From Simon Stern, University of Toronto Faculty of Law and PResident, ASLCH:
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January 7, 2026
Reminder: Submissions for ASLCH Annual Conference and Graduate Student Workshop Due January 31, 2026
January 4, 2026
West Coast Sexuality, Gender & Law Conference: Abstract Submission Deadline January 5, 2026
Reminder from Yvonne Lindgren, Professor, UMKC School of Law:
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January 2, 2026
ICYMI: Berenguer, Jewel, and McMurtry-Chubb on Critical and Comparative Rhetoric: Unmasking Privilege and Power in Law and Legal Advocacy to Achieve Truth, Justice, and Equity
Through the lenses of comparative and critical rhetoric, this book theorizes how alternative approaches to communication can transform legal meanings and legal outcomes, infusing them with more inclusive participation, equity and justice. Viewing legal language through a radical lens, the book sets aside longstanding norms that derive from White and Euro-centric approaches in order to re-situate legal methods as products of new rhetorical models that come from diasporic and non-Western cultures. The book urges readers to re-consider how they think about logic and rhetoric and to consider other ways of building knowledge that can heal the law’s current structures that often perpetuate and reinforce systems of privilege and power.
Call For Nominations: The Penny Pether Law & Language Scholarship Award 2025
Call for Nominations: The Penny Pether Law & Language Scholarship Award 2025
A passionate advocate for interdisciplinary scholarship in law, literature, and language, Penelope J. Pether (1957-2013) was Professor of Law at Villanova University School of Law and former Professor of Law and Director of Legal Rhetoric at the American University Washington College of Law. Her own scholarship focused not only on law, literature, and language, but also on constitutional and comparative constitutional law; legal theory, including constitutional theory; common law legal institutions, judging practices, and professional subject formation.
Beginning in November 2013, the Penny Pether Award for Law & Language Scholarship has been given to an article or essay published during the preceding award period that exemplifies Penny’s commitment to law and language scholarship and pedagogy. This year’s award period will be the calendar year 2025.
We are delighted to report that the Legal Humanities Initiative at the University of California, Santa Barbara, will now be providing much needed administrative support for the award. The selection committee is grateful for LHI’s commitment to Penny’s legacy. The Committee selecting award recipients from among the articles and essays nominated will look for scholarship that not only embodies Penny’s passion and spirit but also has some or all of the following characteristics:
1. “[S]cholarship concerning itself with the unique or distinctive insights that might emerge from interdisciplinary inquiries into ‘law’ grounded in the work of influential theorists of language and discourse.”
2. Scholarship that “attempts to think through the relations among subject formation, language, and law.”
3. Scholarship that provides “accounts of—and linguistic interventions in—acute and yet abiding crises in law, its institutions and discourses.”
4. Scholarship and pedagogy, including work addressing injustices in legal-academic institutions and practices, that is “[c]arefully theorized and situated, insisting on engaging politics and law, [and that] charts ways for law and its subjects to use power, do justice.”
More explanations and descriptions of these characteristics can be found in Penny’s chapter from which these quotations are drawn: Language, in Law and the Humanities: An Introduction (Austin Sarat et al. eds., Cambridge U. Press 2010).
A list of past winners appears here: https://law.unlv.edu/lawyering-process/penny-pether
Nominations should be sent by January 31, 2026, to Jeannine DeLombard at jdelombard@ucsb.edu.
Any article or essay published during the calendar year 2025 is eligible. You are free to nominate your own work and, apart from self-nominations, may nominate more than one work. For self-nominations, pick the article published in 2025 that you believe best embodies the characteristics mentioned above. Please provide a citation and a pdf for each work you nominate.
The Selection Committee includes David Caudill, Jeannine Marie DeLombard, Amy Dillard, Ian Gallacher, Lucy Jewel, Jeremy Mullem, Giuliana Perrone, Anne Ralph, and Kathy Stanchi. Members of the Selection Committee are not eligible for the award.
December 28, 2025
Koh on Communicative Legitimacy: The Supreme Court's Hidden Cultural Binaries in the U.S. Civil Sphere
How does the U.S. Supreme Court establish its legitimacy? Over the last two hundred years in U.S. society, the Court has interpreted the U.S. Constitution on watershed issues such as slavery, segregation, and marriage equality. And yet the Constitution is just 7,591 words. A puzzle thus emerges: how does the Court intelligibly interpret this short text for U.S. society? This article develops a new theoretical and empirical cultural sociological account of such Supreme Court decisionmaking, which it calls "communicative legitimacy." According to this theory, which draws on Jeffrey Alexander's civil sphere theory, the Court consistently and inevitably draws on a shared American cultural discourse, thus rendering Constitutional values intelligible and legitimate to the broader civil sphere. This article shows this through two historical case studies. First, it explores the cases guaranteeing and then overturning the right to abortion, from Roe v. Wade (1973) to Dobbs v. Jackson Women's Health Organization (2022). Second, it reviews the cases guaranteeing the right to bear arms, beginning with District of Columbia v. Heller (2008). The two sets of cases, at first blush, appear diametrically opposed: Roe is a triumph for the left, Heller a victory for the right. But, in fact, these cases reveal the same pattern: the Court's defenders draw on the discourse of liberty to hail the decision as a restoration of the Constitution, while the opposition draws on the discourse of repression to accuse the Court of "creating a Constitutional right out of nowhere." This article thus unveils a hidden Supreme Court metalanguage , contributing a new cultural sociological understanding of the Supreme Court as a societal institution with unique communicative authority and symbolic power in U.S. society.Download the article from SSRN at the link.
December 26, 2025
Wright on Gender Affirming Rhetoric
During the runup to the 2024 election, virtually every person who watched an American football game saw an advertisement alleging that Kamala Harris was “for they/them,” while “President Trump is for you.” Candidates and interest groups spent more than $200 million on ads shaping and preying on public perception of trans people, and Democrats wasted no time blaming Kamala Harris’s electoral loss on messaging around trans issues. On the heels of a contentious election that relied heavily on this type of weaponized culture war messaging, misleading and hostile discourse about transgender people and the issues they face is hard to escape. Transphobic debates dominate the public sphere, often fueled by cisgender anxious compulsions to categorize others according to heteronormative gender roles. Even the Olympics were marred by a transphobic harassment campaign against a gold medalist who is not in fact transgender. More broadly, concerns about slippery slopes and far-reaching hypotheticals have birthed a moral panic about the ways trans people disrupt the cultural order, and courts have been complicit in reinforcing traditional cisgender norms even when it causes real harm to trans people. The U.S. legal system uses traditional legal rhetoric as the generally accepted form of logical reasoning, a form of reasoning that relies heavily on categories and syllogistic reasoning to reinforce heteronormative social roles and hierarchies. Traditional legal rhetoric ratifies hate-motivated marginalization of peoples who defy, transcend, resist, or reject classification according to traditional cisgender norms. For example, restrictions and bans on gender affirming healthcare effectively relegate trans folks to a permanent lower caste by not only denying them essential medical care, but also by signaling that they are unworthy of recognition, support, or dignity, thereby reinforcing their systemic marginalization. Traditional legal rhetoric is designed to preserve the status quo through conservative syllogistic reasoning that is more concerned with validity than with truth, justice, and equity. Thus, it cannot be an effective tool to advocate for trans rights that do not fit within cisgender-normative categories which do not account for the truth of non-binary trans people. Advocates seeking to disrupt the status quo must therefore experiment with more dynamic rhetoric traditions, such as diasporic and indigenous rhetorics, that make space to resolve the issues faced by marginalized communities. Diasporic and indigenous rhetorics are capable of revealing inherent injustices and creating workable solutions to the real problems faced by the trans community. This Article examines Tennessee’s youth gender affirming healthcare ban and the resulting Skrmetti case through a critical and comparative legal rhetoric lens to demonstrate exactly how true justice for trans people cannot be achieved using traditional legal rhetoric. In effect, dominant rhetorical methods stack the deck against trans rights, so when courts and advocates try and fail to fit trans issues into strict legal categories, such as binary gender norms, they ultimately harm trans autonomy by rejecting the very idea that a person could be non-binary. Alternative rhetorics can better serve the justice interests of trans Americans because they center and prioritize justice, dignity, and selfdetermination. This Article ends by explaining how advocates can deploy strategies informed by alternative legal rhetorics to trans healthcare cases to achieve justice, dignity, and self-determination for the trans community.Download the article from SSRN at the link.
December 17, 2025
Marmor on The Ontology of Legal Facts
Hans Kelsen had three main insights about the ontology of legal facts. First, that there are legal facts in our world, facts of a distinctly legal type. Actions and events in the world can have, objectively speaking, particular legal significance. Second, Kelsen claimed that legal facts belong to the domain of meaning. Law is, by and large, a scheme of interpretation, enabling us to ascribe legal meanings to certain actions and events in the natural world. Finally, and most problematically, Kelsen maintained that legal facts are normative facts, and as such, they require normative grounding, metaphysically speaking. Since Kelsen famously thought that normative grounding can only be done by other norms, he thought that we are eventually led to a Basic Norm that needs to be presupposed. I argue in this paper that Kelsen is quite right about the first two insights, and wrong about the third. Even if we assume that law is mostly about norms and all legal facts are facts about norms, they are not necessarily normative facts. Which also means that their metaphysical grounding does not have to be normative. The metaphysical building blocks of legal facts, like facts about semantic meanings and symbolism generally, consist of what people tend to do, what they think, and intentions they collectively share in the appropriate ways. There is no need for presuppositions. I also ties this view about the nature of legal facts to the kind of fictionalism about law I had argued for in the past.Download the article from SSRN at the link.
December 15, 2025
Hemleben on Law as Mirror and Mold: The Judicial Construction of Whiteness in America, 1790-1927
This Article explores how American law created and operationalized the category of “white” from the nation’s founding through the early twentieth century, not within any single doctrinal silo, but across the full architecture of membership, capacity, and civic authority. It argues that whiteness emerged not as a natural or intuitive classification but as a legally manufactured identity policed by the judiciary in naturalization law, constitutional law, state criminal adjudication, professional licensure, and property and alienage regulation. Beginning with the Naturalization Act of 1790 and the racial lexicon supplied by legal dictionaries, encyclopedias, and census manuals, courts translated contested cultural understandings of race into juridical facts. Federal judges constructed a racial taxonomy in the prerequisite cases from Ah Yup to Thind; the Supreme Court constitutionalized racial identity as a boundary of sovereignty in Fong Yue Ting and as a conditional form of membership in Wong Kim Ark. State courts then absorbed and repurposed these federal definitions in miscegenation prosecutions, evidentiary competency rules, and school segregation cases from Rice v. Gong Lum to Bond v. Tij Fung, relying on visual inspection, community reputation, and folk racial grammars to assign legal identity in the courtroom. At the same time, licensing boards, bar admission rules, hospital charters, and alien land laws converted whiteness into a credential of civic trust and economic authority, excluding Asian immigrants and nonwhite professionals from the professions, skilled trades, and landholding through the category of the “alien ineligible for citizenship.” Across these domains, law acted as both mirror and mold: mirroring prevailing racial hierarchies even as it molded whiteness into a legal personhood, a status that structured who could belong, who could speak with professional authority, who could hold land, and who the state treated as perpetually foreign. This Article concludes by showing how this architecture of legal whiteness continues to shape contemporary debates over citizenship verification, professional licensing, and the racialization of foreignness long after the formal dismantling of racial prerequisites.Download the article from SSRN at the link.
December 13, 2025
Snyder on Historical Practice at the Founding
In recent years, the Supreme Court has increasingly relied on historical practice—actions other than judicial decisions that implement the law after its adoption. That creates tension with the Court’s professed adherence to originalism—the view that a law’s meaning is fixed at the time of its adoption. To resolve this tension, the Court and many scholars have embraced theories such as “liquidation,” which argue that the Founders themselves used practice to update or change the law’s meaning over time. But until now, no one has systematically examined whether the Founders accepted those theories. This Article provides the first comprehensive analysis of how Founding-era courts used practice to interpret legal texts. It concludes that courts did not rely on practice to revise the law’s meaning; rather, they used it to discover what the law originally meant. Courts believed that practice helped reveal original meaning for three main reasons. First, they thought that contemporaneous interpreters were more likely to understand the law’s text and purpose, which gave them valuable insight into its original meaning. Second, they believed that contemporaneous practices revealed how those interpreters understood the law. And third, they believed that contemporaneous practice was even better evidence of original meaning when it had continued unchanged over time. At the same time, courts recognized that practice was not perfect. To address that risk, they applied a rigorous screening test designed to exclude unreliable practices and give greater weight to reliable ones. This test looked at various factors—such as whether the practice started shortly after the law’s adoption and whether it reflected a good-faith effort to interpret the law—that further confirm that courts used practice only as a tool for discovering original meaning. This history has important consequences for the Supreme Court’s use of practice. First, the history suggests that the Court should refuse to rely on practice as a way of updating or changing the law’s meaning. And second, it suggests that the Court should reshape its current use of practice to better reflect the Founders’ approach.Download the article from SSRN at the link.
December 10, 2025
Boling on What Is "The Rule"? Quotation Marks and the Role of Courts and Lawyers as Performers of the Common Law
Must lawyers and judges use quotation marks when they recite legal rules verbatim from a cited source in their legal practice documents? It is a question that lawyering skills faculty hear often when training first-year students to enter the legal writing genre. The advice of many is to use quotation marks to avoid plagiarism, but that advice arises from a conflation of academic and legal writing and a small number of inapplicable cases in which courts have issued reprimands (or worse) to attorneys caught copying large portions of other sources without sufficient "attribution." This Article, therefore, undertakes a rigorous defense of the verbatim recitation of a rule from a cited source without quotation marks in legal practice documents. As this Article shows through a multidisciplinary exploration of linguistics, professional ethics, speech act theory, and neuroscience, that choice is legitimate and often desirable. What is often forgotten about legal rules (particularly in the common law) is that it is the day-to-day recitations of rules by lawyers and judges in the handling of cases that perpetuate the rules from the past into the present and thereby keep them in force for use in the future. Through an application of J.L. Austin's speech act theory to this activity, the Article explains why the social offense of plagiarism is not applicable, distinguishing the genre of academic writing from legal practice writing in multiple respects. It also explains how, with fear of plagiarism out of the picture, a legal practitioner in certain circumstances can harness rhetorical benefits from reciting a verbatim rule from an authoritative (and cited) source in their own written "voice," without quotation marks. By preserving the wording verbatim, the practitioner ensures the integrity of the rules themselves and enjoys a sense of belonging from verifying a communal understanding of the common law. Moreover, doing so through indirect quotation (i.e., without quotation marks) conveys the concepts with more ease for the reader, more seriousness by the writer, and more efficiency than direct quotation can.Download the article from SSRN at the link.
Davies on Sherlock Holmes: Real or Imagined? Living or Dying?
Readers of the November 22, 1913 issue of Collier’s Weekly magazine had the joy of taking in Arthur Conan Doyle’s new Sherlock Holmes story, “The Adventure of the Dying Detective.” Recipients of the nifty little Christmas 1913 keepsake booklet of “The Dying Detective” put out by the advertising department at Collier’s got to read almost exactly the same story. The typesetters did a near-perfect job of making sure that the text of “The Dying Detective” in the booklet matched the text in the magazine. Indeed, there are just three notable differences between the booklet and magazine texts. The first two differences appear to be intentional and definitely are not defects. The third is, alas, a typographical finish-line fail. While there does not appear to be much worthy of study in the textual differences between the two 1913 Collier’s versions of “The Dying Detective,” addingThe Strand Magazine to the mix may change things. There is at least one difference between, on one hand, both of those Collier’s versions and, on the other hand, the version in the December 1913 Strandthat might merit a closer look. On page 609 of The Strand, while conversing with Dr. John Watson, Holmes says, “Strange how the brain controls the brain!”Download the essay from SSRN at the link.
Baumann and Shugerman on Quasi-Judicial: A History and Tradition
In challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, "judicial" power was conceived in English law as a subset of "executive" authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the "quasi-judicial" and "quasi-legislative" powers that were central to the holding of Humphrey's Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress's construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from hierarchical control and presidential removal. Americans expect judge-like independence when politicians grant administrators judge-like powers and functions. The quasi-judicial category deployed in Humphrey's was the logical extension of English legal customs, Founding Era administration, and the evolution of the ninteenth-century law of officeholding. It reflected an Anglo-American instinct to insulate judge-like offices from direct hierarchical control. Whether you are an originalist or a believer in the history-and-tradition approach, these findings show that Congress may insulate quasi-judicial officials from presidential removal and direction. Beyond original public meaning, the quasi-judicial function from Humphrey's is bound up with the Anglo-American constitutional project stretching back beyond the Founding. If the Roberts Court overrules Humphrey's, it will imperil a primordial instinct that is part of our rule-of-law tradition.Download the article from SSRN at the link.
December 8, 2025
Medieval Murder Maps: A Resource for the Legal Historian
Medieval Murder Maps is a digital resource that allows researchers and others interested in the period to check out the history of violence and the legal system during the English medieval period. It covers the cities of London, York, and Oxford. Follow Medieval Murder Maps on X (formerly Twitter) at @medimurdermaps and Bluesky at @medimurdermaps.bsky.social.
Read more about Medieval Murder Maps here in an article from Atlas Obscura, which discusses how the maps
helped solve a centuries old cold case.
Baker on Medieval Roots, Modern Insights: The Origins of Common Law Contract
Common law contract is described as the body of law dealing with legally enforceable promises, with its basic principles originating from judicial decisions. What underpins this method of lawmaking is an understanding of the past, such that prior judicial decisions guide the resolution of present legal disputes. Yet despite this ostensibly historical process serving as a vehicle for legal development, there is a general absence of recognition among lawyers, scholars, and students of the origins of this body of law in medieval English law. This Article posits that understanding the origins of common law contract, particularly as it developed around the writs of debt and covenant during the medieval period, provides lawyers and students with a more nuanced and contextualized view of a body of law that has gradually, but significantly, expanded its scope since its inception a millennium ago. An understanding of early common law contract forces one to go back to first principles of contract dispute resolution. While modern contract law tends to focus on substantive rules and doctrines, the early history of common law contract is primarily based on formal and procedural rules. The shift in focus to substantive rules raises questions about the fundamental aspects of contract law and its purpose. Such questions are liable to be ignored if one does not consider how early common law contract arose, and why formal rules and requirements once dominated a lawyer's thinking about how to best resolve contract disputes.Download the article from SSRN at the link.
December 3, 2025
Wieboldt on Ideas With(out) Consequences?: The Natural Law Institute and the Making of Conservative Constitutionalism
Recent scholarship on conservative constitutionalism in the United States focuses near exclusively on the development of originalism as a method of constitutional interpretation. Before conservatives turned to originalism to counter the perceived threats of an activist judiciary in the 1980s, however, this article demonstrates that conservatives employed a very different interpretive philosophy to counter a very different perceived threat. To do so, this article reconstructs the history of a conservative legal movement that predated "the" conservative legal movement. Indeed, this article uncovers how conservatives employed natural law philosophy to respond to the elite legal academy's seemingly morally foundationless positivism during the Cold War. The network of natural lawyers that sustained this earlier movement was deeply indebted to the Natural Law Institute (NLI), an academic initiative of the University of Notre Dame established in 1947. By framing the founding fathers' natural law philosophy as a bulwark of individual liberty against the encroachments of legal realists, World War II-era totalitarians, and Cold War communists, the NLI created what the political scientist Amanda Hollis-Brusky has termed a "political epistemic network." In concluding, this article suggests that recovering the history of the NLI's epistemic network reveals the importance of natural law to the making of conservative constitutionalism during the Cold War.Download the article from SSRN at the link.
Birkbeck Centre for Law and the Humanities Seminar with Professor William MacNeil December 10, 2025
From Professor Patrick Hanafin, Professor of Law, Director Postgraduate Taught Programmes, Director LLM Law, Co-Director Centre for Law and the Humanities, Birkbeck Law School, University of London
The next Birkbeck Centre for Law and the Humanities event will be a Seminar with Professor Bill MacNeil (University of Queensland) and Visiting Professor in Birkbeck Law School.
The title of the seminar is Under His Eye: Feminine In/Visibilities in the Handmaid's Tale.
The event will take place on Wednesday 10 December next at 1pm in Birkbeck Central Room 406.
More information here.
December 1, 2025
Ryu and Sewell on The Hart-Dworkin Debate
This encyclopedia entry discusses the Hart-Dworkin debate, understood as the literature developed around the viability of Hartian positivism in light of the arguments Dworkin either laid out or inspired. The focus is on two arguments: the argument from principles and the argument from theoretical disagreement. First, can Hart adequately account for the role of principles in law? The entry considers three variants of this argument. Second, can Hart adequately account for the existence of law in practices whose officials disagree on why certain empirical facts make a given legal proposition true? The entry considers both semantic and non-semantic variants of this argument.Download the entry from SSRN at the link.
ICYMI: Cervone on Sworn Bond in Tudor England: Oaths, Vows and Covenants in Civil Life and Literature
ICYMI:
Thea Cervone, Sworn Bond in Tudor England: Oaths, Vows and Covenants in Civil Life and Literature (McFarland Publishing, 2011). Here from the publisher's website is a description of the book's contents.
The swearing of oaths is a cultural phenomenon that pervades English history and was remarkably important during the sixteenth century. This multi-disciplinary work explores how writers of the Tudor era addressed the subject in response to the profound changes of the Reformation and the creative explosion of the Elizabethan period. Topics include how the art of rhetoric was deployed in polemic, the way in which oaths formed bonds between Church and State, and how oaths functioned in literature, as ceremony and as a language England used to describe itself during times of radical change.
November 28, 2025
Courtney and Ziskina on The Publisher Playbook: A Brief History of the Publishing Industry's Obstruction of the Library Mission
This article traces a long history of conflict between libraries and the publishing industry, documenting how publishers have consistently sought to restrict library access to materials in pursuit of profit and control. Through nine key episodes—from 19th-century legal battles over the first sale doctrine to 21st-century litigation against controlled digital lending (CDL)—the authors reveal a persistent playbook of obstruction: publishers challenge new technologies, resist expanded access, and litigate or lobby against library innovation. Yet, in case after case, courts and Congress have upheld the public interest role of libraries, affirming rights such as lending, fair use, interlibrary loan, and accessibility for patrons with print disabilities. The article concludes that CDL, currently under legal challenge, is the next chapter in this historical arc—an essential library practice that should be defended and affirmed, as past access innovations have been. The pattern is clear: when libraries push to democratize knowledge, publishers push back—and public policy must continue to support libraries’ mission over private restriction.Download the article from SSRN at the link.
November 26, 2025
ICYMI: Amann on A Nuremberg Woman and the Hague Academy
This article, which forms part of the journal's special review series marking the centenary of the Hague Academy of International Law, draws from the author's ongoing research into the roles that lawyers and other women professionals played at post-World War II trials. The article focuses on the life of one “Nuremberg woman,” Dr. Aline Chalufour, who attended the Academy in 1937 and again in 1957. In between, she worked in what is now Vietnam as a colonial schoolteacher, in Canada as a Free French propagandist for de Gaulle, at Nuremberg and Hamburg as a war crimes prosecutor, and in France as one of the country's first women judges. Chalufour's experiences shed light on how marginalized groups fared during the Hague Academy's first 100 years. They further call upon the Academy, and the field it promotes, to do better in the next 100 years.Download the article from SSRN at the link.
Thomson on "And Two Cows...to My Wife, So Long As She Remains My Widow": Public Policy and Testamentary Marriage Clauses in Canada
This article, part one of a two part project, provides a comprehensive review of the law surrounding marriage conditions in wills in Canada, including the civil law jurisdiction of Quebec, through a quantitative study of nearly every electronically reported Canadian decision involving a marriage clause in a will. It begins with an overview of the history of marriage clauses in the UK, the US and Canada with a detailed review of the Canadian jurisprudence. This study reveals that the application of public policy to most marriage clauses in Canadian wills has remained stagnant since the 18 th century, with two notable exceptions. The first involves clauses that condition a gift on discriminatory terms such as the sex, race or religion of a beneficiary's spouse. When asked to do so, Canadian courts have voided such conditions, beginning in the 1960s. The second is the Province of Quebec where arguably all marriage clauses are now contrary to public order. This article is followed by a companion piece that provides the normative argument as to why all marriage clauses should be considered contrary to public policy in Canada.Download the article from SSRN at the link.
November 25, 2025
Hay and May on Reckoning with Antisemitism in History and Tradition
"History and tradition" has become a watchword of modern constitutional interpretation, shaping Supreme Court jurisprudence and framing ongoing debates over the meaning of the Fourteenth Amendment. Yet this interpretive framework remains under-theorized in one critical respect: how should it grapple with the prejudices embedded in the very traditions it invokes? This Article examines that question through the lens of anti-Jewish discrimination in Anglo-American law, using this history as a case study to examine both the perils and promise of relying on history as a source of constitutional authority. For centuries, the common law excluded Jews from full civic participation in both England and the United States, limiting their access to the courts, their ownership of property, and their exercise of political rights. And though largely forgotten today, this legacy reveals a troubling methodological gap that currently exists in the history-and-tradition approach: its lack of a systematic way to reckon with antisemitism and other morally compromised aspects of history. Indeed, taken to its logical extreme, the history-and-tradition method would appear to permit the re-enactment of such exclusion today. Yet this Article does not counsel retreat from the past. Instead, it argues that principled engagement with history is both possible and essential-and suggests a framework for doing so. Courts, in considering Anglo-American traditions, should be guided by the Enlightenment values that animated the Founding—including liberty, equality, freedom of conscience, and the rejection of inherited hierarchy—and should privilege those strands of history that reflect these commitments. Although the Founders’ moral compass was at best imperfect and their actions at times fell tragically short of their ideals, the history-and-tradition method should seek not to rehearse the past uncritically, but to draw from it those principles that best express the nation’s enduring aspirations. Not only is such an approach deeply consonant with the history-and-tradition method and legitimated by recent jurisprudence, but it also fulfills the higher purpose of upholding both the Constitution and the visionary ideals that brought it into being.Download the article from SSRN at the link.
Forthcoming in December from Cambridge University Press: Del Mar: Neil MacCormick: A Life in Politics, Philosophy, and Law
Forthcoming from Cambridge University Press:
Maksymilian Del Mar, Queen Mary University of London, Neil MacCormick: A Life in Politics, Philosophy, and Law. Here from the publisher's website is a description of the book's contents.
Neil MacCormick (1941–2009) was one of the twentieth century's most important legal philosophers and one of Scotland's most influential public intellectuals. This book tells the story of his political and philosophical life, from his intensely political childhood as the son of 'King John', one of the founders of the Scottish National Party, through to his involvement in Scottish politics – especially as the author of SNP's constitutional policy – and his role as a Member of the European Parliament, helping to draft the European Constitution. With special attention to MacCormick's character, this book offers a reading of his entire oeuvre, covering his contributions to theories of legal and moral reasoning, institutional legal theory, nationalism, post-sovereignty, subsidiarity, and constitutional pluralism in Europe. This book reads MacCormick as a highly creative thinker who excelled in the art of constructing inclusive middles and thereby developed his own distinctive approach to politics and philosophy.
November 24, 2025
Appleman on the Psychedelic Renaissance and the Lingering Shadow of Eugenics
This Essay situates the contemporary psychedelic renaissance within a long, cyclical history of psychoactive exploration, regulation, and exclusion. Tracing the intertwined genealogies of psychedelics, eugenics, and capitalism from the nineteenth century to the present, it argues that each “rebirth” of chemical enlightenment has carried with it the same shadow: anxieties about purity, hierarchy, and control. From early 19th-century nitrous oxide experiments through Progressive Era drug criminalization and the mid-century counterculture, the boundaries between “medicine” and “drug” have functioned as instruments of social stratification. Today’s techno-spiritual revival, shaped by transhumanism, corporadelics, and conspiritualist movements, reanimates these hierarchies under the guise of therapeutic innovation and human optimization. By recovering the eugenic foundations of prior psychedelic eras, this Essay warns that our latest renaissance risks reproducing the same inequities it professes to transcend.Download the essay from SSRN at the link.
Chabot on Appendices for The Interstitial Executive: A View From the Founding
This file contains Appendices to Christine Kexel Chabot, The Interstitial Executive: A View from the Founding (October 28, 2025), available at https://ssrn.com/abstract=5673491Download the Appendices from SSRN at the link.
Kohm and Kohm on C. S. Lewis's Influence in American Case Law
The writings and works of C.S. Lewis have undoubtedly influenced culture through literature, but also through science, academia, education, the arts, and numerous aspects of society. Few scholars, however, have observed his influence on the law. This piece explores how Lewis's work has affected the law in juridical reasoning, and how it has inspired law as literature. Lewis's influence in American case law is not only astonishing in its breadth, but also in its earnestness in integrating the law with efforts to find justice and truth. When Lewis wrote, "I believe in Christianity as I believe that the Sun has risen, not only because I see it but because by it I see everything else," it also included the law and jurisprudence. Law and culture are inextricably linked, via the tug-of-war between where one is consistently seeking dominance over the other. Law directs the theory and practice of basic universal rules held and utilized around the globe. In this piece two lawyers explore the influence of C. S. Lewis and his writings in American case law, and in the rule of law generally. In balancing these tensions, Lewis has been not only instructive, but influential, and this essay investigates how he has become somewhat of a cultural icon to learned jurists.Download the article from SSRN at the link.
November 12, 2025
Leshem on Law's Shifting Circles
This Article undermines two myths in American legal history: first, that the law’s circle of moral concern has steadily expanded; and second, that legal protections have always centered on human persons. As to the first, the law contains multiple, shifting circles of moral concern—expanding along some dimensions and contracting along others. As to the second, U.S. law and the English common law on which it was based have long attributed moral status to nonhuman beings and inanimate objects. The Article reaches these insights by showing that U.S. legislators, judges, and advocates have for centuries treated a wide range of entities as deserving of moral concern and legal protection. Historically, three kinds of entities stood at the center of this legal universe: Man, Country, and God. U.S. lawmakers treated these entities as “superpersons,” enjoying such elevated moral status and legal protection that even objects falling into their penumbras received moral consideration. These penumbra objects included corpses and effigies, flags and national monuments, religious artifacts and sacred sites. Lawmakers protected these objects as extensions of superpersons and, in so doing, treated them at times as “epipersons.” Although the law’s protection of these nonhuman and inanimate persons has waned, it has not disappeared. A broad range of laws, either directly or indirectly, continue to protect and reinforce the moral status and dignity of superpersons and epipersons. Among them are sovereign immunity doctrines, corpse abuse statutes, and laws prohibiting the desecration of venerated objects, to name just a few. Uncovering the law’s historical universe of moral persons allows us to see more clearly the ongoing shifts in who or what the law deems deserving of moral concern and legal protection. Opening our eyes to these shifts, as this Article shows, can enable us to resist a simplistic narrative of moral progress, and to approach future status determinations with a greater sense of both agency and humility. The historical precedents unearthed in this Article also offer a constructive lens on contemporary legal battles over abortion, environmental protection, and artificial intelligence. They allow us to see that personhood debates in these contexts have a longer prehistory than is often realized, based in centuries of contested legal protections for superpersons and their penumbra objects. This prehistory points to a largely overlooked middle position between treating entities such as first-trimester fetuses, trees and lakes, and nonsentient AI systems as either persons or property—namely, treating them as epipersons with legally enforceable dignity interests and limitations on their property status, but without full-fledged rights.Download the article from SSRN at the link.
November 10, 2025
Stigall on The Rousseau-Portalis Doctrine: French Legal Thought and the Law of War--Parts I and II
The Rousseau-Portalis Doctrine is the idea that war is a relationship between states rather than individuals and, accordingly, military operations must be conducted exclusively against the enemy forces and not against civilians who do not take an active part in hostilities. Grounded in Grotian thought but enhanced and refined by Enlightenment thinkers, this revolutionary idea has had a significant impact on the law of war over the past two centuries. The doctrine is understood today as a salient component in the undergirding framework of the law of war. This is a two-part series illustrating the impact of French legal thought on the formation of the law of war with a specific focus on the Rousseau-Portalis Doctrine. The first part provides a brief background on Jean-Jacques Rousseau and Jean-Étienne-Marie Portalis, their views on the law of nations, and their ideas that form the substance of the Rousseau-Portalis Doctrine. The second part traces the evolution of that doctrine and discusses its impact on the law of war.Download the essay from SSRN at the link. NB: This essay is the first of a two-part post.
Cotterrell on New Meanings for an Old Debate
This paper is part of a symposium revisiting the Cotterrell-Nelken debate published in 1998 in the Journal of Law and Society. Cotterrell's paper 'Why Must Legal Ideas Be Interpreted Sociologically?' presented an argument about methods of juristic inquiry, rather than about the nature of sociology of law. It claimed that juristic analysis of legal doctrine must be sociologically grounded. Such an analysis does not thereby become sociology of law or necessarily promote an instrumental or technocratic view of law. Jurisprudence and sociology of law have different objectives. However, sociology, insofar as relevant to legal interpretation, should be seen as a study of social relations grounded in values, tradition, and emotion, as well as instrumentality. As such, it is needed to inform juristic thought. Correspondingly, sociology of law should be concerned, for its own purposes, with conceptualising law, taking account of juristic ideas in doing so but not being confined by them.Download the essay from SSRN at the link.
November 4, 2025
Guerra-Pujol on A Plea to Adam Smith Scholars
My plea to Adam Smith scholars is this: stop citing Adam Smith's Lectures on Jurisprudence (Smith 1978) without proper qualification, let alone a disclaimer. Although this work purports to be a primary source--a transcription of Smith's law lectures at the University of Glasgow--these student lecture notes pose two practical problems. One is that we have no idea how faithful or accurate this transcription of Smith's law lectures is. The other problem is that Smith himself may have repudiated the ideas contained in those early law lectures.Download the essay from SSRN at the link.
November 3, 2025
Call For Interest: Section 17: Legal and Ethical Boundaries of the Right to Die--and the Right to Kill
Legal and Ethical Boundaries of the Right to Die—and
the Right to Kill
Section Editor: Thiago Rodrigues-Pereira
Contact: prof.thiagorp@gmail.com
Cc: Anne Wagner
(General Editor) — valwagnerfr@yahoo.com
We invite chapter proposals for the Legal and Ethical Boundaries of the Right to Die—and the Right to Kill section of
the forthcoming International Handbook of
Legal Language and Communication: From Text to Semiotics.
This section
investigates the multifaceted legal, ethical, philosophical, and
socio-political dimensions of the right to die—and the right to kill, offering
an interdisciplinary exploration of how contemporary societies define, contest,
and regulate the boundaries of life, death, and legitimate violence. Extending beyond doctrinal
and legislative analysis, it situates end-of-life and life-taking
decision-making within broader frameworks of human rights, bioethics, and
governance, interrogating how power over life and death is exercised, justified, and contested.
 |
Scope and Focus
Legal
and Comparative Dimensions
·
Examination of national and transnational developments in euthanasia,
assisted suicide, palliative care, and state-sanctioned killing (such as capital punishment, military engagement, and law
enforcement).
·
Analysis of how legal systems interpret autonomy, dignity, culpability,
and the sanctity of life across diverse
traditions—common law, civil
law, religious, and customary frameworks.
·
Exploration of the role of courts, legislatures, and regulatory bodies
in shaping legal precedents and balancing state
interests with personal freedoms and collective security.
·
Consideration of international human rights
instruments, including the European Convention
on Human Rights
and UN declarations, in framing
debates around both the right to die and the right to
kill.
Ethical and Biolegal
Tensions
·
Discussion of key bioethical principles—autonomy, beneficence, nonmaleficence, and
justice—and their application to end-of-life and life-taking contexts.
·
Critical engagement with medical and technological advances
(life-support systems,
neurotechnologies, AI-assisted triage, lethal medical interventions) that blur
distinctions between sustaining, ending, and taking life.
·
Analysis of professional responsibilities, ethical decision-making, and conscientious
objection within healthcare, military, and law enforcement settings.
·
Assessment of the implications of social inequality, vulnerability, disability rights,
and healthcare access in shaping ethical
and legal outcomes
concerning who may die—and
who may kill.
Societal and Cultural Contexts
·
Investigation of how societal values, religious traditions, and moral
narratives inform public and legislative attitudes toward assisted
dying, state punishment, and justifiable killing.
·
Consideration of vulnerable populations—such as the elderly, disabled,
imprisoned, or economically
disadvantaged—in debates on consent, coercion, and protection from harm.
·
Study of advocacy
movements, abolitionist campaigns, and policy reforms
that shape public discourse on
the legitimacy of ending or taking life.
·
Reflection on the sociocultural and political imaginaries that underpin collective understandings of mercy,
justice, and sovereignty in decisions over death.
Semiotic, Linguistic, and Rhetorical Approaches
·
Analysis of the language and symbolism surrounding death, dignity, and killing in legal, political, and media discourse.
·
Exploration of how metaphors such as “mercy killing,” “death with dignity,”
“state-sanctioned death,” and
“legitimate force” shape public perception and legal framing.
·
Examination of rhetorical strategies used in judicial reasoning, legislative drafting, and advocacy communications that define
moral and legal
boundaries of dying
and killing.
Global and Emerging
Challenges
·
Study of transnational advocacy networks and policy diffusion
in euthanasia, capital punishment, and humanitarian law.
·
Discussion of cross-border practices such as assisted suicide
tourism, international
execution protocols, and military interventions with ethical or legal
implications.
·
Consideration of digital
and technological frontiers—including AI-assisted decision-making, autonomous weapons systems, and data ethics
in life-and-death governance.
·
Reflection on privatization trends in healthcare, security, and biotechnology, and their influence on
accessibility, accountability, and ethical oversight in decisions to end or
take life.
|
Academic Perspectives
Contributions are encouraged from law, philosophy, bioethics, sociology, communication, and cultural studies, among
others.
Interdisciplinary approaches bridging doctrinal, empirical, and theoretical analysis
are particularly welcome.
Possible lenses include:
·
Human rights law and comparative legal theory
·
Bioethics and medical
jurisprudence
·
Semiotics of law and communication
·
Critical, feminist, or postcolonial perspectives on death, violence,
and legitimacy
|
Policy-Oriented Questions
·
How do legal
systems balance personal
autonomy and state authority in both dying and killing?
·
What ethical and procedural standards guide decisions over life and death in medicine,
law enforcement, or war?
·
How do language and narrative
shape societal understanding of “legitimate death”?
·
In what ways do technological, economic, and political
transformations challenge
traditional moral and legal boundaries?
|
Call for Contributions
We welcome proposals that:
·
Present comparative or interdisciplinary analyses
of death and killing within
legal and ethical frameworks.
·
Explore the linguistic, symbolic, and communicative dimensions of how societies
justify or contest death.
·
Offer case studies
or empirical analyses
of evolving legal
practices, policy reforms, and public responses.
·
Provide innovative theoretical or methodological insights
into how power
over life and death is expressed through law and
discourse.
|
Submission Guidelines
Please submit
a short abstract (approximately 300 words) outlining your proposed
contribution and its relevance to the section’s scope.
Send expressions of interest and abstracts to:
Thiago Rodrigues-Pereira (Section Editor): prof.thiagorp@gmail.com
Cc Anne Wagner (General
Editor): valwagnerfr@yahoo.com
Handbook link: https://meteor.springer.com/ihllc
Handbook link: https://meteor.springer.com/ihllc
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