Chauvin on Understanding Free Speech Values at the Supreme Court

Noah Chauvin, University of Oklahoma College of Law, is publishing Understanding Free Speech Values at the Supreme Court in volume 78 of Rutgers Univ. L. Rev. Commentaries (forthcoming 2025). Here is the abstract.

This essay is a book review of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, by Professors Eric Kasper and Troy Kozma. The book argues that John Stuart Mill had an indelible impact on the Supreme Court's free speech jurisprudence, and that through the power of precedent, we have come to have a "Millian" First Amendment. As I explain in the review, Kasper and Kozma have made a compelling case. However, because Mill offered an expansive defense of freedom of expression, it is not enough to say that the Court's free speech jurisprudence is "Millian," because that could mean many different things. Understanding with greater precision what motivates the justices in free speech cases is crucial for attorneys, advocates, and scholars.

Download the review from SSRN at the link.

Fletcher on Nanboozhoo Died for Your Sins

Matthew L. M. Fletcher, University of Michigan Law School, has published Nanaboozhoo Died for Your Sins. Here is the abstract.

This paper is a review of the classic book by Vine Deloria, Jr., “Custer Died For Your Sins,” for the 2025 volume of the Michigan Law Review’s book review issue. Nanaboozhoo, the Anishinaabe trickster god, decides to attend law school after reading “Custer Died For Your Sins” and realizing that the author, Vine Deloria, Jr. also decided to law school after publishing the book. This review follows Nanaboozhoo as he progresses through a legal career guided by the book.

Download the book review from SSRN at the link.

Siegel on Balkin Amid Balkanization: Constitutional Construction, The Uses of History, And Interpretive Discretion In A Divided Country

Neil Siegel, Duke University School of Law, has published Balkin Amid Balkanization: Constitutional Construction, The Uses Of History, And Interpretive Discretion In A Divided Country as Duke Law School Public Law & Legal Theory Series No. 2025-14. Here is the abstract.

Professor Jack Balkin's Memory and Authority is a good book by a great constitutional theorist, but it gives me some pause. Balkin's account of legitimate constitutional construction is so capacious and seemingly accepting of a results orientation that it may be difficult to discern when someone is doing it wrong. Balkin repeatedly implies that more is better, both regarding the number of modalities of constitutional interpretation and the kinds of history that are relevant to making constitutional arguments. Moreover, he repeatedly declares that "history is a resource, not a constraint." But modality creep may make it more challenging for pluralists to answer the charge that their methodology makes it possible for users to reach whatever outcome they want. Likewise, history must be both a resource and a constraint if an interpretive theory is also to restrain, not just license, interpretive discretion. More is not necessarily better when one imagines constitutional law being made by people who do not share one's values. In the United States, constitutional law is made by Supreme Court Justices who do not share the values of a significant percentage of the country, and the problem is worse during our polarized era. Although Balkin does not emphasize them, certain concepts and practices have been central to the generationslong effort to constrain judicial discretion: a general allegiance to judicial restraint, a genuine commitment to stare decisis in constitutional disputes, a presumption in favor of incrementalism in judicial decision-making, and a dedication to giving principled reasons for judicial decisions. Those ideas and others discussed in this Essay fall under the heading of judicial role morality, which has long been discussed by the legal profession due to the perceived importance of identifying constraining conceptions of a Justice's institutional role.

Download the essay from SSRN at the link.

Roosevelt on A Tale of Two Americas @kroosevelt93 @PennJCL @pennlaw @RebeiroBradley

Kermit Roosevelt, University of Pennsylvania Law School, has published A Tale of Two Americas at 25 Journal of Constitutional Law 939 (2023). Here is the abstract.

This article responds to Brad Rebeiro’s review of The Nation That Never Was. Professor Rebeiro offers a reading of the Declaration of Independence as focused on equality. I agree that this is what the Declaration means to us now, but I claim that is not what it meant in 1776. A close reading of the Declaration reveals that it is focused, as the title suggests, on independence, and its assertions about equality are deployed to defend that argument against the divine right of kings. Because the Declaration’s equality exists in the state of nature and is part of an argument about the origins of legitimate political authority, it is not relevant to the state of society and has no implications for the institution of slavery, which is not an exercise of legitimate political authority.

Download the article from SSRN at the link.

Tobia on Methodology and Innovation in Jurisprudence @kevin_tobia @kevintobia.bsky.social @GeorgetownLaw

Kevin Tobia, Georgetown University Law Center; Georgetown University Department of Philosophy, has published Methodology and Innovation in Jurisprudence at 123 Columbia Law Review 2483-2516 (2023). Here is the abstract.

Jurisprudence aims to identify and explain important features of law. To accomplish this task, what method should one employ? Elucidating Law, a tour de force in “the philosophy of legal philosophy,” develops an instructive account of how philosophers “elucidate law,” which in turn elucidates jurisprudence’s own aims and methods. This Review introduces the book, with emphasis on its discussion of methodology. Next, the Review proposes complementing methodological clarification with methodological innovation. Jurisprudence should ask some timeless questions, but its methods need not stagnate. Consider that jurisprudence has a long tradition of asserting claims about how “we” understand the law—in which “we” might refer to all people, citizens of a jurisdiction, ordinary people, legal experts, or legal officials. There are now rich empirical literatures that bear on these claims, and methods from “experimental jurisprudence” and related disciplines can assess untested assertions. Today’s jurisprudence can achieve greater rigor by complementing traditional methods with empirical ones.

Download the article from SSRN at the link.

(Reviewing Dickson, Elucidating Law, OUP, 2022).

Andrew Majeske on Greta Olson, From Law and Literature To Legality and Affect (Oxford University Press) @NASJ_org @Greta_Olson_ @OxUniPress

Andrew Majeske, John Jay College of Criminal Justice, has published a review of Greta Olson, From Law and Literature to Legality and Affect (Oxford University Press) (forthcoming October 10, 2022), in the New American Studies Journal: A Forum.  

 

Patrick on Law and Evil: The Evolutionary Perspective (book review) @UCF

Carlton Patrick, University of Central Florida, has published Law and Evil: The Evolutionary Perspective, by Wojciech Zaluski at 3 Evolutionary Studies in Imaginative Culture 135 (2019) (book review). Here is the abstract.

How refreshing it is to see someone engage in a nose-to-tail approach to interdisciplinary work the way Wojceich ZaŁuski does in Law and Evil: The Evolutionary Perspective. In just 133 pages of text, including the Introduction and Epilogue, ZaŁuski successfully attempts to “reconstruct an evolutionary view of human nature and to examine through the prism of this view two legal-philosophical problems, viz. the problem of the (historical) evolution of law and the controversy between ius-naturalists (the adherents of natural law doctrine) and legal positivists.” This is a book that begins as a work of biology, morphs into legal history, and ends as philosophy, all the while using the insights of previous chapters to the lay the foundation for successive ones.

Download the review from SSRN at the link.

Vaughn on Susanna Blumenthal, Law and the Modern Mind

Lea B. Vaughn, University of Washington School of Law, is publishing Book Review - (Of Susanna L. Blumenthal, Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (2016)) in volume 67 of the Journal of Legal Education (Autumn 2017). Here is the abstract.

In a masterful book titled Law and the Modern Mind, Susanna Blumenthal simultaneously describes the battles among scientists, doctors, and jurists in the period following the Revolutionary War and up through the Gilded Age, and takes on traditional scholarship in legal history as to who this person or “mind” is. Her study not only provides an alternative account of the formation of American character, but also provides a series of detailed portraits of the various turning points in the formation of that character, and the legal determination of capable, accountable personhood. This review essay initially discusses Blumenthal’s approach to legal history and the challenge she presents to traditional scholarship. The second section provides an overview of Blumenthal’s methodology, which draws on a breathtaking base of source materials; she weaves hundreds of cases, treatises, and biographical notes into her observations. Finally, this review considers what is one of the most powerful and important contributions of her book—an in-depth analysis of the intersection of law and medicine in the period under study. The review points out ways in which Blumenthal’s insights can be brought to bear on modern conversations involving law, genetics, and neuroscience.

Download the book review from SSRN at the link.

A Review of Sarah Roth's "Gender and Race"

Alfred L. Brophy, University of North Carolina, Chapel Hill, School of Law, is publishing Antislavery Women and the Origins of American Jurisprudence in the Texas Law Review. Here is the abstract.

“Antislavery Women and the Origins of American Jurisprudence" is an essay review of Sarah Roth's Gender and Race in Antebellum Popular Culture (Cambridge University Press, 2014). It assesses Roth's account of the dialog between antislavery and proslavery writers. Roth finds that the antislavery and proslavery writers were joined in their depiction of enslaved people in the 1820s and early 1830s -- as savage people who threatened rebellion. But as antislavery writers shifted to portray enslaved people as humble citizens-in-waiting, the proslavery writers responded with an image of the plantation as a family. This critique turns to southern judges and treatise writers to provide a slightly different picture, which shows that while the public face of the proslavery movement may have been of happy enslaved people, the hard-nosed economic and legal side continued with the initial image of enslaved people. This became particularly salient as the south moved towards Civil War. Roth perceptively portrays the shift in the North that led to increasing calls for African American freedom and citizenship and the rise of empirical critiques of law, which became central to post-war jurisprudence. That is, the antislavery white women in Roth's study injected empirical as well as humanitarian considerations into jurisprudence. Meanwhile, in the southern courts the reaction to calls for citizenship resulted in increasingly dramatic efforts to deny citizenship -- and ultimately in a secession movement along the lines sketched by southern legal thinkers.

Download the review from SSRN at the link.

A Review Essay of David Luban's Torture, Power, and Law

Milan Markovic, Texas A&M University School of Law, is publishing Of Monsters and Lawyers in Criminal Justice Ethics. Here is the abstract.

This is a review essay of David Luban's important and prescient new book, Torture, Power, and Law. The review essay focuses on two of Luban's central arguments: The fallacious trade-off between civil liberties and national security after the 9/11 attacks and the manipulation of anti-torture law by Bush administration lawyers. Although I largely agree with Luban's analysis, I contend that the "coercive interrogation program" and other war on terror policies cannot be fully understood without considering anti-Muslim attitudes in the United States. I also question whether, in analyzing the ethics of government lawyers, the distinction between frivolous and non-frivolous legal positions is as marked as Luban suggests.

Download the review essay from SSRN at the link.

Water Law In U.S. History

Michael C. Blumm, Lewis & Clark Law School, has published Anti-Monopoly and the Radical Lockean Origins of Western Water Law. Here is the abstract.

This review of David Schorr's book, The Colorado Doctrine: Water Rights, Corporations, and Distributive Justice on the American Frontier, maintains that the book is a therapeutic corrective to the standard history of the origins of western water law as celebration of economic efficiency and wealth maximization. Schorr's account convincingly contends that the roots of prior appropriation water law -- the "Colorado Doctrine" -- lie in distributional justice concerns, not in the supposed efficiency advantages of private property over common property. The goals of the founders of the Colorado doctrine, according to Schorr, were to advance Radical Lockean principles such as widespread distibution of water to current settlers and avoiding monopolization of the resource by large landowners and corporate speculators. The book explains how western water law doctrines like the abolition of riparian rights, beneficial use as the basis and measure of water rights, the sufficiency principle, the no-injury rule limiting the transferability of rights, and public ownership of water all served these Radical Lockean goals. Schorr generally downplays the significance of temporal priority, thought by many to be the hallmark of western water law, and he explains the early Colorado courts surprising and consistent favoring of small-scale farmers over large-scale corporations like ditch companies.

Schorr also attempts to draw lessons from his careful and detailed history of the rise of prior appropriation law for contemporary concerns like allocating the burdens of climate-change pollution control. Although he overlooks a few matters -- like the motive underlying the rejection of riparian rights as an anti-federal government doctrine and the failure of the founders of the Colorado doctrine to grant limited terms instead of perpetual rights in water -- and his assumption that public property will inevitably be distributed to the wealthy and the well-organized might be questioned -- this book is law and history at its finest and should be read by all serious natural resources and property law teachers and scholars. 

Download the paper from SSRN at the link. 

Robin West's "Normative Jurisprudence"

Hanoch Dagan, Tel Aviv University, Buchmann Faculty of Law, is publishing Normative Jurisprudence and Legal Realism in volume 63 of the University of Toronto Law Journal (2013). Here is the abstract.

This review article examines Robin West’s provocative new book Normative Jurisprudence: An Introduction. West provides a learned and sophisticated account of the decay of the three major jurisprudential traditions of North American legal theory: natural law, legal positivism, and critical legal studies, which leads to and is motivated by a spirited plea for the reinvigoration of distinctively legal normative scholarship. Her proposed genealogy is valuable and her preliminary blueprint for reform important. But I believe that both fronts can be significantly enriched by a more charitable reading of legal realism than the one she (briefly) provides. Thus, this review offers a competing genealogical account of the three contemporary approaches to law West criticizes, claiming that like critical scholars, promoters of institutional fit and of economic efficiency are also intellectual descendants of legal realism. Legal realism, I insist, provides a subtle conception of law as a set of institutions distinguished by the irreducible cohabitation of power and reason, science and craft, and tradition and progress. This conception, which was torn apart by the realists’ heirs, offers the key to a proper cure to the predicament West identifies by pointing out to a robust understanding of legal theory and thus of the distinctive contribution legal scholars can make in normative debates.

Download the article from SSRN at the link. 

Law and Poetry

Alexandra J. Roberts has published Constructing a Canon of Law-Related Poetry: Reviewing David Kader & Michael Stanford, Eds., 'Poetry of the Law: From Chaucer to the Present' (2010) at 90 Texas Law Review 1507 (2012). Here is the abstract.

Law and poetry make a potent, if surprising, pair. Poetry thrives on simultaneity and open-endedness, while legal writing aspires to resolve issues decisively, whether it advocates or adjudges. The law and literature movement has traditionally focused either on law as literature, applying literary theory and techniques to legal texts such as judicial opinions and legislation, or law in literature, i.e., law as portrayed in literary and artistic works. Poetry and poetics have garnered relatively little attention under either approach. While some scholars blame that omission on a supposed dearth of law-related poetry, the poems collected in Kader and Stanford's "Poetry of the law: From Chaucer to the Present" (2010) belie that claim. This essay considers the place of poetry in legal studies and advocates incorporating it into both the dialogue and the curriculum of the law and literature movement. It identifies themes that emerge from the juxtaposition of the poems in the anthology, examines the relationship of fixed-verse forms to law in the poems, and draws attention to those voices that are underrepresented in the collection and the movement. It relies primarily on the process of close reading several of the hundred poems included in "Poetry of the Law" and, in so doing, it practices law in literature while it models precisely the type of critical approach that would serve those participating in the study of law as literature. It prescribes a canon of law-related poetry and illustrates how the inclusion of poems and techniques of poetic interpretation stand to benefit students, lawyers, and theorists alike.

Download the book review from SSRN at the link.

Here Be Monsters

From the TLS, Marina Warner reviews Wes Williams' new book Monsters and Their Meanings in Early Modern Culture (Oxford University Press).

Haldane In Context

David Schneiderman, University of Toronto Faculty of Law, has published Haldane Unrevealed, in volume 57 of the McGill Law Journal (2012). Here is the abstract.

When historians proffer historical truths they “must not merely tell truths,” they must “demonstrate their truthfulness as well,” observes Hackett Fisher. As against this standard, Frederick Vaughan’s intellectual biography of Richard Burdon Haldane does not fare so well. Vaughan argues that Viscount Haldane’s jurisprudential tilt, which favoured the provinces in Canadian federalism cases before the Judicial Committee of the Privy Council (JCPC), was rooted in Haldane’s philosophizing about Hegel. He does so, however, without much reference to the political and legal currents within which Haldane thought, wrote, and thrived. More remarkably, Vaughan does not derive from his reading of Haldane and Hegel any clear preference for the local over the national. We are left to look elsewhere for an explanation for Haldane’s favouring of the provincial side in division-of-powers cases. Vaughan additionally speculates about why Haldane’s predecessor Lord Watson took a similar judicial path, yet offers only tired and unconvincing rationales. Vaughan, lastly, rips Haldane out of historical context for the purpose of condemning contemporary Supreme Court of Canada decision-making under the Charter. Under the guise of purposive interpretation, Vaughan claims that the justices are guilty of constitutionalizing a “historical relativism” that Vaughan wrongly alleges Hegel to have propounded. While passing judgment on the book’s merits, the purpose of this review essay is to evaluate the book by situating it in the historiographic record, a record that Vaughan ignores at his peril.

Download the essay at the link.