Volpi on Legal and Political Constitutionalism from Schmitt and Kelsen to Contemporary Debates: Notes on Constitutional Guardianship and Democracy

Alessandro Volpi, Max Planck Institute fr the Study of Crime, Security and Law, has published Legal and Political Constitutionalism from Schmitt and Kelsen to Contemporary Debates: Notes on Constitutional Guardianship and Democracy as Max Planck Institute for the Study of Crime, Security and Law Working Paper No. 2026/01. Here is the abstract.

This paper situates the Carl Schmitt-Hans Kelsen dispute on constitutional guardianship within the now-standard categories of political and legal constitutionalism. It examines the conflict between political and legal understandings of the constitution and of constitutional adjudication, alongside divergent conceptions of democracy that strain this institution (notably, the countermajoritarian difficulty). It begins with a close reconstruction of the Weimar-era debate-its legal and political details-covering competing views of adjudication, the constitution as a set of norms or a political decision, and alternative models of guarantees. Through comparative analysis, the paper then traces lines of continuity and discontinuity between those positions and contemporary discussions of constitutional guardianship within debates over legal versus political constitutionalism. What emerges is the enduring persistence of theoretical alternatives that deeply structure the idea of constitutional guardianship in a democratic system. At the same time, we find differences in interpretation and in proposals for legal politics concerning substantive versus procedural conceptions of the constitution, as well as divergent understandings of democratic conflict and pluralism and their implications for constitutional stability. The paper concludes by showing how certain theoretical contradictions at the heart of constitutional guardianship resist easy resolution and must be inhabited, rather than definitively overcome.

Download the paper from SSRN at the link.

Davies on One Complicated Hour

Ross E. Davies, George Mason University Law School; The Green Bag; has published One Complicated Hou in Regulation and Imagination: Legal, Literary and Historpical Perspectives on Highway Robbery (Green Bag Press, 2025). Here is the abstract. Regulation and Imagination: Legal, Literary and Historical Perspectives on Highway Robbery (Green Bag Press 2025)

Can a Wall Street tycoon be a pirate? Can a judge?

Download the essay from SSRN at the link.

Stigall on The Rousseau-Portalis Doctrine: French Legal Thought and the Law of War--Parts I and II

Dan E. Stigall, George Washington University Law School; U. S. Department of Justice, has published The Rousseau-Portalis Doctrine: French Legal Thought and the Law of War – Parts I and II as Lieber Institute for Law & Warfare, Articles of War (USMA), GWU Legal Studies Research Paper No. 2025-80. Here is the abstract.

The Rousseau-Portalis Doctrine is the idea that war is a relationship between states rather than individuals and, accordingly, military operations must be conducted exclusively against the enemy forces and not against civilians who do not take an active part in hostilities. Grounded in Grotian thought but enhanced and refined by Enlightenment thinkers, this revolutionary idea has had a significant impact on the law of war over the past two centuries. The doctrine is understood today as a salient component in the undergirding framework of the law of war. This is a two-part series illustrating the impact of French legal thought on the formation of the law of war with a specific focus on the Rousseau-Portalis Doctrine. The first part provides a brief background on Jean-Jacques Rousseau and Jean-Étienne-Marie Portalis, their views on the law of nations, and their ideas that form the substance of the Rousseau-Portalis Doctrine. The second part traces the evolution of that doctrine and discusses its impact on the law of war.

Download the article from SSRN at the link.

Forthcoming: Benjamin Fagan, Frederick Douglass's Newspapers (University of Pennsylvania Press, 2026)

 Forthcoming from the University of Pennsylvania Press:

Benjamin Fagan, Auburn University, Frederick Douglass's Newspapers (2026). 

Here from the publisher's website is a description of the book's contents.

The first book to focus on the newspapers edited by Frederick Douglass and their impact on Black organizing.

A robust body of work has established the importance of print in general, and newspapers in particular, to African American culture in the 1800s. Such work regularly acknowledges Frederick Douglass (1818–1895) as one of the most influential newspaper editors of the nineteenth century, a judgment that Douglass and many of his contemporaries shared. But while recent scholarship has continued to expand our understanding of Douglass’s life and work, his newspapers remain largely understudied. Frederick Douglass’s Newspapers is the first book that explores the full range of Douglass’s periodicals.

Benjamin Fagan traces the making and impact of the four newspapers edited by Douglass: the North Star (1847–1851), Frederick Douglass’ Paper (1851–1860), Douglass’ Monthly (1858–1863), and the New National Era (1870–1874). Fagan highlights how Douglass and his co-workers—which included Martin R. Delany, James McCune Smith, William C. Neil, and Douglass’s daughter Rosetta Douglass, among others—practiced versions of Black organizing as they made his newspapers. By teasing out the inner workings of Douglass’s newspapers, Fagan explores the complex and often messy practices of Black organizing that made these publications possible.

In doing so, this book places Douglass’s newspapers at the center of the story of Black organizing in the nineteenth century. Douglass’s newspapers not only offered examples of how to organize for Black readers across the country, but he and his co-workers also participated in a variety of other kinds of Black organizations. Writers for Douglass’s papers put such experiences into print, and stories and lessons of Black organizing filled the pages of Douglass’s newspapers. They covered a variety of issues: abolitionism, school integration, politics both domestic and international, the Civil War, and the burgeoning Black labor movement, among others. Fagan’s close examination of the making of Douglass’s newspapers as well as what appeared in their pages chronicles how his publications were simultaneously examples and archives of Black organizing.

 

Newly Published: Paul Mitchell, Gaskell and the Law (Hart, 2025)

Newly published: Paul Mitchell, University College London, Faculty of Laws, has published Gaskell and the Law (Hart Publishing, 2025). Here from the publisher's website is a description of the book's contents.

This is the first ever study of law in the fiction of Elizabeth Gaskell. Elizabeth Gaskell is best known today as a novelist of social realism. Until now, however, her use of law, which is crucial to her portrait of society, has never been systematically explored. This book shows that Gaskell's fiction is rich with insights into the law of her time, and that reading her work with a lawyer's eye deepens and enriches the reading experience. The book explores Gaskell's work as a whole. It gives careful attention to her most famous novels, but also engages with the lesser-known novels and the shorter fiction, showing that these often overlooked works contain a wealth of original ideas and legal interest. Gaskell's fiction is shown consistently demonstrating a skilled, accurate and critical handling of legal rules and a sensitivity to law's personal and social effects. She does not limit herself to mid-nineteenth century issues, but enters into such fundamental questions as the individual's obligation to obey the law, and the relation between law and fiction. The book shows that a hitherto unappreciated aspect of Gaskell's genius as writer is that she integrates this sophisticated engagement with law seamlessly, so that it contributes to the cumulative artistic effect of her work. As a leading scholar of Victorian legal history, Paul Mitchell brings an in-depth knowledge of the law to his close readings of Gaskell. He brings out the richness and sophistication of Gaskell's engagement with the law, and proposes both new readings and new valuations of this important novelist's work.

 

Order online at www.hartpublishing.co.uk – use the code GLR BD8 to get 20% off!

If you are interested in reviewing this book for the L&H Blog, please let me know at [email protected].

Perry and Brownlee on The Socially Fragile Power of Hope

Matthew W. Perry and Kimberley Brownlee, both of the University of British Columbia Department of Philosophy, have published The Socially Fragile Power of Hope as LSE Legal Studies Working Paper No. 40/2025.

What role, if any, does hope play in the law? Recent jurisprudence has seen a growing interest in the right to hope. This paper makes three contributions to this emerging debate. First, a philosophically adequate account of hope must centre its affective character. While hope involves cognitive resolve, it is not chiefly cognitive-it is affective at its heart. Second, although a person cannot have an explicit right to hope, people can have rights to the social conditions which make hope possible. Sustained hope for the future depends on the experience of social recognition and belonging, rooted in early childhood development and belonging to community throughout our lives. Finally, four guiding aims should shape a commitment to structure penal practices in ways that allow individuals to retain a credible sense of hope.

Download the paper from SSRN at the link.

Maher on Teaching Hope: An Interdisciplinary Challenge

Imelda Maher, University College Dublin School of Law, has published Teaching Hope: An Interdisciplinary Challenge as LSE Legal Studies Working Paper No. 33/2025. Here is the abstract.

This paper is a reflection on the experience of creating an interdisciplinary module on Hope with a community of scholars interested in exploring the nature of hope within the classroom. The paper reflects on the elusive nature of hope as a concept and the rewards and challenges for the interdisciplinary group of faculty teaching on it. It explores how that interdisciplinarity creates the need to be aware of implicit hierarchies and known separations between disciplines (methodologically, substantively, theoretically). It notes the importance of making an open space of enquiry to allow for creative engagement on the common concept of hope. The role of academic hospitality in this interdisciplinary space is also explored before concluding.

Download the paper from SSRN at the link.

Amodu, Lacey, Marshall, Petersmann, and Trotter on Hope and the Role of Law: A Conversation

Tola Amodu, University of East Anglia, Nicola Lacey, London School of Economics Law School, Jill Marshall, Royal Holloway University of London School of Law, and Marie Petersmann and Sarah Trotter, both of the London School of Economics Law School, have published Hope and the Role of Law: A Conversation as LSE Legal Studies Working Paper No. 27/2025. Here is the abstract.

This is a conversation about the four reflection papers that appear in the ‘Hope and the Role of Law’ section of this special issue: Nicola Lacey’s paper ‘Institutionalising Hope in Law?’, Jill Marshall’s paper ‘Feminist Jurisprudence, Personal Liberation, and Hope’, Marie Petersmann’s paper ‘Hope in Climate Justice: Tales of Transition and its Refusal’, and Tola Amodu’s paper ‘Hope in Property (or The “Hopefulness” of Property)?’.

Download the paper from SSRN at the link.

Stokes on Hope as an Object of Legal Scholarship

Elen Stokes, University of Bristol, has published Hope as an Object of Legal Scholarship as LSE Legal Studies Working Paper No. 31/2025. Here is the abstract.

This paper explores what it might mean for hope to be an object of legal scholarship. It raises questions about what to look for and where to look for it, framing the discussion around hopeful legal ends, means, attachments and atmospheres. It finds that the relationship between law and hope can be characterised by multiplicity, and that this invites a wide range of approaches to engaging with hope in and around law.

Download the paper from SSRN at the link.

ICYMI: Bond on Representations of Law and Race Revisited: An Updated Survey of Recent American Film

ICYMI: Cynthia D. Bond, UIC School of Law, has published Representations of Law and Race Revisited: An Updated Survey of Recent American Film at 30 Denver Sports and Entertainment Law Journal 51 (Spring 2025). Here is the abstract.

This article revisits the author's Laws of Race/Laws of Representation: The Construction of Race and Law in Contemporary American Film, 11 Univ. Tex. Rev. of Sports and Ent. L. 219 (2010), surveying recent developments in mainstream films' depiction of the interrelated narratives of law and race. This article applies to current film the 2010 article's paradigm, which articulated three key narrative aspects of depictions of race and law in popular film: 1.) the raced construction of the lawyer-hero; 2.) the denial or displacement of the law's role in constructing race and race-based discrimination; and 3.) the suppression or revision of politics and political history. Using this paradigm as a point of departure, the article examines a range of films, TV shows, and streaming series that grapple with race under law. Particular focus is paid to films created post-2020, in light of social movements like Black Lives Matter and the attendant increased public dialogue regarding racialized legal disparities in American life. Beyond displaying a mere statistical uptick of racially diverse casting, films and series of the last fifteen years reveal that popular culture can engage notions of race and its place under law in a more direct and nuanced way.

Download the article from SSRN at the link.

Chowdhury on Toward a Historical Materialist Account of British Constitutional Change

Tanzil Chowdhury, Queen Mary University of London, School of Law, is publishing Toward a Historical Materialist Account of British Constitutional Changee in the International Journal of Constitutional Law. Here is the abstract.

This paper argues that British constitutional reforms are the historically specific expression of the mediation of significant antagonisms between social forces and shifts in the modalities of capitalism, the aim of which is to ensure the conditions for commodity exchange and capital accumulation. While most conventional theories of constitutional reform recognise the heteronomous nature of law reform as responding to extra-legal or economic forces, this paper, drawing on a renascent Marxist turn in legal studies, examines how historical materialist accounts might help to inform understandings of constitutional development. Outlining but ultimately rejecting an economistic orthodox Marxist reading of law, this paper instead conceptualises constitutions as a 'moment' in the contradictory totality of capitalist social relations;. Arguing that reforms to the British constitution are often preceded by significant social antagonisms, the paper attempts to explain constitutional reforms as the capitalist states mediation of such antagonisms to secure the future conditions for capital accumulation, offering a reappraisal of the lead up to and creation of the Parliament Act 1911 as an example.

Download the article from SSRN at the link.

Call For Abstracts: Human Studies and Free Speech Adjudication: From Theory To Practice

From Laura Little, Professor of Law, Temple University School of Law:

The International Society for Humor Studies is soliciting abstracts for its upcoming conference (36th ISHS conference) in Niterói, Brazil, 6-10 July 2026. The Special Interest Group focusing on Humor, Free Speech, and the Law is convening a panel titled Humor Studies and Free Speech Adjudication: From Theory to Practice. We welcome proposals for 20-minute papers addressing one or more of the following questions: • How can insights from humor research help judges, lawyers, or social media regulators develop a fair and nuanced approach to judicial decisions regarding humorous expression? • How can these insights be translated into actionable guidelines for judicial training, attorney counseling, advocacy or online content moderation? And how can this ‘translation’ exercise, in turn, open up new avenues for humor research? • What are the challenges and opportunities offered, in this respect, by a closer dialogue between different branches of humor scholarship (interdisciplinarity), as well as between academic research and everyday judicial practice or content moderation (transdisciplinarity)? Should you be interested in participating, please send an abstract (max. 300 words) and a short biographical note to both Dr Alberto Godioli ([email protected]) AND Prof. Laura E. Little ([email protected]) by February 10th, 2026. For more information on the Special Interest Group’s activities, please visit the website of ForHum: Forum for Humor and the Law.

Walker on Vagueness' Three Faces

Alexander Walker, Columbia University Law School, has published Vagueness' Three Faces as a Columbia Public Law Research Paper. Here is the abstract.

In the law of interpretation, context is king. There is widespread consensus that the interpretive act requires knowing more than just the words on the page. Jurists might disagree about how important certain features of context are, but no one, we are told, is a literalist anymore. This essay challenges the received wisdom that the law has moved away from literalism by looking at doctrines that are triggered by a finding of a lack of clarity. These doctrines—variously called clear statement rules or clarity doctrines—require a court not to determine the best meaning of a legal text but rather whether that text is unclear. This essay uncovers that doctrines spanning criminal, administrative, contract, Federal Indian Law, and constitutional law employ three different theories of language to determine whether a text is clear. One is communal. One is individualistic. But one is decidedly literalist. While there is nothing per se wrong with different theories in different contexts, this essay argues that the literalism currently present in certain doctrines—notably the rule of lenity and void-for-vagueness doctrine—is either illogical or illegitimate. Instead, using Federal Indian Law as a paradigm, courts should fashion an understanding of clarity that is in the general case communal but admits individualistic considerations when justice so requires, patterning off the law-equity divide. This approach avoids the rule-of-law concerns where beliefs about efficiency sneak into discussions of language while also respecting the complexity of language.

Download the article from SSRN at the link.

Franks on Little Fascists Everywhere: The National Socialist Playbook of Trump's War on Universities

Mary Anne Franks, George Washington University Law School, is publishing Little Fascists Everywhere: The National Socialist Playbook of Trump's War on Universities in Academic Freedom in the Era of Trump (Lee Bollinger and Geoffrey Stone eds., 2026) (forthcoming). Here is the abstract.

While there is no real predecessor in U.S. history for the breadth and depth of the MAGA movement to destroy higher education—even the McCarthy period pales in comparison in fervor and scope—the Nazification of German universities in the 1920s-30s provides eerie and instructive parallels. The Nazification movement, like the MAGA movement, was organized around unquestioning obedience to a single leader and, correspondingly, hostility toward democratic ideals. The frontline soldiers of Hitler’s war on universities were students resentful of progressive changes to higher education, and the tactics they used to convert German universities into right-wing propaganda factories closely resemble the ones used today to lay siege to American universities: disrupting classrooms, surveilling professors, and monitoring curricula for “undesirable” ideas; countering the “liberal indoctrination” of students with external speakers promoting far-right talking points; purging “degenerate” books from schools and libraries; and organizing watchlists, harassment campaigns, and public exposures of allegedly biased or immoral professors, with the goal of having them removed from their positions. And, in a crucial moment in their push for totalitarian control, the Nazis used the murder of a young, charismatic Party member known for his provocative debate style as a pretext to escalate their ruthless repression of dissent and violence against critics of the regime. Among the urgent and important lessons to be learned from this historical precedent is that totalitarian impulses cannot, in fact, be tamed, and that when universities succumb to them, the rest of society will follow. The preservation of democracy requires the uncompromising rejection of all efforts to interfere with academic freedom and to zealously defend the autonomy of institutions of higher education.

Download the chapter from SSRN at the link.

Lerer on Law as Language: From Scandinavian Realism to Evolutionary Jurisprudence

Ignacio Adrian Lerer has published Law as Language: From Scandinavian Realism to Evolutionary Jurisprudence. Here is the abstract.

This paper traces the intellectual trajectory from early twentieth-century Scandinavian legal realism through contemporary analytical jurisprudence to propose an evolutionary theory of legal language. Building on the Scandinavian insight that legal concepts are linguistic phenomena rather than metaphysical entities, and extending the analytical tradition developed by Hart, Carrió, and the Alchourrón-Bulygin-Nino synthesis, I argue that legal systems exhibit evolutionary dynamics analogous to natural languages. Legal rules function as cultural replicators subject to variation, inheritance, and selection pressures operating through judicial interpretation, legislative modification, and administrative implementation. This framework provides theoretical foundation for understanding both the persistence of apparently dysfunctional legal institutions and the mechanisms through which legal systems adapt to changing environmental pressures. The paper concludes by proposing evolutionary jurisprudence as a research program that integrates insights from analytical philosophy of law with contemporary evolutionary approaches to cultural phenomena.

Download the paper from SSRN at the link.

Molina Bustos and Pérez Páez on Moral Philosophy and Archetypes in the Symbolic Cohesion of the Tale of Juan Matachin

Francisco Fabiany Molina Bustos and Jenny Alejandra Pérez Páez, both of the Social Sciences Observatory and Human Resources in Ibagué/ Edukivotos, have published Moral Philosophy and Archetypes in the Symbolic Cohesion of the Tale of Juan Matachin. Here is the abstract.

This paper examines the moralizing value of Rafael Pombo’s tale Juan Matachín within the Colombian cultural context, interpreting it as a narrative device for ethical and social regulation. Through an interdisciplinary approach combining literary analysis, moral philosophy, and political theory, the study explores the figure of the “anti-villain” as an ambivalent agent who, through fear, seeks to preserve the common good, social order, and harmony with nature. Drawing on Hobbes’s and Machiavelli’s reflections on fear as a foundation of order, the analysis shows how symbolic terror operates pedagogically to deter harmful behavior and reinforce communal norms. The tale is thus understood as more than children’s literature, functioning as a cultural archive that embeds collective values, mechanisms of social control, and an implicit ethic of ecological protection and community cohesion in the Colombian imaginary.

Download the article from SSRN at the link.

Cai on The Crime of a Show Girl: An Analysis of the Common Law Underpinnings Behind the Taylor Swift Song No Body No Crime

Xuantong Cai, Abbey Park High School, has published The Crime of a Show Girl: An analysis of the common law underpinnings behind the Taylor Swift Song No Body No Crime. Here is the abstract.

The song No Body No Crime, as the title suggests, involves the law, and where there is the law, there should be legal analysis. The song, as the title says, articulates the tension in the burden of proof required to convict a person and the doctrine of corpus delicti. Moreover, it also highlights the tension between state-enforced justice and vigilante justice as the narrator then takes the law into her own hands.

Download the article from SSRN at the link.

Reminder: Submissions for ASLCH Annual Conference and Graduate Student Workshop Due January 31, 2026

 From Simon Stern, University of Toronto Faculty of Law and PResident,  ASLCH:

This is a reminder that the Association for the Study of Law, Culture, and the Humanities is currently accepting submissions for its Twenty-Eighth Annual Conference, which will take place at the DePaul University College of Law in Chicago, Illinois from June 17-18, 2026. This year our theme is "Uprooted Law: Reflecting on the Origins and Outgrowths of Law". To view our call for papers and submit proposals, please visit our website here. We are also accepting applications for our annual Graduate Student Workshop, which will take place the day before the conference on June 16, 2026. Graduate students who participate in the workshop are also welcome to submit papers to the conference. Information on how to apply for the workshop can be found on our website here. The submission deadline for both the conference and the workshop is January 31, 2026. Please spread the word and circulate this call for papers in your academic communities! We look forward to an engaging and enriching gathering in June and hope you'll join us. Best regards, Simon Stern, President, Association for the Study of Law, Culture & the Humanities

West Coast Sexuality, Gender & Law Conference: Abstract Submission Deadline January 5, 2026

 Reminder from Yvonne Lindgren, Professor, UMKC School of Law:

Dear all, This is a reminder about and deadlines related to the upcoming third annual West Coast Sexuality, Gender & Law Conference. This year, the conference will be held on March 13-14, 2026 in Irvine, California. ABSTRACT SUBMISSION DEADLINE: The deadline for submitting abstracts for consideration is January 5, 2026. To submit, please submit a CV and an abstract of no more than 500 words here (again by January 5, 2026). Submissions will be vetted by the organizing committee (listed below). Selection will be based on the originality of the abstract as well as its capacity to engage with the other papers in a collaborative dialogue. Participants will be notified of their selection as soon as feasible after the due date. Drafts of papers will be due approximately two weeks prior to the Conference.    If you would like to attend by serving as a commentator: - If you are not submitting an abstract but would like to attend the conference in the role of a commentator on someone else's paper, or if you are presenting a paper and would be willing to also serve as a commentator, please use the same link. Commentators are essential to the success of the conference, so be a good citizen and show up for your fellow scholars!   We look forward to your submissions and participation. Questions can be directed to the organizing committee members at [email protected].   Thank you!   Luke Boso, Southwestern Andrew Gilden, Southwestern Courtney Joslin, UC Davis Yvette Lindgren, UMKC Kaipo Matsumura, Loyola LA Brian Soucek, UC Davis Ari Ezra Waldman, UC Irvine

ICYMI: Berenguer, Jewel, and McMurtry-Chubb on Critical and Comparative Rhetoric: Unmasking Privilege and Power in Law and Legal Advocacy to Achieve Truth, Justice, and Equity

ICYMI: Elizabeth Berenguer, Lucy Jewel, and Teri A. McMurtry-Chubb have published Critical and Comparative Rhetoric Unmasking Privilege and Power in Law and Legal Advocacy to Achieve Truth, Justice, and Equity (Bristol University Press, 2023). Here from the publisher's website is a description of the book's contents.

Through the lenses of comparative and critical rhetoric, this book theorizes how alternative approaches to communication can transform legal meanings and legal outcomes, infusing them with more inclusive participation, equity and justice. Viewing legal language through a radical lens, the book sets aside longstanding norms that derive from White and Euro-centric approaches in order to re-situate legal methods as products of new rhetorical models that come from diasporic and non-Western cultures. The book urges readers to re-consider how they think about logic and rhetoric and to consider other ways of building knowledge that can heal the law’s current structures that often perpetuate and reinforce systems of privilege and power.

Call For Nominations: The Penny Pether Law & Language Scholarship Award 2025

 

Call for Nominations: The Penny Pether Law & Language Scholarship Award 2025 

A passionate advocate for interdisciplinary scholarship in law, literature, and language, Penelope J. Pether (1957-2013) was Professor of Law at Villanova University School of Law and former Professor of Law and Director of Legal Rhetoric at the American University Washington College of Law. Her own scholarship focused not only on law, literature, and language, but also on constitutional and comparative constitutional law; legal theory, including constitutional theory; common law legal institutions, judging practices, and professional subject formation. 

Beginning in November 2013, the Penny Pether Award for Law & Language Scholarship has been given to an article or essay published during the preceding award period that exemplifies Penny’s commitment to law and language scholarship and pedagogy. This year’s award period will be the calendar year 2025.  

We are delighted to report that the Legal Humanities Initiative at the University of California, Santa Barbara, will now be providing much needed administrative support for the award. The selection committee is grateful for LHI’s commitment to Penny’s legacy.  The Committee selecting award recipients from among the articles and essays nominated will look for scholarship that not only embodies Penny’s passion and spirit but also has some or all of the following characteristics: 

1. “[S]cholarship concerning itself with the unique or distinctive insights that might emerge from interdisciplinary inquiries into ‘law’ grounded in the work of influential theorists of language and discourse.” 

2. Scholarship that “attempts to think through the relations among subject formation, language, and law.” 

3. Scholarship that provides “accounts of—and linguistic interventions in—acute and yet abiding crises in law, its institutions and discourses.” 

4. Scholarship and pedagogy, including work addressing injustices in legal-academic institutions and practices, that is “[c]arefully theorized and situated, insisting on engaging politics and law, [and that] charts ways for law and its subjects to use power, do justice.” 

More explanations and descriptions of these characteristics can be found in Penny’s chapter from which these quotations are drawn: Language, in Law and the Humanities: An Introduction (Austin Sarat et al. eds., Cambridge U. Press 2010). 

A list of past winners appears here: https://law.unlv.edu/lawyering-process/penny-pether 

Nominations should be sent by January 31, 2026, to Jeannine DeLombard at [email protected]. 

Any article or essay published during the calendar year 2025 is eligible.  You are free to nominate your own work and, apart from self-nominations, may nominate more than one work.  For self-nominations, pick the article published in 2025 that you believe best embodies the characteristics mentioned above. Please provide a citation and a pdf for each work you nominate.   

The Selection Committee includes David Caudill, Jeannine Marie DeLombard, Amy Dillard, Ian Gallacher, Lucy Jewel, Jeremy Mullem, Giuliana Perrone, Anne Ralph, and Kathy Stanchi. Members of the Selection Committee are not eligible for the award.  

Koh on Communicative Legitimacy: The Supreme Court's Hidden Cultural Binaries in the U.S. Civil Sphere

Steven Arrigg Koh, Boston University School of Law, is publishing Communicative Legitimacy: The Supreme Court's Hidden Cultural Binaries in the U.S. Civil Sphere as a forthcoming Boston Univ. School of Law Research Paper. Here is the abstract.

How does the U.S. Supreme Court establish its legitimacy? Over the last two hundred years in U.S. society, the Court has interpreted the U.S. Constitution on watershed issues such as slavery, segregation, and marriage equality. And yet the Constitution is just 7,591 words. A puzzle thus emerges: how does the Court intelligibly interpret this short text for U.S. society? This article develops a new theoretical and empirical cultural sociological account of such Supreme Court decisionmaking, which it calls "communicative legitimacy." According to this theory, which draws on Jeffrey Alexander's civil sphere theory, the Court consistently and inevitably draws on a shared American cultural discourse, thus rendering Constitutional values intelligible and legitimate to the broader civil sphere. This article shows this through two historical case studies. First, it explores the cases guaranteeing and then overturning the right to abortion, from Roe v. Wade (1973) to Dobbs v. Jackson Women's Health Organization (2022). Second, it reviews the cases guaranteeing the right to bear arms, beginning with District of Columbia v. Heller (2008). The two sets of cases, at first blush, appear diametrically opposed: Roe is a triumph for the left, Heller a victory for the right. But, in fact, these cases reveal the same pattern: the Court's defenders draw on the discourse of liberty to hail the decision as a restoration of the Constitution, while the opposition draws on the discourse of repression to accuse the Court of "creating a Constitutional right out of nowhere." This article thus unveils a hidden Supreme Court metalanguage , contributing a new cultural sociological understanding of the Supreme Court as a societal institution with unique communicative authority and symbolic power in U.S. society.

Download the article from SSRN at the link.

Wright on Gender Affirming Rhetoric

Emerson Wright, Stetson University College of Law, has published Gender Affirming Rhetoric. Here is the abstract.

During the runup to the 2024 election, virtually every person who watched an American football game saw an advertisement alleging that Kamala Harris was “for they/them,” while “President Trump is for you.” Candidates and interest groups spent more than $200 million on ads shaping and preying on public perception of trans people, and Democrats wasted no time blaming Kamala Harris’s electoral loss on messaging around trans issues. On the heels of a contentious election that relied heavily on this type of weaponized culture war messaging, misleading and hostile discourse about transgender people and the issues they face is hard to escape. Transphobic debates dominate the public sphere, often fueled by cisgender anxious compulsions to categorize others according to heteronormative gender roles. Even the Olympics were marred by a transphobic harassment campaign against a gold medalist who is not in fact transgender. More broadly, concerns about slippery slopes and far-reaching hypotheticals have birthed a moral panic about the ways trans people disrupt the cultural order, and courts have been complicit in reinforcing traditional cisgender norms even when it causes real harm to trans people. The U.S. legal system uses traditional legal rhetoric as the generally accepted form of logical reasoning, a form of reasoning that relies heavily on categories and syllogistic reasoning to reinforce heteronormative social roles and hierarchies. Traditional legal rhetoric ratifies hate-motivated marginalization of peoples who defy, transcend, resist, or reject classification according to traditional cisgender norms. For example, restrictions and bans on gender affirming healthcare effectively relegate trans folks to a permanent lower caste by not only denying them essential medical care, but also by signaling that they are unworthy of recognition, support, or dignity, thereby reinforcing their systemic marginalization. Traditional legal rhetoric is designed to preserve the status quo through conservative syllogistic reasoning that is more concerned with validity than with truth, justice, and equity. Thus, it cannot be an effective tool to advocate for trans rights that do not fit within cisgender-normative categories which do not account for the truth of non-binary trans people. Advocates seeking to disrupt the status quo must therefore experiment with more dynamic rhetoric traditions, such as diasporic and indigenous rhetorics, that make space to resolve the issues faced by marginalized communities. Diasporic and indigenous rhetorics are capable of revealing inherent injustices and creating workable solutions to the real problems faced by the trans community. This Article examines Tennessee’s youth gender affirming healthcare ban and the resulting Skrmetti case through a critical and comparative legal rhetoric lens to demonstrate exactly how true justice for trans people cannot be achieved using traditional legal rhetoric. In effect, dominant rhetorical methods stack the deck against trans rights, so when courts and advocates try and fail to fit trans issues into strict legal categories, such as binary gender norms, they ultimately harm trans autonomy by rejecting the very idea that a person could be non-binary. Alternative rhetorics can better serve the justice interests of trans Americans because they center and prioritize justice, dignity, and selfdetermination. This Article ends by explaining how advocates can deploy strategies informed by alternative legal rhetorics to trans healthcare cases to achieve justice, dignity, and self-determination for the trans community.

Download the article from SSRN at the link.

Marmor on The Ontology of Legal Facts

Andrei Marmor, Cornell University Law School, has published The Ontology of Legal Facts as Cornell Legal Studies Research Paper No. 25-35. Here is the abstract.

Hans Kelsen had three main insights about the ontology of legal facts. First, that there are legal facts in our world, facts of a distinctly legal type. Actions and events in the world can have, objectively speaking, particular legal significance. Second, Kelsen claimed that legal facts belong to the domain of meaning. Law is, by and large, a scheme of interpretation, enabling us to ascribe legal meanings to certain actions and events in the natural world. Finally, and most problematically, Kelsen maintained that legal facts are normative facts, and as such, they require normative grounding, metaphysically speaking. Since Kelsen famously thought that normative grounding can only be done by other norms, he thought that we are eventually led to a Basic Norm that needs to be presupposed. I argue in this paper that Kelsen is quite right about the first two insights, and wrong about the third. Even if we assume that law is mostly about norms and all legal facts are facts about norms, they are not necessarily normative facts. Which also means that their metaphysical grounding does not have to be normative. The metaphysical building blocks of legal facts, like facts about semantic meanings and symbolism generally, consist of what people tend to do, what they think, and intentions they collectively share in the appropriate ways. There is no need for presuppositions. I also ties this view about the nature of legal facts to the kind of fictionalism about law I had argued for in the past.

Download the article from SSRN at the link.

Hemleben on Law as Mirror and Mold: The Judicial Construction of Whiteness in America, 1790-1927

Joe Hemleben, Appellate Advocate, Mississippi Office of State Public Defender; Independent Research & Author, has published Law as Mirror and Mold: The Judicial Construction of Whiteness in America, 1790-1927. Here is the abstract.

This Article explores how American law created and operationalized the category of “white” from the nation’s founding through the early twentieth century, not within any single doctrinal silo, but across the full architecture of membership, capacity, and civic authority. It argues that whiteness emerged not as a natural or intuitive classification but as a legally manufactured identity policed by the judiciary in naturalization law, constitutional law, state criminal adjudication, professional licensure, and property and alienage regulation. Beginning with the Naturalization Act of 1790 and the racial lexicon supplied by legal dictionaries, encyclopedias, and census manuals, courts translated contested cultural understandings of race into juridical facts. Federal judges constructed a racial taxonomy in the prerequisite cases from Ah Yup to Thind; the Supreme Court constitutionalized racial identity as a boundary of sovereignty in Fong Yue Ting and as a conditional form of membership in Wong Kim Ark. State courts then absorbed and repurposed these federal definitions in miscegenation prosecutions, evidentiary competency rules, and school segregation cases from Rice v. Gong Lum to Bond v. Tij Fung, relying on visual inspection, community reputation, and folk racial grammars to assign legal identity in the courtroom. At the same time, licensing boards, bar admission rules, hospital charters, and alien land laws converted whiteness into a credential of civic trust and economic authority, excluding Asian immigrants and nonwhite professionals from the professions, skilled trades, and landholding through the category of the “alien ineligible for citizenship.” Across these domains, law acted as both mirror and mold: mirroring prevailing racial hierarchies even as it molded whiteness into a legal personhood, a status that structured who could belong, who could speak with professional authority, who could hold land, and who the state treated as perpetually foreign. This Article concludes by showing how this architecture of legal whiteness continues to shape contemporary debates over citizenship verification, professional licensing, and the racialization of foreignness long after the formal dismantling of racial prerequisites.

Download the article from SSRN at the link.

Snyder on Historical Practice at the Founding

Ryan Snyder, University of Missouri School of Law, has published Historical Practice at the Founding as University of Missouri School of Law Legal Studies Research Paper No. 2025-55. Here is the abstract.

In recent years, the Supreme Court has increasingly relied on historical practice—actions other than judicial decisions that implement the law after its adoption. That creates tension with the Court’s professed adherence to originalism—the view that a law’s meaning is fixed at the time of its adoption. To resolve this tension, the Court and many scholars have embraced theories such as “liquidation,” which argue that the Founders themselves used practice to update or change the law’s meaning over time. But until now, no one has systematically examined whether the Founders accepted those theories. This Article provides the first comprehensive analysis of how Founding-era courts used practice to interpret legal texts. It concludes that courts did not rely on practice to revise the law’s meaning; rather, they used it to discover what the law originally meant. Courts believed that practice helped reveal original meaning for three main reasons. First, they thought that contemporaneous interpreters were more likely to understand the law’s text and purpose, which gave them valuable insight into its original meaning. Second, they believed that contemporaneous practices revealed how those interpreters understood the law. And third, they believed that contemporaneous practice was even better evidence of original meaning when it had continued unchanged over time. At the same time, courts recognized that practice was not perfect. To address that risk, they applied a rigorous screening test designed to exclude unreliable practices and give greater weight to reliable ones. This test looked at various factors—such as whether the practice started shortly after the law’s adoption and whether it reflected a good-faith effort to interpret the law—that further confirm that courts used practice only as a tool for discovering original meaning. This history has important consequences for the Supreme Court’s use of practice. First, the history suggests that the Court should refuse to rely on practice as a way of updating or changing the law’s meaning. And second, it suggests that the Court should reshape its current use of practice to better reflect the Founders’ approach.

Download the article from SSRN at the link.

Boling on What Is "The Rule"? Quotation Marks and the Role of Courts and Lawyers as Performers of the Common Law

Kathryn Boling, Seattle University School of Law, is publishing What Is 'The Rule'? Quotation Marks And The Role Of Courts And Lawyers As Performers Of The Common Law in volume 64 of the Duquesne Law Review. Here is the abstract.

Must lawyers and judges use quotation marks when they recite legal rules verbatim from a cited source in their legal practice documents? It is a question that lawyering skills faculty hear often when training first-year students to enter the legal writing genre. The advice of many is to use quotation marks to avoid plagiarism, but that advice arises from a conflation of academic and legal writing and a small number of inapplicable cases in which courts have issued reprimands (or worse) to attorneys caught copying large portions of other sources without sufficient "attribution." This Article, therefore, undertakes a rigorous defense of the verbatim recitation of a rule from a cited source without quotation marks in legal practice documents. As this Article shows through a multidisciplinary exploration of linguistics, professional ethics, speech act theory, and neuroscience, that choice is legitimate and often desirable. What is often forgotten about legal rules (particularly in the common law) is that it is the day-to-day recitations of rules by lawyers and judges in the handling of cases that perpetuate the rules from the past into the present and thereby keep them in force for use in the future. Through an application of J.L. Austin's speech act theory to this activity, the Article explains why the social offense of plagiarism is not applicable, distinguishing the genre of academic writing from legal practice writing in multiple respects. It also explains how, with fear of plagiarism out of the picture, a legal practitioner in certain circumstances can harness rhetorical benefits from reciting a verbatim rule from an authoritative (and cited) source in their own written "voice," without quotation marks. By preserving the wording verbatim, the practitioner ensures the integrity of the rules themselves and enjoys a sense of belonging from verifying a communal understanding of the common law. Moreover, doing so through indirect quotation (i.e., without quotation marks) conveys the concepts with more ease for the reader, more seriousness by the writer, and more efficiency than direct quotation can.

Download the article from SSRN at the link.

Davies on Sherlock Holmes: Real or Imagined? Living or Dying?

Ross E. Davies, George Mason University Law School; The Green Bag; has published Sherlock Holmes: Real or Imagined? Living or Dying? at 2025 Baker Street Almanac 1. Here is the abstract.

Readers of the November 22, 1913 issue of Collier’s Weekly magazine had the joy of taking in Arthur Conan Doyle’s new Sherlock Holmes story, “The Adventure of the Dying Detective.” Recipients of the nifty little Christmas 1913 keepsake booklet of “The Dying Detective” put out by the advertising department at Collier’s got to read almost exactly the same story. The typesetters did a near-perfect job of making sure that the text of “The Dying Detective” in the booklet matched the text in the magazine. Indeed, there are just three notable differences between the booklet and magazine texts. The first two differences appear to be intentional and definitely are not defects. The third is, alas, a typographical finish-line fail. While there does not appear to be much worthy of study in the textual differences between the two 1913 Collier’s versions of “The Dying Detective,” addingThe Strand Magazine to the mix may change things. There is at least one difference between, on one hand, both of those Collier’s versions and, on the other hand, the version in the December 1913 Strandthat might merit a closer look. On page 609 of The Strand, while conversing with Dr. John Watson, Holmes says, “Strange how the brain controls the brain!”

Download the essay from SSRN at the link.

Baumann and Shugerman on Quasi-Judicial: A History and Tradition

Beau J. Baumann, Yale Law School, and Jed H. Shugerman, Boston University School of Law, have published Quasi-Judicial: A History and Tradition. Here is the abstract.

In challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, "judicial" power was conceived in English law as a subset of "executive" authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the "quasi-judicial" and "quasi-legislative" powers that were central to the holding of Humphrey's Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress's construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from hierarchical control and presidential removal. Americans expect judge-like independence when politicians grant administrators judge-like powers and functions. The quasi-judicial category deployed in Humphrey's was the logical extension of English legal customs, Founding Era administration, and the evolution of the ninteenth-century law of officeholding. It reflected an Anglo-American instinct to insulate judge-like offices from direct hierarchical control. Whether you are an originalist or a believer in the history-and-tradition approach, these findings show that Congress may insulate quasi-judicial officials from presidential removal and direction. Beyond original public meaning, the quasi-judicial function from Humphrey's is bound up with the Anglo-American constitutional project stretching back beyond the Founding. If the Roberts Court overrules Humphrey's, it will imperil a primordial instinct that is part of our rule-of-law tradition.

Download the article from SSRN at the link.

Medieval Murder Maps: A Resource for the Legal Historian

Medieval Murder Maps is a digital resource that allows researchers and others interested in the period to check out the history of violence and the legal system during the English medieval period. It covers the cities of London, York, and Oxford. Follow Medieval Murder Maps on X (formerly Twitter) at @medimurdermaps and Bluesky at @medimurdermaps.bsky.social.

Read more about Medieval Murder Maps here in an article from Atlas Obscura, which discusses how the maps 

helped solve a centuries old cold case.

Baker on Medieval Roots, Modern Insights: The Origins of Common Law Contract

Matthew J. Baker, University of Mississippi School of Law, has published Medieval Roots, Modern Insights: The Origins Of Common Law Contract at 58 Indiana Law Review 173 (2025). Here is the abstract.

Common law contract is described as the body of law dealing with legally enforceable promises, with its basic principles originating from judicial decisions. What underpins this method of lawmaking is an understanding of the past, such that prior judicial decisions guide the resolution of present legal disputes. Yet despite this ostensibly historical process serving as a vehicle for legal development, there is a general absence of recognition among lawyers, scholars, and students of the origins of this body of law in medieval English law. This Article posits that understanding the origins of common law contract, particularly as it developed around the writs of debt and covenant during the medieval period, provides lawyers and students with a more nuanced and contextualized view of a body of law that has gradually, but significantly, expanded its scope since its inception a millennium ago. An understanding of early common law contract forces one to go back to first principles of contract dispute resolution. While modern contract law tends to focus on substantive rules and doctrines, the early history of common law contract is primarily based on formal and procedural rules. The shift in focus to substantive rules raises questions about the fundamental aspects of contract law and its purpose. Such questions are liable to be ignored if one does not consider how early common law contract arose, and why formal rules and requirements once dominated a lawyer's thinking about how to best resolve contract disputes.

Download the article from SSRN at the link.

Wieboldt on Ideas With(out) Consequences?: The Natural Law Institute and the Making of Conservative Constitutionalism

Dennis J. Wieboldt, III, University of Notre Dame, is publishing Ideas With(out) Consequences?: The Natural Law Institute and the Making of Conservative Constitutionalism During the Cold War, 1947-1951 in volume 42 of the Law & History Review. Here is the abstract.

Recent scholarship on conservative constitutionalism in the United States focuses near exclusively on the development of originalism as a method of constitutional interpretation. Before conservatives turned to originalism to counter the perceived threats of an activist judiciary in the 1980s, however, this article demonstrates that conservatives employed a very different interpretive philosophy to counter a very different perceived threat. To do so, this article reconstructs the history of a conservative legal movement that predated "the" conservative legal movement. Indeed, this article uncovers how conservatives employed natural law philosophy to respond to the elite legal academy's seemingly morally foundationless positivism during the Cold War. The network of natural lawyers that sustained this earlier movement was deeply indebted to the Natural Law Institute (NLI), an academic initiative of the University of Notre Dame established in 1947. By framing the founding fathers' natural law philosophy as a bulwark of individual liberty against the encroachments of legal realists, World War II-era totalitarians, and Cold War communists, the NLI created what the political scientist Amanda Hollis-Brusky has termed a "political epistemic network." In concluding, this article suggests that recovering the history of the NLI's epistemic network reveals the importance of natural law to the making of conservative constitutionalism during the Cold War.

Download the article from SSRN at the link.

Birkbeck Centre for Law and the Humanities Seminar with Professor William MacNeil December 10, 2025

From Professor Patrick Hanafin, Professor of Law, Director Postgraduate Taught Programmes, Director LLM Law, Co-Director Centre for Law and the Humanities, Birkbeck Law School, University of London

The next Birkbeck Centre for Law and the Humanities event will be a Seminar with Professor Bill MacNeil (University of Queensland) and Visiting Professor in Birkbeck Law School.

The title of the seminar is Under His Eye: Feminine In/Visibilities in the Handmaid's Tale.

The event will take place on Wednesday 10 December next at 1pm in Birkbeck Central Room 406.

More information here.

Ryu and Sewell on The Hart-Dworkin Debate

Angelo Ryu and Trenton Sewell, both of the University of Oxford, have published The Hart-Dworkin Debate.

This encyclopedia entry discusses the Hart-Dworkin debate, understood as the literature developed around the viability of Hartian positivism in light of the arguments Dworkin either laid out or inspired. The focus is on two arguments: the argument from principles and the argument from theoretical disagreement. First, can Hart adequately account for the role of principles in law? The entry considers three variants of this argument. Second, can Hart adequately account for the existence of law in practices whose officials disagree on why certain empirical facts make a given legal proposition true? The entry considers both semantic and non-semantic variants of this argument.

Download the entry from SSRN at the link.

ICYMI: Cervone on Sworn Bond in Tudor England: Oaths, Vows and Covenants in Civil Life and Literature

 ICYMI:

Thea Cervone, Sworn Bond in Tudor England: Oaths, Vows and Covenants in Civil Life and Literature (McFarland Publishing, 2011). Here from the publisher's website is a description of the book's contents.

 

The swearing of oaths is a cultural phenomenon that pervades English history and was remarkably important during the sixteenth century. This multi-disciplinary work explores how writers of the Tudor era addressed the subject in response to the profound changes of the Reformation and the creative explosion of the Elizabethan period. Topics include how the art of rhetoric was deployed in polemic, the way in which oaths formed bonds between Church and State, and how oaths functioned in literature, as ceremony and as a language England used to describe itself during times of radical change.

 

Courtney and Ziskina on The Publisher Playbook: A Brief History of the Publishing Industry's Obstruction of the Library Mission

Kyle K. Courtney, Harvard University Law Library, and Juliya Ziskina have published The Publisher Playbook: A Brief History of the Publishing Industry's Obstruction of the Library Mission *. Here is the abstract.

This article traces a long history of conflict between libraries and the publishing industry, documenting how publishers have consistently sought to restrict library access to materials in pursuit of profit and control. Through nine key episodes—from 19th-century legal battles over the first sale doctrine to 21st-century litigation against controlled digital lending (CDL)—the authors reveal a persistent playbook of obstruction: publishers challenge new technologies, resist expanded access, and litigate or lobby against library innovation. Yet, in case after case, courts and Congress have upheld the public interest role of libraries, affirming rights such as lending, fair use, interlibrary loan, and accessibility for patrons with print disabilities. The article concludes that CDL, currently under legal challenge, is the next chapter in this historical arc—an essential library practice that should be defended and affirmed, as past access innovations have been. The pattern is clear: when libraries push to democratize knowledge, publishers push back—and public policy must continue to support libraries’ mission over private restriction.

Download the article from SSRN at the link.

ICYMI: Amann on A Nuremberg Woman and the Hague Academy

ICYMI: Diane Marie Amann, University of Georgia School of Law, has published A Nuremberg Woman and the Hague Academy at 35 European Journal of International Law 813 (2024). Here is the abstract.

This article, which forms part of the journal's special review series marking the centenary of the Hague Academy of International Law, draws from the author's ongoing research into the roles that lawyers and other women professionals played at post-World War II trials. The article focuses on the life of one “Nuremberg woman,” Dr. Aline Chalufour, who attended the Academy in 1937 and again in 1957. In between, she worked in what is now Vietnam as a colonial schoolteacher, in Canada as a Free French propagandist for de Gaulle, at Nuremberg and Hamburg as a war crimes prosecutor, and in France as one of the country's first women judges. Chalufour's experiences shed light on how marginalized groups fared during the Hague Academy's first 100 years. They further call upon the Academy, and the field it promotes, to do better in the next 100 years.

Download the article from SSRN at the link.

Thomson on "And Two Cows...to My Wife, So Long As She Remains My Widow": Public Policy and Testamentary Marriage Clauses in Canada

Jane Thomson, University of New Brunswick Faculty of Law, is publishing "And Two Cows to my Wife… so Long as she Remains my Widow." Public Policy and Testamentary Marriage Clauses in Canada in volume 103 of the Canadian Bar Review. Here is the abstract.

This article, part one of a two part project, provides a comprehensive review of the law surrounding marriage conditions in wills in Canada, including the civil law jurisdiction of Quebec, through a quantitative study of nearly every electronically reported Canadian decision involving a marriage clause in a will. It begins with an overview of the history of marriage clauses in the UK, the US and Canada with a detailed review of the Canadian jurisprudence. This study reveals that the application of public policy to most marriage clauses in Canadian wills has remained stagnant since the 18 th century, with two notable exceptions. The first involves clauses that condition a gift on discriminatory terms such as the sex, race or religion of a beneficiary's spouse. When asked to do so, Canadian courts have voided such conditions, beginning in the 1960s. The second is the Province of Quebec where arguably all marriage clauses are now contrary to public order. This article is followed by a companion piece that provides the normative argument as to why all marriage clauses should be considered contrary to public policy in Canada.

Download the article from SSRN at the link.

Hay and May on Reckoning with Antisemitism in History and Tradition

Nathaniel Shaw Hay, Stanford University, and Isaac Barnes May, Yale Law School, have published Reckoning with Antisemitism in History and Tradition at 2025 Pepperdine L. Rev. 61 (2025). Here is the abstract.

"History and tradition" has become a watchword of modern constitutional interpretation, shaping Supreme Court jurisprudence and framing ongoing debates over the meaning of the Fourteenth Amendment. Yet this interpretive framework remains under-theorized in one critical respect: how should it grapple with the prejudices embedded in the very traditions it invokes? This Article examines that question through the lens of anti-Jewish discrimination in Anglo-American law, using this history as a case study to examine both the perils and promise of relying on history as a source of constitutional authority. For centuries, the common law excluded Jews from full civic participation in both England and the United States, limiting their access to the courts, their ownership of property, and their exercise of political rights. And though largely forgotten today, this legacy reveals a troubling methodological gap that currently exists in the history-and-tradition approach: its lack of a systematic way to reckon with antisemitism and other morally compromised aspects of history. Indeed, taken to its logical extreme, the history-and-tradition method would appear to permit the re-enactment of such exclusion today. Yet this Article does not counsel retreat from the past. Instead, it argues that principled engagement with history is both possible and essential-and suggests a framework for doing so. Courts, in considering Anglo-American traditions, should be guided by the Enlightenment values that animated the Founding—including liberty, equality, freedom of conscience, and the rejection of inherited hierarchy—and should privilege those strands of history that reflect these commitments. Although the Founders’ moral compass was at best imperfect and their actions at times fell tragically short of their ideals, the history-and-tradition method should seek not to rehearse the past uncritically, but to draw from it those principles that best express the nation’s enduring aspirations. Not only is such an approach deeply consonant with the history-and-tradition method and legitimated by recent jurisprudence, but it also fulfills the higher purpose of upholding both the Constitution and the visionary ideals that brought it into being.

Download the article from SSRN at the link.

Forthcoming in December from Cambridge University Press: Del Mar: Neil MacCormick: A Life in Politics, Philosophy, and Law

Forthcoming from Cambridge University Press:

Maksymilian Del Mar, Queen Mary University of London, Neil MacCormick: A Life in Politics, Philosophy, and Law. Here from the publisher's website is a description of the book's contents.

Neil MacCormick (1941–2009) was one of the twentieth century's most important legal philosophers and one of Scotland's most influential public intellectuals. This book tells the story of his political and philosophical life, from his intensely political childhood as the son of 'King John', one of the founders of the Scottish National Party, through to his involvement in Scottish politics – especially as the author of SNP's constitutional policy – and his role as a Member of the European Parliament, helping to draft the European Constitution. With special attention to MacCormick's character, this book offers a reading of his entire oeuvre, covering his contributions to theories of legal and moral reasoning, institutional legal theory, nationalism, post-sovereignty, subsidiarity, and constitutional pluralism in Europe. This book reads MacCormick as a highly creative thinker who excelled in the art of constructing inclusive middles and thereby developed his own distinctive approach to politics and philosophy.

Appleman on the Psychedelic Renaissance and the Lingering Shadow of Eugenics

Laura I. Appleman, Willamette University School of Law, has published Psychedelic Renaissance and the Lingering Shadow of Eugenics. Here is the abstract.

This Essay situates the contemporary psychedelic renaissance within a long, cyclical history of psychoactive exploration, regulation, and exclusion. Tracing the intertwined genealogies of psychedelics, eugenics, and capitalism from the nineteenth century to the present, it argues that each “rebirth” of chemical enlightenment has carried with it the same shadow: anxieties about purity, hierarchy, and control. From early 19th-century nitrous oxide experiments through Progressive Era drug criminalization and the mid-century counterculture, the boundaries between “medicine” and “drug” have functioned as instruments of social stratification. Today’s techno-spiritual revival, shaped by transhumanism, corporadelics, and conspiritualist movements, reanimates these hierarchies under the guise of therapeutic innovation and human optimization. By recovering the eugenic foundations of prior psychedelic eras, this Essay warns that our latest renaissance risks reproducing the same inequities it professes to transcend.

Download the essay from SSRN at the link.

Chabot on Appendices for The Interstitial Executive: A View From the Founding

Christine Kexel Chabot, Marquette University Law School, has published Appendices for The Interstitial Executive: A View from the Founding. Here is the abstract.

This file contains Appendices to Christine Kexel Chabot, The Interstitial Executive: A View from the Founding (October 28, 2025), available at https://ssrn.com/abstract=5673491

Download the Appendices from SSRN at the link.

Kohm and Kohm on C. S. Lewis's Influence in American Case Law

Lynne Marie Kohm and Joseph Kohm, both of the Regent University School of Law, have published C. S. Lewis's Influence in American Case Law. Here is the abstract.

The writings and works of C.S. Lewis have undoubtedly influenced culture through literature, but also through science, academia, education, the arts, and numerous aspects of society. Few scholars, however, have observed his influence on the law. This piece explores how Lewis's work has affected the law in juridical reasoning, and how it has inspired law as literature. Lewis's influence in American case law is not only astonishing in its breadth, but also in its earnestness in integrating the law with efforts to find justice and truth. When Lewis wrote, "I believe in Christianity as I believe that the Sun has risen, not only because I see it but because by it I see everything else," it also included the law and jurisprudence. Law and culture are inextricably linked, via the tug-of-war between where one is consistently seeking dominance over the other. Law directs the theory and practice of basic universal rules held and utilized around the globe. In this piece two lawyers explore the influence of C. S. Lewis and his writings in American case law, and in the rule of law generally. In balancing these tensions, Lewis has been not only instructive, but influential, and this essay investigates how he has become somewhat of a cultural icon to learned jurists.

Download the article from SSRN at the link.

Leshem on Law's Shifting Circles

Ela A. Leshem, Fordham University School of Law, is publishing Law's Shifting Circles in volume 114 of the Georgetown Law Journal (2026). Here is the abstract.

This Article undermines two myths in American legal history: first, that the law’s circle of moral concern has steadily expanded; and second, that legal protections have always centered on human persons. As to the first, the law contains multiple, shifting circles of moral concern—expanding along some dimensions and contracting along others. As to the second, U.S. law and the English common law on which it was based have long attributed moral status to nonhuman beings and inanimate objects. The Article reaches these insights by showing that U.S. legislators, judges, and advocates have for centuries treated a wide range of entities as deserving of moral concern and legal protection. Historically, three kinds of entities stood at the center of this legal universe: Man, Country, and God. U.S. lawmakers treated these entities as “superpersons,” enjoying such elevated moral status and legal protection that even objects falling into their penumbras received moral consideration. These penumbra objects included corpses and effigies, flags and national monuments, religious artifacts and sacred sites. Lawmakers protected these objects as extensions of superpersons and, in so doing, treated them at times as “epipersons.” Although the law’s protection of these nonhuman and inanimate persons has waned, it has not disappeared. A broad range of laws, either directly or indirectly, continue to protect and reinforce the moral status and dignity of superpersons and epipersons. Among them are sovereign immunity doctrines, corpse abuse statutes, and laws prohibiting the desecration of venerated objects, to name just a few. Uncovering the law’s historical universe of moral persons allows us to see more clearly the ongoing shifts in who or what the law deems deserving of moral concern and legal protection. Opening our eyes to these shifts, as this Article shows, can enable us to resist a simplistic narrative of moral progress, and to approach future status determinations with a greater sense of both agency and humility. The historical precedents unearthed in this Article also offer a constructive lens on contemporary legal battles over abortion, environmental protection, and artificial intelligence. They allow us to see that personhood debates in these contexts have a longer prehistory than is often realized, based in centuries of contested legal protections for superpersons and their penumbra objects. This prehistory points to a largely overlooked middle position between treating entities such as first-trimester fetuses, trees and lakes, and nonsentient AI systems as either persons or property—namely, treating them as epipersons with legally enforceable dignity interests and limitations on their property status, but without full-fledged rights.

Download the article from SSRN at the link.