Vasconcelos Vilaça on Broken April, Narratology, Legal Normativity, and the Experience of Law

Guilherme Vasconcelos Vilaça, Instituto Tecnológico Autónomo de México (ITAM) Law School, has published Broken April: Narratology, Legal Normativity, and the Experience of Law, in Law and Critique (2024). Law and Critique, 0[10.1007/s10978-024-09400-w]

This article delves into the intersection of literature and legal normativity through the lens of Ismail Kadare’s novel Broken April. It explores how literary theory enhances philosophical analysis of law by examining the novel’s portrayal of the Kanun, a set of customary laws in Albania, highlighting the complexity of legal normativity and the impact of law on individual subjectivity and social order. The core argument posits that Broken April serves not only as a reimagined narrative of Albanian customary law, but also as a device to question and reflect on the broader implications of law’s normative force, and its reliance on a plethora of aesthetically effective symbols, in constituting both human behavior and the social imaginary. Through the literariness of Broken April, this article explains how law infiltrates and molds the social and psychological dimensions of life, ultimately shaping legal experience. It argues that literature offers a unique vantage point to reassess our understanding of law’s role in society, challenging conventional and nonconventional legal theories that overlook the cultural and emotional dimensions of law.

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Netolitzky on But My Ghosts Are So Hard to Hear: Pseudolaw and Conspiracy Culture @DNetolitzky @UAlberta

Donald Netolitzky, University of Alberta, has published But My Ghosts Are So Hard to Hear: Pseudolaw and Conspiracy Culture at 8 International Journal of Coercion, Abuse, and Manipulation 11 (2025).

Pseudolaw is an alternative counter-law that has propagated worldwide post-2000. Pseudolaw’s core rules and concepts are surprisingly conserved despite this scheme’s adoption by diverse marginal dissident anti-authority populations and individuals. Pseudolaw and its users are frequently identified as a “conspiracy theory” and “conspiracy theorists,” respectively. This article evaluates those designations. Pseudolaw’s “good law” versus “bad law” narrative and the Strawman Theory core concept clearly satisfy the criteria to classify pseudolaw as a conspiracy theory. However, whether persons who use pseudolaw should be identified as conspiracy theorists is more complex. At least some “mercenary” pseudolaw users are greed-based operators who have no interest in pseudolaw’s substance, including its conspiratorial aspects. Attempts to evaluate whether pseudolaw “believers” exhibit traits and characteristics identified by the recent broad academic investigation of conspiracy theorists are unfortunately frustrated by the uncooperative responses from pseudolaw users to social sciences investigators and our limited access to pseudolaw “insider” perspectives.

Download the article from SSRN at the link.

Toussaint on the Cultivation of Black Letter Law @etiennetoussaint.bsky.social

Etienne C. Toussaint, University of South Carolina School of Law, has pulished On the Cultivation of Black Letter Law at 124 Columbia Law Review 151 (2024). Here is the abstract.

Engaging with the sociocultural dimensions of race and racism across U.S. history is essential when creating, critiquing, and reforming the law. Building on Robin West’s exploration of the law and culture movement, this Piece introduces a novel “hermeneutic” project that reads Black American culture throughout U.S. history to gain critical insights into the nature and function of law in America. Black American culture, deeply rooted in the sociocultural traditions uniting members of the African diaspora, has consistently challenged White supremacy and played a foundational role in shaping U.S. law. To illustrate the value of studying law through the lens of race and culture, this Piece incorporates an analysis of Ralph Ellison’s "Invisible Man" alongside the author’s experiences in a Black urban neighborhood in the South Bronx. It argues that intentionally “reading culture” is crucial for uncovering deeper insights into the inherent nature of law. This cultural-legal approach provides a framework for recognizing the limitations of liberal legalism, understanding the cultural production of legal meaning, and advancing legal reform, democracy, and justice in American society. By blending cultural analysis with legal critique, this Piece aims to promote more equitable legal practices informed by the lived experiences and cultural contributions of Black Americans and other marginalized groups.

Download the article from SSRN at the link.

Asimow on All's Fair in Love and War: Military Justice in the Movies ‪@sculawresearch.bsky.social‬ @amarkhoday.bsky.social

Michael Asimow, Santa Clara Law School, has published All's Fair in Love and War: Military Justice in the Movies. Here is the abstract.

This chapter in the book Law and War in Popular Culture (Stefan Machura, editor, Nomos 2024) surveys military justice in English-language films. These movies tell a consistent story of injustice arising out of flaws inherent in the military justice system—in particular command influence and abuse of the following-orders defense. The brass exercise command influence over military court martials to select and punish scapegoats or cover up their own errors. Command influence is the subject of such classic films as Paths of Glory, Breaker Morant, and Man in the Middle, among others. The following orders defense applies if the accused was acting pursuant to orders, unless the accused knew the orders were unlawful or a person of ordinary understanding would have known the orders were unlawful. Of course, this defense is inherently problematic, since it is unlikely that trained soldiers will disobey orders, regardless of their legality. The following-orders defense and its abuse are memorably portrayed in such films as A Few Good Men and Breaker Morant.

Download the chapter from SSRN at the link.

Williams on the Jurisprudence of Sandwiches @sawilliams.bsky.social

Sam Williams, University of Idaho College of Law, has published The Jurisprudence of Sandwiches. Here is the abstract.

The question of what bread-based foods count as sandwiches is a contentious one that seemingly everyone has an opinion on. This includes many prominent legal minds, including prominent judge Richard Posner and Supreme Court Justices Scalia, Ginsburg, and Sotomayor. This question is not purely hypothetical to the law, as courts have had to determine the meaning of a sandwich in cases with thousands of dollars on the line. In this essay, I examine this budding sandwich jurisprudence and how it explains and exemplifies several unique features of legal thought, including the ongoing debate between legal formalism and legal realism, the reasonable person, and the breaking up of binary political identity into more nuanced portrayals of "liberal" and "conservative" justices. By biting in to this developing jurisprudence, I help to bridge the gap between the legal mind and the broader world of sandwich analysists.

Download the essay from SSRN at the link.

Newly Published: Dirk Heirbaut, Redefining Codification: A Comparative History of Civil, Commercial, and Procedural Codes (OUP, 2025)

Newly published:

Dirk Heirbaut, University of Ghent, has published Redefining Codification: A Comparative History of Civil, Commercial, and Procedural Codes (Oxford University Press, 2025). Here from the publisher's website is a description of the book's contents.

More than half of the world’s population lives under law codes. Yet, defining the concept of codification remains elusive. Rather than delving into abstract theories, this book provides a rich, contextual comparative legal history of codes in France, Germany, the Netherlands, and Belgium from the late eighteenth century to the present. The first part studies the evolution of French, German, Dutch, and Belgian codes in their political and comparative context, thus challenging deeply rooted national narratives. It covers not only the well-studied French, German, Dutch, and Belgian civil codes but also their often-overlooked commercial and procedural counterparts and drafts that failed to become law. The second part embarks on a comprehensive analysis of the factors contributing to the success or failure of codification efforts. Employing an innovative method of comparative legal history, it explores the key players and objectives behind codification, revealing that traditional notions of codification are far removed from reality. Following this deconstruction of some ‘universal truths’ about codifications, the book proposes a fresh, empirically based definition of codification, offering new insights. This book is essential for law scholars in civil and common law countries who study codification. For both beginners and specialists, it can also serve as a gateway to the histories and recent developments in private, commercial, and procedural law in France, Germany, the Netherlands, and Belgium. Historians and political scientists will find a behind-the-scenes analysis of the machinery of lawmaking in this book. Politicians and drafters of new codes can use this book as an overview of best practices in codification.

Forthcoming: Birte Christ, Imagining the American Death Penalty: The Cultural Work of Popular Visual Representations (OUP, 2025) @oxfordunipress.bsky.social

Forthcoming from Oxford University Press: Birte Christ, Giessen University, Imagining the American Death Penalty: The Cultural Work of Popular Visual Representations (publication date, May 31, 2025). Here from the publisher's website is a description of the book's contents.

Imagining the American Death Penalty traces the US American cultural imaginary of capital punishment through popular visual representations from the 1890s to the twenty-first century. The book focuses on three generic and historical clusters of representations: early film from the 1890s through Intolerance (1916), crime film noir of the 1950s and1960s, and legal TV series from the 1990s through the early 2000s. The book makes two central arguments. First, it demonstrates that an increased concern with the death penalty in popular media does not mean that these texts promote an abolitionist agenda: their cultural work is ambiguous at best. This ambiguity is always contingent upon both the affordances of the particular genre and medium in question and on political-legal discursive context. The book explores both in detail. Early film is enchanted with its own representational possibilities due to the progress of technology and, in analogy, with the progress in execution technique, specifically the electric chair. In film noir, genre conventions and the legal back-and-forth before and after Furman predicate ambiguity. In legal TV series, the genre's ensemble casts and its focus on conversational exchange invite open debate. The second argument is that popular visual representations consistently whitewash the death penalty. The book demonstrates that this is the case because the most common narrative around executions in film and TV is to cast the condemned man as a hero who defies the violence of the state, gains dignity by accepting his fate and faults, and in some ways triumphs over death. The American imaginary, until very recently, did or could not imagine Black men to possess that measure of agency that it attributed to its white heroes.

Call For Papers: Journal of American Constitutional History

From Professor Marie-Amélie George, Wake Forest Law School

Call For Papers: Journal of American Constitutional History "Queer Constitutional History": Professors Felicia Kornbluh and Marie-Amélie George, guest editors. 

We invite scholars in history, law, and related fields to submit articles for a symposium issue of the Journal of American Constitutional History on "U.S. Queer Constitutional History," to be edited by Professors Felicia Kornbluh and Marie-Amélie George, in consultation with journal editor David Schwartz. 

We plan to publish the symposium issue in 2025 to coincide with 10th anniversary of the U.S. Supreme Court's decision in Obergefell v. Hodges. At the time the Court issued the Obergefell decision, the opinion appeared to settle specific questions about the legal and constitutional status of marriages between people of the same sex and broader questions about the constitutionality of formal discrimination against gays and lesbians. Since then, the Supreme Court has issued decisions challenging established sexual-liberty jurisprudence, including Justice Thomas' concurrence in Dobbs v. Jackson (2022), which promised a reconsideration of the whole "substantive due process" tradition. 

We invite essays on the queer constitutional history that gave rise to the Obergefell decision-including events outside of the realms of marriage, family law, or U.S. constitutional law-as well as the place of marriage equality within the Court's broader sexual liberty jurisprudence. We welcome contributions on the evolution of marriage equality, queer parenting, and sexual privacy rights under the U.S. Constitution, as well as related topics. For example, submissions might examine how and why these rights became recognized, their doctrinal underpinnings, the gaps that exist in Constitutional jurisprudence, and the relationship between queer Constitutional rights and the Court's decisions in related fields. 

We hope to publish a broad array of perspectives on these topics, to help inform scholarship on queer legal history and U.S. Constitutional history, as well as studies of legal institutions more generally. For that reason, this symposium issue takes an expansive approach to all of its terms: "U.S." extends beyond the mainland to include American territories and the country's diplomatic and international relations; we take "Queer" to mean research on gay, lesbian, bisexual, trans, nonbinary, or asexual people, or otherwise relating to nonnormative and stigmatized gendered and sexualized phenomena; "Constitutional" refers to questions that have been considered in U.S. constitutional courts, as well as related questions that have preceded or transcended them, and matters of state-level and not national constitutional adjudication; and "History" means the study of the past, but not necessarily the deep or distant past, and in this case cannot help but look over its shoulder to connections with contemporary issues. Abstracts are due February 1, 2025. 

Please submit them by email to Felicia Kornbluh (Felicia.Kornbluh@uvm.edu) and Marie-Amélie George (georgemp@wfu.edu). Authors of selected articles will be notified by March 1, 2025. Drafts, which should range from 5,000 to 10,000 words, will be due July 1, 2025 for submission to peer reviewers. Final versions of the articles will be due September 1, 2025. The guest editors may propose a half-day conference to immediately precede the American Society for Legal History's annual meeting in 2025. Contributors to this symposium issue would be invited, but not required, to participate.

Goold and Simon on The Case of Snickerwood Soup @davidasimon.bsky.social @david__simon @NUSL

Patrick Russell Goold, City University London, The City Law School, and David A. Simon, Northeastern University School of Law, have published The Case of Snickerwood Soup. Here is the abstract.

Intellectual property lawyers often ask: What is the value of intellectual property (IP) theory? During our research, we have uncovered a case from a distant land that might shed some light on the issue: The Case of Snickerwood Soup. We report it in full here.

Download the article from SSRN at the link.

Ferguson on The Ciceronian Origins of American Law and Constitutionalism @HarvardJLPP

Jack Ferguson, U.S. Court of Appeals for the Sixth Circuit, is publishing The Ciceronian Origins of American Law and Constitutionalism in volume 48 of the Harvard Journal of Law & Public Policy (2025). Here is the abstract.

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.” This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism. There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era. This Article gives that account. This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries. Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law. As a case study, this Article shows how Cicero contributed to the formation of American judicial review. Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review. This Article then considers Cicero’s work on republicanism and constitutionalism. The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition. Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive. As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive. And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force. Cicero influenced the Founders’ work in numerous ways. To the extent their law is ours today, his relevance endures.

Download the article from SSRN at the link.

Newly Published: Miller on An Introduction to German Law and Legal Culture (Cambridge) @CambridgeUP

Newly published: 

Russell A. Miller, An Introduction to German Law and Legal Culture: Text and Materials (Cambridge University Press, 2024). Here from the publisher's website is a description of the book's contents. 

An Introduction to German Law and Legal Culture offers students, comparative law scholars, and practitioners an insightful and innovative survey of the German legal system. While recognizing the significant influence of the Civil Law tradition in the German legal culture, the book also considers other legal traditions – Common Law, Socialist Law, Islamic Law, Adversarial Law, European Law – that are woven into the varied and colorful fabric of the German legal culture. The book provides an informed yet accessible introduction to the foundations of German law as well as to the theory and doctrine of some of the most relevant fields of law: Private Law, Constitutional Law, Administrative Law, Criminal Law, Procedural Law, and European Law. It is an engaging and pluralistic portrayal of one of the world's most interesting, important, and frequently modelled legal systems.

More information about the book here.  

Bernick on Constitutions of Fire and Ice @EvanFloof @jackbalkin @PennLRev @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, is publishing Constitutions of Ice and Fire in the Pennsylvania Law Review. Here is the abstract.

Constitutional theory studies the birth and death of normative universes. Constitutions originate in “hot” universes, from fiery constituent power which forges institutions and norms that come to be seen as fixed and unchanging. Even in the “cooled down” universe, constituent heat is capable of transfiguring, transforming, and even consuming constituted power. No constitution which derives its legitimacy from popular sovereignty can long survive the estrangement of the living from what is perceived as a cold, dead legal order. Jack Balkin’s Memory and Authority tries to navigate between fire and ice, fixity and flux. Since Balkin’s conversion to originalism, he has been a steadfast defender of faith in the basic legitimacy of the Constitution of the United States and a keen critic of interpretive approaches which tend to undermine its legitimacy. His Constitution is a framework which has some fixed, “hard-wired” features but which also provides considerable space for politics. Popular multitudes in the present can join multitudes past in an intergenerational democratic project committed to the realization of enduring constitutional principles. Through faithful construction, an imperfect Constitution borne of sin can be redeemed and become our law. Memory and Authority maintains that originalist arguments play an important role in this democratic project. Balkin considers them to be a particularly effective means of harnessing the power of cultural memory. Balkin counsels everyone to use them. He specifically urges left-liberals to set aside their misgivings about a mode of argument that is primarily deployed by political conservatives, both for the sake of achieving left-liberal political goals and for the sake of democracy. I contend that Balkin’s map of the U.S. constitutional universe is neither cold nor hot enough to be complete or convincing. It’s not cold enough because the framework Constitution and durable political-economic structures which it presupposes and perpetuates skew constitutional decisionmaking in democratically disempowering ways. It’s not hot enough because Balkin neglects the ways in which the framework has been shaped—for good and ill—by fiery constitutional faiths. For all the space that he seems to leave for flux, Balkin takes too much fixity for granted. To illuminate the strengths and limitations of Balkin’s constitutional theory, I put his work in conversation with the anti-essentialist cosmological theory of Roberto Mangabeira Unger, among the founders of a critical legal studies movement to which Balkin was in his early career a major contributor. I also describe the constitutionalism through which Native peoples have built power in the United States, notwithstanding a colonialist Constitution. This constitutionalism is animated by faith, but that faith looks little like Balkin’s. And it illustrates why arguing about history can be a dangerous strategy for peoples marginalized by the framework Constitution.

Download the review from SSRN at the link.

Parrillo on Foreign Affairs, Nondelegation, and Original Meaning: Congress's Delegation of Power to Lay Embargoes in 1794 @YaleLawSch @PennLRev

Nicholas R. Parrillo, Yale University Law School, has published Foreign Affairs, Nondelegation, and Original Meaning: Congress's Delegation of Power to Lay Embargoes in 1794 at 172 University of Pennsylvania Law Review 1803 (2024). Here is the abstract.

Originalist proponents of a tougher nondelegation doctrine confront the many broad delegations that Congress enacted in the 1790s by claiming that each fell into some exceptional category to which the original nondelegation doctrine was inapplicable or weakly applicable, one being foreign affairs. There is lively debate on whether the founding generation actually recognized an exception to nondelegation principles for foreign affairs. This Article, commissioned for a symposium on “The Statutory Foreign Affairs Presidency,” intervenes in the debate by examining the Embargo Authorization Act of 1794, which empowered the President to lay an embargo on all ships in U.S. ports (and/or other classes of ships) if “the public safety shall so require,” for the upcoming five-month congressional recess. This was a delegation of remarkable power over the U.S. economy, which at the time depended heavily on maritime transport. An examination of the Act undermines the idea that there existed a foreign-affairs exception to cover it. Originalist proponents of a tougher nondelegation doctrine claim the doctrine was meant to protect private individual rights of liberty and property, yet Americans in the late 1700s lived in an economy that was more dependent on foreign commerce than it has ever been since, in which a five-month international embargo could be disastrous for private business nationwide. In this context, an “exception” for foreign affairs would be strange, turning economic reality on its head. Furthermore, the Act itself flouted any objective or even workable distinction between the foreign and the domestic. The Act’s unqualified use of the term “embargo” authorized the President to prohibit the departure of all ships, not only those sailing to foreign ports but also to other U.S. ports in the coastwise trade, which was then the main channel of U.S. domestic commerce. And even if the President were to impose an embargo aimed mainly at international maritime trade, preventing evasion of such a restriction required regulation of the coastwise trade—regulation that contemporaries apparently understood the Act to authorize.

Download the article from SSRN at the link.