Koh on Communicative Legitimacy: The Supreme Court's Hidden Cultural Binaries in the U.S. Civil Sphere

Steven Arrigg Koh, Boston University School of Law, is publishing Communicative Legitimacy: The Supreme Court's Hidden Cultural Binaries in the U.S. Civil Sphere as a forthcoming Boston Univ. School of Law Research Paper. Here is the abstract.

How does the U.S. Supreme Court establish its legitimacy? Over the last two hundred years in U.S. society, the Court has interpreted the U.S. Constitution on watershed issues such as slavery, segregation, and marriage equality. And yet the Constitution is just 7,591 words. A puzzle thus emerges: how does the Court intelligibly interpret this short text for U.S. society? This article develops a new theoretical and empirical cultural sociological account of such Supreme Court decisionmaking, which it calls "communicative legitimacy." According to this theory, which draws on Jeffrey Alexander's civil sphere theory, the Court consistently and inevitably draws on a shared American cultural discourse, thus rendering Constitutional values intelligible and legitimate to the broader civil sphere. This article shows this through two historical case studies. First, it explores the cases guaranteeing and then overturning the right to abortion, from Roe v. Wade (1973) to Dobbs v. Jackson Women's Health Organization (2022). Second, it reviews the cases guaranteeing the right to bear arms, beginning with District of Columbia v. Heller (2008). The two sets of cases, at first blush, appear diametrically opposed: Roe is a triumph for the left, Heller a victory for the right. But, in fact, these cases reveal the same pattern: the Court's defenders draw on the discourse of liberty to hail the decision as a restoration of the Constitution, while the opposition draws on the discourse of repression to accuse the Court of "creating a Constitutional right out of nowhere." This article thus unveils a hidden Supreme Court metalanguage , contributing a new cultural sociological understanding of the Supreme Court as a societal institution with unique communicative authority and symbolic power in U.S. society.

Download the article from SSRN at the link.

Wright on Gender Affirming Rhetoric

Emerson Wright, Stetson University College of Law, has published Gender Affirming Rhetoric. Here is the abstract.

During the runup to the 2024 election, virtually every person who watched an American football game saw an advertisement alleging that Kamala Harris was “for they/them,” while “President Trump is for you.” Candidates and interest groups spent more than $200 million on ads shaping and preying on public perception of trans people, and Democrats wasted no time blaming Kamala Harris’s electoral loss on messaging around trans issues. On the heels of a contentious election that relied heavily on this type of weaponized culture war messaging, misleading and hostile discourse about transgender people and the issues they face is hard to escape. Transphobic debates dominate the public sphere, often fueled by cisgender anxious compulsions to categorize others according to heteronormative gender roles. Even the Olympics were marred by a transphobic harassment campaign against a gold medalist who is not in fact transgender. More broadly, concerns about slippery slopes and far-reaching hypotheticals have birthed a moral panic about the ways trans people disrupt the cultural order, and courts have been complicit in reinforcing traditional cisgender norms even when it causes real harm to trans people. The U.S. legal system uses traditional legal rhetoric as the generally accepted form of logical reasoning, a form of reasoning that relies heavily on categories and syllogistic reasoning to reinforce heteronormative social roles and hierarchies. Traditional legal rhetoric ratifies hate-motivated marginalization of peoples who defy, transcend, resist, or reject classification according to traditional cisgender norms. For example, restrictions and bans on gender affirming healthcare effectively relegate trans folks to a permanent lower caste by not only denying them essential medical care, but also by signaling that they are unworthy of recognition, support, or dignity, thereby reinforcing their systemic marginalization. Traditional legal rhetoric is designed to preserve the status quo through conservative syllogistic reasoning that is more concerned with validity than with truth, justice, and equity. Thus, it cannot be an effective tool to advocate for trans rights that do not fit within cisgender-normative categories which do not account for the truth of non-binary trans people. Advocates seeking to disrupt the status quo must therefore experiment with more dynamic rhetoric traditions, such as diasporic and indigenous rhetorics, that make space to resolve the issues faced by marginalized communities. Diasporic and indigenous rhetorics are capable of revealing inherent injustices and creating workable solutions to the real problems faced by the trans community. This Article examines Tennessee’s youth gender affirming healthcare ban and the resulting Skrmetti case through a critical and comparative legal rhetoric lens to demonstrate exactly how true justice for trans people cannot be achieved using traditional legal rhetoric. In effect, dominant rhetorical methods stack the deck against trans rights, so when courts and advocates try and fail to fit trans issues into strict legal categories, such as binary gender norms, they ultimately harm trans autonomy by rejecting the very idea that a person could be non-binary. Alternative rhetorics can better serve the justice interests of trans Americans because they center and prioritize justice, dignity, and selfdetermination. This Article ends by explaining how advocates can deploy strategies informed by alternative legal rhetorics to trans healthcare cases to achieve justice, dignity, and self-determination for the trans community.

Download the article from SSRN at the link.

Marmor on The Ontology of Legal Facts

Andrei Marmor, Cornell University Law School, has published The Ontology of Legal Facts as Cornell Legal Studies Research Paper No. 25-35. Here is the abstract.

Hans Kelsen had three main insights about the ontology of legal facts. First, that there are legal facts in our world, facts of a distinctly legal type. Actions and events in the world can have, objectively speaking, particular legal significance. Second, Kelsen claimed that legal facts belong to the domain of meaning. Law is, by and large, a scheme of interpretation, enabling us to ascribe legal meanings to certain actions and events in the natural world. Finally, and most problematically, Kelsen maintained that legal facts are normative facts, and as such, they require normative grounding, metaphysically speaking. Since Kelsen famously thought that normative grounding can only be done by other norms, he thought that we are eventually led to a Basic Norm that needs to be presupposed. I argue in this paper that Kelsen is quite right about the first two insights, and wrong about the third. Even if we assume that law is mostly about norms and all legal facts are facts about norms, they are not necessarily normative facts. Which also means that their metaphysical grounding does not have to be normative. The metaphysical building blocks of legal facts, like facts about semantic meanings and symbolism generally, consist of what people tend to do, what they think, and intentions they collectively share in the appropriate ways. There is no need for presuppositions. I also ties this view about the nature of legal facts to the kind of fictionalism about law I had argued for in the past.

Download the article from SSRN at the link.

Hemleben on Law as Mirror and Mold: The Judicial Construction of Whiteness in America, 1790-1927

Joe Hemleben, Appellate Advocate, Mississippi Office of State Public Defender; Independent Research & Author, has published Law as Mirror and Mold: The Judicial Construction of Whiteness in America, 1790-1927. Here is the abstract.

This Article explores how American law created and operationalized the category of “white” from the nation’s founding through the early twentieth century, not within any single doctrinal silo, but across the full architecture of membership, capacity, and civic authority. It argues that whiteness emerged not as a natural or intuitive classification but as a legally manufactured identity policed by the judiciary in naturalization law, constitutional law, state criminal adjudication, professional licensure, and property and alienage regulation. Beginning with the Naturalization Act of 1790 and the racial lexicon supplied by legal dictionaries, encyclopedias, and census manuals, courts translated contested cultural understandings of race into juridical facts. Federal judges constructed a racial taxonomy in the prerequisite cases from Ah Yup to Thind; the Supreme Court constitutionalized racial identity as a boundary of sovereignty in Fong Yue Ting and as a conditional form of membership in Wong Kim Ark. State courts then absorbed and repurposed these federal definitions in miscegenation prosecutions, evidentiary competency rules, and school segregation cases from Rice v. Gong Lum to Bond v. Tij Fung, relying on visual inspection, community reputation, and folk racial grammars to assign legal identity in the courtroom. At the same time, licensing boards, bar admission rules, hospital charters, and alien land laws converted whiteness into a credential of civic trust and economic authority, excluding Asian immigrants and nonwhite professionals from the professions, skilled trades, and landholding through the category of the “alien ineligible for citizenship.” Across these domains, law acted as both mirror and mold: mirroring prevailing racial hierarchies even as it molded whiteness into a legal personhood, a status that structured who could belong, who could speak with professional authority, who could hold land, and who the state treated as perpetually foreign. This Article concludes by showing how this architecture of legal whiteness continues to shape contemporary debates over citizenship verification, professional licensing, and the racialization of foreignness long after the formal dismantling of racial prerequisites.

Download the article from SSRN at the link.

Snyder on Historical Practice at the Founding

Ryan Snyder, University of Missouri School of Law, has published Historical Practice at the Founding as University of Missouri School of Law Legal Studies Research Paper No. 2025-55. Here is the abstract.

In recent years, the Supreme Court has increasingly relied on historical practice—actions other than judicial decisions that implement the law after its adoption. That creates tension with the Court’s professed adherence to originalism—the view that a law’s meaning is fixed at the time of its adoption. To resolve this tension, the Court and many scholars have embraced theories such as “liquidation,” which argue that the Founders themselves used practice to update or change the law’s meaning over time. But until now, no one has systematically examined whether the Founders accepted those theories. This Article provides the first comprehensive analysis of how Founding-era courts used practice to interpret legal texts. It concludes that courts did not rely on practice to revise the law’s meaning; rather, they used it to discover what the law originally meant. Courts believed that practice helped reveal original meaning for three main reasons. First, they thought that contemporaneous interpreters were more likely to understand the law’s text and purpose, which gave them valuable insight into its original meaning. Second, they believed that contemporaneous practices revealed how those interpreters understood the law. And third, they believed that contemporaneous practice was even better evidence of original meaning when it had continued unchanged over time. At the same time, courts recognized that practice was not perfect. To address that risk, they applied a rigorous screening test designed to exclude unreliable practices and give greater weight to reliable ones. This test looked at various factors—such as whether the practice started shortly after the law’s adoption and whether it reflected a good-faith effort to interpret the law—that further confirm that courts used practice only as a tool for discovering original meaning. This history has important consequences for the Supreme Court’s use of practice. First, the history suggests that the Court should refuse to rely on practice as a way of updating or changing the law’s meaning. And second, it suggests that the Court should reshape its current use of practice to better reflect the Founders’ approach.

Download the article from SSRN at the link.

Boling on What Is "The Rule"? Quotation Marks and the Role of Courts and Lawyers as Performers of the Common Law

Kathryn Boling, Seattle University School of Law, is publishing What Is 'The Rule'? Quotation Marks And The Role Of Courts And Lawyers As Performers Of The Common Law in volume 64 of the Duquesne Law Review. Here is the abstract.

Must lawyers and judges use quotation marks when they recite legal rules verbatim from a cited source in their legal practice documents? It is a question that lawyering skills faculty hear often when training first-year students to enter the legal writing genre. The advice of many is to use quotation marks to avoid plagiarism, but that advice arises from a conflation of academic and legal writing and a small number of inapplicable cases in which courts have issued reprimands (or worse) to attorneys caught copying large portions of other sources without sufficient "attribution." This Article, therefore, undertakes a rigorous defense of the verbatim recitation of a rule from a cited source without quotation marks in legal practice documents. As this Article shows through a multidisciplinary exploration of linguistics, professional ethics, speech act theory, and neuroscience, that choice is legitimate and often desirable. What is often forgotten about legal rules (particularly in the common law) is that it is the day-to-day recitations of rules by lawyers and judges in the handling of cases that perpetuate the rules from the past into the present and thereby keep them in force for use in the future. Through an application of J.L. Austin's speech act theory to this activity, the Article explains why the social offense of plagiarism is not applicable, distinguishing the genre of academic writing from legal practice writing in multiple respects. It also explains how, with fear of plagiarism out of the picture, a legal practitioner in certain circumstances can harness rhetorical benefits from reciting a verbatim rule from an authoritative (and cited) source in their own written "voice," without quotation marks. By preserving the wording verbatim, the practitioner ensures the integrity of the rules themselves and enjoys a sense of belonging from verifying a communal understanding of the common law. Moreover, doing so through indirect quotation (i.e., without quotation marks) conveys the concepts with more ease for the reader, more seriousness by the writer, and more efficiency than direct quotation can.

Download the article from SSRN at the link.

Davies on Sherlock Holmes: Real or Imagined? Living or Dying?

Ross E. Davies, George Mason University Law School; The Green Bag; has published Sherlock Holmes: Real or Imagined? Living or Dying? at 2025 Baker Street Almanac 1. Here is the abstract.

Readers of the November 22, 1913 issue of Collier’s Weekly magazine had the joy of taking in Arthur Conan Doyle’s new Sherlock Holmes story, “The Adventure of the Dying Detective.” Recipients of the nifty little Christmas 1913 keepsake booklet of “The Dying Detective” put out by the advertising department at Collier’s got to read almost exactly the same story. The typesetters did a near-perfect job of making sure that the text of “The Dying Detective” in the booklet matched the text in the magazine. Indeed, there are just three notable differences between the booklet and magazine texts. The first two differences appear to be intentional and definitely are not defects. The third is, alas, a typographical finish-line fail. While there does not appear to be much worthy of study in the textual differences between the two 1913 Collier’s versions of “The Dying Detective,” addingThe Strand Magazine to the mix may change things. There is at least one difference between, on one hand, both of those Collier’s versions and, on the other hand, the version in the December 1913 Strandthat might merit a closer look. On page 609 of The Strand, while conversing with Dr. John Watson, Holmes says, “Strange how the brain controls the brain!”

Download the essay from SSRN at the link.

Baumann and Shugerman on Quasi-Judicial: A History and Tradition

Beau J. Baumann, Yale Law School, and Jed H. Shugerman, Boston University School of Law, have published Quasi-Judicial: A History and Tradition. Here is the abstract.

In challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, "judicial" power was conceived in English law as a subset of "executive" authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the "quasi-judicial" and "quasi-legislative" powers that were central to the holding of Humphrey's Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress's construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from hierarchical control and presidential removal. Americans expect judge-like independence when politicians grant administrators judge-like powers and functions. The quasi-judicial category deployed in Humphrey's was the logical extension of English legal customs, Founding Era administration, and the evolution of the ninteenth-century law of officeholding. It reflected an Anglo-American instinct to insulate judge-like offices from direct hierarchical control. Whether you are an originalist or a believer in the history-and-tradition approach, these findings show that Congress may insulate quasi-judicial officials from presidential removal and direction. Beyond original public meaning, the quasi-judicial function from Humphrey's is bound up with the Anglo-American constitutional project stretching back beyond the Founding. If the Roberts Court overrules Humphrey's, it will imperil a primordial instinct that is part of our rule-of-law tradition.

Download the article from SSRN at the link.

Medieval Murder Maps: A Resource for the Legal Historian

Medieval Murder Maps is a digital resource that allows researchers and others interested in the period to check out the history of violence and the legal system during the English medieval period. It covers the cities of London, York, and Oxford. Follow Medieval Murder Maps on X (formerly Twitter) at @medimurdermaps and Bluesky at @medimurdermaps.bsky.social.

Read more about Medieval Murder Maps here in an article from Atlas Obscura, which discusses how the maps 

helped solve a centuries old cold case.

Baker on Medieval Roots, Modern Insights: The Origins of Common Law Contract

Matthew J. Baker, University of Mississippi School of Law, has published Medieval Roots, Modern Insights: The Origins Of Common Law Contract at 58 Indiana Law Review 173 (2025). Here is the abstract.

Common law contract is described as the body of law dealing with legally enforceable promises, with its basic principles originating from judicial decisions. What underpins this method of lawmaking is an understanding of the past, such that prior judicial decisions guide the resolution of present legal disputes. Yet despite this ostensibly historical process serving as a vehicle for legal development, there is a general absence of recognition among lawyers, scholars, and students of the origins of this body of law in medieval English law. This Article posits that understanding the origins of common law contract, particularly as it developed around the writs of debt and covenant during the medieval period, provides lawyers and students with a more nuanced and contextualized view of a body of law that has gradually, but significantly, expanded its scope since its inception a millennium ago. An understanding of early common law contract forces one to go back to first principles of contract dispute resolution. While modern contract law tends to focus on substantive rules and doctrines, the early history of common law contract is primarily based on formal and procedural rules. The shift in focus to substantive rules raises questions about the fundamental aspects of contract law and its purpose. Such questions are liable to be ignored if one does not consider how early common law contract arose, and why formal rules and requirements once dominated a lawyer's thinking about how to best resolve contract disputes.

Download the article from SSRN at the link.

Wieboldt on Ideas With(out) Consequences?: The Natural Law Institute and the Making of Conservative Constitutionalism

Dennis J. Wieboldt, III, University of Notre Dame, is publishing Ideas With(out) Consequences?: The Natural Law Institute and the Making of Conservative Constitutionalism During the Cold War, 1947-1951 in volume 42 of the Law & History Review. Here is the abstract.

Recent scholarship on conservative constitutionalism in the United States focuses near exclusively on the development of originalism as a method of constitutional interpretation. Before conservatives turned to originalism to counter the perceived threats of an activist judiciary in the 1980s, however, this article demonstrates that conservatives employed a very different interpretive philosophy to counter a very different perceived threat. To do so, this article reconstructs the history of a conservative legal movement that predated "the" conservative legal movement. Indeed, this article uncovers how conservatives employed natural law philosophy to respond to the elite legal academy's seemingly morally foundationless positivism during the Cold War. The network of natural lawyers that sustained this earlier movement was deeply indebted to the Natural Law Institute (NLI), an academic initiative of the University of Notre Dame established in 1947. By framing the founding fathers' natural law philosophy as a bulwark of individual liberty against the encroachments of legal realists, World War II-era totalitarians, and Cold War communists, the NLI created what the political scientist Amanda Hollis-Brusky has termed a "political epistemic network." In concluding, this article suggests that recovering the history of the NLI's epistemic network reveals the importance of natural law to the making of conservative constitutionalism during the Cold War.

Download the article from SSRN at the link.

Birkbeck Centre for Law and the Humanities Seminar with Professor William MacNeil December 10, 2025

From Professor Patrick Hanafin, Professor of Law, Director Postgraduate Taught Programmes, Director LLM Law, Co-Director Centre for Law and the Humanities, Birkbeck Law School, University of London

The next Birkbeck Centre for Law and the Humanities event will be a Seminar with Professor Bill MacNeil (University of Queensland) and Visiting Professor in Birkbeck Law School.

The title of the seminar is Under His Eye: Feminine In/Visibilities in the Handmaid's Tale.

The event will take place on Wednesday 10 December next at 1pm in Birkbeck Central Room 406.

More information here.

Ryu and Sewell on The Hart-Dworkin Debate

Angelo Ryu and Trenton Sewell, both of the University of Oxford, have published The Hart-Dworkin Debate.

This encyclopedia entry discusses the Hart-Dworkin debate, understood as the literature developed around the viability of Hartian positivism in light of the arguments Dworkin either laid out or inspired. The focus is on two arguments: the argument from principles and the argument from theoretical disagreement. First, can Hart adequately account for the role of principles in law? The entry considers three variants of this argument. Second, can Hart adequately account for the existence of law in practices whose officials disagree on why certain empirical facts make a given legal proposition true? The entry considers both semantic and non-semantic variants of this argument.

Download the entry from SSRN at the link.

ICYMI: Cervone on Sworn Bond in Tudor England: Oaths, Vows and Covenants in Civil Life and Literature

 ICYMI:

Thea Cervone, Sworn Bond in Tudor England: Oaths, Vows and Covenants in Civil Life and Literature (McFarland Publishing, 2011). Here from the publisher's website is a description of the book's contents.

 

The swearing of oaths is a cultural phenomenon that pervades English history and was remarkably important during the sixteenth century. This multi-disciplinary work explores how writers of the Tudor era addressed the subject in response to the profound changes of the Reformation and the creative explosion of the Elizabethan period. Topics include how the art of rhetoric was deployed in polemic, the way in which oaths formed bonds between Church and State, and how oaths functioned in literature, as ceremony and as a language England used to describe itself during times of radical change.