Craddock on Civic Friendship in the Postmodern Polis: Law as Mediator in Shakespeare's Merchant of Venice

Joshua J. Craddock, Harvard Law School, Students; James Wilson Institute for Natural Rights and the American Founding, is publishing Civic Friendship in the Postmodern Polis: Law as Mediator in Shakespeare's Merchant of Venice in the Journal of Law & Civil Governance at Texas A&M. Here is the abstract.

In Merchant of Venice, Shakespeare explores whether commercial republicanism can alone sustain civic virtue. Putting Shakespeare into conversation with pillars of American political thought, Merchant of Venice seems to support John Adams’ contention that a republican constitution is “made only for a moral and religious people” and “is wholly inadequate to the government of any other.” Economic liberty as an end unto itself cannot form the basis of a coherent political order and must ultimately erode public-spiritedness. By examining the character of the Venetian regime and the irreconcilable differences between its citizens regarding the nature of the Good, the attentive reader can identify barriers to civic friendship and evaluate whether law can serve as a mediating influence against what Publius calls “faction” in The Federalist. Shakespeare suggests that law’s mediating influence on faction is at best tenuous and follows the Aristotelean belief that civic friendship depends in large part on substantial agreement about first principles. These themes find their echoes in American political thought and remain deeply relevant to the legal and political challenges facing re-publican self-government today.

Download the article from SSRN at the link.

Cramer on The National Firearms Act and Perceived Constitutional Limitations in 1934

Clayton E. Cramer, College of Western Idaho, has published The National Firearms Act and Perceived Constitutional Limitations in 1934. Here is the abstract.

Laws regulating firearms based on their lethality as "weapons of mass destruction" have no Founding Era equivalent and such weapons were for sale to civilians. They were common enough to be subject to fire safety regulations. How long did this Framing Era understanding persist? What implications does this have for so-called "assault weapons" and machine gun regulation? When Congress held hearings on the National Firearms Act (1934), discussions between Members of the Subcommittee and Executive branch advocates for the bill repeatedly phrased their support for this rather complex tax law because they recognized that a federal ban on civilian ownership or manufacture of machine guns was likely unconstitutional. This argues that the Framing Era understanding persisted well into the 20th century and should be part of understanding current post-Heller challenges to bump stock and machine gun regulation.

Download the article from SSRN at the link.

Siegel on Balkin Amid Balkanization: Constitutional Construction, The Uses of History, And Interpretive Discretion In A Divided Country

Neil Siegel, Duke University School of Law, has published Balkin Amid Balkanization: Constitutional Construction, The Uses Of History, And Interpretive Discretion In A Divided Country as Duke Law School Public Law & Legal Theory Series No. 2025-14. Here is the abstract.

Professor Jack Balkin's Memory and Authority is a good book by a great constitutional theorist, but it gives me some pause. Balkin's account of legitimate constitutional construction is so capacious and seemingly accepting of a results orientation that it may be difficult to discern when someone is doing it wrong. Balkin repeatedly implies that more is better, both regarding the number of modalities of constitutional interpretation and the kinds of history that are relevant to making constitutional arguments. Moreover, he repeatedly declares that "history is a resource, not a constraint." But modality creep may make it more challenging for pluralists to answer the charge that their methodology makes it possible for users to reach whatever outcome they want. Likewise, history must be both a resource and a constraint if an interpretive theory is also to restrain, not just license, interpretive discretion. More is not necessarily better when one imagines constitutional law being made by people who do not share one's values. In the United States, constitutional law is made by Supreme Court Justices who do not share the values of a significant percentage of the country, and the problem is worse during our polarized era. Although Balkin does not emphasize them, certain concepts and practices have been central to the generationslong effort to constrain judicial discretion: a general allegiance to judicial restraint, a genuine commitment to stare decisis in constitutional disputes, a presumption in favor of incrementalism in judicial decision-making, and a dedication to giving principled reasons for judicial decisions. Those ideas and others discussed in this Essay fall under the heading of judicial role morality, which has long been discussed by the legal profession due to the perceived importance of identifying constraining conceptions of a Justice's institutional role.

Download the essay from SSRN at the link.

Pfander and Zakowski on Non-Party Protective Relief in the Early Republic: Judicial Power to Annul Letters Patent

James E. Pfander and Mary Zakowski, both of Northwestern University School of Law, are publishing Non-Party Protective Relief in the Early Republic: Judicial Power to Annul Letters Patent in volume 128 of the Northwestern University Law Review. Here is the abstract.

Much of the debate over the constitutionality of universal or non-party protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of non-parties. As a result, the story of non-party protective relief has not yet been fully told. This Article offers a more complete story, highlighting a range of proceedings in which federal courts issued judgments that settled a matter once and for all and operated on all the world. Some familiar examples include proceedings in admiralty, where a decree could settle title conclusively and operate on those who did not appear in the litigation. Less familiar examples include naturalization judgments, which conferred the status of citizenship on an individual once and for all. We focus here on yet a third example: the power of federal courts, acting under the patent laws of the 1790s, to entertain individual suits to cancel or annul a patent for all purposes. Such cancellation proceedings, based on a practice that developed in England on the writ of scire facias, were understood to operate as a general matter and could confer benefits on artisans and manufacturers who did not appear in the litigation. Patent cancellation remains a part of the federal judicial role today. History suggests, then, that federal courts were understood to have power, when so authorized by Congress, to issue decrees that settled matters conclusively and therefore conferred burdens or benefits on non-parties. Over the nineteenth century, the patent cancellation power migrated to federal courts of equity, resulting in decrees that prohibited patent owners from asserting claims against non-parties. These early examples of non-party protection make it challenging to argue on historical grounds that Article III of the Constitution bars federal courts from granting such relief today. In a brief concluding section, we suggest that assessments of non-party protective relief should focus instead on congressional authority; such a focus could help distinguish universal injunctions in general from the set-aside power conferred in section 706 of the Administrative Procedure Act.

Download the article from SSRN at the link.

Bucholski and Murphy on Kinder und Kueche: Women, Marriage, and Children in Nazi Germany

Lara Bucholski, Max Planck Institute for Comparative and International Private Law, and Christopher Murphy, Max Planck Institute for the Study of Crime, Security and Law, have published Kinder und Küche: Women, Marriage, and Children in Nazi Germany as Max Planck Lawcast, Episode 22. Here is the abstract.

During the years that it was in power, the Nazi regime made far-reaching changes to German civil law, especially family law. Marriage was understood as a societal 'service', children were deemed to be the nation's 'most precious asset', and mothers were idolized as the backbone of society. In today's Lawcast episode, Lara Bucholski details how these civil law changes serve as proof that law is rarely truly neutral as seen by the fact that the value-based jurisprudence of the Nazi regime influenced and modified existing law to its advantage. Thus, although law may be drafted with great precision, significant power remains with those who apply it.

Download the essay from SSRN at the link. Listen on: Max Planck Law, Spotify or Apple. For more Max Planck Lawcasts: https://law.mpg.de/lawcast/

Campbell on Tradition, Originalism, and General Fundamental Law

Jud Campbell, Stanford Law School, has published Tradition, Originalism, and General Fundamental Law at 47 Harvard Journal of Law and Public Policy 635 (2024). Here is the abstract.

It is commonly thought that looking to post-ratification traditions in constitutional interpretation is in tension with originalism. Yet traditionalism was central to American rights jurisprudence at the Founding and during Reconstruction. Back then, Americans jurists widely recognized a cross-jurisdictional body of general fundamental law. Though sometimes mentioned in constitutional text, this body of general fundamental law was not textually grounded and could evolve over time. This essay considers how originalists should account for this jarring notion that the content of fundamental law was partly constituted by an evolving body of traditions. In doing so, the essay highlights an important but often overlooked division in how originalists identify the determinants of fundamental law.

Download the essay from SSRN at the link.

Blocher and Garrett on Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine

Joseph Blocher and Brandon L. Garrett, both of Duke University School of Law, have published Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine as Duke Law School Public Law & Legal Theory Series No. 2025-03. Here is the abstract.

The U.S. Supreme Court has long relied on historical evidence in constitutional cases, but recent years have seen a major change in how it does so: not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward. Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application. This transformation in the legal significance of history raises important questions for originalism as a practice of constitutional adjudication, not simply a theory of law. How are judges and litigants to implement the historical tests the Court has increasingly prescribed for them? In the first Part of this Article, we show how lower courts have been tasked with assessing history and tradition in applying constitutional standards, often with little guidance regarding how to proceed or what quality and quantity of historical evidence suffices to satisfy those standards. We taxonomize the Court's standards, describing the different burdens and challenges that judges face in carrying out their obligation to apply these standards while developing a historical fact record. In Part II, we show how lower courts and litigants have attempted to navigate this new doctrinal landscape. Their efforts have revealed serious complications and debates about fundamental matters like the fact/law distinction, record development, expert witnesses, and independent judicial factfinding. Less attention has been paid to the impact on litigants, who potentially face higher costs of research and briefing and legal standards that are more obscure and unpredictable. The result has been incomplete and sometimes deeply flawed decision-making, and-perversely-a growing disjunction between law and historical facts. In Part III we provide some prescriptions. We argue that ifconstitutional cases are to turn on matters of historical fact, those factual determinations should be initially made with an opportunity for party development of historical facts, including with appropriate use of expert witnesses. If no such trial court record exists, appellate courts can and often should remand for one to be developed. Moreover, fixed standards of review must regulate review on appeal, accounting for the differences between questions of fact and law If adequate rules and practices for finding and applying historical facts cannot be identified or soundly implemented, then originalist constitutional standards that call for the application of historical facts should be reconsidered—not necessarily because they fail in theory but because they fail in practice. Insufficient rules for fact-development and review on appeal result in ill-defined precedent and unworkable constitutional doctrine and will call into question the judicial enterprise of applying history as constitutional law.

Download the article from SSRN at the link.

Heniford and Still on Panic! At the Ballroom: The 1804 New Orleans Ballroom Weapons Ban in a Post-Bruen Context

Kellen Heniford, Everytown for Gun Safety, and Kari Still, Johns Hopkins Center for Gun Violence Solutions, are publishing Panic! At the Ballroom: The 1804 New Orleans Ballroom Weapons Ban in a Post-Bruen Context in the Buffalo Law Review. Here is the abstract.

In the aftermath of the Supreme Court’s decisions in New York State Rifle & Pistol Ass’n, Inc. v. Bruen in 2022 and United States v. Rahimi in 2024, history has taken a central role in the adjudication of Second Amendment cases. Researchers, courts, and litigators across the country have taken on the arduous task of sifting through archives of our nation’s history in order to compile a record of early American arms regulations. Litigation moves quickly, and too often, historical context is missing or selectively marshaled in these cases. This article builds upon efforts to provide that crucial context, specifically in relation to the history of the United States’ earliest enactments that banned weapons in ballrooms. Within, we (1) identify an as-of-yet uncited ballroom weapons ban in 1804 New Orleans, which is the earliest known regulation of its kind; (2) explicate the historical context surrounding that regulation, as well as the even stricter 1808 and 1817 bans that followed it; and (3) suggest general principles that may be distilled from these restrictions when they are considered within a larger historical tradition. We explain that these early nineteenth-century regulations can be understood as part of a historical tradition of weapons bans under either of two different types of sensitive places: places where there is a high probability of conflict and places where the presence of weapons is incompatible with the actual functioning of the place itself.

Download the article from SSRN at the link.

Keay, Inwood, and Long on Public Sentiment and Criminal Sentencing: Gender, Indigeneity, and Class in Nineteenth Century British Columbia

Ian Keay, Department of Economics, Queen's University, Kris Inwood, University of Guelph, Department of Economics, and Blair Long, Memorial University, have published Public Sentiment and Criminal Sentencing: Gender, Indigeneity, and Class in Nineteenth Century British Columbia . Here is the abstract.

Using prison admission ledgers, we document the criminal sentencing behaviour of judges through an institutionally transformative period in the history of the Canadian province of British Columbia (BC). Between 1864 and 1913 we find significant biases in sentencing that resulted in shorter sentences for Indigenous, Chinese-origin, and female prisoners, relative to prisoners with otherwise similar observable characteristics. In contrast, prisoners who reported occupations typically held by those in the lowest and highest social classes had relatively longer sentences than the average prisoner. Over time, these biases shifted for those of Indigenous and Chinese-origin, and for women, concurrent with changes in public sentiment and significant historical and institutional events in BC. We use the probability of each prisoner's predicted future recidivism to test for the presence and impact of statistical discrimination. We find evidence of significant statistical bias, but the effect on prisoners' sentences is small, and most of the differential sentencing we document can be attributed to some combination of judge's taste-based discriminatory attitudes, and statistical discrimination along other dimensions.

Download the article from SSRN at the link.

Amirbayeva on Understanding the Significance of Forensic Linguistics Among Law Students

Dana Amirbayeva, The English and Foreign Languages University, School of English Language Education has published Understanding The Significance Of Forensic Linguistics Among Law Students. Here is the abstract.

The rapid growth of legal linguistics, also known as forensic linguistics, illustrates the development of modern science. Law students become engaged in a wide range of social endeavours, with legal language functioning as one of the primary tools. Both linguists and lawyers are interested in forensic linguistics due to its close connection between language and law. Many countries, for instance, collaborate with linguists on key topics that affect crime cases. As a result of incorporating forensic linguistics into law curriculum, law students are exposed to real-world issues regarding lawyer communication and linguistic development. This field offers the advantage of integrating rich and engaging activities that emphasise building legal vocabulary and developing investigative skills in incriminating circumstances such as fingerprints, blood spatter, bullets of various types, calibers, and sizes, and so on. The main benefit of forensic linguistics is the opportunity to integrate rich and engaging activities. Law schools should consider the implementation of forensic linguistics in law curriculum as a broad framework for understanding language styles, and evaluating recorded and written evidence, as well as other critical professional activities.

Download the essay from SSRN at the link.

Reid on London's Burning: The Gordon Riots of 1780, Conspiracy Theory, Elite Connivance, Law Reform, and Official Bigotry

Charles J. Reid, University of St. Thomas School of Law (Minnesota), has published London's Burning: The Gordon Riots of 1780, Conspiracy Theory, Elite Connivance, Law Reform, and Official Bigotry as U of St. Thomas (Minnesota) Legal Studies Research Paper No. 25-06. Here is the abstract.

It is 1780 and the City of London is on fire. The Gordon Riots of June, 1780, was the largest and most destructive act of civil disobedience in the history of the United Kingdom. The Houses of Parliament were attacked. Prisons were burnt to the ground and all the captives freed. Only the British army succeeded in restoring order, and then only after the passage of several days. Hundreds of persons died. This Article tells the story of the Gordon Riots. It is a story that involves the English Crown's two-century effort to instill a deep anti-Catholic bigotry in the British people. When the Crown decided to relax that narrative out of the desire to recruit Irish Catholic troops to fight in the American Revolution, a large part of the populace of London responded with outrage. That outrage was fanned by conspiracy theory and elite connivance. Lord George Gordon, a Scottish nobleman and member of Parliament, was responsible for stirring popular anger. And that anger burst furth in early June, 1780, when large masses of people, led by Lord Gordon, marched on Parliament. The crowds that stormed Parliament and set fire to the City were largely drawn from the poorer segments of the population, who feared being left behind as the United Kingdom opened the door to a policy of religious toleration. Were the mobs populist? Can they be explained by Marxist thought? And what about the person of Lord George Gordon? The Article, in short, is a story of how abrupt reversals in public policy and law reform can go badly off the rails when faced with opposition grounded in bigotry and conspiracy theory.

Download the article from SSRN at the link.

Bray and Keane on James Ussher (1581-1656)

Samuel L. Bray, Notre Dame Law School, and D. N. Keane, Georgia Southern University, are publishing James Ussher (1581-1656) in Christianity and the Making of Irish Law: Violence, Virtue, and Reason (David McIlroy ed., forthcoming 2025). Here is the abstract.

In the seventeenth century, James Ussher was the Archbishop of Armagh and Primate of the Church of Ireland. Now remembered for his risible dating of creation, in his lifetime he was widely regarded as one of the most learned persons in the British Isles if not in Europe. This chapter explores Archbishop Ussher's ideas that have significance for law. In particular, it considers his commitment to absolute monarchy, even as the tide was flowing toward a more assertive Parliament; his proposal for "reduced episcopacy," a form of conciliar ecclesiastical government; and his insistence that each national church have its own canon law. This chapter takes the measure of these contributions and also of their contributor. Ussher was a Janus-like figure of contradictions—staggering in how much he knew, and now remembered mostly for what he did not know; widely renowned in his time for his moderation, yet repressive to Irish Catholics; a royalist bishop who was deeply admired by both King Charles I and the rebels who beheaded him.

Download the essay from SSRN at the link. 

Brophy on The Jurisprudence of Antebellum Phi Beta Kappa Addresses

Alfred L. Brophy, University of North Carolina School of Law, has published The Jurisprudence of Antebellum Phi Beta Kappa Addresses. Here is the abstract.

Ralph Waldo Emerson spoke at Harvard University in 1837 in a Phi Beta Kappa address. That address known as American Scholar reaches for individual expression, not history and social hierarchy. There are many Phi Beta Kappa addresses, both before and after him. Many Transcendentalists orators at Harvard and a few anti-Transcendentalists orators as well. And many others who are optimists, technology, and utilitarians at many colleges. After the Fugitive Slave Act in 1850, three speakers of Harvard, Brown, and Yale advocated law, rather than conscience. All three of them were lawyers. There was a rich diversity of opinion: Transcendental oratory, anti-Transcendentalists, and optimist, technological, and utilitarian thought.

Download the article from SSRN at the link.

Hummel on Music of the Law: A Wigmorian Playlist for a Modern Era @josephhummel.bsky.social

Joseph Hummel, UNT Dallas College of Law, has published Music of the Law: A Wigmorian Playlist for a Modern Era at 59 Tulsa Law Review 301 (2024). Here is the abstract.

Within the field of law and literature, the academic study of legal songs—those being songs about lawyers, trials, the law, legal procedure, and broader issues of justice—remains relatively underdeveloped when compared with the study of legal novels, plays, and films. Given the value legal songs can provide to lawyers, this need not and should not be the case. For the lawyer, the benefits of listening to and studying legal songs are many. Legal songs can help lawyers understand the public’s perception of lawyers and the law. Listening to legal songs can also help lawyers improve their linguistic and interpretative skills. Legal songs also offer the lawyer a portal to understanding their clients and those “others” situated outside of or on the periphery of society. Lastly, legal songs can help lawyers re-engage with their “humanistic roots” and ethics. Using Dean John Henry Wigmore’s and Professor Richard Weisberg’s “lists of legal novels” as foundational and structural tools, this article endeavors to create a “Wigmorian playlist” of forty curated legal songs that, to borrow a phrase from Wigmore, no lawyer can “afford to ignore.” Using overarching criteria similar to those set out by Wigmore and Weisberg, this article catalogues and examines songs that centrally and significantly depict: (1) lawyers or other members of the legal profession; (2) trials or other legal proceedings; (3) issues of civil or criminal procedure; (4) laws and legal instruments; and (5) crimes or broader issues of law and justice that also implicate criteria (1), (2), (3), or (4). The article contains five sections. Part I is the Introduction. Part II discusses the evolution of the law and literature movement and explores its expansion through the twentieth century to include non-literary mediums, including music. Part III explores music’s connection to the law and argues that legal songs hold professional and personal value for lawyers and warrant from them engagement and analysis commensurate with the degree that lawyers might expend on legal novels, plays, and films. Part IV discusses the selection criteria for the “playlist.” Part V contains the “Wigmorian playlist.”

Download the article from SSRN at the link.

Boden on Myra Bradwell and the Chicago Legal News: Speech and the March for All Civil Rights

Anastasia Boden, George Mason University, has published Myra Bradwell and the Chicago Legal News: Speech and the March for All Civil Rights. Here is the abstract.

To the extent that people know the name Myra Bradwell, they likely know her only for her defeat. In Bradwell v. Illinois, the Supreme Court famously denied that Myra had a constitutional right to earn a living as an attorney. 2 According to eight justices, the "paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother," not to enter a profession. 3 Myra may have lost in court, but she was wildly triumphant in the long run and became a successful advocate even without government permission. Though the Court denied her the right to pursue a livelihood, she retained her right to free speech-and she used it to start and manage the most successful legal periodical of her time, to draft and help pass various reforms that advanced equality before the law, and even to free Mary Todd Lincoln from unjust imprisonment in a sanitarium in Illinois. Myra's successful civil rights campaign underscores a perverse distinction in constitutional law: the purported distinction between the right to free speech and other, "unenumerated" constitutional rights like the right to earn a living. The First Amendment is given privileged treatment, with judges subjecting laws that infringe speech to strict judicial scrutiny. 4 Most unenumerated rights, by contrast, are relegated to rational basis scrutiny.

Download the article from SSRN at the link.

Perez on A Critical Analysis of Rap Shield Laws

Alexa Perez, Drake University Law School, is publishing A Critical Analysis of Rap Shield Laws in volume 110 of the Cornell Law Review. Here is the abstract.

For years, scholars have been sounding the alarm on "rap on trial," or the use of rap as evidence in criminal proceedings, pointing out that the fundamental characteristics of rap music make it uniquely susceptible to misinterpretation and prejudice. Scholars have also cautioned that rap on trial has the potential to chill artistic expression in violation of the First Amendment. The heavy reliance on rap lyrics in the recent RICO prosecution against rapper Young Thug has shed a renewed spotlight on the rap on trial concerns. In response to these growing concerns and a perceived gap in evidence law, state and federal legislators have proposed, and in some states enacted, statutes that seek to limit the use of rap lyrics as evidence-what this Article refers to as "rap shields." This Article provides the first critical analysis of rap shield proposals. More specifically, this Article demonstrates that rap shield laws are largely duplicative and, therefore, unnecessary from both an evidentiary and constitutional standpoint. Nevertheless, from a social justice standpoint rap shields serve important functions that may justify their enactment, such as offering guidance that increases judicial scrutiny and decreases judicial discretion. Those benefits, however, come with unintended costs-costs that may outweigh the important functions rap shields serve-including impeding defendants' right to present a defense. This Article concludes that the administration of justice may be better served and the concerns with rap on trial better addressed when the firmly rooted canons of evidence law are stringently applied rather than amended.

Download the article from SSRN at the link

Sherwin on The Challenge of Legal Chorology: Rethinking Political Theology

Richard K. Sherwin, New York Law School, has published The Challenge of Legal Chorology: Rethinking Political Theology as NYLS Legal Studies Research Paper No. 4960463. Here is the abstract.

Liberal democracy has historically been associated with an assumption of neutrality concerning religious or moral feelings and beliefs. Illiberal critics like Carl Schmitt have seized on this assumption to argue that moral neutrality deprives liberal democracy of any claim to legitimation or, for that matter, political coherence. But liberal democracy’s core commitment to a creed of freedom among equals belies this critique. As illiberal forms of governance gain strength worldwide, it is incumbent on allies of freedom to articulate a compelling and comprehensive narrative in its defense. To this end, legal chorology brings to light the historical, cultural, emotional, and spiritual conditions under which ‘constitutive power’ founds, transforms, or sweeps away political and legal states. This originary, generative force exceeds, even as it courses through, the names we assign it throughout history. That unbearable excess (“the sacred”) is the defining feature of constitutional over-beliefs. Constitutional over-beliefs embody different clusters of ideas, beliefs, and affective states around which polities arise and cohere. By tracing the rise and fall of discrete, historically privileged, constitutional over-beliefs, legal chorology holds out the prospect of identifying potent cross- cultural and interreligious resources for political belief and commitment. At the same time, reconceiving political theology as a genealogy of the sacred releases the field from Schmitt’s narrow illiberal vision. Liberal democracy, chorologically construed, rests upon an ethical metaphysic that conceives freedom among equals as an offshoot of each other’s infinite worth. As it turns out, liberal democracy’s ethos of epistemological modesty and experiential openness amidst abundance also emulates the very nature and dynamics of khôra herself.

Download the article from SSRN at the link.

Sevel on The Rule of Law: A Thought Pattern @michaelsevel.bsky.social

Michael Sevel, The University of Sydney Faculty of Law, is publishing The Rule of Law: A Thought Pattern in The Rule of Law in Ancient Rome (Eleanor Cowan, Kit Morrell, Andrew Pettinger, and Michael Sevel, eds., Oxford University Press, eds, 2025). Here is the abstract.

The interdisciplinary revival in rule of law studies over the last quarter century has produced an impressive diversity of views about the ideal's content, priority, and value. That diversity has sometimes encouraged the skeptical view that it has no conceptual core or nature, and is either 'essentially contested' or else only empty political rhetoric. I argue that amongst the various views about the rule of law developed over the centuries, there is a discernible, recurring thought pattern upon which the many variations have been proliferated. Whatever else it is, the rule of law is realized when a political community has an efficacious legal system with certain enabling and pervasive characteristics, which protects its members from something presumed in that community to be undesirable, often identified as the arbitrary exercise of power. I explain and illustrate each aspect of this pattern, and draw a few lessons about how it guides, or fails to guide, current rule-of-law debates.

Download the essay from SSRN at the link.

Call for Applications: Critical Times Summer School, University of Lucerne, 30 June to 4 July 2025

From Steven Howe, University of Lucerne: Call For Applications, Disruptions: Summer School, University of Lucerne

Critical Times 2025

Disruptions

Summer School

University of Lucerne, 30 June to 4 July 2025

 

Ours is a time of disruption; a “disruptive age” as Bernard Stiegler terms it. Rapid technological change, the accelerating scarcity of biospheric resources, heightened political and economic volatility, social unrest and discontent – these are just some of the pressures that are radically (re-)shaping the modern condition, and which are making the experience of disruptiveness an “epochal signature” (Erich Hörl) of the twenty-first century.

 

The language of disruption is pervasive. At root, the term derives from the Latin disrumpere, meaning to break apart or to shatter; it refers to the action of “rending or bursting asunder”. But it also carries the sense of interrupting or jamming; of “breaking between” and “preventing something […] from continuing as usual or as expected”. To disrupt is to unsettle conventional frames and norms, flows and continuities – it is, in essence, a destructive act. And yet equally, it holds force as a generative move – one that not only calls into question what is entrenched and naturalized but which conjures the possibility of thinking and making things anew. 

 

For this year’s Critical Times summer school, we invite postdocs, ECRs and graduate students from across disciplines to join us for a week of intensive exchange on the meanings, forms and effects of disruption – as event, as process, as mode, as gesture. Our aim is to open a space for thinking – deeply, critically and creatively – about how disruptive forces upset existing notions of law and justice, tradition and community, and about the possibilities they open for transforming our legal, political and cultural imaginaries. Topics for consideration might include:

 

• How does the experience of disruptiveness impact the means and ways of ordering legal and political life?
• To what extent are rising “anti-democratic forces” engendering a “nihilistic disintegration of the social compact” (Wendy Brown)? What strategies are available to challenge these forces and to help re-knit the social and/or democratic fabric?
• How are shifting political dynamics – local, national and international – contributing to a dislocation of shared cultural values and dispositions? How might these effects be countered or mitigated? 
• What is the work of media forms and practices in cultivating or resisting disruptive energies? 
• How does the recent (re-)thinking of human and non-human agencies disrupt conventional notions of normativity and subjectivity – in law, politics and culture?
• What kinds of lawful relations are necessary to make our disrupted worlds newly livable and habitable?
• Which imaginative practices and resources have the power to disrupt entrenched narratives and deconstruct mythical understandings of the past?
• How might such practices and resources interrupt and transform our experience of time and space and with what artistic, political and legal implications?
• What aesthetic forms and representations might be enlisted to disrupt the “distribution of the sensible” (Jacques Rancière) and offer new ways of seeing and understanding? 
• How might contestatory aesthetic and political practices catalyze change and produce a shift in hegemonic articulations of the im/possible? 
  

Confirmed speakers: Shane Chalmers (University of Hong Kong), Başak Ertür (Goldsmiths), Julen Etxabe (University of British Columbia), Mónica López Lerma (Reed College), Desmond Manderson (The Australian National University), Greta Olson (University of Giessen).

 

Full programme details will be constantly updated here as more information becomes available.

 

Application details here. Deadline: 14 March 2025

 

Contact: steven.howe@unilu.ch

Wieboldt on The "Crusading Fanatics" of American Law: American Jesuits and the Origins of the Neo-Scholastic Legal Revival, 1870-1960 @notredame.bsky.social

Dennis J. Wieboldt, III, University of Notre Dame, is publishing The "Crusading Fanatics" of American Law: American Jesuits and the Origins of the Neo-Scholastic Legal Revival, 1870-1960 in the Journal of Law and Religion. Here is the abstract.

During the early twentieth century, Ivy League legal scholars developed a positivist jurisprudential method known as Legal Realism. Concerned with the law's relationship to social conditions, Realism methodologically triumphed in the elite legal academy and brought to a close what the legal historian Stuart Banner has recently described as the "decline of natural law" in American jurisprudence. Catholic legal scholars in the United States responded to this "decline" by invoking the natural law philosophy of Thomas Aquinas and his (Neo-)Scholastic disciples, arguing that Realism irredeemably divorced law and morality. In so doing, these scholars effectively inaugurated the (Neo-)Scholastic Legal Revival, a decades-long period of debate between Catholic natural lawyers and their positivist contemporaries about the American legal tradition's inextricability from natural law. To understand the history and significance of this debate, this article uncovers the origins of the (Neo-)Scholastic Legal Revival in particular features of nineteenth-century European Catholic intellectual culture that were transmitted to the United States through the Society of Jesus, the world's largest Catholic religious order. In concluding, this article examines the lives and legacies of two American Jesuits who became leaders of the (Neo-)Scholastic Legal Revival and who thereby illustrate how recovering the Revival's forgotten history can enrich scholars' understanding of this important period in American legal history.

Download the article from SSRN at the link.

Vasconcelos Vilaça on Broken April, Narratology, Legal Normativity, and the Experience of Law

Guilherme Vasconcelos Vilaça, Instituto Tecnológico Autónomo de México (ITAM) Law School, has published Broken April: Narratology, Legal Normativity, and the Experience of Law, in Law and Critique (2024). Law and Critique, 0[10.1007/s10978-024-09400-w]

This article delves into the intersection of literature and legal normativity through the lens of Ismail Kadare’s novel Broken April. It explores how literary theory enhances philosophical analysis of law by examining the novel’s portrayal of the Kanun, a set of customary laws in Albania, highlighting the complexity of legal normativity and the impact of law on individual subjectivity and social order. The core argument posits that Broken April serves not only as a reimagined narrative of Albanian customary law, but also as a device to question and reflect on the broader implications of law’s normative force, and its reliance on a plethora of aesthetically effective symbols, in constituting both human behavior and the social imaginary. Through the literariness of Broken April, this article explains how law infiltrates and molds the social and psychological dimensions of life, ultimately shaping legal experience. It argues that literature offers a unique vantage point to reassess our understanding of law’s role in society, challenging conventional and nonconventional legal theories that overlook the cultural and emotional dimensions of law.

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Netolitzky on But My Ghosts Are So Hard to Hear: Pseudolaw and Conspiracy Culture @DNetolitzky @UAlberta

Donald Netolitzky, University of Alberta, has published But My Ghosts Are So Hard to Hear: Pseudolaw and Conspiracy Culture at 8 International Journal of Coercion, Abuse, and Manipulation 11 (2025).

Pseudolaw is an alternative counter-law that has propagated worldwide post-2000. Pseudolaw’s core rules and concepts are surprisingly conserved despite this scheme’s adoption by diverse marginal dissident anti-authority populations and individuals. Pseudolaw and its users are frequently identified as a “conspiracy theory” and “conspiracy theorists,” respectively. This article evaluates those designations. Pseudolaw’s “good law” versus “bad law” narrative and the Strawman Theory core concept clearly satisfy the criteria to classify pseudolaw as a conspiracy theory. However, whether persons who use pseudolaw should be identified as conspiracy theorists is more complex. At least some “mercenary” pseudolaw users are greed-based operators who have no interest in pseudolaw’s substance, including its conspiratorial aspects. Attempts to evaluate whether pseudolaw “believers” exhibit traits and characteristics identified by the recent broad academic investigation of conspiracy theorists are unfortunately frustrated by the uncooperative responses from pseudolaw users to social sciences investigators and our limited access to pseudolaw “insider” perspectives.

Download the article from SSRN at the link.

Toussaint on the Cultivation of Black Letter Law @etiennetoussaint.bsky.social

Etienne C. Toussaint, University of South Carolina School of Law, has pulished On the Cultivation of Black Letter Law at 124 Columbia Law Review 151 (2024). Here is the abstract.

Engaging with the sociocultural dimensions of race and racism across U.S. history is essential when creating, critiquing, and reforming the law. Building on Robin West’s exploration of the law and culture movement, this Piece introduces a novel “hermeneutic” project that reads Black American culture throughout U.S. history to gain critical insights into the nature and function of law in America. Black American culture, deeply rooted in the sociocultural traditions uniting members of the African diaspora, has consistently challenged White supremacy and played a foundational role in shaping U.S. law. To illustrate the value of studying law through the lens of race and culture, this Piece incorporates an analysis of Ralph Ellison’s "Invisible Man" alongside the author’s experiences in a Black urban neighborhood in the South Bronx. It argues that intentionally “reading culture” is crucial for uncovering deeper insights into the inherent nature of law. This cultural-legal approach provides a framework for recognizing the limitations of liberal legalism, understanding the cultural production of legal meaning, and advancing legal reform, democracy, and justice in American society. By blending cultural analysis with legal critique, this Piece aims to promote more equitable legal practices informed by the lived experiences and cultural contributions of Black Americans and other marginalized groups.

Download the article from SSRN at the link.

Asimow on All's Fair in Love and War: Military Justice in the Movies ‪@sculawresearch.bsky.social‬ @amarkhoday.bsky.social

Michael Asimow, Santa Clara Law School, has published All's Fair in Love and War: Military Justice in the Movies. Here is the abstract.

This chapter in the book Law and War in Popular Culture (Stefan Machura, editor, Nomos 2024) surveys military justice in English-language films. These movies tell a consistent story of injustice arising out of flaws inherent in the military justice system—in particular command influence and abuse of the following-orders defense. The brass exercise command influence over military court martials to select and punish scapegoats or cover up their own errors. Command influence is the subject of such classic films as Paths of Glory, Breaker Morant, and Man in the Middle, among others. The following orders defense applies if the accused was acting pursuant to orders, unless the accused knew the orders were unlawful or a person of ordinary understanding would have known the orders were unlawful. Of course, this defense is inherently problematic, since it is unlikely that trained soldiers will disobey orders, regardless of their legality. The following-orders defense and its abuse are memorably portrayed in such films as A Few Good Men and Breaker Morant.

Download the chapter from SSRN at the link.

Williams on the Jurisprudence of Sandwiches @sawilliams.bsky.social

Sam Williams, University of Idaho College of Law, has published The Jurisprudence of Sandwiches. Here is the abstract.

The question of what bread-based foods count as sandwiches is a contentious one that seemingly everyone has an opinion on. This includes many prominent legal minds, including prominent judge Richard Posner and Supreme Court Justices Scalia, Ginsburg, and Sotomayor. This question is not purely hypothetical to the law, as courts have had to determine the meaning of a sandwich in cases with thousands of dollars on the line. In this essay, I examine this budding sandwich jurisprudence and how it explains and exemplifies several unique features of legal thought, including the ongoing debate between legal formalism and legal realism, the reasonable person, and the breaking up of binary political identity into more nuanced portrayals of "liberal" and "conservative" justices. By biting in to this developing jurisprudence, I help to bridge the gap between the legal mind and the broader world of sandwich analysists.

Download the essay from SSRN at the link.

Newly Published: Dirk Heirbaut, Redefining Codification: A Comparative History of Civil, Commercial, and Procedural Codes (OUP, 2025)

Newly published:

Dirk Heirbaut, University of Ghent, has published Redefining Codification: A Comparative History of Civil, Commercial, and Procedural Codes (Oxford University Press, 2025). Here from the publisher's website is a description of the book's contents.

More than half of the world’s population lives under law codes. Yet, defining the concept of codification remains elusive. Rather than delving into abstract theories, this book provides a rich, contextual comparative legal history of codes in France, Germany, the Netherlands, and Belgium from the late eighteenth century to the present. The first part studies the evolution of French, German, Dutch, and Belgian codes in their political and comparative context, thus challenging deeply rooted national narratives. It covers not only the well-studied French, German, Dutch, and Belgian civil codes but also their often-overlooked commercial and procedural counterparts and drafts that failed to become law. The second part embarks on a comprehensive analysis of the factors contributing to the success or failure of codification efforts. Employing an innovative method of comparative legal history, it explores the key players and objectives behind codification, revealing that traditional notions of codification are far removed from reality. Following this deconstruction of some ‘universal truths’ about codifications, the book proposes a fresh, empirically based definition of codification, offering new insights. This book is essential for law scholars in civil and common law countries who study codification. For both beginners and specialists, it can also serve as a gateway to the histories and recent developments in private, commercial, and procedural law in France, Germany, the Netherlands, and Belgium. Historians and political scientists will find a behind-the-scenes analysis of the machinery of lawmaking in this book. Politicians and drafters of new codes can use this book as an overview of best practices in codification.

Forthcoming: Birte Christ, Imagining the American Death Penalty: The Cultural Work of Popular Visual Representations (OUP, 2025) @oxfordunipress.bsky.social

Forthcoming from Oxford University Press: Birte Christ, Giessen University, Imagining the American Death Penalty: The Cultural Work of Popular Visual Representations (publication date, May 31, 2025). Here from the publisher's website is a description of the book's contents.

Imagining the American Death Penalty traces the US American cultural imaginary of capital punishment through popular visual representations from the 1890s to the twenty-first century. The book focuses on three generic and historical clusters of representations: early film from the 1890s through Intolerance (1916), crime film noir of the 1950s and1960s, and legal TV series from the 1990s through the early 2000s. The book makes two central arguments. First, it demonstrates that an increased concern with the death penalty in popular media does not mean that these texts promote an abolitionist agenda: their cultural work is ambiguous at best. This ambiguity is always contingent upon both the affordances of the particular genre and medium in question and on political-legal discursive context. The book explores both in detail. Early film is enchanted with its own representational possibilities due to the progress of technology and, in analogy, with the progress in execution technique, specifically the electric chair. In film noir, genre conventions and the legal back-and-forth before and after Furman predicate ambiguity. In legal TV series, the genre's ensemble casts and its focus on conversational exchange invite open debate. The second argument is that popular visual representations consistently whitewash the death penalty. The book demonstrates that this is the case because the most common narrative around executions in film and TV is to cast the condemned man as a hero who defies the violence of the state, gains dignity by accepting his fate and faults, and in some ways triumphs over death. The American imaginary, until very recently, did or could not imagine Black men to possess that measure of agency that it attributed to its white heroes.

Call For Papers: Journal of American Constitutional History

From Professor Marie-Amélie George, Wake Forest Law School

Call For Papers: Journal of American Constitutional History "Queer Constitutional History": Professors Felicia Kornbluh and Marie-Amélie George, guest editors. 

We invite scholars in history, law, and related fields to submit articles for a symposium issue of the Journal of American Constitutional History on "U.S. Queer Constitutional History," to be edited by Professors Felicia Kornbluh and Marie-Amélie George, in consultation with journal editor David Schwartz. 

We plan to publish the symposium issue in 2025 to coincide with 10th anniversary of the U.S. Supreme Court's decision in Obergefell v. Hodges. At the time the Court issued the Obergefell decision, the opinion appeared to settle specific questions about the legal and constitutional status of marriages between people of the same sex and broader questions about the constitutionality of formal discrimination against gays and lesbians. Since then, the Supreme Court has issued decisions challenging established sexual-liberty jurisprudence, including Justice Thomas' concurrence in Dobbs v. Jackson (2022), which promised a reconsideration of the whole "substantive due process" tradition. 

We invite essays on the queer constitutional history that gave rise to the Obergefell decision-including events outside of the realms of marriage, family law, or U.S. constitutional law-as well as the place of marriage equality within the Court's broader sexual liberty jurisprudence. We welcome contributions on the evolution of marriage equality, queer parenting, and sexual privacy rights under the U.S. Constitution, as well as related topics. For example, submissions might examine how and why these rights became recognized, their doctrinal underpinnings, the gaps that exist in Constitutional jurisprudence, and the relationship between queer Constitutional rights and the Court's decisions in related fields. 

We hope to publish a broad array of perspectives on these topics, to help inform scholarship on queer legal history and U.S. Constitutional history, as well as studies of legal institutions more generally. For that reason, this symposium issue takes an expansive approach to all of its terms: "U.S." extends beyond the mainland to include American territories and the country's diplomatic and international relations; we take "Queer" to mean research on gay, lesbian, bisexual, trans, nonbinary, or asexual people, or otherwise relating to nonnormative and stigmatized gendered and sexualized phenomena; "Constitutional" refers to questions that have been considered in U.S. constitutional courts, as well as related questions that have preceded or transcended them, and matters of state-level and not national constitutional adjudication; and "History" means the study of the past, but not necessarily the deep or distant past, and in this case cannot help but look over its shoulder to connections with contemporary issues. Abstracts are due February 1, 2025. 

Please submit them by email to Felicia Kornbluh (Felicia.Kornbluh@uvm.edu) and Marie-Amélie George (georgemp@wfu.edu). Authors of selected articles will be notified by March 1, 2025. Drafts, which should range from 5,000 to 10,000 words, will be due July 1, 2025 for submission to peer reviewers. Final versions of the articles will be due September 1, 2025. The guest editors may propose a half-day conference to immediately precede the American Society for Legal History's annual meeting in 2025. Contributors to this symposium issue would be invited, but not required, to participate.

Goold and Simon on The Case of Snickerwood Soup @davidasimon.bsky.social @david__simon @NUSL

Patrick Russell Goold, City University London, The City Law School, and David A. Simon, Northeastern University School of Law, have published The Case of Snickerwood Soup. Here is the abstract.

Intellectual property lawyers often ask: What is the value of intellectual property (IP) theory? During our research, we have uncovered a case from a distant land that might shed some light on the issue: The Case of Snickerwood Soup. We report it in full here.

Download the article from SSRN at the link.

Ferguson on The Ciceronian Origins of American Law and Constitutionalism @HarvardJLPP

Jack Ferguson, U.S. Court of Appeals for the Sixth Circuit, is publishing The Ciceronian Origins of American Law and Constitutionalism in volume 48 of the Harvard Journal of Law & Public Policy (2025). Here is the abstract.

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.” This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism. There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era. This Article gives that account. This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries. Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law. As a case study, this Article shows how Cicero contributed to the formation of American judicial review. Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review. This Article then considers Cicero’s work on republicanism and constitutionalism. The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition. Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive. As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive. And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force. Cicero influenced the Founders’ work in numerous ways. To the extent their law is ours today, his relevance endures.

Download the article from SSRN at the link.

Newly Published: Miller on An Introduction to German Law and Legal Culture (Cambridge) @CambridgeUP

Newly published: 

Russell A. Miller, An Introduction to German Law and Legal Culture: Text and Materials (Cambridge University Press, 2024). Here from the publisher's website is a description of the book's contents. 

An Introduction to German Law and Legal Culture offers students, comparative law scholars, and practitioners an insightful and innovative survey of the German legal system. While recognizing the significant influence of the Civil Law tradition in the German legal culture, the book also considers other legal traditions – Common Law, Socialist Law, Islamic Law, Adversarial Law, European Law – that are woven into the varied and colorful fabric of the German legal culture. The book provides an informed yet accessible introduction to the foundations of German law as well as to the theory and doctrine of some of the most relevant fields of law: Private Law, Constitutional Law, Administrative Law, Criminal Law, Procedural Law, and European Law. It is an engaging and pluralistic portrayal of one of the world's most interesting, important, and frequently modelled legal systems.

More information about the book here.  

Bernick on Constitutions of Fire and Ice @EvanFloof @jackbalkin @PennLRev @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, is publishing Constitutions of Ice and Fire in the Pennsylvania Law Review. Here is the abstract.

Constitutional theory studies the birth and death of normative universes. Constitutions originate in “hot” universes, from fiery constituent power which forges institutions and norms that come to be seen as fixed and unchanging. Even in the “cooled down” universe, constituent heat is capable of transfiguring, transforming, and even consuming constituted power. No constitution which derives its legitimacy from popular sovereignty can long survive the estrangement of the living from what is perceived as a cold, dead legal order. Jack Balkin’s Memory and Authority tries to navigate between fire and ice, fixity and flux. Since Balkin’s conversion to originalism, he has been a steadfast defender of faith in the basic legitimacy of the Constitution of the United States and a keen critic of interpretive approaches which tend to undermine its legitimacy. His Constitution is a framework which has some fixed, “hard-wired” features but which also provides considerable space for politics. Popular multitudes in the present can join multitudes past in an intergenerational democratic project committed to the realization of enduring constitutional principles. Through faithful construction, an imperfect Constitution borne of sin can be redeemed and become our law. Memory and Authority maintains that originalist arguments play an important role in this democratic project. Balkin considers them to be a particularly effective means of harnessing the power of cultural memory. Balkin counsels everyone to use them. He specifically urges left-liberals to set aside their misgivings about a mode of argument that is primarily deployed by political conservatives, both for the sake of achieving left-liberal political goals and for the sake of democracy. I contend that Balkin’s map of the U.S. constitutional universe is neither cold nor hot enough to be complete or convincing. It’s not cold enough because the framework Constitution and durable political-economic structures which it presupposes and perpetuates skew constitutional decisionmaking in democratically disempowering ways. It’s not hot enough because Balkin neglects the ways in which the framework has been shaped—for good and ill—by fiery constitutional faiths. For all the space that he seems to leave for flux, Balkin takes too much fixity for granted. To illuminate the strengths and limitations of Balkin’s constitutional theory, I put his work in conversation with the anti-essentialist cosmological theory of Roberto Mangabeira Unger, among the founders of a critical legal studies movement to which Balkin was in his early career a major contributor. I also describe the constitutionalism through which Native peoples have built power in the United States, notwithstanding a colonialist Constitution. This constitutionalism is animated by faith, but that faith looks little like Balkin’s. And it illustrates why arguing about history can be a dangerous strategy for peoples marginalized by the framework Constitution.

Download the review from SSRN at the link.

Parrillo on Foreign Affairs, Nondelegation, and Original Meaning: Congress's Delegation of Power to Lay Embargoes in 1794 @YaleLawSch @PennLRev

Nicholas R. Parrillo, Yale University Law School, has published Foreign Affairs, Nondelegation, and Original Meaning: Congress's Delegation of Power to Lay Embargoes in 1794 at 172 University of Pennsylvania Law Review 1803 (2024). Here is the abstract.

Originalist proponents of a tougher nondelegation doctrine confront the many broad delegations that Congress enacted in the 1790s by claiming that each fell into some exceptional category to which the original nondelegation doctrine was inapplicable or weakly applicable, one being foreign affairs. There is lively debate on whether the founding generation actually recognized an exception to nondelegation principles for foreign affairs. This Article, commissioned for a symposium on “The Statutory Foreign Affairs Presidency,” intervenes in the debate by examining the Embargo Authorization Act of 1794, which empowered the President to lay an embargo on all ships in U.S. ports (and/or other classes of ships) if “the public safety shall so require,” for the upcoming five-month congressional recess. This was a delegation of remarkable power over the U.S. economy, which at the time depended heavily on maritime transport. An examination of the Act undermines the idea that there existed a foreign-affairs exception to cover it. Originalist proponents of a tougher nondelegation doctrine claim the doctrine was meant to protect private individual rights of liberty and property, yet Americans in the late 1700s lived in an economy that was more dependent on foreign commerce than it has ever been since, in which a five-month international embargo could be disastrous for private business nationwide. In this context, an “exception” for foreign affairs would be strange, turning economic reality on its head. Furthermore, the Act itself flouted any objective or even workable distinction between the foreign and the domestic. The Act’s unqualified use of the term “embargo” authorized the President to prohibit the departure of all ships, not only those sailing to foreign ports but also to other U.S. ports in the coastwise trade, which was then the main channel of U.S. domestic commerce. And even if the President were to impose an embargo aimed mainly at international maritime trade, preventing evasion of such a restriction required regulation of the coastwise trade—regulation that contemporaries apparently understood the Act to authorize.

Download the article from SSRN at the link.

Williams on The Law Being Weirder Than AI @uidaholaw

Sam Williams, University of Idaho College of Law, has published The Law is Weirder than AI. Here is the abstract.

Between artificial intelligence threatening to take our jobs and destroy the world while adopting the aesthetic of the weird and a presidential election that will be partially determined by how people feel about being weird, it seems like the weird is taking over. In this article, I make the case for embracing the weird. Only by embracing our own weirdness can we make sense of the weirdness (or lack thereof) of those that we do not understand. Primarily through the lens of author H.P. Lovecraft's weird tales, I argue that the law is very weird. This weirdness is mostly a good thing, but it does carry many of the same issues that plague Lovecraft's work. This acknowledgment of the weird then leads to an assessment of the weird claims surrounding "artificial intelligence" to dispel that mythology. The lens of the weird reveals artificial intelligence as a distressingly mundane monster, one who better represents the eerie spawn of very familiar forces. I conclude by explaining how the law's weirdness and the eerie forces that drive A.I. work together to create Sovereign Citizens, the law's own weird progeny. By understanding these three alien entities and their relationships with one another, legal minds can better appreciate their own place within a confusing and uncaring world.

Download the article from SSRN at the link.

Iskandar on The Constitutional Significance of State Symbols

Pranoto Iskandar, McGill University, Centre for Human Rights and Legal Pluralism; The Institute for Migrant Rights, has published The Constitutional Significance of State Symbols. Here is the abstract.

Not every constitution entrenches state symbols, but many do and their rationale can only be understood implicitly. These state symbols constitutionally significant. Some constitutions contain provisions that explicitly state any violation or even mere disrespect toward state symbols may entail legal consequences. Those that take state symbols too seriously tend to be classified as undemocratic, illiberal, repressive, or even worse, authoritarian. A cursory overview of some Western European states with liberal democratic pedigree reveals that they have harsh sentences for those who pour scorn on their state symbols. Therefore, this signifies that state symbols are an important feature in a constitutional order. After all, even the world’s most democratic states also have their own state symbols. Hence, how should one proceed in making sense of the constitutional significance of state symbols?

Download the essay from SSRN at the link.

Galperin on Museum of Joy @JoshGalperin @HaubLawatPace @ELIORG

Joshua Galperin, Pace University School of Law, is publishing Museum of Joy, in a volume to be published by the Environmental Law Institute (2025). Here is the abstract.

This document is a work of short fiction, which will appear in an edited volume of scholarship on the subject "consumption and the good life in the Anthropocene." (I assume it is the only work of fiction in the volume. Thanks to the editors for agreeing to allow me to submit something like this!) Although this piece is still in draft format, after the "global tech outage" on July 18, 2024, I thought it would be wise to make the piece available before reality fully became stranger than my fiction. "Holy cow, it's a scorcher" lilted the announcer, trailing off with a chortle. You could hear the smile running from ear to ear and it was hard not to smile along thinking about kids playing in sprinklers, parents sitting under rainbow umbrellas, wiping the sweat from their brows, and the droplets of cool water running down a glass of iced tea. “This is too sad.” Frances grabbed the remote and switched off the TV. The image of Jason Alexander as George Costanza with ice cream smeared across his face blinked away. “Why are they so playful about the heat?” She breathed out a sigh and closed her eyes for a moment. “It's threatening.” Bruce groaned, subtly but distinctly. “The guy sounds happy about how hot it is! Is it a joke about melting ice cream? All I can think about are people crouching in little slivers of shade, and kids dead after a brownout. "Fine. We can dump this episode” Bruce conceded “There are plenty more.”

Download the story from SSRN at the link.

Cappelen on No Centralization Without Population: The Black Death and State Formation in Europe @ccappelen.bsky.social

Christoffer Cappelen, University of Copenhagen, Department of Political Science, has published No Centralization Without Population: The Black Death and State Formation in Europe. Here is the abstract.

When and where do states expand their territorial reach? In this paper, I address this question by studying the impact of the Black Death on local state-building. I argue that the labor scarcity caused by the pandemic, by altering the costs and benefits of local state presence, affected rulers' decisions of where to invest in statebuilding. Areas that were hit relatively hard by the plague would ultimately experience a weaker presence of state authority compared to areas with lower mortality rates. Combining data on local mortality rates across Europe and an original dataset on castle ownership, I show that higher mortality rates are associated with lower levels of state presence as measured by the share of crown castles; and this divergence persisted through centuries. I further show that this divergence can be traced even to contemporary variations in critical infrastructure, suggesting a modern-day legacy of the Black Death.

Download the article from SSRN at the link.

Unah and Peng on US Supreme Court Decision Making in Intellectual Property Rights (1954-2022)

Isaac Unah, University of North Carolina, Chapel Hill, Department of Political Science, and Sabrina Peng, Duke University School of Law, have published 2. US Supreme Court decision making in Intellectual Property rights (1954-2022). Here is the abstract.

We analyze U.S. Supreme Court decision making in the complex area of intellectual property (IP) to determine whether the Court is strengthening, keeping neutral, or weakening the rights of intellectual property owners. We argue that the Court’s strategic currency is to weaken IP protections to counteract the value stretching and monopolistic tendencies of IP holders. Relying on original data covering four judicial Eras from the Warren Court to the Roberts Court (1954-2022), the analysis strongly supports our theoretical argument, especially as it pertains to patents, showing that the Supreme Court is weakening the rights of patent holders in the IP ecosystem. We further find that there is no IP exceptionalism in the Supreme Court when it comes to ideological influences but that these ideological effects are highly codependent upon other institutional factors. Interestingly, liberal Justices are significantly more likely than conservative Justices to disfavor expanding protections for intellectual property owners.

Download the essay from SSRN at the link.

Herman and Prosenečki on Dads Over Lovers: Why Western Games Favour Parental Relationships Over Romantic Ones, Unlike Other Forms of Art @goteborgsuni

Zoryana Herman and Fabijan Prosenečki, both of the University of Gothenberg, have published Dads Over Lovers: Why Do Western Games Favour Parental Relationships Over Romantic Ones, Unlike Other Forms of Art? Here is the abstract.

Romantic relationships have long been central to various art forms. However, in recent years, Western video games have shifted toward emphasizing parental relationships, particularly father-daughter dynamics, a trend dubbed "the daddification of games." While this shift is often praised for adding emotional depth and maturity to gaming narratives, some critics argue it reinforces traditional gender roles and caters to an aging, male-dominated demographic. This study aims to explore the origins and implications of this trend in Western games and examine the potential consequences of shifting toward romance as the primary narrative focus, aligning gaming with other artistic media. By analyzing the historical evolution and current state of video game narratives, as well as the representation of relationships in past and current media, we propose how this trend was influenced by Western culture around masculinity-specifically linking emotion to femininity-American censorship, and xenophobic attitudes toward Japanese media, where romancedriven narratives are more common. Furthermore, an analysis of player discussions in online forums suggests that players are open to a broader range of relational dynamics, with potential benefits for cultural representation and diversity of experiences offered by the gaming industry.

Download the article from SSRN at the link.

Funk on Sect and Superstition: The Protestant Framework of American Codification @kellenfunk.bsky.social @ColumbiaLaw

Kellen Funk, Columbia University Law School, is publishing Sect and Superstition: The Protestant Framework of American Codification in the American Journal of Legal History (2024). Here is the abstract.

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to 'superstition' and 'priestcraft'. Their opponents denounced the codifiers' idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly 'clear' texts that divided the positivists into an ever-increasing number of sects. Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today's textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist 'Republic of Statutes', the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground.

Download the article from SSRN at the link.

Aceves on Critical Constitutional Law and the Alito Palimpsest

William Aceves, California Western School of Law, is publishing Critical Constitutional Law and the Alito Palimpsest in volume 27 of the University of Pennsylvana Journal of Constitutional Law (2025). Here is the abstract.

This article uses an innovative metaphor—the palimpsest—and a provocative philosophical tradition—genealogy—to generate a new theory of critical constitutional law. It is a theory born from this unique moment in time. Originalism is now ascendant at the Supreme Court. Its search for essential origins in history as a method for grounding extant constitutional values was used in Dobbs v. Jackson Women’s Health Organization to end recognition of the fundamental right to abortion. The Court’s conservative majority has made clear that Dobbs is only the beginning. Critical constitutional law uses the metaphor of the palimpsest to study law and the search for essential origins. In antiquity, a palimpsest was a document treated with chemicals or scrubbed to erase the original text. This allowed the document to be recycled and written anew. Yet, some documents still retained faint images of the original text. By exposing repeated erasures and inscriptions, palimpsestic inquiry reveals how the law is in a constant state of transition and transformation. It also reinforces the findings of genealogy, a critical theory that views history as a field of self-interested interpretations and moral prejudices with no true essential origin. Through palimpsestic inquiry, new insights can be gleaned from Dobbs, a legal decision that is simultaneously historical, ahistorical, and filled with history. It exposes the outdated and misogynist values that permeate Justice Alito’s majority opinion. It reveals how history was scraped clean and reinscribed to justify originalist values. But, palimpsestic inquiry also explains that vestiges of Roe and Casey—and the values they represent—still remain. In the Hegelian dialectic of abortion law—where jurisprudential theories struggle for primacy in the zero-sum world of a nine-member Court—the Alito Palimpsest is merely the current iteration. Palimpsestic inquiry confirms that essential origins are seldom what they seem. This article begins with Dobbs, but its contributions to legal theory extend far beyond this one case. If history has become the touchstone for constitutional interpretation, this article offers a more honest methodology for studying law in the modern era. In fact, it provides the “master metaphor” for the study of law—offering clarity to a range of constitutional rights.

Download the article from SSRN at the link.

Braver and Elinson on A Progressive Judiciary? Judicial Review and National Politics from Reconstruction to the Present @JoshuaBraver1 @WisconsinLaw @NIU_Law

Joshua Braver, University of Wisconsin Law School, and Gregory Elinson, Northern Illinois University College of Law, are publishing A Progressive Judiciary? Judicial Review and National Politics from Reconstruction to the Present in the Uniersity of Arizona Law Review. Here is the abstract.

Within legal academia, the conventional historical narrative is that the Supreme Court has regularly interfered with legislative and executive efforts to protect minority rights and remedy economic inequality. Citing this reactionary tendency, an influential and vocal group of progressive legal scholars have argued that progressives ought to stop defending judicial review and instead devote their energies to eliminating it, or at least aggressively curbing its use. These progressive critics of judicial review (our term) proffer two related historical claims. First, they assert, the Supreme Court has consistently been less progressive than congressional majorities and Presidents. Second, they suggest, even landmark progressive rulings in cases like Brown v. Board of Education and Roe v. Wade were not, in and of themselves, meaningful contributions to progressive causes. This Article evaluates these claims and concludes that judicial review’s progressive critics are wrong on both counts. Revisiting the key eras and cases the progressive critique of judicial review is based on—including Reconstruction, Lochner v. New York, Brown, and Roe—we find little evidence that the Court has been consistently less progressive than the elected branches. We focus on postmaterial political issues that broadly code as part of a broader “culture war,” such as race and sex equality. As to Reconstruction, given that the Republican Party had largely turned away from the project of expending the necessary resources to promote Black equality, progressive critics of judicial review greatly overstate the Court’s contribution to Reconstruction’s demise. In the Lochner era, politicians in both political parties harbored racist views and promoted racist public policy, so the Court’s anti-government ideological commitments ultimately redounded to the benefit of Black Americans. Moving toward the present, we argue that Brown should be celebrated for desegregating the former “border” states and making the Civil Rights Act of 1964 possible. Roe, for its part, established a permissive national abortion regime that went well beyond what was possible to achieve through politics then. On balance, we conclude, a world without judicial review might well have been meaningfully less progressive. Why have judicial elites usually been more progressive than majorities in Congress or presidential administrations on culture-war issues? During Reconstruction, legal elites were largely undifferentiated from their counterparts serving elsewhere in the national government. By the Progressive Era, however, legal elites had become relatively more skeptical of state power compared to their political brethren, a disposition that sometimes furthered progressive ends. After the New Deal, we credit educational polarization, which has tended to make the elite bar, and thus the pool of actual and potential judges and justices, comparatively more open to progressive claims. We observe, however, that beginning in the 1990s, through effort and mobilization—perhaps most notably with the establishment of the Federalist Society—conservatives have offset the exclusionary effects of the legal profession’s liberal leanings on the judiciary.

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Solum on Original Public Meaning @lsolum @UVALaw @michstatelawrev

Lawrence B. Solum, University of Virginia School of Law, is publishing Original Public Meaning in volume 2023 of the Michigan State Law Review. Here is the abstract.

“Original public meaning” has become increasingly important in constitutional discourse. This Article investigates the nature of original public meaning in three steps. First, each word in the phrase “original public meaning” is explicated and clarified. The word “original” represents the idea that the meaning of the constitutional text is fixed at the time each provision is framed and ratified. The word “public” signifies that the relevant meaning is ordinary meaning, the understanding of the text conveyed to the public at the time each provision was framed and ratified. The word “meaning” refers to the set of ideas (concepts and propositions) that constitute the communicative content of the constitutional text. The second step situates original public meaning in the context of normative constitutional theory, explaining its role in both Public Meaning Originalism and nonoriginalist constitutional theories. The third and final step investigates the foundations of original public meaning in the philosophy of language and theoretical linguistics, via an exploration of the distinctions between (a) speaker’s meaning and sentence meaning, (b) semantics and pragmatics, (c) sense and reference, and (d) conceptual meaning versus prototypical meaning. Each of the three steps contributes to the articulation of a conception of original public meaning that aims at conceptual clarity, precision, and theoretical depth. The original public meaning of the constitutional text is the communicative content (the set of concepts and propositions) that was conveyed to the public at the time each provision was drafted, proposed, and ratified. Both semantics (the meaning of words and phrases) and pragmatics (meaning conveyed by context) play essential roles in the complex multistage process by which constitutional communication occurs. For public meaning originalists, the original public meaning of the text ought to bind constitutional actors, including judges, legislators, and executive officials. Sometimes, the recovery of original public meaning is relatively easy—the absence of linguistic drift, common sense, and the immediate context make the meaning of the constitutional text readily accessible to contemporary readers. But sometimes, the original public meaning of the constitutional text is difficult to discern, requiring both a deep reading of the constitutional record and careful application of the methods of historical linguistics.

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Conference on Abortion in American History, January 17, 2025, at the Huntington Library @TheHuntington

Forthcoming Conference: Abortion in American History: Intimate Decisions, Medical Knowledge, and Legal Decrees in the Two Centuries Before Roe v. Wade. Here's a description of the conference, to be held January 17, 2025, at the Huntington Library.

This conference brings together leading scholars to explore the multifaceted history of abortion in 19th- and 20th-century America. Building on the Longo Collection in Reproductive Biology, this conference will explore the underlying history that can deepen public understanding of the controversial politics of abortion law.

More information available here.

Lo Giacco on Giving Meaning to the Past: Historical and Legal Modes of Thinking @letizialogiacco.bsky.social @unileiden.bsky.social @de_Legiz

Letizia Lo Giacco, Leiden University Law School, has published Giving Meaning to the Past: Historical and Legal Modes of Thinking at 9 (2) Jus Gentium: Journal of International Legal History 371 (2024).

This contribution revisits the "turn to history" in international law by focusing on the debate on method between international lawyers and (legal) historians. The paper resorts to an analogy between interpreting the past and interpreting the law as giving-meaning activities to help elucidate points of juncture between these two disciplines. Against flourishing instrumentalist re-readings of the past and manipulative uses of history that both historians and international lawyers have denounced, this paper suggests a way to validate historical narratives and discern among those which contribute to the knowledge of the past and those who would not. It concludes that the "turn to history" in international law is better appreciated as a project geared towards re-assessing its own tradition, fostering self-reflection on international law as a set of doctrines and the role of international lawyers therein, i.e. what it entails to reproduce them as international lawyers.

The full text is not available from SSRN.

Alicea on The Natural Law Moment in Constitutional Theory @HarvardJLPP @CathULaw

 J. Joel Alicea, Catholic University of America School of Law, is publishing The Natural Law Moment in Constitutional Theory in volume 48 of the Harvard Journal of Law and Public Policy (2024). Here is the abstract.

Something new is happening in American constitutional theory. Never before have so many legal scholars sought to ground constitutional theory in the natural-law tradition. Indeed, we can truly say that we are living through a natural-law moment in constitutional theory, a period of unprecedented interest in natural law among constitutional theorists. This immediately calls to mind three questions. First: how, if at all, are the theorists of this moment different from prior theorists who sought to ground constitutional theory in natural law? Second: what explains the rise of natural law in American constitutional theory? Third: what are the implications for constitutional theory of our natural-law moment? This essay sketches answers to these questions, with the caveat that much more could be said about them. This essay was originally delivered as the Herbert W. Vaughan Memorial Lecture at Harvard Law School on April 9, 2024.

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