Law & Humanities Blog

Fruehwald on Theory-Induced Blindness in Legal Scholarship: A Critical Thinking Solution

2026-04-16T10:42:00.006-04:00

Scott Fruehwald, Independent Scholar, has published Theory-Induced Blindness in Legal Scholarship: A Critical Thinking Solution. The truth matters, and, consequently, how scholars seek the truth matters. Scholars often use theory as a framework to help them attain the truth. Accordingly, a scholar’s theoretical approach must be accurate; it must not be tainted in any way. “Theory-induced blindness” taints truth-seeking. Theory-induced blindness has contaminated legal scholarship in many ways. This article will examine theory-induced blindness in legal scholarship and demonstrate how it has affected the truth of that scholarship on both ends of the ideological spectrum. Part II will introduce the basics of theory-induced blindness. Parts III-VII will present examples of theory-induced blindness in Classical Legal Thought, writing legal history, traditional law and economics, post-modern legal scholars’ social constructionist arguments, and two professors’ defense of learning style theory. Finally, the conclusion will discuss the best solution for avoiding theory-induced blindness–evaluating theories with critical thinkin

10th International Osnabrueck Summer Institute on the Cultural Study of the Law, July 18-26, 2026: Extended Deadline for Applications

2026-04-16T10:32:00.001-04:00

Extended deadline: The final deadline for applications has been extended to May 10th!

"Law in Transit - Moving Subjects, Universal Rights, and the Contingencies of Recognition"

July 18-26, 2026

10th International Osnabrueck Summer Institute on the Cultural Study of the Law

http://www.osi.uni-osnabrueck.de/

The tenth International Osnabrueck Summer Institute on the Cultural Study of the Law will be held from July 18 to 26, 2026 at Osnabrueck University, Germany. It aims to encourage and further promote the interdisciplinary study and research of the interrelations between law and culture, based on the idea that the extended cultural study of the law will foster profitable scholarly exchange and dialogue between legal studies and the humanities.
The Institute will offer a combination of thematic workshop sessions, small group seminars and a final symposium for 20 international participants (doctoral, post-doctoral and advanced M.A. – see below for eligibility). The introductory workshop will address the range and potential of interdisciplinary studies and approaches in the field of law and the humanities. The remaining thematic sessions and small group seminars will focus on key issues and debates in current cultural legal studies, for example:

* The reconfiguration of legal personhood and citizenship in response to global migration, statelessness, and refugeehood, and the increasing denial of full rights to non-citizens.
* The shifting semantics of democracy and legality in political and social discourse, most obviously about migration and diversity, particularly where rights are claimed, but also where they are suspended or selectively applied.
* Cultural representations and mediations of rights and belonging, including visual arts, and digital media that depict the struggles of mobile or excluded subjects, but also insist on and reaffirm their agencies and capabilities.
* Critical and creative practices of reclaiming legal subjectivity - through activism, art, or narrative - that contest exclusion and imagine alternative communities / subjects of rights.

The main objective of the OSI is to encourage scholarly exchange across disciplines and the critical debate of current research projects, as well as work in progress. Participants will have the opportunity to present and discuss their own work both within the larger group and in individual sessions with members of the OSI faculty.

Confirmed faculty for the 2026 OSI include:

Jeannine DeLombard (English and History, UC Santa Barbara)
Cassandra Falke (English, Arctic U of Norway)
Leti Volpp (Law, UC Berkeley)
Marco Wan (Law, University of Hong Kong)
Arthur Rose (English, University of Exeter)
Devin Zuber (American Studies, GTU Berkeley)
Angela Naimou (English, Clemson University)
Ted Laros (Technology, Media and Culture / Open U of the Netherlands)

Participant Eligibility

The Summer Institute invites doctoral and postdoctoral students from various academic fields whose research interests and projects are situated at the interface between law and the humanities and who are concerned with a better understanding of the interdependence of law and culture. Doctoral candidates in the humanities, law, the arts, literature, and related social sciences are encouraged to apply, as are advanced students pursuing a J.D. or its equivalent (such as an L.L.B). Young scholars or junior faculty members who have received a Ph.D. or a corresponding degree in the last five years are also eligible.
While applications by doctoral/post-doctoral students are prioritized, the Summer Institute will also consider strong applications from advanced Master students about to conclude their studies and with a strong interest in interdisciplinary research.
There are openings for up to 20 students to participate in the Summer Institute. The Institute will be conducted entirely in English.

Application Process

Students interested in taking part in the Summer Institute should submit their applications on our website no later than May 10, 2026. The complete program, and further detailed and updated information about the Institute, the sessions, international faculty, admission and fees can be found at: http://www.osi.uni-osnabrueck.de/

Please direct all inquiries and questions to the OSI coordinator at lawandculture@uos.de

Thanks and kind regards,

Peter Schneck

Director OSI
Chair of American Studies

Tarar and Tarar on Constitutional Ghosts: Myth, Metaphysics, and the Afterlife of the Framers

2026-04-16T09:23:00.000-04:00

Jalal Tarar, Independent Scholar, and Shahbaz Tara, University of London, have published Constitutional Ghosts: Myth, Metaphysics, and the Afterlife of the Framers. Here is the abstract.

This paper examines the paradoxical role of the constitutional framer in judicial reasoning. While courts invoke the figure of the framer to legitimise constitutional interpretation, they systematically exclude actual framers from interpretive authority. The framer is constructed as a mythic origin, sacralised but silenced, a legitimating figure whose historical presence is evoked to anchor doctrine, yet whose interpretive claims are denied to preserve judicial autonomy. Drawing on hermeneutics, political theology, and semiotics, the paper argues that this exclusion is not a contradiction but a structural necessity of constitutional democracy. Through case studies from the United States, Pakistan, India, Iraq, and South Africa, the paper illustrates how figures such as James Madison, Abdul Hafeez Pirzada, and Albie Sachs are invoked as symbols but denied operative authority. The analysis critiques originalism by demonstrating that framers often disagreed with each other, evolved ideologically, or repudiated their own positions, rendering authorial intent an unstable foundation for legal meaning. The judiciary's refusal to yield interpretive control is shown to be essential for the law's adaptability and coherence over time. Constitutional meaning is not inherited but constructed; the framer functions as a judicial artefact, invoked rhetorically but displaced institutionally. This performative logic reveals that constitutional law sustains itself not by preserving the framer's voice but by ritualising his absence. The framer, in this sense, is a constitutional ghost, essential to the mythos of legitimacy, yet exiled from the terrain of interpretation.

Download the article from SSRN at the link.

Blumenfeld on Splitting the Atom of Sovereignty: Ancient Greece and the Origins of American Federalism

2026-04-14T10:57:00.000-04:00

Brian Blumenfeld, Independent Scholar, has published Splitting the Atom of Sovereignty: Ancient Greece and the Origins of American Federalism. Here is the abstract.

In an era when history and tradition increasingly inform the legal reasoning of judges, jurists and advocates from across the ideological spectrum, one historical theme engrained in our constitutional origins remains undeservedly obscure. Appearing throughout the original debates over the U.S. Constitution are investigations into and arguments about the federal governments (or “leagues”) of ancient Greece. A mere browse through the primary records of the founding reveals the esteem with which that era drew lessons and heeded warnings from these classical federal precedents. In laboring over how to form a more perfect union, Americans in the 1780s looked not only to their contemporaneous political conditions for viable answers, but also looked to history for how federal unions were formed, how they functioned, and why they succeeded and failed. The greatest lesson learned from Greek federalism, repeated throughout the founding era, was how the three principal federal governments of ancient Greece—the Amphictyonic Council, the Achaean League, and the Lycian League—all ultimately collapsed because their central governments were insufficiently empowered to withstand the coactive forces of domestic centrifugalism and foreign intervention. This failure, and the solutions for preventing its recurrence in America, figured prominently in the policies and polemics of the founding. Notwithstanding the prevalence of these classical references, there is no single source in the legal or historical literature that provides an adequate account of the Greek federal leagues and their role in the founding. The net outcome is that the scholar, student, jurist or advocate examining our constitutional origins is often confronted with references to Greek federalism, and yet is regrettably left without a source for adequately understanding the subject. As a corrective, this article catalogues and contextualizes the references to Greek federalism found throughout the records of the Constitutional Convention, the ratification debates, and the Federalist Papers; and then reviews the constitutions and histories of the three main Greek federal leagues that appeared throughout the founding. The end result will remove the bewilderment too often evoked by the subject, and will allow the reader to effectively engage with the themes of Greek federalism when conducting constitutional and historical analysis.

Download the article from SSRN at the link.

Call for Papers: Repositioning Criminal Justice; Critical Reimaginings

2026-04-13T14:26:00.001-04:00

From Anne Wagner, University of Lille:

Call for Papers:

Repositioning Criminal Justice: Critical Reimaginings.

This collection explores how criminal justice systems construct and respond to gender—particularly the ways women are othered, criminalised, and shaped by legal and institutional frameworks. We welcome contributions that engage critically with gendered issues in criminal justice from a range of theoretical perspectives, including (but not limited to) Marxist, post/decolonial, socio-legal, critical race, psychoanalytic, and critical legal studies approaches .

Submission details:

* Abstract (150–200 words) due: 15 May 2026

* Full chapter (8,000–9,000 words) due: 26 February 2027

If you are interested in contributing, please send a draft title, abstract, and affiliation to m.beatrice@deakin.edu.au

Kaufman on The First Criminal Procedure Revolution

2026-04-09T21:14:00.001-04:00

Emma Kaufman, New York University School of Law, has published The First Criminal Procedure Revolution. Here is the abstract.

Today, it seems obvious that criminal defendants can waive constitutional rights. Plea bargains make up the vast majority of criminal convictions, and defendants routinely trade their rights — to indictment, to remain silent, to an attorney, to a jury — in exchange for a faster trial or a lesser charge. The modern criminal legal system is a regime of negotiated justice. Rights used to have more force. In the nineteenth century, the rules we now call criminal procedure rights were hard limits on judicial power. Defendants could not forfeit rights, and constitutional violations deprived courts of jurisdiction. But then, in an underappreciated and radical shift, courts changed their mind. One by one, rights became individual options, alienable upon consent. The rest is history: Grand juries declined, plea bargains soared, prosecutors became power brokers, and the system of mass processing was born. This Article recovers a lost chapter of American criminal procedure. It mines a trove of overlooked sources and traverses multiple disciplines to advance a simple claim: Between Reconstruction and the New Deal, courts transformed the rights of the accused. Long before the Warren Court revolutionized criminal procedure, there was a first revolution in constitutional criminal law. The story of that revolution reorients the field’s core assumptions, embarrasses modern doctrines, and expands the canon. It also advances our collective understanding of what it could mean to protect criminal procedure rights.

Download the article from SSRN at the link.

DeLoach on Antigone, Autonomy, and Higher Lawlessness

2026-04-08T10:47:00.003-04:00

Andrew R. DeLoach, Trinity Law School, has published Antigone, Autonomy, and Higher Lawlessness. Here is the abstract.

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

Download the article from SSRN at the link.

Wieboldt on "Shall We Settle for Anything Less Than Complete Equality?" Catholic Power and the First National Fight for Parental Rights in Education, 1947-1962

2026-04-03T14:53:00.000-04:00

Dennis J. Wieboldt, III, University of Notre Dame, is publishing "Shall We Settle for Anything Less Than Complete Equality?" Catholic Power and the First National Fight for Parental Rights in Education, 1947-1962 at 34 Rel. & Am. Cul.-- (2026). Here is the abstract.

After the Supreme Court incorporated the Establishment Clause against the states in Everson v. Board of Education (1947), raucous national debates broke out between Protestants, Catholics, and Jews about the constitutionality of government aid to parochial schools. This article offers the first account of how these interconfessional hostilities shaped the Catholic Church's parochial school litigation strategy after Everson. To undercut claims that government aid to parochial schools would perniciously enrich the (Roman) Catholic hierarchy, the Church's public spokesmen increasingly framed debates about parochial school aid after Everson as implicating the constitutional rights of American parents to direct the religious upbringing of their children. In so doing, these figures eschewed arguments made in the eighteenth and nineteenth centuries that the government has an obligation to fund institutional religion. Moreover, to prevent anti-Catholic prejudice from impacting the disposition of discrete church-state disputes, lawyers associated with the Catholic bishops' official episcopal organization sometimes refrained from publicly involving themselves in local litigation, all while privately supplying litigants with strategic counsel. In concluding, this article suggests that the Church's post-Everson approach to defending the constitutionality of parochial school aid was motivated by a consistent conviction that parents who sent their children to Catholic schools ought to be treated in the same manner as parents who sent their children to other nonpublic (but non-Catholic) schools. When the scope of government aid to nonpublic schools grew in later years, this argument could therefore be invoked to support parochial schools' equal inclusion in more robust aid programs.

Download the article from SSRN at the link.

Mittal, Rakove, and Weingast on The Constitutional Choices of 1787 and Their Consquences

2026-04-01T11:56:00.003-04:00

Sonia Mittal, Yale University Law School, Jack N. Rakove, Stanford University, and Barry R. Weingast, Stanford University Department of Political Science, have published The Constitutional Choices of 1787 and their Consequences in Founding Choices: American Economic Policy in the 1790s, edited by Irwin Douglass and Richard Sylla, National Bureau of Economic Research (2011)

The choices made in the creation of a constitution have immediate political results and, often enough, lasting economic consequences. That, at least, is the overall thesis of this book, which examines the economic significance of the Federal Constitution drafted at Philadelphia in the late spring and summer of 1787. The Constitution occupies so large a place in our collective understanding of American history and politics, is so vital a symbol of national identity, that it is difficult to recall that the American federal republic might easily have evolved along alternative paths. Of course, it is well known that some matters were hotly contested in 1787, such as the disputes over representation that preoccupied the Convention for the first seven weeks of debate, and that others, notably the absence of a declaration of fundamental rights, became objects of public controversy as soon as the Constitution was submitted to a sovereign people for ratification. But to emphasize the big dramatic issues – the purported “great compromise” over representation, the assuaging of Anti-Federalist doubts with the proposal of a “bill of rights” – is still only to confirm what a heroic episode it all was. The other contingent choices that set the Convention on its course, or that gave the Constitution its essential character, remain obscure.

Download the chapter from SSRN at the link.

Kellogg on Scrooge, the Trolley Dilemma, and Analytical Philosophy

2026-03-26T14:42:00.006-04:00

Frederic R. Kellogg, George Washington University; Universidade Federal de Pernambuco (UFPE), has published Scrooge, The Trolley Dilemma, And Analytical Philosophy. Here is the abstract.

In Charles Dickens’s A Christmas Carol, Ebenezer Scrooge is famously transformed--but how? He and we are creatures of habit. He was a creature of ugly habits and suddenly, in one night, he is a creature of good ones. How, in the real world, can moral habits be changed at all, much less overnight? The famous trolley dilemma is a test of habits. In the imaginary dilemma a brakeless trolley is headed to kill 5 workmen on the track ahead, and you as the driver are confronted by a choice —should you let it happen, or intervene, and divert it to a siding where it would nevertheless kill one workman? Isn’t that murder? This is testing current intuitions, rather than addressing the important question of habit change. Habits today are the problem, if we consider the “Me Too” movement, or race, or health care, or drugs, or guns, or policing, or gender, or religion, education, the workplace, all are guided by entrenched practices. We find ourselves in a stream, a tidal momentum, of habit. This is our crisis, not just of individual but corporate habits, social habits. I should also add intellectual habits. I will suggest here that the analytical tradition of philosophy in law is a bad habit, not just useless today, but positively dangerous. It blocks out the necessity of hard choices, opens the door to ideology, and leads to the conclusion that judges in difficult cases must either legislate, or resort to their personal values.

Download the article from SSRN at the link.

Vasconcelos Vilaça on Files, Dust, Law

2026-03-16T14:04:00.004-04:00

Guilherme Vasconcelos Vilaça, Instituto Tecnológico Autónomo de México (ITAM) Law School, has published Files, Dust, Law. Here is the abstract.

The promise of modern law stems from the fact that all necessary data – both about law’s operations and the world – can be retrieved, a fact that in turn crucially did and does things in the world, namely shaping our existence as subjects, our expectations of justice, and the actions available to us. It is a model of both reality and our powers of agency. In turn, these features imply that law, law’s files, law’s dust, and law’s archive, trigger affects both privately and socially. Seeing law as a miniature archive room in which actors live and play according to certain rules then is a metaphor of law’s complex workings in social life. One can come to the realization that law is archive in a multitude of ways and experiences, but the bottom line of the chapter is that this leads to a serious interrogation of law’s place and existence in the world. Herein, I offer an account of my own encounter with the law, files, dust triad by means of an aesthetic examination of “disappearance”, a horrific widespread phenomenon that became a sprawling cultural category and form. I focus on disappearance seen from the legal system itself, that is, as a “lost file” and the performative and constitutive effects that files, and especially “lost files”, trigger for subjects and systems alike. I work through these themes by means of an intertextual analysis of Cristina Rivera Garza’s book “Liliana’s Invincible Summer” and one of Rafael Cauduro’s murals located in the Mexican Supreme Court building entitled Procesos Viciados. Contrasting these works brings to the fore the feeling that files are there to be chased after, picked up, deployed, stored, and sometimes forgotten and lost, constituting at the same time the terrain for and the subject of the performativity of the search. Uniting them, there is the physical element of “dust”, an atmospheric particle that, for files (but also very real physical searches), links past, present and future forcing us to confront our existence in disparate registers. Through this interaction, files, ultimately, force legal systems to witness the affective nature of disappearance and search alike and the potential of law’s archive and counter-archive to channel alternative politics of affects. Finally, I consider some potential consequences of the coming loss of the “dusty file” image and rise of digital archives in which our relationship to files, folders, archives starts to be mediated by our dust conduit in a new nature and texture. To put differently, what will it mean to search for law’s documents, for law’s authoritative narrative of the time that matters, and the historical expectations we attached to law, when this search will take place fully in the virtual world? How will we feel if the chain between folders, file numbers, and files works without any primary link to the “real” archive, one that by definition has to exist in a different medium?

Download the article from SSRN at the link.

Vasconcelos Vilaça on On Being Human in Samanta Schweblin's "Kentukis/Little Eyes: A Novel"

2026-03-16T13:59:00.006-04:00

Guilherme Vasconcelos Vilaça, Professor ITAM Law, has published On Being Human in Samanta Schweblin's "Kentukis/Little Eyes: A Novel," 2 Public Humanities 13 (2026). Here is the abstract.

What counts as a human and as a proper human life has been a lifelong preoccupation of our species. Today it is digitalism, technology, and AI triggering renewed nightmares and hopeful dreams around being human. Through an examination of Samanta Schweblin’s novel “Little Eyes” (Kentukis in the original), I show how humanities are crucial to (i) keep track of what is new and old in these shifts and (ii) maintain a vigorous public sphere that is qualitatively different from gamified individual and social relations. The result is the defense of an idea of public life that stands beyond our individual private desires, marking a stark contrast with a vision of society in which we relate to others and the public as we would to toys we play with.

Download the article from the Public Humanities website here.

Call For Papers: Touro Law Review--Special Issue on Legal Humor

2026-03-11T19:27:00.001-04:00

CALL FOR PAPERS

TOURO LAW REVIEW – SPECIAL ISSUE ON LEGAL HUMOR

Are you funny? Were you the life of the party in law school? Do you make your faculty colleagues or law firm partners laugh out loud? The Touro Law Review is planning a special issue on “Legal Humor” and seeks your work.

GUIDELINES

● We are looking for short pieces (maximum of 10 pages double-spaced) that take a humorous look at any aspect of the law, including law schools, the practice of law, or the courts.

● Pieces can take any form, including descriptive, expository, narrative, or technical. Poetry, screen writing, song writing, and other forms of creative writing are welcome as well.

● Law professors, lawyers, judges, and current law students are eligible to participate. Non-lawyers also are welcome to submit their work.

● Pieces are due by Tuesday, September 1, 2026, and should be e-mailed as a Word attachment to all three of the issue’s Faculty Coordinators:

Associate Dean Rodger D. Citron (Touro University): rcitron@touro.edu

Professor Rena C. Seplowitz (Touro University): rseplowi@touro.edu

Professor Robert M. Jarvis (Nova Southeastern University): jarvisb@nova.edu

● The Faculty Coordinators will review all pieces that are submitted by the deadline. Acceptance decisions will be sent out on or before December 1, 2026.

● It is expected that the accepted works will appear in Volume 41, Issue 5 of the Touro Law Review, which currently is set to be released by July 1, 2027.

● Please keep in mind: All pieces will be judged on their originality, novelty, and general appeal to a legal audience. Previously published pieces will not be accepted. Pieces that seriously examine the use of humor in legal matters or proceedings also will not be accepted. Only legal humor pieces will be considered.

● Questions? Please e-mail the Faculty Coordinators at the e-mail addresses listed above.

We look forward to laughing at your work!

Piano and Piano on The Medieval Origins of Spousal Consent

2026-03-11T11:00:00.003-04:00

Clara Piano, University of Mississippi Department of Economics, and Enio Piano have published The Medieval Origins of Spousal Consent. Here is the abstract.

This paper examines the medieval origins of spousal consent, the norm requiring that marriages be contracted willingly and free from pressure from third parties. We argue that this norm resulted from the Catholic Church’s consolidation of legal authority over marriage in Western Europe in the 11th-12th centuries. Committed doctrinally to the belief that marriages could not be dissolved and that remarriage was therefore impermissible (i.e., marriage indissolubility), the Church was compelled to enforce high consent requirements to the formation of new unions. Using a simple theoretical model, we show that the Church’s optimal level of spousal consent is higher when remarriage is not allowed. Higher consent requirements mitigate the negative effect of indissolubility on the number of marriages contracted. The development of a theory of spousal consent marked a sharp break from pre-Christian practice, which gave parents substantial control over the choice of spouse. It also contrasted with Eastern Orthodoxy and Protestantism, both of which permitted remarriage after divorce. Our analysis suggests that the Church’s insistence on free consent was a necessary institutional complement to its unique stance on indissolubility, shaping marriage law and family structure in ways that reverberated throughout European history.

Download the article from SSRN at the link.

Chaevitch on Faust: Goethe's Guide to Legal Progress

2026-03-06T09:18:00.004-05:00

Anton Chaevitch, Harvard University Department of Germanic Languages and Literatures; Creighton University School of Law, Columbia Journal of Transnational Law, has published Faust: Goethe’s Guide to Legal Progress.

Goethe’s Faust can be read as a story of legal progress, from a legal order in which something as perverse as a written pact for Faust’s soul is enforceable to an order in which it is not. This raises the question of how such progress was achieved—especially because Goethe was a lawyer and a statesman. The keys to the answer lie in three significant omissions in Faust that have gone largely unnoticed: first, the absence of real evidence that Margarete (Gretchen) killed her infant child; second, the absence of even a basic trial before Faust concludes that Lynceus (his watchman) shall be put to death; third, the absence of the text of the pact between Faust and Mephistopheles. This contribution posits that understanding the reasons behind these omissions and assumptions is the key to understanding legal progress in Goethe’s Faust. These reasons are twofold: the dangers of a sole narrative that explains an event (such as infanticide) and the bordered nature of legal systems. Goethe’s Faust shows that the road to legal progress lies in the existence of multiple narratives that explain the same event and in a legal order that is gränzunbewußt (to borrow a word from Faust, meaning “unconscious of borders”). Suggested Citation:

The full text is not available for download from SSRN.

New Publication: Performing Law (Cambridge University Press, 2026)

2026-03-04T10:10:00.001-05:00

From Peter Goodrich, Director of the Program in Law and Humanities, Cardozo School of Law:

Intrepid Team, Tireless Textual Troubadours, Tanquam Tessellations, Timbrels and Tympani,

That incomparable syntagm, scintillating excursus, and coruscating communal and collective cerebration Performing Law is now published online, extant virtually, as vibrant and vivid in virbiusses as a vaudeville Velasquez. Time, then, for action. To advance, promote, circulate, promulgate, disseminate this cornucopia of geniuses requires, indeed, promotion and reviews. These, in currently restricted publishing economies, lie in our hands. Please circulate the link and corral students, former students, friends, colleagues, acquaintances, or as circumstances dictate, medical team, bouncers, resort staff, inmates, dance partners, crèche, Asylum warders, private security, to the task of reviewing and distributing this magnum and magnificent volume, this jeroboam of bonifacted spectres. And thus, once more to the page, once more unto the books, once more or fill the sibylline leaves with our English dead letters!

I remain your fondest Gromboolian hapax legomenon,

Peter

Davies on A Wig Without a Home: The Comedic Wisdom of Sir Frederick Pollock

2026-03-03T20:34:00.005-05:00

Ross E. Davies, George Mason University Law School; The Green Bag; has published A Wig Without a Home: The Comedic Wisdom of Sir Frederick Pollock in volume 29 of the Green Bag 2d (2026). Here is the abstract.

Frederick Pollock (1845-1937) was the Green Bag’s kind of scholar. The first half of this paper consists of a sketch of his career and character, followed by a closer look at his sense of humor and the roles it played in his work. The second half of the paper is in two sections. First, there is a full republication of the text of a tiny book — a short story by Pollock titled “Queen Titania’s Chancellor”— that for nearly a century sat unnoticed on a bookshelf in the library of the Queen’s Dolls’ at Windsor Castle, until Elizabeth Clark Ashby (Curator of Books and Manuscripts in the Royal Library at Windsor Castle) gave Pollock’s miniature masterpiece some long-overdue and well-deserved attention in her 2024 book (full-sized), “The Miniature Library of Queen Mary’s Dolls’ House.” Second, there is a close (but incomplete) reading and analysis of that tiny text. If there are any lessons to be drawn from this paper, perhaps they are that greatness need not always be cloaked in dignity, and that Jack Point was not the only wit who could “teach you with a quip, if I’ve a mind” or “trick you into learning with a laugh.”

Download the abstract from SSRN at the link.

Call For Applications, Institute for Interdisciplinary Legal Studies, 2026

2026-03-03T08:48:00.003-05:00

From Steven Howe, Associate Director for Institute for Interdisciplinary Disciplinary Legal Studies, Lucernaiuris.

Call for Applications: Critical Times 2026 – Bodies

“Why all the fuss about the body?” Caroline Bynum first posed this provocation in the mid-1990s, prompted by a “proliferation” of new writings and theorizations, including then-recent and now-classic works by Judith Butler, bell hooks and Susan Bordo. Looking back some three decades on, we see that the ‘fuss’ was no temporary flare-up or mere passing fad. Rather, it was symptomatic of an emergent ‘bodily turn’ that has, in the years since, moved the terminology of bodies – real, imagined and metaphorical – to the foreground of critical thinking across law and the humanities.

The fruits of this turn need no special elaboration. Interventions in critical theory, performance studies, affect theory, Black studies, feminist and queer theory, posthumanism and new materialist studies have given us an array of new vocabularies and insights to bring to bear on our thinking about bodies, their meanings, entanglements and limits. The body, in Rizvana Bradley’s phrase, has become a “discursive meeting ground” for an “unwieldy multitude of concepts and debates, affects and afflictions, conflicts and contestations”, the distinctive expressions of which span multiple fields, disciplines and cultures. While not always clear whether these numerous articulations work in tandem or at cross-purposes, they have, in their very plurality, fostered a deeper engagement with, and problematization of, the “matter of bodies” (Butler). Our present moment – marked by demographic convulsions, war, enhanced practices of surveillance, ubiquitous mobile media, posthuman subjectivities, and new forms of political protest and social movements – urges us, meanwhile, to ‘fuss’ further: to give continued and renewed care to re/thinking the significance of bodies in various contexts, situations and relations. Or to ask more pointedly: do bodies still matter? And if so, why, when and how?

In this spirit, the 2026 Critical Times summer school invites emerging scholars in law and the humanities to gather anew around the theme of ‘Bodies’. Together, we will think about bodies that assemble and disassemble, that appear and disappear, that are protected, punished, cared for, and ignored. From the vulnerable to the resistant, the human to the more-than-human, we ask how legal and cultural frameworks make some bodies visible and others invisible – and how embodiment, performance and affect shape and unsettle our legal imaginaries.

Open to postdocs, PhDs and advanced graduate students from different disciplinary and interdisciplinary backgrounds, the aim is to create a live and lively space of inquiry and creativity – a temporary assembly of thinking, feeling, and embodied scholarship.

Deadline: 20 March 2026. Further details here.

Contact: steven.howe@unilu.ch

Call for Applications: Critical Times 2026 – Bodies

Deadline: 20 March 2026. Further details here.

Contact: steven.howe@unilu.ch

Forthcoming: Daniel Newman, Law and Justice in Song (Routledge Publishing, 2026)

2026-03-03T08:17:00.003-05:00

Forthcoming:

Daniel Newman, Law and Justice in Song: Murder Ballads and Popular Music (Routledge Publishing, 2026)(Transforming Legal Histories).

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

This book examines the murder ballad form, songs about death and killing, from a legal history perspective. It is held that taking on the long history of the murder ballad is a way that we can understand how death and killing in song has a function in dealing with the world around us. The book integrates law and humanities scholarship with diverse musical case studies to construct a typology of murder ballads and thus conceptualise the central messages of how murder ballads have treated death and killing. Drawing on a cultural form in which assessment and consideration of death and killing are so vigorously and richly enacted gives lawyers a guide to how those who do not see these matters through a primarily legal lens might understand this part of their world. The study will be of interest to academics and researchers working in the areas of Criminal Law, Legal History, Socio-Legal Studies, Criminology, and Musicology.

Here's a short bibliography of secondary sources on murder ballads (there are so many!)

Burt, Olive Woolley, Murder Ballads of Mormondom, 18 Western Folklore 151 (1959).

Kane, Stuart A., Wives With Knives: Early Modern Murder Ballads and the Transgressive Commodity, 38 Criticism 219 (1996).

Mulligan, Roark, Dreiser's Murder Ballad, 3 Studies in American Naturalism 22 (Summer 2008).

Daniel Newman, Murder Ballads and Death in Song, 46 Australian Feminist Law Journal 17 (2020).

O'Brien, Ellen, "The Most Beautiful Murder": The Transgressive Aesthetics of Murder in Victorian Street Ballads, 28 Victorian Literature and Culture 15 (March 2000).

Pettitt, Thomas, Journalism vs. Tradition in the English Ballads of the Murdered Sweetheart, in Ballads and Broadsides in Britain (Routledge, 2010).

Underwood, Richard H., and Carol J. Parris, CrimeSong: Some Murder Ballads and Poems Revisited, 12 Journal of Southern Legal History History 5 (2004).

Website: Murder by Gaslight.

Eisenberg and Lamoreaux on Separation of Powers or Division of Labor? Patent Interference Disputes, the Grand Narrative, and the History of the Administrative State, 1790-1940

2026-03-02T10:25:00.000-05:00

Rebecca Eisenberg, University of Michigan Law School, and Naomi R. Lamoreaux, Yale University; National Bureau of Economic Research; University of Michigan Law School, have published Separation of Powers or Division of Labor? Patent Interference Disputes, the Grand Narrative, and the History of the Administrative State, 1790-1940. Here is the abstract. NB: There are 2 versions of this paper

We use the history of the Patent Office to challenge the Grand Narrative of separation of powers that the current Supreme Court is using to invalidate congressional designs for administrative agencies. Focusing on the adjudication of patent interference disputes—cases in which two or more inventors applied for patents for essentially the same technology—we find that the division of labor between the Patent Office and the courts shifted repeatedly and dramatically over the century and a half preceding the Administrative Procedure Act. Rather than worries about separation of powers, the main drivers of change were (1) the Patent Office’s efforts to curb inventors’ exploitation of interference procedures to delay the award of patents to rivals and (2) the need to manage the workload that interference appeals imposed on the overburdened Patent Office and courts. Innovations in Patent Office procedures led to dramatic improvements in the efficiency of its frontline adjudication of interferences, but officials found it much more difficult to prevent losing parties from abusing appeals opportunistically. At the behest of the Patent Office, Congress repeatedly revised the appeals process for interferences, trying out direct review by ad hoc arbitration panels, individual judges, and variously constituted courts. It even eliminated direct appeals of interference decisions from 1870 until 1893, while continuing to provide for appeals from rejections of patent applications (where opportunistic delays posed less serious problems). Although interference parties sometimes raised legal challenges to these review structures, they reached a dead end in the Supreme Court, which throughout the nineteenth century deferred to Congress’s authority to design the system. Finally, in 1939, after a century of trial and error, the Patent Office convinced Congress to eliminate all internal appeals in interference cases within the Patent Office, to authorize the Patent Office to issue patents based on its frontline adjudications of priority, and to shift review of interference decisions entirely to the courts. Again, this change did not apply to rejections of patent applications, which were still reviewed internally before they could be appealed to the courts. Both the great variety of appeal structures enacted over the years and the repeated divergence in the treatment of appeals of interferences and rejections support our emphasis on the primary role that pragmatic concerns played in the evolving division of labor between the Patent Office and the courts. This history reveals flexible adaptation over time rather than conformity to a standard model of separation of powers traceable to the framers.

Download the article from SSRN at the link.

Forthcoming from Princeton University Press: Carla Hesse, The People's Justice: Revolutionary Law and the Founding of the French Republic (June 2026)

2026-03-02T10:06:00.002-05:00

Forthcoming from Princeton University Press: Carla Hesse, The People’s Justice: Revolutionary Law and the Founding of the French Republic (June, 2026). Here from the publisher's website is a description of the book's contents.

In The People’s Justice, Carla Hesse offers a sweeping reappraisal of political violence in the French Revolution. From Charles Dickens to Hannah Arendt, the Revolution of 1789–1799 in France has been depicted as the bloodiest of the eighteenth-century democratic revolutions. Through extensive new archival research, Hesse shows that, to the contrary, what set the French Revolution apart was neither the scale nor the intensity of its violence but rather the ubiquity of its political tribunals and the use of novel forms of criminal law and procedure as a means of adjudicating political conflict. More than 5,000 political trials were prosecuted by the Revolutionary Tribunal in Paris alone, and, with an acquittal rate of more than 50 percent, these were neither perfunctory nor foregone in their outcomes. They had a repressive function, to be sure, but more importantly, they played a critical role in founding a republic in France and in shaping its social and political norms. Through jury deliberation, public witnessing, and media coverage, these political trials legitimated a republic and the revolutionary struggle that brought it into being. They were animated less by class warfare, factional hatreds, or utopian ideology than by a patriotic, albeit tragic, effort to hold fellow citizens accountable. Over the course of the last two centuries, France, of course, has successfully established itself as a constitutional regime, but this constitutional tradition is still rooted in and haunted by its revolutionary past. Since 1793, the French Republic has, to some extent or another, kept itself alive by keeping itself perpetually on trial.

Larsen and McSweeney on Medieval Treatises and the Judicial Search for a Useable Past

2026-02-24T13:48:00.000-05:00

Alli Orr Larsen and Thomas McSweeney, both of William & Mary Law School, are publishing Medieval Treatises and the Judicial Search for a Useable Past in volume 79 of the Stanford Law Review. Here is the abstract.

The Supreme Court’s recent turn to history and tradition has prompted a renewed interest in the far distant past – the laws and customs of the Middle Ages. But medieval treatises are full of traps for the unwary. This article – a joint enterprise between a medieval legal historian and a Supreme Court scholar – carefully explores what makes these treatises uniquely complicated and easy to get wrong. To start, they are written in Latin and, sometimes, Old French. In many instances, the underlying medieval decisions they reference are destroyed and gone forever. Because there was no photocopier or even printing press back then, treatises often come in competing versions reflecting not only multiple authors but also successive copyists who made substantive changes. And legal texts were just different in the thirteenth century. Treatises were used for purposes as diverse as passing on cultural values, advising rulers on how to govern, and even teaching people the ideals of friendship. Put simply: medieval law is hard to find, hard to read, and even harder to put into context. For the American judge or law clerk who is strapped for time but wants to make a point about a long tradition, the understandable temptation is to reach for an authority like a medieval treatise that feels familiar. After all, modern legal treatises (think Wright and Miller) are recognized as trustworthy authorities to cite. And today translated versions of medieval treatises are easy to find digitally. But that ease of access and familiarity of authority are illusory. Often the very things that make these medieval texts feel familiar to modern readers would have made them idiosyncratic to thirteenth century audiences. Our goal in this article is to raise the caution flag for judicial consumption of medieval treatises: a user-friendly useable past can lead modern lawyers and jurists astray and should not be consumed without scrutiny and care.

Download the article from SSRN at the link.

Association for the Study of Law, Culture and the Humanities (ASLCH) Accepting Submissions for Julien Mezey Dissertation Award

2026-02-18T11:49:00.000-05:00

The Association for the Study of Law, Culture and the Humanities is currently accepting submissions for the Julien Mezey Dissertation Award. This annual prize is awarded to the dissertation that most promises to enrich and advance interdisciplinary scholarship at the intersection of law, culture and the humanities.

Applicants eligible for the 2026 award must have defended their dissertations successfully between March 2025 and March 2026.

The Association will cover the Mezey Prize winner’s travel and lodging costs to the annual meeting.

Nominations for the 2026 award must be received on or before March 15, 2026.

Each applicant must submit the following:

a letter by the nominee detailing the genesis, goal, and contribution of the dissertation;
a letter of support from a faculty member familiar with the work;
an abstract, outline, and selected chapter of the dissertation;
contact information for the nominee.

Please submit these materials to lch@lawculturehumanities.com.

More information about this award is available on our website.

Smith on Holistic Constitutional Interpretation

2026-02-18T11:35:00.001-05:00

Michael L. Smith, University of Oklahoma College of Law, has published Holistic Constitutional Interpretation. Here is the abstract.

This Article identifies and advocates for holistic constitutional interpretation, a method in which interpreters consider disputed constitutional terms or provisions in the context of the Constitution as a whole to gain insight into otherwise inscrutable textual questions. Holistic interpretation resembles, but is distinct from, alternative methods like structural argument and intratextualism—maintaining a focus on constitutional text that distinguishes it from structural methods, but approaching context in a more flexible manner than the more cabined intratextualist approach. While some scholars recognize holistic interpretation as a distinct method, their focus is often fixed on federal constitutional law. This Article adds to existing discussions of holistic interpretation by demonstrating how the method pervades the interpretive methods of a wide range of legal topics. Courts interpret contracts, wills, deeds, judgments, and statutes in a holistic manner—urging consideration of the whole document when interpreting a provision in dispute. Holistic interpretation is common in state constitutional cases as well, with the vast majority of state supreme courts purporting to interpret state constitutions as a whole. Holistic interpretation enriches textualist methodology, which might otherwise become overly technical or hyper-fixated on arcane definitional and grammatical disputes. It also takes the wind out of the sails of alternate interpretive methodologies that thrive on perceptions of ambiguity and uncertainty. While its implications for individual rights are mixed, holistic interpretation strengthens textualist methodology and is a useful tool for those who might otherwise be troubled by abstract or ambiguous constitutional language.

Download the article from SSRN at the link.

Charles and Gelbach on Bruen's Tenth Amendment Problem

2026-02-16T11:52:00.001-05:00

Jacob D. Charles, Pepperdine University School of Law, and Jonah B. Gelbach, University of California, Berkeley, School of Law, have published Bruen's Tenth Amendment Problem. Here is the abstract.

In New York State Rifle & Pistol Association v. Bruen, the Supreme Court applied a novel history-and-tradition framework to Second Amendment claims. That test keys the validity of modern gun laws to their similarity with historical analogues. Although scores of commentators have critiqued that approach, this Article identifies a critical constitutional flaw that has escaped focused attention: if Bruen’s test is not recalibrated, it violates the Tenth Amendment. The Tenth Amendment preserves to States all powers the U.S. Constitution did not divest from them. This Article argues that a crucial reserved power is the power of legislative choice—the States’ second-order power to choose whether to act or not, including whether to change course. Bruen’s requirement that each modern law match a historical precursor infringes on this reserved power, because it impermissibly removes from today’s legislatures a whole vista of choices available to their Founding-era predecessors. It withdraws a reserved State power that was woven into the Constitution when the Second Amendment was ratified: the power to do things differently today than before. In light of this conflict, the Article urges the Court to clarify that judges must implement any historical test in a way that respects the power of legislative choice. First, the Court should accord historical silence contextually appropriate weight. It can do so by recognizing and adopting a principle from the law of evidence, which deems silence in the face of an accusation probative only if the circumstances called for contradiction (what we label “the 3C test”); historical silence should be probative only if circumstances otherwise called for regulation. Second, at the same time it devalues silence, the Court should simultaneously expand the universe of historical evidence relevant to the inquiry. Both moves would better serve the end of respecting constitutionally-guaranteed State prerogatives while safeguarding individual rights.

Download the article from SSRN at the link.