Legal Theory Blog

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.

David M Tanovich (University of Windsor – Faculty of Law) has posted A Normative Approach to Criminal Law Purpose Under 91(27) (Forthcoming, Canadian Bar Review, 2026 (December)) on SSRN. Here is the abstract:

The boundaries of the substantive (criminal law purpose) prong of the criminal law power test under 91(27) of the Constitution Act, 1867 remains unsettled. This article examines the nature of the stalemate arising out of the two most recent cases to consider the issue: Reference re Assisted Human Reproduction Act, 2010 SCC 61 and Reference re Genetic Non-Discrimination Act, 2020 SCC 17. This uncertainty provides an opportunity for the Supreme Court to forge a new path forward. This article aims to offer a justification for why a new path is necessary to give effect to both federalism and the need for certainty in our creation and interpretation of criminal offences. It uses the criminalization of the sale of sugary drinks, an issue that came up during the oral hearing in the GNDA Reference, as a case study to better understand the problems with the current Supreme Court framework and the normative approach developed in this article. That approach is grounded in moral blameworthiness and restraint. Its source is our substantive criminal law.

Zalman Rothschild (Yeshiva University – Benjamin N. Cardozo School of Law) has posted Vaccines and ‘Religious Parental Rights’ (Harv. L. Rev. F. (forthcoming)) on SSRN. Here is the abstract:

In Miller v. McDonald, the Supreme Court vacated a decision upholding a vaccine mandate for lacking religious exemptions, remanding for reconsideration in light of Mahmoud v. Taylor—a case about parental opt-outs from public school curricula. This Essay argues that the GVR signals a doctrinal shift. By treating Mahmoud as relevant to a paradigmatic public-health mandate, the Court has invited lower courts to extend religious exemption claims from what children are taught to what the state requires to keep them safe, quietly inverting a century-old premise in free exercise jurisprudence. The Essay also examines the GVR as a vehicle through which the Court communicates consequential doctrinal directions through orders that lack the reasoning lower courts need to carry them out.

Recommended.

Carlos Chévere Lugo (St. Mary’s University – School of Law) has posted From Lockstep to Liberation: Activating Puerto Rico’s Dignitarian Unenumerated Rights Clause Through State Constitutional Lessons on SSRN. Here is the abstract:

Article II, Section 19 of the Puerto Rico Constitution provides that the enumeration of rights in the Bill of Rights “shall not be construed restrictively” and expressly preserves “other rights not specifically mentioned which belong to the people in a democracy.” Despite its exceptional textual strength, this provision has remained largely dormant for over seven decades. This Article argues that Section 19 constitutes the most potent unenumerated rights clause in American constitutional law and proposes a doctrinal framework for its activation.

The Article first examines the marginalization of the federal Ninth Amendment and the methodological incoherence of the substantive due process doctrine that replaced it. It then recovers the parallel tradition of state constitutionalism, tracing the dual architecture of Baby Ninth Amendments and Lockean natural rights clauses through which state courts have enforced unenumerated rights that federal courts refused to recognize. Against this backdrop, it demonstrates—through textual, structural, and historical analysis—that Section 19’s affirmative prohibition against restrictive construction, its democratic grounding of unenumerated rights, and its concurrent protection of legislative welfare authority render it stronger than both its federal progenitor and its state counterparts. The Article situates this provision within Puerto Rico’s dignitarian constitutional framework, advancing a “symphonic” interpretation under which individual rights provisions operate as interconnected elements of a unified commitment to human dignity.

Finally, the Article proposes a three-factor test for identifying Section 19 rights and applies it to two domains of pressing contemporary significance: the right to earn a living, imperiled by the Labor Transformation and Flexibility Act, and the right to bodily autonomy, threatened by recent legislation systematically restricting reproductive self-determination. It further argues that Section 19, read alongside the dignity guarantee of Section 1, supports affirmative state obligations in healthcare, environment, housing, and food—obligations grounded in comparative constitutional practice from South Africa, Germany, Colombia, and India. The constitutional text already contains the tools for this transformation. What remains is the institutional will to use them.

Michael L. Smith (University of Oklahoma – College of Law) has posted Democracy Manifest: A Theory of Constitutional Change on SSRN. Here is the abstract:

This Article rethinks, reimagines, and reinvigorates debates over the nature of constitutional law, American history, and reality itself. Despite the best efforts of certain of my colleagues, the Article fills a gap in the literature-indeed, multiple gaps, voids, chasms, and more. Surfacing undertheorized provisions, this Article envisions a reinvigorated Constitution of otherworldly enlightenment, unprecedented positive rights, and revolutionary change. It is a Constitution that is, truly, Democracy Manifest.

High, very high.

Emily Stolzenberg (Villanova University Charles Widger School of Law) has posted Toward a Private Law of Intimates’ Obligations on SSRN. Here is the abstract:

When former cohabitants ask courts to distribute property at the end of a nonmarital relationship, they usually lose–even when the partners were as economically intertwined as spouses. Family law scholars have traditionally criticized these cases in terms of longstanding gendered ideas about family relationships. This Article proposes a complementary account at the intersection of feminist and private law theory: that the law of voluntary obligations is not adequately developed to protect intimates’ cooperation. Although marital status law aims to safeguard thick cooperation between spouses and contract law captures a range of more market-based cooperation, for historically contingent reasons, little doctrine has evolved to govern cohabitants’ cooperation. As a result, the current law of cohabitants frequently fails to further important purposes of private law writ large, including facilitating joint projects, providing redress for harm, and preventing exploitation.

Scholars and legal decision-makers should develop private law doctrine commensurate with the understanding that less market-based cooperation is commonplace and deserving of legal protection. This project would improve the resolution of disputes between all intimates: not just unmarried partners, but also other family members, friends, and those in relations of interdependence or trust. It also presents opportunities to build a more nuanced and complete private law and private law theory.

Recommended.

Kurt Lash (University of Richmond School of Law) has posted The Allegiance Reading of the Citizenship Clause and Its Critics: A Response on SSRN. Here is the abstract:

The Fourteenth Amendment establishes two requirements for natural born citizenship: First, one must be born in the United States. Second, one also must be born “subject to the jurisdiction” of the United States. In a prior article, I explained how the framers and ratifiers understood the latter text as requiring that one be born subject to the sovereign people of the United States in the sense of owing a primary allegiance to the United States. In a recent essay, Professor Michael Ramsey critiques the allegiance theory and argues that the text should be read to include any person born in the United States subject to its lawful or “sovereign authority.”

Professor Ramsey’s reading is thoughtful but cannot be correct. Ramsey substitutes the phrase “under sovereign authority” for the actual text “subject to the jurisdiction” of the United States, and he invests it with a meaning based on common law instead of the actual understanding of the framers and ratifiers. The result is an interpretation held by congressional Democrats but expressly rejected by the Republican framers. Nor can Ramsey’s “subject to sovereign authority” theory account for the exclusion of the one category everyone involved insisted be excluded: children born to Native American parents.

Most of all, Ramsey cannot explain away the abundant historical evidence supporting an 1866 allegiance-based understanding of natural born citizenship. In one of the most widely published speeches of the Thirty-Ninth Congress, and one that Ramsey does not mention, John Bingham explained that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen.” Both the 1866 Civil Rights Act and the Fourteenth Amendment communicated this same Republican theory of natural born citizenship.

Highly recommended.

Some of the reactions that were posted on X or Bluesky to a recent post providing the abstract to another paper on this topic were deeply disappointing and problematic. Some of the most vituperative posts were from non-scholars who were unfamiliar with the literature, the original sources, and the author. Others were from legal academics but displayed a very uncharitable attitude towards scholarship with which the poster disagreed.

My view of the role of Legal Theory Blog is premised on the idea that scholarship ought to be viewed as a search for truth and that scholarly debate should be civil and charitable. Attempts to shame or silence scholarship are always problematic and rarely justified. Statements to the effect that the author of a piece is insincere without any evidence should be condemned and have no place in responsible scholarship. What should matter is what Jürgen  Habermas called “the unforced force of the better argument.”

My recommendations of scholarship are not expressions of agreement or disagreement with the claims made by the pieces I recommend. For example, I frequently recommend scholarship that advances interesting criticisms of originalism–even when I believe that the criticism is based on a misunderstanding of originalist theory or rests in part on arguments that cannot withstand serious scrutiny.

My practice on X and Bluesky is to block block those who make personal attacks, and I will continue to do so.

Bruce Ackerman (Yale University – Law School) has posted Barrett’s Red Flag: Why the Court Should Order Re-argument in Trump v. Slaughter on SSRN. Here is the abstract:

While there are a host of essays dealing with the Slaughter and Cox cases presently under consideration by the Supreme Court, this is the first one exploring a fundamental point about Humphrey’s Executor that was advanced by Justice Amy Coney Barrett in her remarkable interventions during December’s oral argument in Slaughter. She emphasized that, in gaining unanimous support for Humphrey’s Executor in 1935, Justice Sutherland was building on the successful construction of a series of independent agencies by both Democratic and Republican Administrations over the preceding half-century — beginning with Grover Cleveland’s breakthrough success in gaining Congressional approval for the nation’s first independent agency: the Interstate Commerce Commission in 1887. As Justice Barrett pointed out, during the early twentieth century, Cleveland’s presidential successors built on his landmark precedent to gain repeated Congressional support for a wide range for agencies that continue to play a crucial role in today’s America – including the Pure Food and Drug Administration (Theodore Roosevelt), the Federal Trade Commission (Woodrow Wilson), and the Federal Communications Commission (Calvin Coolidge). Since these Democratic and Republican Administrations profoundly disagreed on a host of other fundamental issues, their repeated and bipartisan affirmation of expert agencies as a “fourth branch of government” was even more remarkable.

Indeed, Justice Barrett suggested that this bipartisan consensus provided a distinctively democratic foundation for Humphrey’s Executor. After all, Justice Sutherland announced his unanimous opinion in March of 1935 when Sutherland was leading his six Lochnerians in an escalating constitutional assault on the activist regulatory state – despite the eloquent dissents of Brandeis, Cardozo and Stone. Nevertheless, these bitter disagreements did not lead the Lochnerians to challenge the legitimacy of wide-ranging regulation of the market-economy by independent agencies – since American voters had repeatedly vindicated a bipartisan effort to create independent agencies with the requisite expertise required to confront the scientific and industrial revolutions in a responsibly democratic fashion. Instead, Sutherland reached out to his three progressive to join in emphasizing a crucial point of consensus at a time of escalating polarization.

Justice Barrett suggested these points during the give-and-take of oral argument in the Slaughter case. Unfortunately, however, the lawyers for Rebecca Slaughter and Donald Trump were not prepared to respond with sophisticated analysis of the constitutional significance of the half-century of history that she was emphasizing.

It happens, however, that I have spent a great deal of time exploring these issues when preparing my multivolume series, We the People – and believe that a deeper understanding of the half-century between 1887 and 1935 powerfully supports Justice Barrett’s interpretation of its constitutional significance. To be sure, I expect this essay to provoke serious critiques, as well as significant elaborations, of the themes I present. Indeed, this is precisely why I believe that the Court should defer its final decision in Slaughter and Cox so as to give it the opportunity to consider serious briefs and serious scholarship before it makes a fundamental decision on an issue which will profoundly shape the course of American government for future generations.

Highly recommended.

Jonathan David Shaub (University of Kentucky – J. David Rosenberg College of Law) has posted Congress’s Power Of Inquiry In Impeachment (112 Virginia Law Review (forthcoming 2026)) on SSRN. Here is the abstract:

The nature and scope of Congress’s constitutional power of inquiry in impeachment has rarely been discussed and never been satisfactorily analyzed. Impeachment is both increasingly salient and singularly important, particularly after Trump v. United States. Indeed, impeachment may now be the sole remaining mechanism for investigating presidential misconduct, but recent executive branch doctrines—established during the first Trump administration and largely affirmed during the Biden administration—severely limit congressional authority to investigative for purposes of impeachment. This paper proposes a constitutional framework that balances the exceptional power the two Houses of Congress wield in the exercise of their respective impeachment authorities with the need to retain the solemnity of impeachment investigation and protect its role in holding presidents and other executive branch officials accountable. This framework recognizes that the invocation of impeachment authority is a distinct, nondelegable authority that functions as a judicial power separate from legislative. Once this power has been invoked, generalized executive privilege doctrines used in oversight, and related prophylactic protections for that privilege, are inapplicable. Instead, distinct, specific objections to disclosure should be adjudicated by the two Houses respectively pursuant to established procedures, with the presumption that the congressional bodies need access to all pertinent information, even if the information needs to be protected from public disclosure. Moreover, each House should establish procedural protections unique to impeachment, including due process protections for accused officials and witnesses. Finally, a comprehensive framework that empowers the House and Senate to exercise fully their respective authorities to investigate for purposes of impeachment inquiries and trials necessitates a mechanism for expedited, limited judicial review to adjudicate collateral privilege disputes and enforce information demands.

Highly recommended!