Emad H. Atiq, Professor of Law & Philosophy and Andrei Marmor, Jacob Gould Schurman Professor of Philosophy and Law (with coauthor Alex F. Sarch)
“The Nature of Law,” The Stanford Encyclopedia of Philosophy (summer 2025 edition), https://plato.stanford.edu/archives/sum2025/entries/lawphil-nature/.
Lawyers tend to raise questions about the content of the law or about what the law requires on this or that issue. These are always local questions, answers to which are bound to differ depending on the jurisdiction. By contrast, philosophy of law is interested in a general question: what is law? This question presupposes that there are certain characteristics that law exhibits by its very nature, or essence, as law, whenever and wherever it happens to exist, characteristics that may be discernible through philosophical analysis. General jurisprudence, as the philosophical project is sometimes called, aims to give an account of law’s nature, in the service, ultimately, of several explanatory goals. A satisfying account is supposed to shed light on what determines the content of legal norms; on law’s normative significance—both how it purports to guide behavior and why it gives agents reasons for compliance; and on the relationship, if any, between law and other bodies of norms, such as the norms of morality or custom.
But here, as elsewhere in philosophy, there are deep disagreements about the desiderata for a satisfying account. It might even be somewhat misleading to suggest that there is a single question—what is law?—that unites the field, as opposed to several related questions. For instance, there are at least two senses in which the term “law” is used in jurisprudence: to refer to a kind of norm (a legal norm), or to refer to a kind of normative system (a legal system). Corresponding to these two senses are different questions. One concerns the general conditions under which a norm gets to be a norm of law—whether the conditions refer only to the norm’s source, such as its enactment by some political institution, or also its content, such as its moral virtues. This is the question of the “grounds of legal validity.” A different but related question concerns the distinctive characteristics of a body of norms that make it a system of law. This is the question of the existence and persistence conditions of a legal system. Additionally, some philosophers focus primarily on explaining and justifying the normativity of law, and only secondarily on law’s nature. Their questions are several: how do legal norms give rise to reasons for action, what kinds of reasons are involved, and are there distinctively legal obligations.
John H. Blume, Samuel S. Leibowitz Professor of Trial Techniques and Director, Cornell Death Penalty Project (with coauthors I-An Su and Stephen J. Ceci)
“Analyzing the Successful Incompetent to Be Executed Cases in the United States: A First Pass,” Behavioral Sciences, vol. 15, no. 3 (2025).
More than three decades ago, the Supreme Court of the United States ruled that individuals who are not competent (alternatively referred to by the Court as insane) at the time of their scheduled execution cannot be put to death. Despite the years that have passed since the Court’s decision and the literal life-or-death stakes involved, competency for execution (CFE) remains underexplored in the psychological, psychiatric, and legal literature. A number of important legal and ethical issues that arise when a person on death row maintains they are not competent to be executed are still unresolved even after the landmark Supreme Court cases such as Ford v. Wainwright (1986), Panetti v. Quarterman (2007), and Madison v. Alabama (2019). In this first-of-its-kind descriptive study, we analyzed the demographic and case characteristics of the twenty-eight successful Ford claimants—individuals in the United States who have been found to be incompetent to be executed and compared them to the general death row population and homicide cases nationwide. Our findings reveal some similarities but also some differences between these claimants and the general death row population and homicide cases: the successful Ford claimants are exclusively male (in keeping with the general prison population on death row), relatively older, and underrepresented among White and Latinx inmates (i.e., Black claimants are more successful than their White and Latinx counterparts at evading execution). Nearly all (96 percent) suffer from schizophrenia, with 79 percent experiencing psychiatric comorbidity, yet only 54 percent received any significant treatment before or after the criminal offense. The claimants’ cases also involve a higher proportion of child victims, male family members, and female non-family member victims, as well as more multiple-victim cases (not indiscriminate) and fewer intraracial homicides. Fewer victims are male, and more are female. However, the cases do not align with typical male-on-male violent crimes or femicide patterns, such as those involving sexual or domestic violence. Additionally, systematic psycho-legal deficiencies are prevalent, including a low rate of mental health evidence (61 percent) presented at trials and some cases lacking psychiatric involvement in CFE evaluations. Temporal influence and drastic state variations on CFE evaluation are also noted. Although the small sample size limits generalizability, this small-scale descriptive study offers a number of important insights into the complexities of CFE decisions and lays the groundwork for future research and policy development.
Jessica Eaglin, Professor of Law
“Opening the Black Box,” The Washington University Journal of Law and Policy, vol. 78, no. 1 (2025).
In response to the tenth anniversary of the Ferguson uprisings, this essay examines how the protests reshaped legal discourse on algorithmic decision-making in criminal law, with a specific focus on systemic racial injustice. By deconstructing the metaphorical “black box,” the essay surveys the intersection of race, technology, and incarceration while also illustrating how the uprisings influenced public and scholarly engagement with technologies in criminal law. Building on this analytic insight, the essay cautions against too narrow a focus on reforming specific information technologies rather than addressing the legal and social structures that sustain racial inequality. The essay concludes by urging scholars and policymakers to engage with the structural dimensions of technology in criminal law and develop more comprehensive approaches to justice in the digital age.
James Grimmelmann, Tessler Family Professor of Digital and Information Law (with coauthors Benjamin Sobel and David Stein)
“Generative Misinterpretation,” Harvard Journal on Legislation, vol. 63, no. 1 (forthcoming 2026).
In a series of provocative experiments, a loose group of scholars, lawyers, and judges has endorsed generative interpretation: asking large language models (LLMs) like ChatGPT and Claude to resolve interpretive issues from actual cases. With varying degrees of confidence, they argue that LLMs are (or will soon be) able to assist-or even replace-judges in performing interpretive tasks like determining the meaning of a term in a contract or statute. A few go even further and argue for using LLMs to decide entire cases and to generate opinions supporting those decisions.
The authors of this paper respectfully dissent. In this article, they show that LLMs are not yet fit for purpose for use in judicial chambers. Generative interpretation, like all empirical methods, must bridge two gaps to be useful and legitimate. The first is a reliability gap: are its methods consistent and reproducible enough to be trusted in high-stakes, real-world settings? Unfortunately, as the authors show, LLM proponents’ experimental results are brittle and frequently arbitrary. The second is an epistemic gap: do these methods measure what they purport to? Here, LLM proponents have pointed to (1) LLMs’ training processes on large datasets, (2) empirical measures of LLM outputs, (3) the rhetorical persuasiveness of those outputs, and (4) the assumed predictability of algorithmic methods. The authors show, however, that all of these justifications rest on unstated and faulty premises about the nature of LLMs and the nature of judging.
The superficial fluency of LLM-generated text conceals fundamental gaps between what these models are currently capable of and what legal interpretation requires to be methodologically and socially legitimate. Put simply, any human or computer can put words on a page, but it takes something more to turn those words into a legitimate act of legal interpretation. LLM proponents do not yet have a plausible story of what that “something more” comprises.
“Listeners’ Choices Online,” Southern California Law Review, vol.98, no.5 (2025).
The most useful way to think about online speech intermediaries is structurally: a platform’s First Amendment treatment should depend on the patterns of speaker-listener connections that it enables. For any given type of platform, the ideal regulatory regime is the one that gives listeners the most effective control over the speech that they receive.
In particular, we should distinguish four distinct functions that intermediaries can play. Broadcast, such as radio and television, transmits speech from one speaker to a large and undifferentiated group of listeners, who receive the speech automatically. Delivery, such as telephone, email, and broadband Internet, transmits speech from a single speaker to a single listener of the speaker’s choosing. Hosting, such as YouTube and Medium, allows an individual speaker to make their speech available to any listeners who seek it out. And selection, including search engines and feed recommendation algorithms, gives listeners suggestions about speech they might want to receive. Broadcast is relevant mostly as a (poor) historical analogue, but delivery, hosting, and selection are all fundamental on the Internet.
On the one hand, delivery and hosting intermediaries can sometimes be subject to access rules designed to give speakers the ability to use their platforms to reach listeners, because doing so gives listeners more choices among speech. On the other hand, access rules are somewhere between counterproductive and nonsensical when applied to selection intermediaries, because listeners rely on them precisely to make distinctions among competing speakers. Because speakers can use delivery media to target unwilling listeners, they can be subject to filtering rules designed to allow listeners to avoid unwanted speech. Hosting media, however, mostly do not face the same problem, because listeners are already able to decide which content to request. Selection media, for their part, are what enable listeners to make these filtering decisions about speech for themselves.
Erik Hovenkamp, Professor of Law
“Economics or Populism? The Battle for the Future of Antitrust,” University of Chicago Law Review (forthcoming).
Mainstream antitrust policy is grounded in economics and views the protection of competition as antitrust’s singular goal. But the populist “antimonopoly movement” believes antitrust should focus less on economic issues and more on the political influence of large firms. While the courts have long embraced the economic approach to antitrust, antimonopolists have recently gained some support in politics. This battle of ideas is therefore poised to determine the future of antitrust.
Antitrust law currently suffers from a number of problems, but the antimonopoly movement does not offer serious solutions. On the contrary, by deemphasizing tangible economic harms in favor of abstract political concerns, it would cause immense economic damage—higher prices, reduced innovation and growth, and fewer jobs. Antitrust populism is grounded in the moralistic belief that large companies are inherently detrimental to society, overlooking the fact that most big firms are big precisely because they have provided significant economic value to the public. Rather than punishing bigness for its own sake, antitrust should focus on proscribing anticompetitive behavior and ensuring all firms can compete on a level playing field.
As for the populist movement’s political objectives, they are too vague and too remote to provide any guidance on real-world competition issues. And they rest on an empirically unsupported link between firm size and political influence. Bodies of law that directly regulate political activity (e.g., campaign finance law) are far better suited to address these concerns. Reducing market concentration is also unlikely to curb firms’ political influence, because firms have a constitutional right to collectivize their advocacy and lobbying, which they frequently do through trade organizations.
K. Sabeel Rahman, Professor of Law
“Evolving Expertise: Structural Inequality and Bureaucratic Judgment,” Boston University Law Review (forthcoming 2025).
This symposium contribution explores this question of the pathways, possibilities, and limitations of evolving and adapting existing bureaucratic processes to shift how governments conceptualize and then respond to public problems, focusing in particular on efforts to embed concepts of equity, market power, and systemic responses to climate change in shaping administrative governance from 2021 to 2024.
Even as we now see a more vociferous counterreaction against policies aimed at advancing equity, reining in new forms of market-dominant corporate power, and tackling climate change, these very concepts faced a different set of challenges as they sought to be operationalized and institutionalized within a favorably inclined bureaucracy from 2021 to 2024. While attention is rightly directed in the coming months and years on navigating and withstanding this counterrevolution, there is also a need to interrogate the lessons and limitations of the kinds of policy evolutions that were under way in the aftermath of the social movement demands of 2020.
Focusing on the challenge of implementing new paradigms—and transforming existing discourses and practices of administrative governance—we see a more generalized set of challenges. Big new ideas about public policy must also be made legible, tractable, and implementable in context of the existing administrative and governance machinery itself. Even after the passage of new legislation—including the major new bills investing in post-pandemic economic recovery, infrastructure, and clean energy—they still need to be implemented through myriad administrative actions. Evolving, adapting, and leveraging existing bureaucratic processes requires more than either legislative or executive command, particularly if the goal is to rewire the ways in which existing policy mechanisms conceptualize and respond to public problems more broadly. This shifting of internal paradigms and approaches to governance within existing institutions can in some sense be a source of slowdown, friction, or erosion of more transformative possibilities. In another sense, though, if done right, such attentiveness to the inner discourses and dynamics of bureaucracies can be a component of how new ideas become institutionalized.
As scholars and practitioners begin to imagine what kinds of administrative institutions ought to be rebuilt or redesigned for the future, the possibilities and limitations of administrative governance prior to the current period of destabilization and dismantling should be one of many data points informing deeper reconsiderations.
Nelson Tebbe, Jane M.G. Foster Professor of Law
“Repeals of Religious Accommodations,” American University Law Review, vol. 74 (2024).
Can governments repeal religious accommodations? Because accommodations are voluntary, not mandated by the Constitution or other laws, they traditionally have been thought to be freely rescindable. However, a recent argument suggests that repeals of religious accommodations are presumptively invalid under the Free Exercise Clause because they target and burden believers. This argument is not completely inconceivable at a time when the Roberts Court is upending free exercise and nonestablishment law.
Yet implementing a presumption against repeals of religious accommodations would generate sharp contradictions. Rather than assessing the attractiveness of such a change, this response examines those complexities. It investigates the proposed rule against religious anticlassification, the impact on animus doctrine, the application of the Tandon rule, and six smaller issues. The conclusion suggests implications for judicial politics and for the shift in Supreme Court doctrine towards a new paradigm of religious freedom.
Charles K. Whitehead, Myron C. Taylor Alumni Professor of Business Law
“Delaware’s Agency Problem,” Vanderbilt Law Review (forthcoming); featured in the Council of Institutional Investors Corporate Governance Podcast.
Delaware is widely regarded as the gold standard in American corporate law, largely due to its expertise and responsiveness to evolving business needs. But that status comes at a cost. Delaware’s corporate statutes are typically drafted by a small group of repeat players—primarily attorneys from some of Delaware’s leading law firms— whose proposals are routinely enacted with minimal public input. This closed process raises familiar agency cost concerns, but with a twist: while corporate law aims to mitigate first-order agency problems between corporate managers and shareholders, the lawmaking process itself may be affected by the self-interest of those drafting the statutes—a second-order agency problem.
The drafters of Delaware’s corporate statutes are not elected, are not required to disclose deliberations, and do not answer to the shareholders whose interests their laws affect. Rather, they face incentives to pursue marginal private benefits—such as professional stature or advancing client interests—even at the risk of departing from Delaware’s goal of effective corporate governance and reducing the long-term value of Delaware’s corporate law as a public good. This risk is magnified when statutes are enacted in response to judicial decisions, such as DGCL §§ 122(18) and 144. Those changes not only circumvented appellate review but excluded meaningful input from key stakeholders, including corporate governance experts, institutional investors, and minority shareholders.
The article proposes reforms drawn from Delaware’s Administrative Procedures Act. They include public notice and comment, a published legislative record, and opportunities for meaningful input from affected stakeholders. These measures will enhance transparency and accountability while preserving Delaware’s key strengths—its expertise, responsiveness, and leadership in corporate law. If implemented, the reforms will help mitigate Delaware’s existing second-order agency problem and offer a model of open and transparent corporate lawmaking, reaffirming Delaware’s role as a national leader in corporate governance.
