Legal Theory Blog

Bridget C.E. Dooling (Ohio State University (OSU) – Michael E. Moritz College of Law) has posted Outside Helpers, Rulemaking, and the Presumption of Regularity (Theoretical Inquiries in Law, forthcoming) on SSRN.  Here is the abstract:

It is no longer hypothetical: U.S. government agencies are using AI to write regulations. We therefore must grapple with the intersection of the Administrative Procedure Act (APA) and the undetectability of AI-generated material. To challenge an agency rule for improper agency use of AI under an APA theory, a litigant would need to know which regulations were drafted using AI. But agencies do not acknowledge their use of AI in specific rulemakings and AI-generated text can pass undetected, leaving would-be litigants with an information gap. There are ways in which AI and other outside helpers can legitimately aid the rulemaking process, but policy decisions are human terrain. The APA and current doctrine may not be equipped to hold the line if AI-written preambles can hide in plain sight.

As it stands, the public does not know who writes what in a regulation; we don’t usually know, for example, which staff members worked on any given rule, or whether regulatory language was supplied by outside interests. This opacity—reinforced by the presumption of regularity—might have been acceptable when we could reasonably assume that agencies were in control of writing their rules. Agency use of contractors to write rules has been chipping away at this assumption, but AI undermines it completely. We don’t know who is writing rules anymore because of the availability of algorithmic tools, wide-eyed institutional enthusiasm for AI, and ongoing political hostility towards proceduralism, the civil service, and other good government bulwarks.

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Danielle D’Onfro and Daniel Epps (both Washington University in St. Louis – School of Law) have posted Constitutional Rights and General Private Law (Harvard Law Review, forthcoming) on SSRN.  Here is the abstract:

Public and private law are treated as doctrinally siloed opposites. But the two are surprisingly interrelated in the arena of constitutional rights. Courts must define, for constitutional purposes, various private law entitlements: what interests constitute property, when a contract has been made, and when government conduct constitutes the tort of trespass, among other pervasive issues.

How should courts resolve such definitional questions? And what sovereign should have the power to provide those answers? In a post-Erie legal universe, the immediately obvious answer is that constitutional “property” and similar entitlements must be creatures of state law. All the more so given that the seeming alternative—asking courts to craft a federal version of private law from whole cloth—poses daunting challenges.

This Article argues that this is a false dichotomy. Private law entitlements underlying constitutional rights need not depend on state positive law. Nor must federal courts reinvent private law from first principles. Instead, there is a third way: drawing on principles found in general private law. That is, courts should define concepts like property “in general” by drawing on the accumulated wisdom of history, precedent, and custom across numerous jurisdictions. While the legitimacy of general law is today deeply contested in constitutional law, there is a discernible and conceptually coherent category of general private law resistant to leading critiques by skeptics. With familiar private-law doctrines such as contracts, property, and torts, courts can, and do, distill broad principles of American jurisprudence.

Recognizing the role of general private law in constitutional rights has great explanatory power. Moreover, that approach is superior to the alternatives on offer—most fundamentally because it avoids opportunistic behavior by states seeking to evade constitutional guarantees.

This approach also has significant theoretical implications for both public and private law. For constitutional law, the approach shows that general law, shorn of its most controversial jurisprudential commitments, remains a viable and useful way of thinking long after Erie. As for private law theory, recognizing why general law reasoning has been necessary in constitutional analysis reinforces that concepts like property have recurring, core meanings that transcend positive law.

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Neil Siegel (Texas A&M University School of Law) has posted Judicial Self-Protection in the Shadows (Northwestern University Law Review, forthcoming) on SSRN.  Here is the abstract:

Because the U.S. Supreme Court is not only powerful but also vulnerable, it is both inevitable and (within limits) appropriate that it seeks to protect its institutional authority when it faces acute political threats to that authority. This Essay offers theoretical reasons to expect that the Court will practice judicial self-protection in certain cases involving exercises of presidential power on its shadow docket in addition to its merits docket, as well as suggestive evidence that it did so in the early months of the second Trump administration as it appeared to work to secure the political foundations of its own authority. That is, the Court seemed to move from a more self-protective posture to a more self-assertive one as it gained confidence in the willingness of the second Trump administration to comply with its orders. This Essay also identifies an important instance in which the Court practiced judicial self-assertion instead of—or, rather, in addition to—judicial self-protection because it believed that the Executive was violating the basic rights of individuals who could not protect themselves. Finally, although it is difficult to normatively assess the Court’s self-protective and self-assertive performances while the second Trump administration is still in progress, this Essay attempts a preliminary evaluation. With an important exception involving the administration’s clear, repeated defiance of the orders of a federal district court at a time when the Court had good reason to believe that the government would comply with its own orders, this Essay concludes—without generally endorsing the Court’s decisions during this period—that the Court appears to have largely done an effective job of balancing its political responsibility to safeguard its own authority against its legal responsibility to protect the Constitution and the rule of law as it understands them.

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Michael L. Smith (University of Oklahoma – College of Law) has posted Oklahoma’s Mandatory Constitutional Convention Referendum (Oklahoma Law Review, forthcoming) on SSRN.  Here is the abstract:

The Oklahoma Constitution requires that every twenty years, voters must decide whether to convene a convention to amend, revise, or replace the state constitution. But this mandate has been neglected for decades. The last vote over holding a convention took place in 1970. Oklahoma’s governor recently proclaimed that a vote over a convention will be held in early 2027, prompting debate over the meaning of Oklahoma’s convention referendum mandate and who has the authority to put the convention vote before the people—particularly when the legislature has refrained from authorizing such a vote well past the constitutional deadline.

Inspired by this turn of events, this article takes a deep dive into Oklahoma’s convention referendum mandate, exploring its text, its historical origins and application, and its context within the state constitution as a whole and among thirteen other state constitutions with similar provisions. Oklahoma’s convention referendum mandate is abstract and lacking in detail, which necessitates this complex interpretive exercise. This involved treatment also provides context and perspective for those hoping to better understand Oklahoma’s convention provision, how the provision fits within the broader structure and functions of the state constitution, and how the modern dispute over the state constitutional convention compares with similar debates in past decades.

Beyond informing immediate debates over calling a convention vote, this article suggests paths to reform. Thirteen other states mandate recurring convention votes, and most of their constitutional provisions contain details over who must call the vote, what the convention question must look like, and how the convention must be convened. These states offer models for constitutional or legislative reform that might head off future disputes over the meaning of Oklahoma’s convention provision. Finally, this article explores how Oklahoma’s past applications and present neglect of the recurring convention referendum inform debates over the value of state constitutional conventions, including the role they play in ensuring popular representation in increasingly unrepresentative state governments.

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Jorge Luis Fabra-Zamora (University at Buffalo Law School) has posted Sets and Systems: A Reinterpretation of Hart’s Fable (Jurisprudence, forthcoming) on SSRN.  Here is the abstract:

HLA Hart’s famous ‘fable’ in which the ‘legal system’ remedies the defects of a ‘pre-legal society’ is typically understood as offering an account of law. This article challenges the standard interpretation of Hart’s project and develops an alternative reading. I argue that the standard interpretation of the fable as providing an account of law not only conflicts with other elements of Hart’s work but is also vulnerable to a familiar objection of overinclusiveness. Alternatively, I argue that Hart’s fable should be read as developing a distinction between two types of normative complexes, sets and systems, applicable to both legal and non-legal settings. These differ in four dimensions: (i) how they regulate a community’s central normative activities, (ii) their authority structures, (iii) their doctrinal discourse, and (iv) their conditions of existence. I further argue that this reinterpretation illuminates central jurisprudential debates and the relationship between jurisprudence and social philosophy.

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Leah Litman (University of Michigan Law School), Katherine Shaw (University of Pennsylvania – Carey Law School), and Melissa Murray (New York University School of Law) have posted Is the Unitary Executive Democratic or Autocratic Governance? on SSRN.  Here is the abstract:

This essay examines whether the unitary executive theory provides for democratic or autocratic governance. It argues that the unitary executive theory’s underlying account of government authority is the same account of government that comparative political scientists have identified as facilitating democratic decline and autocratic takeover.

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Peter O’Loughlin (University of Galway – School of Law) has posted Economic Analysis within Law (Jurisprudence: An International Journal of Legal and Political Thought, forthcoming) on SSRN.  Here is the abstract:

Traditionally understood as methodological substitutes, doctrinal analysis and economic analysis have operated as separate perspectives on law and legal systems. Most conceptions and iterations of their debates, however, have manifested at law’s substantive periphery, like its purpose or its normative goals. This has been at the expense of situating and examining these methodologies in the context of their analytical processes. This Article critically reassess these age-old debates not on parameters of content and substance but through the paradigm of core reasoning modes. Once this shift away from substance is undertaken, one begins to see that the doctrinal method and economic analysis have more in common than ostensibly might be the case. At the doctrinal method’s mechanical core are analytically acute choices that to date have been legally unaccounted for by legal purists and constitute new and different kinds of discretion in judicial reasoning. This Article coheres these fragmentarily examined legal lacunae into a unifying concept called methodological discretion. The Article claims that methodological discretion is fundamentally economic in the form of information revelation and choice modelling and provides an objective and measurable basis for constraining judges at this level of judicial decision-making.

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Yifat Naftali Ben Zion (Tel Aviv University – Buchmann Faculty of Law; Harvard Law School) has posted A Systems Theory of Good Faith (Theoretical Inquiries in Law) on SSRN.  Here is the abstract:

Both the Uniform Commercial Code (UCC) and the Restatement (Second) of Contracts recognize the duty of good faith and fair dealing as a foundational principle of American contract law. Yet courts interpret this duty more narrowly than these texts suggest. Broader conceptions have met resistance, with some decisions warning that the “vaguely moralistic overtones” of good faith risk conflating contracts with fiduciary relationships or demanding unwarranted “equitable fairness.” In the scholarly literature, this narrow view is frequently defended in the name of contractual freedom, with the argument that displaying good faith is simply “to recognize the authority of the contract.” This Article challenges this narrow conception of the duty by drawing on systems theory, which highlights the complex interactions between legal relationships and doctrinal structures. It argues that this narrow perspective overlooks the connection between microlevel contractual interactions and macrolevel legal ordering, an essential link for designing a meaningful duty of good faith. Through a critical analysis of a case adopting a narrow view of the duty, the Article further advances a system-oriented account of good faith, conceiving it as a normatively grounded mechanism for promoting cooperation and curbing opportunism in contractual relationships. The systems theory perspective, attentive to both micro and macro dynamics, helps address concerns about judicial overreach and party autonomy, but without transforming contract law into fiduciary law. Reconceived in this way, good faith can better fulfill its normative and functional promise, fostering a contracting environment in which agreements can thrive.

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Daniel M. Klerman (University of Southern California Gould School of Law) and Alex Klerman (University of Chicago) have posted Forum Shopping and Judge Shopping: An Empirical Analysis of Immigration Policy Cases (Journal of Institutional and Theoretical Economics, forthcoming) on SSRN.  Here is the abstract:

This article measures the extent of forum and judge shopping in cases challenging the legality of immigration policies during the Biden and Trump administrations. The evidence shows that both liberal and conservative plaintiffs engage in forum shopping, but only conservative plaintiffs engage in judge shopping. The limited evidence now available suggests that recent attempts to curb forum and judge shopping—the Supreme Court’s decision in Trump v. CASA (2025) and the Judicial Conference’s 2024 policy regarding district-wide assignment—have been ineffective in curbing judge and forum shopping. To prevent forum and judge shopping, this article recommends nationwide random assignment of litigation of national importance.

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Bijal Shah (Boston College Law School) has posted Administrative Procedural Discretion (Cornell Law Review, forthcoming) on SSRN.  Here is the abstract:

The conservative Supreme Court has established maximum presidential control over formal administrative adjudication, despite the resulting impact on independence and expertise in adjudicatory process. Concurrently, a progressive public law perspective advocates for agencies to be released from procedure to allow them to accomplish more, regardless of the fact that procedures create important guardrails for agency action. Both of these perspectives devalue the understanding that maintaining adequate and accessible process ensures that administrative adjudication is accountable to the people that agencies serve. Both views also overlook the large expanse of informal administrative adjudication that is neither conditioned by constitutional appointment requirements nor anchored by consistent statutorily mandated procedure. Furthermore, access to process has always been minimal in many informal adjudications and has further deteriorated over time due to—as this Article illustrates—administrative discretion.

This Article is the first to uncover and offer an overview of administrative “procedural discretion,” which it identifies as administrative discretion that impacts the contours and defensibility of administrative process in informal adjudication. This Article illustrates that procedural discretion originates from agencies and adjudicators themselves, reducing or eliminating process in a manner that reflects both the ongoing decline of administrative due process in the post-Goldberg era and ongoing legislative battles concerning the rights of disempowered communities.

Procedural discretion enables great variation among the processes underlying informal adjudication—not only across different types of adjudication, but also within the same category of adjudication. In entities including the National Labor Relations Board, State Department, and the immigration agencies, procedural discretion tends to limit the process underlying informal administrative adjudication, including aspects such as access to in-person hearings, the opportunity to provide testimony, and decisionmaking on the record.

Sometimes, procedural discretion is the result of reasonable pragmatic concerns about resources and efficiency that nonetheless serve to reduce access to or even wholly gatekeep individuals from process. Other times, administrative decisionmakers engage in expedited processes in response to powerful interests, thus disadvantaging vulnerable people. Under-resourced communities, and those in need of governmental support or protection, are perhaps more likely to be harmed by procedural discretion. Furthermore, despite Article III courts’ expertise in matters of process, neither procedural discretion itself nor the outcomes of decisions based in discretionary administrative procedure are necessarily subject to judicial review.

This Article argues that, overall, procedural discretion is in tension with the values and stability of proceduralism, which many assume to be a cornerstone of administrative legitimacy. Ultimately, procedural discretion has the potential to undercut administrative accountability to the communities served by informal adjudication in underexamined ways that escape oversight.

The existence and operation of procedural discretion, this Article suggests, should inspire and inform frameworks that ensure the quality and accessibility of administrative adjudicatory process. This Article prescribes neither heavy reliance on political accountability nor a one-size-fits-all approach to proceduralism. Rather, this Article’s suggested interventions emphasize agencies’ own institutional tools for managing their exercises of procedural discretion. In this vein, a turn to administrative and judicial review could be fruitful.

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Lawrence Solum