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.

Download the article from SSRN at the link.

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.

Download the article from SSRN at the link.

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.

Download the article from SSRN at the link.

Songster, López, and Torres on Participatory Law Scholarship as Demosprudence @AmistadLaw @Rachel_E_Lopez @TempleLaw @YaleLawSch @VirginiaLawRev

Kempis Songster, Amistad Law Project, Rachel López, Temple University School of Law, Princeton University Program in Law & Public Policy, and Gerald Torres, Yale Law School, have published Participatory Law Scholarship as Demosprudence at 110 Virginia Law Review 298 (2024).

This Essay situates Participatory Law Scholarship (PLS) within the framework of “demosprudence”—a concept developed by Lani Guinier and co-author Gerald Torres that examines how ordinary people, often acting collectively, participate in making legal meaning by shifting societal narratives that inform the law. Namely, it explores the role that participatory methods in legal scholarship can play in democratizing the law and enhancing the practice of democracy. Specifically, at a time when democracy is facing a stress test that threatens the premises upon which it is based, PLS is one method for addressing the alienation between law and society that is in part to blame for the renewed rise of authoritarianism. The technicalities of the law often make non-lawyers feel disconnected from it and encourage apathy towards it as a vehicle of social change. Traditional legal scholarship sometimes aids and abets this disconnection from the law by favoring a doctrinal focus that can feel so detached from how the law operates on the ground that it is rendered irrelevant to those who experience it most intimately. PLS democratizes the law by making it more accessible to non-lawyers and facilitating greater participation in the process of making legal meaning. We thus argue that legal scholarship is both a venue for studying this phenomenon and also a site for demosprudential genesis.

Download the essay from SSRN at the link.

Graziadei and Giraudo on Contested Economic Maps of Legal Systems

Michele Graziadei, University of Turin Faculty of Law, and Marco Giraudo, University of Turin; Collegio Carlo Alberto, are publishing Contested Economic Maps of Legal Systems in the Journal of Comparative Law (2024). Here is the abstract.

Exploring comparative legal discourses through an investigation into the shared worldviews of scholars is both an ambitious and an indispensable program. It is ambitious because a similar exercise requires fresh investigations of legal comparisons on a world scale to be valid. It is challenging because influential worldviews emerge over time and tend to exert their effects over considerable periods of time, hence the need to extend the analysis over entire epochs. Such a vast program is therefore by its nature a collaborative endeavor. At the same time, an effort to approach this topic anew is necessary because the progress of knowledge requires open debate about the central tenets of any academic discipline or branch of learning. The worldviews that underlie many comparisons are among the central tenets of the discipline. Conversely, comparisons based on worldviews that are not openly and critically discussed risk being flawed. Starting from the antiquity, various areas of the world have emerged as cultural, economic, and political units. The division of world into States that enjoy mutual recognition under international law has prevailed in recent times. Throughout the emergence of the current world order, comparisons have been made on the basis of different worldviews. Looking at the field of comparative law, the classification of the world's legal systems into legal families has been a way to give voice to such worldviews. As evidence that worldviews are subject to change, it should be noted that the classifications of legal systems into legal families elaborated in the nineteenth and early twentieth centuries do not correspond to the later classifications associated with the classic works of René David and Zweigert and Kötz. 1 These in turn are often considered to be outdated (or are qualified) by recent classificatory efforts, or are met with outright skepticism. To be sure, scholars based in socialist countries always presented a different map of the world. Considerations related to the prevailing socialist ideology were a dominant factor in their classification of the world's legal systems. The prevalence of a certain ideological outlook in reconstructing a legal map of the world is not an exclusive prerogative of works that adhered to that ideology. On the contrary, it underlies works that aspire to objectivity. The tendency of key comparative law works to subordinate or to marginalize those systems that do not conform to the Western canon in their ideal map of the world's legal experiences has thus become the target of lively criticism. 2 This criticism maintains that law is not separate from culture, and the culture of European ruling classes adhered to an idea of superiority vis à vis "the other" that was an essential component of imperialistic projects launched by European powers all around the world in the modern and the contemporary epochs. 3 Similar reflections have informed the call for a decolonial comparative law approach coming from leading academic institutions.

Download the article from SSRN at the link.

Webb on The Lost History of Judicial Restraint @YaleLawSch @NotreDameLRev

Derek Webb, Yale Law School, is publishing The Lost History of Judicial Restraint in volume 100 of the Notre Dame Law Review. Here is the abstract.

This article attempts to answer a question of great contemporary significance – what role courts should play in our democracy. Specifically, it attempts to answer the question of what standard of review courts should use in deciding constitutional cases. It does so by recovering a lost history of how American jurists conceived that role from the American founding to the close of the nineteenth century. It draws upon a voluminous and diverse array of nineteenth century treatises, legal dictionaries, encyclopedias, case books, and manuals of federal practice, on the one hand, most of which have never before been examined, and federal and state supreme court cases in all fifty states on the other, to show, contra prominent legal historians and many leading contemporary originalists, that by the close of the nineteenth century, there was an overwhelming consensus in favor of the presumption of constitutionality, clear error rule, and reasonable doubt standard. James Bradley Thayer, who popularized those rules and gave them a unique theoretical justification in his classic 1893 article “The Origin and Scope of the American Doctrine of Constitutional Law,” did not just invent those rules. He was not, as Learned Hand put it, and many of his critics have subsequently agreed, the “prophet of a new approach.” Rather, he was just one – albeit distinguished and influential – member of a vast yet now forgotten chorus of treatise writers and jurists throughout the country, eventually in all fifty states, who defended a cautious, deferential, and restrained approach to invalidating the acts of democratic bodies. My thesis is that over the course of America’s first century, there emerged a much broader and richer historical consensus around judicial restraint than the advocates or critics of restraint have ever acknowledged. From its earliest origins in the transatlantic constitution, and through piecemeal legal practice in state and federal courts, before and after the creation of the Constitution, the “Thayerian” “rules of administration” associated with judicial restraint were eventually adopted by both the U.S. Supreme Court and all fifty state supreme courts in the country. This has implications not only for legal history but for understanding the scope of the judicial power and duty today. By attempting to recapture this mostly "lost history of judicial restraint," I argue that during America’s first century, through the “discussions” in legal treatises and the “adjudications” in all the country’s apex supreme courts, all pointing overwhelmingly and uniformly in the direction of restraint, the Constitution’s standard of review, and the very meaning of "the judicial power" in Article III, appears to have been fixed or “liquidated" during America's first century.

Download the article from SSRN at the link.