Vasconcelos Vilaça on Broken April, Narratology, Legal Normativity, and the Experience of Law

Guilherme Vasconcelos Vilaça, Instituto Tecnológico Autónomo de México (ITAM) Law School, has published Broken April: Narratology, Legal Normativity, and the Experience of Law, in Law and Critique (2024). Law and Critique, 0[10.1007/s10978-024-09400-w]

This article delves into the intersection of literature and legal normativity through the lens of Ismail Kadare’s novel Broken April. It explores how literary theory enhances philosophical analysis of law by examining the novel’s portrayal of the Kanun, a set of customary laws in Albania, highlighting the complexity of legal normativity and the impact of law on individual subjectivity and social order. The core argument posits that Broken April serves not only as a reimagined narrative of Albanian customary law, but also as a device to question and reflect on the broader implications of law’s normative force, and its reliance on a plethora of aesthetically effective symbols, in constituting both human behavior and the social imaginary. Through the literariness of Broken April, this article explains how law infiltrates and molds the social and psychological dimensions of life, ultimately shaping legal experience. It argues that literature offers a unique vantage point to reassess our understanding of law’s role in society, challenging conventional and nonconventional legal theories that overlook the cultural and emotional dimensions of law.

Access available via subscription.

Netolitzky on But My Ghosts Are So Hard to Hear: Pseudolaw and Conspiracy Culture @DNetolitzky @UAlberta

Donald Netolitzky, University of Alberta, has published But My Ghosts Are So Hard to Hear: Pseudolaw and Conspiracy Culture at 8 International Journal of Coercion, Abuse, and Manipulation 11 (2025).

Pseudolaw is an alternative counter-law that has propagated worldwide post-2000. Pseudolaw’s core rules and concepts are surprisingly conserved despite this scheme’s adoption by diverse marginal dissident anti-authority populations and individuals. Pseudolaw and its users are frequently identified as a “conspiracy theory” and “conspiracy theorists,” respectively. This article evaluates those designations. Pseudolaw’s “good law” versus “bad law” narrative and the Strawman Theory core concept clearly satisfy the criteria to classify pseudolaw as a conspiracy theory. However, whether persons who use pseudolaw should be identified as conspiracy theorists is more complex. At least some “mercenary” pseudolaw users are greed-based operators who have no interest in pseudolaw’s substance, including its conspiratorial aspects. Attempts to evaluate whether pseudolaw “believers” exhibit traits and characteristics identified by the recent broad academic investigation of conspiracy theorists are unfortunately frustrated by the uncooperative responses from pseudolaw users to social sciences investigators and our limited access to pseudolaw “insider” perspectives.

Download the article from SSRN at the link.

Toussaint on the Cultivation of Black Letter Law @etiennetoussaint.bsky.social

Etienne C. Toussaint, University of South Carolina School of Law, has pulished On the Cultivation of Black Letter Law at 124 Columbia Law Review 151 (2024). Here is the abstract.

Engaging with the sociocultural dimensions of race and racism across U.S. history is essential when creating, critiquing, and reforming the law. Building on Robin West’s exploration of the law and culture movement, this Piece introduces a novel “hermeneutic” project that reads Black American culture throughout U.S. history to gain critical insights into the nature and function of law in America. Black American culture, deeply rooted in the sociocultural traditions uniting members of the African diaspora, has consistently challenged White supremacy and played a foundational role in shaping U.S. law. To illustrate the value of studying law through the lens of race and culture, this Piece incorporates an analysis of Ralph Ellison’s "Invisible Man" alongside the author’s experiences in a Black urban neighborhood in the South Bronx. It argues that intentionally “reading culture” is crucial for uncovering deeper insights into the inherent nature of law. This cultural-legal approach provides a framework for recognizing the limitations of liberal legalism, understanding the cultural production of legal meaning, and advancing legal reform, democracy, and justice in American society. By blending cultural analysis with legal critique, this Piece aims to promote more equitable legal practices informed by the lived experiences and cultural contributions of Black Americans and other marginalized groups.

Download the article from SSRN at the link.

Asimow on All's Fair in Love and War: Military Justice in the Movies ‪@sculawresearch.bsky.social‬ @amarkhoday.bsky.social

Michael Asimow, Santa Clara Law School, has published All's Fair in Love and War: Military Justice in the Movies. Here is the abstract.

This chapter in the book Law and War in Popular Culture (Stefan Machura, editor, Nomos 2024) surveys military justice in English-language films. These movies tell a consistent story of injustice arising out of flaws inherent in the military justice system—in particular command influence and abuse of the following-orders defense. The brass exercise command influence over military court martials to select and punish scapegoats or cover up their own errors. Command influence is the subject of such classic films as Paths of Glory, Breaker Morant, and Man in the Middle, among others. The following orders defense applies if the accused was acting pursuant to orders, unless the accused knew the orders were unlawful or a person of ordinary understanding would have known the orders were unlawful. Of course, this defense is inherently problematic, since it is unlikely that trained soldiers will disobey orders, regardless of their legality. The following-orders defense and its abuse are memorably portrayed in such films as A Few Good Men and Breaker Morant.

Download the chapter from SSRN at the link.

Williams on the Jurisprudence of Sandwiches @sawilliams.bsky.social

Sam Williams, University of Idaho College of Law, has published The Jurisprudence of Sandwiches. Here is the abstract.

The question of what bread-based foods count as sandwiches is a contentious one that seemingly everyone has an opinion on. This includes many prominent legal minds, including prominent judge Richard Posner and Supreme Court Justices Scalia, Ginsburg, and Sotomayor. This question is not purely hypothetical to the law, as courts have had to determine the meaning of a sandwich in cases with thousands of dollars on the line. In this essay, I examine this budding sandwich jurisprudence and how it explains and exemplifies several unique features of legal thought, including the ongoing debate between legal formalism and legal realism, the reasonable person, and the breaking up of binary political identity into more nuanced portrayals of "liberal" and "conservative" justices. By biting in to this developing jurisprudence, I help to bridge the gap between the legal mind and the broader world of sandwich analysists.

Download the essay from SSRN at the link.

Newly Published: Dirk Heirbaut, Redefining Codification: A Comparative History of Civil, Commercial, and Procedural Codes (OUP, 2025)

Newly published:

Dirk Heirbaut, University of Ghent, has published Redefining Codification: A Comparative History of Civil, Commercial, and Procedural Codes (Oxford University Press, 2025). Here from the publisher's website is a description of the book's contents.

More than half of the world’s population lives under law codes. Yet, defining the concept of codification remains elusive. Rather than delving into abstract theories, this book provides a rich, contextual comparative legal history of codes in France, Germany, the Netherlands, and Belgium from the late eighteenth century to the present. The first part studies the evolution of French, German, Dutch, and Belgian codes in their political and comparative context, thus challenging deeply rooted national narratives. It covers not only the well-studied French, German, Dutch, and Belgian civil codes but also their often-overlooked commercial and procedural counterparts and drafts that failed to become law. The second part embarks on a comprehensive analysis of the factors contributing to the success or failure of codification efforts. Employing an innovative method of comparative legal history, it explores the key players and objectives behind codification, revealing that traditional notions of codification are far removed from reality. Following this deconstruction of some ‘universal truths’ about codifications, the book proposes a fresh, empirically based definition of codification, offering new insights. This book is essential for law scholars in civil and common law countries who study codification. For both beginners and specialists, it can also serve as a gateway to the histories and recent developments in private, commercial, and procedural law in France, Germany, the Netherlands, and Belgium. Historians and political scientists will find a behind-the-scenes analysis of the machinery of lawmaking in this book. Politicians and drafters of new codes can use this book as an overview of best practices in codification.

Forthcoming: Birte Christ, Imagining the American Death Penalty: The Cultural Work of Popular Visual Representations (OUP, 2025) @oxfordunipress.bsky.social

Forthcoming from Oxford University Press: Birte Christ, Giessen University, Imagining the American Death Penalty: The Cultural Work of Popular Visual Representations (publication date, May 31, 2025). Here from the publisher's website is a description of the book's contents.

Imagining the American Death Penalty traces the US American cultural imaginary of capital punishment through popular visual representations from the 1890s to the twenty-first century. The book focuses on three generic and historical clusters of representations: early film from the 1890s through Intolerance (1916), crime film noir of the 1950s and1960s, and legal TV series from the 1990s through the early 2000s. The book makes two central arguments. First, it demonstrates that an increased concern with the death penalty in popular media does not mean that these texts promote an abolitionist agenda: their cultural work is ambiguous at best. This ambiguity is always contingent upon both the affordances of the particular genre and medium in question and on political-legal discursive context. The book explores both in detail. Early film is enchanted with its own representational possibilities due to the progress of technology and, in analogy, with the progress in execution technique, specifically the electric chair. In film noir, genre conventions and the legal back-and-forth before and after Furman predicate ambiguity. In legal TV series, the genre's ensemble casts and its focus on conversational exchange invite open debate. The second argument is that popular visual representations consistently whitewash the death penalty. The book demonstrates that this is the case because the most common narrative around executions in film and TV is to cast the condemned man as a hero who defies the violence of the state, gains dignity by accepting his fate and faults, and in some ways triumphs over death. The American imaginary, until very recently, did or could not imagine Black men to possess that measure of agency that it attributed to its white heroes.

Call For Papers: Journal of American Constitutional History

From Professor Marie-Amélie George, Wake Forest Law School

Call For Papers: Journal of American Constitutional History "Queer Constitutional History": Professors Felicia Kornbluh and Marie-Amélie George, guest editors. 

We invite scholars in history, law, and related fields to submit articles for a symposium issue of the Journal of American Constitutional History on "U.S. Queer Constitutional History," to be edited by Professors Felicia Kornbluh and Marie-Amélie George, in consultation with journal editor David Schwartz. 

We plan to publish the symposium issue in 2025 to coincide with 10th anniversary of the U.S. Supreme Court's decision in Obergefell v. Hodges. At the time the Court issued the Obergefell decision, the opinion appeared to settle specific questions about the legal and constitutional status of marriages between people of the same sex and broader questions about the constitutionality of formal discrimination against gays and lesbians. Since then, the Supreme Court has issued decisions challenging established sexual-liberty jurisprudence, including Justice Thomas' concurrence in Dobbs v. Jackson (2022), which promised a reconsideration of the whole "substantive due process" tradition. 

We invite essays on the queer constitutional history that gave rise to the Obergefell decision-including events outside of the realms of marriage, family law, or U.S. constitutional law-as well as the place of marriage equality within the Court's broader sexual liberty jurisprudence. We welcome contributions on the evolution of marriage equality, queer parenting, and sexual privacy rights under the U.S. Constitution, as well as related topics. For example, submissions might examine how and why these rights became recognized, their doctrinal underpinnings, the gaps that exist in Constitutional jurisprudence, and the relationship between queer Constitutional rights and the Court's decisions in related fields. 

We hope to publish a broad array of perspectives on these topics, to help inform scholarship on queer legal history and U.S. Constitutional history, as well as studies of legal institutions more generally. For that reason, this symposium issue takes an expansive approach to all of its terms: "U.S." extends beyond the mainland to include American territories and the country's diplomatic and international relations; we take "Queer" to mean research on gay, lesbian, bisexual, trans, nonbinary, or asexual people, or otherwise relating to nonnormative and stigmatized gendered and sexualized phenomena; "Constitutional" refers to questions that have been considered in U.S. constitutional courts, as well as related questions that have preceded or transcended them, and matters of state-level and not national constitutional adjudication; and "History" means the study of the past, but not necessarily the deep or distant past, and in this case cannot help but look over its shoulder to connections with contemporary issues. Abstracts are due February 1, 2025. 

Please submit them by email to Felicia Kornbluh (Felicia.Kornbluh@uvm.edu) and Marie-Amélie George (georgemp@wfu.edu). Authors of selected articles will be notified by March 1, 2025. Drafts, which should range from 5,000 to 10,000 words, will be due July 1, 2025 for submission to peer reviewers. Final versions of the articles will be due September 1, 2025. The guest editors may propose a half-day conference to immediately precede the American Society for Legal History's annual meeting in 2025. Contributors to this symposium issue would be invited, but not required, to participate.

Goold and Simon on The Case of Snickerwood Soup @davidasimon.bsky.social @david__simon @NUSL

Patrick Russell Goold, City University London, The City Law School, and David A. Simon, Northeastern University School of Law, have published The Case of Snickerwood Soup. Here is the abstract.

Intellectual property lawyers often ask: What is the value of intellectual property (IP) theory? During our research, we have uncovered a case from a distant land that might shed some light on the issue: The Case of Snickerwood Soup. We report it in full here.

Download the article from SSRN at the link.

Ferguson on The Ciceronian Origins of American Law and Constitutionalism @HarvardJLPP

Jack Ferguson, U.S. Court of Appeals for the Sixth Circuit, is publishing The Ciceronian Origins of American Law and Constitutionalism in volume 48 of the Harvard Journal of Law & Public Policy (2025). Here is the abstract.

In his treatise on American constitutionalism, John Adams wrote that “as all the ages of the world have not produced a greater statesman and philosopher united than Cicero, his authority should have great weight.” This Article considers the Founding generation’s intellectual debt to Marcus Tullius Cicero, the classical Roman statesman-philosopher, and what it tells us about how the Founders approached law and constitutionalism. There are ongoing scholarly efforts to recover the general law tradition and classical lawyering of the eighteenth century, but as of yet, no account has been given of Cicero’s prominent role in that era. This Article gives that account. This Article first examines Cicero’s legal thought and how it shaped notions of natural law and the law of nations (or general law) in the seventeenth and eighteenth centuries. Grotius, Pufendorf, Coke, Vattel, Blackstone, Lord Mansfield, James Wilson, Joseph Story, and others grounded their work in Cicero’s writings on law. As a case study, this Article shows how Cicero contributed to the formation of American judicial review. Cicero’s interpretive principles dealing with hierarchies of law were adopted by Federalist No. 78, Alexander Hamilton’s prominent defense of judicial review. This Article then considers Cicero’s work on republicanism and constitutionalism. The Founding generation’s concepts of popular sovereignty, mixed government, checks and balances, and the rule of law can be traced back to Cicero, who was the primary expositor of the classical republican tradition. Finally, this Article evaluates Cicero’s influence on eighteenth-century notions of the ideal executive. As a constitutional theorist, Cicero laid the conceptual groundwork for Hamilton’s unitary energetic executive. And by his historical example as consul of Rome, Cicero inspired Hamilton’s efforts in the Washington administration to put down the Whiskey Rebellion of 1794, an early historical precedent on insurrection and the domestic use of military force. Cicero influenced the Founders’ work in numerous ways. To the extent their law is ours today, his relevance endures.

Download the article from SSRN at the link.

Newly Published: Miller on An Introduction to German Law and Legal Culture (Cambridge) @CambridgeUP

Newly published: 

Russell A. Miller, An Introduction to German Law and Legal Culture: Text and Materials (Cambridge University Press, 2024). Here from the publisher's website is a description of the book's contents. 

An Introduction to German Law and Legal Culture offers students, comparative law scholars, and practitioners an insightful and innovative survey of the German legal system. While recognizing the significant influence of the Civil Law tradition in the German legal culture, the book also considers other legal traditions – Common Law, Socialist Law, Islamic Law, Adversarial Law, European Law – that are woven into the varied and colorful fabric of the German legal culture. The book provides an informed yet accessible introduction to the foundations of German law as well as to the theory and doctrine of some of the most relevant fields of law: Private Law, Constitutional Law, Administrative Law, Criminal Law, Procedural Law, and European Law. It is an engaging and pluralistic portrayal of one of the world's most interesting, important, and frequently modelled legal systems.

More information about the book here.  

Bernick on Constitutions of Fire and Ice @EvanFloof @jackbalkin @PennLRev @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, is publishing Constitutions of Ice and Fire in the Pennsylvania Law Review. Here is the abstract.

Constitutional theory studies the birth and death of normative universes. Constitutions originate in “hot” universes, from fiery constituent power which forges institutions and norms that come to be seen as fixed and unchanging. Even in the “cooled down” universe, constituent heat is capable of transfiguring, transforming, and even consuming constituted power. No constitution which derives its legitimacy from popular sovereignty can long survive the estrangement of the living from what is perceived as a cold, dead legal order. Jack Balkin’s Memory and Authority tries to navigate between fire and ice, fixity and flux. Since Balkin’s conversion to originalism, he has been a steadfast defender of faith in the basic legitimacy of the Constitution of the United States and a keen critic of interpretive approaches which tend to undermine its legitimacy. His Constitution is a framework which has some fixed, “hard-wired” features but which also provides considerable space for politics. Popular multitudes in the present can join multitudes past in an intergenerational democratic project committed to the realization of enduring constitutional principles. Through faithful construction, an imperfect Constitution borne of sin can be redeemed and become our law. Memory and Authority maintains that originalist arguments play an important role in this democratic project. Balkin considers them to be a particularly effective means of harnessing the power of cultural memory. Balkin counsels everyone to use them. He specifically urges left-liberals to set aside their misgivings about a mode of argument that is primarily deployed by political conservatives, both for the sake of achieving left-liberal political goals and for the sake of democracy. I contend that Balkin’s map of the U.S. constitutional universe is neither cold nor hot enough to be complete or convincing. It’s not cold enough because the framework Constitution and durable political-economic structures which it presupposes and perpetuates skew constitutional decisionmaking in democratically disempowering ways. It’s not hot enough because Balkin neglects the ways in which the framework has been shaped—for good and ill—by fiery constitutional faiths. For all the space that he seems to leave for flux, Balkin takes too much fixity for granted. To illuminate the strengths and limitations of Balkin’s constitutional theory, I put his work in conversation with the anti-essentialist cosmological theory of Roberto Mangabeira Unger, among the founders of a critical legal studies movement to which Balkin was in his early career a major contributor. I also describe the constitutionalism through which Native peoples have built power in the United States, notwithstanding a colonialist Constitution. This constitutionalism is animated by faith, but that faith looks little like Balkin’s. And it illustrates why arguing about history can be a dangerous strategy for peoples marginalized by the framework Constitution.

Download the review from SSRN at the link.

Parrillo on Foreign Affairs, Nondelegation, and Original Meaning: Congress's Delegation of Power to Lay Embargoes in 1794 @YaleLawSch @PennLRev

Nicholas R. Parrillo, Yale University Law School, has published Foreign Affairs, Nondelegation, and Original Meaning: Congress's Delegation of Power to Lay Embargoes in 1794 at 172 University of Pennsylvania Law Review 1803 (2024). Here is the abstract.

Originalist proponents of a tougher nondelegation doctrine confront the many broad delegations that Congress enacted in the 1790s by claiming that each fell into some exceptional category to which the original nondelegation doctrine was inapplicable or weakly applicable, one being foreign affairs. There is lively debate on whether the founding generation actually recognized an exception to nondelegation principles for foreign affairs. This Article, commissioned for a symposium on “The Statutory Foreign Affairs Presidency,” intervenes in the debate by examining the Embargo Authorization Act of 1794, which empowered the President to lay an embargo on all ships in U.S. ports (and/or other classes of ships) if “the public safety shall so require,” for the upcoming five-month congressional recess. This was a delegation of remarkable power over the U.S. economy, which at the time depended heavily on maritime transport. An examination of the Act undermines the idea that there existed a foreign-affairs exception to cover it. Originalist proponents of a tougher nondelegation doctrine claim the doctrine was meant to protect private individual rights of liberty and property, yet Americans in the late 1700s lived in an economy that was more dependent on foreign commerce than it has ever been since, in which a five-month international embargo could be disastrous for private business nationwide. In this context, an “exception” for foreign affairs would be strange, turning economic reality on its head. Furthermore, the Act itself flouted any objective or even workable distinction between the foreign and the domestic. The Act’s unqualified use of the term “embargo” authorized the President to prohibit the departure of all ships, not only those sailing to foreign ports but also to other U.S. ports in the coastwise trade, which was then the main channel of U.S. domestic commerce. And even if the President were to impose an embargo aimed mainly at international maritime trade, preventing evasion of such a restriction required regulation of the coastwise trade—regulation that contemporaries apparently understood the Act to authorize.

Download the article from SSRN at the link.

Williams on The Law Being Weirder Than AI @uidaholaw

Sam Williams, University of Idaho College of Law, has published The Law is Weirder than AI. Here is the abstract.

Between artificial intelligence threatening to take our jobs and destroy the world while adopting the aesthetic of the weird and a presidential election that will be partially determined by how people feel about being weird, it seems like the weird is taking over. In this article, I make the case for embracing the weird. Only by embracing our own weirdness can we make sense of the weirdness (or lack thereof) of those that we do not understand. Primarily through the lens of author H.P. Lovecraft's weird tales, I argue that the law is very weird. This weirdness is mostly a good thing, but it does carry many of the same issues that plague Lovecraft's work. This acknowledgment of the weird then leads to an assessment of the weird claims surrounding "artificial intelligence" to dispel that mythology. The lens of the weird reveals artificial intelligence as a distressingly mundane monster, one who better represents the eerie spawn of very familiar forces. I conclude by explaining how the law's weirdness and the eerie forces that drive A.I. work together to create Sovereign Citizens, the law's own weird progeny. By understanding these three alien entities and their relationships with one another, legal minds can better appreciate their own place within a confusing and uncaring world.

Download the article from SSRN at the link.

Iskandar on The Constitutional Significance of State Symbols

Pranoto Iskandar, McGill University, Centre for Human Rights and Legal Pluralism; The Institute for Migrant Rights, has published The Constitutional Significance of State Symbols. Here is the abstract.

Not every constitution entrenches state symbols, but many do and their rationale can only be understood implicitly. These state symbols constitutionally significant. Some constitutions contain provisions that explicitly state any violation or even mere disrespect toward state symbols may entail legal consequences. Those that take state symbols too seriously tend to be classified as undemocratic, illiberal, repressive, or even worse, authoritarian. A cursory overview of some Western European states with liberal democratic pedigree reveals that they have harsh sentences for those who pour scorn on their state symbols. Therefore, this signifies that state symbols are an important feature in a constitutional order. After all, even the world’s most democratic states also have their own state symbols. Hence, how should one proceed in making sense of the constitutional significance of state symbols?

Download the essay from SSRN at the link.

Galperin on Museum of Joy @JoshGalperin @HaubLawatPace @ELIORG

Joshua Galperin, Pace University School of Law, is publishing Museum of Joy, in a volume to be published by the Environmental Law Institute (2025). Here is the abstract.

This document is a work of short fiction, which will appear in an edited volume of scholarship on the subject "consumption and the good life in the Anthropocene." (I assume it is the only work of fiction in the volume. Thanks to the editors for agreeing to allow me to submit something like this!) Although this piece is still in draft format, after the "global tech outage" on July 18, 2024, I thought it would be wise to make the piece available before reality fully became stranger than my fiction. "Holy cow, it's a scorcher" lilted the announcer, trailing off with a chortle. You could hear the smile running from ear to ear and it was hard not to smile along thinking about kids playing in sprinklers, parents sitting under rainbow umbrellas, wiping the sweat from their brows, and the droplets of cool water running down a glass of iced tea. “This is too sad.” Frances grabbed the remote and switched off the TV. The image of Jason Alexander as George Costanza with ice cream smeared across his face blinked away. “Why are they so playful about the heat?” She breathed out a sigh and closed her eyes for a moment. “It's threatening.” Bruce groaned, subtly but distinctly. “The guy sounds happy about how hot it is! Is it a joke about melting ice cream? All I can think about are people crouching in little slivers of shade, and kids dead after a brownout. "Fine. We can dump this episode” Bruce conceded “There are plenty more.”

Download the story from SSRN at the link.

Cappelen on No Centralization Without Population: The Black Death and State Formation in Europe @ccappelen.bsky.social

Christoffer Cappelen, University of Copenhagen, Department of Political Science, has published No Centralization Without Population: The Black Death and State Formation in Europe. Here is the abstract.

When and where do states expand their territorial reach? In this paper, I address this question by studying the impact of the Black Death on local state-building. I argue that the labor scarcity caused by the pandemic, by altering the costs and benefits of local state presence, affected rulers' decisions of where to invest in statebuilding. Areas that were hit relatively hard by the plague would ultimately experience a weaker presence of state authority compared to areas with lower mortality rates. Combining data on local mortality rates across Europe and an original dataset on castle ownership, I show that higher mortality rates are associated with lower levels of state presence as measured by the share of crown castles; and this divergence persisted through centuries. I further show that this divergence can be traced even to contemporary variations in critical infrastructure, suggesting a modern-day legacy of the Black Death.

Download the article from SSRN at the link.

Unah and Peng on US Supreme Court Decision Making in Intellectual Property Rights (1954-2022)

Isaac Unah, University of North Carolina, Chapel Hill, Department of Political Science, and Sabrina Peng, Duke University School of Law, have published 2. US Supreme Court decision making in Intellectual Property rights (1954-2022). Here is the abstract.

We analyze U.S. Supreme Court decision making in the complex area of intellectual property (IP) to determine whether the Court is strengthening, keeping neutral, or weakening the rights of intellectual property owners. We argue that the Court’s strategic currency is to weaken IP protections to counteract the value stretching and monopolistic tendencies of IP holders. Relying on original data covering four judicial Eras from the Warren Court to the Roberts Court (1954-2022), the analysis strongly supports our theoretical argument, especially as it pertains to patents, showing that the Supreme Court is weakening the rights of patent holders in the IP ecosystem. We further find that there is no IP exceptionalism in the Supreme Court when it comes to ideological influences but that these ideological effects are highly codependent upon other institutional factors. Interestingly, liberal Justices are significantly more likely than conservative Justices to disfavor expanding protections for intellectual property owners.

Download the essay from SSRN at the link.

Herman and Prosenečki on Dads Over Lovers: Why Western Games Favour Parental Relationships Over Romantic Ones, Unlike Other Forms of Art @goteborgsuni

Zoryana Herman and Fabijan Prosenečki, both of the University of Gothenberg, have published Dads Over Lovers: Why Do Western Games Favour Parental Relationships Over Romantic Ones, Unlike Other Forms of Art? Here is the abstract.

Romantic relationships have long been central to various art forms. However, in recent years, Western video games have shifted toward emphasizing parental relationships, particularly father-daughter dynamics, a trend dubbed "the daddification of games." While this shift is often praised for adding emotional depth and maturity to gaming narratives, some critics argue it reinforces traditional gender roles and caters to an aging, male-dominated demographic. This study aims to explore the origins and implications of this trend in Western games and examine the potential consequences of shifting toward romance as the primary narrative focus, aligning gaming with other artistic media. By analyzing the historical evolution and current state of video game narratives, as well as the representation of relationships in past and current media, we propose how this trend was influenced by Western culture around masculinity-specifically linking emotion to femininity-American censorship, and xenophobic attitudes toward Japanese media, where romancedriven narratives are more common. Furthermore, an analysis of player discussions in online forums suggests that players are open to a broader range of relational dynamics, with potential benefits for cultural representation and diversity of experiences offered by the gaming industry.

Download the article from SSRN at the link.

Funk on Sect and Superstition: The Protestant Framework of American Codification @kellenfunk.bsky.social @ColumbiaLaw

Kellen Funk, Columbia University Law School, is publishing Sect and Superstition: The Protestant Framework of American Codification in the American Journal of Legal History (2024). Here is the abstract.

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to 'superstition' and 'priestcraft'. Their opponents denounced the codifiers' idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly 'clear' texts that divided the positivists into an ever-increasing number of sects. Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today's textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist 'Republic of Statutes', the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground.

Download the article from SSRN at the link.

Aceves on Critical Constitutional Law and the Alito Palimpsest

William Aceves, California Western School of Law, is publishing Critical Constitutional Law and the Alito Palimpsest in volume 27 of the University of Pennsylvana Journal of Constitutional Law (2025). Here is the abstract.

This article uses an innovative metaphor—the palimpsest—and a provocative philosophical tradition—genealogy—to generate a new theory of critical constitutional law. It is a theory born from this unique moment in time. Originalism is now ascendant at the Supreme Court. Its search for essential origins in history as a method for grounding extant constitutional values was used in Dobbs v. Jackson Women’s Health Organization to end recognition of the fundamental right to abortion. The Court’s conservative majority has made clear that Dobbs is only the beginning. Critical constitutional law uses the metaphor of the palimpsest to study law and the search for essential origins. In antiquity, a palimpsest was a document treated with chemicals or scrubbed to erase the original text. This allowed the document to be recycled and written anew. Yet, some documents still retained faint images of the original text. By exposing repeated erasures and inscriptions, palimpsestic inquiry reveals how the law is in a constant state of transition and transformation. It also reinforces the findings of genealogy, a critical theory that views history as a field of self-interested interpretations and moral prejudices with no true essential origin. Through palimpsestic inquiry, new insights can be gleaned from Dobbs, a legal decision that is simultaneously historical, ahistorical, and filled with history. It exposes the outdated and misogynist values that permeate Justice Alito’s majority opinion. It reveals how history was scraped clean and reinscribed to justify originalist values. But, palimpsestic inquiry also explains that vestiges of Roe and Casey—and the values they represent—still remain. In the Hegelian dialectic of abortion law—where jurisprudential theories struggle for primacy in the zero-sum world of a nine-member Court—the Alito Palimpsest is merely the current iteration. Palimpsestic inquiry confirms that essential origins are seldom what they seem. This article begins with Dobbs, but its contributions to legal theory extend far beyond this one case. If history has become the touchstone for constitutional interpretation, this article offers a more honest methodology for studying law in the modern era. In fact, it provides the “master metaphor” for the study of law—offering clarity to a range of constitutional rights.

Download the article from SSRN at the link.

Braver and Elinson on A Progressive Judiciary? Judicial Review and National Politics from Reconstruction to the Present @JoshuaBraver1 @WisconsinLaw @NIU_Law

Joshua Braver, University of Wisconsin Law School, and Gregory Elinson, Northern Illinois University College of Law, are publishing A Progressive Judiciary? Judicial Review and National Politics from Reconstruction to the Present in the Uniersity of Arizona Law Review. Here is the abstract.

Within legal academia, the conventional historical narrative is that the Supreme Court has regularly interfered with legislative and executive efforts to protect minority rights and remedy economic inequality. Citing this reactionary tendency, an influential and vocal group of progressive legal scholars have argued that progressives ought to stop defending judicial review and instead devote their energies to eliminating it, or at least aggressively curbing its use. These progressive critics of judicial review (our term) proffer two related historical claims. First, they assert, the Supreme Court has consistently been less progressive than congressional majorities and Presidents. Second, they suggest, even landmark progressive rulings in cases like Brown v. Board of Education and Roe v. Wade were not, in and of themselves, meaningful contributions to progressive causes. This Article evaluates these claims and concludes that judicial review’s progressive critics are wrong on both counts. Revisiting the key eras and cases the progressive critique of judicial review is based on—including Reconstruction, Lochner v. New York, Brown, and Roe—we find little evidence that the Court has been consistently less progressive than the elected branches. We focus on postmaterial political issues that broadly code as part of a broader “culture war,” such as race and sex equality. As to Reconstruction, given that the Republican Party had largely turned away from the project of expending the necessary resources to promote Black equality, progressive critics of judicial review greatly overstate the Court’s contribution to Reconstruction’s demise. In the Lochner era, politicians in both political parties harbored racist views and promoted racist public policy, so the Court’s anti-government ideological commitments ultimately redounded to the benefit of Black Americans. Moving toward the present, we argue that Brown should be celebrated for desegregating the former “border” states and making the Civil Rights Act of 1964 possible. Roe, for its part, established a permissive national abortion regime that went well beyond what was possible to achieve through politics then. On balance, we conclude, a world without judicial review might well have been meaningfully less progressive. Why have judicial elites usually been more progressive than majorities in Congress or presidential administrations on culture-war issues? During Reconstruction, legal elites were largely undifferentiated from their counterparts serving elsewhere in the national government. By the Progressive Era, however, legal elites had become relatively more skeptical of state power compared to their political brethren, a disposition that sometimes furthered progressive ends. After the New Deal, we credit educational polarization, which has tended to make the elite bar, and thus the pool of actual and potential judges and justices, comparatively more open to progressive claims. We observe, however, that beginning in the 1990s, through effort and mobilization—perhaps most notably with the establishment of the Federalist Society—conservatives have offset the exclusionary effects of the legal profession’s liberal leanings on the judiciary.

Download the article from SSRN at the link.

Solum on Original Public Meaning @lsolum @UVALaw @michstatelawrev

Lawrence B. Solum, University of Virginia School of Law, is publishing Original Public Meaning in volume 2023 of the Michigan State Law Review. Here is the abstract.

“Original public meaning” has become increasingly important in constitutional discourse. This Article investigates the nature of original public meaning in three steps. First, each word in the phrase “original public meaning” is explicated and clarified. The word “original” represents the idea that the meaning of the constitutional text is fixed at the time each provision is framed and ratified. The word “public” signifies that the relevant meaning is ordinary meaning, the understanding of the text conveyed to the public at the time each provision was framed and ratified. The word “meaning” refers to the set of ideas (concepts and propositions) that constitute the communicative content of the constitutional text. The second step situates original public meaning in the context of normative constitutional theory, explaining its role in both Public Meaning Originalism and nonoriginalist constitutional theories. The third and final step investigates the foundations of original public meaning in the philosophy of language and theoretical linguistics, via an exploration of the distinctions between (a) speaker’s meaning and sentence meaning, (b) semantics and pragmatics, (c) sense and reference, and (d) conceptual meaning versus prototypical meaning. Each of the three steps contributes to the articulation of a conception of original public meaning that aims at conceptual clarity, precision, and theoretical depth. The original public meaning of the constitutional text is the communicative content (the set of concepts and propositions) that was conveyed to the public at the time each provision was drafted, proposed, and ratified. Both semantics (the meaning of words and phrases) and pragmatics (meaning conveyed by context) play essential roles in the complex multistage process by which constitutional communication occurs. For public meaning originalists, the original public meaning of the text ought to bind constitutional actors, including judges, legislators, and executive officials. Sometimes, the recovery of original public meaning is relatively easy—the absence of linguistic drift, common sense, and the immediate context make the meaning of the constitutional text readily accessible to contemporary readers. But sometimes, the original public meaning of the constitutional text is difficult to discern, requiring both a deep reading of the constitutional record and careful application of the methods of historical linguistics.

Download the article from SSRN at the link.

Conference on Abortion in American History, January 17, 2025, at the Huntington Library @TheHuntington

Forthcoming Conference: Abortion in American History: Intimate Decisions, Medical Knowledge, and Legal Decrees in the Two Centuries Before Roe v. Wade. Here's a description of the conference, to be held January 17, 2025, at the Huntington Library.

This conference brings together leading scholars to explore the multifaceted history of abortion in 19th- and 20th-century America. Building on the Longo Collection in Reproductive Biology, this conference will explore the underlying history that can deepen public understanding of the controversial politics of abortion law.

More information available here.

Lo Giacco on Giving Meaning to the Past: Historical and Legal Modes of Thinking @letizialogiacco.bsky.social @unileiden.bsky.social @de_Legiz

Letizia Lo Giacco, Leiden University Law School, has published Giving Meaning to the Past: Historical and Legal Modes of Thinking at 9 (2) Jus Gentium: Journal of International Legal History 371 (2024).

This contribution revisits the "turn to history" in international law by focusing on the debate on method between international lawyers and (legal) historians. The paper resorts to an analogy between interpreting the past and interpreting the law as giving-meaning activities to help elucidate points of juncture between these two disciplines. Against flourishing instrumentalist re-readings of the past and manipulative uses of history that both historians and international lawyers have denounced, this paper suggests a way to validate historical narratives and discern among those which contribute to the knowledge of the past and those who would not. It concludes that the "turn to history" in international law is better appreciated as a project geared towards re-assessing its own tradition, fostering self-reflection on international law as a set of doctrines and the role of international lawyers therein, i.e. what it entails to reproduce them as international lawyers.

The full text is not available from SSRN.

Alicea on The Natural Law Moment in Constitutional Theory @HarvardJLPP @CathULaw

 J. Joel Alicea, Catholic University of America School of Law, is publishing The Natural Law Moment in Constitutional Theory in volume 48 of the Harvard Journal of Law and Public Policy (2024). Here is the abstract.

Something new is happening in American constitutional theory. Never before have so many legal scholars sought to ground constitutional theory in the natural-law tradition. Indeed, we can truly say that we are living through a natural-law moment in constitutional theory, a period of unprecedented interest in natural law among constitutional theorists. This immediately calls to mind three questions. First: how, if at all, are the theorists of this moment different from prior theorists who sought to ground constitutional theory in natural law? Second: what explains the rise of natural law in American constitutional theory? Third: what are the implications for constitutional theory of our natural-law moment? This essay sketches answers to these questions, with the caveat that much more could be said about them. This essay was originally delivered as the Herbert W. Vaughan Memorial Lecture at Harvard Law School on April 9, 2024.

Download the article from SSRN at the link.

Songster, López, and Torres on Participatory Law Scholarship as Demosprudence @AmistadLaw @Rachel_E_Lopez @TempleLaw @YaleLawSch @VirginiaLawRev

Kempis Songster, Amistad Law Project, Rachel López, Temple University School of Law, Princeton University Program in Law & Public Policy, and Gerald Torres, Yale Law School, have published Participatory Law Scholarship as Demosprudence at 110 Virginia Law Review 298 (2024).

This Essay situates Participatory Law Scholarship (PLS) within the framework of “demosprudence”—a concept developed by Lani Guinier and co-author Gerald Torres that examines how ordinary people, often acting collectively, participate in making legal meaning by shifting societal narratives that inform the law. Namely, it explores the role that participatory methods in legal scholarship can play in democratizing the law and enhancing the practice of democracy. Specifically, at a time when democracy is facing a stress test that threatens the premises upon which it is based, PLS is one method for addressing the alienation between law and society that is in part to blame for the renewed rise of authoritarianism. The technicalities of the law often make non-lawyers feel disconnected from it and encourage apathy towards it as a vehicle of social change. Traditional legal scholarship sometimes aids and abets this disconnection from the law by favoring a doctrinal focus that can feel so detached from how the law operates on the ground that it is rendered irrelevant to those who experience it most intimately. PLS democratizes the law by making it more accessible to non-lawyers and facilitating greater participation in the process of making legal meaning. We thus argue that legal scholarship is both a venue for studying this phenomenon and also a site for demosprudential genesis.

Download the essay from SSRN at the link.

Graziadei and Giraudo on Contested Economic Maps of Legal Systems

Michele Graziadei, University of Turin Faculty of Law, and Marco Giraudo, University of Turin; Collegio Carlo Alberto, are publishing Contested Economic Maps of Legal Systems in the Journal of Comparative Law (2024). Here is the abstract.

Exploring comparative legal discourses through an investigation into the shared worldviews of scholars is both an ambitious and an indispensable program. It is ambitious because a similar exercise requires fresh investigations of legal comparisons on a world scale to be valid. It is challenging because influential worldviews emerge over time and tend to exert their effects over considerable periods of time, hence the need to extend the analysis over entire epochs. Such a vast program is therefore by its nature a collaborative endeavor. At the same time, an effort to approach this topic anew is necessary because the progress of knowledge requires open debate about the central tenets of any academic discipline or branch of learning. The worldviews that underlie many comparisons are among the central tenets of the discipline. Conversely, comparisons based on worldviews that are not openly and critically discussed risk being flawed. Starting from the antiquity, various areas of the world have emerged as cultural, economic, and political units. The division of world into States that enjoy mutual recognition under international law has prevailed in recent times. Throughout the emergence of the current world order, comparisons have been made on the basis of different worldviews. Looking at the field of comparative law, the classification of the world's legal systems into legal families has been a way to give voice to such worldviews. As evidence that worldviews are subject to change, it should be noted that the classifications of legal systems into legal families elaborated in the nineteenth and early twentieth centuries do not correspond to the later classifications associated with the classic works of René David and Zweigert and Kötz. 1 These in turn are often considered to be outdated (or are qualified) by recent classificatory efforts, or are met with outright skepticism. To be sure, scholars based in socialist countries always presented a different map of the world. Considerations related to the prevailing socialist ideology were a dominant factor in their classification of the world's legal systems. The prevalence of a certain ideological outlook in reconstructing a legal map of the world is not an exclusive prerogative of works that adhered to that ideology. On the contrary, it underlies works that aspire to objectivity. The tendency of key comparative law works to subordinate or to marginalize those systems that do not conform to the Western canon in their ideal map of the world's legal experiences has thus become the target of lively criticism. 2 This criticism maintains that law is not separate from culture, and the culture of European ruling classes adhered to an idea of superiority vis à vis "the other" that was an essential component of imperialistic projects launched by European powers all around the world in the modern and the contemporary epochs. 3 Similar reflections have informed the call for a decolonial comparative law approach coming from leading academic institutions.

Download the article from SSRN at the link.

Webb on The Lost History of Judicial Restraint @YaleLawSch @NotreDameLRev

Derek Webb, Yale Law School, is publishing The Lost History of Judicial Restraint in volume 100 of the Notre Dame Law Review. Here is the abstract.

This article attempts to answer a question of great contemporary significance – what role courts should play in our democracy. Specifically, it attempts to answer the question of what standard of review courts should use in deciding constitutional cases. It does so by recovering a lost history of how American jurists conceived that role from the American founding to the close of the nineteenth century. It draws upon a voluminous and diverse array of nineteenth century treatises, legal dictionaries, encyclopedias, case books, and manuals of federal practice, on the one hand, most of which have never before been examined, and federal and state supreme court cases in all fifty states on the other, to show, contra prominent legal historians and many leading contemporary originalists, that by the close of the nineteenth century, there was an overwhelming consensus in favor of the presumption of constitutionality, clear error rule, and reasonable doubt standard. James Bradley Thayer, who popularized those rules and gave them a unique theoretical justification in his classic 1893 article “The Origin and Scope of the American Doctrine of Constitutional Law,” did not just invent those rules. He was not, as Learned Hand put it, and many of his critics have subsequently agreed, the “prophet of a new approach.” Rather, he was just one – albeit distinguished and influential – member of a vast yet now forgotten chorus of treatise writers and jurists throughout the country, eventually in all fifty states, who defended a cautious, deferential, and restrained approach to invalidating the acts of democratic bodies. My thesis is that over the course of America’s first century, there emerged a much broader and richer historical consensus around judicial restraint than the advocates or critics of restraint have ever acknowledged. From its earliest origins in the transatlantic constitution, and through piecemeal legal practice in state and federal courts, before and after the creation of the Constitution, the “Thayerian” “rules of administration” associated with judicial restraint were eventually adopted by both the U.S. Supreme Court and all fifty state supreme courts in the country. This has implications not only for legal history but for understanding the scope of the judicial power and duty today. By attempting to recapture this mostly "lost history of judicial restraint," I argue that during America’s first century, through the “discussions” in legal treatises and the “adjudications” in all the country’s apex supreme courts, all pointing overwhelmingly and uniformly in the direction of restraint, the Constitution’s standard of review, and the very meaning of "the judicial power" in Article III, appears to have been fixed or “liquidated" during America's first century.

Download the article from SSRN at the link.

Guerra-Pujol and Alcouffe on Adam Smith in the City of Light @ProfessorPujol

F. E. Guerra-Pujol, Pontifical Catholic University of Puerto Rico; University of Central Florida, and Alain Alcouffe, University of Toulouse-Capitole, have published Adam Smith in the City of Light. Here is the abstract.

The general outline of Adam Smith’s travels in Europe has been retold many times, but little is known about his comings and goings in Paris. What we can say, however, is that the Scottish philosopher’s time in the City of Light marks an important turning point in his personal and intellectual life. He began his Paris sojourns by permanently resigning his professorship. He concluded them by mourning the death of one of the teenage boys who had been entrusted to his care. In all, Adam Smith made three separate visits to Paris. His first visit occurred in February of 1764 and lasted less than a fortnight (Rae 1895, p. 174; Ross 2010, p. 210), but his second and third stays lasted much longer--from February to July 1766 and then from September to October 1766--interrupted only by a short interlude in Compiègne in August. Moreover, several important events took place in Paris during all three of Adam Smith’s stays in the City of Light, dramatic episodes that a keen observer of the world like Smith must have taken notice of, including the intense debate from May 1763 to April 1764 over taxation and royal finances that took Paris by storm the political showdown known as the "séance de la flagellation", when Louis XV made a rare appearance in the French capital to scold the members of the legislature at a session of the Parlement de Paris on 3 March 1766; and the appearance of David Hume’s reply to Rousseau, which was published in Paris on 21 October 1766. Accordingly, Part 1 of this work revisits Smith’s first foray in Paris in February 1764. Next, Part 2 explores Smith’s second sojourn in Paris, from February to July 1766. Part 3 then concludes by revisiting Smith’s last days in Paris.

Download the article from SSRN at the link.

Hollis on The Original Meaning of Treaties @TempleLaw @PennLRev

Duncan B. Hollis, Temple University School of Law, is publishing The Original Meaning of Treaties in volume 173 of the University of Pennsylvania Law Review (2025). Here is the abstract.

For nearly two centuries all three branches of the federal government have thought that the original meaning of the Constitution’s references to treaties and compacts was lost. This article aims to recover those original meanings by looking to an underexamined source—the contemporary law of nations. In 1789, that body of law regarded compacts, rather than treaties, as the umbrella category for all international agreements. Treaties—defined as executory commitments among sovereigns only—were but one form of compact. Others included executed “conventions,” agreements by “subsidiary powers,” and unauthorized “sponsions.” Each of these categories had a specialized meaning—they were terms of art—in both the scholarly corpus that delimited the field and contemporary practice. Although neither dictionaries nor the Framing materials explicitly invoke these definitions to assign constitutional meaning, there is extensive evidence in the text, intellectual history, and early U.S. practice for doing so. I identify support for a law of nations thesis in an array of previously ignored agreements, including those made by George Washington and Benedict Arnold. A law of nations thesis also helps explain why the United States concluded certain agreements as treaties and others as conventions in its earliest years. This article thus provides a new and historically rooted foundation for U.S. foreign relations law, with important implications for the scope and exclusivity of the Treaty power, the power to conclude “Executive Agreements,” the doctrine of non-self-executing treaties, the ban on U.S. state treaty-making, and the Constitution’s authorization of compacts with congressional consent.

Download the article from SSRN at the link.

Siegel on The Levels-of-Generality Game: "History and Tradition" in the Roberts Court @HarvardJLPP @YaleLawSch

Reva Siegel, Yale Law School, is publishing The Levels-of-Generality Game: "History and Tradition" in the Roberts Court in volume 47 of the Harvard Journal of Law and Public Policy (2024). Here is the abstract.

Scholars have not agreed upon a method of interpretation that explains the Court’s reasoning in Dobbs v. Jackson Women’s Health Organization or New York State Rifle & Pistol Association v. Bruen. As this Article shows, what explains the history-and-tradition decisions of the Roberts Court is not a method of interpretation, but instead a justification for the Court’s turn to the past. The conservative Justices claim that interpreting the Constitution through history and tradition—when described in granular factual detail—best constrains judicial discretion by tethering law to objective criteria separate from the interpreter’s policy preferences. Justice Scalia long ago advanced this claim, and began a decades-long debate over “levels of generality” when he urged judges “to adopt the most specific tradition as the point of reference.” The Article contrasts this belief—that tying constitutional interpretation to history can constrain the expression of judicial values—with an alternative account. An interpreter’s appeal to facts about the nation’s past in constitutional argument often expresses values—forms of argument I have called “constitutional memory” claims. What appear in constitutional argument as positive, descriptive claims about the past are often normative claims about the Constitution’s meaning. In this Article, I show how my account of constitutional memory identifies the expressive role of conservative historicism, counters the judicial-constraint justification, and offers new perspectives on the levels-of-generality claims associated with it. The Article opens by examining puzzles of method and justification presented by Dobbs and Bruen during the 2021 Term. It concludes with a late-added section that samples the Justices debating the Article’s judicial-constraint and levels-of-generality themes in cases of the 2023 Term—in particular, in the Second Amendment case of United States v. Rahimi. The Article’s account of Dobbs, Bruen, and Rahimi demonstrates that we are all living constitutionalists now—but, crucially, not all living constitutionalism is the same. A conclusion identifies reasons why the Justices who present appeal to the past as claims of judicial constraint may engage in anti-democratic forms of living constitutionalism.

Download the article from SSRN at the link.

Berresford on A Pumpkin Patch, a Typewriter, and Richard Nixon

John W. Berresford has published A Pumpkin Patch, a Typewriter, and Richard Nixon: The Hiss-Chambers Espionage Case. Here is the abstract.

This is a history of one of the most famous trials in American history. It was also a political circus and a personal tragedy for the litigants. The article takes the reader through Congressional hearings in 1948, a libel suit, grand jury proceedings, two criminal jury trials, and appeals that ended only in the 1980s. In the end, it was proved that a drearily correct diplomat named Alger Hiss had been spying for the Soviet Union for years and that warnings about his and similar crimes had been ignored for too long. Hiss's chief accuser, Whittaker Chambers, was a strange and fascinating genius who originally was believed only by a freshman Representative named Richard Nixon. The personalities, public punches and counter punches, litigation strategies, evidence, legal rulings, and courtroom advocacy of both sides are examined in detail. Also described are what did not come out in the trials and the political impact of all this, as well as elite and public opinion about who was telling the truth.

Download the article from SSRN at the link.

Link to the author's website and podcast available here. 

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.

Smith on Originalism in the Year Three Thousand @msmith750 @StMarys_Law @QuinnLRev

Michael L. Smith, St. Mary's University School of Law, is publishing Originalism in the Year Three Thousand in volume 43 of the Quinnipiac Law Review. Here is the abstract.

While procrastinating from grading at the end of the Spring 2024 semester, a series of mishaps led to my inadvertent teleportation to the year three thousand, where I found myself attending a conference consisting of top originalist legal scholars. This essay recounts what I was able to gather about the state of constitutional interpretation in the centuries to come and applies these insights to current quandaries over how to classify modern courts’ interpretive methodology.

Download the article from SSRN at the link.

Silva on Achaean Disputes: Eight Centuries of Succession Conflicts for the Title of Prince of Achaea @CathULaw

Ugo Stefano Stornaiolo Silva, Catholic University of America, Columbus School of Law; University of Orleans, Faculty of Law and Economics; Jagiellonian University in Krakow, Faculty of Law and Administration, Students; Mises Institute; has published Achaean Disputes: Eight Centuries of Succession Conflicts for the Title of Prince of Achaea. Here is the abstract.

This study delves into the intricate succession landscape surrounding the medieval title of Prince of Achaea and the older associated dignity of King and Despot of Asia Minor, tracing their historical roots, and assessing its contemporary status if ever reclaimed by the Damalas family, senior direct-line heirs to the Genoese Zaccaria dynasty, last sovereign house to have used it as rulers of Achaea. The multidisciplinary research method used incorporates reviewing recent genealogical studies, analyzing historical sources and medieval accounts, like the Chronicles of the Morea and the Chronicle of the Tocco, to establish the title's nature, antiquity and succession history, and applying historical Roman, Byzantine and Frankish Greek feudal law (the Assizes of Romania, in particular) to assess the legitimacy of competing claims for the title over time, particularly within the Zaccaria family and later by the Tocco lineage, and ultimately of modern comparative nobiliary law and elements of private law to discuss its theoretical rehabilitation in favor of the Damalas descendants of the Zaccaria Princes of Achaea.

Download the article from SSRN at the link.

Stern on Law, Literature, and the Legal Imagination @simon8.bsky.social @ArsScripta

Simon Stern, University of Toronto Law, has published Law, Literature, and the Legal Imagination. Here is the abstract.

Law and literature occupies an unusual place among the interdisciplines in the legal academy. Various interdisciplinary conjunctions have found a home on law faculties over the last half-century or so, such as law and economics, law and sociology, and law and psychology, more recently supplemented by law and neuroscience. Most law professors could summarize the aims of scholarship fairly accurately in these areas. Law and literature has had a place in the legal academy for about the same amount of time, and yet those who do not read current scholarship in this field tend to have a vague or even misinformed understanding of what the work entails. Having outlasted the many predictions of its demise, the field nevertheless suffers from a strange kind of identity crisis—not because of anxieties or doubts among those who write in this area, but because of confident but misguided accounts that others would offer when describing the field. This article seeks to explain why this particular disciplinary conjunction differs from others that thrive on law faculties. The first part of the discussion takes its point of departure from James Boyd White’s The Legal Imagination. I offer a few observations about White’s book in relation to the field of law and literature, and as the subject of a symposium like the one being hosted in these pages. My point in this first part is a simple one, namely that very few books by law professors have achieved a status that makes them appropriate for such an anniversary symposium, and most of them have been interdisciplinary in a way that makes them resemble the kind of humanities scholarship that more typically receives this kind of attention. The second part of the essay considers the trajectory of law and literature as a field over the last forty-some years. Here the discussion contrasts the state of the field as evidenced by work in flagship U.S. law journals, by contrast with other scholarly work published elsewhere. The point again is a simple one, namely that if one were to look only at flagship U.S. law journals, the field might appear to be in a state of decline, whereas if one looks more widely, the field is flourishing and expanding. If the field looks different, depending on this schematic division of publication venues, the contrast hints at diverging views about literature, legal scholarship, and their aims. Those views have some bearing on the status of law and literature in relation to other legal interdisciplines, such as the ones mentioned at the outset.

Download the essay from SSRN at the link.

Magnuson on Original Discontent @TAMULawSchool @VandLRev

William J. Magnuson, Texas A&M University School of Law, is publishing Original Discontent in volume 78 of the Vanderbilt Law Review. Here is the abstract.

There are many theories of constitutional interpretation. Most, but not all, of them assert that, in interpreting the Constitution’s provisions, we should start by taking seriously the intentions of the enactors, meaning, roughly speaking, its drafters, defenders and ratifiers. This Article argues that, in doing so, judges, scholars and policymakers have underestimated an important feature of the process of constitution-making: the discontent of the enactors themselves with the Constitution they were enacting. Time and again, during the Philadelphia Convention of 1787, during the penning of the Federalist Papers, and during the state ratifying conventions, the enactors expressed deep reservations about the structure and substance of the draft Constitution. They worried that it would lead to anarchy and tyranny. They worried that it would enshrine injustice into the policies of the new nation. And they worried that it would foment civil conflict and violence. These were not mere quibbles, the ordinary outcome of the messy process of compromise and negotiation. Their discontent went to the very foundation of the constitution. In short, many founders believed that the Constitution they created was not, in fact, good law. This Article argues that “original discontent,” that is, the discontent of the enactors with the Constitution they were creating, is both underestimated and essential for understanding our constitution. Original discontent carries important implications for a wide range of the most common methods of constitutional interpretation. For originalists, it suggests that we should take the public statements of proponents of the constitution for what they were: more propaganda than heart-felt statement of belief. For living constitutionalists, it suggests that, even if we accept that judges should interpret the Constitution as laying down broad principles subject to evolving norms and moral beliefs, we must recognize that the founders were skeptical of those basic principles. For common good constitutionalists, it provides essential context about the original understanding of the constitution and its effects on the nature of the political community. More fundamentally, this Article argues that original discontent calls for a broader reconceptualization of the nature of constitutions. One of the basic tenets of constitutional interpretation has always been that a constitution is something like a social contract: it lets our past selves rule our future selves. But nothing about that formulation tells us which views should matter: is it the views of the most rabid proponent, or of the average citizen, or of the coalition that voted in favor? What about the views of dissenters, or the disenfranchised, or the enslaved? By uncovering the hidden history of discontent at the center of the constitution’s creation, this Article highlights the importance of incorporating a wider range of perspectives into modern constitutional interpretation. It also provides a powerful reason for judicial restraint. If the Constitution was not thought to be a wise document even by those who drafted it, judges must exercise caution before using it to strike down democratically-enacted laws.

Download the article from SSRN at the link.

Call For Proposals: 2025 Applied Legal Storytelling Conference, July 9-11, 2025, University of Michigan Law School @UMichLaw

The University of Michigan Law School is hosting the 2025 Applied Legal Storytelling Conference, July 9-11, 2025.

The Applied Legal Storytelling Conference brings together academics, judges, lawmakers, practitioners, and any other type of legal storyteller.

Applied legal storytelling examines the use of stories, storytelling, or narrative elements in law practice, legal education, and the law. This definition is intentionally broad to allow people creativity in the way they think and present on the topic.

Examples may include:

• ways in which creative nonfiction and fiction-writing techniques or narrative theory can inform legal storytelling
• stories in the law, or law as stories
• legal storytelling and metaphor
• client story advocacy
• counter storytelling
• professional identity formation through legal storytelling
• cognitive nature and psychology of storytelling and narrative
• using legal storytelling to foster empathy and promote civil discourse
• ethical considerations in legal storytelling

Undoubtedly, there are many other avenues to explore.

The conference has previously convened in 2007 (London), 2009 (Portland), 2011 (Denver), 2013 (London), 2015 (Seattle), 2017 (Washington, DC), 2019 (Boulder), 2021 (Virtual/Mercer), and 2023 (London).

Call For Proposals

The Tenth Biennial Applied Legal Storytelling Conference is seeking proposals for creative, engaging, and insightful presentations for our upcoming conference in July 2025. 

We welcome and encourage presentation proposals from faculty, lawmakers, and practitioners engaged in a variety of disciplines and from schools and organizations around the world. We encourage proposals from newcomers and experienced presenters alike.

All selected presenters will be expected to present in person. We encourage creativity in presentation format—this conference will be collegial, inclusive, and supportive of your work.

Presenters will be required to pay the conference registration fee and cover their own costs for travel and accommodations. 

More information and links to submit a proposal available here.

Long on The Gettysburg Address: Lincoln's Model Legal Argument

Patrick J. Long, SUNY Buffalo Law School, has published The Gettysburg Address: Lincoln's Model Legal Argument at 72 Buffalo Law Review 383 (2024). Here is the abstract.

The Gettysburg Address does not appear to be a legal argument. One cannot find a rule anywhere in its few words. Nor does there seem to be any application of a rule to the facts of the case. There is a simple reason for this absence: the law in 1863 was wrong. Lincoln knew that, but he was too much the lawyer to advocate law-breaking. Instead, he used all the skills he had learned from his years in the courtroom to urge his listeners to look beyond the law’s flaws to find the truth of the Declaration’s “self-evident truth.”

Download the article from SSRN at the link.

Sachs on Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles @StephenESachs @HarvardJLPP

Stephen E. Sachs, Harvard Law School, is publishing Good and Evil in the American Founding: The 2023 Vaughan Lecture on America's Founding Principles in the Harvard Journal of Law and Public Policy. Here is the abstract.

The past few decades have seen a broad moral reevaluation of the American Founding. Both on the left and on the right, many now regard the Founders’ ideals as less valuable and their failings as more salient. These reckonings are necessary, but they also risk missing something important: a richer and more human understanding of the past, together with a recognition of the great good that the American Founding achieved, here and elsewhere. This Essay discusses how we ought to understand the Founders’ historical legacy—and why we might respect and indeed honor their contributions with open eyes.

Download the essay from SSRN at the link.

Sheikh on "Betty, I Won't Make Assumptions": The Narrative Jurisprudence of Taylor Swift @dsheikh726 @latrobelaw

Danish Sheikh, LaTrobe Law School, is publishing ‘Betty, I Won’t Make Assumptions’: The Narrative Jurisprudence of Taylor Swift in volume 26 of the Media and Arts Law Review. Here is the abstract.

In the early months of the pandemic, Taylor Swift released her 8th studio album. For a songwriter known for her diaristic body of work, Folklore was a notable stylistic departure. The album was marked by Swift’s attempt to incorporate other voices into her storytelling, written from the perspectives of figures both real and fictional. Amongst the most widely discussed elements of Folklore is a love triangle told over the course of three songs: ‘Cardigan’, ‘August’ and ‘Betty’. Each song is written from the vantage point of a different character, with intertextual references to the other songs filling in the gaps of the story and providing a connecting thread. In this article, I approach Folklore and its central love triangle for the jurisprudential lessons it might offer. A jurisprudent is someone who develops a persona which cares for the conduct of lawful relations. In this article, I ask what forms of training Swift might provide to those of us who care about law. In particular, I approach Swift as a narrative jurisprudent, focusing on how she goes about crafting different personae, how she attempts to take responsibility for each of these personae, how she trains herself through the act of writing other selves, and how she trains her audience to listen well. I place each of these lessons in the context of Swift’s broader oeuvre as a songwriter, while also making a case for how they teach us to better take responsibility for law.

Download the article from SSRN at the link.

Willinger on Missing Pieces: Gaps in the Record of Early American Decisional Law @AndrewWillinger @DukeFirearmsLaw @DukeLawJournal

Andrew Willinger, Duke University School of Law; Center for Firearms Law, is publishing Missing Pieces: Gaps in the Record of Early American Decisional Law in the Duke Law Journal Online. Here is the abstract.

In its most recent major Second Amendment decision, NYSRPA v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were subject to judicial scrutiny during crucial eras of American history because many court decisions—especially from the Founding Era—were simply never recorded for posterity. Those omissions were not random and they do not represent merely what we today would consider insignificant holdings. Rather, omissions from the surviving record of decisional law are the product of curation by early court reporters, newspaper editors, and other actors often motivated by profit or partisan bias. Therefore, it is often perilous to extrapolate “the general law” from the extant, unrepresentative caselaw that happens to be preserved today. This Essay examines how the non-legal choices and preferences of those who recorded early American decisional law prior to the gradual emergence of more consistent reporting of judicial decisions in the late 19th century shaped the historical record of early decisional law that exists today. Part I chronicles the largely inconsistent and at times chaotic practice of court reporting at and after the Founding and explores how judicial decisions were preserved and published during that time. Part II addresses how modern originalist theories should approach and appreciate the “curated” nature of legal history from that time. I argue that the record of early American decisional law has been profoundly influenced by various actors (legal and non-legal) according to considerations other than preserving an accurate, comprehensive snapshot of “general law” at the time—namely, based on motives including profit and partisanship. This reality, I suggest, means that it is crucial to expand the universe of historical sources when possible to capture what may be missing from the universe of preserved decisional law.

Download the Essay from SSRN at the link.

Sapienza University of Rome Hosts Fourth Summer School: The Cultural Heritage and Memory of Totalitarianism, June 16-June 27, 2025

The Department of Literature and Modern Cultures of Sapienza University of Rome will host the fourth edition of the Summer School The Cultural Heritage and Memory of Totalitarianism between June 16 and June 27, 2025. The in-person summer course provides a unique opportunity for graduate students and early career junior professionals to explore the cultural, visual and literary legacy of totalitarian regimes and their transnational heritage and memory. This year’s edition will have a special focus on memory and postmemory.

The School combines lectures and seminars with in situ visits to the many sites of the memory of fascism and colonialism in the city of Rome. All activities are led by international experts in fields such as Comparative History, Postcolonial Literature, Visual Arts, Diaspora, Conservation and Museum Studies. You can find the program here.

For further information, please visit the website of the Summer School or write to summerschoolculturalheritage.lcm@uniroma1.it.

Dane on Thoughts on the Architecture of Freedom of Religion and Freedom of Speech @perrydane

Perry Dane, Rutgers Law School, Thoughts on the Architecture of Freedom of Religion and Freedom of Speech, in the Notre Dame Law Review Reflection. Here is the abstract.

One goal of this paper is to try to give a holistic account of the structure of freedom of religion and freedom of speech, and their relation to each other. The paper describes a set of important but delicate analytic assumptions and distinctions that have traditionally organized these doctrines. It also tries to explain how those assumptions and distinctions have been coming under increasing pressure, especially dur to our current state of political polarization. The paper then applies those ideas, through the lens of Justice Jackson’s important anthropological insights in West Virginia State Board of Education v. Barnette, to gain a better understanding of the difficulties inherent in cases such as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the right of a website designer to refuse to design a wedding website for a same-sex couple.

Download the essay from SSRN at the link.

Rubin and Elinson on Anatomy of Judicial Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954-1958 @LSI_Journal @NIU_Law @UChicagoPoliSci

ICYMI: Ruth Bloch Rubin, University of Chicago, and Gregory Elinson, Northern Illinois University College of Law, have published Anatomy of Judicial Backlash: Southern Leaders, Massive Resistance, and the Supreme Court, 1954–1958 at 43 Law & Soc. Inquiry 944 (2018). Here is the abstract.

Exploiting a range of archival materials, we argue that state-level variation in judicial backlash to Brown was as much the result of strategic choices by southern political elites as it was the ingrained prejudices of the region’s white voters. Presenting case studies of massive resistance in Mississippi, Louisiana, Virginia, and Arkansas, we show that elite agency profoundly shaped the patchwork development of grassroots resistance to integration across the South. These findings challenge the prevailing view that backlash to Brown signaled the unequivocal triumph of racial conservatives. Rather, we argue that the region’s response offered individual members of the southern elite significant autonomy to direct massive resistance in their home states. We also argue that southern lawmakers were responsible for the South’s embrace of popular constitutionalism post-Brown, and thus that it may not have been “popular” at all. We conclude that studies of judicial backlash would do well to reevaluate the assumption that backlash is necessarily a grassroots phenomenon.

Download the article from SSRN at the link..