Gilly on The Corporate Villainy of Tom Sawyer: Manufactured Scarcity, the Ethics of Attention, and the Literary Prehistory of Dark Patterns

Travis Gilly, Real Safety AI Foundation, has published The Corporate Villainy of Tom Sawyer: Manufactured Scarcity, the Ethics of Attention, and the Literary Prehistory of Dark Patterns. Here is the abstract.

The whitewashing scene in Mark Twain's The Adventures of Tom Sawyer (1876) is conventionally received in one of two ways: as a comic illustration of the malleability of value, the reading made canonical in behavioral economics by Ariely, Loewenstein, and Prelec (2006), or as a celebration of the boyish individualist, the reading carried into popular culture by works such as Rush's 1981 song of the same name. This paper proposes a third reading. It argues that the scene is the earliest structurally complete literary rendering of the design logic now catalogued under the heading of dark patterns: manufactured scarcity, engineered desire, and the extraction of value from a manipulated audience. On this reading Tom is not a charming rascal but the prototype of the engagement designer who optimizes a system against the people inside it. The paper distinguishes two ethics of gamification, the earned, in which an activity is genuinely made worth doing and the designer participates in it, and the engineered, in which desire for access to a hollow good is manufactured and the designer abstains, and it proposes the designer's own abstention, the refusal to consume the product, as a diagnostic of the engineered kind. Locating the reading within the ethics of attention and persuasive design (Fogg, 2003; Verbeek, 2011; Williams, 2018) and the dark patterns literature (Brignull, 2010; Mathur et al., 2019), it contends that the fence is not a quaint antecedent but a working model of contemporary attention capture, and that the uniformly admiring reception of Tom is itself evidence of how thoroughly the culture has naturalized the extractor as hero. It closes on the irony that Twain, who coined the term Gilded Age and named the capitalist as the oppressor, narrated the con as cleverness and never marked it as harm.

Download the paper from SSRN at the link.

Call For Papers, 27th International Roundtable for the Semiotics of Law

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

Call for Papers – 27th International Roundtable for the Semiotics of Law (IRSL 2027)

The Faculty of Law and Administration at the Jagiellonian University in Kraków is pleased to host the 27th International Roundtable for the Semiotics of Law (IRSL) from 30 June – 2 July 2027.

Theme:
Methodology of Semiotics of Law: How and Why We Do It the Way We Do and How Can We Do It Better?

This congress invites scholars to reflect on the methodologies that shape research in the semiotics of law, exploring both established practices and innovative directions for future inquiry. Contributions are welcome on a broad range of topics, including methodological foundations, interdisciplinarity, quantitative and qualitative approaches, relationships with legal theory and sociology, the impact of semiotics of law on legal institutions, and methodological challenges in ongoing research.

📅 Important Dates

• Abstract submission deadline: 15 January 2027
• Notification of acceptance: 15 February 2027
• Congress dates: 30 June – 2 July 2027

📍 Venue
Faculty of Law and Administration, Jagiellonian University, Kraków, Poland

📄 Submissions should include:

• Title of the proposed paper
• Abstract (up to 300 words)
• Five keywords
• Author information (affiliation and official email)

Selected papers will be considered for publication in a Special Issue of the International Journal for the Semiotics of Law or in an edited volume.

For full details and submission information, please visit:
https://link.springer.com/journal/11196/updates/52934494

We warmly encourage researchers, academics, and practitioners interested in the semiotics of law to join us in Kraków for this important international gathering.

 

Available Soon From NYU Press: Law, Narrative, Narratology: Interdisciplinary Essays (Greta Olson and Simon Stern, editors)

Soon available for purchase: Law, Narrative, Narratology: Interdisciplinary Essays (Greta Olson and Simon Stern, eds., New York University Press, 2026). Due in August.

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

Explores the diverse applications of narrative in law beyond the courtroom, from client-lawyer interactions to legal decisions Once regarded by law professors as serving an ornamental purpose in legal argumentation, narrative has gained an increasingly prominent role in legal scholarship. Yet while scholars have examined the many functions and effects of narrative in legal decisions, courtroom arguments, and the stories we tell about the law, research on law and narrative has generally limited its focus to the most overtly noticeable place for narrative in legal writing—the factual material presented in trials. Law, Narrative, Narratology explores legal narrative in a variety of contexts, including pre-trial litigation, trial argument-framing, legal decisions, human rights law, media reports on court cases, and work advocating for legal change. Taking a comparative approach to the intersections of law, narrative, and narratology, contributors consider various “narrators” of law to make sense of areas of legal argumentation beyond the current scope of narratological-legal research. By examining topics ranging from the distinction between a story’s narrative and its discourse to the use of narrative perspective, the essays in this volume illuminate the techniques legal actors use to craft stories, as well as the narrative arcs their interlocutors inhabit. Editors Greta Olson and Simon Stern have cultivated a collection of essays by global legal and narrative scholars, allowing the volume and its contributors to assess an array of narratological issues across national and international boundaries, and civil and criminal law contexts. Offering a fresh analysis of narrative’s uses in the law, Law, Narrative, and Narratology provides a needed expansion of the study of narrative across the justice system.

 

Portuondo on What Personhood Means

Laura Portuondo, University of Houston Law Center, has published What Personhood Means at 124 Mich. L. Rev. 1303(2026). Here is the abstract.

What would it mean for the Supreme Court to recognize the constitutional personhood of prenatal life? Many assume the answer is clear: a nationwide abortion ban. Professor Mary Ziegler’s new history of the prenatal personhood movement, Personhood: The New Civil War over Reproduction disrupts this assumption. Ziegler shows how antiabortion advocates, who have long agreed that prenatal life should have rights, have never agreed about what exactly those rights are or what it would look like to enforce them. By illustrating the vagueness of personhood arguments, Personhood reveals a new path to resist them: specific doctrinal analysis of what personhood entails. This Review engages in the concrete doctrinal analysis that Personhood invites. Such analysis reveals serious problems with a wide range of claims about what personhood requires. While personhood advocates assert that recognizing prenatal personhood would mandate meaningful protection of prenatal life under the Fourteenth Amendment, the reality is that contemporary Fourteenth Amendment jurisprudence extends little meaningful protection to most people. Few liberty and equality protections, that is, follow from the status of personhood. The doctrinal weakness of personhood arguments reveals a subtle unifying thread in the fractious movement history that Ziegler documents: all personhood arguments are calls for constitutional change. Contemporary personhood advocates seek to extend protections to prenatal life that are—and are likely to remain—unavailable to women, people of color, and other vulnerable Americans. Calls for prenatal personhood should thus be understood as calls to entrench a deeply unequal constitutional future.

Download the book review from SSRN at the link.

Ablavsky on State Criminal Jurisdiction in Indian Country: A History

Gregory Ablavsky, Stanford Law School, is publishing State Criminal Jurisdiction in Indian Country: A History in volume 133 of the Virginia Law Review. Here is the abstract.

In Oklahoma v. Castro-Huerta (2022), the Supreme Court dismantled the long-standing black-letter principle that states lack criminal jurisdiction in Indian country absent congressional authorization by embracing a revisionist historical account emphasizing inherent state sovereignty. The consequences have been predictable: intense uncertainty and ongoing litigation. Oklahoma’s highest courts, for instance, have repeatedly endorsed inherent state jurisdiction over Native people within Indian country, employing Castro-Huerta to distinguish considerable contrary federal law and precedent. The challenge, especially given the current history-minded judiciary, is that the claim that states have never asserted inherent criminal jurisdiction over Indian country is too simplistic and easily disproven, making it tempting to toss out the old rules. But the revisionist claim, advanced by some scholars and embraced by Justice Thomas, that states enjoyed expansive criminal jurisdiction, is also wrong. This Article attempts to offer a more rigorous legal history, moving beyond the handful of Supreme Court decisions to survey every identifiable state and federal case on inherent state criminal jurisdiction in Indian country. It depicts four distinct periods: an initial headlong assault on federal authority (1787–1834) ; an era of "great confusion" in which states pressed on the many uncertainties of federal Indian law (1835–1886) ; the jurisdictional chaos of the allotment era (1880s–1930s); and a period of relative statutory stability (1948–2022) that Castro-Huerta has now abruptly terminated. What this history shows above all is contestation—a cat-and-mouse game in which states seized on ambiguities to claim authority, only to be periodically rebuffed by the federal courts. But the mere existence of past conflict does not support broader state jurisdiction in Indian country. Rather, every conventional method of legal and constitutional interpretation undercuts the argument that such jurisdiction was ever meaningfully positive law. There are also strong normative reasons for skepticism, since state claims of authority were rarely motivated by public safety but were instead tools to facilitate Native dispossession and erode tribal self-governance. By recounting these complexities, the Article challenges the current legal instability that threatens the foundations of modern tribal sovereignty.

Download the article from SSRN at the link.

Green on What the Declaration Didn't Do

Jonathan Green, University of Florida College of Law, is publishing What the Declaration Didn't Do in volume 101 of the Notre Dame Law Review. Here is the abstract.

What did the Declaration of Independence do? Today, the Declaration figures in our "constitutional memory" as the text that created the United States, and that set out the essential principles that define us as Americans. But when the Declaration first appeared, neither of those claims was self-evident. Whether the Declaration actually created thirteen "Free and Independent States" on July 4, 1776, turned on whether, before 1776, Britain's American colonies had their own constitutional rights against the Crown--that is, corporate rights that were conceptually severable from the rights of their English contemporaries. Because that question was essentially insoluble, the Declaration's legal effects weren't clear in 1776. By extension, whether there were an independent, self-directing American "People"--one that could corporately agree to a set of shared principles and announce them in the Declaration--wasn't clear either. Bringing the Declaration's initial indeterminacy back into view, I argue, illustrates how our memories of the past sometimes diverge from our history. We can choose to be ruled by myths, if we want. But we shouldn't fool ourselves into conflating the past we'd prefer with the one we actually have. 

Download the article from SSRN at the link.

Spitzer on The Historic Regulation of "Unusual" Weapons

Robert J Spitzer, SUNY Cortland; College of William & Mary School of Law, has published The Historic Regulation of “Unusual” Weapons. Here is the abstract.

Is the AR-15 assault-type rifle an “unusual” gun? This might seem an amorphous or subjective question, but considerable effort has been expended to address a question very similar to this: namely, whether assault weapons are in “common use” in America today. The prodigious debate over this otherwise arcane and indisputably ambiguous question has become central to court determinations of whether civilian possession and use of assault weapons and other guns is or is not protected under the Second Amendment’s right to bear arms. This “common use” standard appeared in the Supreme Court’s 2008 ruling in D.C. v. Heller, the case that established a right of citizens to have guns for personal self-defense under the Second Amendment. In overturning the District of Columbia’s then-strict law, the court concluded that handgun possession should be protected because such guns were in “common use” as they were “overwhelmingly chosen by American society” for self-protection. The Heller court plucked the “common use” phrase from a 1939 Supreme Court case, U.S. v. Miller. An examination of America’s history of weapons regulations reveals that efforts to restrict “unusual” weapons is nothing new. This paper explores a variety of old weapons laws that imposed an array of restrictions on certain unusual types or categories of weapons, precisely on the grounds that they posed a threat to public safety and good order, or were of little use for conventional weapons-related activities. The old types of weapons and related technologies examined here include trap guns, punt/pivot/swivel guns, consideration of ghost guns, and switchblades. This analysis will shed important light on the contemporary legal and political struggle over modern weapons restrictions.

Download the article from SSRN at the link.

Smith and Chang on Stravinsky's National Anthem

Michael L. Smith, University of Oklahoma College of Law, and Yoo Jung Chang, Quad City Symphony Orchestra, have published Stravinsky's National Anthem.

In January 1944, famed composer Igor Stravinsky was scheduled to conduct the Boston Symphony Orchestra in performing his controversial arrangement of “The Star-Spangled Banner.” Before the performance took place, the police arrived in Stravinsky’s dressing room and informed him that his arrangement violated a Massachusetts law against altering the national anthem. Faced with the prospect of a criminal violation, and with the police already removing the offending arrangement from the music stands, Stravinsky opted to conduct the traditional version of the anthem. This Article takes a deep dive into Stravinsky’s distinctive anthem arrangement, surveying its development, performance, and reception. Along the way, we dig into Massachusetts’s anthem restriction—a 1917 law that remains on the books to this day. In doing so, we address the parallels between the law’s wartime development and its wartime enforcement against Stravinsky. We argue that Stravinsky’s run-in with the police was unwarranted, both because Stravinsky’s arrangement did not violate the statute, and because the statute itself ran afoul of the First Amendment. Our historical investigation and analysis shed light on modern issues, including the phenomenon of patriotic outrage, the role of moral panic in the development and enforcement of the law, and the dangers of leaving unconstitutional zombie laws on the books.

Download the article from SSRN at the link.

Hoffheimer on Home of the Brave, Land of the Free: The Star-Spangled Banner's Contested History

Michael H. Hoffheimer, University of Mississippi School of Law, is publishing Home of the Brave, Land of the Free: The Star-Spangled Banner's Contested History in volume 2 of the Nebraska Journal of Advancing Justice (Spring 2026).

This Essay reviews the history of the composition, revision, and reception of The Star-Spangled Banner, It documents how generations of Americans have contested multiple aspects of the song that would become the national anthem from its musical sources to its title, meaning, and standards of performance. Controversies over the song's symbolic value peaked during the struggle to abolish slavery, the movement for civil rights, and protests by athletes taking the knee in response to continuing repression and abuse of African Americans. Drawing on abolitionist literature, the autobiography of Frederick Douglass, songs by Lead Belly, and speeches of Martin Luther King, Jr., the Essay shows that the phrase "land of the free" provoked emotional reactions that veered from dismissing the words as hypocritical to embracing them as aspirational.

Download the essay from SSRN at the link.

Mahardhika on The Spirit Before Law: A Philosophical Reconstuction of Javanese Spirits as Sacral Social Control

Jimmy Mahardhika, Inspired Research Collective, has published The Spirit Before Law: A Philosophical Reconstruction of Javanese Spirits as Sacral Social Control. Here is the abstract.

Javanese spirits function as pre-juridical institutions of sacral social control. Their philosophical significance lies in the claim that normativity can be topographical: place itself can command before law speaks. In the Javanese spirit-world, authority is not only spoken by elders, written into rules, or centralised in institutions; it is distributed across houses, graves, trees, watersources, village boundaries, forests, mountains, ritual sites, and zones felt as angker. Dhanyang, cikal-bakal, punden, ancestral guardians, and village rituals organise conduct by transforming space into obligation, ancestry into authority, ecological boundaries into moral limits, invisible sanction into self-regulation, and sacred atmosphere into social compliance. The method is structural-philosophical reconstruction rather than empirical genealogy: the central question is not what Javanese spirits are believed to be, but what they do as structures of normativity. Internal Javanese vocabularies—rasa, pamali, kualat, laku, eling-waspada, memayu hayuning bawana, and jagad cilik–jagad gedhe— ground the analysis in local categories while preserving its philosophical scope. Sacral social control is distinguished from Durkheim’s general theory of the sacred by specifying the mechanisms through which sacred force becomes operational: spatialised authority, atmospheric prohibition, ritual mediation, ecological hesitation, cultivated rasa, fear of kualat, and the threshold at which communal order becomes domination through monopoly of interpretation. The question is not whether spirits exist, but what kind of world becomes possible when land, ancestors, places, and prohibitions are experienced as watched, inherited, and dangerous.

Download the article from SSRN at the link.

Segarra on Tattoos and the Unreasonable Logic of Reasonable Suspicion

Curtis Segarra, University of Michigan Law School, is publishing Tattoos and the Unreasonable Logic of Reasonable Suspicion in volume 63 of the Criminal Law Bulleting. Here is the abstract.

The U.S. is a tattooed nation, with nearly a third of the population sporting at least one tattoo. Yet law enforcement regularly uses tattoos in their justification to stop, question, pat down, and briefly detain individuals under the Terry—or reasonable suspicion—doctrine, often claiming the tattoos are gang related or indicate criminal involvement. Through interviews and case examples, I argue that such practices can lead to racialized and biased policing. Even when law enforcement interpretations of tattoos do not quite amount to biased policing, they still run afoul of the original logic of Terry, the case that created the reasonable suspicion doctrine. Given the prevalence of tattoos in the U.S., this misuse of Terry goes against the Fourth Amendment. Therefore, I argue that courts should employ a bright-line rule against the use of tattoos in the law enforcement reasonable suspicion analysis. This fills a gap in the existing literature (which focuses primarily on the use of tattoos within gang databases) by arguing for a strengthening of Fourth Amendment protection for all tattooed individuals. I show that a bright-line rule would not improperly hinder police officers' ability to do their jobs and that such a rule is consistent with similar prohibitions courts have placed on the use of race within the reasonable suspicion framework. I conclude that the use of tattoos in law enforcement's reasonable suspicion analysis is ripe for abuse and must be checked by a judicial bright-line prohibition on the use of tattoos to justify an intrusion under the Fourth Amendment, thereby addressing a growing, but under-appreciated, problem developing in American policing.

Download the article from SSRN at the link.

Shih-Chun Steven Chien on Cultivating Sense: Cultural Change in the Prosecutor's Office

Shin-Chun Steven Chien, University of Nevada, Las Vegas, School of Law, has published Cultivating Sense: Cultural Change in the Prosecutor's Office. Here is the abstract.

Prosecutors exercise broad discretion. They are widely viewed as the gatekeepers of the criminal justice system. To date, studies on prosecutors in different jurisdictions have largely focused on how to conceptualize, manage, and eventually control the exercise of prosecutorial discretion. Scholars have recently turned their attention to the importance of internal organizational management and leadership’s role in changing office culture as a means to regulate prosecutorial discretion. But we have limited empirical evidence as to how changes occur within a prosecutor’s office and what precise role organizational leaders play during this process. This Article constructs a new paradigm for the understanding of cultural change within prosecutors’ offices. It reveals a troublesome paradox about modern prosecutorial power: to transform organizational culture, prosecutors need to forge a new type of power based on what I refer to as “sense-making authority.” Meanwhile, the same power enables prosecutors to create an opaque process that bypasses organizational structure and reduces external accountability. To build my theory of cultural change, I rely on a comparative case-study approach based on ethnographic research. The research sites of the Article were a group of district attorneys’ offices led by “progressive prosecutors” across the United States and a district prosecutor’s office located in a metropolitan area of Taiwan. This Article proposes a contested cultural change model and explores ways in which the model could contribute much-needed theoretical and strategic groundings to the comparative study of prosecutorial reforms across different jurisdictions.

Download the article from SSRN at the link.

Toussaint on Du Bois, Afrofuturism, and Constitutional Renewal

Etienne C. Toussaint, University of South Carolina School of Law, has published After the Comet: Du Bois, Afrofuturism, and Constitutional Renewal at 101 NYU Law Review 1120 (2026). Here is the abstract.

American constitutional development has long followed cycles of crisis and restoration, resisting linear narratives of progress. This pattern is especially evident in the interplay between Black protest movements and constitutional interpretation, where transformative possibilities emerge during periods of social rupture but are later constrained by institutional restoration. This Essay argues that W.E.B. Du Bois’s 1920 speculative fiction, The Comet, offers a framework for understanding these cyclical dynamics. The short story’s three-part structure—normalcy, rupture, and restoration—reveals how genuine equality surfaces during catastrophic disruption yet proves unsustainable once hierarchical “normalcy” returns. Using interdisciplinary analysis that combines legal theory, historical inquiry, and literary criticism, this Essay traces “comet cycles” within major Black protest movements from abolition to contemporary struggles. It demonstrates that literary imagination can illuminate constitutional dynamics that conventional doctrinal analysis cannot reach. Specifically, this Essay argues that Black protest movements function both as catalysts of constitutional rupture and as interpreters of constitutional possibility during suspended moments of normalcy. Examining the abolitionist era, the Civil Rights Movement, and present-day struggles through Du Bois’s framework highlights how social movements advance foundational promises of liberty and equality while revealing the fragility of constitutional gains. Even radical critiques of constitutional legitimacy often arise because movements have taken these promises seriously, exposing the inadequacy of conventional reform. This approach offers strategic insight for contemporary movements, clarifying when transformative possibilities emerge and how restoration dynamics undermine them. By centering Black lived experiences as integral to constitutional interpretation, this Essay reframes American constitutionalism as shaped fundamentally by those historically excluded from legal discourse, yet central to its most transformative moments.

Download the article from SSRN at the link.

Forthcoming from Yale University Press: Sergei Antonov, Russia's Rogue Masters: Elite Criminal Trials in the Age of Reform, 1866-1884

Forthcoming from Yale University Press: Sergei Antonov, Russia’s Rogue Masters: Elite Criminal Trials in the Age of Reform, 1866-1884 (to be published July 21, 2026). Here from the publisher's website is a description of the book's contents.

In this book, lawyer and historian Sergei Antonov examines the largest and most prominent criminal cases following the landmark judicial reform of 1864 that introduced the public jury trial. Each case involved elite defendants or victims: nobles, officials, and wealthy merchants. Their crimes ranged from murder and arson to fraud, forgery, and embezzlement. Antonov argues that, far from a reluctant concession of little consequence within Russia’s autocratic regime, the new courts were a crucial instrument through which the tsar and his government maintained a fragile political and social equilibrium. The new courts punished wayward elites and admonished the rest, teaching them about the limits of permissible violence, the exercise of power, and profit seeking. For the only time in Russia’s history, powerful persons could reliably expect to go on trial for major crimes, while also expecting that trial to be fundamentally fair. Moreover, for the only time in Russian history, late imperial criminal trials exposed the hidden lives of Russia’s elites to public scrutiny and discussion. But the effects of this panoptic gaze were complex and ambiguous, and the narratives produced during the trials were unintentionally ambivalent—not only about those being prosecuted, but also about the new governing regime itself.

 

Kastner on Law and Literature

Tal Kastner, Rutegers Law School, is publishing Law and Literature in the Elgar Concise Encyclopedia of Legal Theory and Philosophy (John Linarelli, ed.) (forthcoming). Here is the abstract.

Long eluding sharp definition, the interdisciplinary project of law and literature has, in recent years, evolved, expanded and flourished. Initially coalescing around scholarship concerned with ethics, hermeneutics, and narrative, law-and-literature studies have continued to develop in richness and nuance. Work in the field mobilizes varied interpretive tools to illuminate legal concepts, practices and structures along with literary and other cultural texts. Increasingly wide-ranging, scholarly approaches span temporal, geographic, cultural and social contexts. They include analyses of legal concepts through an historical lens that situates legal practices or understandings among other literary and cultural texts, mobilization of interpretive theory, philosophy and rhetoric to consider legal expression as functions of language in culture or illuminating ideologies or conflicts, and fresh readings of literature in light of legal concepts, among other interventions. With confluences among diverse methodologies and perspectives and by engaging adjacent fields, law-and-literature scholarship variously refracts the implications of law in culture and society.

Download the essay from SSRN at the link.

Stephenson and Murphy on In the Flow: The Case for Process-Related Functionalism

Randall Stephenson and Christopher Murphy, both of the Max Planck Institute for the Study of Crime, Security and Law, have published In the Flow: The Case for Process-Relational Functionalism as Max Planck Lawcast, Episode 30. Here is the abstract.

For decades, the standard method for comparing legal systems around the world has been under fire. But what if the problem isn’t the method itself, but how we’ve been using it? On this episode of the Lawcast, Randall Stephenson argues that instead of abandoning our old tools, we need to completely rethink them. By drawing on everything from ancient philosophy to quantum physics, he reimagines law not as a static museum of rules, but as a dynamic, living web of relationships. Get ready for a fascinating conversation on how we view global law.

Download the article from SSRN at the link. Link to the podcast: https://law.mpg.de/lawcast/