Unah and Peng on US Supreme Court Decision Making in Intellectual Property Rights (1954-2022)

Isaac Unah, University of North Carolina, Chapel Hill, Department of Political Science, and Sabrina Peng, Duke University School of Law, have published 2. US Supreme Court decision making in Intellectual Property rights (1954-2022). Here is the abstract.

We analyze U.S. Supreme Court decision making in the complex area of intellectual property (IP) to determine whether the Court is strengthening, keeping neutral, or weakening the rights of intellectual property owners. We argue that the Court’s strategic currency is to weaken IP protections to counteract the value stretching and monopolistic tendencies of IP holders. Relying on original data covering four judicial Eras from the Warren Court to the Roberts Court (1954-2022), the analysis strongly supports our theoretical argument, especially as it pertains to patents, showing that the Supreme Court is weakening the rights of patent holders in the IP ecosystem. We further find that there is no IP exceptionalism in the Supreme Court when it comes to ideological influences but that these ideological effects are highly codependent upon other institutional factors. Interestingly, liberal Justices are significantly more likely than conservative Justices to disfavor expanding protections for intellectual property owners.

Download the essay from SSRN at the link.

Herman and Prosenečki on Dads Over Lovers: Why Western Games Favour Parental Relationships Over Romantic Ones, Unlike Other Forms of Art @goteborgsuni

Zoryana Herman and Fabijan Prosenečki, both of the University of Gothenberg, have published Dads Over Lovers: Why Do Western Games Favour Parental Relationships Over Romantic Ones, Unlike Other Forms of Art? Here is the abstract.

Romantic relationships have long been central to various art forms. However, in recent years, Western video games have shifted toward emphasizing parental relationships, particularly father-daughter dynamics, a trend dubbed "the daddification of games." While this shift is often praised for adding emotional depth and maturity to gaming narratives, some critics argue it reinforces traditional gender roles and caters to an aging, male-dominated demographic. This study aims to explore the origins and implications of this trend in Western games and examine the potential consequences of shifting toward romance as the primary narrative focus, aligning gaming with other artistic media. By analyzing the historical evolution and current state of video game narratives, as well as the representation of relationships in past and current media, we propose how this trend was influenced by Western culture around masculinity-specifically linking emotion to femininity-American censorship, and xenophobic attitudes toward Japanese media, where romancedriven narratives are more common. Furthermore, an analysis of player discussions in online forums suggests that players are open to a broader range of relational dynamics, with potential benefits for cultural representation and diversity of experiences offered by the gaming industry.

Download the article from SSRN at the link.

Funk on Sect and Superstition: The Protestant Framework of American Codification @kellenfunk.bsky.social @ColumbiaLaw

Kellen Funk, Columbia University Law School, is publishing Sect and Superstition: The Protestant Framework of American Codification in the American Journal of Legal History (2024). Here is the abstract.

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to 'superstition' and 'priestcraft'. Their opponents denounced the codifiers' idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly 'clear' texts that divided the positivists into an ever-increasing number of sects. Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today's textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist 'Republic of Statutes', the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground.

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Aceves on Critical Constitutional Law and the Alito Palimpsest

William Aceves, California Western School of Law, is publishing Critical Constitutional Law and the Alito Palimpsest in volume 27 of the University of Pennsylvana Journal of Constitutional Law (2025). Here is the abstract.

This article uses an innovative metaphor—the palimpsest—and a provocative philosophical tradition—genealogy—to generate a new theory of critical constitutional law. It is a theory born from this unique moment in time. Originalism is now ascendant at the Supreme Court. Its search for essential origins in history as a method for grounding extant constitutional values was used in Dobbs v. Jackson Women’s Health Organization to end recognition of the fundamental right to abortion. The Court’s conservative majority has made clear that Dobbs is only the beginning. Critical constitutional law uses the metaphor of the palimpsest to study law and the search for essential origins. In antiquity, a palimpsest was a document treated with chemicals or scrubbed to erase the original text. This allowed the document to be recycled and written anew. Yet, some documents still retained faint images of the original text. By exposing repeated erasures and inscriptions, palimpsestic inquiry reveals how the law is in a constant state of transition and transformation. It also reinforces the findings of genealogy, a critical theory that views history as a field of self-interested interpretations and moral prejudices with no true essential origin. Through palimpsestic inquiry, new insights can be gleaned from Dobbs, a legal decision that is simultaneously historical, ahistorical, and filled with history. It exposes the outdated and misogynist values that permeate Justice Alito’s majority opinion. It reveals how history was scraped clean and reinscribed to justify originalist values. But, palimpsestic inquiry also explains that vestiges of Roe and Casey—and the values they represent—still remain. In the Hegelian dialectic of abortion law—where jurisprudential theories struggle for primacy in the zero-sum world of a nine-member Court—the Alito Palimpsest is merely the current iteration. Palimpsestic inquiry confirms that essential origins are seldom what they seem. This article begins with Dobbs, but its contributions to legal theory extend far beyond this one case. If history has become the touchstone for constitutional interpretation, this article offers a more honest methodology for studying law in the modern era. In fact, it provides the “master metaphor” for the study of law—offering clarity to a range of constitutional rights.

Download the article from SSRN at the link.

Braver and Elinson on A Progressive Judiciary? Judicial Review and National Politics from Reconstruction to the Present @JoshuaBraver1 @WisconsinLaw @NIU_Law

Joshua Braver, University of Wisconsin Law School, and Gregory Elinson, Northern Illinois University College of Law, are publishing A Progressive Judiciary? Judicial Review and National Politics from Reconstruction to the Present in the Uniersity of Arizona Law Review. Here is the abstract.

Within legal academia, the conventional historical narrative is that the Supreme Court has regularly interfered with legislative and executive efforts to protect minority rights and remedy economic inequality. Citing this reactionary tendency, an influential and vocal group of progressive legal scholars have argued that progressives ought to stop defending judicial review and instead devote their energies to eliminating it, or at least aggressively curbing its use. These progressive critics of judicial review (our term) proffer two related historical claims. First, they assert, the Supreme Court has consistently been less progressive than congressional majorities and Presidents. Second, they suggest, even landmark progressive rulings in cases like Brown v. Board of Education and Roe v. Wade were not, in and of themselves, meaningful contributions to progressive causes. This Article evaluates these claims and concludes that judicial review’s progressive critics are wrong on both counts. Revisiting the key eras and cases the progressive critique of judicial review is based on—including Reconstruction, Lochner v. New York, Brown, and Roe—we find little evidence that the Court has been consistently less progressive than the elected branches. We focus on postmaterial political issues that broadly code as part of a broader “culture war,” such as race and sex equality. As to Reconstruction, given that the Republican Party had largely turned away from the project of expending the necessary resources to promote Black equality, progressive critics of judicial review greatly overstate the Court’s contribution to Reconstruction’s demise. In the Lochner era, politicians in both political parties harbored racist views and promoted racist public policy, so the Court’s anti-government ideological commitments ultimately redounded to the benefit of Black Americans. Moving toward the present, we argue that Brown should be celebrated for desegregating the former “border” states and making the Civil Rights Act of 1964 possible. Roe, for its part, established a permissive national abortion regime that went well beyond what was possible to achieve through politics then. On balance, we conclude, a world without judicial review might well have been meaningfully less progressive. Why have judicial elites usually been more progressive than majorities in Congress or presidential administrations on culture-war issues? During Reconstruction, legal elites were largely undifferentiated from their counterparts serving elsewhere in the national government. By the Progressive Era, however, legal elites had become relatively more skeptical of state power compared to their political brethren, a disposition that sometimes furthered progressive ends. After the New Deal, we credit educational polarization, which has tended to make the elite bar, and thus the pool of actual and potential judges and justices, comparatively more open to progressive claims. We observe, however, that beginning in the 1990s, through effort and mobilization—perhaps most notably with the establishment of the Federalist Society—conservatives have offset the exclusionary effects of the legal profession’s liberal leanings on the judiciary.

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Solum on Original Public Meaning @lsolum @UVALaw @michstatelawrev

Lawrence B. Solum, University of Virginia School of Law, is publishing Original Public Meaning in volume 2023 of the Michigan State Law Review. Here is the abstract.

“Original public meaning” has become increasingly important in constitutional discourse. This Article investigates the nature of original public meaning in three steps. First, each word in the phrase “original public meaning” is explicated and clarified. The word “original” represents the idea that the meaning of the constitutional text is fixed at the time each provision is framed and ratified. The word “public” signifies that the relevant meaning is ordinary meaning, the understanding of the text conveyed to the public at the time each provision was framed and ratified. The word “meaning” refers to the set of ideas (concepts and propositions) that constitute the communicative content of the constitutional text. The second step situates original public meaning in the context of normative constitutional theory, explaining its role in both Public Meaning Originalism and nonoriginalist constitutional theories. The third and final step investigates the foundations of original public meaning in the philosophy of language and theoretical linguistics, via an exploration of the distinctions between (a) speaker’s meaning and sentence meaning, (b) semantics and pragmatics, (c) sense and reference, and (d) conceptual meaning versus prototypical meaning. Each of the three steps contributes to the articulation of a conception of original public meaning that aims at conceptual clarity, precision, and theoretical depth. The original public meaning of the constitutional text is the communicative content (the set of concepts and propositions) that was conveyed to the public at the time each provision was drafted, proposed, and ratified. Both semantics (the meaning of words and phrases) and pragmatics (meaning conveyed by context) play essential roles in the complex multistage process by which constitutional communication occurs. For public meaning originalists, the original public meaning of the text ought to bind constitutional actors, including judges, legislators, and executive officials. Sometimes, the recovery of original public meaning is relatively easy—the absence of linguistic drift, common sense, and the immediate context make the meaning of the constitutional text readily accessible to contemporary readers. But sometimes, the original public meaning of the constitutional text is difficult to discern, requiring both a deep reading of the constitutional record and careful application of the methods of historical linguistics.

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Conference on Abortion in American History, January 17, 2025, at the Huntington Library @TheHuntington

Forthcoming Conference: Abortion in American History: Intimate Decisions, Medical Knowledge, and Legal Decrees in the Two Centuries Before Roe v. Wade. Here's a description of the conference, to be held January 17, 2025, at the Huntington Library.

This conference brings together leading scholars to explore the multifaceted history of abortion in 19th- and 20th-century America. Building on the Longo Collection in Reproductive Biology, this conference will explore the underlying history that can deepen public understanding of the controversial politics of abortion law.

More information available here.

Lo Giacco on Giving Meaning to the Past: Historical and Legal Modes of Thinking @letizialogiacco.bsky.social @unileiden.bsky.social @de_Legiz

Letizia Lo Giacco, Leiden University Law School, has published Giving Meaning to the Past: Historical and Legal Modes of Thinking at 9 (2) Jus Gentium: Journal of International Legal History 371 (2024).

This contribution revisits the "turn to history" in international law by focusing on the debate on method between international lawyers and (legal) historians. The paper resorts to an analogy between interpreting the past and interpreting the law as giving-meaning activities to help elucidate points of juncture between these two disciplines. Against flourishing instrumentalist re-readings of the past and manipulative uses of history that both historians and international lawyers have denounced, this paper suggests a way to validate historical narratives and discern among those which contribute to the knowledge of the past and those who would not. It concludes that the "turn to history" in international law is better appreciated as a project geared towards re-assessing its own tradition, fostering self-reflection on international law as a set of doctrines and the role of international lawyers therein, i.e. what it entails to reproduce them as international lawyers.

The full text is not available from SSRN.

Alicea on The Natural Law Moment in Constitutional Theory @HarvardJLPP @CathULaw

 J. Joel Alicea, Catholic University of America School of Law, is publishing The Natural Law Moment in Constitutional Theory in volume 48 of the Harvard Journal of Law and Public Policy (2024). Here is the abstract.

Something new is happening in American constitutional theory. Never before have so many legal scholars sought to ground constitutional theory in the natural-law tradition. Indeed, we can truly say that we are living through a natural-law moment in constitutional theory, a period of unprecedented interest in natural law among constitutional theorists. This immediately calls to mind three questions. First: how, if at all, are the theorists of this moment different from prior theorists who sought to ground constitutional theory in natural law? Second: what explains the rise of natural law in American constitutional theory? Third: what are the implications for constitutional theory of our natural-law moment? This essay sketches answers to these questions, with the caveat that much more could be said about them. This essay was originally delivered as the Herbert W. Vaughan Memorial Lecture at Harvard Law School on April 9, 2024.

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

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

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

Download the essay from SSRN at the link.

Graziadei and Giraudo on Contested Economic Maps of Legal Systems

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

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

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

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

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

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Guerra-Pujol and Alcouffe on Adam Smith in the City of Light @ProfessorPujol

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, and Alain Alcouffe, University of Toulouse-Capitole, have published Adam Smith in the City of Light. Here is the abstract.

The general outline of Adam Smith’s travels in Europe has been retold many times, but little is known about his comings and goings in Paris. What we can say, however, is that the Scottish philosopher’s time in the City of Light marks an important turning point in his personal and intellectual life. He began his Paris sojourns by permanently resigning his professorship. He concluded them by mourning the death of one of the teenage boys who had been entrusted to his care. In all, Adam Smith made three separate visits to Paris. His first visit occurred in February of 1764 and lasted less than a fortnight (Rae 1895, p. 174; Ross 2010, p. 210), but his second and third stays lasted much longer--from February to July 1766 and then from September to October 1766--interrupted only by a short interlude in Compiègne in August. Moreover, several important events took place in Paris during all three of Adam Smith’s stays in the City of Light, dramatic episodes that a keen observer of the world like Smith must have taken notice of, including the intense debate from May 1763 to April 1764 over taxation and royal finances that took Paris by storm the political showdown known as the "séance de la flagellation", when Louis XV made a rare appearance in the French capital to scold the members of the legislature at a session of the Parlement de Paris on 3 March 1766; and the appearance of David Hume’s reply to Rousseau, which was published in Paris on 21 October 1766. Accordingly, Part 1 of this work revisits Smith’s first foray in Paris in February 1764. Next, Part 2 explores Smith’s second sojourn in Paris, from February to July 1766. Part 3 then concludes by revisiting Smith’s last days in Paris.

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Hollis on The Original Meaning of Treaties @TempleLaw @PennLRev

Duncan B. Hollis, Temple University School of Law, is publishing The Original Meaning of Treaties in volume 173 of the University of Pennsylvania Law Review (2025). Here is the abstract.

For nearly two centuries all three branches of the federal government have thought that the original meaning of the Constitution’s references to treaties and compacts was lost. This article aims to recover those original meanings by looking to an underexamined source—the contemporary law of nations. In 1789, that body of law regarded compacts, rather than treaties, as the umbrella category for all international agreements. Treaties—defined as executory commitments among sovereigns only—were but one form of compact. Others included executed “conventions,” agreements by “subsidiary powers,” and unauthorized “sponsions.” Each of these categories had a specialized meaning—they were terms of art—in both the scholarly corpus that delimited the field and contemporary practice. Although neither dictionaries nor the Framing materials explicitly invoke these definitions to assign constitutional meaning, there is extensive evidence in the text, intellectual history, and early U.S. practice for doing so. I identify support for a law of nations thesis in an array of previously ignored agreements, including those made by George Washington and Benedict Arnold. A law of nations thesis also helps explain why the United States concluded certain agreements as treaties and others as conventions in its earliest years. This article thus provides a new and historically rooted foundation for U.S. foreign relations law, with important implications for the scope and exclusivity of the Treaty power, the power to conclude “Executive Agreements,” the doctrine of non-self-executing treaties, the ban on U.S. state treaty-making, and the Constitution’s authorization of compacts with congressional consent.

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Siegel on The Levels-of-Generality Game: "History and Tradition" in the Roberts Court @HarvardJLPP @YaleLawSch

Reva Siegel, Yale Law School, is publishing The Levels-of-Generality Game: "History and Tradition" in the Roberts Court in volume 47 of the Harvard Journal of Law and Public Policy (2024). Here is the abstract.

Scholars have not agreed upon a method of interpretation that explains the Court’s reasoning in Dobbs v. Jackson Women’s Health Organization or New York State Rifle & Pistol Association v. Bruen. As this Article shows, what explains the history-and-tradition decisions of the Roberts Court is not a method of interpretation, but instead a justification for the Court’s turn to the past. The conservative Justices claim that interpreting the Constitution through history and tradition—when described in granular factual detail—best constrains judicial discretion by tethering law to objective criteria separate from the interpreter’s policy preferences. Justice Scalia long ago advanced this claim, and began a decades-long debate over “levels of generality” when he urged judges “to adopt the most specific tradition as the point of reference.” The Article contrasts this belief—that tying constitutional interpretation to history can constrain the expression of judicial values—with an alternative account. An interpreter’s appeal to facts about the nation’s past in constitutional argument often expresses values—forms of argument I have called “constitutional memory” claims. What appear in constitutional argument as positive, descriptive claims about the past are often normative claims about the Constitution’s meaning. In this Article, I show how my account of constitutional memory identifies the expressive role of conservative historicism, counters the judicial-constraint justification, and offers new perspectives on the levels-of-generality claims associated with it. The Article opens by examining puzzles of method and justification presented by Dobbs and Bruen during the 2021 Term. It concludes with a late-added section that samples the Justices debating the Article’s judicial-constraint and levels-of-generality themes in cases of the 2023 Term—in particular, in the Second Amendment case of United States v. Rahimi. The Article’s account of Dobbs, Bruen, and Rahimi demonstrates that we are all living constitutionalists now—but, crucially, not all living constitutionalism is the same. A conclusion identifies reasons why the Justices who present appeal to the past as claims of judicial constraint may engage in anti-democratic forms of living constitutionalism.

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Berresford on A Pumpkin Patch, a Typewriter, and Richard Nixon

John W. Berresford has published A Pumpkin Patch, a Typewriter, and Richard Nixon: The Hiss-Chambers Espionage Case. Here is the abstract.

This is a history of one of the most famous trials in American history. It was also a political circus and a personal tragedy for the litigants. The article takes the reader through Congressional hearings in 1948, a libel suit, grand jury proceedings, two criminal jury trials, and appeals that ended only in the 1980s. In the end, it was proved that a drearily correct diplomat named Alger Hiss had been spying for the Soviet Union for years and that warnings about his and similar crimes had been ignored for too long. Hiss's chief accuser, Whittaker Chambers, was a strange and fascinating genius who originally was believed only by a freshman Representative named Richard Nixon. The personalities, public punches and counter punches, litigation strategies, evidence, legal rulings, and courtroom advocacy of both sides are examined in detail. Also described are what did not come out in the trials and the political impact of all this, as well as elite and public opinion about who was telling the truth.

Download the article from SSRN at the link.

Link to the author's website and podcast available here. 

Roosevelt on A Tale of Two Americas @kroosevelt93 @PennJCL @pennlaw @RebeiroBradley

Kermit Roosevelt, University of Pennsylvania Law School, has published A Tale of Two Americas at 25 Journal of Constitutional Law 939 (2023). Here is the abstract.

This article responds to Brad Rebeiro’s review of The Nation That Never Was. Professor Rebeiro offers a reading of the Declaration of Independence as focused on equality. I agree that this is what the Declaration means to us now, but I claim that is not what it meant in 1776. A close reading of the Declaration reveals that it is focused, as the title suggests, on independence, and its assertions about equality are deployed to defend that argument against the divine right of kings. Because the Declaration’s equality exists in the state of nature and is part of an argument about the origins of legitimate political authority, it is not relevant to the state of society and has no implications for the institution of slavery, which is not an exercise of legitimate political authority.

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Smith on Originalism in the Year Three Thousand @msmith750 @StMarys_Law @QuinnLRev

Michael L. Smith, St. Mary's University School of Law, is publishing Originalism in the Year Three Thousand in volume 43 of the Quinnipiac Law Review. Here is the abstract.

While procrastinating from grading at the end of the Spring 2024 semester, a series of mishaps led to my inadvertent teleportation to the year three thousand, where I found myself attending a conference consisting of top originalist legal scholars. This essay recounts what I was able to gather about the state of constitutional interpretation in the centuries to come and applies these insights to current quandaries over how to classify modern courts’ interpretive methodology.

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Silva on Achaean Disputes: Eight Centuries of Succession Conflicts for the Title of Prince of Achaea @CathULaw

Ugo Stefano Stornaiolo Silva, Catholic University of America, Columbus School of Law; University of Orleans, Faculty of Law and Economics; Jagiellonian University in Krakow, Faculty of Law and Administration, Students; Mises Institute; has published Achaean Disputes: Eight Centuries of Succession Conflicts for the Title of Prince of Achaea. Here is the abstract.

This study delves into the intricate succession landscape surrounding the medieval title of Prince of Achaea and the older associated dignity of King and Despot of Asia Minor, tracing their historical roots, and assessing its contemporary status if ever reclaimed by the Damalas family, senior direct-line heirs to the Genoese Zaccaria dynasty, last sovereign house to have used it as rulers of Achaea. The multidisciplinary research method used incorporates reviewing recent genealogical studies, analyzing historical sources and medieval accounts, like the Chronicles of the Morea and the Chronicle of the Tocco, to establish the title's nature, antiquity and succession history, and applying historical Roman, Byzantine and Frankish Greek feudal law (the Assizes of Romania, in particular) to assess the legitimacy of competing claims for the title over time, particularly within the Zaccaria family and later by the Tocco lineage, and ultimately of modern comparative nobiliary law and elements of private law to discuss its theoretical rehabilitation in favor of the Damalas descendants of the Zaccaria Princes of Achaea.

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Stern on Law, Literature, and the Legal Imagination @simon8.bsky.social @ArsScripta

Simon Stern, University of Toronto Law, has published Law, Literature, and the Legal Imagination. Here is the abstract.

Law and literature occupies an unusual place among the interdisciplines in the legal academy. Various interdisciplinary conjunctions have found a home on law faculties over the last half-century or so, such as law and economics, law and sociology, and law and psychology, more recently supplemented by law and neuroscience. Most law professors could summarize the aims of scholarship fairly accurately in these areas. Law and literature has had a place in the legal academy for about the same amount of time, and yet those who do not read current scholarship in this field tend to have a vague or even misinformed understanding of what the work entails. Having outlasted the many predictions of its demise, the field nevertheless suffers from a strange kind of identity crisis—not because of anxieties or doubts among those who write in this area, but because of confident but misguided accounts that others would offer when describing the field. This article seeks to explain why this particular disciplinary conjunction differs from others that thrive on law faculties. The first part of the discussion takes its point of departure from James Boyd White’s The Legal Imagination. I offer a few observations about White’s book in relation to the field of law and literature, and as the subject of a symposium like the one being hosted in these pages. My point in this first part is a simple one, namely that very few books by law professors have achieved a status that makes them appropriate for such an anniversary symposium, and most of them have been interdisciplinary in a way that makes them resemble the kind of humanities scholarship that more typically receives this kind of attention. The second part of the essay considers the trajectory of law and literature as a field over the last forty-some years. Here the discussion contrasts the state of the field as evidenced by work in flagship U.S. law journals, by contrast with other scholarly work published elsewhere. The point again is a simple one, namely that if one were to look only at flagship U.S. law journals, the field might appear to be in a state of decline, whereas if one looks more widely, the field is flourishing and expanding. If the field looks different, depending on this schematic division of publication venues, the contrast hints at diverging views about literature, legal scholarship, and their aims. Those views have some bearing on the status of law and literature in relation to other legal interdisciplines, such as the ones mentioned at the outset.

Download the essay from SSRN at the link.

Magnuson on Original Discontent @TAMULawSchool @VandLRev

William J. Magnuson, Texas A&M University School of Law, is publishing Original Discontent in volume 78 of the Vanderbilt Law Review. Here is the abstract.

There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the structure and substance of the draft Constitution. They worried that it would lead to anarchy and tyranny. They worried that it would enshrine injustice into the policies of the new nation. And they worried that it would foment civil conflict and violence. These were not mere quibbles, the ordinary outcome of the messy process of compromise and negotiation. Their discontent went to the very foundation of the constitution. In short, many founders believed that the Constitution they created was not, in fact, good law. This Article argues that “original discontent,” that is, the discontent of the enactors with the Constitution they were creating, is both underestimated and essential for understanding our constitution. Original discontent carries important implications for a wide range of the most common methods of constitutional interpretation. For originalists, it suggests that we should take the public statements of proponents of the constitution for what they were: more propaganda than heart-felt statement of belief. For living constitutionalists, it suggests that, even if we accept that judges should interpret the Constitution as laying down broad principles subject to evolving norms and moral beliefs, we must recognize that the founders were skeptical of those basic principles. For common good constitutionalists, it provides essential context about the original understanding of the constitution and its effects on the nature of the political community. More fundamentally, this Article argues that original discontent calls for a broader reconceptualization of the nature of constitutions. One of the basic tenets of constitutional interpretation has always been that a constitution is something like a social contract: it lets our past selves rule our future selves. But nothing about that formulation tells us which views should matter: is it the views of the most rabid proponent, or of the average citizen, or of the coalition that voted in favor? What about the views of dissenters, or the disenfranchised, or the enslaved? By uncovering the hidden history of discontent at the center of the constitution’s creation, this Article highlights the importance of incorporating a wider range of perspectives into modern constitutional interpretation. It also provides a powerful reason for judicial restraint. If the Constitution was not thought to be a wise document even by those who drafted it, judges must exercise caution before using it to strike down democratically-enacted laws.

Download the article from SSRN at the link.

Call For Proposals: 2025 Applied Legal Storytelling Conference, July 9-11, 2025, University of Michigan Law School @UMichLaw

The University of Michigan Law School is hosting the 2025 Applied Legal Storytelling Conference, July 9-11, 2025.

The Applied Legal Storytelling Conference brings together academics, judges, lawmakers, practitioners, and any other type of legal storyteller.

Applied legal storytelling examines the use of stories, storytelling, or narrative elements in law practice, legal education, and the law. This definition is intentionally broad to allow people creativity in the way they think and present on the topic.

Examples may include:

• ways in which creative nonfiction and fiction-writing techniques or narrative theory can inform legal storytelling
• stories in the law, or law as stories
• legal storytelling and metaphor
• client story advocacy
• counter storytelling
• professional identity formation through legal storytelling
• cognitive nature and psychology of storytelling and narrative
• using legal storytelling to foster empathy and promote civil discourse
• ethical considerations in legal storytelling

Undoubtedly, there are many other avenues to explore.

The conference has previously convened in 2007 (London), 2009 (Portland), 2011 (Denver), 2013 (London), 2015 (Seattle), 2017 (Washington, DC), 2019 (Boulder), 2021 (Virtual/Mercer), and 2023 (London).

Call For Proposals

The Tenth Biennial Applied Legal Storytelling Conference is seeking proposals for creative, engaging, and insightful presentations for our upcoming conference in July 2025. 

We welcome and encourage presentation proposals from faculty, lawmakers, and practitioners engaged in a variety of disciplines and from schools and organizations around the world. We encourage proposals from newcomers and experienced presenters alike.

All selected presenters will be expected to present in person. We encourage creativity in presentation format—this conference will be collegial, inclusive, and supportive of your work.

Presenters will be required to pay the conference registration fee and cover their own costs for travel and accommodations. 

More information and links to submit a proposal available here.

Long on The Gettysburg Address: Lincoln's Model Legal Argument

Patrick J. Long, SUNY Buffalo Law School, has published The Gettysburg Address: Lincoln's Model Legal Argument at 72 Buffalo Law Review 383 (2024). Here is the abstract.

The Gettysburg Address does not appear to be a legal argument. One cannot find a rule anywhere in its few words. Nor does there seem to be any application of a rule to the facts of the case. There is a simple reason for this absence: the law in 1863 was wrong. Lincoln knew that, but he was too much the lawyer to advocate law-breaking. Instead, he used all the skills he had learned from his years in the courtroom to urge his listeners to look beyond the law’s flaws to find the truth of the Declaration’s “self-evident truth.”

Download the article from SSRN at the link.

Sachs on Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles @StephenESachs @HarvardJLPP

Stephen E. Sachs, Harvard Law School, is publishing Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles in the Harvard Journal of Law and Public Policy. Here is the abstract.

The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders’ ideals as less valuable and their failings as more salient. These reckonings are necessary, but they also risk missing something important: a richer and more human understanding of the past, together with a recognition of the great good that the American Founding achieved, here and elsewhere. This Essay discusses how we ought to understand the Founders’ historical legacy—and why we might respect and indeed honor their contributions with open eyes.

Download the essay from SSRN at the link.

Sheikh on "Betty, I Won't Make Assumptions": The Narrative Jurisprudence of Taylor Swift @dsheikh726 @latrobelaw

Danish Sheikh, LaTrobe Law School, is publishing ‘Betty, I Won’t Make Assumptions’: The Narrative Jurisprudence of Taylor Swift in volume 26 of the Media and Arts Law Review. Here is the abstract.

In the early months of the pandemic, Taylor Swift released her 8th studio album. For a songwriter known for her diaristic body of work, Folklore was a notable stylistic departure. The album was marked by Swift’s attempt to incorporate other voices into her storytelling, written from the perspectives of figures both real and fictional. Amongst the most widely discussed elements of Folklore is a love triangle told over the course of three songs: ‘Cardigan’, ‘August’ and ‘Betty’. Each song is written from the vantage point of a different character, with intertextual references to the other songs filling in the gaps of the story and providing a connecting thread. In this article, I approach Folklore and its central love triangle for the jurisprudential lessons it might offer. A jurisprudent is someone who develops a persona which cares for the conduct of lawful relations. In this article, I ask what forms of training Swift might provide to those of us who care about law. In particular, I approach Swift as a narrative jurisprudent, focusing on how she goes about crafting different personae, how she attempts to take responsibility for each of these personae, how she trains herself through the act of writing other selves, and how she trains her audience to listen well. I place each of these lessons in the context of Swift’s broader oeuvre as a songwriter, while also making a case for how they teach us to better take responsibility for law.

Download the article from SSRN at the link.

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

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

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

Download the Essay from SSRN at the link.

Sapienza University of Rome Hosts Fourth Summer School: The Cultural Heritage and Memory of Totalitarianism, June 16-June 27, 2025

The Department of Literature and Modern Cultures of Sapienza University of Rome will host the fourth edition of the Summer School The Cultural Heritage and Memory of Totalitarianism between June 16 and June 27, 2025. The in-person summer course provides a unique opportunity for graduate students and early career junior professionals to explore the cultural, visual and literary legacy of totalitarian regimes and their transnational heritage and memory. This year’s edition will have a special focus on memory and postmemory.

The School combines lectures and seminars with in situ visits to the many sites of the memory of fascism and colonialism in the city of Rome. All activities are led by international experts in fields such as Comparative History, Postcolonial Literature, Visual Arts, Diaspora, Conservation and Museum Studies. You can find the program here.

For further information, please visit the website of the Summer School or write to summerschoolculturalheritage.lcm@uniroma1.it.

Dane on Thoughts on the Architecture of Freedom of Religion and Freedom of Speech @perrydane

Perry Dane, Rutgers Law School, Thoughts on the Architecture of Freedom of Religion and Freedom of Speech, in the Notre Dame Law Review Reflection. Here is the abstract.

One goal of this paper is to try to give a holistic account of the structure of freedom of religion and freedom of speech, and their relation to each other. The paper describes a set of important but delicate analytic assumptions and distinctions that have traditionally organized these doctrines. It also tries to explain how those assumptions and distinctions have been coming under increasing pressure, especially dur to our current state of political polarization. The paper then applies those ideas, through the lens of Justice Jackson’s important anthropological insights in West Virginia State Board of Education v. Barnette, to gain a better understanding of the difficulties inherent in cases such as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the right of a website designer to refuse to design a wedding website for a same-sex couple.

Download the essay from SSRN at the link.

Rubin and Elinson on Anatomy of Judicial Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954-1958 @LSI_Journal @NIU_Law @UChicagoPoliSci

ICYMI: Ruth Bloch Rubin, University of Chicago, and Gregory Elinson, Northern Illinois University College of Law, have published Anatomy of Judicial Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954–1958 at 43 Law & Soc. Inquiry 944 (2018). Here is the abstract.

Exploiting a range of archival materials, we argue that state-level variation in judicial backlash to Brown was as much the result of strategic choices by southern political elites as it was the ingrained prejudices of the region’s white voters. Presenting case studies of massive resistance in Mississippi, Louisiana, Virginia, and Arkansas, we show that elite agency profoundly shaped the patchwork development of grassroots resistance to integration across the South. These findings challenge the prevailing view that backlash to Brown signaled the unequivocal triumph of racial conservatives. Rather, we argue that the region’s response offered individual members of the southern elite significant autonomy to direct massive resistance in their home states. We also argue that southern lawmakers were responsible for the South’s embrace of popular constitutionalism post-Brown, and thus that it may not have been “popular” at all. We conclude that studies of judicial backlash would do well to reevaluate the assumption that backlash is necessarily a grassroots phenomenon.

Download the article from SSRN at the link..

Stipanowich on Malice Toward None; Charity For All: Lincoln's Vision of Reconciliation For All Americans @PeppLaw

Thomas Stipanowich, Pepperdine University School of Law, has published Malice Toward None; Charity for All: Lincoln’s Vision of Reconciliation for All Americans as Pepperdine University Legal Studies Research Paper No. 2024/19. Here is the abstract.

The towering rhetoric of Lincoln’s second inaugural address, delivered in the final months of our country’s bloodiest conflict, framed a vision of the future focused on mutual healing and understanding. However, the achievement of Lincoln’s vision was complicated by the centuries-old common heritage that had divided the nation: Black slavery. Due in large part to Lincoln’s leadership, millions of enslaved Black Americans were now free, and Lincoln’s vision of reconciliation included them all. The premise of this article is that in the course of piloting the ship of state through treacherous waters, Lincoln balanced and juggled a trio of priorities--restoration of the Union, limiting Black slavery, and reconciling his fellow Americans—priorities that, depending on the circumstances, might be mutually reinforcing or in tension. Although Lincoln had long believed that slavery was a great moral wrong, it was not until the second year of his presidency that he decided that in order to restore the integrity of the Union he had to proclaim the emancipation of slaves in the Southern Confederacy—a decision driven by moral as well as pragmatic considerations, and paralleled by his own spiritual journey. The Emancipation Proclamation transformed the character of the Civil War, altering the playing field and dramatically raising the stakes for the slaveholding interests and causing many in the South to see Lincoln as the symbol of an oppressive North, a tyrant who by freeing Black slaves was effectively enslaving Southern whites. Yet throughout the war, paradoxically, Lincoln harbored hopes of promoting reconciliation. For Lincoln, this ultimately meant acknowledging the truth that slavery was the tragic joint inheritance of Americans North and South and that justice demanded its abolition whatever the cost; with this goal accomplished, the way could be open for all Americans to extend mercy to one another and live in peace. Lincoln understood that these goals might not be achieved in his lifetime, but strove mightily nonetheless. The same challenge remains for us today.

Download the essay from SSRN at the link.

Cui on False Idols in the Early History of International Taxation @AllardLaw

Wei Cui, University of British Columbia Faculty of Law, has published False Idols in the Early History of International Taxation. Here is the abstract.

A careful reading of recent scholarship on the early history of international taxation, especially on the League of Nations' work on "double taxation," ought to have dislodged many myths about this history. But more often than not, such scholarship is taken to offer mere details without altering our fundamental understanding. This paper suggests that this reception reflects a longstanding pattern in discourses about international taxation: participants perpetuate or cling onto narratives that are easily seen to be false. The paper exposes this pattern by summarizing evidence for four rarely-acknowledged conclusions about the League's output on international taxation. First, rather than advancing any agreed proposal, the 1923 "Four Economists Report" reflected fundamental disagreements (in both theory and practice) between the world's then two leading capital exporters, the U.S. and Britain. Second, the League's 1925 Technical Experts Report substantially changed the topic from the Four Economists Report. By focusing on coordination conventions among countries imposing only source-based taxation, it offered little of interest to the U.S. and Britain, and rendered international agreement even more difficult by conflating distinct policy issues. Meanwhile, it launched an institutional narrative that, whatever the problems of international taxation were, the League offered relevant solutions. Third, this narrative began to allow lobbyists like Mitchell Carroll to advance business interests under the League's disguise in the 1930s. Fourth, by the time of the Mexico Model, "the League's" double taxation work served little more than narrow institutional and personal interests. In each of these last three stages of the League's work, despite the lack of genuine intellectual continuity, parties appealed to earlier League outputs to legitimize their own (often questionable) pursuits. This practice continued in the activities of the Organisation for European Economic Cooperation in the 1950s, and one suspects that it is even more significant today. The paper suggests that the durability of this practice may be attributable to both ambiguous principal-agent relationships in the context of weak international organizations sponsoring informal norm setting, and persistent intellectual confusion about the subject of international taxation.

Download the article from SSRN at the link.

Reid on Good Policing Practices Are Difficult, Even For the Avengers @LMUtweets

Melanie Reid, Lincoln Memorial University Duncan School of Law, has published Good Policing Practices Are Difficult, Even for the Avengers.  Here is the abstract.

Policing, as a topic, is complicated. Many have strong views as to what police should or should not be doing and how effectively they are doing it. Too often policing has become polarized with various perspectives disagreeing as to the future of policing. Black Lives Matter, Defund the Police, and Policing Abolition movements are on one spectrum compared to the Blue Lives Matter Movement or other mayoral or police union initiatives. This is clearly a time to collaborate and learn from the various perspectives to bring hope and change in the future. Lawyers, academics, community members, and police officers alike are all asking the same question: how can we contribute to the national effort to examine and address issues in policing and public safety, including conduct, oversight, and the evolving nature of police work? This Article seeks to explore the realities of policing in a novel way and make overall suggestions to support effective policing. The Article will examine several policing practices by evaluating the Avengers as a police department in the Marvel Cinematic Universe (“MCU”) and look to the various perspectives in policing to do so. The Article will utilize (and criticize) this fictitious police department in order to touch upon several themes relevant to policing today: the concept of policing (the importance of structure and its leadership team), the community policing philosophy, police training, strategies and tactics used to reduce crime, the policing culture problem-oriented policing (hots spots and predictive policing), police oversight, implicit bias, use of force, and current recruitment policies in place. Our perspectives on policing are shared in part by our opinions about what the police are supposed to do and how police go about doing their job. Using one of the highest grossing media franchises of all time to compare and contrast police department practices will allow the reader to get a sense of where we are currently as it relates to current practices and police culture and where we want to be in the future. The infinity stones displayed in Avengers’ Infinity War and Endgame serve as a perfect catalyst to explore the types of changes the readers, as future lawmakers and policymakers, might want to think about in the future. The structure and values of society itself (through the lens of the Avengers’ movies) can shape what police do and how the policing institution is organized. Most importantly, policing is all about relationships—relationships with the community, with other players in the criminal legal system, and within their own departments. The characters in the MCU display those relationships in every aspect and remind us of our own flaws and hope for the future when we collaborate and work together toward positive solutions to an incredibly complicated problem—fixing the criminal legal system.

Download the article from SSRN at the link.

Stolzenberg on The Legal Imagination and the Protestant (Dis) Establishment @nomideplume1 @USCGouldLaw

Nomi Maya Stolzenberg, University of Southern California School of Law, has published The Legal Imagination and the Protestant (Dis) Establishment. Here is the abstract.

The Legal Imagination is a quintessentially liberal imagination–or, to borrow Trilling’s term, The Liberal Imagination. As such it is intimately related to what once was widely referred to as the Liberal Establishment, otherwise known as the Eastern Establishment or, more significantly, the Protestant Establishment. In this essay, I take seriously the Protestant dimension and the intellectual dimension of “the Establishment” and the broader Protestant intellectual culture of which, I argue, White’s book is a part. I locate the book in the transformations that were taking place in American intellectual and political culture in the turbulent years of its birth (the 1960s and early 1970s), and in the longer history of religious disestablishment and of liberal Protestantism’s battles with non-mainline Protestantism, on the one hand, and Catholicism, on the other. Focusing on a pivotal event that took place on the Cambridge Common, whose phantom hovers entre les lignes of one of the readings that appears in the book—an anti-war protest that turned violent—this essay considers the extent to which the conservative legal movement has been shaped by the conservative attack on the liberal establishment that emerged in this time period, in particular, conservative Catholic and fundamentalist Protestant attacks on the liberal establishment and on the liberal (Protestant) imagination so beautifully rendered in James Boyd White’s instructional book.

Download the essay from SSRN at the link.

Marmor on How Art Is Like Law @CornellLaw

Andrei Marmor, Cornell University Law School, has published How Art is Like Law as Cornell Legal Studies Research Paper No. 24-13. Here is the abstract.

What makes something a work of art? Can we answer this question in a philosophically satisfactory way? I think that we can, as long as we understand the question as one about metaphysical grounding. One of the main arguments of this paper is to show that any plausible metaphysical grounding of artworks is going to pull in the direction of an institutional theory of art: An artifact is a work of art in virtue of its being identified and engaged with as such by the relevant community. Now, to legal philosophers this should sound very familiar, and that is really the main point of this essay. In jurisprudence we call this view legal positivism, and the point is that from a metaphysical perspective, the views are basically the same: certain types of artifact are art, or law, respectively, solely in virtue of an intricate convergence of conduct and attitudes that obtain in a certain population. The argument proceeds in three main stages: First it aims to show that the question about what makes things works of art, just like the very similar question about law, is best understood in terms of metaphysical grounding. Second, it argues that from this philosophical perspective -- asking in virtue of what, metaphysically speaking, an object is a work of art -- the answer of the institutional theory is eminently plausible: The gist of it is that something is an artwork, when it is, in virtue of the fact that it is considered to be art by a certain population, an artworld community. Finally, the paper argues that the grounding account can help us to answer some of the objections to the institutional theory, both in art and at least indirectly, by analogy, in law as well. Eventually, I hope to show that thinking about ways in which art is like law tells us something interesting about the nature of both.

Download the article from SSRN at the link.

Lively on Historical Custom and the Custom House: How Custom House Governance From 1789 to the Early 1800s Contradicts a Strong Nondelegation Doctrine

Matthew Lively, University of Chicago Law School, has published Historical Custom and the Custom House: How Custom House Governance from 1789 to the Early 1800s Contradicts a Strong Nondelegation Doctrine in the University of Chicago Business Law Review Online Edition '24. Here is the abstract.

The nondelegation doctrine, that Congress cannot delegate its legislative powers or lawmaking abilities to other entities, is front and center as the Supreme Court readies to weaken or dismantle the modern administrative state. This article provides a historical argument that the nondelegation doctrine did not enjoy pre-eminence during the Founding, as some originalists, including the respondents in Securities and Exchange Commission v. Jarkesy, claim. Federal custom house governance from 1789 to the early 1800s, which nearly unilaterally funded the government, was largely nominally directed by both Congress and the executive and was characterized by broad discretion.

Download the essay from SSRN at the link.

Kerr on Reckless Speech in the Shadow of the Constitution @PKUSTL @SHULawReview

Andrew Jensen Kerr, Peking University School of Transnational Law, is publishing Reckless Speech in the Shadow of the Constitution in volume 55 of the Seton Hall Law Review. Here is the abstract.

In this Article, I explore the question of whether and to what extent a seeming threat may be justified by its potential social utility. This past summer, in Counterman v. Colorado, the U.S. Supreme Court held for the first time that the First Amendment requires a threats statute to include at minimum a “recklessness” mental state. This clarification was long overdue. However, Justice Kagan’s majority opinion ignored an important sense of how and why people express themselves, so as to make art. In concurrence, Justice Sotomayor observes how rap (in constitutional terms, “art speech”) can be misinterpreted when a speaker does not share the same cultural background as her audience. I connect this art speech dilemma to an undertheorized aspect of criminal law: how to interpret the normative component of our recklessness mens rea test that evaluates whether an actor took an unjustified risk of causing harm. Missing from Counterman, and the broader literature, is an analysis of whether making provocative art, or attempting to make provocative art, is at all justified by the constitutional status of the speech act and how it may further the underlying value system of the First Amendment. The rub for the First Amendment is that one of its basic purposes is to protect speech that we don’t like very much. This creates a very complicated analysis for the juror who is tasked with resolving whether, in my terms, a superficial threat is not-so-unjustified so that the speaker does not merit punishment. Delegating this kind of loaded question to a lay juror invites legal process concerns, like those framed by constitutional fact doctrine. But, in the end, I suggest that these academic concerns may have negligible consequence. Jurors can still rely on their folk sense of criminal responsibility when making culpability evaluations in the shadow of the Constitution, where speech crimes like true threats reside.

Download the article from SSRN at the link.

Nicastro on Redefining Women's Subjectivity Between Law and Revolution: A Foucauldian Analysis of Olympe de Gouges' 1791 Declaration of the Rights of Woman and Female Citizen @alessia_ncs @GVAGrad

Alessia Nicastro, Geneva Graduate Institute, has published Redefining Women's Subjectivity Between Law and Revolution: A Foucauldian Analysis of Olympe de Gouges' 1791 Declaration of The Rights of Woman and Female Citizen. This paper has been accepted and presented by the author at the 11th International Conference on Gender and Women's Studies held on 13th July 2024 online, organized by the University of Mumbai, the International Center for Research and Development (ICRD), and Unique Conferences Canada. Here is the abstract.

This contribution investigates how Olympe de Gouges' "Declaration of the Rights of Woman and of the Female Citizen” (1791) contributed to reshape women’s subjectivity in international law and to advance a feminist vision of this field. Drawing upon Foucault's notions of subject, power, and resistance, this paper analyses how De Gouges' Declaration functioned as a political and discursive tool that disrupted the dominant gender relations of power embedded in legal discourses of the time. By claiming women's equality and citizenship, de Gouges’ work paved the way to the recognition of women as both political and legal subjects. The author concludes that de Gouges' Declaration was pivotal for revealing the androcentric character of the embryonic human rights law (which were only les droits de l'homme) and for highlighting the inherent contradictions in the Revolutionary ideals of equality, citizenship, and freedom.

Download the paper from SSRN at the link.

Wieboldt on Natural Law Appeals as Method of American-Catholic Reconciliation: Catholic Legal Thought and the Red Mass in Boston, 1941-1944 @DennisWieboldt @NotreDame

Dennis J. Wieboldt, III, University of Notre Dame, has published Natural Law Appeals as Method of American-Catholic Reconciliation: Catholic Legal Thought and the Red Mass in Boston, 1941-1944 at U. S. Catholic Historian 41 (2023). Here is the abstract.

Amid the Second World War, the Boston College Law School and the Archdiocese of Boston co-sponsored the first Red Mass in New England. Though this liturgy had been celebrated for centuries to invoke divine guidance for legal administrators, the Red Mass tradition emerged in Boston during a particular American Catholic intellectual movement. This movement encouraged Catholic and non-Catholic legal practitioners to predicate their understandings of the American legal tradition on the Natural Law philosophy of Thomas Aquinas and, purportedly, the Founding Fathers. By employing the movement's intellectual resources during Red Mass sermons, Boston's Catholic leaders believed they could demonstrate the philosophical Americanness of U.S. Catholicism. Chiefly responsible for the Red Mass tradition's emergence and sustained influence in Boston was Father William J. Kenealy, S.J., Boston College Law School's dean (1939-1956). The history of the first four Red Masses in Boston suggests that the experience of wartime significantly informed Catholic leaders' postwar conviction that appealing to the Natural Law could offer an effective medium for American-Catholic reconciliation.

Download the article from SSRN at the link.

ICYMI: The Cabinet of Imaginary Laws (Routledge Publishing, 2021) @routledgebooks

ICYMI: The Cabinet of Imaginary Laws: (Peter Goodrich and Thanos Zartaloudis, eds., Routledge, 2021) (Discourses of Law). Here from the publisher's website is a description of the book's contents.

Returning to the map of the island of utopia, this book provides a contemporary, inventive, addition to the long history of legal fictions and juristic phantasms. Progressive legal and political thinking has for long lacked a positive, let alone a bold imaginary project, an account of what improved institutions and an ameliorated environment would look like. And where better to start than with the non-laws or imaginary legislations of a realm yet to come. The Cabinet of Imaginary Laws is a collection of fictive contributions to the theme of conceiving imaginary laws in the vivid vein of jurisliterary invention. Disparate in style and diverse in genres of writing and performative expression, the celebrated and unknown, venerable and youthful authors write new laws. Thirty-five dissolute scholars, impecunious authors and dyspeptic artists from a variety of fields including law, film, science, history, philosophy, political science, aesthetics, architecture and the classics become, for a brief and inspiring instance, legislators of impossible norms. The collection provides an extra-ordinary range of inspired imaginings of other laws. This momentary community of radial thought conceives of a wild variety of novel critical perspectives. The contributions aim to inspire reflection on the role of imagination in the study and writing of law. Verse, collage, artworks, short stories, harangues, lists, and other pleas, reports and pronouncements revivify the sense of law as the vehicle of poetic justice and as an art that instructs and constructs life. Aimed at an intellectual audience disgruntled with the negativity of critique and the narrowness of the disciplines, this book will appeal especially to theorists, lawyers, scholars and a general public concerned with the future of decaying laws and an increasingly derelict legal system.

Sciullo on Defending Critical Race Theory @nickjsciullo

Nick J. Sciullo, Texas A&M University, has published Defending Critical Race Theory. Here is the abstract.

Recent attacks on Critical Race Theory (CRT) have caused wide-ranging discussions about CRT in a diverse number of disciplines, throughout all grade levels, and around the world in media. While CRT adherents have long wished for more engagement with CRT, the recent firestorm of attacks has been surprising at best, and horribly worrisome and frightening at worst. Efforts to ban CRT in schools, while likely not having much effect given the improbability that CRT is taught in any K-12 schools, have politicized CRT in new ways (though like all education, it was always political). Moreover, this engagement is clearly not in ways that many of us writing in or about this tradition imagined, yet the increasing politicization of CRT has raised interest in the theory well beyond the colleges, universities, and graduate and professional schools where it was, at best, occasionally taught. Arguably, conservatives created a debate where there is none and was none. Or, as Donald Earl Collins puts it, this is a discussion not about CRT, but rather about “critical race fact.” This Article sets out to defend CRT from the criticisms levied by conservative and Republican politicians in the United States as well as other pundits and pontificators. These criticisms have always existed, but they have now been taken up in popular media in a confusing menagerie of political fervor. Of course, the criticisms of CRT are almost always based on a misunderstanding of the idea. Each Part below takes up a different criticism and presents evidence that the criticism is simply not true by using both what critical race theorists have written, as well as what others who have experience teaching it in the United States’ schools, colleges, and universities have claimed. It is possible, one supposes, that the country’s alleged critical-race-teaching kindergarten teachers are covertly inserting CRT into our five-year-olds’ lessons on colors, but this seems unlikely.

Download the article from SSRN at the link.

Law, Culture, and the Humanities Conference, 2025: Call For Papers @Law_Cult_Huma

Call For Papers: Law, Culture, and the Humanities Conference, 2025

Every year, the Association holds it annual conference, usually a two-day affair, as well as a graduate student workshop, usually held on the day before the annual conference. The 2025 annual meeting will be held at Georgetown Law from June 17-18th. The theme of the conference, our call for papers, and submissions guidelines can be found below:

 

Speech Matters We live in a golden or an iron age, depending on one’s point of view, for laws regulating speech. The COVID-19 pandemic forced governments around the world to reckon with floods of dis- and misinformation. The global rise of the far right has brought with it a need for new legal tools to combat threats, harassment, and hate speech. And in the United States, state and local governments have attempted to suppress speech by or about unpopular subjects through means ranging from book bans to felony prosecutions. For this year’s Law, Culture, and Humanities Annual Conference, we invite papers on how the law conceptualizes, regulates, commodifies, or instrumentalizes speech (broadly defined not just as language but as expressive activity). In particular, we welcome papers that use humanistic tools for making sense of speech and expression—concepts from rhetoric, narrative theory, aesthetics, genre studies, and more—to tackle new or persistent legal puzzles.

 

Submission Guidelines We encourage the submission of fully constituted panels, as well as panels that reimagine or experiment with models for academic presentation, such as roundtables, author meet reader sessions (which may include multiple books and their authors in conversation), collaborative presentations, multi-panel streams, etc. Individual proposals should include a title and an abstract of no more than 250 words. Please note that online presenters should organize a full panel (we will not be accepting individual papers for online presentations this year) and that, though we traditionally accept most papers, we may need to limit the number of online panels we accept, depending on demand. Panels, whether virtual or in-person, should include three papers (or, exceptionally, four papers). Please specify a title and designate a chair for your panel. The panel chair may also be a panel presenter. It is not necessary to write an abstract or proposal for the panel itself. To indicate your pre-constituted panel, roundtable, or stream, please ensure that individual registrants provide the name of the panel and the chair in their individual submissions on the registration site. All panel, roundtable, or stream participants must make an individual submission on the registration site. When submitting a proposal, we also ask that registrants identify two keywords to help us align sessions with each other.

 

Mode The twenty-seventh annual conference will emphasize the LCH tradition of in-person conversation. While we encourage participants to join us in Washington, D.C., we recognize that in-person attendance may be prohibitive for some. To that end, we will also accept the submission of virtual panels. Since we will not be providing technical support for virtual participants, panel chairs will be responsible for providing Zoom links that will be listed in the program. All plenary sessions will be available streaming online as well as in person.

 

How to Submit? Submissions may be made through our website: https://lawculturehumanities.com/event/2025-twenty-seventh-annual-confer...

 

Creating a Panel: Contact Our Graduate Coordinators Early While participants may submit individual paper proposals that the Program Committee will later combine into full panels, we strongly encourage applicants to create full panels prior to submission. Pre-formed panels may cohere better, and allow collaborators to craft focused scholarly exchanges. Panels comprising a diversity of institutions, academic ranks, disciplines, and identities are often the most rewarding. If you would like support in finding others who might be interested in forming a panel, please contact our Graduate Coordinators, Aditya Banerjee (adityabanerjee@g.harvard.edu) and Jack Quirk (john_quirk@brown.edu) with “LCH panel” in the subject line. The Graduate Coordinators will act as intermediaries, and may be able to put you in contact with others working on related topics. We especially encourage graduate students and those new to LCH to consider reaching out to the Graduate Coordinators if they’re struggling to identify potential co-panelists. Please contact them well before the submission deadline, to allow time for follow-up.

 

Submission Deadline The deadline for all conference submissions is January 31, 2025. Contact Information Please email lch@lawculturehumanities.com with any queries. categories

Call For Papers: Hugo and the Law, Maastricht University Faculty of Law, May 8, 2025

Call for Papers; Hugo and the Law, Maastricht University Faculty of Law, Masstricht, the Netherlands, May 8, 2025.

On the occasion of the 150th anniversary of the publication of the first volume of Actes et Paroles, the collection of Victor Hugo’s political speeches, the UM Law and Popular Culture Research Network organizes a Workshop on 8 May 2025 dedicated to the author’s conceptualization of several legal issues. The Workshop will take place at the Faculty of Law of Maastricht University (The Netherlands), with a fully in-person program.

Goal and Background of the Workshop.  In his several works, Victor Hugo has often delved into profound perspectives into the relationship between humanity and the law. Hugo was not merely a renowned novelist but a visionary thinker who engaged with multiple societal issues, including the intricacies of the legal system, the condition of women, the rise of socialism, and the future of Europe. On the 150th anniversary of the publication of Actes et Paroles – which perfectly captures such themes– this Workshop aims to examine Hugo’s conception of the law.

Hugo’s conception of the law is multifaceted, encompassing both its theoretical foundations and its practical implications. His writings often reflect a deep concern for the struggle for power and the ethical responsibilities of institutions. Through an examination of Hugo’s literary corpus, the Workshop will explore how his books’ characters grapple with the complexities of law and its impact on individuals and society. One key aspect of the Workshop is Hugo’s emphasis on the moral dimension of the law. His characters navigate questions of morality, duty, and conscience by their interactions with legal systems. At the same time, the Workshop will address Hugo’s critique of the legal machinery, shedding light on his observations regarding the potential for injustice and the abuse of power. Furthermore, this Workshop will investigate the historical context in which Hugo lived and wrote, considering the political and social upheavals that influenced his views on the law. From the aftermath of the French Revolution to the establishment of the Second French Republic, through the rise and fall of the Empire of Napoleon III, until the experience of the Commune, Hugo’s observations of the evolving legal landscape are integral to understanding his perspective on the nature of power, the State and the foundations of Europe, and the condition of women.

By examining the philosophical, historical, and theoretical underpinnings and practical implications of Hugo’s thoughts on law, the Workshop aims to illuminate the enduring relevance of his insights and their potential to inspire contemporary discussions on law and justice.

Abstract Submissions.  The “Hugo and the Law” Workshop will feature panel sessions. Submissions should relate to the overarching theme of the Workshop.

Submissions should indicate the title of the contribution, an abstract (max. 400 words), and the contact information and a short biography of the speaker (max. 150 words). Fully written papers are not required. We encourage submissions in English, and co-authored papers will be also considered.

Who Can Participate in this Workshop?  The “Hugo and the Law” Workshop is not restricted to lawyers. We welcome proposals that offer multi-disciplinary perspectives from various areas of law (including civil, criminal, tax, and labor law), as well as from scholars in e.g. the humanities and other social sciences (e.g. history, economics, political science, sociology) with an interest in the Workshop’s theme. We welcome submissions from senior and junior scholars (including doctoral students) and interested practitioners.

How and When to Submit?  Send your submission to agustin.parise@maastrichtuniversity.nl.  The Call for Papers closes on 22 December 2024. Shortly after that, the authors will be informed whether their papers are selected for a presentation during the Workshop.

Conference Organizing Committee.  Should you have any questions please do not hesitate to contact a member of the Workshop Organizing Committee:

Eline Couperus(e.couperus@maastrichtuniversity.nl)
Agustín Parise (agustin.parise@maastrichtuniversity.nl)
Franco Peirone (franco.peirone@maastrichtuniversity.nl)
Livia Solaro (l.solaro@maastrichtuniversity.nl)
Arthur Willemse (arthur.willemse@maastrichtuniversity.nl)