<abstract><title style='display:none'>Abstract</title>In this article, I provide a cultural history of some of the critical predicates of corporate personhood. I track the Hobbesian lineage of the corporate form, but also the ways the corporation, ascribed with numinous agency and personhood, has filled the cultural space vacated by our transcendence of anthropomorphic notions of god and Nature.The corporation was created through the consent of the sovereign, and its charter was formulated to reflect not only its uses, but its potential threat, particularly with regard to its concentration of power. Established under the aegis of individual states, the U.S. corporation was initially restricted to specific functions for limited periods. But corporations in many contexts not only have supplanted the Hobbesian state that created them, but displaced the individual person.Corporations have become super-persons and forms of sovereigns themselves, in part by acquiring human rights and “personalities” and tethering them to the corporation’s inhuman attributes. However, corporations don’t just mimic human behaviors; at best simulacra, or imitations of human life, corporations challenge and destabilize the status of personhood, and what it means to be a person.In the process, corporations have amassed not just wealth, but personhood (for example, in perhaps surprising ways, the personhood of African Americans). In many ways, the ever-increasing wealth gap in the United States is actually a personhood gap. The overarching effect of corporate personhood, which operates in tandem with privatization, is to dehumanize people, turning them into things that have no rights. Created to encourage entrepreneurial (or reckless and socially irresponsible) risk-taking and minimize personal liability, the corporation evolved into an entity that dynamically diminishes the personal.The corporation represents a collective, transcendental body that has taken on the role of a deity, and, in U.S. ontology, of nature. The relationships between human and corporate personhood and identity implicate fantasies of the supernal; the superhuman; immortality; and the transcendence of individuality. For these reasons, I treat the corporation not primarily as a commercial enterprise, but as a cultural phantasm, a kind of black hole that draws in more and more cultural phenomena into its orbit. The modern corporation has come to guarantee certain rights at a price, in much the way the Hobbesian state once did. People barter their attributes to corporations; but they are no longer trading liberty for security, but “souls” for identity. As the corporation comes to serve as the de facto guarantor and distributor of culture, it remains amoral at best, and in practice serves as a dominant pathological personality that helps reduce all human endeavor to commercial interest.</abstract>

Bad Company: The Corporate Appropriation of Nature, Divinity, and Personhood in U.S. Culture

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Over the last decade, many death penalty states in the United States have enacted secrecy laws shielding the identity of lethal injection drug suppliers and executioners. Death penalty defense lawyers, legislators, and scholars have examined the constitutionality and efficacy of these laws. However, little attention has been paid to the history of death penalty secrecy and its relationship to existing secrecy statutes. This article analyzes that history and relationship. It describes a surprising pattern of openness and transparency about the identities of executioners and others involved in America's capital punishment process. Current lethal injection secrecy laws break with that pattern and cast a virtually unprecedented shadow over the execution process. This article concludes by assessing the consequences of the recent intensification and expansion of execution secrecy.
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A Dark Shadow: The Intensification and Expansion of Lethal Injection Drug Secrecy

<abstract><title style='display:none'>Abstract</title>The Brazilian Constitution was enacted over 31 years ago, and it pioneered several constitutional changes in Latin America, in line with a transformational project which was to be achieved through the protection of human rights including socioeconomic rights. Three decades of this constitutional experience have highlighted aspects in which the original design has proven to be too ambitious, and not capable of overcoming political blockages as was originally intended. This Article describes the historical context in which the Brazilian Constitution was drafted and enacted, and discusses in general terms the political structure and the fundamental rights that the constitution provides. These baselines allow the reader to understand the current challenges that the Constitution now faces in the task of regulating a social ambience and collective expectations that are substantially different from those of the late 1980s which are synthesized in that same political document. Especial attention is given to judicial control over public policies—a relevant trend in the Brazilian judiciary, which raises much debate concerning its compatibility with the checks and balances principle. As a conclusion, the Article recognizes that the Brazilian Constitution is an institutional success, considering its ability to enable redemocratization, and even to overcome deep political crisis. This should not, however, be enough reason to take its strategy in the human rights field, as a successful one, to be uncritically reproduced in other countries.</abstract>

The Brazilian Constitution: Context, Structure and Current Challenges

<abstract><title style='display:none'>Abstract</title>Criminal justice stakeholders are strongly concerned with disparities in penalty outcomes. Disparities are problematic when they represent unfounded differences in sentences, an abuse of discretion, and/or potential discrimination based on sociodemographic characteristics. The Article presents an original empirical study that explores disparities in sentences at two levels: the individual case level and the regional level. More specifically, the study investigates upward departures in the United States’ federal sentencing system, which constitutes a guidelines-based structure. Upward departures carry unique consequences to individuals and their effects on the system as they lead to lengthier sentences, symbolically represent a dispute with the guidelines advice, and contribute to mass incarceration. Upward departures are discretionary to district courts and thus may lead to disparities in sentencing in which otherwise seemingly like offenders receive dissimilar sentences, in part because of the tendency of their assigned judges to depart upward (or not).The study utilizes a multilevel mixed model to test the effects of a host of explanatory factors on the issuance of upward departures at the case level and whether those same factors are significant at the group level-i.e., district courts-to determine the extent of variation across districts. The explanatory variables tested include legal factors (e.g., final offense level, criminal history, offense type), extralegal characteristics (e.g., gender, race/ethnicity, citizenship), and case-processing variables (e.g., trial penalty, custody status). The results indicate that various legal and nonlegal factors are relevant in individual cases (representing individual differences) and signify that significant variations across district courts exist (confirming regional disparities). Implications of the significant findings for the justice system are explored.</abstract>

Sentencing Disparities

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In 2026, New York City plans to close the VERNON C. BAIN, America’s only currently-operating prison ship. Although prison ships have a long history, both in the United States and elsewhere, surprisingly little has been written about them. Accordingly, this article first provides a detailed overview of prison ships. It then surveys the U.S. case law generated by them.
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Prison Ships

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This article analyzes the specific issue of whether an individual could be tried for treason by a State government if that individual is not a resident or citizen of that State. This issue is analyzed through the prism of the landmark case of John Brown v. Commonwealth of Virginia, a criminal prosecution which occurred in October 1859. Brown, a resident of New York, was convicted of treason against the Commonwealth of Virginia, insurrection, and murder after he attempted to overthrow the institution of slavery by force on October 16–18, 1859. After a prosecution and trial which occurred within a matter of weeks following Brown's crimes, Brown was executed on December 2, 1859. To this day, John Brown's trial and execution remains one of the leading examples of a State government exercising its power to enforce treason law on the State level and to execute an individual for that offense. Of course, the John Brown case had a major impact on American history, including being a significant factor in the presidential election of 1860 and an often-cited spark to the powder keg of tensions between the Northern and Southern States, which would erupt into a raging conflagration between the North and South in the American Civil War a short eighteen months later. However, in the legal realm, the Brown case is one of the leading and best-known examples of a state government exercising its authority to enforce its laws prohibiting treason against the State. The purpose of this article is not to discuss treason laws generally or even all the issues applicable to John Brown's trial in 1859. Rather, this article focuses only on the very specific issue of the culpability of a non-resident/non-citizen for treason against a State government. With the increased array of hostile actions against State governments in recent years, and criminal actors crossing state lines to commit these hostile acts, this article discusses an issue of importance to contemporary society, namely whether an individual can be prosecuted and convicted for treason by a State of which the defendant is not a citizen or resident.
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Abolitionist John Brown's Treason against the Commonwealth of Virginia: A Lesson for State Governments about the Culpability of Non-Residents for Treason against the State

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By express and implied reservation, the Constitution permits states to wage defensive war and take other military action in response to invasion, insurrection, and transnational criminal gangs. This article examines the under-researched area of state war powers and how they interact with federal military and other foreign affairs powers. It also recovers the meaning of the Constitution’s term “invasion” and demonstrates that several judicial decisions have construed that term far too narrowly. The article ends with reflections on justiciability and remedies in state war power cases.
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The Constitution, Invasion, Immigration, and the War Powers of States

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The Constitution’s Origination Clause requires the House of Representatives, the chamber considered closest to the people, to originate all bills for raising revenue. This clause allows Senate amendments to these bills. However, may Senate amendments completely replace House revenue bills with new revenue bills, as occurred with the Affordable Care Act of 2010?
My previous research argued the original public meaning of amendment—how a “reasonable speaker of English” would have understood that word in the founding era—disallows complete substitutes. Historical legal arguments justifying the Senate’s complete substitutes rely on quotes from Thomas Jefferson’s important <italic>Manual of Parliamentary Practice</italic> (1801) saying, for example, “[a] new bill may be ingrafted by way of amendment on the words ‘Be it enacted[.]’” These arguments also cite examples of complete substitutes in Congress from the mid-to-late 1800s, particularly the Senate’s attempted substitute to a House revenue bill in 1872. But no previous research has examined congressional amendment practice during the important post-ratification period of 1789 to 1799 (First through Fifth Congresses), which represents the republic’s first decade and which can be the most suggestive of original meaning.
This article tracks the rise of Congress’ complete substitutes—whether to revenue or other legislation—during the first decade and even until 1805. Throughout the entire period under examination, the Senate made no complete substitutes to House revenue bills. The first actual complete substitute to any legislation occurred to a Senate resolution in 1800 when Jefferson was that chamber’s presiding officer, and this episode obviously occurred after the first decade. There was thus no trace of any accepted, let alone consistent, practice of complete substitution in the earliest Congresses. Accordingly, the post-ratification history of amendment practice confirms the original meaning of amendment and indicates Jefferson’s quotes and the historical legal arguments lack a significant foundation in originalism. Later Senate practice as in 1872 allowing complete substitutes to House revenue bills, which Jefferson surely enabled, disregarded the original meaning of amendment in the Origination Clause. But perhaps—given this article’s findings—this original meaning will return to prominence.
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Rise of Complete Substitutes and Fall of the Origination Clause in the Post-Ratification Era

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Section 3 of the Fourteenth Amendment provides in part that anyone who takes an oath as an officer of the United States to support its Constitution but engages in insurrection may not hold any civil or military office under it until Congress removes the disability by a two-thirds vote of each House. The insurrection of January 6, 2021, and the coming presidential election raise two pressing constitutional questions. For purposes of Section 3, is the President an officer of the United States, and is the Presidency an office under the United States?
This Article makes the case that the President is an officer of, and holds an office under, the United States for those purposes. It contributes to the debate over the provision's reach by setting out the broad case for Section 3's application to Presidents and the Presidency, utilizing text, purpose, legislative history, canons of construction, ordinary usage, and contemporaneous judicial and executive interpretations.
The Article demonstrates public understandings before and after ratification that Section 3 bars eligibility to the Presidency, both in general and for the most important disqualified rebel—Jefferson Davis. It catalogues descriptions of Presidents as officers of the United States from Washington in 1794 to Jefferson, Jackson, Van Buren, Harrison, Polk, Taylor, Fillmore, Buchanan, Lincoln, Johnson, Grant, and Garfield, many of which occurred in the context of the President's election, constitutional position, and role in preventing domestic violence, preserving the Union, and enforcing the law during Reconstruction. Finally, it ties related Reconstruction statutes, legislative history, and contemporaneous judicial and executive interpretations into the broad case that Section 3 bars faithless Presidents from again taking the oath to “preserve, protect and defend the Constitution of the United States” until Congress permits.
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Insurrection, Disqualification, and the Presidency

Transatlantic Justice: Slavery in the Judicial Imagination

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This article is a critical analysis of a fundamental judicial ethic, the appearance of impartiality, an increasingly important public issue that is poorly understood and woefully underexamined in jurisprudence and academic literature. The ethic is pivotal to the determination of judicial disqualification, a/k/a recusal, and the public's fragile trust in the rule of law.
The article explains how a mysterious metaphorical device, the “reasonable observer” (a descendant of the common law's “reasonable man”) has been subjectively applied in a confusing and inconsistent manner in judicial disqualification cases. The unexamined approach has unwittingly undermined the plain text and the mandatory ethical obligation of recusal (i.e., a judge must disqualify when his or her impartiality might reasonably be questioned).
The discussion: (a) analyzes the theoretical underpinnings of the reasonable person-observer analytical tool (“heuristic”); (b) explains how American jurisprudence has glibly transmogrified the appearance-recusal precept; (c) provides a unique and starkly contrasting analytical perspective demonstrating how select common law-based jurisdictions (Australia, Canada, Singapore, South Africa, United Kingdom) have painstakingly examined and applied the widely-recognized norm of appearance-based impartiality; and (d) synthesizes the preceding theoretical and jurisprudential information to support a proposal for a recalibrated metric and a pragmatic, clarifying heuristic. The article concludes with a model provision, in the form of a guiding “commentary,” that summarizes the essential aspects of the appearance of bias precept. The article provides an interpretative approach that attempts to be faithful to the letter and spirit of the foundational judicial ethic.
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Magical Thinking and Appearance-based Recusal

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The state secrets privilege is the most formidable evidentiary privilege available to the United States government. Available only to the executive branch, it is used to protect national security information from disclosure during litigation, and is habitually acquiesced to by courts. Once invoked, the privilege prevents covered material from being put into evidence that touches sensitive matters of national security. It is apparent that this privilege is subject to abuse by the executive branch to shield activities and personnel from judicial scrutiny and legal inquiries for reasons other than to protect national security. The privilege derives from British and Scottish doctrines of Crown Privilege that allow government to withhold evidence from legal proceedings to protect the public interest. The derivation of the state secrets privilege from the tradition of Crown Privilege has never been thoroughly explored. This article traces the influence of Crown Privilege in the development and evolution of the state secrets doctrine in the United States.
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From Crown Privilege to State Secrets<xref ref-type="fn" rid="j_bjals-2023-0010_fn_001">1</xref>

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