Sullivan on Death and Discretion: Some Thoughts on Living

Barry Sullivan, Loyola University Chicago School of Law, is publishing Death and Discretion: Some Thoughts on Living in volume 35 of the Yale Journal of Law and the Humanities. Here is the abstract.

Like judges, administrative officials exercise legal authority that significantly impacts the lives of others, and, in doing so, they must confront the problem of authority as "a problem for the individual mind faced with the difficulty of deciding what to do or to say." (James Boyd White, Acts of Hope309 (1994) Their work, like the work of judges, has a profound moral dimension. In this essay, Professor Sullivan considers that moral obligation through an analysis of Kazuo Ishiguro's 2022 film Living, together with Akira Kurosawa's film Ikiru and Leo Tolstoy's novella The Death of Ivan Ilyich. An earlier version of the essay was presented at a Yale Law School conference in honor of the fiftieth anniversary of the publication of James Boyd White's path-breaking book The Legal Imagination.

Download the article from SSRN at the link.

Workshop on Understanding and Doing Equality: Building Synergies Between Arts and Human Rights

From Honor Tuohy, University of Galway:

Announcement of a workshop: Understanding and Doing Equality: Building Synergies between Arts and Human Rights

Workshop

Understanding and Doing Equality: Building Synergies between Arts and Human Rights

This is a one-day workshop on May 29th 2025 at the Centre for Advanced Study, Sofia, Bulgaria.

Call for contributors: 

This workshop aims to explore themes focusing on methodologies and approaches for the creation of synergies between arts (understood broadly) and the equality-oriented dimension of human rights. What uses of arts are particularly conducive to the sharing of lived experiences of disadvantage to evoke compassion and create mutual understanding? How can artistic means be used to communicate ideas about equality, including in their scientific complexity? What specific forms of artistic communication are most conducive to positive change?

A full outline of the workshop is available in the document attached. A 300 words abstract should be sent to the organisers by 30 April 2025.

Please contact Honor Tuohy (H.Tuohy3@universityofgalway.ie) or Ekaterina Yahyaoui (ekaterina.yahyaoui@universityofgalway.ie) for more information and/or see attached document.

 

Theme

Human rights and equality appear as ideals appealing to most if not all people across the globe. 

However, the way people understand and experience these ideals can vary significantly since even the 

most conserva=ve poli=cians or ac=vists use these ideals in some shape or form. This reveals 

complexity and mul=dimensionality of equality and human rights which o?en hampers efficient public 

debate, communica=on and mutual understanding. At the same =me, the concept of equality is the 

subject of philosophical and academic discussions of which many contain difficult and not immediately 

accessible language. The experience of (in)equality is also not immediately comprehensible by those 

who have not personally been vic=ms of any sort of discrimina=on.

Arts and various ar=s=c prac=ces – visual arts, performing arts, or literary arts – have long been 

recognised for their ability to document human rights abuses. Arts also play a role in increasing 

empathy, communica=ng feelings and emo=ons. Discussions about arts’ ability to contribute to 

building stronger communi=es, transla=ng human experiences and knowledge into a more accessible 

form, or ac=ng as a crea=ve force leading to posi=ve change in our socie=es are ongoing.

This workshop aims to explore further these themes focusing on methodologies and approaches for 

crea=on of synergies between arts (understood broadly) and the equality-oriented dimension human 

rights. What uses of arts are par=cularly conduc=ve to sharing of lived experiences of disadvantage 

to evoke compassion and create mutual understanding? How can ar=s=c means be used to communicate 

ideas about equality, including in their scien=fic complexity? What specific forms of ar=s=c 

communica=on are most conduc=ve to posi=ve change?

We invite papers on these and related ques=ons from scholars, ar=sts and ac=vists alike. Inter- and 

transdisciplinary approaches are the most welcome. Equally, we are looking for both theore=cally 

informed contribu=ons as well as empirically grounded work, including examples of successful novel 

synergies and collabora=ons.

About the workshop

The one-day workshop will be held on 29 May 2025 at the Centre for Advanced Study, Sofia Bulgaria. 

The par=cipants will be required to submit a 1000 words concept paper by 22 May 2025. While this 

will be an in-person workshop, online aWendance can be facilitated in jus=fied circumstances. The 

workshop will also serve as a form of feedback on future publishable outputs as the organisers aim 

to submit an edited volume proposal to a reputable publisher. Publica=on plans will be discussed 

during the workshop.

While the par=cipa=on in the workshop is free, the organisers are unable to cover any travel or 

accommoda=on expenses.

Submission process

Please  submit  a  300  words  abstract  to  the  organisers  Ekaterina  Yahyaoui 

(Ekaterina.yahyaoui@universityofgalway.ie) and Honor Tuohy (H.Tuohy3@universityofgalway.ie) (please 

use both emails) by 30 April 2025. Decisions will be communicated in the following week.

Fletcher on Nanboozhoo Died for Your Sins

Matthew L. M. Fletcher, University of Michigan Law School, has published Nanaboozhoo Died for Your Sins. Here is the abstract.

This paper is a review of the classic book by Vine Deloria, Jr., “Custer Died For Your Sins,” for the 2025 volume of the Michigan Law Review’s book review issue. Nanaboozhoo, the Anishinaabe trickster god, decides to attend law school after reading “Custer Died For Your Sins” and realizing that the author, Vine Deloria, Jr. also decided to law school after publishing the book. This review follows Nanaboozhoo as he progresses through a legal career guided by the book.

Download the book review from SSRN at the link.

Cooper on A Sin for the Sake of Heaven: Vigilante Heroes in Law and Culture. An Old-New Paradigm

Levi Cooper, Bar-Ilan University Faculty of Law, has published A Sin for the Sake of Heaven: Vigilante Heroes in Law and Culture. An Old-New Paradigm עבירה לשמה: גיבורים נוקמים במשפט ובתרבות in Probing Human Dignity: Exploring Thresholds from an Interdisciplinary Perspective (Stephanie N. Ariel, Levi Cooper, and Vanessa Hellman, eds., Springer, 2024).

This article explores the halakhic concept of aveira lishmah (“a sin for its own sake”) as a theoretical lens for analysing cases where violations of human dignity are debated as morally justified in extreme circumstances, such as the “ticking time-bomb” scenario. The study examines two landmark German cases: the interrogation under duress of a child kidnapper to locate the victim and the Federal Constitutional Court’s decision to invalidate a provision in the Aviation Security Act that would have permitted the downing of hijacked passenger aircraft turned into weapons of terror, akin to the 9/11 attacks. While German law strictly prohibits such infringements on human dignity, these rulings provoked public and institutional dissonance: they were legally necessary yet emotionally unsatisfying. The article draws compelling parallels between these legal dilemmas and vigilante heroes in popular culture—Dirty Harry, Batman, Captain America, and Jack Bauer from 24—who embody a fundamental moral paradox: society officially condemns human dignity violations but emotionally invests in figures who employ such measures for ostensibly just ends. The concept of aveira lishmah offers a distinctive analytical perspective. Unlike traditional criminal law defences and justifications, it acknowledges that certain acts may be morally necessary while still requiring punishment. This paradox—where an action is simultaneously righteous and criminal—captures the tension in both real and fictional cases. The article concludes by critically assessing whether a version of aveira lishmah could be integrated into contemporary legal frameworks. The article ultimately argues that legal systems, committed to clarity and predictability, cannot sustain a category that simultaneously mandates action and imposes liability. Nonetheless, the concept provides a valuable lens for understanding deep-seated instinctive responses to extreme moral dilemmas. המאמר בוחן את הרלוונטיות של המושג ההלכתי "עבירה לשמה" כמסגרת תיאורטית להתמודדות עם פגיעות הכרחיות בכבוד האדם, כדוגמת תרחיש "הפצצה המתקתקת". המחקר נפתח בניתוח שני מקרים מהמשפט הגרמני: הראשון עוסק בחקירה תחת איומים ועינויים של חוטף ילד, במטרה לחשוף את מיקומו של הקורבן; השני דן בהחלטת בית המשפט החוקתי הפדרלי לבטל סעיף בחוק הביטחון האווירי שהתיר הפלת מטוס נוסעים חטוף שהפך לכלי טרור, בדומה לאירועי 11 בספטמבר. אף שהחוק הגרמני אוסר פגיעה בכבוד האדם בנסיבות אלו, ההחלטות עוררו ביקורת ציבורית. קופר משווה מקרים אלה לייצוגים תרבותיים פופולריים כגון דירטי הארי, באטמן, קפטן אמריקה וג'ק באואר בסדרה 24. דמויות אלו ממחישות את הדילמה המוסרית: בעוד הציבור דוחה פגיעה בכבוד האדם באופן עקרוני, הוא מזדהה עם גיבורים הנוקטים באמצעים אלו להשגת מטרות ראויות. המושג "עבירה לשמה" מציע זווית ראייה ייחודית לסוגיה. לפי פרשנויות מסוימות, מושג זה מכיר בנחיצות של מעשה אסור בנסיבות מסוימות, אך עדיין מחייב ענישה של מבצע העבירה. בניגוד להגנות המוכרות במשפט הפלילי, גישה זו מותירה את האחריות הפלילית על כנה, גם כאשר המעשה נתפס כמוצדק מבחינה מוסרית. המאמר מסתיים בבחינה ביקורתית של האפשרות ליישם גרסה מודרנית של "עבירה לשמה" במערכות משפט עכשוויות. קופר מעלה ספקות בדבר התאמתו של המושג למסגרת המשפטית המודרנית, מחויבת לעקרונות של ודאות משפטית ויכולת חיזוי של תוצאות משפטיות.

Download the chapter from SSRN at the link.

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

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

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

Download the article from SSRN at the link.

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

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

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

Download the article from SSRN at the link.

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

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

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

Download the essay from SSRN at the link.

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

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

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

Download the article from SSRN at the link.

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

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

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

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

Campbell on Tradition, Originalism, and General Fundamental Law

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

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

Download the essay from SSRN at the link.

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

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

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

Download the article from SSRN at the link.

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

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

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

Download the article from SSRN at the link.

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

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

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

Download the article from SSRN at the link.

Amirbayeva on Understanding the Significance of Forensic Linguistics Among Law Students

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

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

Download the essay from SSRN at the link.