Lawrence Solum
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Articles by Lawrence Solum
Sunstein on The Moral Obligations of Government Lawyers
Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted The Moral Obligations of Government Lawyers on SSRN. Here is the abstract: All over the world, government lawyers have crucial roles, but in many nations, they are under considerable pressure, and they may be marginalized, ignored, fired, or punished. Sometimes their independence is challenged, and they are asked to do the bidding of politicians. What are their moral obligations?
Siegel on Judicial Self-Protection in the Shadows
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.
Sunstein on Interpretation Is Many Things
Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted Interpretation Is Many Things on SSRN. Here is the abstract: The word “interpretation” covers a range of practices, including but not limited to the identification of intended meaning; use of original public meaning; and efforts both to fit and to justify existing materials.
Sunstein on Not Being “Trapped in Amber”
Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted On Not Being “Trapped in Amber” on SSRN. Here is the abstract: In United States v. Rahimi, Chief Justice Roberts wrote that the meaning of the Constitution is not “trapped in amber.” But it is possible to object that the meaning of the Constitution is fixed, and that to that extent, it is indeed trapped in amber. Justice Kavanaugh’s opinion in Trump v.
Sunstein on Two Accounts of Freedom: Mill vs. Hayek
Cass R. Sunstein (Harvard Law School) has posted Two Accounts of Freedom: Mill vs. Hayek on SSRN. Here is the abstract: John Stuart Mill and Friedrich Hayek were defining theorists of freedom, but they offered very different accounts of both the scope of freedom and its justification. Mill put a bright spotlight on individuals, their knowledge, their potential, and their agency.
Solum on Constitutional Theory
Lawrence B. Solum (Texas A&M University School of Law) has posted For Constitutional Theory (California Law Review, forthcoming 2026) on SSRN. Here is the abstract: Since the publication of James Bradley Thayer’s “The Origin and Scope of the American Doctrine of Constitutional Law” in 1893 there has been an outpouring of theorizing about constitutionalism in the American context.
Legal Theory Bookworm: “The Price of Happiness” by Sunstein
The Legal Theory Bookworm recommends The Price of Happiness: Behavioral Economics and Willingness to Pay by Cass R. Sunstein. Here is a description: People often ‘miswant.’ They buy goods that do not make them happy and refuse to buy goods that would make their lives better. In The Price of Happiness, Cass R. Sunstein focuses on people’s ‘willingness to pay,’ which is the foundation for free markets.
Smith on Common Sense and Candor in Rahimi
Michael L. Smith (University of Oklahoma College of Law) has posted Common Sense and Candor in Rahimi and Beyond (48 Cardozo Law Review, forthcoming 2027) on SSRN. Here is the abstract: In United States v. Rahimi, the Court purported to interpret and apply the Second Amendment through a focus on historical tradition.
Sunstein & Layman on the Flawed Architecture of Expert Evidence
Cass R. Sunstein (Harvard Law School; Harvard Kennedy School) and Jessie Layman have posted On the Flawed Architecture of Expert Evidence on SSRN. Here is the abstract: Courts often rely on expert witnesses to translate technical jargon and draw conclusions from complex evidence. Because of their epistemic disadvantages, factfinders are poorly equipped to evaluate the reliability of expert witness testimony.
Sunstein on Hayekian Liberalism vs. Conservatism
Cass R. Sunstein (Harvard Law School) has posted Hayekian Liberalism vs. Conservatism on SSRN. Here is the abstract: Friedrich Hayek is a hero and an inspiration to conservatives all over the world, but in one of his sharpest essays, he explained why he is not a conservative. He urged that while conservatives seek to impose a salutary brake on change, they do not tell us where to go. He argued that conservatives do not sufficiently respect freedom and that they are far too willing to override it.
Choi & Gulati on the Last Casebook Hero
Stephen J. Choi (New York University School of Law) and Mitu Gulati (University of Virginia School of Law) have posted The Last Casebook Hero on SSRN. Here is the abstract: Every generation of law students learns the law from a handful of judicial heroes: Cardozo, Hand, Traynor, and, for the last four decades, Posner and Easterbrook. We ask who is next in line.
Legal Theory Lexicon: History and Tradition in Constitutional Theory
Introduction Law students are almost certain to encounter the phrase “history and tradition” in constitutional law. The phrase appears in cases about guns, abortion, and prayer at public high school football games. But what does “history and tradition” actually mean? Is history and tradition simply another name for originalism? Or is the turn to history and tradition part of a reconfiguration of constitutional pluralism by conservative justices?
Download of the Week: “Restoration Narratives” by Sunstein
The Download of the Week is Restoration Narratives by Cass R. Sunstein. Here is the abstract: There are narratives of constitutional restoration. They have immense appeal, and they appear to be on the ascendency. They take the following stylized form: “At the time of the founding, a constitutional provision meant X. Almost everyone understood that it meant X. At some point after the authoritative moment, an inexcusable and even shocking blunder was made.
Sunstein on Restoration Narratives
Cass R. Sunstein (Harvard Law School) has posted Restoration Narratives on SSRN. Here is the abstract: There are narratives of constitutional restoration. They have immense appeal, and they appear to be on the ascendency. They take the following stylized form: “At the time of the founding, a constitutional provision meant X. Almost everyone understood that it meant X. At some point after the authoritative moment, an inexcusable and even shocking blunder was made.
Legal Theory Lexicon: Criminal Law Theory
Law students almost always encounter criminal law in their first year, frequently in the first semester. The traditional course in criminal law introduces students to the way the law approaches deep moral questions. What justifies the state’s deliberate imposition of suffering on offenders? What conduct should be criminalized? The criminal law does not (and should not) punish everything that is wrong or harmful — so what are the limits? What are the general conditions of criminal liability?
Sunstein on Paternalism and Autonomy
Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted Paternalism and Autonomy on SSRN. Here is the abstract: Some of the most intuitive and deeply held objections to paternalism point to autonomy. A central claim is that paternalism is objectionable even if it improves people’s lives, because it does not treat people as adults or with respect.
Lawrence on Antifragile Administrative Law
Matthew B. Lawrence (Emory University School of Law) has posted Antifragile “Administrative Law”: The Systemic Effects of Executive Lawbreaking on SSRN.
Klick on the Hidden Costs of Climate Superfund Laws
Jonathan Klick (University of Pennsylvania Carey Law School) has posted You Can’t Tax the Past Without Pricing the Present: The Hidden Costs of Climate Superfund Laws on SSRN. Here is the abstract: State climate change superfund laws aim to retrospectively tax producers of fossil fuels to defray the costs associated with climate change.
Sunstein on Ethical Nudging
Cass R. Sunstein (Harvard Law School) has posted Ethical Nudging on SSRN. Here is the abstract: All over the world, governments are using nudges as regulatory tools. Is this ethical? When? Much of the answer depends on whether nudges promote or instead undermine welfare, autonomy, and dignity. Many nudges, and those that deserve support, promote some or all of those ideals, and undermine none of them.
Nielson and Walker on Article II and the Civil Service
Aaron L. Nielson (University of Texas at Austin — School of Law) and Christopher J. Walker (University of Michigan Law School) have posted Article II and the Civil Service, forthcoming in Virginia Law Review, Vol. 113 (2027), on SSRN. Here is the abstract: The federal government employs more than two million civil servants. Most are hired through a competitive process centered on competence and cannot be fired for holding political opinions different from the President’s.
Legal Theory Stack | Sunday, April 6, 2026
Welcome to the weekend edition of Legal Theory Stack, covering this weekend’s posts from Legal Theory Blog — the Download of the Week, the Legal Theory Bookworm, and the new Legal Theory Lexicon entry. Download of the Week This week’s Download of the Week is “Pragmatic Conceptualism, Public Nuisance, and the American Opioid Litigation“ by Benjamin Zipursky (Fordham).
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Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted Does AI Have Rights? on SSRN. Here is the abstract: Does Artificial Intelligence (AI) have rights? A plausible answer depends on the answer to another question: Is AI capable of experiencing emotions, such as sadness, pleasure, regret, anxiety, joy, and distress?
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Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted Liberal AI on SSRN. Here is the abstract: Can AI be liberal? In what sense? One answer points to the liberal insistence on freedom of choice, understood as a product of the commitment to personal autonomy and individual dignity. Mill and Hayek are of course defining figures here, emphasizing the epistemic foundations for freedom of choice.
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The Legal Theory Bookworm recommends Decisions and Social Norms by by Edna Ullmann-Margalit & Cass R. Sunstein. Here is a description: This pathbreaking book casts new light on how to handle life’s most difficult decisions. Edna Ullmann-Margalit and Cass R. Sunstein examine the role of social norms in creating both stability and instability, while offering an in-depth exploration of why people choose not to choose.
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Amy J. Griffin (Georgetown University Law Center) has posted Peer Precedent: How Sister Circuits Shape Federal Appellate Decision-Making on SSRN. Here is the abstract: When federal appellate courts face issues of first impression, they attribute great weight to sister circuit precedent, even though they don’t have to. This Article provides the first full empirical and theoretical account of how and why courts use sister circuit decisions—peer precedent—in the absence of binding authority.
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Cass R. Sunstein (Harvard Law School; Harvard University – Harvard Kennedy School (HKS)) has posted Paternalism After Behavioral Economics on SSRN. Here is the abstract: Is paternalism legitimate? Might it increase welfare? When would it compromise autonomy in some impermissible way? The outpouring of empirical work on cognitive biases, and on departures from perfect rationality, has led to a wholesale rethinking of paternalism and its limits.
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The Download of the Week is The Origins of Statutory Stare Decisis by Christian R. Burset. Here is the abstract: Federal courts apply stare decisis with extra force to decisions that interpret statutes. Critics contend that this “supercharged” deference to statutory precedents lacks a legitimate pedigree. But that charge rests on conjecture, since scholars have paid little attention to how English courts historically handled such cases.
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Introduction Law students encounter the notion of “common law” very early in their legal education, frequently in an orientation program or on the first day of classes. The standard law school curriculum includes courses in contracts, property, and torts, which are “common law” subjects. And the reading of common law cases as presented in casebooks is the primary way in which students learn the doctrinal structure (the legal norms) of these common law subjects. But what is the common law?
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Nina Varsava (University of Wisconsin Law School) & Bill Watson (University of Illinois College of Law) have posted Originalism’s General-Law Turn on SSRN. Here is the abstract: Originalists are increasingly turning to a general-law theory of constitutional rights. Under this theory, constitutional enactment declared but did not create constitutional rights.
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Sherif Girgis (Notre Dame Law School) has posted Originalism’s Difference? (Florida Law Review | Vol. 77, 2025) on SSRN. Here is the abstract: Does originalism, if faithfully followed, make a difference to constitutional reasoning and outcomes? That’s the topic of this Essay, delivered as the 2025 Dunwody Distinguished Lecture in Law. Early originalists promised to tie judges’ hands and tether us to the Founding.
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Stephen J. Choi (New York University School of Law; European Corporate Governance Institute (ECGI)) & Mitu Gulati (University of Virginia School of Law; European Corporate Governance Institute (ECGI)) have posted Trump v. Biden Judges on SSRN.
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The Download of the Week is Abstract Review in Article III Courts by E. Garrett West. Here is the abstract: Federal courts are supposed to engage in judicial review only in concrete cases and controversies. Many European constitutional courts, by contrast, engage in abstract review of legislation.
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E. Garrett West (Yale University – Law School; Yale Law School) has posted Abstract Review in Article III Courts (139 Harv. L. Rev. (forthcoming 2026)) on SSRN. Here is the abstract: Federal courts are supposed to engage in judicial review only in concrete cases and controversies. Many European constitutional courts, by contrast, engage in abstract review of legislation.
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The Download of the Week is Managing Legal Concepts: Maintenance, Modulation, Modification by Andrew S. Gold & Henry E. Smith. Here is the abstract: Functionalists, especially those inspired by American Legal Realism, downplay the importance of abstract concepts and their interrelations as playing a role in legal reasoning. Hence, they stress shallow, narrow, and isolated concepts in order to be close to the facts in a transparent way.
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The Download of the Week is The Appellate Void by Andrew Coan. Here is the abstract: What would it actually look like for the executive branch to defy a court order? The standard picture involves a dramatic confrontation between the President and the Supreme Court. But recent events suggest a more mundane possibility that has been largely overlooked: After an adverse ruling, the government might simply ignore the district court’s order and refuse to appeal.
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I will be speaking at the 2025 Jorde Symposium at UC Berkely Law on this upcoming Monday, October 20, 2025 @ 4:00 pm – 6:00 pm in the Booth Auditorium of the Law Building. Dean Erwin Chemerinsky will be delivering a lecture entitled “Against Constitutional Theory” and my commentary will be entitled “For Constitutional Theory.” Here is a link to the event webpage: https://www.law.berkeley.edu/event/30th-jorde-symposium/
Legal Theory Lexicon: Communicative Content and Legal Content
Introduction One of the most basic ideas in legal theory is the distinction between “communicative content” and “legal content.” That sounds fancy, but this fundamental idea is very simple. Legal texts of all kinds communicate; they say things. Roughly, what they say is their linguistic meaning–the meaning of the words and phrases in context. Some legal texts, those that are valid, create legal norms.
Priel on Political Theories of the Realists
Dan Priel (City University of Hong Kong (CityU) - School of Law; York University - Osgoode Hall Law School) has posted The Political Theories of the Legal Realists on SSRN. Here is the abstract: A popular view about the legal realists is that, either knowingly or inadvertently, they advanced ideas inconsistent with traditional values, democracy, and the rule of law.
Miller on American Legal Realism
Paul B. Miller (Notre Dame Law School) has posted What the Realists Got Right (70 American Journal of Jurisprudence (forthcoming, 2026)) on SSRN. Here is the abstract: For the past several decades, realists and formalists have been deeply at odds. They have, however, mostly been talking past one another, with each side trading in caricature of the other. In this article, I aim to show the benefits of a more tempered approach; in my case, the approach of a formalist to realist thought.
DeGirolami on Legal Essences
Marc O. DeGirolami (Catholic University of America (CUA) - Columbus School of Law) has posted Person, Religion, and the Problem of Legal Essences (in Legal Personhood in Private Law (Christopher Essert, Eva Micheler, and Paul Miller, eds., Cambridge University Press, forthcoming)) on SSRN.
DeGirolami on Girgis on Originalism
Marc O. DeGirolami (Catholic University of America (CUA) - Columbus School of Law) has posted How A Theory Can Make A Difference (77 Fla. L. Rev. --- (forthcoming 2025)) on SSRN. Here is the abstract: Professor Sherif Girgis argues in his rich lecture that originalism as a theory of constitutional law is still unique in some ways, but not in others. I offer three reflections on Professor Girgis’s lecture.
Handler on the Administrative Law of McCarthyism
Nicholas Handler (Texas A&M University School of Law) has posted The Administrative Law of McCarthyism (Stanford Law Review, Vol. 78, Forthcoming 2026) on SSRN. Here is the abstract: This Article recovers the largely overlooked legal and administrative history of the federal loyalty-security program, and argues that it played a formative role in the development of modern civil service protections and administrative law.
Livingston & Barrett on Stare Decisis
Debra Ann Livingston (United States Court of Appeals) & John Q. Barrett (St. John's University School of Law; Robert H. Jackson Center) have posted A Conversation About Stare Decisis (St. John's Law Review , Vol. 98, No. 7, 2025) on SSRN. Here is the abstract: This wide-ranging conversation, edited lightly for publication, opened the St. John’s Law Review’s 2025 symposium, “Taking Stock of Stare Decisis.
Coan on Relative Stare Decisis
Andrew Coan (University of Arizona, James E. Rogers College of Law) has posted Relative Stare Decisis on SSRN. Here is the abstract: Stare decisis stands at a crossroads. The Supreme Court has recently overturned landmark precedents on abortion rights, affirmative action, and administrative deference, while signaling its willingness to reconsider other longsettled doctrines.
Richard Fallon, In Memoriam
I am saddened to learn of the passing of Richard Fallon, the Story Professor Law, at Harvard Law School. I have known Dick for more than 40 years. I was in his Federal Courts class during his first year of teaching at Harvard. We exchanged many emails, appeared together at conferences, and engaged each others work in print on many occasions. Dick Fallon was a a superb teacher, a wonderful human being and a towering figure in constitutional theory.
Frye on the Harvard Law Review Memos Original
Brian L. Frye (University of Kentucky - J. David Rosenberg College of Law) has posted HLR Agonistes on SSRN. Here is the abstract: On June 19, 2025, the Washington Free Beacon published a collection of almost 500 confidential memos written by Harvard Law Review editors, evaluating the articles submitted for publication. For the first time, the public has access to inside information about the preferences of the editors of the Harvard Law Review.
Bayefsky on Tradition and Feminism in Constitutional Rights Adjudication
Rachel Bayefsky (University of Virginia School of Law) has posted Tradition and Feminism in Constitutional Rights Adjudication on SSRN. Here is the abstract: In recent years, "tradition" has been influentially invoked in constitutional rights adjudication and legal scholarship.
Legal Theory Bookworm: "Judicial Character in Hard Times," edited by Widłak
The Legal Theory Bookworm recommends Judicial Character in Hard Times: On the Role of Judicial Virtues in Defending the Rule of Law, edited by Tomasz Widłak. Here is a description from a review: ‘Hard times is a scalar description that can cover a wide range of states of affairs, from the erosion of “rule of law” legal and institutional settings to new challenges for the judiciary, such as the supranational practice of judging or political and social polarisation.
Sachs on Normative Constitutional Theory
Stephen E. Sachs (Harvard Law School) has posted Is and Ought in Constitutional Law: A Response to Joel Alicea (Harvard Journal of Law and Public Policy, Volume 48, No. 1, Pp. 345-359 (2025)) on SSRN. Here is the abstract: Does originalism need a moral defense? To choose one method of interpretation over another, some argue, is an action: it affects how judges and officials will affect the real world.
Download of the Week: "Oligarchy, State, and Cryptopia" by Cohen
The Download of the Week is Oligarchy, State, and Cryptopia by Julie E. Cohen. Here is the abstract: Theoretical accounts of power in networked digital environments typically do not give systematic attention to the phenomenon of oligarchy—to extreme concentrations of material wealth deployed to obtain and protect durable personal advantage.
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