In this paper, I will adduce a number of important arguments to prove the existence of a nexus between sacrifice and punishment. In order to achieve this objective, I will base my approach on the anthropology of religion, in the sense that I will take sacrifice as the conceptual lens or hermeneutical prism through which to observe and, more importantly, redescribe the history of criminal law from around the later Middle Ages until the fall of the ancien regime. In doing so, ample proof can be unearthed that an unmistakable sacrificial dimension pervades criminal history, at points becoming so tangible that the existence of a phenomenon I propose to call penal sacrifice or sacrificial punishment-ie a punishment that is for a variety of reasons to be situated on the threshold of indifference between sacrifice and punishment-is, at least to my mind, difficult to deny. The strength of my case, now, is to a considerable extent determined by the work of James Whitman. When one is out to trace the family resemblances between sacrifice and punishment, Whitman is remarkably" good to think with"-to use a celebrated Levi-Straussian expression. 2 In fact, some of the most telling structural parallels between criminal law and sacrifice I uncovered were virtually presented to me on a silver platter in Whitman's writings.

Sometimes one sees things clearer from afar. Some years ago, James Q. Whitman published a remarkable article, evocatively titled" Long live the hatred of Roman law!" In it, he traced the long history of animosity towards Roman law in European culture, from the Middle Ages to the Nazis, discussing the various reasons why Roman law has been attacked by opponents ranging from theologians, lawyers and political leaders as being against the Christian faith, as being foreign, capitalistic, against morality and public good. He argues pointedly that the" hatred of Roman law was, in fact, a constant of western history until 1945." 1 What has been most remarkable is the extent in which similar claims, that Roman law promotes greed, unrestrained capitalism or other vices, have circulated throughout its history. In these often nationalistic narratives about law and what should constitute law, Roman law was presented as an alien and immoral monster, which sought to destroy all that is good and proper. According to these stories, Roman law promoted property absolutism that was considered offensive to theologians, political absolutism that was offensive to everyone except the princes, who adored the example of" princeps legibus solutus", and law that was materialistic and individualistic and thus offensive to the common people and their customs, as mainly characterized by nineteenth century Romantic authors in Germany and their Nazi followers. The latest would even codify their hatred of Roman law in point 19 of the Nazi party program (1920), which would call for the eradication of materialistic Roman law.

This essay examines the socioeconomics of status hierarchies: how they respond to external demands, and how, in terms of institutional structure, they make themselves socially usable and durable. It asks whether there are, in some sense, "natural hierarchies"-hierarchies that will almost always emerge in sophisticated societies, regardless of sociopolitical or economic conditions. It highlights adaptability as the central functional feature that makes status rankings durable, and employs this measure to identify two kinds of "natural hierarchies": wealth and seniority. Between the two, the former has drawn the lion's share of political and intellectual attention, but the latter possesses similar functional advantages, and is likely just as pervasive across human societies, historical and modem. Like wealth hierarchies, seniority hierarchies also serve as generally useful proxies for most attributes that societies commonly value, are also relatively easy to use, and avoid direct normative conflict with most sociopolitical value systems even more adeptly than wealth hierarchies do. The term "natural hierarchy" is employed here in a purely descriptive sense, without any normative connotations whatsoever.

As James Whitman has shown in a groundbreaking article in the The Yale Law Journal, subtle changes in the moral-legal treatment of business practices in the early modern Low Countries may be indicative of a wider tendency to lend normative support to the rise of a modern commercial society. Expanding on this insight, this article shows that with regards to the treatment of the problem of" monopolies", a similar such change occurs. In a passage from his influential work On the Law of War and Peace (1625), Hugo Grotius argued that" not all monopolies are against nature", thereby creating space for a more lenient treatment of chartered companies and dominant positions acquired through commercial industry in comparison to the Roman legal tradition and scholastic morality. Moreover, drawing on Max Weber's intuition about the spiritual sources of Western legal culture, this paper argues that a fresh look at Grotius's moral theological sources, especially Leonardus Lessius's On Justice and Law (1621), may provide us an explanation as to the why this subtle shift in his normative assessment of certain monopolistic practices occurred in the first place.

Although he served as an Associate Justice on the United States Supreme Court from 1932-1938, the source of Benjamin Cardozo's preeminence has generally been his contributions to common law jurisprudence and his theories of common law judging. This essay argues that several of Cardozo's unpublished writings suggest he also developed a significant constitutional theory in dialogue with continental-and particularly French-legal thinkers.

In both the United States and France, conceptions of the state and its relationship to civil society are defined in part in antithesis to that of the transatlantic other. The United States has long claimed an exceptionalist history of relying on civil society to promote democratic governance-and individual liberty-in the absence of state authorities. France and its bureaucratic state are taken as representative of the dangers that follow from overly empowering the state-including a sclerotic economy ill-equipped to adjust to change and rigidly uniform notions of cultural identity, hostile to racial and religious difference. Emerging out of the French Revolution, France, in turn, embraced a Jacobin ideal of state/society relations, pursuant to which the state is responsible for ensuring individual equality under the law by preventing the intermediation of any private groups. On this view, it is the state alone that can be trusted to act for the public good. And the United States stands as a powerful example of the ills that follow from enabling private groups to usurp public authority-including the disproportionate empowerment of the wealthy and animosity between different racial and religious groups.

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.

Interstate judgments enforcement is governed by the Full Faith and Credit Clause of Article IV of the Constitution, together with its implementing statute, 28 U.S.C. 1738. Although a highly technical area of the law, interstate judgments enforcement has important social repercussions for some very modern problems of great cultural significance. One of the currently significant applications is the interstate enforcement of judgments rendered in civil suits based on state anti-abortion laws. For example, Texas statute S.B. 8 gives anyone who wishes to sue a civil cause of action against persons who facilitate abortions. Even complete strangers to the abortion can decide to become a plaintiff in such an action and can sue for money “damages” despite having suffered no injury. Non-experts seem to have the impression that the Full Faith and Credit Clause presents an ironclad requirement that judgments of sister states must always be enforced. If that were the case, states that recognize reproductive freedom would be obliged to enforce judgments entered into in states like Texas, despite their strong public policy against such actions. This Article shows why this impression is mistaken. First, the full faith and credit principle has for centuries been subject to exceptions, several of which are potentially relevant in the reproductive freedom context. These include lack of subject matter jurisdiction, the public policy exception, and the penal law exception. In addition, a uniform law adopted in forty-eight states (the Uniform Enforcement of Foreign Judgments Act) permits the state enforcing the judgment to apply its own judgments law to an interstate enforcement proceeding. The enforcing state will therefore apply to foreign state judgments any exceptions to judgments enforcement law that it has as a general matter for its own domestic judgments. Second, and more importantly, the Clause and statute both contain an important qualification: they apply only to “judicial” actions. This exception prevents a state from requiring sister-state enforcement of decisions that do not meet the usual tests for a judicial “case or controversy” (as defined in Article III of the Constitution). Article III and Article IV both use the word “judicial” to specify the standard necessary for the exercise of federal power. These two neighboring constitutional provisions are supported by a common historical origin (they were drafted at the same time and by some of the same people at the constitutional drafting convention) and fulfill comparable functions. If the two constitutional provisions are treated the same, judgments under statutes like Texas S.B. 8 would not be given mandatory force in other states because such cases would not meet the standing requirement imposed by Article III.

Most Americans probably take it for granted that the United States is a collection of territorially defined states. They would be surprised to hear the opinion of certain legal academics-that when deciding which state's law applied, it shouldn't matter where the plaintiff was injured or where the contract was formed, because state boundaries are "arbitrary and fortuitous." But this seems to be the opinion of a number of American Conflict of Laws professors, who have spread this idea to American judges over the last several decades. The time is ripe for the revival of an important concept in American choice of law: territorialism.

Federal court records have been available online for nearly a quarter century, yet they remain frustratingly inaccessible to the public. This is due to two primary barriers: (1) the federal government’s prohibitively high fees to access the records at scale and (2) the unwieldy state of the records themselves, which are mostly text documents scattered across numerous systems. Official datasets produced by the judiciary, as well as third-party data collection efforts, are incomplete, inaccurate, and similarly inaccessible to the public. The result is a de facto data blackout that leaves an entire branch of the federal government shielded from empirical scrutiny. In this Essay, we introduce the SCALES project: a new data-gathering and data-organizing initiative to right this wrong. SCALES is an online platform that we built to assemble federal court records, systematically organize them and extract key information, and—most importantly—make them freely available to the public. The database currently covers all federal cases initiated in 2016 and 2017, and we intend to expand this coverage to all years. This Essay explains the shortcomings of existing systems (such as the federal government’s PACER platform), how we built SCALES to overcome these inadequacies, and how anyone can use SCALES to empirically analyze the operations of the federal courts. We offer a series of exploratory findings to showcase the depth and breadth of the SCALES platform. Our goal is for SCALES to serve as a public resource where practitioners, policymakers, and scholars can conduct empirical legal research and improve the operations of the federal courts. For more information, visit www.scales-okn.org.