Legal Theory Blog

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

Nicholas Stephanopoulos (Harvard Law School) and Ruth Greenwood (Harvard Law School) have posted The Death and Rebirth of Vote Dilution (Supreme Court Review, forthcoming) on SSRN.  Here is the abstract:

For more than half a century, federal law recognized the concept of racial vote dilution. Members of a racial group experience this condition when voting is racially polarized, the group is proportionally underrepresented, and a lawful alternative policy would likely improve the group’s representation. The Supreme Court’s 2026 decision in Louisiana v. Callais effectively terminates racial vote dilution as a federal legal claim. The Court achieves this result, above all, by requiring a plaintiff to prove that minority representation could increase without undermining any of a jurisdiction’s political goals. Since some political aim is almost always incompatible with greater minority representation, this hurdle is nearly impossible to overcome.

While federal law can no longer directly curb racial vote dilution, however, the fight against this problem is far from over. As a ruling constitutionally rooted in Congress’s power to enforce the Fifteenth Amendment, Callais has no bearing on state voting rights acts that are more aggressive than their federal precursor. Nor does Callais impede race-neutral strategies that nevertheless stop much racial vote dilution. Two of these approaches are familiar: prohibitions of partisan gerrymandering and systems of proportional representation. We further propose a cause of action for non-racial vote dilution. This novel claim would work just like its racial analogue—except it would revolve entirely around a non-racial cleavage.

Highly Recommended!

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Lawrence Solum

Ava Liu (Harvard University – Harvard Law School) has posted Technology Governance in the Age of AI: From Redistribution to Predistribution on SSRN.  Here is the abstract:

What should we do about labor automation in the age of artificial intelligence? Early proposals such as Universal Basic Income focused on taxing and redistributing the proceeds of AI. Now, an emerging slate of ideas tagged to the concept of “predistribution” proposes distributing ownership through citizen stakes in AI or sovereign wealth funds. But what is “predistribution”?

This Article presents a positive and unifying theory of predistribution, describes its categories, and explains how it can remake work in the age of AI. For over a century, Americans have focused on tax-and-transfer redistribution to address income inequality in the realm of consumption while calibrating tax policy to produce the right mix of forward incentives for production. This Article defines “predistribution” as the distribution of power over economic outcomes, encompassing the ways of intervening in the realm of production before market outcomes are produced for consumption. It identifies four categories of predistribution: (1) bargaining power and incentives, (2) public production, (3) ownership, and (4) governance and control.

For the question of how to govern technology and labor automation, the Article turns to the fourth category: governance. Because governing technology at work begins with governing work itself, it examines the law of labor and technology. Surveying the twentieth-century history of U.S. labor and employment law, the Article finds that labor law under the National Labor Relations Act (NLRA) places decisions about technology beyond the scope of worker governance while employment and tax law incentivize labor automation. To address this picture, it advances a model for the future of work based on predistributive governance—distributing control to democratize decisions about technology in the workplace.

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Lawrence Solum

Jamal Greene (Columbia University – Law School) and David Pozen (Columbia University – Law School) have posted Back to Philadelphia? The Uneasy Case for a New Constitutional Convention on SSRN.  Here is the abstract:

No country has ever had a written constitution in longer continuous operation than the United States. Such resilience is cause for commemoration. But for constitutions, as for people, longevity tends to be a mixed blessing. Age can bring maturity and wisdom. So, too, can it bring disease and decay.

This book chapter, written for a volume marking the 240th anniversary of the document’s drafting in Philadelphia, asks whether the Constitution has reached the point of decay and, if so, what can be done about it. We argue, first, that the case for a special convention aimed at constitutional renewal is surprisingly strong, even as we acknowledge both the immense practical challenges raised by such an undertaking and the real risk that it would result in deadlock or worse. Drawing on the practices of U.S. states and foreign countries that have held constitutional conventions in recent decades, we identify a set of design principles that Americans should bear in mind as they consider whether and how to hold their own. Finally, we sketch a series of steps that might be taken in advance of a convention to enhance its odds of success.

We do not expect to persuade skeptics of the need to embark upon major constitutional reform; indeed, we are not fully convinced ourselves. Yet as we explain, there are good reasons to plan for a potential convention whether or not one welcomes its arrival. And to plan a convention well could easily take a decade or more. If there is any chance for Americans to take control of their constitutional fate on the 250th anniversary of Philadelphia, the time to figure out how to do so is now.

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Lawrence Solum

Cosim Sayid (Clemson University – Department of Philosophy & Religion) has posted The Ontological Problem with Equal Protection Liability for Discriminatory Gerrymandering on SSRN.  Here is the abstract:

I present an ontological problem for arguments seeking to show that partisan or racial gerrymanders violate the equal protection clause because they are discrimination by the legislature. Since discrimination is an intentional act, it’s implausible to ascribe discriminatory intent to the legislature, absent lexical intent to classify people unlawfully. These arguments are not epistemological; they concern what legislative conditions of a gerrymander are rather than how to figure whether those conditions are present. Even if the legislature cannot be held directly liable for discriminatory gerrymandering, it could arguably be held liable indirectly. I survey several arguments that would, or could, be helpful in this vein and find them wanting, especially because (a) they fail to show how either individual legislators’ disparate intentions agglomerate into a discriminatory legislative intention; or (b), they’re incapable of demonstrating how to distinguish partisan discriminatory intent by the legislature from racial discriminatory intent against the background of no legislative mentality and electoral maps that look the same in either case. These arguments include (inter alia) a corporate analogy due to Raz, Ekins’ legislative Thomism and group agency, vicarious liability, and the Knobe effect. It also becomes clear that because of the kind of entity that a legislature is, these arguments must fail, since they’d impermissibly privilege some legislators over others in a way that was not consented to. I also sketch an argument to comprehend the 15th amendment in gerrymandering contexts, which is not construed as a matter of intentional discrimination; this textually specific injunction may forbid racial gerrymanders even though the equal protection clause does not, which militates in favor of that consilient conclusion, since, for example, constitutional law does not assess a violation of equal protection of the laws as against religious observants because the free exercise clause is textually specific.

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Lawrence Solum

Mauro Zamboni (Stockholm University – Faculty of Law) has posted Artificial Intelligence in Legislative Governance: A Legal-Institutional Framework for Allocating AI on SSRN.  Here is the abstract:

Artificial intelligence is becoming increasingly embedded in the processes through which legislation is prepared, adopted, implemented, evaluated, and revised. The central legal question is therefore no longer whether AI should be used in legislation, but what role it may legitimately perform within legislative governance. This article develops a legal-institutional framework for answering that question by focusing on the institutional function that AI is expected to support. It distinguishes between epistemic functions, through which legislative institutions acquire, organise, analyse, compare, and communicate knowledge, and legislative judgment, through which democratically authorised institutions determine the future direction of the law, balance competing public interests, publicly justify normative choices, and assume responsibility for them. AI can substantially strengthen the former, while the latter should remain with institutions exercising legislative authority. The distinction is further reinforced by the future-constitutive character of legislation and the past-dependent epistemic capacity of AI. Applying the framework across the adoption, implementation, and evaluation phases of legislative governance, the article shows that AI’s legitimate role varies according to the institutional function performed at each stage. Participatory democracy provides a further criterion for determining how otherwise legitimate AI assistance should be organised. The article ultimately argues that AI should strengthen the knowledge upon which legislative decisions are made without becoming the source of those decisions or of their democratic legitimacy.

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Lawrence Solum

Liviu Damsa (University of Warwick – School of Law) has posted The Five Logics of Contemporary Fractured State on SSRN.  Here is the abstract:

Legal doctrine is pervasively indeterminate, but the dominant explanations locate the source in the wrong place, whether in the semantic open texture of rules, the contestability of principles, or the incompleteness of institutional plans. This Article argues that a deeper source of indeterminacy is structural. The modern liberal-administrative state is organized not around a single rationality but around five historically layered and mutually incompatible logics of rule, liberal-juridical, capitalist, bureaucratic, biopolitical, and sovereign. Each logic has a distinct carrier, success criterion, and moment of historical crystallization. Because law is the register in which these logics are articulated and contested, and because no doctrine or institutional design can reconcile imperatives that are individually indispensable yet mutually irreducible, legal doctrine is structurally indeterminate. Courts are therefore not failing to find the right answer; they are asked to satisfy incompatible success criteria that admit no joint solution. This paper develops an individuation test that distinguishes the five logics and excludes other candidate logics (democracy, technocracy, the administrative); a detection method that reads the logics off statutes, budgets, and lines of cases; and a falsification standard applied to the doctrinal record of major jurisdictions across both common-law and civil-law traditions. Recast as a structural rather than a semantic or interpretive phenomenon, legal indeterminacy reorients the analysis of judicial review, executive overload, and the recurrent oscillation of public-law doctrine, and counsels a jurisprudence of candor, naming, in each case, which logic is being sacrificed, and why.

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Lawrence Solum

William Boyd (UCLA School of Law) has posted Fact-making and Epistemic Virtue in the Administrative State (Building Democratic Capacity: Essays on Administrative Law’s Futures, Cambridge University Press, forthcoming) on SSRN.  Here is the abstract:

This chapter highlights the vital importance of government fact-making for the project of reimagining administrative law. It begins with Max Weber’s observation that bureaucracy depends fundamentally on knowledge production, and canvasses some of the most important examples of government fact-making, including especially regulatory science. The chapter then emphasizes three aspects of the Trump administration’s ongoing effort to undermine government fact-making: deconstruction, politicization, and epistemic capture, showing how these efforts have been framed in the language of epistemic virtue and hyper-ethics as part of a longer-term strategy to direct attention to the virtues of government knowledge practices rather than the underlying problems. The chapter concludes with some proposals for structural reform as well as a discussion of how the ongoing assault on government fact-making undermines not only our ability to see and understand particular problems but also the capacity for new publics to take shape in the first place.

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Lawrence Solum

Adeno Addis (Tulane University – Law School) has posted Community and Jurisdictional Authority on SSRN.  Here is the abstract:

We live in a world full of boundaries. Some boundaries are defined by geography. Others are marked by religion, ethnicity, language, and the like. These boundaries make communal life and individual identity possible, but they also limit or exclude other possibilities that might otherwise have flourished. Boundaries, therefore, both affirm and curtail freedom. Boundaries of whatever nature are defined by jurisdictional norms, whether those norms are explicitly adopted or implicit in the practice itself. This essay explores how jurisdictional norms in whatever way they have been adopted constitute the very communities whose values and coherence they seek to vindicate. The essay argues that jurisdictional norms are properly seen as constitutive of communities, for to prescribe or adopt jurisdictional rules is to assert or assume that, for this or that purpose, a particular entity is deemed to be a community of interest or a “community of principle.”

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Lawrence Solum

Randy E. Barnett (Georgetown University Law Center) and Josh Blackman (South Texas College of Law Houston) have posted Landor v. Louisiana Department of Corrections: Bringing Clarity to the Necessary and Proper Clause (Harvard Journal of Law & Public Policy, forthcoming) on SSRN.  Here is the abstract:

It is often said that bad facts make bad law. Landor v. Louisiana Department of Corrections is an exception to this rule. Prison guards in Louisiana cut the hair of a Rastafarian prisoner in violation of his religious beliefs. In a 6-3 decision, the Supreme Court ruled that Landor could not sue the guards in federal court for monetary damages. Justice Neil Gorsuch’s majority opinion got the Constitution right in two important respects. First, Landor affirmed a judicially enforceable limit to Congress’s Spending power. Second, Landor affirmed judicially enforceable limits to the Necessary and Proper Clause. This decision, which may be the “sleeper” case of the term, should come to be viewed as a landmark separation of powers decision on par with Lopez, Morrison, Printz, and NFIB.

Part I of this essay describes Landor’s claim under the spending power. The Court held that Spending Clause conditions bind only those who consent to them. Part II turns to Landor’s fallback argument based on the Necessary and Proper Clause. Here, the Court distinguished between executing an enumerated power and serving the goals of a statute enacted under it. Parts III and IV trace that distinction through the leading Commerce Clause cases: Lopez and Morrison, which confined the Substantial Effects doctrine to economic activity, and Raich, in which Justice Scalia’s concurrence tied that doctrine and its exceptions to the Necessary and Proper Clause. Part V shows how Landor adopts Justice Scalia’s framing of the inquiry and holds the proposed remedy “improper” as well. Part VI explains where the Landor dissent goes astray. We conclude with Landor’s place in the decades-long effort to restore the Constitution’s limits on federal power.

Highly Recommended!

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Lawrence Solum