Stern on The Lost English Roots of Notice-and-Comment Rulemaking

Rephael Stern, Harvard Law School; Harvard Graduate School of Arts and Sciences, has published The Lost English Roots of Notice-and-Comment Rulemaking at 134 Yale L.J. 1955 (2025).

Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act's "most important idea." But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking. These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth and early twentieth centuries. In the New Deal Era, influential American reformers tracked important developments in English rulemaking as they grappled with the rapidly changing American legal ecosystem. Yet, as this Article emphasizes, Americans only partially adopted the English procedural framework. While they transplanted the "notice" and "comment" dimensions of English procedure, the Americans ultimately decided not to import a legislative veto, which was a critical part of rulemaking procedures in England. By offering a revisionist account of the origins of notice-and-comment rulemaking, this Article makes two contributions. First, it takes an initial step toward recovering a largely forgotten world of Anglo-American administrative law. Second, it illuminates current debates about the legitimacy of notice-and-comment rulemaking. With many current critiques of notice-and-comment rulemaking centering on the procedure's supposed lack of democratic accountability, the history this Article traces pushes us to ask whether belatedly transplanting an English-style legislative veto would legitimate the procedure.

Download the article from SSRN at the link.

Wieboldt on Our Natural Law Moment(s)

Dennis J. Wieboldt, III, University of Notre Dame, is publishing Our Natural Law Moment(s) in the Georgetown Journal of Law and Public Policy. Here is the abstract.

To both its sharpest critics and strongest proponents, natural law increasingly appears to be enjoying a "moment" in American legal discourse. The 2024 Herbert W. Vaughan Lecture at Harvard Law School, in fact, took as its subject "The Natural Law Moment in Constitutional Theory." Following the publication of Adrian Vermeule's Common Good Constitutionalism, among other works on natural law in the last half-decade, Alicea's 2024 Vaughan Lecture raises two important questions for those interested in the United States' contemporary jurisprudential debates: is there something unique about today's natural law moment, and, if so, what might understanding previous natural law moment(s) portend for contemporary debates about natural law? This Article assumes the challenge of historicizing the United States' latest natural law moment. In light of the 2024 Vaughan Lecture, it first illustrates that there were at least two discernible natural law moments in twentieth-century American legal history which emerged in response to then-novel developments in the legal academy. Then, this Article demonstrates that today's natural law moment shares important continuities and discontinuities with the natural law moments that the American legal profession began to experience almost exactly one hundred years ago. In concluding, this Article proposes that those today engaged in normative jurisprudential debates would be benefitted by a more capacious understanding of twentieth-century American legal history that takes seriously our often-forgotten natural law moments.

Download the article from SSRN at the link.

Papke on The Jurisprudence of Transcendentalism

ICYMI: David Ray Papke, Marquette University Law School, has published The Jurisprudence of Transcendentalism at 60 Idaho L. Rev. 185 (2024). Here is the abstract.

This article begins by sketching the evolving legal fabric of Antebellum America, stressing the way law and legal institutions came to play larger and more trusted roles in sociopolitical life during that period. Ralph Waldo Emerson, Henry David Thoreau, and the other Transcendentalists reacted negatively to this societal “legalization,” and as the second part of this article indicates, their jurisprudence was a largely negative critique of law and legal institutions. The third part of the article explores the part this jurisprudence played in the Transcendentalists’ critique of the Fugitive Slave Law of 1850. In conclusion, the article maintains that even in the present the jurisprudence of the Transcendentalism is a valuable demystification of man-made law and a warning against an unreflective belief in law and the rule of law.

Download the article from SSRN at the link.

Kopel on Machine Gun History and Bibliography

David B. Kopel, University of Wyoming, Firearms Research Center; Independence Institute; Cato Institute; Denver University Sturm College of Law, is publishing Machine Gun History and Bibliography in volume 25 of the Wyoming Law Review. Here is the abstract.

This Article provides an introductory history of machine guns and books about them. First, the Article describes federal machine gun laws and regulations, and related legal resources. Then the Article presents the historical development of machine guns from 1862 to the present, covering the various types of machine guns: heavy, medium, light, general purpose, submachine gun, machine pistol, and assault rifle. The first machinegun to achieve broad commercial success was the Gatling gun, invented during the American Civil War. Although the Gatling had little effect on that war, shortly thereafter the Gatling gun and other manual machine guns started to change warfare.Later, heavy machine guns such as the automatic Maxim gun, and its successor, the Vickers gun, dominated battlefields. Towards the end of World War I, the heavy machine gun was dethroned from its supremacy by the widespread adoption of new, portable light machine guns, which could be used to suppress an enemy machine gun nest while other troops advanced. In the subsequent two decades, especially during World War II, machine guns that were easily portable by a single soldier became much more common, such as the Thompson submachine gun widely used by American and British forces. During the Cold War, the assault rifle, no bigger than an ordinary rifle, became increasingly important. Most influential, almost always for ill, was the Soviet Union’s AK-47 and its progeny. The American counterpart, the M16, proved much less effective in battle, at first due to technical problems, and everlastingly because of its puny bullet. Improvements in metallurgy, manufacturing, and design have improved the quality of infantry machine guns. But a soldier with a machine gun on a battlefield in the third decade of the twenty-first century will likely be using a machinegun of a broad type that was already in widespread use by the 1950s.

Download the article from SSRN at the link.

Call For Papers: Argumentation 2025--Games of Law, October 31-November 1, Faculty of Law, Masaryk University

Call for Papers:

Argumentation 2025 – Games of Law

October 31 – November 1

The Argumentation 2025 conference continues the project of creating space for alternative perspectives on law, fostering the emergence of critical jurisprudences that challenge legal orthodoxy. This year’s theme is Games of Law, an invitation to explore how legal practices can be viewed through the metaphor of games and the deeper implications this brings for understanding legal authority, fairness, and justice.

The metaphor of games has long been used to analyze social structures, with Johan Huizinga’s concept of homo ludens framing play as an essential aspect of human culture (Huizinga, 1980, 4). Law, too, can be seen as a form of structured play, where participants – judges, lawyers, litigants – operate within defined rules to achieve specific outcomes (Dybowski et al. 2022). Yet, just as in games, legal practices produce both winners and losers, with real-world consequences.

Moreover, law, as a system of structured conflict, reflects the inherent tensions and contradictions within human thinking and interaction. Legal practices, like games, are grounded in conflict – both internal and external – an unavoidable part of the human condition. Instead of attempting to eliminate conflict, legal systems strive to manage and transform it, utilizing discursive representations that foster resilience against its destructive forms. These mechanisms not only enable the resolution of disputes but also contribute to broader societal stability and justice.

This year’s conference will interrogate how law functions as a game and what this metaphor reveals about power, justice, and the nature of legal authority, while also exploring how the dynamics of conflict and resilience are embedded in legal thinking and practices. How can the game metaphor help us better understand law’s role in addressing societal tensions, managing conflicts, and strengthening communal resilience?

We invite papers that explore the following themes:

•           Language Games and Legal Practices

Drawing on Wittgenstein’s notion of language games, we explore how legal argumentation functions as a rule-bound process of strategic communication. Legal actors engage in performative acts, constructing meaning and positioning themselves within a framework of rules, much like players in a game. J.L. Austin’s theory of speech acts offers additional insight into how legal language not only describes but also performs actions—such as making promises, issuing judgments, or passing laws—producing real-world consequences through speech itself. Legal argumentation, however, is not merely about following rules or achieving outcomes; it also involves navigating conflicts that arise within legal discourse. These conflicts, inherent to human interaction, are shaped by competing interpretations and the strategic use of language to assert authority, resolve disputes, or challenge established norms. How can legal language help transform these conflicts into opportunities for resilience and justice? We welcome papers that explore how the concept of legal performativity intersects with the metaphor of law as a language game, examining how legal actors use speech to “move” through legal reasoning, define rules, and ultimately shape reality through their actions. Contributions might also consider how legal discourse manages conflict and contributes to societal resilience by framing, transforming, or resolving tensions within the legal field.

•           Legal Luck and the Game of Law

Just as games involve elements of unpredictability and chance, so too does law. The concept of legal luck – the unpredictable factors that can influence legal outcomes – raises critical questions about fairness and justice. Legal luck can manifest in various forms, such as the timing of a case, the assignment of a particular judge, or unforeseen procedural anomalies. These elements often fall outside the control of the participants yet can significantly impact the final decision, much like the roll of a dice in a game of chance. This theme invites contributors to examine how the element of luck shapes legal processes and outcomes, challenging the conventional view of law as a purely rational and objective system. How does the unpredictability inherent in legal systems affect our understanding of justice? Does the game metaphor help illuminate how chance plays a role in legal decision-making, or does it risk trivializing the real-life consequences of legal "losses"? We encourage papers that explore legal luck through the lenses of game theory, risk analysis, or critical theory debates about justice and fairness, and consider whether or not the concept of chance in law undermines or complements the legal system’s claims to impartiality and reason.

•           Critical Perspectives: Winners, Losers, and Power in the Game of Law

In both games and legal systems, there are clear winners and losers. However, unlike games, legal outcomes carry serious real-world consequences, often reflecting deeper societal inequalities. Legal rules and procedures, while appearing neutral, can privilege certain groups and disadvantage others, based on factors like socio-economic status, access to representation, or systemic biases. At the same time, legal systems are sites of conflict—inevitable struggles that stem from competing interests, values, and positions. Recognizing conflict as an inherent part of human experience, this theme invites exploration of how legal frameworks can transform destructive conflicts into opportunities for resilience and justice. We welcome papers that critically explore how the legal game reinforces power dynamics, producing outcomes that may not align with justice. How do existing legal structures favor certain “players,” and what are the ethical implications when legal success does not always mean moral rightness? Further, how can legal systems be designed to build resilience by managing conflicts more equitably? Contributions from critical legal studies, feminist, and postcolonial perspectives are encouraged, especially those that interrogate how the metaphor of games may mask inequalities and propose ways to make legal processes more just, resilient, and equitable for all participants.

•           Evidence as the Strategic Heart of the Legal Game

In the legal “game,” evidence is not simply factual material; it is a tool that legal actors use strategically. Lawyers, judges, and juries must navigate complex rules regarding the admissibility, relevance, and weight of evidence, with each party seeking to present or suppress information that strengthens their position. The rules governing evidence can sometimes be as decisive as the facts themselves. This theme invites papers exploring how the strategic use of evidence influences legal outcomes and whether the legal game metaphor helps us understand the dynamics of truth-finding. Additionally, evidence often serves as the focal point for conflicts within legal proceedings, reflecting deeper societal tensions and contradictions. How can legal systems manage these conflicts in ways that build resilience against their destructive potential? How do evidentiary rules and practices impact fairness and societal stability, and can they contribute to strengthening communal resilience while resolving disputes? We encourage contributions that critically analyze the role of evidence in adversarial legal systems and its implications for justice, impartiality, and the ethical conduct of legal proceedings, especially through the lens of conflict and resilience.

•           The Didactic Use of Games in Legal Education

Games are increasingly used in legal education to simulate the adversarial nature of legal practice, providing students with hands-on experience in navigating legal rules, strategies, and arguments. From visual activities to moot courts and role-playing exercises, these methods mirror real-life courtroom dynamics, allowing students to “play” the roles of lawyers, judges, or clients in a controlled environment. However, while these game-based learning approaches can effectively teach students the skills needed for practice, they also raise important questions. Beyond preparing students for legal competition, can such methods also cultivate resilience by helping students confront and manage the inherent conflicts of legal practice? How can educational games be designed to balance the adversarial nature of law with the need to develop a deeper understanding of justice, fairness, and conflict resolution? Does emphasizing resilience in legal training help future professionals navigate the moral and ethical dilemmas that arise in practice? Contributions might explore how game-based learning approaches address the conflicts embedded in legal education and practice, as well as how they equip students with tools to manage these challenges constructively.

With the Argumentation 2025 conference, we aim to bring together diverse perspectives from across law, philosophy, sociology, anthropology and related fields. We encourage contributions that interrogate the intersections between law and games, focusing on how legal authority, fairness, and justice are constructed and possibly contested through play-like processes.

We are pleased to announce our keynote speakers:

·       Peter Goodrich, Yeshiva University, New York

·       Thomas Giddens, University of Dundee

The Argumentation 2025 conference will take place in Brno, Czech Republic, and is hosted by the Faculty of Law, Masaryk University.

Abstracts of 300 words (max.) should be submitted to argumentation@law.muni.cz by July 31, 2025.

Conference participation fee is 150 EUR.

To learn more about Argumentation 2025, including registration, venue, and updates, please visit argumentation.law.muni.cz

 

Zucca on Seeing Law Feelingly--Humanistic Jurisprudence, Poetic Wisdom, and the Future of Law

Lorenzo Zucca, King's College London, School of Law, has published Seeing Law Feelingly-Humanistic Jurisprudence, Poetic Wisdom, and the Future of Law. Here is the abstract.

Legal philosophy faces an existential crisis. As populism surges, social fractures deepen, and democratic institutions strain under unprecedented pressure, jurisprudence remains paralyzed by what I call the "Barbarism of Reflection"—an excessive rationalism that dissects law while becoming disconnected from its moral and imaginative foundations. Drawing on Giambattista Vico's concept of "poetic wisdom" (sapienza poetica) and Shakespeare's insight that one must "see feelingly," this article proposes Humanistic Jurisprudence as a synthetic framework that transcends the limitations of analytical, critical, and historical approaches to law. Humanistic Jurisprudence operates on three principles: (1) the primacy of creative imagination in shaping legal concepts and institutions; (2) critical reflection on the stories we tell about justice; and (3) genealogical understanding of how power structures have shaped our legal traditions. Rather than privileging analytical clarity as the foundation of legal thought, this approach recognizes that grand visions—born from imaginative engagement with human complexity—precede and inform analysis. The article argues that law's power lies not merely in its logical precision but in its capacity to articulate visions of justice that inspire collective action. Through synthesis of philosophical, literary, and legal historical sources, I demonstrate how jurisprudence can reclaim its poetic dimension without sacrificing intellectual rigor. This transformation is not merely academic: it offers practical frameworks for addressing climate crisis, technological disruption, and the erosion of democratic values—challenges that resist purely analytical solutions. The stakes are clear: either law recovers its imaginative power to shape collective futures, or it risks irrelevance in an age where narrative and myth increasingly determine political reality. Humanistic Jurisprudence provides the theoretical foundation for this recovery, offering legal philosophy a path beyond conceptual puzzles toward engagement with the profound moral and existential questions of our time.

Download the article from SSRN at the link.

Wan on the Constitutionalization of Happiness: A Global and Comparative Inquiry

Trevor Wan, University of Hong Kong, Faculty of Law, has published Constitutionalization of Happiness: A Global and Comparative Inquiry. Here is the abstract.

Happiness and well-being are now explicitly enshrined in a myriad of national constitutions. As of 2022, the terms "happiness" and "well-being" form part of the constitutional lexicon of more than 20 and 110 states respectively. These "happiness provisions" epitomize the phenomenon of the "constitutionalization of happiness," which denotes the process of elevating happiness to the constitutional echelon, thereby bearing discernible legal and political implications. An audit of all happiness provisions reveals that they boil down to three categories-happiness as a national objective, happiness as a policy paradigm, and the pursuit of happiness as a human right. The meaning and jurisprudential landscape of happiness provisions within a specific constitutional framework is molded by, on top of the semantic and structural configuration, a dynamic interplay among three factors, which include the indigenous and socio-cultural conception of happiness of that state, interpretations put forward by judges and other constitutional actors, and transnational influences such as the migration of constitutional ideas and jurisprudence. This article draws upon an extensive array of case studies, covering among others Bhutan, Bolivia, Ecuador, Japan, Korea, and Nigeria, to illustrate the breadth and diversity that enliven the universe of happiness provisions.

Download the article from SSRN at the link.

Berger on Rosalind's Refund: The Woman, the Lawyers, and the Time That Created McClanahan v. Arizona

Bethany Berger, University of Iowa College of Law, is publishing Rosalind's Refund: The Woman, the Lawyers, and the Time that Created McClanahan v. Arizona in the Kansas Law Review (2025). Here is the abstract.

Rosalind McClanahan was just twenty-two when she set one of the most important cases in federal Indian law into motion. On April 1, 1968, she filed her Arizona tax return, along with a protest that all the money withheld from her pay—$16.29—should be refunded because she was a Navajo citizen whose income was earned entirely on the Navajo reservation. The Arizona Tax Commission ignored her claim and the Arizona courts rejected it. But the Supreme Court ruled unanimously in her favor, building a foundation for many more decisions rebuffing state jurisdiction as well as landmark legislation such as the Indian Child Welfare Act and Indian Gaming Regulatory Act. This Essay, the first full history of McClanahan, examines the origins of the decision as part of the Kansas Law Review’s symposium on impact litigation in Indian country. Rosalind McClanahan was born in an era of renewed pressure for Indian assimilation but came of age as tribes and Indigenous people increasingly insisted on self-determination. This moment had a direct influence on her case: her education at Window Rock High School (where she was elected Class Treasurer) resulted from new pathways to challenge Indian exclusion from public schools; her employer was the First Navajo National Bank, which opened in 1962 as the first bank on the 16-million-acre Navajo Nation; and her lawyers came from Diné be’iiná Náhiiłna be Agha’diit’ahii-Legal Services (shortened to “DNA”), which the Navajo Nation brought to the reservation as part of a new wave of federally funded organizations providing legal services to the poor. Each of these developments shaped both the decision and its impact.

Download the article from SSRN at the link.

Cotterrell on Ehrlich's Footsteps: Reflections on Method Inspired By a Visit to the Birthplace of Empirical Socio-Legal Research

Roger Cotterrell, Queen Mary University of London School of Law, is publishing In Ehrlich’s Footsteps: Reflections on Method Inspired by a Visit to the Birthplace of Empirical Socio-Legal Research in Essays on Eugen Ehrlich (P. Brunet, J-B. Scherrer, C. Gavelli, and L. He., eds., Paris: Librairie générale de droit et de jurisprudence, forthcoming).

Eugen Ehrlich's pioneer sociology of law should be understood in relation to his time, but also to his particular geographical, political and cultural situation. And biographical information about him, though limited, is important. This paper is informed by reflections on a visit by the author to the location of Ehrlich's teaching and of his empirical social research. It argues that Ehrlich wanted the education of lawyers to be supplemented by their observation of local social regulation. It also suggests that his writings aimed to present a basic sociological model of law that could be treated as a guide for empirical social research.

Download the essay from SSRN at the link.

Caputo on "Quiet" Enjoyment: Uncovering the Hidden History of the Right to Attention in Private and Public

Nicholas A. Caputo, Oxford Martin School, is publishing 'Quiet' Enjoyment: Uncovering the Hidden History of the Right to Attention in Private and Public in the Stanford Technology Law Review (forthcoming 2025). Here is the abstract.

Legal scholars have largely neglected attention as a subject of legal rights, even as attention has become one of the most valuable economic resources of the modern era. This Article argues that a right to attention has existed implicitly in American law since the early twentieth century, emerging in response to technological, social, and economic changes in that period that made attention both increasingly valuable and increasingly impinged upon, as America shifted toward knowledge work and leisure activities that demanded sustained focus. By examining court decisions in private law doctrines around property and public law doctrines around speech that can only be explained by reference to an implicit right to attention, this Article begins to uncover the ways in which judges and lawmakers built out a set of legal protections that enabled people to invoke the law to protect their own attention while avoiding stifling the sometimes-disruptive conduct of others. In particular, I show that in private law, courts began recognizing "attentional nuisances," nontrespassory invasions of land that did not cause physical but only attentional harm, thereby creating a framework for protecting a person's attention on her own land. In public spaces, the new right to attention came into conflict with also-emerging free speech rights, which seem to require the ability to attract the attention of others in order to express oneself to them. There, the Supreme Court sought a balance through the development of frameworks like time, place, or manner doctrine, which allowed governments to try to regulate attention-grabbing stimuli without directly regulating speech, and through the uneven development of listeners' rights. In closing, I argue that the right to attention developed in the early twentieth century provides a foundation upon which a modern right to attention addressed to the attention economy could be developed that is both rooted in the experience of the past and capable of meeting the novel challenges presented by digital technology and the rise of artificial intelligence, which promise another epochal technological revolution like that which gave rise to the right a century ago. Drawing out the right to attention buried in the caselaw gives scholars, lawmakers, and the public a set of tools that they can use to decide how to adapt it to the demands of the present. The future of attention relies upon the lessons of its past, and recognizing explicitly the so-far hidden right to attention provides better ways shaping its future.

Download the article from SSRN at the link.

Zietlow on Fugitives From Slavery, Free Black Activists, and the Origins of Birthright Citizenship

Rebecca E. Zietlow, University of Toledo College of Law, is publishing Fugitives From Slavery, Free Black Activists, and the Origins of Birthright Citizenship in the Mississippi Law Journal.

In 1852, Martin Delany, a free Black doctor, journalist, and antislavery activist wrote an influential treatise on the rights of free Black people in which he claimed, “We are Americans having a birthright citizenship….” Ten years later, during the Civil War, Delany backed his words with actions by volunteering for the Union Army and recruiting Black soldiers for an army regiment. Delany’s theory of birthright citizenship was shared by thousands of antislavery and Black civil rights activists in the antebellum era, including William Yates, who wrote the first treatise on the rights of free Black people in 1838, and Frederick Douglass, a fugitive from slavery who became one of the most prominent abolitionist leaders. Black activists used the language of citizenship to claim their status as rights-bearing people who belonged to the community in which they live and to the national polity. Fugitives from slavery crossed state borders in search of freedom and human rights. Their free Black allies argued that they were citizens by virtue of being born in the United States and, as citizens, were entitled to human rights. Free Black people emphasized their loyalty to the national polity and their willingness to sacrifice to prove their loyalty. During the Civil War, fugitives from slavery and free Black people volunteered to serve in the Union army, risking their lives in support of the polity and proving their loyalty and eligibility for citizenship rights. This Essay explores the origins of birthright citizenship and describes the centrality of citizenship rights in the advocacy of people, like Delany, who participated in the Free Black Civil Rights Movement and Antislavery Movement. Birthright citizenship is a promise of equality for all people who are born in the United States, regardless of their race or the national origin of their parents. It is in our Constitution today because of the advocacy of people who were brought involuntarily into our country and claimed their right to citizenship with their actions and their activism.

Download the articles from SSRN at the link.

Stern on Crime and Literature, Narrative, and Doctrine

Simon Stern, University of Toronto, Faculty of Law, has published Introduction: Crime and Literature, Narrative and Doctrine at 1 Modern Criminal Law Review 160 (2025). Here is the abstract.

This Introduction to a special issue of the Modern Criminal Law Review+ discusses the history of criminal law as a focus within the field of Law and Literature, from the early 20th century to the present, including bibliographies anthologies, and critical studies. Work in this area once focused primarily on the depiction of crime, criminals, and criminal trials in literary narratives (“law in literature”). Over the last thirty years, scholars have moved far beyond this focus, asking more foundational and conceptual questions, such as how literature can help us understand the epistemology and analysis of evidence, the structure of the trial, the development of doctrines and concepts such as attempt and mens rea, the changing treatment of crimes such as treason and conspiracy, and the representation of intention in forensic advocacy and judicial writing. What these investigations share is a concern with literary form and modes of representation, on the one hand, and structures of legal analysis, on the other. Instead of asking how crime and criminals are portrayed in imaginative works, scholars have inquired into the conditions that make these portrayals possible. This more foundational approach has been far more productive and continues to open up new avenues for research. After reviewing these developments, the introduction turns to the contributions in this special issue by Elise Wang, Hannah Walser, Anna Schur, Abhinav Sekhri, and Daria Bayer, discussing them in relation to this recent line of scholarship. All the contributions may be found on the MCLR+ site.

Download the article from SSRN at the link.

Guerra-Pujol on Evidence and Belief: David Hume in the Library of Babel

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, has published Evidence and Belief: David Hume in the Library of Babel. Here is the abstract.

What is the relation between evidence and belief? Is it possible to quantify this relationship? To address these questions, I will reimagine the great 18th-century religious skeptic and Enlightenment philosopher David Hume as the narrator of Jorge Luis Borges’ short story The Library of Babel. How would a bibliophile and skeptic like Hume navigate the infinite hexagons of Borges’ imaginary library? More to the point, how would this disorienting experience influence his famous argument against miracles?

Download the article from SSRN at the link.

Swain on Mrs. Jelleby, Victorian Values, and the Legal Framework of the Law of Charity in Nineteenth-Century England

Warren Swain, University of Auckland Faculty of Law, is publishing Mrs Jelleby, Victorian Values, and the Legal Framework of the Law of Charity in Nineteenth-century England as a University of Auckland Faculty of Law Research Paper. Here is the abstract.

From the mid-seventeenth century to the mid-nineteenth century the nature of private charity changed fundamentally. Charities became large, wealthy, national organisations. The legal and regulatory framework struggled to keep pace. The nineteenth century saw both changes to the substantive law of charities and the regulatory framework. These changes took place against the backdrop of debates about the proper reach of the state.

Download the article from SSRN at the link.

Giuliani on Past, Pastness, and the Broad Present: Changing Images of Time in Legal History

Adolfo Giuliani, Infolaw Research Project, is publishing Past, Pastness and the Broad Present: Changing Images of Time in Legal History in Law and Spatio-Temporal Dimensions (S. Zorzetto, P. de Lucia, P. Heritier et al., Springer, 2025). Here is the abstract.

"How does the past relate to the present, how does being connect to becoming?" This question confronted legal history when it emerged as an academic discipline in early nineteenth-century Germany. Its significance reverberated throughout legal science -- but provoking three successive responses, which this paper categorises as past, pastness, and broad-present. (i) In the nineteenth century, scholars viewed the past as a pristine ideal to be reconstructed for guidance, its unbreakable connection to the present forming a cornerstone of legal science. (ii) The twentieth century, influenced by scientific and philosophical breakthroughs, saw past and present merge into a "pastness" that encompassed collective experiences and reflected a new understanding of law-making. (iii) The twenty-first century has expanded this temporal awareness into what scholars call a "broad present" or "long-now"-which at any given time individuals try to make present (or represent) again.

Download the essay from SSRN at the link.

Leary on Screaming Into the System: The Symbiotic Relationship Between Flannery O'Connor, Violence, and the Criminal Law

Mary Graw Leary, Catholic University of America, has published Screaming Into The System: The Symbiotic Relationship Between Flannery O’Connor, Violence, And The Criminal Law. Here is the abstract.

This year marks the 100th birthday of one of America’s most influential writers in history – Flannery O’Connor. Much has been written about the violence in Flannery O’Connor’s work, but relatively little about the criminal and legal aspects of the violence. This is rather surprising given the author’s documented influence from actual crimes in stories such as A Good Man is Hard to Find and The Partridge Festival. It is also surprising given her use of crimes (including homicide, fraud, human trafficking) in her work, as well as her particular focus on the marginalized and vulnerable. O’Connor herself noted that she often used violence to capture her audience’s attention and ultimately bring them to her point. This paper explores that influence on her work through original research at the Flannery O’Connor Archives. However, as these original documents demonstrate, with all things that involve Flannery O’Connor, there is much more to this examination than simply how she was influenced by criminal events. Within many of these criminal events, the law played a critical role in the violence, often as a catalyst. Furthermore, as with many criminal events, the poor and vulnerable suffer at the hands of an uncaring society. O’Connor saw this and utilized the criminal law to comment upon this societal reality. This law played a critical role in her literature not simply as a historical fact or inspiration, but as a silent character. More to the point, this silent character’s frequent failure to protect the vulnerable is a repeated theme in O’Connor’s fiction. This symbiotic relationship between criminal law, violence, and O’Connor’s fiction is not only one where O’Connor was influenced by and utilized actual crime and violence in her writing. But it is also one where she can be a profound inspiration and influence on the modern criminal justice system’s advocates. O’Connor’s vocational approach to her writing also has much to offer the modern justice system’s advocates. Drafts of her talks in the O’Connor Archives demonstrate that she was challenged to write for an audience whose values and modern sensibilities were hostile to her messages of what she called the “prophetic vision” of truth, judgment, grace, and mercy. The modern criminal justice advocate finds herself similarly challenged. Tasked with protecting the most vulnerable – often the unseen or undervalued in society – she must convince a jury to see and value such people and understand the truth of what has occurred enough to do something unpopular in today’s culture: render a judgment. Presented with unspeakable violence, this advocate must convey it to her audience, the jury, who often is resistant to believing it occurred. O’Connor frequently wrote about the writer’s “sense of frustration [being] great because [the writer] has to force by whatever means he can this vision on a resisting or a blank audience.” (Catholic Writer in the Protestant South – draft talk for Southern Literary Festival, April 20, 1962) How O’Connor navigated that vocation to bring an audience to a place of understanding people and truth can operate as a significant influence on those today forged with that task. This paper examines the synergistic relationship between Flannery O’Connor’s fiction, crime, violence, and the criminal law and what it can offer the modern criminal justice system – a system characterized by a search for truth and justice. It will also suggest that O'Connor offers an inspirational framework for those who participate in the system as advocates for the vulnerable.

Download the article from SSRN at the link.

Williams on Flannery O'Connor and the Law

Telia Mary U. Williams, Northern Illinois University College of Law, has published Flannery O’Connor and the Law. Here is the abstract.

Celebrated Southern fiction author Flannery O'Connor treats her readers to not only a "Christ-haunted" South, but also a "law-haunted" one. Her short stories present a fictional, yet realistic world wherein characters are tacitly preoccupied with legal conflicts, and who engage in quasi-legal storytelling and legalistic modes of speaking and thinking. Ultimately, the futility of O'Connor's characters' insistence on their individual rights and hyper-technical legal formalities, rather than community, reveal to the reader the need for law to be tempered with humility and empathy. Along the way, O'Connor brings the reader full circle and shows us that even legal formalism may serve as an occasion for grace.

Download the article from SSRN at the link.

Kahn on The Authoritarian Semiotics of the New Campus Mask Bans

Robert Kahn, University of St. Thomas School of Law (Minnesota), has published The Authoritarian Semiotics of the New Campus Mask Bans. Here is the abstract.

Campus protests over the Gaza war have led to calls for mask bans. This essay examines these calls from a semiotic perspective. On the one hand, the new and proposed bans invoke the struggle against the Ku Klux Klan to cast masked protesters as modern-day Klan members. Meanwhile, the bans rely on a dislike of masks dating from the pandemic when mask wearers were seen as “cowardly sheep” who allowed the state to exercise “social control.” Both semiotic strategies fail on their own terms. Mask bans trivialize the history of the Klan, while promoting the same social control mask abstainers complained about during COVID. As such, mask bans reflect “face authoritarianism,” under which the state assumes the power to determine who wears a mask and when. A truly free society would reject this overcriminalization of daily life and respect the right to mask (or not mask) in most settings.

Download the essay from SSRN at the link.

Savage on Slavery and the Forgotten History of Religious Liberty

Audra Savage, Wake Forest University School of Law, is publishing Slavery and the Forgotten History of Religious Liberty in the BYU Law Review (2025-26).

This is a story about two ships. One is semi-mythical. The other is half-forgotten but brutally real. The first ship is the story of early settlers who sailed from Europe to escape religious persecution and, through hard work, perseverance and righteous rebellion, built a nation upon the fundamental freedom of religious liberty for all. The second ship represents the painful history of America with its millions of Africans stolen from their homeland, placed in unimaginable conditions, and stripped of their language, heritage, and most significantly, their beliefs. Current religious liberty jurisprudence centers around the historical understanding of the creation and ratification of the First Amendment of the United States Constitution, which encapsulates the mythology of the first ship. This jurisprudence, however, seemingly ignores the second ship and the Black experience with law and religion in the country’s early history. This reveals a gap in the Supreme Court’s reliance on the “history and tradition” of religious liberty when adjudicating constitutional claims related to the First Amendment Religion Clauses. This Article fills in the missing gap in the Court’s “historical practices and understandings” methodology by exploring the historical role played by law and religion in the development of slavery in America. It will describe the legal and religious understandings of Africans in early colonial history, including the justification for marking Africans for enslavement. It will then describe the legal and religious practices involving the enslavement of Africans. It will end with insight into the countervailing forces of bondage and freedom at the time the new nation was created. By providing this missing gap in the religious liberty story, the Article will ensure that the first ship is less mythical and more real, while also ensuring that the second ship is not forgotten and takes its rightful place in church-state history.

Download the article from SSRN at the link.

ICYMI: Pierre Schlag, Twilight of the American State (2023)

ICYMI:

Pierre Schlag, Twilight of the American State (University of Michigan Press, 2023).

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

The sudden emergence of the Trump nation surprised nearly everyone, including journalists, pundits, political consultants, and academics. When Trump won in 2016, his ascendancy was widely viewed as a fluke. Yet time showed it was instead the rise of a movement—angry, militant, revanchist, and unabashedly authoritarian.
How did this happen? Twilight of the American State offers a sweeping exploration of how law and legal institutions helped prepare the grounds for this rebellious movement. The controversial argument is that, viewed as a legal matter, the American state is not just a liberal democracy, as most Americans believe. Rather, the American state is composed of an uneasy and unstable combination of different versions of the state—liberal democratic, administered, neoliberal, and dissociative. Each of these versions arose through its own law and legal institutions. Each emerged at different times historically. Each was prompted by deficits in the prior versions. Each has survived displacement by succeeding versions. All remain active in the contemporary moment—creating the political-legal dysfunction America confronts today.
Pierre Schlag maps out a big picture view of the tribulations of the American state. The book abjures conventional academic frameworks, sets aside prescriptions for quick fixes, dispenses with lamentations about polarization, and bypasses historical celebrations of the American Spirit.

 

ICYMI: Buckles on Bob Jones University v. United States: A Journey Through Scriptures and History

ICYMI: Johnny Rex Buckles, University of Houston Law Center, has published Bob Jones University v. United States: A Journey Through Scripture and History in Law and Religion: Cases in Context (Leslie C. Griffin ed., 2010). Here is the abstract.

In Bob Jones University v. United States, the United States Supreme Court held that two schools maintaining racially discriminatory policies as to students failed to qualify for federal income tax exemption as organizations described in section 501(c)(3) of the Internal Revenue Code. A contextual analysis of Bob Jones University offers insight into a politically charged, historically important controversy rooted in biblical and theological compromise under the pressures of Southern fundamentalist education in the twentieth century. Fundamentalist and segregationist impulses combined with an obsequious deference to founding visionaries to produce admissions policies that betrayed the schools’ underlying religious principles.

Download the chapter from SSRN at the link.