Douglas on History, Tradition, and Voter Registration

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

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

Download the article from SSRN at the link.

Fourth Annual Nomos Conference, Masaryk University: Call For Papers

From Tomáš Havlíček, Masaryk University:

Call for Papers

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

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

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

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

(Wark, Capital is Dead 2019, 142)

 

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

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

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

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

Key topics discussed include:

1. Illiberalism and Authoritarian Resurgence in Contemporary Constitutionalism

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

Key questions:

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

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

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

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

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

Key Questions:

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

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

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

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

 

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

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

Key Questions:

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

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

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

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

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

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

Key Questions:

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

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

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

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

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

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

Key Questions:

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

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

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

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

 

Submission Guidelines

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

 

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

 

Keynote Speakers:

·         Marija Bartl (University of Amsterdam)

·         Werner Bonefeld (University of York)

 

Conference fee: 120 EUR

Deadline for Submissions: 13 April 2025

Notice of Acceptance: 20 April 2025

Conference Date: 6-7 June 2025

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

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

 

 

 

 

Guerra-Pujol on Adam Smith's Blind Spot

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, has published Adam Smith's Blind Spot. Here is the abstract.

This article connects Adam Smith's maxims of taxations-as well as a possible precursor to Smith's maxims: Roussel de la Tour's Richesses de l'etat-with Geoffrey Brennan and James Buchanan's critique of optimal taxation theory. Among other things, Brennan and Buchanan's critique of the optimality criterion fills an important gap not only in the optimal-tax literature but also in Adam Smith's thought.

Download the article from SSRN at the link.

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.

Reid on London's Burning: The Gordon Riots of 1780, Conspiracy Theory, Elite Connivance, Law Reform, and Official Bigotry

Charles J. Reid, University of St. Thomas School of Law (Minnesota), has published London's Burning: The Gordon Riots of 1780, Conspiracy Theory, Elite Connivance, Law Reform, and Official Bigotry as U of St. Thomas (Minnesota) Legal Studies Research Paper No. 25-06. Here is the abstract.

It is 1780 and the City of London is on fire. The Gordon Riots of June, 1780, was the largest and most destructive act of civil disobedience in the history of the United Kingdom. The Houses of Parliament were attacked. Prisons were burnt to the ground and all the captives freed. Only the British army succeeded in restoring order, and then only after the passage of several days. Hundreds of persons died. This Article tells the story of the Gordon Riots. It is a story that involves the English Crown's two-century effort to instill a deep anti-Catholic bigotry in the British people. When the Crown decided to relax that narrative out of the desire to recruit Irish Catholic troops to fight in the American Revolution, a large part of the populace of London responded with outrage. That outrage was fanned by conspiracy theory and elite connivance. Lord George Gordon, a Scottish nobleman and member of Parliament, was responsible for stirring popular anger. And that anger burst furth in early June, 1780, when large masses of people, led by Lord Gordon, marched on Parliament. The crowds that stormed Parliament and set fire to the City were largely drawn from the poorer segments of the population, who feared being left behind as the United Kingdom opened the door to a policy of religious toleration. Were the mobs populist? Can they be explained by Marxist thought? And what about the person of Lord George Gordon? The Article, in short, is a story of how abrupt reversals in public policy and law reform can go badly off the rails when faced with opposition grounded in bigotry and conspiracy theory.

Download the article from SSRN at the link.

Bray and Keane on James Ussher (1581-1656)

Samuel L. Bray, Notre Dame Law School, and D. N. Keane, Georgia Southern University, are publishing James Ussher (1581-1656) in Christianity and the Making of Irish Law: Violence, Virtue, and Reason (David McIlroy ed., forthcoming 2025). Here is the abstract.

In the seventeenth century, James Ussher was the Archbishop of Armagh and Primate of the Church of Ireland. Now remembered for his risible dating of creation, in his lifetime he was widely regarded as one of the most learned persons in the British Isles if not in Europe. This chapter explores Archbishop Ussher's ideas that have significance for law. In particular, it considers his commitment to absolute monarchy, even as the tide was flowing toward a more assertive Parliament; his proposal for "reduced episcopacy," a form of conciliar ecclesiastical government; and his insistence that each national church have its own canon law. This chapter takes the measure of these contributions and also of their contributor. Ussher was a Janus-like figure of contradictions—staggering in how much he knew, and now remembered mostly for what he did not know; widely renowned in his time for his moderation, yet repressive to Irish Catholics; a royalist bishop who was deeply admired by both King Charles I and the rebels who beheaded him.

Download the essay from SSRN at the link. 

Brophy on The Jurisprudence of Antebellum Phi Beta Kappa Addresses

Alfred L. Brophy, University of North Carolina School of Law, has published The Jurisprudence of Antebellum Phi Beta Kappa Addresses. Here is the abstract.

Ralph Waldo Emerson spoke at Harvard University in 1837 in a Phi Beta Kappa address. That address known as American Scholar reaches for individual expression, not history and social hierarchy. There are many Phi Beta Kappa addresses, both before and after him. Many Transcendentalists orators at Harvard and a few anti-Transcendentalists orators as well. And many others who are optimists, technology, and utilitarians at many colleges. After the Fugitive Slave Act in 1850, three speakers of Harvard, Brown, and Yale advocated law, rather than conscience. All three of them were lawyers. There was a rich diversity of opinion: Transcendental oratory, anti-Transcendentalists, and optimist, technological, and utilitarian thought.

Download the article from SSRN at the link.

Hummel on Music of the Law: A Wigmorian Playlist for a Modern Era @josephhummel.bsky.social

Joseph Hummel, UNT Dallas College of Law, has published Music of the Law: A Wigmorian Playlist for a Modern Era at 59 Tulsa Law Review 301 (2024). Here is the abstract.

Within the field of law and literature, the academic study of legal songs—those being songs about lawyers, trials, the law, legal procedure, and broader issues of justice—remains relatively underdeveloped when compared with the study of legal novels, plays, and films. Given the value legal songs can provide to lawyers, this need not and should not be the case. For the lawyer, the benefits of listening to and studying legal songs are many. Legal songs can help lawyers understand the public’s perception of lawyers and the law. Listening to legal songs can also help lawyers improve their linguistic and interpretative skills. Legal songs also offer the lawyer a portal to understanding their clients and those “others” situated outside of or on the periphery of society. Lastly, legal songs can help lawyers re-engage with their “humanistic roots” and ethics. Using Dean John Henry Wigmore’s and Professor Richard Weisberg’s “lists of legal novels” as foundational and structural tools, this article endeavors to create a “Wigmorian playlist” of forty curated legal songs that, to borrow a phrase from Wigmore, no lawyer can “afford to ignore.” Using overarching criteria similar to those set out by Wigmore and Weisberg, this article catalogues and examines songs that centrally and significantly depict: (1) lawyers or other members of the legal profession; (2) trials or other legal proceedings; (3) issues of civil or criminal procedure; (4) laws and legal instruments; and (5) crimes or broader issues of law and justice that also implicate criteria (1), (2), (3), or (4). The article contains five sections. Part I is the Introduction. Part II discusses the evolution of the law and literature movement and explores its expansion through the twentieth century to include non-literary mediums, including music. Part III explores music’s connection to the law and argues that legal songs hold professional and personal value for lawyers and warrant from them engagement and analysis commensurate with the degree that lawyers might expend on legal novels, plays, and films. Part IV discusses the selection criteria for the “playlist.” Part V contains the “Wigmorian playlist.”

Download the article from SSRN at the link.

Boden on Myra Bradwell and the Chicago Legal News: Speech and the March for All Civil Rights

Anastasia Boden, George Mason University, has published Myra Bradwell and the Chicago Legal News: Speech and the March for All Civil Rights. Here is the abstract.

To the extent that people know the name Myra Bradwell, they likely know her only for her defeat. In Bradwell v. Illinois, the Supreme Court famously denied that Myra had a constitutional right to earn a living as an attorney. 2 According to eight justices, the "paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother," not to enter a profession. 3 Myra may have lost in court, but she was wildly triumphant in the long run and became a successful advocate even without government permission. Though the Court denied her the right to pursue a livelihood, she retained her right to free speech-and she used it to start and manage the most successful legal periodical of her time, to draft and help pass various reforms that advanced equality before the law, and even to free Mary Todd Lincoln from unjust imprisonment in a sanitarium in Illinois. Myra's successful civil rights campaign underscores a perverse distinction in constitutional law: the purported distinction between the right to free speech and other, "unenumerated" constitutional rights like the right to earn a living. The First Amendment is given privileged treatment, with judges subjecting laws that infringe speech to strict judicial scrutiny. 4 Most unenumerated rights, by contrast, are relegated to rational basis scrutiny.

Download the article from SSRN at the link.

Perez on A Critical Analysis of Rap Shield Laws

Alexa Perez, Drake University Law School, is publishing A Critical Analysis of Rap Shield Laws in volume 110 of the Cornell Law Review. Here is the abstract.

For years, scholars have been sounding the alarm on "rap on trial," or the use of rap as evidence in criminal proceedings, pointing out that the fundamental characteristics of rap music make it uniquely susceptible to misinterpretation and prejudice. Scholars have also cautioned that rap on trial has the potential to chill artistic expression in violation of the First Amendment. The heavy reliance on rap lyrics in the recent RICO prosecution against rapper Young Thug has shed a renewed spotlight on the rap on trial concerns. In response to these growing concerns and a perceived gap in evidence law, state and federal legislators have proposed, and in some states enacted, statutes that seek to limit the use of rap lyrics as evidence-what this Article refers to as "rap shields." This Article provides the first critical analysis of rap shield proposals. More specifically, this Article demonstrates that rap shield laws are largely duplicative and, therefore, unnecessary from both an evidentiary and constitutional standpoint. Nevertheless, from a social justice standpoint rap shields serve important functions that may justify their enactment, such as offering guidance that increases judicial scrutiny and decreases judicial discretion. Those benefits, however, come with unintended costs-costs that may outweigh the important functions rap shields serve-including impeding defendants' right to present a defense. This Article concludes that the administration of justice may be better served and the concerns with rap on trial better addressed when the firmly rooted canons of evidence law are stringently applied rather than amended.

Download the article from SSRN at the link

Sherwin on The Challenge of Legal Chorology: Rethinking Political Theology

Richard K. Sherwin, New York Law School, has published The Challenge of Legal Chorology: Rethinking Political Theology as NYLS Legal Studies Research Paper No. 4960463. Here is the abstract.

Liberal democracy has historically been associated with an assumption of neutrality concerning religious or moral feelings and beliefs. Illiberal critics like Carl Schmitt have seized on this assumption to argue that moral neutrality deprives liberal democracy of any claim to legitimation or, for that matter, political coherence. But liberal democracy’s core commitment to a creed of freedom among equals belies this critique. As illiberal forms of governance gain strength worldwide, it is incumbent on allies of freedom to articulate a compelling and comprehensive narrative in its defense. To this end, legal chorology brings to light the historical, cultural, emotional, and spiritual conditions under which ‘constitutive power’ founds, transforms, or sweeps away political and legal states. This originary, generative force exceeds, even as it courses through, the names we assign it throughout history. That unbearable excess (“the sacred”) is the defining feature of constitutional over-beliefs. Constitutional over-beliefs embody different clusters of ideas, beliefs, and affective states around which polities arise and cohere. By tracing the rise and fall of discrete, historically privileged, constitutional over-beliefs, legal chorology holds out the prospect of identifying potent cross- cultural and interreligious resources for political belief and commitment. At the same time, reconceiving political theology as a genealogy of the sacred releases the field from Schmitt’s narrow illiberal vision. Liberal democracy, chorologically construed, rests upon an ethical metaphysic that conceives freedom among equals as an offshoot of each other’s infinite worth. As it turns out, liberal democracy’s ethos of epistemological modesty and experiential openness amidst abundance also emulates the very nature and dynamics of khôra herself.

Download the article from SSRN at the link.