Law & Humanities Blog

Metzger on Abraham Lincoln Brings Roman Law To Illinois

2026-09-16T11:19:44.263-04:00

Ernest Metzger, University of Glasgow School of Law, has published Abraham Lincoln Brings Roman Law to Illinois in Die unverzichtbare Wissenschaft. The Indispensable Science. Festschrift für Wolfgang Ernst zum 70. Geburtstag. Essays in Honour of Wolfgang Ernst on the Occasion of his 70th Birthday (B. Gsell, T. Rüfner & U. Babusiaux, eds.,Tübingen: Mohr Siebeck, 2026) at 603-614.

Abraham Lincoln’s legal practice is now studied a good deal thanks to the publication of his legal papers in 2000. Lincoln's practice was in the common law, but students of other traditions naturally wonder if there could be any Civil law i.e. Roman law traces. If there were, it might say something about Lincoln's intellectual reach, as well as the power of Roman law to do justice in an unlikely place: Illinois, only recently frontier. Happily there's one instance where Lincoln used Roman law and even won with it: an 1846 appeal to the Supreme Court of Illinois. He relied on a single proposition dealing with contract conditions, a proposition derived from Roman law and formulated some forty years earlier by the learned Kentucky judge and advocate George Bibb (1776–1859). We can't really credit Lincoln with knowledge of the Roman roots, but we can certainly credit him for recognising a powerful Roman rule that could effectively dispatch his opponent's case, in a way the common law authorities could not. Risinger v. Cheney, 7 Ill. 84 (1846). In this narrative there is also a (notional) thread linking Lincoln's Roman law to Thomas Jefferson, and to a book still residing in the Jefferson Library. Lincoln wouldn't have known this, but it would have pleased him.

Download the essay from SSRN at the link.

Arias-Barrera on Hacking the Financial Order: Mr. Robot, Financial Data as Critical Infrastructure and the Limits of Resolution Law

2026-09-16T11:11:30.686-04:00

Ligia Catherine Arias-Barrera, Eternado de Colombia University, has published Hacking the Financial Order: Mr. Robot, Financial Data as Critical Infrastructure and the Limits of Resolution Law. Here is the abstract.

This article examines Mr. Robot as a cultural legal text through which a central problem of contemporary financial regulation becomes visible: the systemic significance of financial data. It asks how financial law should conceptualise and govern the loss, corruption or destruction of records that constitute, evidence and administer financial obligations. The article argues that existing recovery, resolution, operational resilience and data governance frameworks remain principally institution centred. Even where they address cloud concentration, outsourcing and critical third-party risk, they generally assume that the financial institution, its records and the evidentiary basis of its obligations remain sufficiently available during a crisis to permit orderly intervention. Using cultural legal studies and formal adaptation analysis, the article reads E Corp and the 5/9 hack as a regulatory thought experiment. The series condenses within a single fictional institution the concentration of consumer credit, data extraction, technological infrastructure, private currency and political authority. Its central event demonstrates that the destruction of financial records is not simply an operational disruption. It compromises the capacity to identify claims, establish liabilities, protect consumers, supervise markets and resolve failing institutions. The article consequently develops the concept of financial data as critical infrastructure, understood functionally as data whose loss, corruption or unavailability would impair the continued administration of financial obligations or the stability of the financial system. The article concludes that financial regulation should identify and govern critical financial records according to their systemic function. This requires more than conventional cybersecurity or data protection obligations. It requires independently verifiable replication, tested recoverability across jurisdictions, effective supervisory access, clear responsibility among financial firms and technology providers, and governance arrangements capable of preventing private actors from becoming exclusive evidentiary points of failure in financial markets.

Download the article from SSRN at the link.

Baltodano on Borrowing the Bard: Shakespearean Fluency and the Gatekeeping of Legal Authority

2026-09-15T20:55:20.163-04:00

Camilo Baltodano, University of Pennsylvania School of Arts & Sciences, is publishing Borrowing the Bard: Shakespearean Fluency and the Gatekeeping of Legal Authority in volume 1 of the University of Kansas Law & Literature Journal (forthcoming 2027).

This Article argues that Shakespeare plays a distinct role in Anglo-American legal culture. Courts and law schools often treat Shakespeare as a credential as much as a source of language or insight into human nature. Shakespearean literacy is a sign of cultivation, and that sign is not socially neutral. Drawing on Pierre Bourdieu’s account of cultural capital and Annette Lareau’s research on how that capital is acquired, the Article identifies Shakespearean literacy as a form of embodied cultural capital. To judge that practice, the Article borrows a standard from Paul Robinson’s work on the moral credibility of criminal law. Criminal law can create compliance not only through force but also through its reputation for delivering a justice that ordinary people recognize as their own. The Article extends that idea from the criminal rules of liability and punishment to the cultural production of legal authority. But a professional culture that treats cultural sophistication as equivalent to legal wisdom erodes the democratic basis of legal legitimacy. Shakespeare serves as the example because he is at once a symbol of legal culture and a dramatist whose plays expose the instability of legal authority. In The Merchant of Venice, Othello, and Measure for Measure, the authority of law is itself put in question. Anglo-American legal culture invokes Shakespeare’s name without acknowledging those critiques. It takes familiarity with his works to be a sign of legal judgment, so that fluency can lend an argument authority before its merits are considered. What the profession rewards is ease. A forced allusion falls flat where a fluent one signals belonging, and the effortlessness that separates them is the product of a cultivation distributed long before anyone applies to law school. Shakespeare endures in legal culture because he supplies what law wants from literature, which is prestige that reads as wisdom.

Download the article from SSRN at the link.

Knowles-Gardner on The Selma 29: When Courage Risked Conviction (Or Much, Much Worse)

2026-09-15T10:11:08.961-04:00

Helen J. Knowles-Gardner, Institute for Free Speech, has published The Selma 29: When Courage Risked Conviction (Or Much, Much Worse). Here is the abstract.

The day after twenty-nine Black residents of Selma put their signatures to a petition calling for the city’s schools to integrate in the fall of 1955, they found their names and addresses published in a front-page article in the Selma Times-Journal. The newspaper’s disclosure of this personal information was, in part, designed to generate a violent response, and the predictable reprisals came swiftly. This was classic political violence, 1950s white supremacist Alabama style. It made headlines across the country but, curiously, has received far less scholarly attention than one might expect. Although not the example of political racial violence for which Selma is most infamous, and by no means the only example of political racial violence directed at the city’s Black population, the story of the twenty-nine deserves to be told. This is because these individuals were not just targeted for supporting desegregation; they were targeted for supporting a primary legal goal of the NAACP. Most, if not all, of the twenty-nine were members of the NAACP, and several of them were prominent local leaders of Selma’s chapter. In Selma in 1955, mere membership in the NAACP could and did (up)end people’s lives and livelihoods. This paper tells the stories of the Selma 29. It situates those stories within a timeline that leads up to the June 1, 1956 issuance of a temporary restraining order that put the NAACP out of business in Alabama for over eight years, and generated a series of landmark rulings from the Supreme Court of the United States holding that the state’s efforts to demand disclosure of the names and addresses of the members of the NAACP in Alabama ran afoul of the First Amendment. This paper is part of Dismembering the NAACP, a book project under contract with LSU Press.

Download the paper from SSRN at the link.

Baranowski on Remaking Rulemaking: Lessons From the History of Federal Rule of Civil Procedure 54(b)

2026-09-13T21:19:41.344-04:00

Brad Baranowski, SMU School of Law, has published Remaking Rulemaking: Lessons from the History of Federal Rule of Civil Procedure 54(b) at 73 Cleveland State Law Review 617 (2025). Here is the abstract.

This Article uses the lost history of Federal Rule of Civil Procedure 54(b) to provide a framework for rulemaking at the busy intersection of complex litigation and appellate finality. The drafters of the original civil rules spent more time thinking through how to efficiently combine claims and parties in civil actions-a promised benefit of the proposed law-equity merger-than about how combined claims should be disassembled. This failure would haunt the original Advisory Committee on Civil Rules for years. Nowhere was this more evident than in the first decades of Rule 54(b)'s existence. Promulgated in 1938, Rule 54(b) was designed to provide for partial final judgments in multiclaim actions, but it quickly caused confusion in the courts of appeals. Leading jurists such as Jerome Frank, Learned Hand, Felix Frankfurter, and, above all, Charles E. Clark, the first reporter for the Advisory Committee and the Rules' primary drafter, sparred over its purpose, application, and legitimacy. The debate over amending the rule was often technical. But the stakes of the controversy hinged on a fundamental issue about the scope of rulemaking authority under the Rules Enabling Act. Namely, who should work out the tensions between law and equity after their merger: the courts, Congress, or the rulemakers? The Supreme Court resolved this debate in 1956 by tapping the rulemakers. This is the point at which a standard history of Rule 54(b) would begin. But the rulemakers' first, abortive efforts to devise a rule of district-court procedure that would advance the goals of the law-equity merger (especially promoting efficiency in complex litigation) while respecting the separation of powers (especially the statutory policy of the final judgment rule) can provide lessons for rulemakers today as they continue to grapple with appellate finality. And as this Article concludes, those lessons provide a framework for analyzing rule proposals related to appellate finality, one that focuses the exercise of the rulemaking authority on further advancing the law-equity merger.

Download the article from SSRN at the link.

Duxbury on The General Law Renaissance and the Common Law

2026-09-13T21:12:55.776-04:00

Neil Duxbury, London School of Economics Law School, is publishing The General Law Renaissance and the Common Law in volume 102 of the Notre Dame Law Review (forthcoming 2027).

Of late, there has emerged an important body of legal scholarship sympathetically reassessing the concept of “general law” – unwritten legal norms discoverable by courts. This article shows that these reassessments run up against a problem when the general law in question is common law. The problem arises from a question: what makes common law valid as law in the first place? In England, the answer is that common-law norms are presumed to have governed since the beginning of English legal memory in 1189. That answer is strained, even in England. In the United States, it makes no sense. No American legal custom runs to 1189. The English validity test simply cannot be satisfied here. This doesn’t pose a difficulty at state level, where statutory and other modes of reception supply an alternative, positivist foundation for the common law. The difficulty is federal. Erie Railroad v. Tompkins held that federal courts cannot discover a body of general law and use it to displace state law. General-law revivalists challenge Erie’s premises. This article argues that the challenge underestimates the difficulty. Absent federal-legislative or constitutional adoption, there can be no valid common law as a category of substantive general law, because the test that makes common law authoritative as customary law cannot be met on American soil. Rather than discover common-law rules, federal courts, this article contends, do something significantly different: they extract underlying principles from the common-law tradition and fashion new rules from those principles. That is judicial lawmaking, but lawmaking from principle, not from nothing. Attentiveness to this distinction matters more than ever now that general law is back on the agenda.

Download the article from SSRN at the link.

2027 Law and Society Meeting: Submissions Now Open

2026-09-10T12:02:44.977-04:00

From the Law and Society Association:

2027 Global Meeting on Law and Society: Submissions Now Open!

SUBMISSIONS ARE NOW OPEN for the 2027 Global Meeting on Law and Society in Hong Kong from June 22 to 26, 2027!

The main conference programming will take place in-person Tuesday, June 22 through Friday, June 25. All participants scheduled for those days must be present at The University of Hong Kong.

The last day of programming, Saturday, June 26, will be entirely virtual. Participants and registrants on that day will be able to join from anywhere in the world.

We encourage all sociolegal scholars to consider submitting an individual paper or a session proposal. You will need to select whether you intend to present in person or virtually.

Interested in proposing a session with a creative format? Consult with the LSA Executive Office (melissa.king@lawandsociety.org) before submitting!

Deadline: October 27, 2027 (12pm ET)

For submission instructions and general meeting information, visit our Hong Kong 2027 homepage:

Hong Kong 2027 Annual Meeting Information >>

Ready to apply? Click below to get started!

Submission Portal (LSA Login Required) >>

LSA 2027 Theme:

Law in Motion: Reimagining Mobility, Boundaries, and Belonging

Penny Andrews, Sida Liu, and Lynette Chua

Program Chairs, 2027 Global Meeting on Law and Society

We live in a paradoxical era. On the one hand, the world has become unprecedentedly mobile. Capital, data, goods, and ideas flow across the globe with increasing velocity, while human beings are on the move as never before—as tourists, students, laborers, digital nomads, and, most urgently, as refugees and asylum seekers displaced by conflict, climate change, and economic precarity.

On the other hand, this hyper-mobility encounters an equally powerful counterforce: the hardening of boundaries. Around the world, wall-building has resurged, border surveillance has expanded, and complex legal architectures have proliferated to filter, channel, and restrict movement. In this struggle, law occupies a central position, often invisibly. It draws the lines, creates the categories, and ultimately determines who can move, where they can go, and on what terms.

The conference theme, Law in Motion: Reimagining Mobility, Boundaries, and Belonging, directly confronts this tension. Emblematic of law and society scholarship, the conference urges researchers to examine law as a dynamic force that is both constituted by and constitutive of movement and to question the concepts that underpin our legal world. What constitutes a “boundary” in the 21st century, when digital borders and biometric databases are as formidable as physical walls? How is “mobility” itself stratified, creating hierarchies of travelers and migrants? And how does law construct “belonging”—not just through formal citizenship, but in the interstitial spaces of temporary visas, precarious statuses, and transnational communities?

We invite scholars from law, sociology, anthropology, political science, geography, history, and beyond to investigate the intricate interplays among official law, social norms, and the mobile human experience. At the same time, we welcome submissions that do not speak to the conference theme but nevertheless forge interdisciplinary dialogues about law from all corners of the world. We look forward to welcoming you to Hong Kong!

Submission Portal (LSA Login Required) >>

STAY CONNECTED!

There are numerous ways to stay connected with the Law and Society Association. Follow the LSA on Twitter @law_soc, on Bluesky @lawandsociety.bsky.social, on LinkedIn, on Facebook, and on YouTube.

2027 Globa2027 Glo20bal Meeting on Law and Society: Submissions Now Open!l Meeting on Law and Society: Submissions Now Open!

2027 Global Meeting on Law and Society: Submissions Now Open!

Perez on The 14th Amendment from Homer Plessy to Kilmar Abrego Garcia: Citizenship and Due Process in America's Constitutional Evolution

2026-09-09T12:07:53.756-04:00

Lynette Perez, CIty of Little Rock, has published The 14th Amendment From Homer Plessy To Kilmar Abrego Garcia: Citizenship And Due Process In America’s Constitutional Evolution at 59 Creighton Law Review 201 (2026). Here is the abstract.

This Article examines the constitutional evolution of 14th Amendment citizenship and due process protections through the historical lens spanning from Plessy v. Ferguson to the contemporary case of Noem v. Abrego Garcia. While separated by more than a century, these cases illuminate persistent tensions between individual constitutional rights and executive power, revealing how citizenship status and due process protections remain contested terrain in American constitutional law. This Article argues the modern challenges to citizenship and due process rights echo the same fundamental questions that plagued the Reconstruction Era: Who deserves constitutional protections, and what limits exist on government power to deny such protections? By tracing this constitutional arc, this Article demonstrates that contemporary immigration and citizenship disputes represent not aberrations but continuations of America’s ongoing struggle to fulfill the 14th Amendment’s egalitarian promise.

Download the article from SSRN at the link.

Some Labor Law Themed Films and TV Episodes for Labor Day 2026

2026-09-07T15:50:15.206-04:00

A few U. S. labor law themed films and tv for Labor Day, 2026.

American Dream (1990).

At the River I Stand (1993).

Boxcar Bertha (1972).

Bread and Roses (2000).

F.I.S.T. (1978).

Harlan County, USA (1976).

Hoffa (1992).

Made in Dageham (2010).

Matewan (1987).

The Molly Maguires (1970).

Native Land (1942). Narrated by Paul Robeson, lawyer and actor.

Newsies (1992).

9 to 5 (1980).

Norma Rae (1979).

North Country (2005).

On the Waterfront (1954).

The Pajama Game (1957).

Salt of the Earth (1954).

Silkwood (1983).

10,000 Black Men Named George (2002).

The Triangle Factory Fire Scandal (1979).

With Babies and Banners (1979).

Television shows and episodes

The Office (2005-2014). This series is centered on the workplace. Many labor/employment law issues.

Roseanne, "Let's Call It Quits" (1989). Fred Thompson (lawyer and Senator from Kentucky) plays the condescending and overbearing manager. Many of Roseanne's first season episodes had to do with working conditions at the Wellman plant.

The Simpsons, "Last Exit to Springfield" (1993).

The Sopranos, "Do Not Resuscitate " (2000).

There are so, so many more! Search for "labor films" and "tv shows labor law episodes" (without the quotation marks) in your preferred search engine.

Jacob on Roll of Law, Part One: The Story Behind the Game

2026-09-07T15:20:47.990-04:00

Gregory Jacob, Regent University School of Law, has published Roll of Law, Part One: The Story behind the Game at 29 GREEN BAG 2D 225 (2026). Here is the abstract.

This article details how the rule-of-law themed games "DOGE vs. ICE" and "Let's Kill All the Lawyers" were created, and how the games were specifically designed to provoke thought about the operation of the rule of law in an accessible way.

Download the article from SSRN at the link.

New Publication Forthcoming: World Law and Literature (Marco Wan, ed., Routledge, 2027)

2026-09-02T11:29:01.343-04:00

Publication soon:

World Literature and Law (Marco Wan, ed., Routledge, 2027).

From the publisher's website:

The study of law and literature has become global, and now encompasses legal traditions and literary histories from across Africa, Asia, Europe, Latin America, and the Middle East. Paradigms such as international law and literature, postcolonialism, and the Global South have further added to the richness of the field. As law and literature takes root in different regions, and as its intellectual and geographical terrain expands, there is a need to re-examine its foundational assumptions, theoretical paradigms, and interpretative praxes. What can we learn from established practices, and what new conceptual frameworks should we develop, to engage with the world’s increasingly diverse jurisprudences, literatures, and cultures? What, in short, might the study of world literature and law look like?
This collection maps the global turn in law and literature, foregrounds under-represented regions, and charts new directions for the twenty-first century. Featuring case studies from Argentina, China, India, Nigeria, and South Africa among others, contributors revisit jurisprudence and aesthetics; trace colonial genealogies of policing and borders; interrogate sexuality, gender and reproduction; and stage conversations between legal reasoning, narrative form and visual culture. Synthesising comparative, postcolonial and international perspectives, the volume surfaces fresh conceptual tools and agendas for research and teaching.
This book will be essential reading for scholars and students of law, literature, comparative literature, legal theory, socio-legal studies and postcolonial studies. The essays in this collection were first published in various issues of Law & Literature.

Walker on "Not a Particle of Choctaw Blood": Samuel Caldwell's Four Citizenship Trials, 1896-1904

2026-09-02T11:25:21.670-04:00

Lance Walker, Walker Law; University of Oklahoma College of Law, has published "Not a Particle of Choctaw Blood": Samuel Caldwell's Four Citizenship Trials, 1896-1904. Here is the abstract.

This Article recovers a case that has not been examined in the scholarly literature since the tribunal that decided it closed its doors in 1904: Samuel C. Caldwell, et al. v. Choctaw and Chickasaw Nations, No. 44. Drawing on a previously unexamined 186-page case file held in the Melven Cornish Collection at the University of Oklahoma, the Article follows Samuel Caldwell’s Choctaw citizenship claim through all four of its lives — before the Dawes Commission in 1896, before the United States Court for the Central District of the Indian Territory in 1897 (first on a special master’s favorable report, then on a wholly reversed record after the Choctaw Nation alleged the suppression of a key witness’s testimony), and finally before the Choctaw and Chickasaw Citizenship Court in 1903–1904, a short-lived federal tribunal created by the Supplemental Agreement of 1902 to adjudicate exactly this kind of dispute. The case file offers an unusually granular look at how citizenship was actually litigated during the allotment era: competing and shifting ancestry claims within a single family, testimony estimating blood quantum by appearance alone, and a disputed marriage certificate with an allegedly forged notarial seal. Caldwell himself filed for Choctaw citizenship in 1896 and Mississippi Choctaw citizenship in 1901, even as testimony elsewhere in the record described him asserting Cherokee ancestry and a rival branch of his wife’s family pursuing a separate, never-completed Cherokee claim of its own. The Article situates Caldwell’s case within the broader institutional history of the Citizenship Court’s unusual two-track jurisdiction — original jurisdiction over the tribes’ own representative suits, and appellate jurisdiction over individual claimants’ appeals — and within the vocabulary the Nations themselves used for claimants like Caldwell: not citizens, but “court citizens,” people whose standing rested on a tribunal’s say-so rather than the Nation’s own recognition.

Download the article from SSRN at the link.

Moller on The Radical Whig Origins of the Horizontal Necessary and Proper Clause

2026-08-31T14:45:58.539-04:00

Mark Moller, DePaul University College of Law, is publishing The Radical Whig Origins of the Horizontal Necessary and Proper Clause in volume 72 of the Villanova Law Review. Here is the abstract.

Congress makes laws necessary and proper to carry the powers of the executive and judiciary into execution—so says the “horizontal” Necessary and Proper Clause. Does this make Congress a mere servant to the other branches, one that helps them, from time to time, in the exercise of their own independent powers? Or does it make Congress the ultimate judge of how far those powers extend? Fifty years ago, William Van Alstyne argued for the latter, more robust reading, but his historical support was thin, and today his work is largely forgotten. This Article uncovers overlooked historical evidence for Van Alstyne's forgotten reading in the writings of two jurists who influenced the framing generation: the seventeenth-century parliamentarian Henry Parker, whose arguments seeded a century of Whig constitutionalism, and the eighteenth-century Whig lawyer Roger Acherley, author of one of the more influential works of colonial-era constitutional theory. Both wrote in response to the infamous Ship Money Case. There, the crown had claimed its prerogative power to defend the nation travelled with unreviewable “incidental” powers, or powers “necessary” to the prerogative’s “execution.” In writings separated by a century, Parker and Acherley countered that Parliament must define and authorize royal incidental powers. Their ideas circulated widely in the colonies and shaped major framing-era thinkers. This Whig tradition on incidental powers has striking parallels with Van Alstyne's checks-and-balances reading of the Clause. At a minimum, recovering that tradition ought to restore his reading as an important candidate for originalist construction. The Article closes by considering how this might inform debates ranging from the tariff challenge in Learning Resources v. Trump to criticism of the Presidential Records Act.

Download the article from SSRN at the link.

Submissions Deadline for Law and Literature in International Economic Law Now September 17, 2026

2026-08-31T10:33:10.755-04:00

From Rachel Benharrousse, Postdoctoral Fellow, Department of Public Law and Governance, Tilburg Law School

We are pleased to announce that the submission deadline for our roundtable on Law and Literature in International Economic Law has been extended to 17 September. We warmly invite scholars working at the intersection of law, literature, and the humanities to submit an abstract.

This roundtable is part of two connected events taking place at Tilburg Law School this November:

5 November Roundtable: Law and Literature in International Economic Law
This roundtable offers a space to experiment with literary methodologies in trade, investment, migration, and business and human rights. We welcome contributions that move beyond conventional legal analysis to explore what discourse, metaphor, and narrative can reveal about the injustices embedded in global economic frameworks. We are particularly interested in work that treats literary and narrative methods not as illustrative add-ons, but as genuine tools of legal and critical inquiry.

6 November Law & Literature Consortium Seminar
This seminar is a collegial and non-hierarchical gathering of scholars from Dutch and Belgian universities, offering a low-stakes setting to share work that is still evolving and open to challenge. Early-career researchers are especially encouraged to participate.

Key dates and submission details:

· Roundtable abstracts (max. 400 words): due 17 September (extended deadline)

· Consortium abstracts: due 1 October, reviewed on a rolling basis

· Submissions for both events: lawandlit@tilburguniversity.edu

Limited travel funding is available for participants, and childcare or other facilitations can be arranged upon request; please do not let logistical concerns discourage you from applying.

The full calls for papers, including further details on themes and format, are available here.

Tan on Metaverse Realities: Governance, Virtual Property and Legal Ordering in Emerging Virtual Worlds

2026-08-28T16:40:56.956-04:00

Albert Tan, University of Groningen Faculty of Law, has published Metaverse Realities: Governance, Virtual Property and Legal Ordering in Emerging Virtual Worlds. Here is the abstract.

Facebook's adoption of Meta has moved the metaverse from specialist discussion into mainstream legal debate. Yet the term still describes a loose family of virtual environments rather than a settled juridical object. Some worlds depend on conventional platform infrastructure; others place selected assets or governance functions on public blockchains. This article argues that legal analysis should begin with the institutional architecture through which a virtual world is operated. It develops the idea of a governance stack to identify the contractual rules, software systems, token arrangements, decision-making bodies and public law that together determine a participant's position. The analysis then turns to virtual property, non-fungible tokens, intellectual property, immersive data and cross-border remedies. Decentraland, The Sandbox, Cryptovoxels and Horizon Worlds show that claims of decentralisation can conceal very different allocations of power. The legal task is therefore to identify what the user actually acquires, who can alter that position, and which body of law supplies an enforceable remedy.

Download the essay from SSRN at the link.

Priel on Bentham's Children: Intellectual Lineage in Jurisprudence

2026-08-26T11:06:34.913-04:00

Dan Priel, City University of Hong Kong; Osgoode Hall Law School, has published Bentham's Children: Intellectual Lineages in Jurisprudence. Here is the abstract.

There is a familiar intellectual line that starts with Jeremy Bentham and ends with contemporary legal positivism. But Bentham also has a good claim to being a founding figure of two other jurisprudential traditions, naturalistic jurisprudence (and within it, law and economics) and realist-critical jurisprudence. This may seem surprising as these three approaches are often seen as antagonistic. At the same time, this may suggest a possible way to reconciling these approaches: if Bentham could be analytic, naturalistic, and critical at the same time, why can't we? In turn, this may suggest that the opposition between these different approaches could be explained away as the result of superficial differences or misunderstandings, and as such as path to reconciliation between these intellectual traditions. Unfortunately, I argue that the source of disagreement is different. It has to do with something that critical jurisprudents got right, and that most analytical jurisprudents got wrong: jurisprudence is political. I argue that at the foundation of analytic jurisprudence has been a commitment to political liberalism, a political stance that most proponents of critical jurisprudents have rejected. If I am right, reconciling the jurisprudential approaches will prove as easy as resolving this political divide.

Download the article from SSRN at the link.

Galanis on Roger Williams and Religious Liberty: Conscience, Civil Jurisdiction and the Constitutional Separation of Church and State

2026-08-26T10:31:05.236-04:00

Panagiotis Galanis, National Kapodistrian University of Athens, has published Roger Williams and Religious Liberty: Conscience, Civil Jurisdiction and the Constitutional Separation of Church and State. Here is the abstract.

Roger Williams occupies an exceptional position in the constitutional genealogy of religious liberty. His defence of liberty of conscience was neither a limited plea for indulgence toward dissenters nor a simple extension of toleration within an established confessional order. It rested on a more radical proposition: civil government and religious authority possess different ends, different instruments and different jurisdictions. Because faith cannot be produced by coercion, and because the civil magistrate is entrusted with the preservation of civil peace rather than the salvation of souls, governmental force cannot legitimately be used to impose religious uniformity. Williams therefore developed an argument that joined theological premises to a recognisably constitutional theory of limited public power. This study examines Williams as a legal and constitutional thinker. It places The Bloudy Tenent of Persecution for Cause of Conscience of 1644 within the political and religious conflicts of seventeenth-century England and New England; analyses his distinction between civil and spiritual jurisdiction; reconstructs his conception of liberty of conscience; and assesses the institutional experiment of Providence and Rhode Island. Particular attention is given to the 1663 Rhode Island Royal Charter and to the later American constitutional tradition. The study also considers the relationship between Williams, John Locke and subsequent First Amendment doctrine. The central argument is that Williams contributed something conceptually distinct to the history of religious freedom: not merely toleration by a dominant authority, but a jurisdictional separation designed simultaneously to protect conscience from government and religion from political corruption.

Download the essay from SSRN at the link.

Curran on Disentangling the U.S. Declaration of Independence and the French Declaration of the Rights of Man and Citizen

2026-08-24T11:32:32.940-04:00

Vivian Grosswald Curran, University of Pittsburgh School of Law, has published Disentangling the U.S. Declaration of Independence and the French Declaration of the Rights of Man and Citizen. It is forthcoming in the Duke Journal of Comparative & International Law. Here is the abstract.

The American Declaration of Independence and Revolution are linked to the French Declaration of the Rights of Man and Citizen and its Revolution through the mutual, strong influences of the Enlightenment philosophes whom both the American Founding Fathers and the French revolutionaries read. They also were linked through acquaintance and ongoing communication, with the American Declaration serving as a model for the first, but not final, draft of the French one. Both Declarations and Revolutions were to follow divergent paths through time, however, a cause for great concern in nineteenth-century France when intellectuals such as Laboulaye, Tocqueville and Taine, fearful for France’s future in yet another new régime, looked to America’s foundational documents and governmental system to uncover the secrets of America’s stability and of France’s failure to safeguard the principles of 1789. This article proposes that the answers were far less to be found in the U.S. documents or bicameral legislative structure than in a comparative, contextual examination of the two societies, their populations and their political histories. Those were the differences which led France to sink into a Reign of Terror within a few years of its Revolution and to proceed to seesaw among various forms of government thereafter, while the United States was able to enjoy a single Constitution and general political stability. The aims of each Revolution differed, as did the consequences of those differences, including how each nation perceived and dealt with freedom of religion, the abolition of slavery and the struggle for women’s equality. In France, the Revolution was intended to achieve a total rupture with the past, but France unwittingly fell prey to its past, as the absolutist tradition of the monarchy permeated its ranks in new ways, transforming egalitarianism into repression. In America, the colonists’ chief complaint had been their lack of representation in the British Parliament, not a wish to change a constitutional form of government which allowed for freedom of representation and had a king who bowed to the will of Parliament. After the American Revolution, the French looked to the new country overseas, often both idealizing and distorting it, with a view to how it could be a model for a new France. The two nations had a common point of departure in the literature of the philosophes which had deeply inspired and captured the imagination of the American Founding Fathers and the French revolutionary thinkers alike. Even a written text, however, is interpretive, such that the texts themselves were a function of what they meant to their readers. Some have thought that the Founding Fathers understood Montesquieu’s intentions better than the French. This article hopes to illuminate twists and turns from a shared point of departure, and to address ongoing debates concerning their nature.

Download the article from SSRN at the link.

Galanis on Religion and Nature in the Enlightenment

2026-08-20T16:05:18.721-04:00

Panagiotis Galanis, National Kapodistrian University of Athens, has published Religion and Nature in the Enlightenment. Here is the abstract.

The Enlightenment transformed the relationship between religion, nature and law. Nature ceased to function solely as an object of theological explanation and increasingly became a normative vocabulary through which political authority, rights and religious belief could be assessed. The appeal to nature took several distinct forms. Natural law provided a standard superior to positive command; natural rights located fundamental entitlements in the person prior to the state; natural religion sought religious truth accessible to reason independently of ecclesiastical revelation; and the scientific image of an ordered universe encouraged the idea that public reason could distinguish civil interests from theological claims. This study examines the legal significance of that transformation. It argues that the Enlightenment did not simply replace religion with secularism. Rather, it reorganised the relation among religion, nature and political authority. Locke used natural rights and limited government to restrict the magistrate's religious competence. Spinoza naturalised biblical interpretation and defended the freedom to philosophise. Voltaire connected natural reason with toleration and criticism of confessional persecution. Rousseau converted religion into a constitutional problem through the category of civil religion. Hume destabilised rational proofs of natural theology and thereby weakened claims to public coercion based upon metaphysical certainty. Kant relocated religion within the limits of reason and moral autonomy. These intellectual movements contributed to a legal transition from confessional government to constitutional freedom of conscience. The study further considers the constitutional crystallisation of this transition in the American Declaration of Independence of 1776, with its reference to the Laws of Nature and of Nature's God, and in the French Declaration of the Rights of Man and of the Citizen of 1789, which proclaims natural and inalienable rights while expressly protecting religious opinions. It concludes by analysing the continuing relevance of the Enlightenment synthesis for contemporary freedom of thought, conscience and religion under international and European human-rights law.

Download the article from SSRN at the link.

Croucher on The Murder at Agnes Banks

2026-08-19T11:37:35.904-04:00

John Croucher, Macquarie University, has published The Murder at Agnes Banks: Unravelling Truth, Lies, and 19th Century Justice.

The setting for a murder that took place in the early days of the New South Wales penal colony in Australia was the regional town of Agnes Banks. Beginning with an outline of the transported convicts William Williams from England in 1798 and Julia Leahy from Ireland, the paper follows the life of their daughter, Mary Ann, who married the unrelated Robert Williams in 1840, who had the distinction of having all four grandparents as convicts. Some forty years later, in 1881, the now mentally challenged Robert was charged with murdering a neighbour, William Freeman, and was committed to an insane asylum where he remained for the rest of his life. The research reflected in this paper shows that there were numerous flaws in the prosecution's case, which was treated as open and shut. Robert had pleaded not guilty, and there was every chance he was correct. This paper examines the lead-up to the trial and the questions that should have been asked to avoid a possible miscarriage of justice.

Download the essay from SSRN at the link.

Miller on Coda: The Framers, the British East India Company, and Guaranteeing a Republican Form of Government

2026-08-19T11:14:47.819-04:00

Paul S. Miller, Loyola University School of Law, has published Coda: The Framers, the British East India Company, and Guaranteeing a Republican Form of Government. Here is the abstract.

The article takes as its starting point the debate between Justices Scalia and Stevens in their respective Citizens United opinions. The subject of that debate was colonial and post-revolutionary society, and thereby the Framers’, opinion about corporations. Scalia wrote his concurrence in response to the portion of Justice Stevens’ dissent that argued the Framer’s did not trust corporations. A problem, for a historian, of Scalia’s and Stevens’ opinions is that they did not cite any statement by the Framers of the Constitution. All instead relying on the opinions of historians. Neither Justices provided any document actually written by the Framers in support of their position. Were this testimony in a trial, such would amount to hearsay. Such hearsay would be necessary if such statements were lost to antiquity. But those statements DO exist. The National Archives has collected a vast repository of the writings of many of the Founders, including those at the Constitutional Convention. And since 2009, those writings have been entered into a vast database: Founders Online. So I decided to research those writings for mentions of the British East India Company and then report what was said in a tidy little article. The hypothesis guiding my research is that leading figures of the convention 1) knew about corporations; 2) considered corporations a threat to republican government and its underlying philosophy of popular sovereignty; and therefore 3) wrote the guarantee clause in broad language so the federal government might address any threat to a republican form of government, including corporations. Based on the above, I argue that the Guarantee Clause grants Congress and, indirectly, state legislatures independent authority to regulate corporations’ participation in elections through political donations. This does not mean that campaign finance regulation should be shielded from by the political question doctrine central to Guarantee Clause jurisprudence: courts should continue to reach the merits of any First Amendment issues. But in deciding those issues, courts should take into account the Framers’ concerns and purposes for the Guarantee Clause in reaching and justifying a decision.

Dowload the article from SSRN at the link.

American Journal of Legal History: Call for Proposals for 2027 Special Issues

2026-08-18T11:54:25.767-04:00

From the American Journal of Legal History:

Special Issues: Call for Proposals for 2027
The American Journal of Legal History is a well-established, quarterly publication covering all facets and periods of legal history. We are now accepting Special Issue proposals for 2027.
Deadline: November 30th, 2026
A Special Issue is a peer-reviewed collection of articles centred on a specific theme. Ideally, the theme should focus on a new or distinctive area of inquiry that has not been sufficiently explored in previous AJLH work, holds broad relevance, and aligns with the Journal's aims and scope. This provides an opportunity to collectively explore a new topic, potentially developing insightful new lines of research and practice through interdisciplinary dialogue.

More information here.

LCH Conference Set For May 27-28, 2027

2026-08-17T15:11:02.051-04:00

From the Association for the Study of Law, Culture, and the Humanities:

2027 Annual LCH Conference to be held at University of California, Berkeley

We are excited to announce that our Twenty-Ninth Annual Conference will take place at the University of California, Berkeley in Berkeley, California from May 27-28, 2027. Our annual Graduate Student Workshop will be held the day before the conference on May 26, 2027. Please check back soon for more information about next year's meeting, including our call for papers!

Best regards,

The LCH Team

Neacsu and Callister on From Myers to Slaughter: A Brief Theory of the Constitutionalization of Secondary Sources

2026-08-13T22:10:19.908-04:00

Dana Neacsu, Columbia University; Barnard College, and Paul D. Callister, University of Missouri, Kansas City, School of Law, have published From From Myers to Slaughter: A Brief Theory of the Constitutionalization of Secondary Sources. Here is the abstract.

For more than two centuries, American constitutional adjudication has relied upon secondary sources. Yet constitutional theory has almost entirely ignored them. Originalism debates constitutional text. Living constitutionalism debates constitutional evolution. Theories of precedent debate judicial authority. None asks a more fundamental question: What role do secondary sources play in constitutional adjudication? This Article argues that the answer has fundamentally changed in the last 100 of years. Chief Justice William Howard Taft's opinion in Myers v. United States (1926) 1 marked a constitutional revolution by transforming secondary authorities from explanatory materials into evidence of constitutional continuity. Exactly one century later, Chief Justice John Roberts' opinion in Trump v. Slaughter (2026) 2 completed that transformation. Roberts cited secondary authorities 111 times in approximately 10,000 words 3 , employing historians, documentary editions, biographies, constitutional commentators, presidential papers, law review articles, and political writings not merely to illuminate constitutional meaning but to construct it. Secondary sources became constitutional actors.

Download the article from SSRN at the link.

Schroeder on St. George Tucker's Unlimited Common Law

2026-08-13T22:03:28.672-04:00

Joshua J. Schroeder, Independent, has published St. George Tucker's Unlimited Common Law as SchroederLaw Working Paper No. 115, 2026.

This Article contains the one of the most interesting research discoveries made in the process of writing a Tale of Two Americas. St. George Tucker’s unlimited common law is a highlight the American legal community needs to reconsider as we head into more uncharted waters. This topic has application in many areas of the law, including birthright citizenship, common law treason, Alien Enemies Act cases, and immigrant habeas corpus.

Download the article from SSRN at the link.