Presidential Commission on the Supreme Court of the United States Hearing on "The Court's Role in Our Constitutional System"

SSRN Electronic Journal · 2026-01-01

The Myth of Eternal Return and the Politics of Judicial Review

2025-02-20

"Some people see in all earthly things only a dreary cyclical movement," Heinrich Heine wrote around 1833.1 "In contrast to the fatal and indeed fatalistic view," he added, "there is a brighter view, more closely related to the idea of providence." As Heine described it, from this alternative perspective "all earthly things are maturing towards a beautiful state of perfection ... a higher, godlike condition of the human race, whose moral and political struggles will at last lead to the holiest peace, the purest brotherhood, and the most everlasting happiness." Constitutionalism is an ancient idea, albeit one long associated with the form of regimes in general rather than self-governance under written charters that lay down fundamental law.4 As such, constitutionalism began its life linked to "dreary cyclical" stories of rise and decline, improvement and decadence, splendor and ruin. In doing so, it repurposed archaic thinking from even earlier to descry the direction of constitutional politics. But modern constitutionalism, especially the neo-providentialist form that many Americans have learned to associate with self-governance under a written document, is not the same as the archaic or the ancient. It works with a dualism of fundamental and ordinary law that owes its sources to Christian theology, making it difficult for any Americans to embrace fully the stories of proud ascendancy and inevitable fall in which the archaic imagination and then ancient Greeks and Romans trafficked so long.

The Post-Legitimacy Court

SSRN Electronic Journal · 2025-01-01

The Vietnam War and International Law

SSRN Electronic Journal · 2025-01-01

European Intellectual History after the Global Turn

Cambridge University Press eBooks · 2025-03-06

From One Crisis of Liberalism to Another

SSRN Electronic Journal · 2025-01-01

New perspectives on Judith Shklar

Contemporary Political Theory · 2025-07-23

In my conversations with students, I often end up asking if they have heard of Judith Shklar.Almost none of them have; she is rarely taught in undergraduate philosophy or politics departments, but she becomes known to many of us once we are a little older and wiser.My own PhD supervisor recommended that I read Shklar in the first weeks of my doctorate, and she has continued to shape and challenge my work ever since.Of course, Shklar has not been "ignored" or "forgotten," but she has remained a niche interest.Most know her for her famous essay "The Liberalism of Fear" (1989) in which she argues in favor of a liberalism centered around a summum malum, rather than a positive doctrine of justice or civic virtue.She is certainly not as wellcelebrated as the other great political theorists and philosophers of her time such as Isaiah Berlin, John Rawls, and Michael Walzer, all of whom she considered friends.

Reconstructing Critical Legal Studies

2025-02-20 · 1 citations

It is an increasingly propitious moment to build another radical theory of law, after decades of relative quiescence in law schools since the last such opportunity. This Essay offers a reinterpretation of the legacy of critical theories of law, arguing that they afford useful starting points for any radical approach, rather than merely cautionary tales of how not to proceed. This Essay revisits the critical legal studies movement and imagines its reconstruction. Critical legal studies extended the social theory of law pioneered by legal realism and framed law as a forceful instrument of domination. However, critical legal studies also recognized that such a theory of law is compatible with both functional and interpretative underdeterminacy. Legal order oppresses, and the way it does so is never accidental or random--in other words, law is often determinate enough that it routinely serves oppression. Yet at the same time, law regularly accommodates alternative pathways of control and contestation through processes of interpretation of elusive or vague legal meaning by courts and other institutions. This Essay concludes by showing that the parameters of a radical social theory of law--parameters we should reclaim critical legal studies for helping establish--apply to current or future attempts to build any successor, taking account of critical race theory, feminist legal thought, and most especially the emergent law-and-political economy movement. The law-and-political-economy movement is the most prominent leftist or at least progressive movement in law schools today, but critical legal studies challenges it to better identify its core principles. Had critical legal studies never existed, it would have to be invented today.

The Pseudo-Democratization of American Constitutional Theory in the Twentieth Century

SSRN Electronic Journal · 2025-01-01

T. H. Marshall, the Moral Economy, and Social Rights

2025-02-20

At a crucial juncture in his famous lectures on “Citizenship and Social Class,” English sociologist T. H. Marshall explained that the new social rights he associated with the invention of the twentieth-century welfare state were in fact a blast from the past—a bequest from the moral economy to a later age grappling with political economy run amok. Marshall’s celebrated theory of social rights that followed provides one aperture from which to intervene in a dispute brewing between starkly alternative views of the relevance today of the moral economy tradition he invoked.