Call For Applications, Institute for Interdisciplinary Legal Studies, 2026

From Steven Howe, Associate Director for Institute for Interdisciplinary Disciplinary Legal Studies, Lucernaiuris.

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Call for Applications: Critical Times 2026 – Bodies

 

“Why all the fuss about the body?” Caroline Bynum first posed this provocation in the mid-1990s, prompted by a “proliferation” of new writings and theorizations, including then-recent and now-classic works by Judith Butler, bell hooks and Susan Bordo. Looking back some three decades on, we see that the ‘fuss’ was no temporary flare-up or mere passing fad. Rather, it was symptomatic of an emergent ‘bodily turn’ that has, in the years since, moved the terminology of bodies – real, imagined and metaphorical – to the foreground of critical thinking across law and the humanities.

 

The fruits of this turn need no special elaboration. Interventions in critical theory, performance studies, affect theory, Black studies, feminist and queer theory, posthumanism and new materialist studies have given us an array of new vocabularies and insights to bring to bear on our thinking about bodies, their meanings, entanglements and limits. The body, in Rizvana Bradley’s phrase, has become a “discursive meeting ground” for an “unwieldy multitude of concepts and debates, affects and afflictions, conflicts and contestations”, the distinctive expressions of which span multiple fields, disciplines and cultures. While not always clear whether these numerous articulations work in tandem or at cross-purposes, they have, in their very plurality, fostered a deeper engagement with, and problematization of, the “matter of bodies” (Butler). Our present moment – marked by demographic convulsions, war, enhanced practices of surveillance, ubiquitous mobile media, posthuman subjectivities, and new forms of political protest and social movements – urges us, meanwhile, to ‘fuss’ further: to give continued and renewed care to re/thinking the significance of bodies in various contexts, situations and relations. Or to ask more pointedly: do bodies still matter? And if so, why, when and how? 

 

In this spirit, the 2026 Critical Times summer school invites emerging scholars in law and the humanities to gather anew around the theme of ‘Bodies’. Together, we will think about bodies that assemble and disassemble, that appear and disappear, that are protected, punished, cared for, and ignored. From the vulnerable to the resistant, the human to the more-than-human, we ask how legal and cultural frameworks make some bodies visible and others invisible – and how embodiment, performance and affect shape and unsettle our legal imaginaries. 

 

Open to postdocs, PhDs and advanced graduate students from different disciplinary and interdisciplinary backgrounds, the aim is to create a live and lively space of inquiry and creativity – a temporary assembly of thinking, feeling, and embodied scholarship. 

 

Deadline: 20 March 2026. Further details here.

 

Contact: steven.howe@unilu.ch

 

 

Call for Applications: Critical Times 2026 – Bodies

 

“Why all the fuss about the body?” Caroline Bynum first posed this provocation in the mid-1990s, prompted by a “proliferation” of new writings and theorizations, including then-recent and now-classic works by Judith Butler, bell hooks and Susan Bordo. Looking back some three decades on, we see that the ‘fuss’ was no temporary flare-up or mere passing fad. Rather, it was symptomatic of an emergent ‘bodily turn’ that has, in the years since, moved the terminology of bodies – real, imagined and metaphorical – to the foreground of critical thinking across law and the humanities.

 

The fruits of this turn need no special elaboration. Interventions in critical theory, performance studies, affect theory, Black studies, feminist and queer theory, posthumanism and new materialist studies have given us an array of new vocabularies and insights to bring to bear on our thinking about bodies, their meanings, entanglements and limits. The body, in Rizvana Bradley’s phrase, has become a “discursive meeting ground” for an “unwieldy multitude of concepts and debates, affects and afflictions, conflicts and contestations”, the distinctive expressions of which span multiple fields, disciplines and cultures. While not always clear whether these numerous articulations work in tandem or at cross-purposes, they have, in their very plurality, fostered a deeper engagement with, and problematization of, the “matter of bodies” (Butler). Our present moment – marked by demographic convulsions, war, enhanced practices of surveillance, ubiquitous mobile media, posthuman subjectivities, and new forms of political protest and social movements – urges us, meanwhile, to ‘fuss’ further: to give continued and renewed care to re/thinking the significance of bodies in various contexts, situations and relations. Or to ask more pointedly: do bodies still matter? And if so, why, when and how? 

 

In this spirit, the 2026 Critical Times summer school invites emerging scholars in law and the humanities to gather anew around the theme of ‘Bodies’. Together, we will think about bodies that assemble and disassemble, that appear and disappear, that are protected, punished, cared for, and ignored. From the vulnerable to the resistant, the human to the more-than-human, we ask how legal and cultural frameworks make some bodies visible and others invisible – and how embodiment, performance and affect shape and unsettle our legal imaginaries. 

 

Open to postdocs, PhDs and advanced graduate students from different disciplinary and interdisciplinary backgrounds, the aim is to create a live and lively space of inquiry and creativity – a temporary assembly of thinking, feeling, and embodied scholarship. 

 

Deadline: 20 March 2026. Further details here.

 

Contact: steven.howe@unilu.ch

 

 

Forthcoming: Daniel Newman, Law and Justice in Song (Routledge Publishing, 2026)

Forthcoming:

Daniel Newman, Law and Justice in Song: Murder Ballads and Popular Music (Routledge Publishing, 2026)(Transforming Legal Histories).

Here from the publisher's website is a description of the book's contents.

This book examines the murder ballad form, songs about death and killing, from a legal history perspective. It is held that taking on the long history of the murder ballad is a way that we can understand how death and killing in song has a function in dealing with the world around us. The book integrates law and humanities scholarship with diverse musical case studies to construct a typology of murder ballads and thus conceptualise the central messages of how murder ballads have treated death and killing. Drawing on a cultural form in which assessment and consideration of death and killing are so vigorously and richly enacted gives lawyers a guide to how those who do not see these matters through a primarily legal lens might understand this part of their world. The study will be of interest to academics and researchers working in the areas of Criminal Law, Legal History, Socio-Legal Studies, Criminology, and Musicology.

 

Here's a short bibliography of secondary sources on murder ballads (there are so many!)

Burt, Olive Woolley, Murder Ballads of Mormondom, 18 Western Folklore 151 (1959).

Kane, Stuart A., Wives With Knives: Early Modern Murder Ballads and the Transgressive Commodity, 38 Criticism 219 (1996).

Mulligan, Roark, Dreiser's Murder Ballad, 3 Studies in American Naturalism 22 (Summer 2008).

Daniel Newman, Murder Ballads and Death in Song, 46 Australian Feminist Law Journal 17 (2020). 

O'Brien, Ellen, "The Most Beautiful Murder": The Transgressive Aesthetics of Murder in Victorian Street Ballads, 28 Victorian Literature and Culture 15 (March 2000).

Pettitt, Thomas, Journalism vs. Tradition in the English Ballads of the Murdered Sweetheart, in Ballads and Broadsides in Britain (Routledge, 2010).

Underwood, Richard H., and Carol J. Parris, CrimeSong: Some Murder Ballads and Poems Revisited, 12 Journal of Southern Legal History History 5 (2004).

Website: Murder by Gaslight.

Eisenberg and Lamoreaux on Separation of Powers or Division of Labor? Patent Interference Disputes, the Grand Narrative, and the History of the Administrative State, 1790-1940

Rebecca Eisenberg, University of Michigan Law School, and Naomi R. Lamoreaux, Yale University; National Bureau of Economic Research; University of Michigan Law School, have published Separation of Powers or Division of Labor? Patent Interference Disputes, the Grand Narrative, and the History of the Administrative State, 1790-1940. Here is the abstract. NB: There are 2 versions of this paper

We use the history of the Patent Office to challenge the Grand Narrative of separation of powers that the current Supreme Court is using to invalidate congressional designs for administrative agencies. Focusing on the adjudication of patent interference disputes—cases in which two or more inventors applied for patents for essentially the same technology—we find that the division of labor between the Patent Office and the courts shifted repeatedly and dramatically over the century and a half preceding the Administrative Procedure Act. Rather than worries about separation of powers, the main drivers of change were (1) the Patent Office’s efforts to curb inventors’ exploitation of interference procedures to delay the award of patents to rivals and (2) the need to manage the workload that interference appeals imposed on the overburdened Patent Office and courts. Innovations in Patent Office procedures led to dramatic improvements in the efficiency of its frontline adjudication of interferences, but officials found it much more difficult to prevent losing parties from abusing appeals opportunistically. At the behest of the Patent Office, Congress repeatedly revised the appeals process for interferences, trying out direct review by ad hoc arbitration panels, individual judges, and variously constituted courts. It even eliminated direct appeals of interference decisions from 1870 until 1893, while continuing to provide for appeals from rejections of patent applications (where opportunistic delays posed less serious problems). Although interference parties sometimes raised legal challenges to these review structures, they reached a dead end in the Supreme Court, which throughout the nineteenth century deferred to Congress’s authority to design the system. Finally, in 1939, after a century of trial and error, the Patent Office convinced Congress to eliminate all internal appeals in interference cases within the Patent Office, to authorize the Patent Office to issue patents based on its frontline adjudications of priority, and to shift review of interference decisions entirely to the courts. Again, this change did not apply to rejections of patent applications, which were still reviewed internally before they could be appealed to the courts. Both the great variety of appeal structures enacted over the years and the repeated divergence in the treatment of appeals of interferences and rejections support our emphasis on the primary role that pragmatic concerns played in the evolving division of labor between the Patent Office and the courts. This history reveals flexible adaptation over time rather than conformity to a standard model of separation of powers traceable to the framers.

Download the article from SSRN at the link.

Forthcoming from Princeton University Press: Carla Hesse, The People's Justice: Revolutionary Law and the Founding of the French Republic (June 2026)

Forthcoming from Princeton University Press: Carla Hesse, The People’s Justice: Revolutionary Law and the Founding of the French Republic (June, 2026). Here from the publisher's website is a description of the book's contents.

In The People’s Justice, Carla Hesse offers a sweeping reappraisal of political violence in the French Revolution. From Charles Dickens to Hannah Arendt, the Revolution of 1789–1799 in France has been depicted as the bloodiest of the eighteenth-century democratic revolutions. Through extensive new archival research, Hesse shows that, to the contrary, what set the French Revolution apart was neither the scale nor the intensity of its violence but rather the ubiquity of its political tribunals and the use of novel forms of criminal law and procedure as a means of adjudicating political conflict. More than 5,000 political trials were prosecuted by the Revolutionary Tribunal in Paris alone, and, with an acquittal rate of more than 50 percent, these were neither perfunctory nor foregone in their outcomes. They had a repressive function, to be sure, but more importantly, they played a critical role in founding a republic in France and in shaping its social and political norms. Through jury deliberation, public witnessing, and media coverage, these political trials legitimated a republic and the revolutionary struggle that brought it into being. They were animated less by class warfare, factional hatreds, or utopian ideology than by a patriotic, albeit tragic, effort to hold fellow citizens accountable. Over the course of the last two centuries, France, of course, has successfully established itself as a constitutional regime, but this constitutional tradition is still rooted in and haunted by its revolutionary past. Since 1793, the French Republic has, to some extent or another, kept itself alive by keeping itself perpetually on trial.

 

Larsen and McSweeney on Medieval Treatises and the Judicial Search for a Useable Past

Alli Orr Larsen and Thomas McSweeney, both of William & Mary Law School, are publishing Medieval Treatises and the Judicial Search for a Useable Past in volume 79 of the Stanford Law Review. Here is the abstract.

The Supreme Court’s recent turn to history and tradition has prompted a renewed interest in the far distant past – the laws and customs of the Middle Ages. But medieval treatises are full of traps for the unwary. This article – a joint enterprise between a medieval legal historian and a Supreme Court scholar – carefully explores what makes these treatises uniquely complicated and easy to get wrong. To start, they are written in Latin and, sometimes, Old French. In many instances, the underlying medieval decisions they reference are destroyed and gone forever. Because there was no photocopier or even printing press back then, treatises often come in competing versions reflecting not only multiple authors but also successive copyists who made substantive changes. And legal texts were just different in the thirteenth century. Treatises were used for purposes as diverse as passing on cultural values, advising rulers on how to govern, and even teaching people the ideals of friendship. Put simply: medieval law is hard to find, hard to read, and even harder to put into context. For the American judge or law clerk who is strapped for time but wants to make a point about a long tradition, the understandable temptation is to reach for an authority like a medieval treatise that feels familiar. After all, modern legal treatises (think Wright and Miller) are recognized as trustworthy authorities to cite. And today translated versions of medieval treatises are easy to find digitally. But that ease of access and familiarity of authority are illusory. Often the very things that make these medieval texts feel familiar to modern readers would have made them idiosyncratic to thirteenth century audiences. Our goal in this article is to raise the caution flag for judicial consumption of medieval treatises: a user-friendly useable past can lead modern lawyers and jurists astray and should not be consumed without scrutiny and care.

Download the article from SSRN at the link.

Association for the Study of Law, Culture and the Humanities (ASLCH) Accepting Submissions for Julien Mezey Dissertation Award

 

The Association for the Study of Law, Culture and the Humanities is currently accepting submissions for the Julien Mezey Dissertation Award. This annual prize is awarded to the dissertation that most promises to enrich and advance interdisciplinary scholarship at the intersection of law, culture and the humanities.

Applicants eligible for the 2026 award must have defended their dissertations successfully between March 2025 and March 2026.

The Association will cover the Mezey Prize winner’s travel and lodging costs to the annual meeting.

Nominations for the 2026 award must be received on or before March 15, 2026.

Each applicant must submit the following:

1. a letter by the nominee detailing the genesis, goal, and contribution of the dissertation;
2. a letter of support from a faculty member familiar with the work;
3. an abstract, outline, and selected chapter of the dissertation;
4. contact information for the nominee.

Please submit these materials to lch@lawculturehumanities.com.

More information about this award is available on our website.

Smith on Holistic Constitutional Interpretation

Michael L. Smith, University of Oklahoma College of Law, has published Holistic Constitutional Interpretation. Here is the abstract.

This Article identifies and advocates for holistic constitutional interpretation, a method in which interpreters consider disputed constitutional terms or provisions in the context of the Constitution as a whole to gain insight into otherwise inscrutable textual questions. Holistic interpretation resembles, but is distinct from, alternative methods like structural argument and intratextualism—maintaining a focus on constitutional text that distinguishes it from structural methods, but approaching context in a more flexible manner than the more cabined intratextualist approach. While some scholars recognize holistic interpretation as a distinct method, their focus is often fixed on federal constitutional law. This Article adds to existing discussions of holistic interpretation by demonstrating how the method pervades the interpretive methods of a wide range of legal topics. Courts interpret contracts, wills, deeds, judgments, and statutes in a holistic manner—urging consideration of the whole document when interpreting a provision in dispute. Holistic interpretation is common in state constitutional cases as well, with the vast majority of state supreme courts purporting to interpret state constitutions as a whole. Holistic interpretation enriches textualist methodology, which might otherwise become overly technical or hyper-fixated on arcane definitional and grammatical disputes. It also takes the wind out of the sails of alternate interpretive methodologies that thrive on perceptions of ambiguity and uncertainty. While its implications for individual rights are mixed, holistic interpretation strengthens textualist methodology and is a useful tool for those who might otherwise be troubled by abstract or ambiguous constitutional language.

Download the article from SSRN at the link.

Charles and Gelbach on Bruen's Tenth Amendment Problem

Jacob D. Charles, Pepperdine University School of Law, and Jonah B. Gelbach, University of California, Berkeley, School of Law, have published Bruen's Tenth Amendment Problem. Here is the abstract.

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court applied a novel history-and-tradition framework to Second Amendment claims. That test keys the validity of modern gun laws to their similarity with historical analogues. Although scores of commentators have critiqued that approach, this Article identifies a critical constitutional flaw that has escaped focused attention: if Bruen’s test is not recalibrated, it violates the Tenth Amendment. The Tenth Amendment preserves to States all powers the U.S. Constitution did not divest from them. This Article argues that a crucial reserved power is the power of legislative choice—the States’ second-order power to choose whether to act or not, including whether to change course. Bruen’s requirement that each modern law match a historical precursor infringes on this reserved power, because it impermissibly removes from today’s legislatures a whole vista of choices available to their Founding-era predecessors. It withdraws a reserved State power that was woven into the Constitution when the Second Amendment was ratified: the power to do things differently today than before. In light of this conflict, the Article urges the Court to clarify that judges must implement any historical test in a way that respects the power of legislative choice. First, the Court should accord historical silence contextually appropriate weight. It can do so by recognizing and adopting a principle from the law of evidence, which deems silence in the face of an accusation probative only if the circumstances called for contradiction (what we label “the 3C test”); historical silence should be probative only if circumstances otherwise called for regulation. Second, at the same time it devalues silence, the Court should simultaneously expand the universe of historical evidence relevant to the inquiry. Both moves would better serve the end of respecting constitutionally-guaranteed State prerogatives while safeguarding individual rights.

Download the article from SSRN at the link.

Stevenson and Cox on Eugenic Criminology and the Birth of Predictive Algorithms in Criminal Justice

Megan T. Stevenson, University of Virginia School of Law, and Robynn Cox, UC Riverside, University of Southern California, Schaeffer Center for Health Policy and Economics, have published Eugenic Criminology and the Birth of Predictive Algorithms in Criminal Justice. Here is the abstract.

This Article tells the story of the birth of predictive algorithms in criminal justice. Known as risk assessments, these tools are widely used today to make decisions about bail, sentencing, and parole. Their roots trace back to the 1920s, when statistical prediction tools were first proposed for use in criminal justice decision-making. In this Article, we show that risk assessment found its origins in the ideas of eugenic criminology: namely, that crime is mostly caused by an inferior subclass of humanity, tainted from birth. Risk assessment was conceptualized as a way of sorting between the "normals" who were amenable to reform and the "sub-normals" who, due to their inferior genes, were not. Such "born criminals" were seen as requiring indefinite confinement within isolated penal colonies in order to protect society from crime, prevent procreation, and provide care for those in need of paternalistic guidance. We tell this story in part because it is a fascinating piece of history, marked by bigotry, bravado, and an almost fanatical optimism about mankind's ability to engineer a perfect society. But we also tell it because the ideas and practices of eugenic criminology are not widely known. While "tainted origins" do not automatically condemn the ongoing use of risk assessment, understanding history can help identify ways that the past lives on in the present.

Download the article from SSRN at the link.

Shugerman and Handelsman on Memory Warriors, Pluralists and Abnegators in Constitu[t]ional Interpretation: An Essay on Jack Balkin's Pluralist Originalism in Memory and Authority

Jed H. Shugerman, Boston University School of Law, and Zach S. Handelsman, McGill University, Department of Political Science, have published Memory Warriors, Pluralists and Abnegators in Constitu[t]ional Interpretation: An Essay on Jack Balkin's Pluralist Originalism in Memory and Authority.

Jack Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation brings into conversation the scholarly insights of constitutional theory, history, and the growing field of “the politics of memory,” especially the concept of the “memory entrepreneur.” Balkin appropriately connects the memory wars in American constitutional law back to Eastern European memory wars during the World Wars and their aftermath. Prompted by Balkin, we turn to Jan Kubik and Michael Bernhard edited volume Twenty Years After Communism (2014), which has become even more widely influential after Putin’s invasion of Ukraine and a new round of Eastern European memory wars. They propose four categories of memory entrepreneurs (“mnemonic actors”) in post-Soviet countries: “mnemonic warriors” who claim a single “true” interpretation of the past, opposed to all others who cultivate “wrong” or “false” interpretations; “mnemonic pluralists” who embrace multiple narratives and traditions; “mnemonic abnegators” who deny the significance of the past in favor of the present; and “mnemonic prospectives” who have a faith in an inevitable future (e.g., utopian Marxist historical materialists). We suggest this taxonomy may be a helpful guide for American constitutional politics. The “memory pluralist” category is perhaps the majority of American constitutional law professors, maybe even a plurality of the U.S. Supreme Court and the federal and state bench, who do not give exclusive weight to history, but still give substantial weight to history (e.g., Philip Bobbit’s modalities, Balkin’s “living originalism” and his “thin originalism.”). Some “thick originalists” are more “Memory Anti-Pluralists” than “Warriors.” We reserve the category of “Memory Warrior” for those constitutional interpreters who are consciously fighting for an exclusive, comprehensive national narrative of us vs. them. These warriors include ideological originalists (especially the ones who seem to rely on a general narrative arc rather than specific historical evidence), but they also may include the “history-and-tradition” conservatives, common-good constitutionalists, and perhaps some progressive-left memory warriors who have a more exclusive interpretation of past events than pluralists do. Balkin rightly criticizes originalism for its “memory entrepreneurialism” that narrows the field of who “counts” and who is excluded, exacerbating constitutional law’s democratic deficit. We think the “memory warrior” category helps sort out the more problematic approaches, and we suggest a solution: a high burden of proof about consensus and public meaning to mitigate this democratic deficit, to reduce judicial legitimacy problems, and to slow down “warrior” judicial activism.

Download the essay from SSRN at the link.

Varsava and Watson on Originalism's General-Law Turn

Nina Varsava, University of Wisconsin Law School, and Bill Watson, University of Illinois College of Law, have published Originalism's General-Law Turn.

Originalists are increasingly turning to a general-law theory of constitutional rights. Under this theory, constitutional enactment declared but did not create constitutional rights. The content of those rights was, and remains, a question of general law—a species of unwritten law, commonly employed at the Founding, that transcends jurisdictional boundaries. This preoccupation with general law has precipitated a wave of scholarship developing general-law accounts of various constitutional rights. Yet the nature of general law itself remains poorly understood. This Article offers a theory of general law. Using philosophical methods to reexamine early American cases and recent work in legal history, the Article finds that general law depended on morality. To the extent that constitutional law consists of general law, identifying constitutional law calls for moral reasoning. This is not pure moral reasoning employed from an armchair but rather applied moral reasoning that accounts for customs, legal texts, institutional roles, and other social facts, all filtered through lawyers' specialized training and experience. The implications for originalism are striking. First, the general-law theory of constitutional rights requires reconceiving the core originalist principles of fixation and constraint, as general law satisfies those principles only in the sense and to the extent that morality does. Second, applying general law can be seen as either finding or making law; the distinction turns on one's view of the nature of law and is of no consequence for adjudication. Third, the theory supports an approach to adjudication that centers on moral reasoning and is consistent with a range of nonoriginalist approaches.

Download the article from SSRN at the link.

McNeil on The Intertemporal Law Doctrine's Application to the Acquisition of Colonies in the Americas

Kent McNeil, Osgoode Hall Law School, has published The Intertemporal Law Doctrine’s Application to the Acquisition of Colonies in the Americas. Gere is the abstract.

The intertemporal doctrine provides that international disputes have to be resolved in accordance with the international law that existed at the time the events giving rise to the dispute took place, not at the time the matter is adjudicated.1 It is thought to be impermissible to apply current standards to events that occurred in the past when different legal principles and rules were the norm. This doctrine applies as much to acquisition of colonies as to other international issues.2 So in order to determine whether a European nation acquired sovereignty over an overseas territory, it is necessary to determine and apply the international law extant at the time sovereignty was claimed. As international law has evolved from the time European overseas colonial expansion began in the fifteenth century, this means that different standards can apply in diverse colonial contexts, depending on when sovereignty is alleged to have been acquired.

Download the article from SSRN at the link.

Stump on Historical Beginnings: Appalachian Coal and the Coming of Industrial Capitalism

Nicholas Stump, West Virginia College of Law, has published Historical Beginnings: Appalachian Coal and the Coming of Industrial Capitalism.

This chapter provides an overview of the core historical events that shaped modern Appalachia. After a brief section detailing the essential geographic and natural resource profile of the region, the development of human communities in Appalachia is explored—commencing with Indigenous peoples and extending through the Euro-American conquest and colonization. The general character of preindustrial Appalachia then is covered, before this chapter turns to the late nineteenth-century period of rapid timber- and coal-based industrial growth. Indeed, the coming of industrialized coal and other industries—which occurred within the broader context of period liberal capitalism—would, in short order, create profoundly negative social, cultural, economic, and environmental conditions in Appalachia. This period’s developments also set the stage for the subsequent century and a half; that is, from the late 1800s onwards, the fossil fuel hegemony would form the cornerstone of the profoundly exploitative Appalachian ecological political economy.

Download the chapter from SSRN at the link.

Yeager on Discursive Footnotes

Daniel B. Yeager, California Western School of Law, has published Discursive Footnotes. Here is the abstract.

This essay offers a comprehensive account of the past forty years of scholarship on footnotes within law. Not just any old footnotes, but footnotes that are discursive in form, that is, those with an expressive rather than bibliographic function. After contrasting the function of discursive footnotes in judicial opinions with those in academic legal literature, this essay identifies and decodes a comparatively hidden avant garde footnotes literature. Borrowing from techniques of literary criticism, that literature, properly understood, provides a foundation for our making more subtle judgments about both the relation of primary to secondary texts and the allocation of responsibilities between readers and writers.

Download the essay from SSRN at the link.

The 2026 International Osnabrueck Summer Institute on the Cultural Study of the Law

From Peter Schneck, Director, OSI (Osnabrueck Summer Institute)

Announcing the 2026 International Osnabrueck Summer Institute on the Cultural Study of the Law: 

"Law in Transit - Moving Subjects, Universal Rights, and the Contingencies of Recognition"

University of Osnabrueck, Germany
July 18-26, 2026 

For more information, follow this link. 

Volpi on Legal and Political Constitutionalism from Schmitt and Kelsen to Contemporary Debates: Notes on Constitutional Guardianship and Democracy

Alessandro Volpi, Max Planck Institute fr the Study of Crime, Security and Law, has published Legal and Political Constitutionalism from Schmitt and Kelsen to Contemporary Debates: Notes on Constitutional Guardianship and Democracy as Max Planck Institute for the Study of Crime, Security and Law Working Paper No. 2026/01. Here is the abstract.

This paper situates the Carl Schmitt-Hans Kelsen dispute on constitutional guardianship within the now-standard categories of political and legal constitutionalism. It examines the conflict between political and legal understandings of the constitution and of constitutional adjudication, alongside divergent conceptions of democracy that strain this institution (notably, the countermajoritarian difficulty). It begins with a close reconstruction of the Weimar-era debate-its legal and political details-covering competing views of adjudication, the constitution as a set of norms or a political decision, and alternative models of guarantees. Through comparative analysis, the paper then traces lines of continuity and discontinuity between those positions and contemporary discussions of constitutional guardianship within debates over legal versus political constitutionalism. What emerges is the enduring persistence of theoretical alternatives that deeply structure the idea of constitutional guardianship in a democratic system. At the same time, we find differences in interpretation and in proposals for legal politics concerning substantive versus procedural conceptions of the constitution, as well as divergent understandings of democratic conflict and pluralism and their implications for constitutional stability. The paper concludes by showing how certain theoretical contradictions at the heart of constitutional guardianship resist easy resolution and must be inhabited, rather than definitively overcome.

Download the paper from SSRN at the link.

Davies on One Complicated Hour

Ross E. Davies, George Mason University Law School; The Green Bag; has published One Complicated Hou in Regulation and Imagination: Legal, Literary and Historpical Perspectives on Highway Robbery (Green Bag Press, 2025). Here is the abstract. Regulation and Imagination: Legal, Literary and Historical Perspectives on Highway Robbery (Green Bag Press 2025)

Can a Wall Street tycoon be a pirate? Can a judge?

Download the essay from SSRN at the link.

Stigall on The Rousseau-Portalis Doctrine: French Legal Thought and the Law of War--Parts I and II

Dan E. Stigall, George Washington University Law School; U. S. Department of Justice, has published The Rousseau-Portalis Doctrine: French Legal Thought and the Law of War – Parts I and II as Lieber Institute for Law & Warfare, Articles of War (USMA), GWU Legal Studies Research Paper No. 2025-80. Here is the abstract.

The Rousseau-Portalis Doctrine is the idea that war is a relationship between states rather than individuals and, accordingly, military operations must be conducted exclusively against the enemy forces and not against civilians who do not take an active part in hostilities. Grounded in Grotian thought but enhanced and refined by Enlightenment thinkers, this revolutionary idea has had a significant impact on the law of war over the past two centuries. The doctrine is understood today as a salient component in the undergirding framework of the law of war. This is a two-part series illustrating the impact of French legal thought on the formation of the law of war with a specific focus on the Rousseau-Portalis Doctrine. The first part provides a brief background on Jean-Jacques Rousseau and Jean-Étienne-Marie Portalis, their views on the law of nations, and their ideas that form the substance of the Rousseau-Portalis Doctrine. The second part traces the evolution of that doctrine and discusses its impact on the law of war.

Download the article from SSRN at the link.

Forthcoming: Benjamin Fagan, Frederick Douglass's Newspapers (University of Pennsylvania Press, 2026)

 Forthcoming from the University of Pennsylvania Press:

Benjamin Fagan, Auburn University, Frederick Douglass's Newspapers (2026). 

Here from the publisher's website is a description of the book's contents.

The first book to focus on the newspapers edited by Frederick Douglass and their impact on Black organizing.

A robust body of work has established the importance of print in general, and newspapers in particular, to African American culture in the 1800s. Such work regularly acknowledges Frederick Douglass (1818–1895) as one of the most influential newspaper editors of the nineteenth century, a judgment that Douglass and many of his contemporaries shared. But while recent scholarship has continued to expand our understanding of Douglass’s life and work, his newspapers remain largely understudied. Frederick Douglass’s Newspapers is the first book that explores the full range of Douglass’s periodicals.

Benjamin Fagan traces the making and impact of the four newspapers edited by Douglass: the North Star (1847–1851), Frederick Douglass’ Paper (1851–1860), Douglass’ Monthly (1858–1863), and the New National Era (1870–1874). Fagan highlights how Douglass and his co-workers—which included Martin R. Delany, James McCune Smith, William C. Neil, and Douglass’s daughter Rosetta Douglass, among others—practiced versions of Black organizing as they made his newspapers. By teasing out the inner workings of Douglass’s newspapers, Fagan explores the complex and often messy practices of Black organizing that made these publications possible.

In doing so, this book places Douglass’s newspapers at the center of the story of Black organizing in the nineteenth century. Douglass’s newspapers not only offered examples of how to organize for Black readers across the country, but he and his co-workers also participated in a variety of other kinds of Black organizations. Writers for Douglass’s papers put such experiences into print, and stories and lessons of Black organizing filled the pages of Douglass’s newspapers. They covered a variety of issues: abolitionism, school integration, politics both domestic and international, the Civil War, and the burgeoning Black labor movement, among others. Fagan’s close examination of the making of Douglass’s newspapers as well as what appeared in their pages chronicles how his publications were simultaneously examples and archives of Black organizing.

 

Newly Published: Paul Mitchell, Gaskell and the Law (Hart, 2025)

Newly published: Paul Mitchell, University College London, Faculty of Laws, has published Gaskell and the Law (Hart Publishing, 2025). Here from the publisher's website is a description of the book's contents.

This is the first ever study of law in the fiction of Elizabeth Gaskell. Elizabeth Gaskell is best known today as a novelist of social realism. Until now, however, her use of law, which is crucial to her portrait of society, has never been systematically explored. This book shows that Gaskell's fiction is rich with insights into the law of her time, and that reading her work with a lawyer's eye deepens and enriches the reading experience. The book explores Gaskell's work as a whole. It gives careful attention to her most famous novels, but also engages with the lesser-known novels and the shorter fiction, showing that these often overlooked works contain a wealth of original ideas and legal interest. Gaskell's fiction is shown consistently demonstrating a skilled, accurate and critical handling of legal rules and a sensitivity to law's personal and social effects. She does not limit herself to mid-nineteenth century issues, but enters into such fundamental questions as the individual's obligation to obey the law, and the relation between law and fiction. The book shows that a hitherto unappreciated aspect of Gaskell's genius as writer is that she integrates this sophisticated engagement with law seamlessly, so that it contributes to the cumulative artistic effect of her work. As a leading scholar of Victorian legal history, Paul Mitchell brings an in-depth knowledge of the law to his close readings of Gaskell. He brings out the richness and sophistication of Gaskell's engagement with the law, and proposes both new readings and new valuations of this important novelist's work.

 

Order online at www.hartpublishing.co.uk – use the code GLR BD8 to get 20% off!

If you are interested in reviewing this book for the L&H Blog, please let me know at ccorcos@lsu.edu.

Perry and Brownlee on The Socially Fragile Power of Hope

Matthew W. Perry and Kimberley Brownlee, both of the University of British Columbia Department of Philosophy, have published The Socially Fragile Power of Hope as LSE Legal Studies Working Paper No. 40/2025.

What role, if any, does hope play in the law? Recent jurisprudence has seen a growing interest in the right to hope. This paper makes three contributions to this emerging debate. First, a philosophically adequate account of hope must centre its affective character. While hope involves cognitive resolve, it is not chiefly cognitive-it is affective at its heart. Second, although a person cannot have an explicit right to hope, people can have rights to the social conditions which make hope possible. Sustained hope for the future depends on the experience of social recognition and belonging, rooted in early childhood development and belonging to community throughout our lives. Finally, four guiding aims should shape a commitment to structure penal practices in ways that allow individuals to retain a credible sense of hope.

Download the paper from SSRN at the link.

Maher on Teaching Hope: An Interdisciplinary Challenge

Imelda Maher, University College Dublin School of Law, has published Teaching Hope: An Interdisciplinary Challenge as LSE Legal Studies Working Paper No. 33/2025. Here is the abstract.

This paper is a reflection on the experience of creating an interdisciplinary module on Hope with a community of scholars interested in exploring the nature of hope within the classroom. The paper reflects on the elusive nature of hope as a concept and the rewards and challenges for the interdisciplinary group of faculty teaching on it. It explores how that interdisciplinarity creates the need to be aware of implicit hierarchies and known separations between disciplines (methodologically, substantively, theoretically). It notes the importance of making an open space of enquiry to allow for creative engagement on the common concept of hope. The role of academic hospitality in this interdisciplinary space is also explored before concluding.

Download the paper from SSRN at the link.

Amodu, Lacey, Marshall, Petersmann, and Trotter on Hope and the Role of Law: A Conversation

Tola Amodu, University of East Anglia, Nicola Lacey, London School of Economics Law School, Jill Marshall, Royal Holloway University of London School of Law, and Marie Petersmann and Sarah Trotter, both of the London School of Economics Law School, have published Hope and the Role of Law: A Conversation as LSE Legal Studies Working Paper No. 27/2025. Here is the abstract.

This is a conversation about the four reflection papers that appear in the ‘Hope and the Role of Law’ section of this special issue: Nicola Lacey’s paper ‘Institutionalising Hope in Law?’, Jill Marshall’s paper ‘Feminist Jurisprudence, Personal Liberation, and Hope’, Marie Petersmann’s paper ‘Hope in Climate Justice: Tales of Transition and its Refusal’, and Tola Amodu’s paper ‘Hope in Property (or The “Hopefulness” of Property)?’.

Download the paper from SSRN at the link.

Stokes on Hope as an Object of Legal Scholarship

Elen Stokes, University of Bristol, has published Hope as an Object of Legal Scholarship as LSE Legal Studies Working Paper No. 31/2025. Here is the abstract.

This paper explores what it might mean for hope to be an object of legal scholarship. It raises questions about what to look for and where to look for it, framing the discussion around hopeful legal ends, means, attachments and atmospheres. It finds that the relationship between law and hope can be characterised by multiplicity, and that this invites a wide range of approaches to engaging with hope in and around law.

Download the paper from SSRN at the link.

ICYMI: Bond on Representations of Law and Race Revisited: An Updated Survey of Recent American Film

ICYMI: Cynthia D. Bond, UIC School of Law, has published Representations of Law and Race Revisited: An Updated Survey of Recent American Film at 30 Denver Sports and Entertainment Law Journal 51 (Spring 2025). Here is the abstract.

This article revisits the author's Laws of Race/Laws of Representation: The Construction of Race and Law in Contemporary American Film, 11 Univ. Tex. Rev. of Sports and Ent. L. 219 (2010), surveying recent developments in mainstream films' depiction of the interrelated narratives of law and race. This article applies to current film the 2010 article's paradigm, which articulated three key narrative aspects of depictions of race and law in popular film: 1.) the raced construction of the lawyer-hero; 2.) the denial or displacement of the law's role in constructing race and race-based discrimination; and 3.) the suppression or revision of politics and political history. Using this paradigm as a point of departure, the article examines a range of films, TV shows, and streaming series that grapple with race under law. Particular focus is paid to films created post-2020, in light of social movements like Black Lives Matter and the attendant increased public dialogue regarding racialized legal disparities in American life. Beyond displaying a mere statistical uptick of racially diverse casting, films and series of the last fifteen years reveal that popular culture can engage notions of race and its place under law in a more direct and nuanced way.

Download the article from SSRN at the link.

Chowdhury on Toward a Historical Materialist Account of British Constitutional Change

Tanzil Chowdhury, Queen Mary University of London, School of Law, is publishing Toward a Historical Materialist Account of British Constitutional Changee in the International Journal of Constitutional Law. Here is the abstract.

This paper argues that British constitutional reforms are the historically specific expression of the mediation of significant antagonisms between social forces and shifts in the modalities of capitalism, the aim of which is to ensure the conditions for commodity exchange and capital accumulation. While most conventional theories of constitutional reform recognise the heteronomous nature of law reform as responding to extra-legal or economic forces, this paper, drawing on a renascent Marxist turn in legal studies, examines how historical materialist accounts might help to inform understandings of constitutional development. Outlining but ultimately rejecting an economistic orthodox Marxist reading of law, this paper instead conceptualises constitutions as a 'moment' in the contradictory totality of capitalist social relations;. Arguing that reforms to the British constitution are often preceded by significant social antagonisms, the paper attempts to explain constitutional reforms as the capitalist states mediation of such antagonisms to secure the future conditions for capital accumulation, offering a reappraisal of the lead up to and creation of the Parliament Act 1911 as an example.

Download the article from SSRN at the link.

Call For Abstracts: Human Studies and Free Speech Adjudication: From Theory To Practice

From Laura Little, Professor of Law, Temple University School of Law:

The International Society for Humor Studies is soliciting abstracts for its upcoming conference (36th ISHS conference) in Niterói, Brazil, 6-10 July 2026. The Special Interest Group focusing on Humor, Free Speech, and the Law is convening a panel titled Humor Studies and Free Speech Adjudication: From Theory to Practice. We welcome proposals for 20-minute papers addressing one or more of the following questions: • How can insights from humor research help judges, lawyers, or social media regulators develop a fair and nuanced approach to judicial decisions regarding humorous expression? • How can these insights be translated into actionable guidelines for judicial training, attorney counseling, advocacy or online content moderation? And how can this ‘translation’ exercise, in turn, open up new avenues for humor research? • What are the challenges and opportunities offered, in this respect, by a closer dialogue between different branches of humor scholarship (interdisciplinarity), as well as between academic research and everyday judicial practice or content moderation (transdisciplinarity)? Should you be interested in participating, please send an abstract (max. 300 words) and a short biographical note to both Dr Alberto Godioli (a.godioli@rug.nl) AND Prof. Laura E. Little (laura.little@temple.edu) by February 10th, 2026. For more information on the Special Interest Group’s activities, please visit the website of ForHum: Forum for Humor and the Law.

Walker on Vagueness' Three Faces

Alexander Walker, Columbia University Law School, has published Vagueness' Three Faces as a Columbia Public Law Research Paper. Here is the abstract.

In the law of interpretation, context is king. There is widespread consensus that the interpretive act requires knowing more than just the words on the page. Jurists might disagree about how important certain features of context are, but no one, we are told, is a literalist anymore. This essay challenges the received wisdom that the law has moved away from literalism by looking at doctrines that are triggered by a finding of a lack of clarity. These doctrines—variously called clear statement rules or clarity doctrines—require a court not to determine the best meaning of a legal text but rather whether that text is unclear. This essay uncovers that doctrines spanning criminal, administrative, contract, Federal Indian Law, and constitutional law employ three different theories of language to determine whether a text is clear. One is communal. One is individualistic. But one is decidedly literalist. While there is nothing per se wrong with different theories in different contexts, this essay argues that the literalism currently present in certain doctrines—notably the rule of lenity and void-for-vagueness doctrine—is either illogical or illegitimate. Instead, using Federal Indian Law as a paradigm, courts should fashion an understanding of clarity that is in the general case communal but admits individualistic considerations when justice so requires, patterning off the law-equity divide. This approach avoids the rule-of-law concerns where beliefs about efficiency sneak into discussions of language while also respecting the complexity of language.

Download the article from SSRN at the link.

Franks on Little Fascists Everywhere: The National Socialist Playbook of Trump's War on Universities

Mary Anne Franks, George Washington University Law School, is publishing Little Fascists Everywhere: The National Socialist Playbook of Trump's War on Universities in Academic Freedom in the Era of Trump (Lee Bollinger and Geoffrey Stone eds., 2026) (forthcoming). Here is the abstract.

While there is no real predecessor in U.S. history for the breadth and depth of the MAGA movement to destroy higher education—even the McCarthy period pales in comparison in fervor and scope—the Nazification of German universities in the 1920s-30s provides eerie and instructive parallels. The Nazification movement, like the MAGA movement, was organized around unquestioning obedience to a single leader and, correspondingly, hostility toward democratic ideals. The frontline soldiers of Hitler’s war on universities were students resentful of progressive changes to higher education, and the tactics they used to convert German universities into right-wing propaganda factories closely resemble the ones used today to lay siege to American universities: disrupting classrooms, surveilling professors, and monitoring curricula for “undesirable” ideas; countering the “liberal indoctrination” of students with external speakers promoting far-right talking points; purging “degenerate” books from schools and libraries; and organizing watchlists, harassment campaigns, and public exposures of allegedly biased or immoral professors, with the goal of having them removed from their positions. And, in a crucial moment in their push for totalitarian control, the Nazis used the murder of a young, charismatic Party member known for his provocative debate style as a pretext to escalate their ruthless repression of dissent and violence against critics of the regime. Among the urgent and important lessons to be learned from this historical precedent is that totalitarian impulses cannot, in fact, be tamed, and that when universities succumb to them, the rest of society will follow. The preservation of democracy requires the uncompromising rejection of all efforts to interfere with academic freedom and to zealously defend the autonomy of institutions of higher education.

Download the chapter from SSRN at the link.

Lerer on Law as Language: From Scandinavian Realism to Evolutionary Jurisprudence

Ignacio Adrian Lerer has published Law as Language: From Scandinavian Realism to Evolutionary Jurisprudence. Here is the abstract.

This paper traces the intellectual trajectory from early twentieth-century Scandinavian legal realism through contemporary analytical jurisprudence to propose an evolutionary theory of legal language. Building on the Scandinavian insight that legal concepts are linguistic phenomena rather than metaphysical entities, and extending the analytical tradition developed by Hart, Carrió, and the Alchourrón-Bulygin-Nino synthesis, I argue that legal systems exhibit evolutionary dynamics analogous to natural languages. Legal rules function as cultural replicators subject to variation, inheritance, and selection pressures operating through judicial interpretation, legislative modification, and administrative implementation. This framework provides theoretical foundation for understanding both the persistence of apparently dysfunctional legal institutions and the mechanisms through which legal systems adapt to changing environmental pressures. The paper concludes by proposing evolutionary jurisprudence as a research program that integrates insights from analytical philosophy of law with contemporary evolutionary approaches to cultural phenomena.

Download the paper from SSRN at the link.

Molina Bustos and Pérez Páez on Moral Philosophy and Archetypes in the Symbolic Cohesion of the Tale of Juan Matachin

Francisco Fabiany Molina Bustos and Jenny Alejandra Pérez Páez, both of the Social Sciences Observatory and Human Resources in Ibagué/ Edukivotos, have published Moral Philosophy and Archetypes in the Symbolic Cohesion of the Tale of Juan Matachin. Here is the abstract.

This paper examines the moralizing value of Rafael Pombo’s tale Juan Matachín within the Colombian cultural context, interpreting it as a narrative device for ethical and social regulation. Through an interdisciplinary approach combining literary analysis, moral philosophy, and political theory, the study explores the figure of the “anti-villain” as an ambivalent agent who, through fear, seeks to preserve the common good, social order, and harmony with nature. Drawing on Hobbes’s and Machiavelli’s reflections on fear as a foundation of order, the analysis shows how symbolic terror operates pedagogically to deter harmful behavior and reinforce communal norms. The tale is thus understood as more than children’s literature, functioning as a cultural archive that embeds collective values, mechanisms of social control, and an implicit ethic of ecological protection and community cohesion in the Colombian imaginary.

Download the article from SSRN at the link.

Cai on The Crime of a Show Girl: An Analysis of the Common Law Underpinnings Behind the Taylor Swift Song No Body No Crime

Xuantong Cai, Abbey Park High School, has published The Crime of a Show Girl: An analysis of the common law underpinnings behind the Taylor Swift Song No Body No Crime. Here is the abstract.

The song No Body No Crime, as the title suggests, involves the law, and where there is the law, there should be legal analysis. The song, as the title says, articulates the tension in the burden of proof required to convict a person and the doctrine of corpus delicti. Moreover, it also highlights the tension between state-enforced justice and vigilante justice as the narrator then takes the law into her own hands.

Download the article from SSRN at the link.

Reminder: Submissions for ASLCH Annual Conference and Graduate Student Workshop Due January 31, 2026

 From Simon Stern, University of Toronto Faculty of Law and PResident,  ASLCH:

This is a reminder that the Association for the Study of Law, Culture, and the Humanities is currently accepting submissions for its Twenty-Eighth Annual Conference, which will take place at the DePaul University College of Law in Chicago, Illinois from June 17-18, 2026. This year our theme is "Uprooted Law: Reflecting on the Origins and Outgrowths of Law". To view our call for papers and submit proposals, please visit our website here. We are also accepting applications for our annual Graduate Student Workshop, which will take place the day before the conference on June 16, 2026. Graduate students who participate in the workshop are also welcome to submit papers to the conference. Information on how to apply for the workshop can be found on our website here. The submission deadline for both the conference and the workshop is January 31, 2026. Please spread the word and circulate this call for papers in your academic communities! We look forward to an engaging and enriching gathering in June and hope you'll join us. Best regards, Simon Stern, President, Association for the Study of Law, Culture & the Humanities

West Coast Sexuality, Gender & Law Conference: Abstract Submission Deadline January 5, 2026

 Reminder from Yvonne Lindgren, Professor, UMKC School of Law:

Dear all, This is a reminder about and deadlines related to the upcoming third annual West Coast Sexuality, Gender & Law Conference. This year, the conference will be held on March 13-14, 2026 in Irvine, California. ABSTRACT SUBMISSION DEADLINE: The deadline for submitting abstracts for consideration is January 5, 2026. To submit, please submit a CV and an abstract of no more than 500 words here (again by January 5, 2026). Submissions will be vetted by the organizing committee (listed below). Selection will be based on the originality of the abstract as well as its capacity to engage with the other papers in a collaborative dialogue. Participants will be notified of their selection as soon as feasible after the due date. Drafts of papers will be due approximately two weeks prior to the Conference.    If you would like to attend by serving as a commentator: - If you are not submitting an abstract but would like to attend the conference in the role of a commentator on someone else's paper, or if you are presenting a paper and would be willing to also serve as a commentator, please use the same link. Commentators are essential to the success of the conference, so be a good citizen and show up for your fellow scholars!   We look forward to your submissions and participation. Questions can be directed to the organizing committee members at westcoastgslconf@gmail.com.   Thank you!   Luke Boso, Southwestern Andrew Gilden, Southwestern Courtney Joslin, UC Davis Yvette Lindgren, UMKC Kaipo Matsumura, Loyola LA Brian Soucek, UC Davis Ari Ezra Waldman, UC Irvine

ICYMI: Berenguer, Jewel, and McMurtry-Chubb on Critical and Comparative Rhetoric: Unmasking Privilege and Power in Law and Legal Advocacy to Achieve Truth, Justice, and Equity

ICYMI: Elizabeth Berenguer, Lucy Jewel, and Teri A. McMurtry-Chubb have published Critical and Comparative Rhetoric Unmasking Privilege and Power in Law and Legal Advocacy to Achieve Truth, Justice, and Equity (Bristol University Press, 2023). Here from the publisher's website is a description of the book's contents.

Through the lenses of comparative and critical rhetoric, this book theorizes how alternative approaches to communication can transform legal meanings and legal outcomes, infusing them with more inclusive participation, equity and justice. Viewing legal language through a radical lens, the book sets aside longstanding norms that derive from White and Euro-centric approaches in order to re-situate legal methods as products of new rhetorical models that come from diasporic and non-Western cultures. The book urges readers to re-consider how they think about logic and rhetoric and to consider other ways of building knowledge that can heal the law’s current structures that often perpetuate and reinforce systems of privilege and power.

Call For Nominations: The Penny Pether Law & Language Scholarship Award 2025

 

Call for Nominations: The Penny Pether Law & Language Scholarship Award 2025 

A passionate advocate for interdisciplinary scholarship in law, literature, and language, Penelope J. Pether (1957-2013) was Professor of Law at Villanova University School of Law and former Professor of Law and Director of Legal Rhetoric at the American University Washington College of Law. Her own scholarship focused not only on law, literature, and language, but also on constitutional and comparative constitutional law; legal theory, including constitutional theory; common law legal institutions, judging practices, and professional subject formation. 

Beginning in November 2013, the Penny Pether Award for Law & Language Scholarship has been given to an article or essay published during the preceding award period that exemplifies Penny’s commitment to law and language scholarship and pedagogy. This year’s award period will be the calendar year 2025.  

We are delighted to report that the Legal Humanities Initiative at the University of California, Santa Barbara, will now be providing much needed administrative support for the award. The selection committee is grateful for LHI’s commitment to Penny’s legacy.  The Committee selecting award recipients from among the articles and essays nominated will look for scholarship that not only embodies Penny’s passion and spirit but also has some or all of the following characteristics: 

1. “[S]cholarship concerning itself with the unique or distinctive insights that might emerge from interdisciplinary inquiries into ‘law’ grounded in the work of influential theorists of language and discourse.” 

2. Scholarship that “attempts to think through the relations among subject formation, language, and law.” 

3. Scholarship that provides “accounts of—and linguistic interventions in—acute and yet abiding crises in law, its institutions and discourses.” 

4. Scholarship and pedagogy, including work addressing injustices in legal-academic institutions and practices, that is “[c]arefully theorized and situated, insisting on engaging politics and law, [and that] charts ways for law and its subjects to use power, do justice.” 

More explanations and descriptions of these characteristics can be found in Penny’s chapter from which these quotations are drawn: Language, in Law and the Humanities: An Introduction (Austin Sarat et al. eds., Cambridge U. Press 2010). 

A list of past winners appears here: https://law.unlv.edu/lawyering-process/penny-pether 

Nominations should be sent by January 31, 2026, to Jeannine DeLombard at jdelombard@ucsb.edu. 

Any article or essay published during the calendar year 2025 is eligible.  You are free to nominate your own work and, apart from self-nominations, may nominate more than one work.  For self-nominations, pick the article published in 2025 that you believe best embodies the characteristics mentioned above. Please provide a citation and a pdf for each work you nominate.   

The Selection Committee includes David Caudill, Jeannine Marie DeLombard, Amy Dillard, Ian Gallacher, Lucy Jewel, Jeremy Mullem, Giuliana Perrone, Anne Ralph, and Kathy Stanchi. Members of the Selection Committee are not eligible for the award.  

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

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

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

Download the article from SSRN at the link.

Wright on Gender Affirming Rhetoric

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

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

Download the article from SSRN at the link.