Moller on The Radical Whig Origins of the Horizontal Necessary and Proper Clause

Mark Moller, DePaul University College of Law, is publishing The Radical Whig Origins of the Horizontal Necessary and Proper Clause in volume 72 of the Villanova Law Review. Here is the abstract.

Congress makes laws necessary and proper to carry the powers of the executive and judiciary into execution—so says the “horizontal” Necessary and Proper Clause. Does this make Congress a mere servant to the other branches, one that helps them, from time to time, in the exercise of their own independent powers? Or does it make Congress the ultimate judge of how far those powers extend? Fifty years ago, William Van Alstyne argued for the latter, more robust reading, but his historical support was thin, and today his work is largely forgotten. This Article uncovers overlooked historical evidence for Van Alstyne's forgotten reading in the writings of two jurists who influenced the framing generation: the seventeenth-century parliamentarian Henry Parker, whose arguments seeded a century of Whig constitutionalism, and the eighteenth-century Whig lawyer Roger Acherley, author of one of the more influential works of colonial-era constitutional theory. Both wrote in response to the infamous Ship Money Case. There, the crown had claimed its prerogative power to defend the nation travelled with unreviewable “incidental” powers, or powers “necessary” to the prerogative’s “execution.” In writings separated by a century, Parker and Acherley countered that Parliament must define and authorize royal incidental powers. Their ideas circulated widely in the colonies and shaped major framing-era thinkers. This Whig tradition on incidental powers has striking parallels with Van Alstyne's checks-and-balances reading of the Clause. At a minimum, recovering that tradition ought to restore his reading as an important candidate for originalist construction. The Article closes by considering how this might inform debates ranging from the tariff challenge in Learning Resources v. Trump to criticism of the Presidential Records Act.

Download the article from SSRN at the link.

Submissions Deadline for Law and Literature in International Economic Law Now September 17, 2026

From Rachel Benharrousse, Postdoctoral Fellow, Department of Public Law and Governance, Tilburg Law School

We are pleased to announce that the submission deadline for our roundtable on Law and Literature in International Economic Law has been extended to 17 September. We warmly invite scholars working at the intersection of law, literature, and the humanities to submit an abstract.

This roundtable is part of two connected events taking place at Tilburg Law School this November:

5 November Roundtable: Law and Literature in International Economic Law
This roundtable offers a space to experiment with literary methodologies in trade, investment, migration, and business and human rights. We welcome contributions that move beyond conventional legal analysis to explore what discourse, metaphor, and narrative can reveal about the injustices embedded in global economic frameworks. We are particularly interested in work that treats literary and narrative methods not as illustrative add-ons, but as genuine tools of legal and critical inquiry.

6 November Law & Literature Consortium Seminar
This seminar is a collegial and non-hierarchical gathering of scholars from Dutch and Belgian universities, offering a low-stakes setting to share work that is still evolving and open to challenge. Early-career researchers are especially encouraged to participate.

Key dates and submission details:

·  Roundtable abstracts (max. 400 words): due 17 September (extended deadline)

·  Consortium abstracts: due 1 October, reviewed on a rolling basis

·  Submissions for both events: lawandlit@tilburguniversity.edu

Limited travel funding is available for participants, and childcare or other facilitations can be arranged upon request; please do not let logistical concerns discourage you from applying.

The full calls for papers, including further details on themes and format, are available here.

Tan on Metaverse Realities: Governance, Virtual Property and Legal Ordering in Emerging Virtual Worlds

Albert Tan, University of Groningen Faculty of Law, has published Metaverse Realities: Governance, Virtual Property and Legal Ordering in Emerging Virtual Worlds. Here is the abstract.

Facebook's adoption of Meta has moved the metaverse from specialist discussion into mainstream legal debate. Yet the term still describes a loose family of virtual environments rather than a settled juridical object. Some worlds depend on conventional platform infrastructure; others place selected assets or governance functions on public blockchains. This article argues that legal analysis should begin with the institutional architecture through which a virtual world is operated. It develops the idea of a governance stack to identify the contractual rules, software systems, token arrangements, decision-making bodies and public law that together determine a participant's position. The analysis then turns to virtual property, non-fungible tokens, intellectual property, immersive data and cross-border remedies. Decentraland, The Sandbox, Cryptovoxels and Horizon Worlds show that claims of decentralisation can conceal very different allocations of power. The legal task is therefore to identify what the user actually acquires, who can alter that position, and which body of law supplies an enforceable remedy.

Download the essay from SSRN at the link.

Priel on Bentham's Children: Intellectual Lineage in Jurisprudence

Dan Priel, City University of Hong Kong; Osgoode Hall Law School, has published Bentham's Children: Intellectual Lineages in Jurisprudence. Here is the abstract.

There is a familiar intellectual line that starts with Jeremy Bentham and ends with contemporary legal positivism. But Bentham also has a good claim to being a founding figure of two other jurisprudential traditions, naturalistic jurisprudence (and within it, law and economics) and realist-critical jurisprudence. This may seem surprising as these three approaches are often seen as antagonistic. At the same time, this may suggest a possible way to reconciling these approaches: if Bentham could be analytic, naturalistic, and critical at the same time, why can't we? In turn, this may suggest that the opposition between these different approaches could be explained away as the result of superficial differences or misunderstandings, and as such as path to reconciliation between these intellectual traditions. Unfortunately, I argue that the source of disagreement is different. It has to do with something that critical jurisprudents got right, and that most analytical jurisprudents got wrong: jurisprudence is political. I argue that at the foundation of analytic jurisprudence has been a commitment to political liberalism, a political stance that most proponents of critical jurisprudents have rejected. If I am right, reconciling the jurisprudential approaches will prove as easy as resolving this political divide.

Download the article from SSRN at the link.

Galanis on Roger Williams and Religious Liberty: Conscience, Civil Jurisdiction and the Constitutional Separation of Church and State

Panagiotis Galanis, National Kapodistrian University of Athens, has published Roger Williams and Religious Liberty: Conscience, Civil Jurisdiction and the Constitutional Separation of Church and State. Here is the abstract.

Roger Williams occupies an exceptional position in the constitutional genealogy of religious liberty. His defence of liberty of conscience was neither a limited plea for indulgence toward dissenters nor a simple extension of toleration within an established confessional order. It rested on a more radical proposition: civil government and religious authority possess different ends, different instruments and different jurisdictions. Because faith cannot be produced by coercion, and because the civil magistrate is entrusted with the preservation of civil peace rather than the salvation of souls, governmental force cannot legitimately be used to impose religious uniformity. Williams therefore developed an argument that joined theological premises to a recognisably constitutional theory of limited public power. This study examines Williams as a legal and constitutional thinker. It places The Bloudy Tenent of Persecution for Cause of Conscience of 1644 within the political and religious conflicts of seventeenth-century England and New England; analyses his distinction between civil and spiritual jurisdiction; reconstructs his conception of liberty of conscience; and assesses the institutional experiment of Providence and Rhode Island. Particular attention is given to the 1663 Rhode Island Royal Charter and to the later American constitutional tradition. The study also considers the relationship between Williams, John Locke and subsequent First Amendment doctrine. The central argument is that Williams contributed something conceptually distinct to the history of religious freedom: not merely toleration by a dominant authority, but a jurisdictional separation designed simultaneously to protect conscience from government and religion from political corruption.

Download the essay from SSRN at the link.

Curran on Disentangling the U.S. Declaration of Independence and the French Declaration of the Rights of Man and Citizen

Vivian Grosswald Curran, University of Pittsburgh School of Law, has published Disentangling the U.S. Declaration of Independence and the French Declaration of the Rights of Man and Citizen. It is forthcoming in the Duke Journal of Comparative & International Law. Here is the abstract.

The American Declaration of Independence and Revolution are linked to the French Declaration of the Rights of Man and Citizen and its Revolution through the mutual, strong influences of the Enlightenment philosophes whom both the American Founding Fathers and the French revolutionaries read. They also were linked through acquaintance and ongoing communication, with the American Declaration serving as a model for the first, but not final, draft of the French one. Both Declarations and Revolutions were to follow divergent paths through time, however, a cause for great concern in nineteenth-century France when intellectuals such as Laboulaye, Tocqueville and Taine, fearful for France’s future in yet another new régime, looked to America’s foundational documents and governmental system to uncover the secrets of America’s stability and of France’s failure to safeguard the principles of 1789. This article proposes that the answers were far less to be found in the U.S. documents or bicameral legislative structure than in a comparative, contextual examination of the two societies, their populations and their political histories. Those were the differences which led France to sink into a Reign of Terror within a few years of its Revolution and to proceed to seesaw among various forms of government thereafter, while the United States was able to enjoy a single Constitution and general political stability. The aims of each Revolution differed, as did the consequences of those differences, including how each nation perceived and dealt with freedom of religion, the abolition of slavery and the struggle for women’s equality. In France, the Revolution was intended to achieve a total rupture with the past, but France unwittingly fell prey to its past, as the absolutist tradition of the monarchy permeated its ranks in new ways, transforming egalitarianism into repression. In America, the colonists’ chief complaint had been their lack of representation in the British Parliament, not a wish to change a constitutional form of government which allowed for freedom of representation and had a king who bowed to the will of Parliament. After the American Revolution, the French looked to the new country overseas, often both idealizing and distorting it, with a view to how it could be a model for a new France. The two nations had a common point of departure in the literature of the philosophes which had deeply inspired and captured the imagination of the American Founding Fathers and the French revolutionary thinkers alike. Even a written text, however, is interpretive, such that the texts themselves were a function of what they meant to their readers. Some have thought that the Founding Fathers understood Montesquieu’s intentions better than the French. This article hopes to illuminate twists and turns from a shared point of departure, and to address ongoing debates concerning their nature.

Download the article from SSRN at the link.

Galanis on Religion and Nature in the Enlightenment

Panagiotis Galanis, National Kapodistrian University of Athens, has published Religion and Nature in the Enlightenment. Here is the abstract.

The Enlightenment transformed the relationship between religion, nature and law. Nature ceased to function solely as an object of theological explanation and increasingly became a normative vocabulary through which political authority, rights and religious belief could be assessed. The appeal to nature took several distinct forms. Natural law provided a standard superior to positive command; natural rights located fundamental entitlements in the person prior to the state; natural religion sought religious truth accessible to reason independently of ecclesiastical revelation; and the scientific image of an ordered universe encouraged the idea that public reason could distinguish civil interests from theological claims. This study examines the legal significance of that transformation. It argues that the Enlightenment did not simply replace religion with secularism. Rather, it reorganised the relation among religion, nature and political authority. Locke used natural rights and limited government to restrict the magistrate's religious competence. Spinoza naturalised biblical interpretation and defended the freedom to philosophise. Voltaire connected natural reason with toleration and criticism of confessional persecution. Rousseau converted religion into a constitutional problem through the category of civil religion. Hume destabilised rational proofs of natural theology and thereby weakened claims to public coercion based upon metaphysical certainty. Kant relocated religion within the limits of reason and moral autonomy. These intellectual movements contributed to a legal transition from confessional government to constitutional freedom of conscience. The study further considers the constitutional crystallisation of this transition in the American Declaration of Independence of 1776, with its reference to the Laws of Nature and of Nature's God, and in the French Declaration of the Rights of Man and of the Citizen of 1789, which proclaims natural and inalienable rights while expressly protecting religious opinions. It concludes by analysing the continuing relevance of the Enlightenment synthesis for contemporary freedom of thought, conscience and religion under international and European human-rights law.

Download the article from SSRN at the link.

Croucher on The Murder at Agnes Banks

John Croucher, Macquarie University, has published The Murder at Agnes Banks: Unravelling Truth, Lies, and 19th Century Justice.

The setting for a murder that took place in the early days of the New South Wales penal colony in Australia was the regional town of Agnes Banks. Beginning with an outline of the transported convicts William Williams from England in 1798 and Julia Leahy from Ireland, the paper follows the life of their daughter, Mary Ann, who married the unrelated Robert Williams in 1840, who had the distinction of having all four grandparents as convicts. Some forty years later, in 1881, the now mentally challenged Robert was charged with murdering a neighbour, William Freeman, and was committed to an insane asylum where he remained for the rest of his life. The research reflected in this paper shows that there were numerous flaws in the prosecution's case, which was treated as open and shut. Robert had pleaded not guilty, and there was every chance he was correct. This paper examines the lead-up to the trial and the questions that should have been asked to avoid a possible miscarriage of justice.

Download the essay from SSRN at the link.

Miller on Coda: The Framers, the British East India Company, and Guaranteeing a Republican Form of Government

Paul S. Miller, Loyola University School of Law, has published Coda: The Framers, the British East India Company, and Guaranteeing a Republican Form of Government. Here is the abstract.

The article takes as its starting point the debate between Justices Scalia and Stevens in their respective Citizens United opinions. The subject of that debate was colonial and post-revolutionary society, and thereby the Framers’, opinion about corporations. Scalia wrote his concurrence in response to the portion of Justice Stevens’ dissent that argued the Framer’s did not trust corporations. A problem, for a historian, of Scalia’s and Stevens’ opinions is that they did not cite any statement by the Framers of the Constitution. All instead relying on the opinions of historians. Neither Justices provided any document actually written by the Framers in support of their position. Were this testimony in a trial, such would amount to hearsay. Such hearsay would be necessary if such statements were lost to antiquity. But those statements DO exist. The National Archives has collected a vast repository of the writings of many of the Founders, including those at the Constitutional Convention. And since 2009, those writings have been entered into a vast database: Founders Online. So I decided to research those writings for mentions of the British East India Company and then report what was said in a tidy little article. The hypothesis guiding my research is that leading figures of the convention 1) knew about corporations; 2) considered corporations a threat to republican government and its underlying philosophy of popular sovereignty; and therefore 3) wrote the guarantee clause in broad language so the federal government might address any threat to a republican form of government, including corporations. Based on the above, I argue that the Guarantee Clause grants Congress and, indirectly, state legislatures independent authority to regulate corporations’ participation in elections through political donations. This does not mean that campaign finance regulation should be shielded from by the political question doctrine central to Guarantee Clause jurisprudence: courts should continue to reach the merits of any First Amendment issues. But in deciding those issues, courts should take into account the Framers’ concerns and purposes for the Guarantee Clause in reaching and justifying a decision.

Dowload the article from SSRN at the link.

American Journal of Legal History: Call for Proposals for 2027 Special Issues

 From the American Journal of Legal History:

Special Issues: Call for Proposals for 2027

The American Journal of Legal History is a well-established, quarterly publication covering all facets and periods of legal history. We are now accepting Special Issue proposals for 2027.

Deadline: November 30th, 2026

A Special Issue is a peer-reviewed collection of articles centred on a specific theme. Ideally, the theme should focus on a new or distinctive area of inquiry that has not been sufficiently explored in previous AJLH work, holds broad relevance, and aligns with the Journal's aims and scope. This provides an opportunity to collectively explore a new topic, potentially developing insightful new lines of research and practice through interdisciplinary dialogue.

More information here. 

LCH Conference Set For May 27-28, 2027

 From the Association for the Study of Law, Culture, and the Humanities:

2027 Annual LCH Conference to be held at University of California, Berkeley We are excited to announce that our Twenty-Ninth Annual Conference will take place at the University of California, Berkeley in Berkeley, California from May 27-28, 2027. Our annual Graduate Student Workshop will be held the day before the conference on May 26, 2027. Please check back soon for more information about next year's meeting, including our call for papers!   Best regards,   The LCH Team

Neacsu and Callister on From Myers to Slaughter: A Brief Theory of the Constitutionalization of Secondary Sources

Dana Neacsu, Columbia University; Barnard College, and Paul D. Callister, University of Missouri, Kansas City, School of Law, have published From From Myers to Slaughter: A Brief Theory of the Constitutionalization of Secondary Sources. Here is the abstract.

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft's opinion in Myers v. United States (1926) 1 marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice John Roberts' opinion in Trump v. Slaughter (2026) 2 completed that transformation. Roberts cited secondary authorities 111 times in approximately 10,000 words 3 , employing historians, documentary editions, biographies, constitutional commentators, presidential papers, law review articles, and political writings not merely to illuminate constitutional meaning but to construct it. Secondary sources became constitutional actors.

Download the article from SSRN at the link.

Schroeder on St. George Tucker's Unlimited Common Law

Joshua J. Schroeder, Independent, has published St. George Tucker's Unlimited Common Law as SchroederLaw Working Paper No. 115, 2026.

This Article contains the one of the most interesting research discoveries made in the process of writing a Tale of Two Americas. St. George Tucker’s unlimited common law is a highlight the American legal community needs to reconsider as we head into more uncharted waters. This topic has application in many areas of the law, including birthright citizenship, common law treason, Alien Enemies Act cases, and immigrant habeas corpus.

Download the article from SSRN at the link.

Walker on They Did Not Survive a Dinner Party: Judicial Ethics, the Osage Mineral Estate, and What Conscience Required

Lance Walker, Walker Law, PLLC; University of Oklahoma College of Law, has published They Did Not Survive A Dinner Party: Judicial Ethics, the Osage Mineral Estate, and What Conscience Required. Here is the abstract.

Under the Act of June 28, 1906, Congress reserved the mineral estate underlying the Osage Reservation in what is now Osage County, Oklahoma, to the Osage Nation, to be held in federal trust. In October 2025, the Oklahoma Attorney General nonetheless concluded that pore space within the subsurface geological formations underlying Osage County belongs to the surface estate rather than the Osage mineral trust. Five months later, the Osage Nation's own Attorney General reached the opposite conclusion, expressly rejecting the state-law basis for Oklahoma's opinion and grounding his own answer in the federal Act instead. Neither opinion binds the other, and the conflict remains unresolved-leaving a cloud on the Osage mineral estate that persists whether or not the Oklahoma AG opinion is ultimately correct. Billions of dollars in carbon-sequestration value ride on the answer. This piece takes up that unresolved question through an unconventional form: one fictional federal district court opinion, oral argument before the appellate panel, and five fictional appellate opinions, set in October 1906, Oklahoma Territory, deciding a case that never existed, styled after Lon Fuller's The Case of the Speluncean Explorers, and supported by appendices documenting the historical record, the jurisprudential methodology, and the governing ethics standard. Where Fuller used five judges and five jurisprudential frameworks to illuminate how method shapes result in a criminal case under a fictional statute, this piece transplants the same device onto a real 1906 statute and a live property question: does the Osage mineral estate include the void space left behind after coal extraction-and, by direct implication, the limestone pore space now sought for carbon storage? The trial judge, the attorneys, and the 

Download the article from SSRN at the link.

van Aaken and Simsek on The Situated Universality of Emotions, Cognition, and International Law: A Biocultural Analogy

Anne van Aaken and Betül Simsek, both of the University of Hamburg Law School, have published The Situated Universality Of Emotions, Cognition, And International Law: A Biocultural Analogy. Here is the abstract.

Debates about universality are central to both emotions in affective science and international law. Psychology and neuroscience ask whether emotions are universal or culturally constructed; international law confronts a parallel tension between claims to universal validity and historical and cultural contingency. This article uses the emotion-cognition nexus to develop a new theoretical account of universality in international law. Contemporary affective science increasingly challenges a binary opposition between biological universality and cultural construction, with biocultural approaches conceptualizing emotions as emerging from interactions between shared biological capacities and cognitive, social, and cultural processes. The chapter argues that international law can be understood through a similar framework. Its normative development, interpretation, and legitimacy emerge from interactions between broadly shared emotional-cognitive dispositions and their socially and culturally mediated articulation. On this basis, the article develops the concept of situated universality: grounded in common human emotional-cognitive capacities while remaining contingent in its institutional, historical, and cultural expression.

Download the chapter from SSRN at the link.

CFP: Festscrift in Honor of Professor Lenora Ledwon

CFP for essays/articles in honor of Professor Lenora Ledwon

Call for Papers

 

We are delighted to invite abstract submissions (or full drafts, if ready) for a festschrift of essays and articles in honor of Professor Lenora Ledwon. The volume is being edited by Professors Christine Corcos (LSU Law) and Christian Lee Gonzalez-Rivera (STU Law). 

 

The volume aims to celebrate Professor Ledwon's multifaceted and engaging academic contributions. We invite pieces reflecting on any aspect of her work as well as original pieces unrelated to the latter. The central theme, however, is that of Law and Literature, both specifically as a jurisprudential approach and, more generally, as that boundless intersection between law, literature, and pop culture. Any reflection, then, on the relationship between any two of these three is welcome. This is a rare and wonderful occasion for senior and young professors in the field to publish jointly. 

 

The contributions will be published as a book, whether as a special volume of the St. Thomas Law Review or with an academic publisher, in Fall of 2027 or Spring of 2028. The pieces should range between 10,000 and 25,000 words, but we will consider submissions longer than that. 

 

The deadline to submit abstracts (or ready drafts) is September 22, 2026. 

 

For submissions and any other questions, please contact Professors Corcos (ccorcos@lsu.edu) or Gonzalez-Rivera (cgonzalezrivera@stu.edu

). 

Amin on Moving From Colonizers to Guardians: International Law and the African Mandates under the League of Nations (1919-1945)

George Forji Amin, York St. John University Faculty of Law, The University of Manchester School of Law, University of Bolton School of Law, has published From Colonizers to Guardians: International Law and the African Mandates under the League of Nations (1919–1945) at 11 Jus Gentium: Journal of International Legal History 65 (2026). 

Central to the League of Nations' vision was the creation of a legal framework deemed appropriate for the administration of former colonies and territories of the defeated powers, to wit: German and Ottoman. Drawing on the principles of collective security, peace, and justice, the league projected its vision as a “sacred trust of civilization” – cloaked in the idea of humanitarianism. Concerned with the fate of non-sovereign populations in the former German and Ottoman colonies, the League qualified the situation as an international concern, and proceeded to develop an international administrative framework called the “Mandate System”, enshrined in Article 22 of the League Covenant. The main purpose of the mandate regime was to guide and oversee the transition of the affected non-self-governing territories towards eventual self-determination. Nowhere was this more apparent than in Africa, where former German possessions: Tanganyika, Rwanda-Urundi (Rwanda-Burundi), Kamerun (Cameroon), German South West Africa (Namibia), and Togoland were assigned to Allied powers as mandates. License Information The copyright holder has granted SSRN a license. All rights reserved. No reuse allowed without permission.

NB: The submission is marked "Not Available For Download."

Witte's Foreword to Law and Christianity in Japan: The Legacy of the Great Jurists

John Witte, Emory University School of Law, is published "Foreword" to Law and Christianity in Japan: The Legacy of the Great Jurists (Grzegorz Blicharz, Kevin Doak, and Jonghyu Jeong, eds., Routledge, forthcoming 2026). Here is the abstract.

This is a brief foreword to the first comprehensive study in English of the interaction of law and Christianity in Japan over the past century and a half. The volume offers a score of case studies of major Japanese and European legal thinkers to illustrate the distinctive development of Japanese legal ideas and institutions-concerning civil and criminal procedural rights, natural law theory, rule of law, constitutional monarchy and democracy, separation of powers, and the delicate balance of protecting religious and cultural freedoms in a country where Christianity is still relatively young. What has helped to make Japanese law so distinctive is its remarkable transplantation and integration by inventive jurists of various legal norms and procedures of indigenous legal traditions, European civil law, and Anglo-American common law during a century or more of rapid and dynamic social transformation.

Download the foreword from SSRN at the link.