Gowder on Never Send to Know on Whom the Boot Stomps: It Stomps on Thee

Paul A. Gowder, Northwestern University School of Law, is publishing Never Send to Know on Whom the Boot Stomps; it Stomps on Thee in the Alabama Civil Rights & Civil Liberties Law Review. Here is the abstract.

This Essay was originally prepared as a lecture for the 2026 Alabama Civil Rights & Civil Liberties Law Review Symposium, "The Ever-Evolving Definition of America’s History and Tradition." It diagnoses the current tyrannical moment in American constitutional practice and the way that the subaltern, and particularly Black American, historical experience with tyranny can be put into service in resisting it. It suggests the Black anti-tyrannical tradition draws on a kind of postmodern and agonistic conception of civic identity according to which the American polity is in part constituted by contested claims to inclusion. And it draws on the drama surrounding the current government's bad-faith efforts to undermine the Fourteenth Amendment's guarantee of universal birthright citizenship to show how the contemporary tyrannical movement depends on the civic-exclusionary traditions of our tyrannical past, and how drawing on the Black anti-tyranny tradition suggests that the Overton window might be shifted in the opposite direction: universal birthright can be a floor, not a ceiling, for constitutional claims to citizenship.

Download the essay from SSRN at the link.

Fenster on Legal Intellectual History

Mark Fenster, University of Florida College of Law, has published Mr. Peabody's Improbable Legal Intellectual History at 64 Buffalo Law Review 101 (2016). Here is the abstract.

Legal intellectual history, I suggest in this Paper, is the street sweeper in the parade of law’s history and its use of history. Lawyers and legal academics want great, important figures, cases, and theories with and against which they can do battle. The student-edited law reviews prefer bold, clear claims that explain why one answer to an historical question presented will bring justice, while a competing answer is manifestly unjust; why one past approach lacks principle or created worse consequences; or how one theory or another can explain all manner of thorny legal issues which bedevils academics and practitioners. Viewing an appellate decision, legislative enactment, or academic debate, the legal academic must travel back in time to set matters straight, redeeming the past to make certain that the future avoids its confused and unfortunate fate. Intellectual historians trail behind the legal academy’s heavy-breathing and magnificent use of the past, cleaning up its waste by providing context, complicating narratives, and replacing bright trumpet horns with muted tones, vivid colors with shades of gray. Well after the parade has dispersed and marchers have moved on, and often before the next “Big Issue” causes the celebrants to line back up, intellectual history can bring complexity and context back in to the frame. I illustrate this dynamic first by describing the use of legal realism in Brian Tamanaha’s recent monograph on what he describes as the formalist-realist divide in legal theories about judging and about legal doctrine, and in the debate over that divide. In Part II, I describe a relatively minor figure in the pantheon of legal realists (as that pantheon currently exists), Thurman Arnold, and his realist critique of the criminal law and procedure.

Download the article from SSRN at the link.