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. 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.

Thumma and Miller on The Slump: Infamous United States Supreme Court Decisions From the Gilded Age, Explanations About What Happened, and Why It Matters Now

Samuel Thumma, Arizona Court of Appeals, and Michael O. Miller, independent scholar, are publishing The Slump: Infamous United States Supreme Court Decisions From the Gilded Age, Explanations About What Happened, and Why It Matters Now in the Journal of Gender, Race, and Justice. Here is the abstract.

In its history, the United States Supreme Court has issued many decisions forgotten to time. A few are touted as brilliant and foundational, and others are widely criticized. An outsized number of infamous decisions came during the last three decades of the 19th Century, during what we call The Slump.

The latter third of the 19th Century -- often called the “Gilded Age” -- was a time of extraordinary advancements in the United States, including rapid growth and technical development, prosperity for many, significant immigration, and the transition from an agrarian to a manufacturing economy. In the Supreme Court, however, this same period presented a far different cluster of challenges: the meaning and application of the Civil War Amendments (13th, 14th and 15th); reinterpreting or abandoning precedent based on laws protecting “African slavery;” confronting entrenchment of quasi-slavery in the South; and the application of (or refusal to apply) the Reconstruction Amendments to society as a whole. The Court’s decisions were shockingly deficient in doing so. This article focuses on ten infamous cases (“The Slump Cases”) from the Gilded Age -- starting with The Slaughter-House Cases in 1873 and ending just after Plessy v. Ferguson in 1896 -- as well as the Justices’ extra-judicial involvement in deciding the 1876 Presidential Election.

Each Slump Case is discussed in historical and legal context, then critiqued based on the consequences of its failures. We also examine the implications arising from the role of the Justices in resolving the 1876 Presidential Election, decided in an unprecedented manner by just one electoral vote. The article then discusses possible explanations for these infamous cases, ultimately settling on a unified explanation: the Supreme Court failed to address the constitutional revolution wrought by the Civil War and failed to recognize individual rights consistent with those profound changes. It did so in cases involving race, gender, national origin, citizenship, marital relationships, travel, free speech, voting, and jury service. It did so in ways that ignored facts, negated remedial legislation, and could not be fixed legislatively but, instead, resulted in the creation of ill-defined constitutional doctrines, such as substantive due process.

Several Slump Cases were later reversed, but it took many decades and misstarts to do so. Equally important today, the analytical and other failures in The Slump Cases surrounding the Reconstruction Amendments percolate into current jurisprudence, including voting disputes and partisan conflict. Our examination of constitutional changes within this group of Supreme Court decisions during this 30-year period will provide a broader context for considering their significance, precedential value and, hopefully, lessons learned in future cases before any court.

Download the article from SSRN at the link.

Rappaport on The American Creed and the Constitutional Order @uclaw_sf

Aaron J. Rappaport, UC Law, San Francisco, has published The American Creed and the Constitutional Order. Here is the abstract.

Liberal democracy faces an existential threat in the United State today. Political polarization and the rise of far-right extremism both raise questions about the institutional structure’s continuing viability. For the first time in recent memory, Americans are questioning whether the nation might ultimately become undemocratic, illiberal, or both. This essay explores a neglected cause of this political crisis and, more importantly, offers a possible long-term path forward. The underlying roots of the nation’s political crisis lie in the institutional structure of liberal democracy itself. That core structure inevitably generates deep anxieties and grievances, concerns that are intensified by two additional factors –the promulgation of illiberal ideologies, which validate the sense of grievance, and the use of modern propaganda techniques, which spread ideologically-infused messages widely and effectively. Grievances, ideologies and propaganda combine to generate a cycle of radicalization that drives citizens towards extremism. The only real solution to this problem is, perhaps counterintuitively, an ideological one. Only a compelling ideology of liberal democracy can ameliorate the sense of grievance, counter the illiberal ideologies, and inoculate the public against propaganda. The endeavor to identify such an ideology inevitably leads to the American Creed, the core ideals that were thought to underlie the American experiment. But as this essay argues, the American Creed as conventionally understood is too vague and conflicted to offer a solid foundation upon which to build America’s complex institutional structure. This paper concludes by articulating a set of requirements that a compelling ideology must possess. The effort serves as a preliminary step towards the articulation of a new and more compelling American Creed.

Download the article from SSRN at the link.

Call For Papers: Law and Geography in Urban Asia, February 18-19, 2025, Asia Research Institute, National University of Singapore @nus_ari

 

Dr. Dhiraj Nainani, National University of Singapore, announces an upcoming workshop entitled "Law and Geography in Urban Asia," which will be taking place on February 18-19 2025 at the Asia Research Institute, National University of Singapore. 

More information and a complete Call for Papers can be found here: https://ari.nus.edu.sg/events/law-and-geography/

The workshop will be in-person, and funding support for travel and accommodation is available. 

Proposals are due at the end of September, and if any further information is required please don’t hesitate to email him at dhirajn@nus.edu.sg. 

Funk on Sect and Superstition: The Protestant Framework of American Codification @ColumbiaLaw

Kellen R. Funk, Columbia University Law School, is publishing Sect and Superstition: The Protestant Framework of American Codification in the American Journal of Legal History for 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.

Final Call: Call For Papers, How To Do Things With Law: Prefiguration, Performativity, and Alternative Legalities, Law and Society Association, May 22-25, 2025, Chicago

 Final Call: 

Call for Papers

How to do things with Law: Prefiguration, Performativity, and Alternative Legalities

Law and Society Association, May 22-25, 2025, in Chicago

We - Amy Cohen (Temple University), Stephen Young (University of Otago) and Ben Golder (UNSW) - are organising a mini-conference on the above theme to take place within the 2025 annual meeting of the Law and Society Association in Chicago, to be held May 22-25th.

Theme:

What happens when everyday actors take the law into their own hands and seek to create, or recreate, the legal worlds they inhabit? There is a long, venerable and fascinating tradition of non-legal actors seizing the means of legal imagination. These individuals and groups (sometimes even quasi-institutions) are not formally authorized to make law but they act as if they are, adopting a consciously fictive jurisdiction.

Think, for example, of the work of peoples’ tribunals in international law - starting with the Russell Tribunal on the United State’s crimes in Vietnam in the late 1960s and through to the World Tribunal on Iraq in 2005 - that mobilise a certain (popular) understanding of international law to produce verdicts, raise popular consciousness, and critique (or maybe even redeem) international law.

Think also of the Feminist Judgments Projects (FJPs) or related exercises in critical or imaginative judgment-writing, in which legal scholars and feminist activists assume the position of judges and rewrite important appellate judicial decisions. In so doing, they seek to expose both law’s patriarchal structure but also its contingency, its hidden margin of freedom. Law, in the hands of would-be feminist judges, could always be otherwise.

Or think, in a very different political register, of those litigants (be they sovereign citizens or other individuals) who today - gathered under the sign of what mainstream legal actors pejoratively call ‘pseudolaw’ - mobilise a certain understanding of the common law and of its ancient history in order to assert a particular legal subjectivity and claim their rights. Indeed, sometimes these individuals  fashion an entire normative universe.

These examples are neither exhaustive nor privileged instances of the phenomenon - we could add many others, from exercises of corporate self-governance (the so-called ‘Facebook Supreme Court,’ for example) to heterodox gestures of self-determination (the sovereign claims of micronations, for example).

This conference within a conference presents an opportunity to explore these phenomena, and continues discussions about ‘prefigurative legality’ (Cohen and Morgan, 2023), or other related topics. Without wishing to circumscribe those discussions, we are interested in paper proposals (which we will organise into panels) or fully-formed panels (with 3/4 papers) that address the following indicative list of topics and questions:

-          How do we best think about this phenomenon of informal legality - as an instance of prefiguration, or performativity, or parody, or maybe through the lens of legal pluralism?

-          What is the relationship between the informal or everyday legal claim (to rights, jurisdiction, statehood, even) and the formal structures of state or international law?

-          Do these claims complete, compete with, or critique authorized law, or do they sit outside, beyond or underneath it?

-          What are the political possibilities and limitations of these exercises or practices?

-          What are historical examples of this phenomenon and what might those histories indicate about similar actions or actors today?

-          What understanding of legal form and legal method do these practices disclose?

-          What are the similarities and differences between supposedly left-wing invocations of law, and conservative mobilisations of law?

Process:

We invite paper (or panel) proposals for a series of interlinked panels on the above theme at the Law and Society Association 2025 Conference in Chicago, May 22-25. Our intention is to collate a series of paper (and panel) proposals into a mini-conference, crafting a conference within the wider conference setting of the LSA that sustains an intimate and intellectual conversation across the related panels. Below is the set of steps and deadlines leading up to the LSA in 2025 and what you need to do in order to participate. After the LSA, our intention is to work with participants to publish our papers as a collection in either a special edition of a scholarly journal or in the form of an edited book with a leading academic or trade publisher. Once we have the final conference-within-a-conference program we will commence initial discussions with participants (that is, well before the LSA itself) and gauge interest and ideas in future publications.

Timeline:

-          Send abstracts, panel proposals or thoughts to stephen.young@otago.ac.nz by 15 September 2024

-          We will notify people of acceptance or non-acceptance by 1 October 2024

-          Participants confirm participation by 7 October 2024

-          Participants/Organisers submit panels to LSA by 15 October 2024*

-          *Please note that participation in this mini-conference will “count” towards your participation limits for LSA

-          LSA: 22-25 May 2025

What to Submit?:

We are interested in receiving either paper abstracts on the above or related topics or fully-formed panels. If you wish to submit a paper abstract please include a 200 word abstract, with a title and also your institutional affiliation. If you wish to submit a fully-formed panel or series of panels, please ensure that the submission contains 3 or 4 abstracts of 200 words, with a title and institutional affiliation for each paper plus a 200 word explanation of the panel’s theme itself. We are open to receiving questions about different formats of panels (roundtables, Author-Meets-Reader sessions, etc) but we encourage people to contact us as soon as possible about this to facilitate organisation.

Please direct your questions to any of the 3 organisers at the following email addresses: b.golder@unsw.edu.au, ajcohen@temple.edu, stephen.young@otago.ac.nz. But final submission of proposals should be directed to stephen.young@otago.ac.nz

We do not have funding for this project so each participant needs to ensure their own travel to, registration at, and attendance at the LSA Chicago annual meeting.

Crowe on Natural Law With and Without God @drjoncrowe @unisqaus @AusJLR

Jonathan Crowe, University of Southern Queensland, School of Law and Justice, has published Natural Law with and without God at 4 Australian Journal of Law and Religion 17 (2024). Here is the abstract.

There is a common perception of natural law theory as characteristically (if not necessarily) theistic. This is sometimes presented as a drawback by secular critics of natural law thinking. Natural law authors themselves differ on the role of theism within their theories. Some have argued that natural law theory presupposes theism, while others have sought to give their views a secular basis. This article explores the relationship between natural law theory and theism. I begin by defining the characteristic features of the natural law outlook. I show that these core aspects of natural law thought can be rendered consistent with both theistic and non-theistic worldviews. However, these worldviews may yield different responses to some fundamental questions about natural law, such as where natural law comes from; how (and to what extent) humans can know about natural law; why humans should follow natural law; and whether natural law changes. I explore the consequences for natural law theories of theistic and non-theistic answers to these questions. I then offer some reasons for thinking that a version of theism incorporating what I term ‘qualified teleological perfectionism’ provides the most coherent foundation for the natural law outlook.

Download the article from SSRN at the link.

Giuliani on F. Calasso's Idea of the Ius Commune: Legal Historians and the Romanist Tradition, 1930-60

Adolfo Giuliani, InfoLaw Research Project; Max Planck Institute for Legal History and Legal Theory, is publishing F. Calasso's idea of the ius commune: Legal historians and the Romanist tradition, 1930-60 in Journal Clio & Themis (June 2024). Here is the abstract.

On 16th January 1933 the young Francesco Calasso (1904-1965) delivered a prolusion on a subject that was to take the new generation of legal historians by storm: "The concept of the ius commune." His prolusion not only changed the image of the legal past but also gave a new impetus to legal history placing it at the heart of legal science. Today we need to go back in time and look closely at what he said, because the ius commune, which in the following decades became a major key to understanding the legal past, is now unclear. Outline: I. 1933: Rethinking the ius commune II. The historical problem of the ius commune III. The Romanist tradition IV. The ius commune as explained in the year 1573 V. Calasso's methodological project VI. Conclusion: Romanists Vs legal historians I. 1933: Rethinking the ius commune.

Download the article from SSRN at the link.

Steel on Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934-2022 @PennJCL @reillysteel @Princeton

Reilly Steel, Princeton University, is publishing Political Threads in Legal Tapestry: A Computational Analysis of Executive Branch Legal Interpretation, 1934–2022 in the University of Pennsylvania Journal of Constitutional Law. Here is the abstract.

How does the push and pull between law and politics shape the work of executive branch lawyers charged with providing "neutral" interpretations of the law? To shed light on this longstanding question, this Article undertakes the first large-scale computational analysis of legal interpretation in the executive branch of the United States federal government. Leveraging a novel dataset comprised of the texts of 12,879 pages of opinions issued by the Office of Legal Counsel (OLC), an elite unit of the Department of Justice (DOJ) that provides authoritative legal opinions to top executive branch officials, I use machine learning methods to explore markers of partisanship and ideology in these high-profile executive branch decisions. Several important findings emerge from this analysis. Broadly, I detect a significant partisan gap in the language used by the OLC. Yet this gap appears to have experienced limited growth in recent years, suggesting some degree of disconnect between the OLC and the broader, increasingly polarized political environment. Focusing on more fine-grained distinctions in the use of specific words and phrases, I find that Democrats and Republicans have differed along a number of salient dimensions, including the types of legal arguments invoked, substantive policy-related language, and institutional issues involving the separation of powers. One of the sharpest distinctions relates to executive power, with Republicans being more likely to adopt language associated with expansive presidential authority. I also find evidence that Republicans have more closely associated executive power with various markers of authoritarianism, such as language related to violence, the armed forces, and nationalism. But neither party appears to have consistently associated executive power with markers of democracy more than the other, complicating this picture. These findings have important implications for law and politics. To start, the existence of significant partisan differences in the OLC's language use casts doubt on the prospect that high-ranking executive branch lawyers will act as "neutral expositors" when rendering legal opinions. At the same time, the apparent disconnect from broader trends in polarization arguably offers some sliver of hope for those who would prefer neutrality. Another issue that has attracted both scholarly and popular attention relates to the role of executive branch lawyers in safeguarding against—or alternatively facilitating—democratic backsliding. My results highlight the risks of relying on executive branch lawyers to uphold constitutional guardrails against presidential overreach, especially amidst attempts by certain political actors to increase politicization within the DOJ. Such concerns underscore the potential importance of other institutions in preserving democratic norms.

Download the article from SSRN at the link.

Willinger on Missing Pieces: Gaps in the Record of Early American Decisional Law @AndrewWillinger @DukeFirearmsLaw @DukeLawJournalw

Andrew Willinger, Duke University School of Law, Center for Firearms Law, is publishing Missing Pieces: Gaps in the Record of Early American Decisional Law in the Duke Law Journal Online. Here is the abstract.

In its most recent major Second Amendment decision, NYSRPA v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were subject to judicial scrutiny during crucial eras of American history because many court decisions—especially from the Founding Era—were simply never recorded for posterity. Those omissions were not random and they do not represent merely what we today would consider insignificant holdings. Rather, omissions from the surviving record of decisional law are the product of curation by early court reporters, newspaper editors, and other actors often motivated by profit or partisan bias. Therefore, it is often perilous to extrapolate “the general law” from the extant, unrepresentative caselaw that happens to be preserved today. This Essay examines how the non-legal choices and preferences of those who recorded early American decisional law prior to the gradual emergence of more consistent reporting of judicial decisions in the late 19th century shaped the historical record of early decisional law that exists today. Part I chronicles the largely inconsistent and at times chaotic practice of court reporting at and after the Founding and explores how judicial decisions were preserved and published during that time. Part II addresses how modern originalist theories should approach and appreciate the “curated” nature of legal history from that time. I argue that the record of early American decisional law has been profoundly influenced by various actors (legal and non-legal) according to considerations other than preserving an accurate, comprehensive snapshot of “general law” at the time—namely, based on motives including profit and partisanship. This reality, I suggest, means that it is crucial to expand the universe of historical sources when possible to capture what may be missing from the universe of preserved decisional law.

Download the essay from SSRN at the link.