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.

Lacan in Australia--Event: Reading Antigone

From William MacNeil, Beirne School of Law, University of Queensland:

I write to invite you to an upcoming theatrical performance in which I feature: a digital staging of Sophocles’ Antigone, delivered over two nights - Mon 3 August (Pt 1) & Monday 10 Aug (Pt 2) - from 7pm to 8:30pm. The cast is international and includes the following players: Stephanie Perera (Brisbane) as Antigone, Eva Sophie Reinhofer (Ireland/Germany) as Ismene, Camilo Salazar (Colombia) as Haemon and yours truly, William MacNeil, aka ‘Bill', as Creon, king of Thebes (who else?). Tickets are free, but you must register to receive the zoom log-on details. The link is supplied above. An online Q&A with the audience, actors and director will follow each performance. And not to fret if time zone differences preclude your attendance: the performances will be recorded, and these recordings will be made available in due course. If you liked Nolan’s The Odyssey, you’ll love this. Antigone is, of course, the play of law and does for jurisprudence what Oedipus Rex did for psychoanalysis. So, join us, for two evenings of high tragic drama, the play's themes directly addressing such heady - and still pertinent - topoi as the reach of the state, the role of the gods, the duty to family and the ethics of desire. Hope to see you there - and feel free to share this invitation with any interested others! [Email edited.--Ed.]

For more information, follow this link.

Accornero on The Chartered Agent: How the City of London Wrote the Legal Architecture of Agentic Commerce in 1555

Paul F. Accornero has published The Chartered Agent: How the City of London Wrote the Legal Architecture of Agentic Commerce in 1555. Here is the abstract.

The rise of autonomous AI shopping and procurement agents has reopened the debate on legal personhood for artificial intelligence. This paper argues that, for the domain of commerce, the debate is asking the wrong question. Commerce does not need AI persons; it needs chartered agents, and the legal template already exists. The paper traces a single institutional arc: from the civic autonomy of the City of London (1067, 1215), through the guild system's invention of collective non-human legal actors, to the chartering of the Muscovy Company on February 6, 1555, the first major English chartered joint-stock company. That charter solved a problem structurally identical to the one autonomous AI agents pose today: how to let a non-human construct transact, hold assets, bear obligations, and absorb liability on behalf of human principals operating in an environment that exceeds individual human capacity. The paper then connects this history to the Shopper Schism, the author's framework describing the structural disaggregation of the consumer function (retained by humans) from the shopper function (delegated to algorithms), and shows that the joint-stock company and the algorithmic shopper are two instances of the same 1 delegation architecture, applied first to the supply side of commerce and now, for the first time, to the demand side. Reviewing the legal record, including Thaler v Comptroller-General [2023] UKSC 49, Moffatt v Air Canada (2024), the CFTC enforcement action against Ooki DAO, and the Wyoming, Tennessee, and Utah DAO statutes, the paper shows that courts consistently refuse to invent AI personhood while legislatures are quietly converging on the chartered-company architecture. It concludes with a Chartered Agent framework for agentic commerce and a research agenda spanning management, law, and economic history.

Download the article from SSRN at the link.

DeLoach on Antigone, Autonomy, and Higher Lawlessness

Andrew R. DeLoach, Trinity Law School, is publishing Antigone, Autonomy, and Higher Lawlessness in Law, Culture, and the Humanities. Here is the abstract.

The first surviving references to unwritten law and to autonomy come from Sophocles' Antigone. Yet legal readings of the tragedy routinely focus on the conflict between natural law and legal positivism. These readings typically assume the truth of Antigone's claim that unwritten laws require her defiance of Creon's decree. Likewise, they rarely ask whether her final argument is consistent with that claim. Antigone first appeals to the unwritten law of the gods-a Higher Law superseding a human decree. But then she changes her normative approach. Accused of acting autonomously (by her own rules), she abandons the Higher Law and appeals instead to a law she has made for herself. And it appears her claim was always rooted in autonomy. Unexplored but implied by the tragedy is the danger that appeals to Higher Law in contemporary adjudication may encourage claims based in autonomy, amounting to "Higher Lawlessness.

Download the article from SSRN at the link.

Call for Applications: Michele Bratcher Goodwin Fellowship in Law and Society

From the Law and Society Association:

The Law and Society Association is excited to continue the work of the Michele Bratcher Goodwin Fellowship in Law and Society, an initiative designed to deepen graduate student engagement in the Association’s work and Global Meeting planning, while offering valuable professional development and mentorship opportunities. We are now accepting applications for two graduate student fellows to begin a two-year term during Fall 2026. This is a unique opportunity to gain hands-on experience in academic conference planning, strengthen your service portfolio, and receive mentorship from senior members of the LSA community. Program Benefits and Goals Gain direct experience in academic conference planning. Serve as full members of the Program Committee. Build leadership skills and develop as future LSA leaders. Receive mentorship from senior LSA members and staff. Contribute to the continuity and institutional memory of the Program Committee by mentoring incoming fellows during your second year. Receive a $2,000 annual stipend Receive up to $750 to help offset travel to the Global Meeting on Law and Society Eligibility Advanced PhD or JD students who have completed coursework in law and society or related fields. Prior engagement with LSA (e.g., Annual Meeting attendance, CRN participation) is preferred. Applicants should be available to serve a two-year term beginning in Fall 2026. Fellow Responsibilities Collaborate with the Program Committee and LSA staff on Global Meeting on Law and Society planning. Participate in Program Committee meetings and support key planning decisions. Review submissions and assist in panel formation. In their second year, help mentor and onboard new Fellows. Application Process Fellows will be selected through a competitive application process reviewed by the LSA President, Program Chair(s), and Executive Officer. Applications are due by August 24th, 12PM Eastern (US). Please upload a combined pdf that includes an updated CV and a letter of interest. Please include contact information for two faculty members at the end of your letter of interest. For questions, please contact lsa@lawandsociety.org.

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.