Swain on Mrs. Jelleby, Victorian Values, and the Legal Framework of the Law of Charity in Nineteenth-Century England

Warren Swain, University of Auckland Faculty of Law, is publishing Mrs Jelleby, Victorian Values, and the Legal Framework of the Law of Charity in Nineteenth-century England as a University of Auckland Faculty of Law Research Paper. Here is the abstract.

From the mid-seventeenth century to the mid-nineteenth century the nature of private charity changed fundamentally. Charities became large, wealthy, national organisations. The legal and regulatory framework struggled to keep pace. The nineteenth century saw both changes to the substantive law of charities and the regulatory framework. These changes took place against the backdrop of debates about the proper reach of the state.

Download the article from SSRN at the link.

Giuliani on Past, Pastness, and the Broad Present: Changing Images of Time in Legal History

Adolfo Giuliani, Infolaw Research Project, is publishing Past, Pastness and the Broad Present: Changing Images of Time in Legal History in Law and Spatio-Temporal Dimensions (S. Zorzetto, P. de Lucia, P. Heritier et al., Springer, 2025). Here is the abstract.

"How does the past relate to the present, how does being connect to becoming?" This question confronted legal history when it emerged as an academic discipline in early nineteenth-century Germany. Its significance reverberated throughout legal science -- but provoking three successive responses, which this paper categorises as past, pastness, and broad-present. (i) In the nineteenth century, scholars viewed the past as a pristine ideal to be reconstructed for guidance, its unbreakable connection to the present forming a cornerstone of legal science. (ii) The twentieth century, influenced by scientific and philosophical breakthroughs, saw past and present merge into a "pastness" that encompassed collective experiences and reflected a new understanding of law-making. (iii) The twenty-first century has expanded this temporal awareness into what scholars call a "broad present" or "long-now"-which at any given time individuals try to make present (or represent) again.

Download the essay from SSRN at the link.

Leary on Screaming Into the System: The Symbiotic Relationship Between Flannery O'Connor, Violence, and the Criminal Law

Mary Graw Leary, Catholic University of America, has published Screaming Into The System: The Symbiotic Relationship Between Flannery O’Connor, Violence, And The Criminal Law. Here is the abstract.

This year marks the 100th birthday of one of America’s most influential writers in history – Flannery O’Connor. Much has been written about the violence in Flannery O’Connor’s work, but relatively little about the criminal and legal aspects of the violence. This is rather surprising given the author’s documented influence from actual crimes in stories such as A Good Man is Hard to Find and The Partridge Festival. It is also surprising given her use of crimes (including homicide, fraud, human trafficking) in her work, as well as her particular focus on the marginalized and vulnerable. O’Connor herself noted that she often used violence to capture her audience’s attention and ultimately bring them to her point. This paper explores that influence on her work through original research at the Flannery O’Connor Archives. However, as these original documents demonstrate, with all things that involve Flannery O’Connor, there is much more to this examination than simply how she was influenced by criminal events. Within many of these criminal events, the law played a critical role in the violence, often as a catalyst. Furthermore, as with many criminal events, the poor and vulnerable suffer at the hands of an uncaring society. O’Connor saw this and utilized the criminal law to comment upon this societal reality. This law played a critical role in her literature not simply as a historical fact or inspiration, but as a silent character. More to the point, this silent character’s frequent failure to protect the vulnerable is a repeated theme in O’Connor’s fiction. This symbiotic relationship between criminal law, violence, and O’Connor’s fiction is not only one where O’Connor was influenced by and utilized actual crime and violence in her writing. But it is also one where she can be a profound inspiration and influence on the modern criminal justice system’s advocates. O’Connor’s vocational approach to her writing also has much to offer the modern justice system’s advocates. Drafts of her talks in the O’Connor Archives demonstrate that she was challenged to write for an audience whose values and modern sensibilities were hostile to her messages of what she called the “prophetic vision” of truth, judgment, grace, and mercy. The modern criminal justice advocate finds herself similarly challenged. Tasked with protecting the most vulnerable – often the unseen or undervalued in society – she must convince a jury to see and value such people and understand the truth of what has occurred enough to do something unpopular in today’s culture: render a judgment. Presented with unspeakable violence, this advocate must convey it to her audience, the jury, who often is resistant to believing it occurred. O’Connor frequently wrote about the writer’s “sense of frustration [being] great because [the writer] has to force by whatever means he can this vision on a resisting or a blank audience.” (Catholic Writer in the Protestant South – draft talk for Southern Literary Festival, April 20, 1962) How O’Connor navigated that vocation to bring an audience to a place of understanding people and truth can operate as a significant influence on those today forged with that task. This paper examines the synergistic relationship between Flannery O’Connor’s fiction, crime, violence, and the criminal law and what it can offer the modern criminal justice system – a system characterized by a search for truth and justice. It will also suggest that O'Connor offers an inspirational framework for those who participate in the system as advocates for the vulnerable.

Download the article from SSRN at the link.

Williams on Flannery O'Connor and the Law

Telia Mary U. Williams, Northern Illinois University College of Law, has published Flannery O’Connor and the Law. Here is the abstract.

Celebrated Southern fiction author Flannery O'Connor treats her readers to not only a "Christ-haunted" South, but also a "law-haunted" one. Her short stories present a fictional, yet realistic world wherein characters are tacitly preoccupied with legal conflicts, and who engage in quasi-legal storytelling and legalistic modes of speaking and thinking. Ultimately, the futility of O'Connor's characters' insistence on their individual rights and hyper-technical legal formalities, rather than community, reveal to the reader the need for law to be tempered with humility and empathy. Along the way, O'Connor brings the reader full circle and shows us that even legal formalism may serve as an occasion for grace.

Download the article from SSRN at the link.

Kahn on The Authoritarian Semiotics of the New Campus Mask Bans

Robert Kahn, University of St. Thomas School of Law (Minnesota), has published The Authoritarian Semiotics of the New Campus Mask Bans. Here is the abstract.

Campus protests over the Gaza war have led to calls for mask bans. This essay examines these calls from a semiotic perspective. On the one hand, the new and proposed bans invoke the struggle against the Ku Klux Klan to cast masked protesters as modern-day Klan members. Meanwhile, the bans rely on a dislike of masks dating from the pandemic when mask wearers were seen as “cowardly sheep” who allowed the state to exercise “social control.” Both semiotic strategies fail on their own terms. Mask bans trivialize the history of the Klan, while promoting the same social control mask abstainers complained about during COVID. As such, mask bans reflect “face authoritarianism,” under which the state assumes the power to determine who wears a mask and when. A truly free society would reject this overcriminalization of daily life and respect the right to mask (or not mask) in most settings.

Download the essay from SSRN at the link.

Savage on Slavery and the Forgotten History of Religious Liberty

Audra Savage, Wake Forest University School of Law, is publishing Slavery and the Forgotten History of Religious Liberty in the BYU Law Review (2025-26).

This is a story about two ships. One is semi-mythical. The other is half-forgotten but brutally real. The first ship is the story of early settlers who sailed from Europe to escape religious persecution and, through hard work, perseverance and righteous rebellion, built a nation upon the fundamental freedom of religious liberty for all. The second ship represents the painful history of America with its millions of Africans stolen from their homeland, placed in unimaginable conditions, and stripped of their language, heritage, and most significantly, their beliefs. Current religious liberty jurisprudence centers around the historical understanding of the creation and ratification of the First Amendment of the United States Constitution, which encapsulates the mythology of the first ship. This jurisprudence, however, seemingly ignores the second ship and the Black experience with law and religion in the country’s early history. This reveals a gap in the Supreme Court’s reliance on the “history and tradition” of religious liberty when adjudicating constitutional claims related to the First Amendment Religion Clauses. This Article fills in the missing gap in the Court’s “historical practices and understandings” methodology by exploring the historical role played by law and religion in the development of slavery in America. It will describe the legal and religious understandings of Africans in early colonial history, including the justification for marking Africans for enslavement. It will then describe the legal and religious practices involving the enslavement of Africans. It will end with insight into the countervailing forces of bondage and freedom at the time the new nation was created. By providing this missing gap in the religious liberty story, the Article will ensure that the first ship is less mythical and more real, while also ensuring that the second ship is not forgotten and takes its rightful place in church-state history.

Download the article from SSRN at the link.

ICYMI: Pierre Schlag, Twilight of the American State (2023)

ICYMI:

Pierre Schlag, Twilight of the American State (University of Michigan Press, 2023).

Here from the publisher's website is a description of the book's contents.

The sudden emergence of the Trump nation surprised nearly everyone, including journalists, pundits, political consultants, and academics. When Trump won in 2016, his ascendancy was widely viewed as a fluke. Yet time showed it was instead the rise of a movement—angry, militant, revanchist, and unabashedly authoritarian.
How did this happen? Twilight of the American State offers a sweeping exploration of how law and legal institutions helped prepare the grounds for this rebellious movement. The controversial argument is that, viewed as a legal matter, the American state is not just a liberal democracy, as most Americans believe. Rather, the American state is composed of an uneasy and unstable combination of different versions of the state—liberal democratic, administered, neoliberal, and dissociative. Each of these versions arose through its own law and legal institutions. Each emerged at different times historically. Each was prompted by deficits in the prior versions. Each has survived displacement by succeeding versions. All remain active in the contemporary moment—creating the political-legal dysfunction America confronts today.
Pierre Schlag maps out a big picture view of the tribulations of the American state. The book abjures conventional academic frameworks, sets aside prescriptions for quick fixes, dispenses with lamentations about polarization, and bypasses historical celebrations of the American Spirit.

 

ICYMI: Buckles on Bob Jones University v. United States: A Journey Through Scriptures and History

ICYMI: Johnny Rex Buckles, University of Houston Law Center, has published Bob Jones University v. United States: A Journey Through Scripture and History in Law and Religion: Cases in Context (Leslie C. Griffin ed., 2010). Here is the abstract.

In Bob Jones University v. United States, the United States Supreme Court held that two schools maintaining racially discriminatory policies as to students failed to qualify for federal income tax exemption as organizations described in section 501(c)(3) of the Internal Revenue Code. A contextual analysis of Bob Jones University offers insight into a politically charged, historically important controversy rooted in biblical and theological compromise under the pressures of Southern fundamentalist education in the twentieth century. Fundamentalist and segregationist impulses combined with an obsequious deference to founding visionaries to produce admissions policies that betrayed the schools’ underlying religious principles.

Download the chapter from SSRN at the link.

Upham on The "Black and Tan Conventions," Diverse Originalism, and the Fourteenth Amendment

David B. Upham, St. Thomas University; Uniersity of Dallas, is publishing The "Black and Tan Conventions," Diverse Originalism, and the Fourteenth Amendment in the Mississippi Law Journal. Here is the abstract.

This essay will highlight the contributions of the biracial "Black and Tan Conventions" that drafted state constitutions pursuant to the Reconstruction Acts of 1867. I make the following conclusions: (1) that the work of these Conventions was necessary to the making of the Fourteenth Amendment, (2) that this work provides critical, if not dispositive, evidence as to that Amendment’s original meaning—especially as to what the Amendment did not prohibit—and (3) that members of the bench, bar, and academy have unjustly neglected this contribution—a neglect that has become a deafening silence among those advocating racial diversity or originalism, and the combination thereof as “diverse originalism.”

Download the article from SSRN at the link.

Shusterman on England's Standing Army Controversy (1697-99) and the Origins of the Second Amendment

Noah Shusterman, The Chinese University of Hong Kong, has published England’s Standing Army Controversy (1697-99) and the Origins of the Second Amendment. Here is the abstract.

This article explores the writings of England's Standing Army Controversy at the end of the seventeenth century, and the links between those writings and the debates over military policy during the founding era that would eventually lead to both the Constitution’s militia clause and the Second Amendment. Staring in 1697, a small group of British authors turned what had been a long-standing but undertheorized distrust of professional armies into an elaborate theory in favor of citizens’ militias. These authors argued that standing armies were inconsistent with a free society; that militias were superior fighting forces; and that maintaining a professional army would inevitably result in the army's leaders becoming despots. To prove their arguments, the authors used a combination of historical examples and theoretical discussions, drawing on Ancient Rome, Medieval Europe, and their understandings of what would or would not motivate soldiers. These writings became relevant to colonists in North America once the British began stationing troops around Boston during the buildup to the American Revolution. The ideas of the Standing Army Controversy provided colonists with a framework and vocabulary that linked Britain's action to those of other tyrannies, because of the use of professional soldiers against a civilian population. As states began issuing their own constitutions in 1776, several included language that grew out of the Standing Army Controversy, including the claim that "standing armies, in times of peace, are dangerous to liberty." These fears of standing armies, and the belief in citizen-soldiers rather than professional soldiers, remained the basis for the Second Amendment and for the broader debates it grew out of. The claim that a well-regulated militia is necessary for the security of a free state grew out of the writings of the Standing Army Controversy.

Download the article from SSRN at the link.

Kessler on The Origins of "The Rule of Law"

Jeremy Kessler, Columbia Law School, is publishing The Origins of "The Rule of Law" in volume 87 of Law & Contemporary Problems (2025). Here is the abstract.

This Article offers a novel account of the origins of “the rule of law” in the English-speaking world. The phrase itself likely entered the language as a literal translation of the Latin regula juris. Prior to the early seventeenth century, however, the phrase appears to have been used exclusively to refer to the specific legal rule or maxim most relevant to the resolution of a particular kind of dispute. The more general and abstract use of the phrase – to refer to an ideal of political morality or an ideal type of governance – first appeared in the public record around 1610. It did so in the context of English common lawyers’ criticism of royal economic regulation limiting commodity production and circulation. The ideal type of governance that these common lawyers had in mind was the rule of common-law rules. They believed that the “chief subject or object” of these rules was the freedom of Englishmen to dispose of their possessions and professional skills as they wished, and to profit thereby. The earliest advocates of “the rule of law” thus found themselves in the vanguard of a cross-class project that sought to privilege the equal liberty of commodity exchangers over other long-recognized political, religious, and economic entitlements. Consequently, the original rule of law – the rule of common-law rules – came with a set of libertarian and egalitarian expectations, in addition to expectations of publicity, clarity, regularity, and so on. When A.V. Dicey popularized “the rule of law” in the late nineteenth century, he claimed to be restating age-old English common sense. While this claim exaggerated the continuity and coherence of English legal history, Dicey’s conception of the rule of law did indeed track the original, early-seventeenth-century conception in significant respects, including its libertarianism, its market-oriented egalitarianism, and its commitment to the supremacy of the common law. For both Dicey and his early modern precursors, the key to the equal liberty of English subjects was the centrality of common law courts to the settlement of disputes, whether between private parties, or between private parties and public officials. Contemporaneous critics of Dicey’s conception thus rightly understood him to be defending a legal worldview that dated to the early days of competitive capitalism. Yet the appeal of that worldview persists. In the middle of the twentieth century, Anglophone legal philosophers did craft an alternative: a more austere and generalizable conception of the rule of law, one freed from the libertarian, egalitarian, and common-law sensibilities of Dicey and his precursors. While an intellectual coup, this minimalist conception has proven unsatisfying not only to legal practitioners but also to a growing number of legal theorists, including some of the minimalist conception’s erstwhile defenders. For these critics, Jeremy Waldron foremost among them, the minimalist conception fails to capture common-sense understandings of both law and the rule of law. But why does the contemporary common sense to which Waldron appeals so closely echo the concerns of common lawyers in 1610? This Article argues that the answer lies in the limited yet significant socio-economic context shared by early modern common lawyers, late nineteenth century jurists, and contemporary legal theorists. That shared context is the dominance of commodity exchange, which has characterized capitalist societies since their emergence in sixteenth and seventeenth century Europe. The common lawyers who first used the phrase “the rule of law” to denote an ideal of political morality were responding to a profound and lasting social and economic transformation. That transformation – the penetration of commodity exchange into ever more domains of social life – gave rise to demands for the rule of law four hundred years ago, and continues to shape discourse about the rule of law today.

Download the article from SSRN at the link. 

Magliocca on "Right in Theory, Wrong in Practice": Women's Suffrage and the Reconstruction Amendments

Gerald N. Magliocca, Indiana University School of Law, is publishing "Right In Theory, Wrong In Practice": Women's Suffrage And The Reconstruction Amendments in the Journal of American Constitutional History. Here is the abstract.

This Essay explores the most remarkable constitutional argument ever forgotten. In 1871, Representative William Loughridge of Iowa dissented from a report by the House Judiciary Committee. The Judiciary Committee rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote. Representative Loughridge replied with a defense of women’s suffrage that was the first official declaration of constitutional sex equality. The Woodhull Petition and the Loughridge Dissent are a treasure trove that should be added to the constitutional canon. They pioneered the belief that the Fourteenth Amendment gave women equal citizenship and that legal distinctions based on sex can be irrational. They made the first textual and structural arguments for the right to vote. The Loughridge Dissent also defended an interpretive stance that rejected original meaning and tradition in favor of a panoramic construction of the Constitution as "right in theory but wrong in practice." Lastly, recognizing the creative work of the suffragists and their fellow travelers is a vital first step toward filling the between constitutional practice, which cares about women's rights, and constitutional theory, which generally does not. The Woodhull Petition and the Loughridge Dissent also advanced textual claims that challenge modern assumptions. For instance, they said that the Fifteenth Amendment affirmatively recognized a "right of citizens of the United States to vote" instead of merely proscribing a certain kind of voting discrimination. Loughridge relied on the Constitution's Preamble as authority for the proposition that women's suffrage could not be denied, instead of treating the "We the People" paragraph as purely ceremonial. Finally, he argued that the text is sometimes best read descriptively or agnostically rather than prescriptively; an approach which could lead to a fresh of view of constitutional issues such as voting rights for ex-felons and the death penalty.

Download the essay from SSRN at the link.

Special Event: Release of Special Issue of World Records Journal, Just Evidence: May 8, 2025

 

On Thursday 8^th May, Goldsmiths MCCS and Visual Cultures are co-hosting an event to mark the release of a special issue of World Records Journal called Just Evidence.

 

Just Evidence @ Goldsmiths brings together scholars and practitioners from the fields of Cinema Studies, Cultural Studies, Political Theory, and Geography, to highlight particular cases and contexts in which targeted populations have located mechanisms of harm reductions within forensic authority, and through counterforensic practices. This special issue of World Records Journal interrogates how counterforensic practices offer provisional forms of protection that challenge and/or uphold the systems producing vulnerability, and it investigates strategies employed by artists and activists to navigate these double-binds.

 

Particular areas of focus include the forensic architecture investigation unit of Al-Haq, the oldest human rights organization in Palestine, the rise of the victims’ rights movement, and the cinematic practices of Languid Hands, Philip Scheffner, and Maxime Jean-Baptiste.

 

This event will take place at Goldsmiths in the RHB Cinema (Ground Floor, Richard Hoggart Building) from 2pm-4pm on Thursday 8^th May. It will feature a short introduction to the Just Evidence special issue by the editors (Sasha Crawford-Holland, Patrick Smith and LaCharles Ward), followed by reflections on three of its essays (see below) by Goldsmiths interlocutors. The remaining time will be reserved for free-flowing discussion and debate. 

 

Previews of the following three essays will be shared with registered participants ahead of the discussion:

 

They Are Shooting at Our Shadows The Al-Haq Forensic Architecture Investigative Unit and Rachel Nelson (Visualizing Abolition)

Laliv Melamed and Pooja Rangan

 

Countering Forensic Violence: Philip Scheffner’s Revision

Başak Ertür and Alisa Lebow

 

Tongueless Whispers and Recited Choreographies: Black Memory as Counterforensics

Yasmina Price

 

To register for the event, please RSVP via the Eventbrite page here. 

 

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.

Salant on Neutralizing "Ales" Without Compromising Venona: What Really Happened to Alger Hiss

Stephen Walter Salant, University of Michigan, Ann Arbor, has published Neutralizing 'Ales' Without Compromising Venona: What Really Happened to Alger Hiss. Here is the abstract.

In the celebrated Alger Hiss case, the defendant was convicted on the basis of typed spy documents traced to his typewriter. Although Hiss always maintained he had been the victim of forgery by typewriter, judges were unpersuaded, saying "there is not a trace of any evidence that Chambers [his accuser] had the mechanical skill, tools, equipment or material for such a difficult task [as forgery by typewriter]." Moreover, "If Chambers had constructed a duplicate machine how would he have known where to plant it so that it would be found by Hiss?" These are reasonable questions and I answer each of them. What the judges, jurors, and Hiss himself did not know was that Army Military Intelligence (1) had become proficient during the War at forging documents to protect agents behind enemy lines, (2) had concluded (rightly or wrongly) from Venona decryptions of Soviet messages which could not be disclosed that Hiss was stealing military information for Soviet Military Intelligence and (3) had inserted into Hiss's legal team as its Chief Investigator an undercover Army spy-catcher (https://quod.lib.umich.edu/h/hiss/essay.html), as Special Agents of the Counter Intelligence Corps referred to themselves. The spy-catcher confided in the FBI that he was actually working for Military Intelligence. Hiss’s legal team assigned the investigator/spy-catcher to find the Hiss family machine, hoping to prove Hiss innocent. The spy-catcher secretly removed the rusty family machine in December. A few months later a fabricated one which had been used to type bogus spy documents was deposited in its place.

Download the essay from SSRN at the link.

Fisher on Czars in the Courts: Organized Labour in Illinois and the Fight to Pass Anti-Injunction Legislation (1886-1935)

Adeline Fisher, McGill University, has published Czars in the Courts: Organized Labour in Illinois and the Fight to Pass Anti-Injunction Legislation (1886-1935) as no. 10 of the McGill Undergraduate Law Review. Here is the abstract.

This article explores the tumultuous history of injunctions and the role of organized labour in the fight for anti-injunction legislation in the United States during the late nineteenth to early twentieth century. It will contend that Illinois, with its long history of labour organization, emerged as a central node in this battle between labour unions and the courts. The beginning of this article explores the early history of labour unions in Illinois stretching back to the formation of some of the nation’s first unions, early instances of striking in the 1850s and 60s, and the first labour injunction in Pullman, Illinois in 1894. It goes on to detail how Gilded-Age judges in courts of equity increasingly issued injunctions with the deliberate intention of hampering workers’ efforts to improve or change their terms of employment. This challenge from the court system proved devastating to the labour movement as a whole, but was not met without resistance. The article goes on to examine efforts of Illinois-based unions, like the Chicago Federation of Labor and the Illinois State Federation of Labor, to lobby the Illinois General Assembly and the United States Congress to pass state and federal injunction limitation bills, culminating in the first effective federal anti-injunction bill, the Norris-LaGuardia Federal Anti-Injunction Act, in 1932. The last section concludes by noting that this piece of legislation was not a permanent solution to the injunction problem, but represented a significant step forwards for organized labour and the protection of workers’ rights after so many decades of struggle against “government by injunction.” Originally from Ottawa, Ontario, Adeline Fisher is in the final year of her B.A. (Honours) History and German minor concentration at McGill University in Montreal. Her primary areas of academic interest include nineteenth-century economic and industrial history, legal and labour history, and political philosophy. During her time at McGill, Adeline has worked as a news staff writer with The Tribune (formerly The McGill Tribune), a research assistant in the Department of History and Classical Studies, and a mentor and speaker at the McGill Arts Internship Office (AIO). She has also worked as a court clerk in the civil division of the Superior Court of Quebec. In 2023, Adeline was awarded the Undergraduate Experiential Learning Opportunities Support Fund by the McGill AIO in support of her internship at the Black Watch (Royal Highland Regiment) Museum and Archives. In 2024, she received the Madelene Hodgson Prize in History, awarded by the Department of History and endowed by the Imperial Order Daughters of the Empire (I.O.D.E.), for the most outstanding work in history. This fall, Adeline will be continuing her studies at the University of Toronto Faculty of Law, where she will pursue a Juris Doctor.

Download the essay from SSRN at the link.

Sugarman on The Hidden Histories of the Pinochet Case 1

David Sugarman, Lancaster University Law School, has published The Hidden Histories of the Pinochet Case 1. Here is the abstract.

Although states are in certain circumstances legally obliged to arrest acting or former heads of state for crimes committed while they were in office, their governments often chose not to. The 1998 arrest in London of General Augusto Pinochet, Chile’s former dictator, by a Spanish magistrate on charges of egregious human rights crimes, and the 16-month battle to extradite him to Madrid was the first time that a former head of state had, while travelling abroad, been arrested on charges of genocide and crimes against humanity, and where a claim to immunity was rejected by a national court. Surprising almost everyone, this drama caught the world’s imagination. Never have the conduct and decisions of the UK’s Home Secretary, the Law Lords, and Amnesty International generated such international attention. The whole episode constituted the most intensive, high-profile litigation of its kind ever undertaken. Hugely controversial, it gave a massive fillip to human rights movements and galvanized victims, their loved ones, activists, and lawyers into action. Its cause célèbre status was magnified when Lord Hoffmann, who delivered the deciding vote when the case first came before the Law Lords, did not disclose in public his links with Amnesty International, an intervenor in these proceedings, thereby opening the way for the case to be reheard. Pinochet’s release on health grounds by Home Secretary Jack Straw, then rising from his wheelchair on landing in Santiago to wave at jubilant supporters, further magnified the notoriety of the case. Weaving together a variety of sources – including a unique set of interviews with key judges, lawyers and other actors involved conducted during or shortly after the case – this article provides what I believe to be the most comprehensive behind-the-scenes account to date of the legal proceedings in London. The story that emerges is full of coincidence and unpredictable decisions - a story with many plots and protagonists, victims, villains, and heroes. It reveals much that is new about the law and politics of the case. It illuminates the role of personal views and judicial creativity in top courts, the ways in which law operates in practice, and its promise and limitations. My hope is that the article will change the way we think about the Pinochet case.

Download the article from SSRN at the link.

van de Berge and Gaakeer on Rereading Kafka's The Trial: Responsibility, Reflection, and the Case of the Dutch Childcare Allowance Scandal

Lukas van de Berge, Utrecht University Faculty of Law, and Jeanne Gaakeer have published Rereading Kafka's The Trial: Responsibility, Reflection, and the Case of the Dutch Childcare Allowance Scandal. Here is the abstract.

As standard interpretation has it, Kafka's novel The Trial depicts how an innocent and defenceless individual is crushed by powerful and absurdly bureaucratic institutions. No wonder, therefore, that The Trial is often linked to the British Post Office Scandal, the Australian Robodebt Scheme, the Dutch Childcare Allowance Scandal and other such affairs that rendered many people helpless in their fights against flawed systems and disinterested governments. This paper explores the significance for judicial ethics and legal practice of an alternative interpretation of The Trial-and of Kafka's works more in generalthat has been most compellingly proposed by Walter H. Sokel. An important conclusion will be that Sokel's alternative understanding of Kafka and the Kafkaesque yields even more important insights into the workings of modern law and government than the standard interpretation.

Download the article from SSRN at the link.

Bernick on Cthulhu and the Constitution

Evan D. Bernick, Northern Illinois University College of Law, has published Cthulhu and the Constitution. Here is the abstract.

Howard Phillips Lovecraft was born in 1892, nineteen years after the enactment of the Comstock Act and six years before the Supreme Court in United States v. Wong Kim Ark affirmed birthright citizenship as a constitutional guarantee. He dreamed of monsters and brought them to life with language that has not lost its power to horrify. The best-known entity in his bestiary is Cthulhu, whom people cannot behold without going mad. Cthulhu and co. are ancient, unknowable, and unkillable. Wrote Lovecraft in The Dunwich Horror: “The Old Ones were, the Old Ones are, and the Old Ones shall be.” One of the most insightful engagements with Lovecraft’s work and legacy, Alan Moore’s Providence, imagines Lovecraft as an instrument of actually existing cosmic entities who use his extraordinary literary talents to bring their world into contact with ours. But let’s be real: Lovecraft’s monsters were, are fictional, and their origins lie in nothing so creditable. Lovecraft was racist, sexist, and xenophobic, and he was obsessively fearful of the contamination of the nation’s sexual purity—especially through immigration. These prejudices and phobias inspired his monsters and his descriptions of their acolytes. This Essay describes present-day efforts to revive old, monstrous legal institutions and ideas and put them in the service of policies Lovecraft might have loved. The Trump Administration is committed to a constitutional program that is informed by racism, sexism, and xenophobia. One of the major components of that program is an ongoing attack on the Fourteenth Amendment’s guarantee of birthright citizenship. Another is an attack on reproductive rights, which is likely to include an effort to revive the long-dead Comstock Act and use it to ban the distribution of abortion pills. These attacks have late-nineteenth-century analogs and depend upon late-nineteenth century statutes and legal theories. Studying how popular movements resisted and ultimately sapped these statutes and theories of power with, without, and despite law can equip us to defeat these monsters once again. They were and they are, but they shall not be.

Download the essay from SSRN at the link.

Stern on Victims of Circumstantial Evidence: Murder, Proof, and Wrongful Convictions in Nineteenth-Century Crime Fiction

Simon Stern, University of Toronto Faculty of Law, has published Victims of Circumstantial Evidence: Murder, Proof, and Wrongful Convictions in Nineteenth-Century Crime Fiction. Here is the abstract.

The early nineteenth century witnessed the flourishing of a genre that today seems almost unbearably hackneyed, predictable, and lifeless. These tales feature a murder, followed by the arrest of an innocent person—usually an upstanding, sincere, and honest young man. In a few stories he is convicted and executed, and the truth comes out later. More commonly, he is spared at the last moment, because the truth emerges just before the execution or at the very end of the trial. These stories propose a wide array of meanings for “circumstantial evidence,” including rumor, motive, and various kinds of physical evidence. This chapter contextualizes these stories in relation to the popular crime writing (fiction and nonfiction) of the eighteenth and nineteenth centuries; offers examples of suspects framed by an enemy, framed by nature, and suspected on very weak evidence; and shows how these tales are related to late nineteenth-century detective fiction. The chapter ends with a brief discussion of People v. Vereneseneckockockhoff (Cal. 1900), an important decision that recapitulates and responds to the basic concerns motivating this genre.

Download the essay from SSRN at the link.

Barbas on Originalism in Modern Free Speech History

Samantha Barbas, University of Iowa College of Law, has published Originalism in Modern Free Speech History as U Iowa Legal Studies Research Paper No. 2025-13. Here is the abstract.

Contrary to what is often assumed, originalism has played an important role in our free speech history. During the 1950s, originalist interpretations of the First Amendment as prohibiting the crime of seditious libel became popular in legal argumentation, court rulings, and in popular culture more generally. The reason for the popularity of this argument was the Red Scare. Liberal lawyers, judges, and scholars deployed originalist arguments in their battles against government anticommunist measures. They argued that the original meaning of the First Amendment was the ban on punishment for criticism of the government, and that many of the government’s anticommunist measures were effectively a form of prosecution for seditious libel and unconstitutional. This essay describes the popularization of First Amendment originalist arguments in the 1950s and early 60s, culminating in New York Times v. Sullivan. It explains how originalist First Amendment arguments came to be seen as an important liberal line of defense against government anticommunist efforts. Activists, scholars, lawyers, and justices on the left mobilized in a loosely affiliated sort of First Amendment “originalist movement” in an attempt to defeat the Red Scare. Ultimately, the essay suggests that originalism is a legal and social phenomenon that is intimately intertwined with culture and politics. Originalist ideas arise from multiple sources, including interest groups, intellectuals, journalists, lawyers, and ordinary citizens. The case study offers one example of how legal advocates and scholars in the mid-twentieth century deployed originalist arguments instrumentally, in response to the circumstances and perceived exigencies of their times.

Download the essay from SSRN at the link.

Sayid on Law, Language, and Aboutness: Diaz v. United States as Case-Study

Cosim Sayid, Rutgers Institute for Law and Philosophy, is publishing Law, Language, and Aboutness: Diaz v. United States as Case-Study in the Mississippi Law Journal. Here is the abstract.

The Supreme Court’s recent decision in Diaz v. United States is a simple interpretive dispute concerning when expert testimony is ‘about’ a defendant’s possession of mens rea conducted by justices who are avowedly textualist and yet reached diametrically opposite conclusions. While the court reached the right result in permitting testimony concerning behavior of members of a class including the criminal defendant, the rationale it offered is at best incomplete and at worst incorrect. This essay introduces into legal analysis the rigorous study of aboutness in analytic philosophy, which is used to augment, rather than attack, the textualist analyses offered by the justices. The essay develops the tools of aboutness in a straightforward way that should serve as a primer for those interested in the technique and its value – a group which should definitely include those interested in textualist interpretation. Taking aboutness seriously elegantly justifies the correct result in Diaz. The essay concludes on the speculative note that aboutness can be used to resolve other intra-textualist disputes, such as the thorny one in Bostock v. Clayton County. Thus, attending to aboutness allows us to cleanly explain the meaning of Federal Rule of Evidence 704, and it may lead to further cogent explanations where thorny disputes have pervaded the law even against the common ground of shared textualism.

Download the article from SSRN at the link.

Douglas on History, Tradition, and Voter Registration

Joshua A. Douglas, University of Kentuky College of Law, is publishing History, Tradition, and Voter Registration in the Wisconsin Law Review. Here is the abstract. H

istory and tradition are dominating the current Supreme Court, which has invoked history and tradition to curtail some rights, such as abortion, while using it to elevate other rights, such the right to bear arms. Might history and tradition also support expanded rights even if doing so will result in a ruling that seems contrary to the majority's preferred ideological outcome? Current disputes over voter registration restrictions will pose that very question. Many states have recently implemented onerous rules on voter registration, especially targeting third-party voter registration organizations. As this Article shows, the Court should strike down these rules under a faithful interpretation of the history and tradition of voter registration. The Article first discusses the ways in which some states have imposed restrictive registration rules and made it harder for organizations to help voters register. States have enacted citizenship requirements on who may register voters, tight delivery deadlines for completed registration forms, speech mandates for third-party organizations, compensation restrictions for individuals engaged in voter registration, and rules on what voters must present to register to vote. The Article then turns to the history of voter registration, drawing upon primary sources such as archival newspaper records to show that there is a rich history of voter registration drives that date to the beginning of voter registration. There are three significant periods of expanded voter registration through third-party organizations, including during the women’s suffrage movement, the Civil Rights movement, and in the 1990s after Congress passed the National Voter Registration Act. Interested parties and organizations have engaged in voter registration activities for almost as long as there have been registration lists. The Article then evaluates how courts should use this history and tradition. Specifically, because history and tradition support robust third-party voter registration activities, the Court should invalidate new voter registration restrictions as violating organizations’ and voters’ rights. If voter registration is considered a deeply rooted aspect of the election process, then so is the practice of third parties conducting voter registration drives and helping others register to vote. History and tradition are now the primary focus of arguments at the Court. To win, litigants must explain why history and tradition support their contentions. On voter registration, history and tradition demonstrate that eligible voters could easily place their names on the voter list and that organizations could assist in those efforts without hindrance. The Court should invoke this history and tradition to strike down restrictions on voter registration.

Download the article from SSRN at the link.

Fourth Annual Nomos Conference, Masaryk University: Call For Papers

From Tomáš Havlíček, Masaryk University:

Call for Papers

4^th Annual Nomos Conference at Masaryk University, Brno, Czechia

“Of course, we have all read, and all do read Capital. For almost a century, we have been able to read it every day, transparently, in the dramas and dreams of our history, in its disputes and conflicts, in the defeats and victories of the workers’ movement which is indeed our only hope and our destiny.”

(Althusser, Balibar, Rancière and Macherey, Lire le Capital 1965, 3)

“God is dead; Communism is dead. It is, at best, the legacy code of the Chinese ruling class. But that does not exhaust the imaginal faculty of the subordinate classes, whose vulgar energies may even in this practico-inert world have some surprises in store.”

(Wark, Capital is Dead 2019, 142)

 

Sixty years ago, Reading Capital offered a transformative reading of Marx’s Capital, reorienting the way scholars, activists, and theorists viewed the role of law within capitalist society. For Althusser, Balibar, Rancière, and Macherey, a genuine understanding of Marx’s critique demanded a lens that brought economic and material forces to the forefront, highlighting how law is not a neutral arbiter of justice but a structure deeply embedded in the capitalist mode of production. Law, they argued, functions not simply as a regulatory tool but as a fundamental mechanism through which capital exercises control, manages class conflict, and reproduces its power.

From a Marxist perspective, law is inseparable from the political economy because it arises from, enforces, and perpetuates the relations of production. Under capitalism, legal frameworks are designed to safeguard property rights, enforce contracts, and legitimate private ownership—all of which are essential to the maintenance and growth of capital. Marx’s critique demonstrated that law, rather than standing apart from economic interests, actually facilitates the accumulation of wealth and the entrenchment of class hierarchies. This insight remains profoundly relevant in our own time, as capitalism morphs into new forms and faces systemic crises.

Today, as we grapple with stark inequalities, environmental collapse, and rising authoritarianism, the relationship between law and political economy demands renewed scrutiny. Wark’s declaration that “Capital is dead” reflects a contemporary frustration with the ability of traditional critiques to fully capture the complexities of modern capitalism, which has evolved into a global network of finance, data, and extraction. Yet, as Wark also suggests, the imagination and energies of the subordinate classes remain powerful. This conference takes up the challenge of exploring how Marxist critiques of law can help us understand and resist the transformations of capitalism today. What does it mean to read Capital in a world where economic power is concentrated in the hands of a few corporations and states, where wealth inequality is extreme, and where legal systems often seem complicit in perpetuating social and environmental injustices?

This conference invites scholars to return to the materialist critique of law within political economy, examining how law continues to serve as a critical tool in maintaining economic power structures. From the foreclosure crisis and austerity measures to labour law and environmental deregulation, the impact of law on economic and social life remains profound. By revisiting Reading Capital’s Marxist approach, we seek to explore law not as an abstract system of rules but as a living, evolving force that both reflects and shapes the contradictions of capitalism.

Key topics discussed include:

1. Illiberalism and Authoritarian Resurgence in Contemporary Constitutionalism

The resurgence of authoritarian and illiberal tendencies in various regions, from Eastern Europe to South America and parts of Asia, reflects a critical shift in global politics. The rise of “illiberal democracies” challenges the assumption that constitutionalism inherently supports liberal democracy. Analysing these developments helps us understand the fragility of constitutional norms and the ways authoritarian leaders can exploit legal mechanisms.

Key questions:

·         How do illiberal regimes use constitutional frameworks to solidify power while undermining democratic principles?

·         In what ways are courts, laws, and constitutional amendments leveraged to stifle dissent and limit civil liberties?

·         What is the role of global legal and political institutions in responding to these shifts?

2. Materialism, New Materialism, and Ecological Redefinitions of Legal-Economic Relations

With the climate crisis and environmental degradation at the forefront of global challenges, legal scholars and economists are increasingly called to rethink economic models that prioritize profit over ecological sustainability. New materialism brings fresh perspectives on the interconnectedness of social, economic, and environmental systems, potentially inspiring laws that recognize the rights of nature, integrate ecological costs, and reshape economic responsibilities.

Key Questions:

·         How does new materialism redefine the legal-economic relationship by emphasizing non-human actors (e.g., the environment, technological systems)?

·         How is environmental rhetoric co-opted by dominant capitalist ideology to perpetuate existing power structures, and in what ways is law complicit in supporting this 'greenwashing' of capitalism?

·         How does law mediate the economic power of technology companies, whose systems have become infrastructural and almost autonomous within capitalist economies?

·         What new legal structures could emerge to reflect interconnected, ecological models of economy and law?

 

3. The Role of Utopian and Dystopian Imagination in Law and Political Economy

Utopian and dystopian visions allow us to imagine positive or negative legal systems and political scenarios outside the constraints of current neoliberal or capitalist structures. By drawing on both hopeful and cautionary futures, legal and economic scholars can explore radical reforms or protections that address power imbalances, social inequities, and environmental degradation, creating blueprints for societies resilient against authoritarianism and climate catastrophe. We seek to renew the relevance of utopia in legal and economic thought, holding that envisioning alternative futures remains not only necessary but profoundly worthwhile in guiding transformative change toward justice and sustainability

Key Questions:

·         How can utopian or dystopian imagination inform new frameworks for economic justice and legal rights?

·         How does law contribute to, or even accelerate, dystopian realities within capitalist societies?

·         In what ways might speculative futures guide us in addressing today’s crises of inequality, authoritarianism, and environmental decline?

·         What legal and economic principles might underlie a political economy that genuinely respects ecological boundaries, social equity, and human dignity?

4. The Impact of Capitalism’s Crisis on War, Legal Orders, and Global Political Structures

Capitalism’s crisis is a catalyst for both internal and external conflicts, influencing the rise of populism, nationalism, and militarized economies. The impacts on legal orders range from increased domestic repression to contested international norms. Exploring these dynamics can reveal how law is used both to enforce and resist economic power, shedding light on how legal orders adapt or fail in times of systemic upheaval.

Key Questions:

·         How does the contemporary crisis of capitalism—marked by inequality, financial instability, and ecological limits—affect global legal and political structures?

·         What role do militarization and conflict play in sustaining or challenging current economic and legal orders?

·         How do international laws, trade agreements, and intellectual property regimes uphold or exacerbate conflicts in ways that benefit capitalist interests?

·         Can law simultaneously act as an agent of peace while being complicit in the economic incentives that drive wars?

5. Reimagining Sovereignty and Global Legal Frameworks from Law and Political Economy Perspectives

The concept of sovereignty is foundational to modern legal and political systems, yet it is increasingly challenged by the realities of global capitalism, transnational governance, and interconnected crises. Traditional notions of sovereignty, centred on territorial control and centralized authority, often serve to uphold the interests of global capital and state power. At the same time, these frameworks frequently constrain efforts to address border-transcending issues like climate change, labour exploitation, and resource extraction. This theme invites scholars to explore how sovereignty and global legal frameworks can be reimagined through a critical political economy lens that emphasizes material and economic justice over geopolitical dominance and market interests.

Key Questions:

·         In an era where multinational corporations, international trade agreements, and global financial institutions exert immense influence over domestic policies, national sovereignty is often compromised, how do global economic structures undermine or reshape state sovereignty, particularly in developing countries?

·         What alternative forms of sovereignty could accommodate transnational challenges like climate change, migration, and economic inequality?

·         How might reimagining sovereignty through a political economy lens allow for fairer distribution of resources and protection of marginalized populations?

·         What role can international law play in moderating the excesses of global capitalism.

 

Submission Guidelines

We welcome abstracts (200–300 words) for individual papers and panels, that engage critically with the relationship between law and political economy. Interdisciplinary approaches are highly encouraged. Contributions can address theoretical, historical, or empirical dimensions of the topic and may include case studies, comparative analyses, or reflections on praxis.

 

The conference will be held in a hybrid format, allowing for both in-person and virtual participation.

 

Keynote Speakers:

·         Marija Bartl (University of Amsterdam)

·         Werner Bonefeld (University of York)

 

Conference fee: 120 EUR

Deadline for Submissions: 13 April 2025

Notice of Acceptance: 20 April 2025

Conference Date: 6-7 June 2025

Conference Venue: Faculty of Law, Masaryk University, Brno, Czechia

Please submit abstracts including affiliation to: 458644@muni.cz