Muñoz on The American Revolutions of 1776

Vincent Phillip Muñoz, University of Notre Dame, Department of Political Science, has published The American Revolutions of 1776. Here is the abstract.

Through the Declaration of Independence, the founders set in motion three interrelated revolutions: They put forth a new understanding of the foundations of political authority, crafted a new conception of government's purpose, and recognized the existence of religious truth and the legitimacy of religious authority. In this way, America's founding was animated by both the spirit of liberty and the spirit of religion.

Download the article from SSRN at the link.

Bilder on Hater of Kings: Catharine Macaulay's Constitutional Regicide and the Declaration of Independence

Mary Sarah Bilder, Boston College Law School, has published Hater of Kings: Catharine Macaulay’s Constitutional Regicide and the Declaration of Independence as Boston College Law School Legal Studies Research Paper No. 654.

The American Revolution was a constitutional regicide. At first glance it does not much resemble a regicide. Charles I had been executed in 1649. George III went on to live nearly half a century beyond 1776. But read the Declaration of Independence carefully and notice how large the king looms. The “present King of Great Britain” aimed to establish “an absolute Tyranny.” The eighteen usurpations each began with He, the king. The king embodied two particular political typologies: Prince and Tyrant. As such, he was “unfit to be the ruler of a free people.” This constitutional justification for regicide had been developed by British historian Catharine Macaulay in the fourth volume of her History of England. Macaulay’s history from James I to the execution of Charles I provided a historical model, theoretical explanation, and blueprint for would-be patriots. Because of Macaulay, on the far side of the Atlantic, American revolutionaries renounced their allegiance to the king–and to any king–without the complications and consequences of executing one.

Download the article from SSRN at the link.

McKoski on David Davis, Abraham Lincoln's Favorite Judge

Ray McKoski, University of Illinois, Chicago, School of Law, has published David Davis, Abraham Lincoln's Favorite Judge (University of Illinois Press, 2025) Book sections - Introduction and Biographical Sketch of David Davis. Here is the abstract.

David Davis, Abraham Lincoln’s Favorite Judge explores two aspects of Judge David Davis’s interesting and important life. First, the book traces Davis’s unmatched contribution to the political rise of Abraham Lincoln. Davis’s unbreakable loyalty to Lincoln forged while they traveled the central Illinois court circuit, their shared Whig origins, Davis’s voluminous political and personal contacts, his organizational skills, and as Lincoln put it, Davis’s knack “of making a man do a thing whether he wants to or not,” all combined to make the judge Lincoln’s strongest and most effective political supporter. In evaluating Davis’s role in Lincoln’s assent to the presidency, the book engages in a long overdue examination of the professional and personal relationship between the two friends. Second, the book details Davis’s vital contribution to the fabric of the legal system—impartiality on the bench. Off the bench Davis left no stone unturned in advancing the political career of Lincoln and made no secret of his personally held “fixed opinions” on subjects such as Democrats, temperance, and abolitionists. In court, however, Judge Davis set aside his beliefs and relationships and rendered decisions free from personal, political, and social views; friendships; public pressure; and partisan loyalties. Even Davis’s sharpest critics on the political front acknowledged his judicial impartiality and honesty. And Davis’s independence was on full display after Lincoln appointed Davis to the U.S. Supreme Court. To the disdain of Republicans, in Ex parte Milligan Davis disallowed the use of military commissions created by President Lincoln to try civilians in non-seceding states in which the courts were open. Then in Railroad Company v. Catharine Brown, Davis rejected the argument that “separate but equal” passenger cars complied with the railroad’s congressional charter. Davis found that segregated cars were prohibited as a “badge of slavery.” Twenty-three years later in Plessey v. Ferguson, the Supreme Court would ignore Davis’s reasoning and uphold the separate but equal doctrine.

The extracts are not available from SSRN.

Muñoz on History and Tradition in the Trump Justices' Church-State Jurisprudence

Vincent Phillip Muñoz, University of Notre Dame, Department of Political Science, has published History and Tradition in the Trump Justices’ Church-State Jurisprudence. Here is the abstract.

This article analyzes conservative Supreme Court justices' recent use of history and tradition in First Amendment religious liberty cases. It argues that these justices have failed to articulate a persuasive rationale as to why exactly the Establishment Clause must be interpreted by reference to historical practices and understandings and that they have failed to adequately show that history supports their "no-coercion" construction of what constitutes a prohibited establishment. Concerning the Free Exercise Clause, the court's conservatives have dismissed history by disregarding historical practices that do not conform to their approach to the text. The court's use, misuse, and nonuse of history cannot help but give the impression that policy preferences-more than history or the actual original understanding of the First Amendment-have determined recent church-state decisions.

Download the article from SSRN at the link.

Hrdy and Brean on Testing the Gernsback Hypothesis: Science Fiction's Influence on Patents and Innovation

Camilla Alexandra Hrdy, Rutgers Law School; Yale University Information Society Project, and Daniel Harris Brean, Senior In-House Intellectual Property Counsel, Respiratory Care, Philips; Intellectual Property Expert in Residence, Duquesne University Kline School of Law, are publishing Testing the Gernsback Hypothesis: Science Fiction's Influence on Patents and Innovation in the 2025 Symposium Issue of the Houston Law Review. Here is the abstract.

A common thesis in the science fiction community is that science fiction has an impact on innovation because it inspires readers and even professional scientists to perfect and put into practice the inventions they learn about through science fiction. We call this the "Gernsback hypothesis," because it was posited most clearly by the science fiction editor and inventor, Hugo Gernsback. This paper reveals that patents provide an invaluable source of information for testing the Gernsback hypothesis. It explains several approaches for using patents to test whether, and how, science fiction influences inventors. It reveals the strengths and weaknesses of these approaches. This paper should be of particular interest today, when powerful tech moguls admit that science fiction deeply influenced their pursuits, from artificial intelligence, to virtual reality, to space travel. It would be helpful to gain a more precise lens into how science fiction affects inventors. Patents could provide a resource for gaining insights into this process.

Download the article from SSRN at the link.

Murray on Liberalism, the Founding, and American Criminal Justice

Brian Murray, Seton Hall Law School, is publishing Liberalism, the Founding, and American Criminal Justice in volume 101 of the Notre Dame Law Review (2025-2026). Here is the abstract.

In the past decade, two groups have taken aim at the American political and legal experiment: critics of modern liberalism and contemporary criminal justice reformers. Liberal critics point to the corrosive effect of liberal ideas on governmental, legal, social, and private institutions. Criminal justice critics lament systemic racism and classism, power imbalances, over-criminalization, and mass incarceration. Broadly, both groups argue the American political and legal experiment was destined to fail, and has failed, given its ideological roots. This Article puts both into conversation and makes two arguments. First, it explores whether criticism of the liberal paradigm offers another explanatory horizon for the ills of American criminal justice. Second, it suggests there is strong evidence that these trends were not the original design of the Founders, who, while operating within the liberal tradition, sought to entrench certain pre-modern ideas into American criminal justice. Four developments in the modern American criminal legal system—relating to lawmaking, procedure, adjudication, and punishment—provide evidence of the critique of the excesses of modern liberalism. First, the system has become almost entirely positivist, leaving officials to exclusively determine the boundaries of criminal law and definitions of punishment. Over-criminalization and confusion about what punishment is has resulted. In the procedural realm, core doctrines are nominalist and utilitarian in how they attempt to protect privacy and liberty. Third, the liberal, social contractarian ethic that permits equating voluntary agreement with justice, however artificial or divorced from the truth, persists in plea-bargaining norms and practices, separating the legitimacy of criminal adjudication from reality. Finally, modern liberal premises manifest in a sentencing system primarily concerned with controlling risk—through quantified instrumentalization. While these trends align with the pathologies of modern liberalism identified by critics, Founding thinking directly contradicts these developments. The Founders were not legislative positivists, either generally or with respect to criminal law and punishment. Second, criminal procedure protections were tethered to the world of things, not sentiments about interests. Third, juries were tasked with adjudicating criminal matters, determining truth, and injecting their normative views into the legal system. Finally, the moral underpinnings of criminal law animated Founding thought on sentencing and punishment. Thus, while modern liberal premises and excesses help to explain some systemic developments lamented by criminal justice scholars, these trends contradict aspects of the original design, meaning they are paradigmatic rather than originally intended.

Download the article from SSRN at the link.

Werner on The Physics of Law

Swen Werner, My Digital Truth, has published The Physics Of Law. Here is the abstract.

This paper interrogates the structural preconditions of lawful decision-making by showing that law is a symbolic system grounded in logical coherence, semantic stability, and operational consistency. It argues that contemporary legal interpretation increasingly abandons these foundational requirements, leading to a form of institutional dysfunction where law devolves into a belief system. Drawing from Roman legal architecture, computational logic, and legal theory, the paper reframes rights not as normative entitlements but as structurally necessary constraints within a rule-based system. It proposes a non-normative justification for private property as a logical gate enabling coherent legal action among actors with equal rights and no default duties. Through critical analysis of machine adjudication, AI unreliability, and copyright enforcement, it illustrates how legal coherence is undermined when the symbolic form of law is severed from its functional logic. The paper concludes by presenting a framework to restore lawful governance through epistemic clarity and constraint-based reasoning, arguing that legal systems must enforce coherence or collapse into ritualized control. Law is not opinion - it is computation.

Download the paper from SSRN at the link.

Dojcinovic on War Crimes: Definition, History, Practice

Predrag Dojcinovic, University of Connecticut, Gladstein Family Human Rights Institute; International Criminal Tribunal for the former Yugoslavia (1998-2017), has published War Crimes: Definition, History, Practice. Here is the abstract.

This encyclopedic entry on war crimes provides insights into their definition, historical development, and application in major international criminal trials. As some of the gravest offenses under international law, war crimes involve serious violations of international humanitarian law committed during armed conflict. Defined in Article 8 of the 1998 Rome Statute, they include targeting civilians, torture, and using child soldiers. Rooted in ancient norms and shaped by Grotius, the Lieber Code, and the Hague Conventions, the concept evolved significantly through the 1949 Geneva Conventions and the 1977 Additional Protocols (APs), which extended protections to civilians and non-international conflicts. Enforcement by tribunals like Nuremberg, ICTY, ICTR, and the ICC has established clear jurisprudence, affirming individual criminal responsibility and refining the legal elements of war crimes.

Download the entry from SSRN at the link.

Khan on Civil Rights Lawyering and the Reconstruction of Law and Literature

Almas Khan, Civil Rights Lawyering and the Reconstruction of Law and Literature, at 29 European Journal of English Studies 1 (2025). Here is the abstract.

Interrogating the place of race in law and literature has newfound urgency in the wake of the U.S. Supreme Court’s 2023 decision striking race-based affirmative action in university admissions and a renewal of the “canon wars” in U.S. politics and academia. Amidst this turbulence, legal scholars have published landmark articles unmasking the racist intellectual history of several doctrinal fields. Their critiques inform this essay, which charts a counter-genealogy of law and literature’s growth as a field grounded not mainly in academic work but civil rights praxis. The essay first summarises the traditional narrative of law and literature’s emergence as an interdiscipline, close reading canonical texts that craft a genealogy of elite white men building the field. Next, the essay presents a narrative of the field centralising the work of civil rights lawyers from Reconstruction to the civil rights era. Turning to this alternative archive highlights Black lawyers’ role in constructing the field, including through theorising about interdisciplinarity and re-forming literary genres to promote racial justice. The essay ultimately encourages law and literature scholars to consider how an exclusionary intellectual history of the field has shaped their research and how a more inclusive intellectual history can revitalise the interdiscipline.

Here is a link to the abstract and the notes. 

Sanders on Reasonable Doubt About James Bradley Thayer

Anthony B. Sanders, Institute for Justice, is publishing Reasonable Doubt About James Bradley Thayer in volume 18 of the Elon Law Review. Here is the abstract.

This Article responds to some recent pathbreaking work concerning the real-world justification for James Bradley Thayer’s famous 1893 essay The Origin and Scope of the American Doctrine of Constitutional Law. Thayer’s essay defended the use of a “beyond a reasonable doubt” standard when judges engage in judicial review and additionally claimed the standard was of longstanding and widespread acceptance. The recent scholarship has argued Thayer was justified in this historical claim. I respond by arguing that although the standard was mentioned and praised in a variety of sources, in line with Thayer’s claim, when seen in the context of a wider body of caselaw it becomes quite suspect. I survey how state high courts applied—or, more importantly, did not apply—the reasonable doubt standard during a sample of years shortly before Thayer’s essay: 1880 through 1884. I find these courts only mentioned the standard in a small minority of cases when they exercised judicial review. When courts relied on the standard they did so haphazardly and as a practical matter it did little work to affect the outcome of cases. Indeed, these courts seemed to have simply avoided the standard whenever they wanted to. It was exceedingly rare for majority opinions to invoke it when declaring a law unconstitutional, even though the same majorities ruled laws were constitutionally invalid in more than a quarter of the cases in which they exercised judicial review. Before Thayer the standard was, for the most part, exactly what he claimed it was not: rhetoric. But although Thayer was wrong about the past, he shaped the future. Thayer’s version of the reasonable doubt standard, directly or indirectly, later became the modern rational-basis test. That is a standard that influences the outcome of cases. But it is not the same thing. Thus, a tradition of “reasonable doubt” in actual holdings was of limited reality before Thayer. But he is at least partly responsible for the later very robust—but different—reality.

Download the article from SSRN at the link.

Crivelli on Eighteenth-Century English Marriage and Inheritance Law in Pride and Prejudice

Chiara Crivelli (no affiliation provided) has published Eighteenth - Century English Marriage and Inheritance Law in Pride and Prejudice. Here is the abstract.

This paper examines how Pride and Prejudice reflects the intersection of marriage, inheritance, and gender in late-eighteenth and early-nineteenth-century England, with a focus on the legal implications for women. The central research question is: “How does Pride and Prejudice engage with contemporary marriage and inheritance laws to reflect the economic and legal dependencies of women in this period?” Using a socio-legal historical approach, the paper explores the legal doctrines of coverture and entailment, tracing their historical development from the De Donis Conditionalibus clause in the Statute of Westminster (1285) to their application in Austen’s time. The analysis draws on legal scholarship, particularly J.H. Baker’s work on English property law, to examine how Austen’s treatment of inheritance laws—particularly entailments—shapes the financial prospects and autonomy of women in the novel. The paper is structured as follows: the first chapter provides a biographical and thematic overview of Austen’s work. The second chapter situates Pride and Prejudice within the social and legal context of Austen's England, focusing on class structure and gender norms. The third chapter explores the legal implications of marriage, particularly the doctrines of coverture and their impact on women’s legal identity. The fourth chapter focuses on inheritance law, specifically entailments, and their role in restricting women’s financial autonomy. Ultimately, this paper argues that Pride and Prejudice critiques the restrictive legal and social systems of its time, illustrating how marriage served as both a means of survival and a legal constraint for women.

Download the paper from SSRN at the link.

Blocher and Siegel on The Ambitions of History and Tradition in and Beyond the Second Amendment

Joseph Blocher, Duke University School of Law, and Reva Siegel, Yale University School of Law, are publishing The Ambitions of History and Tradition In and Beyond the Second Amendment in volume 174 of the University of Pennsylvania Law Review. Here is the abstract.

This Article examines the ambitions of history-and-tradition review in and beyond the Second Amendment. In Bruen and Rahimi the Roberts Court rejected means-end review in favor of a historical-analogical approach, claiming to constrain the exercise of judicial discretion, and thus to promote the democratic decisions of the founders. But our examination of these cases shows that the Court has created new opportunities for judges to advance their values in considerably less transparent ways. We identify contexts in which Second Amendment doctrine enables judicial discretion, key among them that it allows judges to reason about gun rights and regulation at disparate levels of generality, extending rights protection to modern guns while requiring gun laws to resemble ancient analogues. When applied in this asymmetric fashion, the historical approach deregulates in ways that are neither acknowledged nor justified. An eight-member majority objected to this strategy in Rahimi and voted to uphold a federal gun law. Yet numerous Justices wrote separately to limit Rahimi’s reach—and, a year later, to suggest that the Court should take a case involving an assault-weapons ban to clarify the method set forth in its earlier cases. Our close reading of the history-and-tradition (HAT) cases shows that there is a persistent gap between what the Court says and does—between the judicial constraint the Roberts Court promises and the actual decisions it delivers. Understanding this dynamic in the Second Amendment cases helps us recognize it in the First Amendment and Substantive Due Process cases as well. We can better appreciate the Court’s reasoning in extending HAT review if we excavate the arguments advanced in the decade between Heller and Bruen for substituting the HAT approach for means-ends review. This retrospective shows us that HAT approaches exhibit the very problems imputed to means-ends review: HAT review is not grounded in original understanding and employs shifts in generality to provide judges discretion to enforce value-based understandings. We can see this dynamic unfolding inside and outside the Second Amendment context. HAT decisions pose distinctive threats to democracy. First, Bruen has implemented HAT through judicial review with a strong presumption of unconstitutionality, a counter-majoritarian practice lacking precedent at the founding. Second, HAT review is not transparent, obscuring reasons for judicial decisions from the people and thus obstructing democratic dialogue. Third, the HAT framework encourages judges to decide the constitutionality of public safety laws on grounds that ignore the public’s most urgent reasons for enacting the laws. This reading of the Court’s Second Amendment cases indicates that the push to adopt HAT approaches in First Amendment, Due Process, and other areas of constitutional law is likely to compound the problems it is supposed to solve, while insulating the Court’s control of the Constitution from the public governed by it.

Download the article from SSRN at the link.

Gurnham on Stopping the Boats, Changing the Narrative: How the Migrant Refugee Bildungsroman Became a Ghost Story

David Gurnham, Stopping the Boats, Changing the Narrative: How the Migrant Refugee Bildungsroman Became a Ghost Story, 37 Law & Literature 29-52 (2025). Here is the abstract.

What literary conventions best help us understand the migrant refugee’s claim for protection, and the terms on which law claims to offer it? One contender to have attracted attention recently is “bildungsroman” (“formation novel”), since the narrative of the refugee escaping danger and oppression to find safety and stability within a host state arguably maps onto bilgungsroman’s themes of a protagonist’s difficult personal journey from margins to social acceptance and flourishing. However, this view is now seriously undermined by legislative initiatives in the UK aimed at ensuring migrant refugees who cross the English Channel in small boats should have no cause to hope for such a happy ending. By way of a close reading of the narrative implications of these initiatives, this article proposes a thorough rethink of our approach to figuring the irregular migrant refugee. Rejecting bildungsroman as now implausibly optimistic, the article suggests we look instead to the ghost, whose “presence” is typically the chief problem for those to whom it appears, whose “shape” is uncertain, and whose complaints and demands inspire dread and strenuous efforts to make it disappear. The article employs these conventions to draw a new relationship between refugee migration law and the arts, and argues that if the UK’s policies for “stopping the boats” may be characterized as an attempt to effect such a disappearance, then the migrant refugee’s reappearance in visual art offers a ghostly figuration of resistance and of admonishment at injustice unredressed and obligations unfulfilled. The article traces these qualities and explores their critical potential through two recent works of visual art, namely “The Walk” (2021–22) and Gideon Mendel’s “Dzhangal” [“Jungle”] (2016–17). Both of these works admit of multiple readings, but both also crucially resist the punitive and reductive framing of migrants in law in some surprising ways.

Download the article here.

Williams on Sola Scriptura and the Magisterium: Reconciling Two Biblical Analogues of Constitutional Interpretation Through a Judicial Hermeneutic of Storytelling

Telia Mary U. Williams, Northern Illinois University College of Law, has published Sola Scriptura and the Magisterium: Reconciling Two Biblical Analogues of Constitutional Interpretation Through a Judicial Hermeneutic of Storytelling. Here is the abstract.

The validity of the two predominant methods of interpreting the U.S. Constitution has been long and hotly debated. Both of these methods— originalism and living constitutionalism—draw their force from hermeneutics, or methodological principles of interpretation that commonly assist readers of scriptural texts. These divergent constitutional hermeneutic approaches ultimately treat the Constitution as a civic scriptural or holy text, and the multiplicity of interpretations that result from them, largely derive from one of two principal scriptural or Biblical hermeneutical approaches. Indeed, the two principal approaches to constitutional interpretation map onto one of either “sola Scriptura” or Magisterial traditions. Sola Scriptura denotes the ethos of determining the meaning and purpose of a text apart from any authorial imperative, whereas a magisterial tradition determines the meaning and purpose of a text by way of a predetermined and dispositive authority. Importantly, and fundamentally, both approaches repose authority in a Magisterium writ large to settle the meaning of their respective sacred texts. (In the case of the Constitution, that Magisterium is reposed in the United States Supreme Court). However, that legal scholars and courts (perhaps unwittingly) employ biblical or theological modes to arrive at a constitutional interpretation, forecloses other, non-sectarian hermeneutical modes that assist judges, particularly those who preside over lower jurisdiction courts, to decide cases. Speaking as a judge pro tempore in a limited jurisdiction state court, as well as a tenure-track law professor at a state school, I propose that an alternative methodology of interpretation of storytelling may serve to honor both text and community. A “judicial hermeneutic” of storytelling may reconcile the enduring (and unproductive) “religious” dichotomy of constitutional interpretation and better address the cause of justice in everyday constitutional matters. Apart from possibly mitigating the dilemma of interpretation, such an approach may also promote a multiplicity of meaning, and a greater plurality of voices in this constitutional arena.

Download the article from SSRN at the link.