have understood the phrase as technical language or would they have understood the phrase to have ordinary meaning?” Public Meaning Originalism embraces technical meaning, but only when that meaning is accessible to the public. Secret technical meaning is antithetical to the notion that the Constitution was a public document, written for the people, and intended to have a meaning that was access to us, that is to “We the People.”

    Third Thought: The Justices and their Clerks Should Read the Most Important Scholarship and Original Sources

    If you have been following the debate over the meaning of the birthright citizenship clause carefully, you know that there has been an outpouring of scholarship on both sides. Although the briefs are helpful, they cannot fully assess the evidence surfaced by originalist scholars. Supreme Court Justices are very busy indeed, but I imagine that the originalist Justices will be reading the parties’ briefs and the most important scholarship over the weekend and early next week. If it were me, I would want (at a minimum) to read the exchange between Michael Ramsey and Kurt Lash very carefully. They have both made major statements (Ramsey, Lash) and have followed up with replies to each other (Ramsey, Lash). Of course, there are many other scholars who have done important work: I apologize to them for this very short “short list.” After the originalism-friendly Justices read the scholarship they think is important, they may also want to look at some of the original sources and contextualize the most important quotations used by the parties and scholars. If the Justices want to get the original meaning right, it would be a grave error to rely on the briefs for a full presentation of the relevant evidence.

    Fourth Thought: The Scholarly Debate Is Mature and the Justices Should Not Avoid Making Judgments About Original Meaning On Epistemic Grounds

    Sometimes originalism is easy because the constitutional text is clear and the original meaning and due diligence can be done in a matter of hours. But sometimes constitutional language is obscure in the eyes of modern readers, and substantially more effort (weeks or months of research) may be required to uncover the conceptual world of the relevant era and to identify the important primary sources. If the work hasn’t been done, then the Justices may hesitate to render a premature verdict on original meaning on epistemic grounds, thinking “We don’t yet have enough confidence to render a judgment that might turn out to be incorrect.” But that is not the case with respect to the Citizenship Clause. Indeed, originalism owes a debt of gratitude to the scholars who have challenged the conventional wisdom. As a result of their work, the arguments and evidence are now on the table and the Justices are in a position to make confident judgments about the original meaning of the Citizenship Clause. The epistemic threshold for high quality originalism has been met. If the Court adopts the conventional wisdom, it will not be because the other side had never even been considered. If the Court upends the conventional wisdom, it will not be on the basis of new scholarship that never was vetted by the other side.

    Fifth Thought: The Court Should Think Carefully Before Taking the Statutory Offramp

    There is a possible statutory offramp in Trump v. Barbara. The Court might decide the case on the basis of a federal statutory provision with language that parallels the constitutional text but was enacted in 1952 (8 USC §1401(a)). It has been argued that the meaning of the statute was fixed in that year and that the current conventional wisdom about “subject to the jurisdiction thereof” was the predominant understanding of that phrase at the time of enactment and promulgation. Of course, originalists accept the Fixation Thesis (which is sometimes expressed as the Fixity Canon), but that does not settle the question. Why not? Because the reenactment of old language raises a question about the second-order communicative intentions of the Congress that did the enacting. Congress might have had a second-order communicative intention to adopt the communicative content of the Fourteenth Amendment—to leave it unchanged. Or Congress might have wanted to convey the meaning as it would have been understood at the date of enactment—and hence to change the meaning if there had been linguistic drift. This is a tricky issue, and the Court must resolve it if the Court decides it wants to take the offramp.

    Sixth Thought: Resolving the Debate About the Meaning of the Citizenship Clause Involves Inference to the Best Explanation

    There is a debate about the meaning of the Citizenship Clause, and that debate is all about the evidence. The scholarly debate over the evidence focuses on questions about relevance and probative value. Some evidence may not even be relevant. The probative value of other evidence depends on its relationship to the context of constitutional communication and to all of the other evidence. The Justices need to consider all of the evidence and then answer this question: “Which theory of the meaning of ‘subject to the jurisdiction thereof’ best accounts for all of the evidence?” Inference to the best explanation is holistic: it is not a matter of deduction from first principles. For this reason, it is vitally important that the Justices have a good working knowledge of the evidence itself and the arguments about its relevance and probative value when they enter the Courtroom on Wednesday morning. And if we are lucky, they will leave in even better epistemic shape. Fingers crossed.

  • Family on Immigration and Adjudicator Independence

    Jill E. Family (Widener University – Commonwealth Law School) has posted The Sky Is Falling: Immigration Law and Agency Adjudicator Independence (2026 Utah L. Rev., forthcoming) on SSRN. Here is the abstract:

    This article examines the degradation of agency decisional independence under unitary executive theory through the experience of immigration law. The Supreme Court is expected to overturn 90 years of precedent this term, in Trump v. Slaughter, by embracing unitary executive theory to hold that Congress may not limit the president’s power to fire the head of an agency. Congress has protected some agency heads with “for cause” removal restrictions that do not allow the president to fire the agency head for political reasons. Slaughter threatens the category of “independent agency” and could upset fundamental understandings of the structure of government. During the oral argument in Slaughter, Solicitor General Bauer asserted that the “sky will not fall” if the Supreme Court eliminates independent agencies. This article asserts that the experience of immigration law shows the opposite; the sky is falling.

    The rise of presidential political control over administrative agencies has implications for agency adjudication. It raises the question whether the Court will extend the logic of unitary executive theory to agency adjudication. If it does, unitary executive theory will make all agency adjudicators more like immigration adjudicators. Congress has protected some agency adjudicators from political control. A president may fire these adjudicators only for cause. This type of restriction, however, is threatened by Slaughter. Congress has never insulated immigration agency adjudicators from political control. Immigration adjudicators decide cases with the knowledge that there can be employment repercussions if the president is displeased with the adjudicator’s decision-making record. This is true through both Republican and Democratic administrations. Immigration judges fear for their jobs. President Trump pushed out about 140 immigration judges in 2025.

    Unitary executive theory promises to restructure agency adjudication and to eliminate Congress’ role in deciding which types of agency adjudication are subject to political control. The president would assume this power. Perhaps the executive branch will self-police and temper its use of political control. The experience of immigration law suggests otherwise.

  • Ma on Judicial Independence in China

    Qin (Sky) Ma (Max Planck Institute for the Study of Crime, Security and Law) has posted Non-Independent Impartiality: Unveiling the Subtle Resistance to Judicial Independence in China
    forthcoming in Columbia Journal of Asian Law 2026 (accepted in 2024) on SSRN. Here is the abstract:

    This article uses legal cultural and historical analysis to reveal the notion of “non-independent impartiality” in Chinese legal culture. This idea suggests that judicial impartiality and fairness can be realized without necessarily relying on judicial independence, thus challenging the commonly assumed connection between the two. The import of judicial independence in China intertwines and interacts with this legal culture, generating both fusion and tension. This article explores how this legal culture poses challenges to achieving judicial independence by interacting with its theoretical underpinnings, institutional structures, and practice. It underscores the cultural constraints in China’s efforts to promote judicial independence, offering new insights into the complex interplay between judicial independence and impartiality.

    China’s intricate approach to judicial independence exemplifies the phenomenon of contextualization or “legal translation” during the process of legal transplantation. China’s path suggests judicial impartiality doesn’t hinge on independence. Instead, collective review and hierarchical oversight may foster judicial fairness, offering fresh insights for comparative research on this topic. Furthermore, the path dependence reflected in the stability and continuity of Chinese legal culture and judicial institutions serves as a fitting example of historical institutionalism.

  • Janeček &Sartor on AI and Legal Interpretation

    Václav Janeček (University of Bristol – School of Law) & Giovanni Sartor (European University Institute Law Department; University of Bologna – CIRSFID) have posted Legal Interpretation and AI: From Expert Systems to Argumentation and LLMs on SSRN. Here is the abstract:

    AI and Law research has encountered legal interpretation in different ways, in the context of its evolving approaches and methodologies. Research on expert system has focused on legal knowledge engineering, with the goal of ensuring that humangenerated interpretations can be precisely transferred into knowledge-bases, to be consistently applied. Research on argumentation has aimed at representing the structure of interpretive arguments, as well as their dialectical interactions, to assess of the acceptability of interpretive claims within argumentation frameworks. Research on machine learning has focused on the automated generation of interpretive suggestions and arguments, through general and specialised GenAI tools, now being increasingly deployed in legal practice.

  • Oleske on Discounting Harm to LGBTQ People

    James M. Oleske (Lewis & Clark Law School – Paul L Boley Law Library; Lewis & Clark College – Lewis & Clark Law School) has posted Mahmoud, Skrmetti, and 303 Creative: Ignoring Original Meaning, Rewriting Precedent, and Discounting Harm to LGBTQ People (26 Hous. J. Health L. & Pol’y (forthcoming)) on SSRN. Here is the abstract:

    This essay critically examines three recent Supreme Court decisions in constitutional cases dealing with the interests of LGBTQ people. Those interests came out on the losing end of 6-3 rulings in each of the cases discussed: 303 Creative LLC v. Elenis, Mahmoud v. Taylor, and United States v. Skrmetti. Of course, as Justice O’Connor once cautioned, it can be a mistake to infer too much from the “win-loss record” of parties who “happen to come” before the Court. And even the cynics should be open to the possibility that a careful reading of the decisions will bring reassurance that neutral principles long championed by the justices in the majority are doing impartial work. But a close examination demonstrates precisely the opposite. Justices who have advocated for “original meaning” and “history and tradition” approaches to constitutional interpretation in other cases, and who have been hard at work dismantling what they perceive to be activist precedents from the twentieth century, are suddenly found relying in Mahmoud, Skrmetti, and 303 Creative on super-charged and selective readings of twentieth century precedents that have never been grounded by the Court in either original meaning or history and tradition.

    This essay also situates the Court’s LGBTQ jurisprudence within the broader march towards securing equal dignity and citizenship for all Americans. Those goals were prominent in the push for the 1875 Civil Rights Act, the promise of which was ultimately deferred for nearly 90 years. And those same themes were again pervasive in the Court’s gay rights jurisprudence from 1996 to 2015, the promise of which has now been called into doubt by a pattern of gerrymandered decision-making in which the Court has consistently discounted harm to LGBTQ people.

  • Sandholtz & Whytock on Political Questions and Foreign Affairs

    Wayne Sandholtz (University of Southern California – School of International Relations; University of Southern California Gould School of Law) & Christopher A. Whytock (University of California, Irvine, School of Law) have posted Are Foreign Affairs (Still) Different? An Empirical Analysis of the Political Question Doctrine (94 University of Chicago Law Review (forthcoming 2027)) on SSRN. Here is the abstract:

    As assertions of executive authority have expanded in both foreign and domestic affairs, the political question doctrine has taken on heightened significance as a gatekeeper of judicial review. Yet prior scholarship on the doctrine is almost exclusively doctrinal and normative, leaving little empirical understanding of how courts actually decide motions to dismiss on political question grounds.

    To address this gap, this Article presents a systematic empirical analysis of political question doctrine decisionmaking in the U.S. District Courts. Using statistical analysis of an original dataset of more than 350 political question doctrine decisions, it directly tests the competing claims of foreign affairs “exceptionalists” and foreign affairs “normalists.” Consistent with exceptionalist claims, we find that the foreign affairs character of a case substantially increases the likelihood of dismissal on political question grounds. Contrary to the claims of normalists, we find no evidence of the normalization of foreign affairs in the District Courts.

    Beyond foreign affairs, the Article also sheds new empirical light on other previously unexplored aspects of political question doctrine decisionmaking. Despite claims that Supreme Court precedents have had little effect on political question doctrine decisionmaking, we present evidence that the Court’s 2012 decision in Zivotofsky v. Clinton led to significantly reduced dismissal rates in the District Courts. Contrary to the widespread belief that the doctrine is no longer frequently applied to dismiss non-foreign affairs cases, we find that the doctrine continues to be robustly applied in domestic contexts, especially in cases raising constitutional law issues. And consistent with prior scholarship on “repeat players” and “one-shotters” in litigation, we find that federal government parties tend to fare better on average than other parties when moving to dismiss claims on political question grounds, and individual parties fare worse on average than other types of parties when opposing dismissal of their claims on political question grounds.

    Together, our findings offer new evidence that supports some widely held beliefs about the political question doctrine and challenges others, providing much needed empirical foundations for debates about the doctrine’s proper scope and its implications for judicial review.

    Recommended.