Digital Commons Network^™

Pillar Two: Much Ado About Next To Nothing?, Julie Roin

Public Law and Legal Theory Working Papers

The OECD has spent the last fifteen years working on the design and implementation of rules for the taxation of the income derived from international transactions, rules that its members hope will both increase corporate tax revenues and minimize “destructive” tax competition. In 2021, it released its two-part “Inclusive Framework.” Although Pillar One of this Framework still languishes, legislation necessary for the implementation of Pillar Two, which is designed to force all countries to impose a minimum tax on income derived by large multinational enterprises, has been enacted by most of the countries in the European Union, Japan, South Korea …

Structural Logics Of Presidential Immunity, Aziz Z. Huq

Public Law and Legal Theory Working Papers

In Trump v. United States, the Supreme Court wrought two new presidential immunities from criminal prosecution. Supplemented by a pair of penumbral evidentiary rules, these inhibit criminal indictment or conviction of the president, and indeed many subordinate officials, across many imaginable fact-patterns. The Court justified this result on consequentialist, not originalist or precedential, grounds. But its analysis of immunity’s effects was radically incomplete. It focused narrowly on the person of the president, eschewing any attempt to situate or relate that individual’s incentives and behavior to the wider institutional contexts of the executive branch at large or the partisan-political environment of …

Islands Of Algorithmic Integrity: Imagining A Democratic Digital Public Sphere, Aziz Z. Huq

Public Law and Legal Theory Working Papers

This essay offers a new analytic lens for evaluating the design of digital platforms from the perspective of democratic values. It develops a model of desirable platform design, and them ask present legal interventions move is toward that aspiration. The aspirational model is not draws on an idea found in the scholarly literatures in political science and sociology about economic development . This is the notion that development policy should aim to seed “islands of integrity,” into patrimonial or nepotistic state structures as a way of building foundations for a more robust and hence public-regarding state apparatus. This literature explores …

Family, Faith And Nation: The Roberts Court And The Global Pivot Against Legal Liberalism, Aziz Z. Huq, Tom Ginsburg

Public Law and Legal Theory Working Papers

The Roberts Court has veered sharply in a culturally conservative direction. Traditional solidarities of faith, family, and nation have been elevated above the individual autonomy interests that motivated the justices in the twentieth century. The Supreme Court’s jurisprudence in this vein complements and is reinforced by changes in public law more generally—for example, in recent executive orders that amplify the same values. In legal scholarship, this jurisprudential shift is pervasively framed in terms of domestic electoral politics, in particular as a product of Republican dominance of the presidency and the Senate at key moments.

But expand the analytic lens outward, …

Constitutional Drafting Processes And Constitutional Success, Adam Chilton, Murat C. Mungan, Mila Versteeg

Public Law and Legal Theory Working Papers

Several recent constitution-making processes have been celebrated for being participatory, inclusive, and representative. However, many of these processes also failed. We theorize that aspects of these kinds of constitutional drafting processes could reduce the probability of constitutional success. To show why, we construct a “Constitution Drafting game” (CD game) in which representatives from different interest groups must draft a constitution. We consider the case where the probability of constitutional success is single peaked, but the value from successful adoption is increasing in the degree of issue protection chosen. The drafting process then leads to protection choices that are above those …

When The Executive Has Unclean Hands, William Baude, Samuel L. Bray

Public Law and Legal Theory Working Papers

Those who come into equity must come with clean hands. But what happens when it is the executive who seeks equitable relief? This Essay argues that the unclean-hands doctrine applies to the executive, though in a modified form that reflects the relation- ships between officials in the executive branch, between the executive and legislative branch, and between the government and the people. It then applies the doctrine to current controversies such as government requests for stays from the Supreme Court, and a pending lawsuit against the District of Maryland.

Bypassing Agency Adjudication, Brian Lipshutz

Public Law and Legal Theory Working Papers

This Article examines the contested practice of bypassing agency adjudication to accelerate judicial review of non-final executive action. Parties typically challenge final action under the Administrative Procedure Act (APA). But parties may also seek an injunction or declaratory judgment with respect to a non-final action that violates a statute or the Constitution. Traditionally, such “ultra vires” review required a clearly unlawful action and an inadequate administrative remedy. But modern courts further limit it by applying three judicially developed timing doctrines—exhaustion, ripeness, and Thunder Basin.

This Article explains why the traditional ultra vires model— without the timing doctrines—should govern the bypassing …

Liquidation, Then And Now, William Baude

Public Law and Legal Theory Working Papers

No abstract provided.

The American Attack On Academic Freedom In Comparative Perspective, Tom Ginsburg

Public Law and Legal Theory Working Papers

Academic freedom is under threat in many countries, and the United States is no exception. This chapter places the American framework for academic freedom in comparative perspective, and describes the techniques being deployed against it. A common threat is to leverage the use of government funds as a way to change internal university governance. Less common, however, is something that we have seen in the United States, which is a threat to academic freedom from civil society itself. The trend is accelerating through social media, and is structurally similar to that of the fascist period in Europe in which there …

Remedies For A Constitutional Crisis, William Baude, Samuel L. Bray, Marin K. Levy

Public Law and Legal Theory Working Papers

Remedies for a Constitutional Crisis William Baude,* Samuel L. Bray,** and Marin K. Levy*** 139 Harv. L. Rev. (forthcoming 2026) Draft of September 29, 2025 In a crisis of authority, where it is unclear whether executive officials will comply with judicial decisions, the courts may seem to have limited remedial options. What can they do other than order that their decisions be followed, and hope for the best? This Essay shows that even once judges are firmly convinced that the executive has violated the law, their remedial options are wide and complicated. Moreover, the best path is frequently not obvious. …

Agonistic Federalism, Aziz Z. Huq, Zachary D. Clopton

Public Law and Legal Theory Working Papers

It’s been called the “oldest question” of American constitutional law: How does the national government deal with its sovereign subnational states? Judges and scholars have tried to capture this dynamic via theories of “dual federalism,” “process federalism,” “cooperative federalism,” or “federalism by integration.” But all these models suddenly seem to have superseded, and even perhaps rendered obsolete, by an unexpected step-change in the intensity of federal-state conflicts. In the place of longstanding federalism models, this article demonstrates, an underappreciated form of intergovernmental relations has emerged. We call this model “agonistic federalism.” The article’s aim is to introduce and theorize this …

Pretrial Detention Without Counsel, Alison M. Siegler, Jaden M. Lessnick

Public Law and Legal Theory Working Papers

In federal courts across the country, judges are locking defendants in jail before trial without first giving them a lawyer. This deprivation-of-counsel crisis not only violates the statutory, regulatory, and administrative right to counsel at initial appearance hearings, but may even contravene the Sixth Amendment. This article builds on our Freedom Denied report—the first nationwide study of federal pretrial detention—and new data collected since. It makes three primary contributions. First, we explain the sources and nature of the right to counsel at federal initial appearance hearings (the first bail hearing in federal court). Second, we provide a data-driven illustration of …

The Reception Of Novella, Daughter Of The Bolognese Jurist Giovanni D'Andrea, In Christine De Pizan's City Of Ladies, Mary Anne Case

Public Law and Legal Theory Working Papers

Although the announced theme of Book 2, Chapter 36 of the Livre de la cité des dames is “against those men who claim it is not good for women to be educated,” a clear subtheme is filiation, since each of the three learned women on whom the chapter focuses – Hortensia, Novella, and Christine herself – is educated by her learned father. As it happens, the three women also have in common that they used their learning to defend their sex, but, interestingly, the chapter only discusses this “support for the cause of women” with respect to one of them, …

A Meditation On The Thirteenth Amendment And Constitutional Redemption, Darrel A. H. Miller

Public Law and Legal Theory Working Papers

No abstract provided.

Monarchy, Tom Ginsburg

Public Law and Legal Theory Working Papers

No abstract provided.

Falsifying Tradition, Darrell A.H. Miller

Public Law and Legal Theory Working Papers

From cases spanning gun rights, reproductive freedom, religious liberty, and personal jurisdiction; to separation of powers and other structural features of the Constitution, courts increasingly rely on tradition to guide their decisions. Often, judges appeal to tradition in a vaguely empirical way, as “facts to study, not convictions to demonstrate about,” in the words of Justice Antonin Scalia. Yet, for a claim that purports to be factual, there’s very little agreement, or even analysis, about what renders this factual assertion—tradition—true or false. This Article tackles that foundational issue.

Part I surveys the ways in which courts use tradition in different …

The Supreme Court Under Threat: Early Lessons In Judicial Self- Protection, Curtis Bradley, Neil S. Siegel

Public Law and Legal Theory Working Papers

This Essay explores how the U.S. Supreme Court, despite being vulnerable to defiance of its decisions and political retaliation, has developed tools of judicial self- protection to preserve its institutional authority as well as the Constitution and the rule of law. Arguing that the Court performs not only a legal role that requires interpretation of the law but also a political one that demands institutional preservation, the Essay examines how the Court has historically navigated political threats by using a range of tools—including avoidance, delay, narrow rulings, strategic dicta, and rhetorical appeals. The Essay focuses on three nineteenth-century episodes: the …

Space Over Time: Housing For The Life Cycle, Lee Anne Fennell

Public Law and Legal Theory Working Papers

People need housing throughout the life cycle, and what they need from that housing changes over time. Yet the menu of residential options is often too static, rigid, and limited to respond to these changes. What would it mean to configure housing to adapt to households’ evolving spatial requirements, risk tolerances, health challenges, and financial statuses? How could greater flexibility in the built environment enable communities to deliver better residential services to their populations? Elder housing offers a illuminating window into these questions and their answers. Addressing life-stage correlated housing mismatches could help to loosen the larger supply constraints—and failures …

Informative Jury Disagreement, Roy Baharad

Public Law and Legal Theory Working Papers

The article introduces a counterintuitive argument, contending that jury disagreement on the defendant’s guilt—a nonunanimous conviction—may well provide a more informative signal, compared to consensus. Because stronger consensus implies higher likelihood of herding, it is shown that beyond some threshold, further accumulation of votes to convict would carry negligible epistemic contribution, barely enhancing the posterior probability of guilt. On the other hand, while dissenting votes provide a direct signal of innocence, they indicate that herding has not been involved in the decision-making process, hence increase the epistemic contribution of any vote generated by said process— including votes to convict—and may …

The Constitution And The War On Dei, Sonja A. Starr, Genevieve Lakier

Public Law and Legal Theory Working Papers

his Article examines how the second Trump Administration’s aggressive attacks on programs, policies, and speech loosely associated with diversity, equity, and inclusion [DEI] intersect with the constitutional guarantees of equal protection and freedom of speech. We argue first that there is little doctrinal support for the administration’s pervasive efforts to justify its war on DEI by invoking the Equal Protection Clause and parallel statutory law. Instead, the administration is stretching existing colorblindness doctrine beyond recognition, into a radical vision that we label “anti-antisubordination.” On this view, vindicating equality values does not only require restricting practices that treat individuals differently based …

Yes, The Founders Were Originalists, William Baude

Public Law and Legal Theory Working Papers

Jonathan Gienapp’s Against Constitutional Originalism accuses originalism of a kind of self- defeat, arguing that the Founders weren’t really originalists. But like Jefferson Powell’s sim- ilar argument forty years ago, which encouraged a shift from original intent to original meaning, Gienapp’s work may only help along a similar shift, this time from original mean- ing to our original law.

Gienapp makes four main claims: that the Founders’ Constitution wasn’t conventional law; that the Founders couldn’t agree on how to read it; that much of their fundamental law was unwritten; and that no originalist theory can account for this. As we …

Extradition In The Early Republic: International Law And Constitutional Authority, Curtis Bradley

Public Law and Legal Theory Working Papers

This Article is the first comprehensive account of the constitutional foundations of U.S. extradition practice and its relationship to international law. Through detailed analysis of early American extradition controversies—including the Longchamps Affair and the Robbins case—the Article shows how political actors and courts constructed the modern constitutional law of extradition, resolving key issues concerning presidential power, the role of the states, and the scope of congressional authority. This regime, the Article argues, emerged not from appeals to the constitutional text or original understandings, but rather from structural intuitions, consequentialist considerations, and, as time went on, historical traditions. As the Article …

Machine-Learning Human Rights, Han‐Wei Ho, Patrick Chung-Chia Huang, Nuno Garoupa, Martin T. Wells, Yun-Chien Chang, Tom Ginsburg

Public Law and Legal Theory Working Papers

Utilizing a comprehensive panel dataset spanning from 1900 to 2020, this study introduces an innovative methodology for the analysis and categorization of legal documents, specifically national constitutions. Contrary to the predominant reliance on unsupervised methods within the field, this research incorporates a supervised machine-learning approach, notably the SEMMS method, alongside traditional unsupervised algorithms. This dual approach facilitates a nuanced analysis of the human rights provisions contained within national constitutions, resulting in the identification of both traditional and novel constitutional groupings. Broadly speaking, the more traditional common law-civil law divide does not seem particularly relevant in this context. Furthermore, our methodology …

Bargaining In The Shadow Of The Efaa, Samuel Cole

Public Law and Legal Theory Working Papers

No abstract provided.

Presidential Brokering In The Regulatory State, Jennifer Nou

Public Law and Legal Theory Working Papers

Presidents seeking to make regulatory policy face formidable hurdles—most recently, heightened litigation risk, reduced judicial deference, and political polarization. In response, they have increasingly relied upon the Executive Office of the President (“EOP”) to manage these challenges. This Foreword spotlights the practice of presidential brokering, a structured process often led by White House policy councils such as the Domestic Policy Council and National Economic Council. Brokering involves the delegated authority to generate and test regulatory options through moderated deliberation with the rulemaking agency and other components of the EOP, ultimately shaping select rules to align with the highest presidential priorities. …

Purdue Pharma And The New Bankruptcy Exceptionalism, Anthony Casey, Joshua Macey

Public Law and Legal Theory Working Papers

No abstract provided.

Space Over Time: Housing For The Life Cycle, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

People need housing throughout the life cycle, and what they need from that housing changes over time. Yet the menu of residential options is often too static, rigid, and limited to respond to these changes. What would it mean to configure housing to adapt to households’ evolving spatial requirements, risk tolerances, health challenges, and financial statuses? How could greater flexibility in the built environment enable communities to deliver better residential services to their populations? Elder housing offers a illuminating window into these questions and their answers. Addressing life-stage correlated housing mismatches could help to loosen the larger supply constraints—and failures …

Informative Jury Disagreement, Roy Baharad

Coase-Sandor Institute for Law & Economics Research Paper Series

The article introduces a counterintuitive argument, contending that jury disagreement on the defendant’s guilt—a nonunanimous conviction—may well provide a more informative signal, compared to consensus. Because stronger consensus implies higher likelihood of herding, it is shown that beyond some threshold, further accumulation of votes to convict would carry negligible epistemic contribution, barely enhancing the posterior probability of guilt. On the other hand, while dissenting votes provide a direct signal of innocence, they indicate that herding has not been involved in the decision-making process, hence increase the epistemic contribution of any vote generated by said process— including votes to convict—and may …

Forced Migration And Women’S Empowerment: Evidence From Rohingya Refugees, Adam Chilton, Katerina Linos, Anup Malani

Coase-Sandor Institute for Law & Economics Research Paper Series

We explore a paradox: high levels of satisfaction among forcibly displaced Rohingya women in informal camps in Hyderabad, India. Despite experiencing extreme poverty, loss of family and community, and high levels of gender-based violence after resettlement, both men and women—particularly women—report significant increases in satisfaction. We structured a representative household survey, employed a trusted female Muslim interviewer with deep ties to the local community, interviewed comparable numbers of men and women, and embedded list experiments in our questionnaire, to allow people to answer sensitive questions indirectly. We attribute this paradoxical finding to increased freedom post-resettlement, facilitated by economic, legal, and …

Introducing The Corporate Restructuring Machine: An Open Platform Approach, Horst Eidenmüller, Jared I. Mayer

Coase-Sandor Institute for Law & Economics Research Paper Series

The promise of Artificial Intelligence (AI) has become apparent. Yet how will AI affect corporate reorganizations? Based on previous work on the use of AI applications in negotiations, we argue that the potential of such applications to increase the efficiency of corporate workout negotiations is significant. To do so, we imagine the “Corporate Restructuring Machine” (CRM). This is a private, online platform armed with AI tools and services that are designed to support or even automate corporate workouts (out-of-court restructurings). Stakeholders, particularly creditors and shareholders, could join the platform and opt into AI applications at different times, for different services, …