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

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

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

Download the article from SSRN at the link.

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

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

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

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

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

More information here.

Ryu and Sewell on The Hart-Dworkin Debate

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

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

Download the entry from SSRN at the link.

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

 ICYMI:

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

 

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

 

Courtney and Ziskina on The Publisher Playbook: A Brief History of the Publishing Industry's Obstruction of the Library Mission

Kyle K. Courtney, Harvard University Law Library, and Juliya Ziskina have published The Publisher Playbook: A Brief History of the Publishing Industry's Obstruction of the Library Mission *. Here is the abstract.

This article traces a long history of conflict between libraries and the publishing industry, documenting how publishers have consistently sought to restrict library access to materials in pursuit of profit and control. Through nine key episodes—from 19th-century legal battles over the first sale doctrine to 21st-century litigation against controlled digital lending (CDL)—the authors reveal a persistent playbook of obstruction: publishers challenge new technologies, resist expanded access, and litigate or lobby against library innovation. Yet, in case after case, courts and Congress have upheld the public interest role of libraries, affirming rights such as lending, fair use, interlibrary loan, and accessibility for patrons with print disabilities. The article concludes that CDL, currently under legal challenge, is the next chapter in this historical arc—an essential library practice that should be defended and affirmed, as past access innovations have been. The pattern is clear: when libraries push to democratize knowledge, publishers push back—and public policy must continue to support libraries’ mission over private restriction.

Download the article from SSRN at the link.

ICYMI: Amann on A Nuremberg Woman and the Hague Academy

ICYMI: Diane Marie Amann, University of Georgia School of Law, has published A Nuremberg Woman and the Hague Academy at 35 European Journal of International Law 813 (2024). Here is the abstract.

This article, which forms part of the journal's special review series marking the centenary of the Hague Academy of International Law, draws from the author's ongoing research into the roles that lawyers and other women professionals played at post-World War II trials. The article focuses on the life of one “Nuremberg woman,” Dr. Aline Chalufour, who attended the Academy in 1937 and again in 1957. In between, she worked in what is now Vietnam as a colonial schoolteacher, in Canada as a Free French propagandist for de Gaulle, at Nuremberg and Hamburg as a war crimes prosecutor, and in France as one of the country's first women judges. Chalufour's experiences shed light on how marginalized groups fared during the Hague Academy's first 100 years. They further call upon the Academy, and the field it promotes, to do better in the next 100 years.

Download the article from SSRN at the link.

Thomson on "And Two Cows...to My Wife, So Long As She Remains My Widow": Public Policy and Testamentary Marriage Clauses in Canada

Jane Thomson, University of New Brunswick Faculty of Law, is publishing "And Two Cows to my Wife… so Long as she Remains my Widow." Public Policy and Testamentary Marriage Clauses in Canada in volume 103 of the Canadian Bar Review. Here is the abstract.

This article, part one of a two part project, provides a comprehensive review of the law surrounding marriage conditions in wills in Canada, including the civil law jurisdiction of Quebec, through a quantitative study of nearly every electronically reported Canadian decision involving a marriage clause in a will. It begins with an overview of the history of marriage clauses in the UK, the US and Canada with a detailed review of the Canadian jurisprudence. This study reveals that the application of public policy to most marriage clauses in Canadian wills has remained stagnant since the 18 th century, with two notable exceptions. The first involves clauses that condition a gift on discriminatory terms such as the sex, race or religion of a beneficiary's spouse. When asked to do so, Canadian courts have voided such conditions, beginning in the 1960s. The second is the Province of Quebec where arguably all marriage clauses are now contrary to public order. This article is followed by a companion piece that provides the normative argument as to why all marriage clauses should be considered contrary to public policy in Canada.

Download the article from SSRN at the link.

Hay and May on Reckoning with Antisemitism in History and Tradition

Nathaniel Shaw Hay, Stanford University, and Isaac Barnes May, Yale Law School, have published Reckoning with Antisemitism in History and Tradition at 2025 Pepperdine L. Rev. 61 (2025). Here is the abstract.

"History and tradition" has become a watchword of modern constitutional interpretation, shaping Supreme Court jurisprudence and framing ongoing debates over the meaning of the Fourteenth Amendment. Yet this interpretive framework remains under-theorized in one critical respect: how should it grapple with the prejudices embedded in the very traditions it invokes? This Article examines that question through the lens of anti-Jewish discrimination in Anglo-American law, using this history as a case study to examine both the perils and promise of relying on history as a source of constitutional authority. For centuries, the common law excluded Jews from full civic participation in both England and the United States, limiting their access to the courts, their ownership of property, and their exercise of political rights. And though largely forgotten today, this legacy reveals a troubling methodological gap that currently exists in the history-and-tradition approach: its lack of a systematic way to reckon with antisemitism and other morally compromised aspects of history. Indeed, taken to its logical extreme, the history-and-tradition method would appear to permit the re-enactment of such exclusion today. Yet this Article does not counsel retreat from the past. Instead, it argues that principled engagement with history is both possible and essential-and suggests a framework for doing so. Courts, in considering Anglo-American traditions, should be guided by the Enlightenment values that animated the Founding—including liberty, equality, freedom of conscience, and the rejection of inherited hierarchy—and should privilege those strands of history that reflect these commitments. Although the Founders’ moral compass was at best imperfect and their actions at times fell tragically short of their ideals, the history-and-tradition method should seek not to rehearse the past uncritically, but to draw from it those principles that best express the nation’s enduring aspirations. Not only is such an approach deeply consonant with the history-and-tradition method and legitimated by recent jurisprudence, but it also fulfills the higher purpose of upholding both the Constitution and the visionary ideals that brought it into being.

Download the article from SSRN at the link.

Forthcoming in December from Cambridge University Press: Del Mar: Neil MacCormick: A Life in Politics, Philosophy, and Law

Forthcoming from Cambridge University Press:

Maksymilian Del Mar, Queen Mary University of London, Neil MacCormick: A Life in Politics, Philosophy, and Law. Here from the publisher's website is a description of the book's contents.

Neil MacCormick (1941–2009) was one of the twentieth century's most important legal philosophers and one of Scotland's most influential public intellectuals. This book tells the story of his political and philosophical life, from his intensely political childhood as the son of 'King John', one of the founders of the Scottish National Party, through to his involvement in Scottish politics – especially as the author of SNP's constitutional policy – and his role as a Member of the European Parliament, helping to draft the European Constitution. With special attention to MacCormick's character, this book offers a reading of his entire oeuvre, covering his contributions to theories of legal and moral reasoning, institutional legal theory, nationalism, post-sovereignty, subsidiarity, and constitutional pluralism in Europe. This book reads MacCormick as a highly creative thinker who excelled in the art of constructing inclusive middles and thereby developed his own distinctive approach to politics and philosophy.

Appleman on the Psychedelic Renaissance and the Lingering Shadow of Eugenics

Laura I. Appleman, Willamette University School of Law, has published Psychedelic Renaissance and the Lingering Shadow of Eugenics. Here is the abstract.

This Essay situates the contemporary psychedelic renaissance within a long, cyclical history of psychoactive exploration, regulation, and exclusion. Tracing the intertwined genealogies of psychedelics, eugenics, and capitalism from the nineteenth century to the present, it argues that each “rebirth” of chemical enlightenment has carried with it the same shadow: anxieties about purity, hierarchy, and control. From early 19th-century nitrous oxide experiments through Progressive Era drug criminalization and the mid-century counterculture, the boundaries between “medicine” and “drug” have functioned as instruments of social stratification. Today’s techno-spiritual revival, shaped by transhumanism, corporadelics, and conspiritualist movements, reanimates these hierarchies under the guise of therapeutic innovation and human optimization. By recovering the eugenic foundations of prior psychedelic eras, this Essay warns that our latest renaissance risks reproducing the same inequities it professes to transcend.

Download the essay from SSRN at the link.

Chabot on Appendices for The Interstitial Executive: A View From the Founding

Christine Kexel Chabot, Marquette University Law School, has published Appendices for The Interstitial Executive: A View from the Founding. Here is the abstract.

This file contains Appendices to Christine Kexel Chabot, The Interstitial Executive: A View from the Founding (October 28, 2025), available at https://ssrn.com/abstract=5673491

Download the Appendices from SSRN at the link.

Kohm and Kohm on C. S. Lewis's Influence in American Case Law

Lynne Marie Kohm and Joseph Kohm, both of the Regent University School of Law, have published C. S. Lewis's Influence in American Case Law. Here is the abstract.

The writings and works of C.S. Lewis have undoubtedly influenced culture through literature, but also through science, academia, education, the arts, and numerous aspects of society. Few scholars, however, have observed his influence on the law. This piece explores how Lewis's work has affected the law in juridical reasoning, and how it has inspired law as literature. Lewis's influence in American case law is not only astonishing in its breadth, but also in its earnestness in integrating the law with efforts to find justice and truth. When Lewis wrote, "I believe in Christianity as I believe that the Sun has risen, not only because I see it but because by it I see everything else," it also included the law and jurisprudence. Law and culture are inextricably linked, via the tug-of-war between where one is consistently seeking dominance over the other. Law directs the theory and practice of basic universal rules held and utilized around the globe. In this piece two lawyers explore the influence of C. S. Lewis and his writings in American case law, and in the rule of law generally. In balancing these tensions, Lewis has been not only instructive, but influential, and this essay investigates how he has become somewhat of a cultural icon to learned jurists.

Download the article from SSRN at the link.

Leshem on Law's Shifting Circles

Ela A. Leshem, Fordham University School of Law, is publishing Law's Shifting Circles in volume 114 of the Georgetown Law Journal (2026). Here is the abstract.

This Article undermines two myths in American legal history: first, that the law’s circle of moral concern has steadily expanded; and second, that legal protections have always centered on human persons. As to the first, the law contains multiple, shifting circles of moral concern—expanding along some dimensions and contracting along others. As to the second, U.S. law and the English common law on which it was based have long attributed moral status to nonhuman beings and inanimate objects. The Article reaches these insights by showing that U.S. legislators, judges, and advocates have for centuries treated a wide range of entities as deserving of moral concern and legal protection. Historically, three kinds of entities stood at the center of this legal universe: Man, Country, and God. U.S. lawmakers treated these entities as “superpersons,” enjoying such elevated moral status and legal protection that even objects falling into their penumbras received moral consideration. These penumbra objects included corpses and effigies, flags and national monuments, religious artifacts and sacred sites. Lawmakers protected these objects as extensions of superpersons and, in so doing, treated them at times as “epipersons.” Although the law’s protection of these nonhuman and inanimate persons has waned, it has not disappeared. A broad range of laws, either directly or indirectly, continue to protect and reinforce the moral status and dignity of superpersons and epipersons. Among them are sovereign immunity doctrines, corpse abuse statutes, and laws prohibiting the desecration of venerated objects, to name just a few. Uncovering the law’s historical universe of moral persons allows us to see more clearly the ongoing shifts in who or what the law deems deserving of moral concern and legal protection. Opening our eyes to these shifts, as this Article shows, can enable us to resist a simplistic narrative of moral progress, and to approach future status determinations with a greater sense of both agency and humility. The historical precedents unearthed in this Article also offer a constructive lens on contemporary legal battles over abortion, environmental protection, and artificial intelligence. They allow us to see that personhood debates in these contexts have a longer prehistory than is often realized, based in centuries of contested legal protections for superpersons and their penumbra objects. This prehistory points to a largely overlooked middle position between treating entities such as first-trimester fetuses, trees and lakes, and nonsentient AI systems as either persons or property—namely, treating them as epipersons with legally enforceable dignity interests and limitations on their property status, but without full-fledged rights.

Download the article 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 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 for the Lieber Institute for Law & Warfare, Articles of War (USMA). 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 essay from SSRN at the link. NB: This essay is the first of a two-part post.

Cotterrell on New Meanings for an Old Debate

Roger Cotterrell, Queen Mary University of London School of Law, is publishing New Meanings for an Old Debate in volume 52 of Journal of Law and Society. Here is the abstract.

This paper is part of a symposium revisiting the Cotterrell-Nelken debate published in 1998 in the Journal of Law and Society. Cotterrell's paper 'Why Must Legal Ideas Be Interpreted Sociologically?' presented an argument about methods of juristic inquiry, rather than about the nature of sociology of law. It claimed that juristic analysis of legal doctrine must be sociologically grounded. Such an analysis does not thereby become sociology of law or necessarily promote an instrumental or technocratic view of law. Jurisprudence and sociology of law have different objectives. However, sociology, insofar as relevant to legal interpretation, should be seen as a study of social relations grounded in values, tradition, and emotion, as well as instrumentality. As such, it is needed to inform juristic thought. Correspondingly, sociology of law should be concerned, for its own purposes, with conceptualising law, taking account of juristic ideas in doing so but not being confined by them.

Download the essay from SSRN at the link.

Guerra-Pujol on A Plea to Adam Smith Scholars

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, has published A Plea to Adam Smith Scholars. Here is the abstract.

My plea to Adam Smith scholars is this: stop citing Adam Smith's Lectures on Jurisprudence (Smith 1978) without proper qualification, let alone a disclaimer. Although this work purports to be a primary source--a transcription of Smith's law lectures at the University of Glasgow--these student lecture notes pose two practical problems. One is that we have no idea how faithful or accurate this transcription of Smith's law lectures is. The other problem is that Smith himself may have repudiated the ideas contained in those early law lectures.

Download the essay from SSRN at the link.

Call For Interest: Section 17: Legal and Ethical Boundaries of the Right to Die--and the Right to Kill

From Anne Wagner, Research Associate Professor Université du Littoral Côte d'Opale (CGU Calais)

Call for Chapter Proposals — Section 17: “Legal and Ethical Boundaries of the Right to Die—and the Right to Kill” 

I am pleased to announce the call for contributions to Section 17 of the forthcoming International Handbook of Legal Language and Communication: From Text to Semiotics (Springer), which I have the honor to edit. 

This section explores the legal, ethical, philosophical, and cultural dimensions of the right to die—and the right to kill, examining how law, ethics, and governance define and contest the boundaries of life, death, and legitimate violence. Researchers and practitioners across law, ethics, philosophy, medicine, and the social sciences are warmly invited to submit abstracts (≈300 words). 

Submissions and inquiries: prof.thiagorp@gmail.com Cc: Anne Wagner — General Editor (valwagnerfr@yahoo.com) 🔗 Handbook link: https://meteor.springer.com/ihllc Anne Wagner, Research Associate Professor Université du Littoral Côte d'Opale (CGU Calais) Habilitation à Diriger des Recherches en Droit Privé (Private Law), Lille University Ph.D. in Jurilinguistics, Université du Littoral Côte d'Opale French Research Award Recipient - Rank A.

Call for Interest – Section 17

Legal and Ethical Boundaries of the Right to Die—and the Right to Kill

Section Editor: Thiago Rodrigues-Pereira

Contact: prof.thiagorp@gmail.com

Cc: Anne Wagner (General Editor) — valwagnerfr@yahoo.com

We invite chapter proposals for the Legal and Ethical Boundaries of the Right to Die—and the Right to Kill section of the forthcoming International Handbook of Legal Language and Communication: From Text to Semiotics.

This section investigates the multifaceted legal, ethical, philosophical, and socio-political dimensions of the right to die—and the right to kill, offering an interdisciplinary exploration of how contemporary societies define, contest, and regulate the boundaries of life, death, and legitimate violence. Extending beyond doctrinal and legislative analysis, it situates end-of-life and life-taking decision-making within broader frameworks of human rights, bioethics, and governance, interrogating how power over life and death is exercised, justified, and contested.

 

Scope and Focus

Legal and Comparative Dimensions

 

·         Examination of national and transnational developments in euthanasia, assisted suicide, palliative care, and state-sanctioned killing (such as capital punishment, military engagement, and law enforcement).

·         Analysis of how legal systems interpret autonomy, dignity, culpability, and the sanctity of life across diverse traditions—common law, civil law, religious, and customary frameworks.

·         Exploration of the role of courts, legislatures, and regulatory bodies in shaping legal precedents and balancing state interests with personal freedoms and collective security.

·         Consideration of international human rights instruments, including the European Convention on Human Rights and UN declarations, in framing debates around both the right to die and the right to kill.

Ethical and Biolegal Tensions

 

·         Discussion of key bioethical principles—autonomy, beneficence, nonmaleficence, and justice—and their application to end-of-life and life-taking contexts.

·         Critical engagement with medical and technological advances (life-support systems, neurotechnologies, AI-assisted triage, lethal medical interventions) that blur distinctions between sustaining, ending, and taking life.

·         Analysis of professional responsibilities, ethical decision-making, and conscientious objection within healthcare, military, and law enforcement settings.

·         Assessment of the implications of social inequality, vulnerability, disability rights, and healthcare access in shaping ethical and legal outcomes concerning who may die—and who may kill.

Societal and Cultural Contexts

 

·         Investigation of how societal values, religious traditions, and moral narratives inform public and legislative attitudes toward assisted dying, state punishment, and justifiable killing.

·         Consideration of vulnerable populations—such as the elderly, disabled, imprisoned, or economically disadvantaged—in debates on consent, coercion, and protection from harm.

·         Study of advocacy movements, abolitionist campaigns, and policy reforms that shape public discourse on the legitimacy of ending or taking life.

·         Reflection on the sociocultural and political imaginaries that underpin collective understandings of mercy, justice, and sovereignty in decisions over death.

Semiotic, Linguistic, and Rhetorical Approaches

 

·         Analysis of the language and symbolism surrounding death, dignity, and killing in legal, political, and media discourse.

·         Exploration of how metaphors such as “mercy killing,” “death with dignity,” “state-sanctioned death,” and “legitimate force” shape public perception and legal framing.

·         Examination of rhetorical strategies used in judicial reasoning, legislative drafting, and advocacy communications that define moral and legal boundaries of dying and killing.

Global and Emerging Challenges

 

·         Study of transnational advocacy networks and policy diffusion in euthanasia, capital punishment, and humanitarian law.

·         Discussion of cross-border practices such as assisted suicide tourism, international execution protocols, and military interventions with ethical or legal implications.

·         Consideration of digital and technological frontiers—including AI-assisted decision-making, autonomous weapons systems, and data ethics in life-and-death governance.

·         Reflection on privatization trends in healthcare, security, and biotechnology, and their influence on accessibility, accountability, and ethical oversight in decisions to end or take life.

 

Academic Perspectives

Contributions are encouraged from law, philosophy, bioethics, sociology, communication, and cultural studies, among others.

Interdisciplinary approaches bridging doctrinal, empirical, and theoretical analysis are particularly welcome.

Possible lenses include:

·         Human rights law and comparative legal theory

·         Bioethics and medical jurisprudence

·         Semiotics of law and communication

·         Critical, feminist, or postcolonial perspectives on death, violence, and legitimacy

 

Policy-Oriented Questions

·         How do legal systems balance personal autonomy and state authority in both dying and killing?

·         What ethical and procedural standards guide decisions over life and death in medicine, law enforcement, or war?

·         How do language and narrative shape societal understanding of “legitimate death”?

·         In what ways do technological, economic, and political transformations challenge traditional moral and legal boundaries?

 

Call for Contributions

We welcome proposals that:

 

·         Present comparative or interdisciplinary analyses of death and killing within legal and ethical frameworks.

·         Explore the linguistic, symbolic, and communicative dimensions of how societies justify or contest death.

·         Offer case studies or empirical analyses of evolving legal practices, policy reforms, and public responses.

·         Provide innovative theoretical or methodological insights into how power over life and death is expressed through law and discourse.

 

Submission Guidelines

Please submit a short abstract (approximately 300 words) outlining your proposed contribution and its relevance to the section’s scope.

Send expressions of interest and abstracts to:

 Thiago Rodrigues-Pereira (Section Editor): prof.thiagorp@gmail.com

 Cc Anne Wagner (General Editor): valwagnerfr@yahoo.com

 

 Handbook link: https://meteor.springer.com/ihllc

 

 

 

 Handbook link: https://meteor.springer.com/ihllc