Tyler on Originalism in the Supreme Court's 2d Amendment Decisions

Amanda L. Tyler, University of California, Berkeley School of Law, has posted Levels of Generality, the Limits of Originalism, and the Supreme Court's Second Amendment Jurisprudence:

Just how originalist is the Court’s Second Amendment jurisprudence after United States v. Rahimi? This is perhaps one of the biggest questions left in the decision’s wake. As it turns out, the answer is not altogether clear post Rahimi. This is because the case produced some seven separate opinions, many of which—even though they agree as to the bottom line—get there by very different paths. This Article suggests that Rahimi, perhaps more than any other recent decision by the Court, underscores the crucial role that levels of generality in constitutional interpretation play, while illustrating the problems with originalism and how, when faced with a choice between strict adherence to originalism’s core ideals and avoiding deeply undesirable results, many justices—even those who purport to be originalists—will forsake originalism for a far more pragmatic approach to constitutional interpretation. In the end, when the various opinions in Rahimi are dissected, one finds considerable support for the notion that the Justices are “look[ing] for the central purposes of the relevant constitutional provision and tr[ying] to apply it in a vastly different world.” Whatever it is, such an approach is decidedly not originalism.

--Dan Ernst 

Siddiqui's "Islamic Law on Trial"

Sohaira Siddiqui, Georgetown University, has published Islamic Law on Trial: Contesting Colonial Power in British India (University of California Press, 2025):

Prior to the East India Company’s establishment in India in 1661, Islamic law was widely applied by the Mughal Empire. But as the Company’s power grew, it established a court system intended to limit Islamic law. Following the Great Rebellion of 1857, the decentralized Islamic legal system was replaced with a new standardized system. Islamic Law on Trial interrogates the project of juridical colonization and demonstrates that alongside—and despite—the violent displacement of Muslim legal sovereignty, Muslims were able to engage with and even champion Islamic law from inside the colonial judiciary. The outcome of their work was a paradoxical legal terrain that appeared legitimate to both Muslim practitioners and English colonizers. Sohaira Siddiqui challenges long-standing assumptions about Islamic law under British rule, the ways in which colonial power displaced preexisting traditions, and how local Muslim elites navigated the new institutions imposed upon them.

Georgetown University Qatar's notice of the book is here. 

 --Dan Ernst

Berger-Howe Legal History Fellowship

[We have the following announcement.  DRE.]

Harvard Law School invites applications for the Raoul Berger-Mark De Wolfe Howe Legal History Fellowship for the academic year 2026-2027.  Eligible applicants include those who have made substantial progress on their doctoral dissertations or who have recently been awarded a doctoral degree. A first law degree is preferred, but not required.

The purpose of the fellowship, which is awarded annually, is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined, as the fellow seeks to begin an academic career in legal history. There are no limitations as to geographical area or time period.  Previous fellows have gone on to pursue faculty appointments or other fellowships in American universities, primarily on law faculties.

The fellow is expected to spend the majority of their time on their own projects. The fellow will also participate in the Harvard Law School Legal History Workshop, a for-credit semester-long seminar, and assist with occasional other legal history sessions, both under the direction of Harvard faculty affiliated with the Program in Law and History.  The term of the fellowship is July 1 through June 30.  The fellow will be required to be in residence at the law school during the academic year (September through May).

Applicants for the fellowship for 2026-2027 should submit their applications and supporting materials electronically to Professor Bruce H. Mann. 

Each interested applicant should submit: 

• a detailed (five pages maximum) description of a proposed project;
• a writing sample; 
• a comprehensive résumé or curriculum vitae that gives the applicant's educational background, publications, works in progress, and other relevant experience; 
• two academic letters of reference, which may be submitted electronically by the recommenders to Professor Mann at the above email address; and
• copies of official transcripts of all academic work done at the graduate level,  which may be sent electronically or by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138

The deadline for applications is January 15, 2026.  Announcement of the award will be made by February 27, 2026.  The fellow selected will receive a stipend of $60,000.

CLH: Dialogues on Customary Law

 [We have the following announcement.  DRE]

Comparative Legal History: Dialogues on Customary Law.  5 November 2025 – 17:00-18:00hs (CET)

The journal Comparative Legal History is an official academic forum of the European Society for Comparative Legal History. Based in Europe, it welcomes contributions that explore law in different times and jurisdictions from across the globe. Submissions are currently welcome and are being assessed on a rolling basis. 

The journal will host a one-hour public session to discuss customary law in the context of comparative legal history. Editors (past and present) will present exploratory points, and all attendees will be invited to join in a general discussion. 

Customary laws were prevalent in Europe during the Middle Ages. In recent years there has been a resurgence in research projects concerning customary laws, and a number of questions need to be raised. To what extent are customary laws something that still needs to be studied? To what extent customary laws ought to be taught at universities to complement core modules such as family law, the laws of inheritance and property law to frame these topics in their historical context? To what extent is there merit in having journals and monograph series concentrate on comparative customary law? How should studies be undertaken? These, and other questions will be explored during this public session.

The event is free and open to the public, and it will take place via Teams. 

Registration is required by sending an email to clhdialogues@gmail.com.

Novak on Legislation, Regulation, and Administration in the American Revolution

William J. Novak, University of Michigan Law School, has published Legislation, Regulation, and Administration in the American Revolution online and open-access in Law and History Review:

This article continues a long-term investigation into the nature of legislation, regulation, and administration across United States history. In contrast to persistent myths about an original American legal and political inheritance dedicated primarily to private rights, limited government, and laissez-faire economics, this article explores the earliest roots of American public rights, popular lawmaking, and regulatory policymaking. In the very first activities of revolutionary Provincial Congresses and Committees of Safety, this article locates a surprisingly robust template for the future development of American state police power, public provisioning, general-welfare legislation, and socio-economic regulation.

--Dan Ernst

Selma Moidel Smith Student Writing Competition in California Legal History

[We have the following Call for Submissions.  DRE]

The California Supreme Court Historical Society (CSCHS) encourages all students working on
California legal history (NOT just the history of California courts) to apply for [the Selma Moidel Smith Student Writing Competition in California Legal History.  Papers may include elements of digital humanities and may also be co-authored. This is a GREAT WAY to get attention for your hard work!

$5,000 first-place, $2,500 second-place, and $1,000 third-place prizes will be awarded to the best papers on California state or colonial history, broadly considered. Recent winners include a study of the death penalty in California, the evolution of California land law, the desegregation of Stanford Law School, and disability law and the campaign for independent living. as well as a jointly authored paper on Chinese adoption practices and their role in immigration decisions after the Chinese Exclusion Act.

We accept papers of at least 7,500 and not more than 15,000 words, including notes and other explanatory matter. The competition is open to students and recent graduates in history and/or law, provided that they did not have full-time academic employment at the time the paper was written. The paper should also be unpublished; prize winners will likely receive an offer to publish in California Legal History, CSCHS's journal.

Papers may be self-nominated or sent in by a professor or supervisor. To ensure anonymity, the author's name should appear only on a separate cover page, along with the author's mailing address, telephone number, email address, and the name of their school.  

Submissions are due by July 1, 2026 and should be sent to director@cschs.org with the subject line "Smith Prize." The winners will be announced in August 2026, and an award ceremony (likely over Zoom) will be held in August or September. 

For the Prize Committee: Sarah Barringer Gordon, Laura Kalman, Stuart Banner

Defend the National Archives!

 [The Organization of American Historians will host a webinar today on the National Archives.  Here is its announcement.  DRE.]

The future of America’s archives is at stake. Join us at 3pm ET for an open-access webinar on the National Archives and Records Administration (NARA)—the institution that preserves and provides access to the documents that tell our nation’s story.

Panelists will discuss:

• how NARA safeguards democracy through record preservation;
• why the Federal Records Act matters to every citizen;
• the potential impact of proposed budget cuts on access to public information; [and]
• simple, actionable steps anyone—not just historians—can take right now

And here’s why this can’t wait: amid widespread disruptions and layoffs, we don’t truly know who is safeguarding the “history of now.” That uncertainty is exactly why informed, immediate advocacy for NARA is essential.

Secure your spot now to help protect access to America’s past, [here.]

Law and Humanities Workshop for Junior Scholars

[We have the following Call for Participation for the 2026 Law and Humanities Workshop for Junior Scholars.  DRE]

Georgetown University Law Center, Stanford Law School, UCLA School of Law, the University of Pennsylvania, and the University of Southern California Center for Law, History, and Culture invite submissions for the 24th meeting of the Law and Humanities Workshop for Junior Scholars, to be held at the University of Pennsylvania Carey Law School on June 8-9, 2026. 

About the Workshop.  The workshop is open to untenured professors, advanced graduate students, post-doctoral scholars, and independent scholars working in law and the humanities. In addition to drawing from numerous humanistic fields, including Black and Indigenous studies, history, literature, political theory, critical race theory, feminist theory, and philosophy, we welcome critical, qualitative work in the social sciences, including anthropology and sociology. While the scope of the Workshop is broad, we cannot consider proposals that are focused solely on quantitative social science research or that are limited to doctrinal legal research. We are especially interested in submissions touching on themes of inequality, anti-racism and anti-subordination. We welcome submissions from those working at regional and teaching-intensive institutions.

Based on anonymous evaluation by an interdisciplinary selection committee, between six and eight papers will be chosen for presentation at the Workshop, where two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants that may include themes connecting all of the projects, as well as discussion of the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship.

The selected papers may appear in a special issue of the Legal Scholarship Network at SSRN; there is no other publication commitment. (We will accommodate the wishes of chosen authors who prefer not to have their paper posted publicly with us because of publication commitments to other journals.) However, we will only accept Workshop participants whose papers are true works in progress; articles or chapters that are already in page proofs or are otherwise unable to be revised by the time of the Workshop are ineligible.

The Workshop will pay the domestic travel and hotel expenses of authors whose papers are selected for presentation. For authors requiring airline travel from outside the United States, the Workshop will cover such travel expenses up to a maximum of $1250.
Submission Instructions.  Applications should be submitted through the submissions portal on the Law and Humanities Workshop website [here].  Your application should consist of a single Microsoft Word document (not PDF) containing:

• a 1500-2000 word summary of your paper (word count includes footnotes or endnotes);
• a 1-2 page bibliography; and,
• if your paper is a chapter in a book or dissertation, an optional 1-page chapter outline of the larger project.

Applications are due on Monday, December 1, 2025.

If your application advances to the final stage of consideration, you will be asked to submit the full paper by January 15, 2026. Please do not apply if you will not have a full paper on January 15. Your application should be a summary of existing, ongoing work rather than a proposal for new or planned work.
The full paper must be a work-in-progress that does not exceed 10,000 words in length (including footnotes/ endnotes). A dissertation chapter may be submitted, but we strongly suggest that it be edited so as to stand alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible for selection so long as it will not be in galley proofs or in print at the time of the Workshop; it is important that authors still be in a position at the time of the Workshop to consider comments they receive there and to incorporate them as they think appropriate in their revisions.

We ask that those submitting applications be careful to omit or redact any information in the paper summary, bibliography, or chapter outline that might serve to identify them, as we adhere to an anonymous or “blind” selection process.

For more information, please send an email inquiry to Lawandhumanitiesworkshop@gmail.com or visit [here].

Program Committee, 2026 Law and Humanities Workshop for Junior Scholars

Riaz Tejani, Chapman University, Law, Chair
LaToya Baldwin Clark, University of California Los Angeles, Law
Danielle Boaz, University of North Carolina at Charlotte, Africana Studies
David Eng, University of Pennsylvania, English & Asian American Studies
Melynda Price, University of Michigan, Women and Gender Studies
Clyde Spillenger, University of California Los Angeles, Law

The Law and Humanities Workshop for Junior Scholars is committed to anti-racism both inside and outside the academy.

Gaughan on Eras of Campaign Finance Law

Anthony J. Gaughan, Drake University Law School, has posted Cyclical Misalignment: A History of Campaign Finance Law, which is forthcoming in the Ohio State Law Journal:

The role of money in politics poses a thorny challenge to democratic government. In a healthy democracy, individual voters should have an equal influence on election outcomes. But robust political discourse depends on candidates having access to effective means of communication. In the absence of a comprehensive public funding system, candidates must turn to private donors to finance their campaigns. Candidates’ reliance on wealthy supporters creates the risk that the rich will exercise disproportionate influence over public policy. Principles of free speech and democratic equality thus sit uneasily together in privately funded campaign finance systems. The United States is the leading case in point. Since the 1700s, Americans have struggled to strike a balance between access to campaign funds on one hand and democratic accountability and responsiveness on the other.

This article examines the history of American campaign finance law prior to the adoption of the 1974 amendments to the Federal Election Campaign Act. The period from 1619 to 1974 saw the rise and fall of three distinct campaign finance eras characterized by unique laws and practices: the Aristocratic Era (1619-1790s), the Patronage Era (1790s to 1883), and the Nominally Regulated Era (1883 to 1974). 

This article contends that the American campaign finance system has proven exceptionally difficult to align with democratic values. The Aristocratic Era, the Patronage Era, and the Nominally Regulated Era reveal the extent of the alignment challenge. On paper at least, each era’s campaign finance system sought to facilitate representational and policy alignment with democratic values by ensuring that elected officials reflected the will of their constituents. But in each case, the reforms failed to achieve the long-term goals of the reformers. Technological change, partisan manipulation, wealthy special interest groups, and evolving popular and elite preferences inevitably led to misalignment. History thus provides a cautionary note for modern campaign finance reformers. It suggests that aligning campaign finance law may be the hardest alignment challenge of all.    

--Dan Ernst 

Schlegel to Lecture on Legal Education and the Postwar Middle Class

[We have the following announcement.  DRE]

The Fall 2025 James McCormick Mitchell Lecture at the University at Buffalo School of Law

 Friday, November 14, 2025. Lecture at 2:30 p.m. Panel Discussion at  3:30 p.m. Reception at 4:30 p.m.  Charles B. Sears Law Library, John Lord O’Brian Hall, UB (North Campus)

“Reflections on Legal Education and the Post-War Middle Class,” by John Henry Schlegel

The history of American legal education, the one that “everybody knows,” begins with Christopher Columbus Langdell, the first Dean of the Harvard Law School, who discovered, not a continent, but case law, the large class, and the cold call and used them to wrestle legal education from practicing lawyers who apparently didn’t understand what they did every day. Thereafter, Legal Realism moved the focus of the classroom from what the case law was to what it should be, and their grandchildren attended to matters of ethnicity, race and gender. Matters of social class, while not verboten, are seldom adverted to in this story. Reflections on Legal Education and the Post-War Middle Class attempts to repair this historical absence by inserting aspects of class into the story both generally and more specifically in explaining behavior by contemporary law students that their professors complain about while they teach as if without students.

Join us as we celebrate Prof. Schlegel on his 50+ years of distinguished teaching and scholarship at a reception to follow the lecture.  Free and open to the public. Registration is required.  Prof. John Henry Schlegel is a UB Distinguished Professor and Floyd H. & Hilda L. Hurst Faculty Scholar at the University at Buffalo School of Law. He joined the UB Law faculty in 1973, teaching for more than five decades primarily in the areas of corporate and commercial law and regional economic development.

A legal historian, his scholarship has focused on the history of legal education and the evolution of American Legal Realism in the 1920s and 30s. He is the author of numerous books and articles, including, most recently, While Waiting for Rain: Community, Economy and Law in a Time of Change (University of Michigan Press, 2022).

Weekend Roundup

• 
  John W. Cairns, professor of Civil Law at the University of Edinburgh, will deliver this year’s Eason-Weinmann Lecture on International and Comparative Law at Tulane Law School on November 20, 2025, at 5 p.m. in the Wendell H. Gauthier Moot Court Room 110.  Professor Cairns’s lecture, "The Civil Code of the State of Louisiana: Context and Contents," will kick off a conference on the bicentennial of the Louisiana Civil Code.  

• Caleb Nelson, UVA Law, asks, Must Administrative Officers Serve at the President’s Pleasure?" and makes an originalist case for why the answer is no.
  

• A notice and recording of Richard Primus's discussion with Noah Feldman of Professor Primus's book, The Oldest Constitutional Question, at HLS on September 25 (Harvard Law Today). 

• UVA Law's notice of G. Edward White's Robert H. Jackson: A Life in Judgment (Oxford University Press). 

• Over at Nursing Clio: David Korostyshevsky on The Strange Case of Henrietta Wiley: A Habitual Drunkard’s Journey Through Guardianship and the Asylum (h/t: HNN).

• "Jamie Raskin (D-MD), former Federal Judge Michael Luttig, and Baltimore University Law Professor Kimberly Wehle discuss the history of the U.S. Constitution at an event hosted by George Washington's Mount Vernon" (C-SPAN).  

• My Georgetown Law colleague John Mikhail lectured on anti-slavery and the Constitution on September 17 as part of Ithaca College’s observance of Constitution Day (Ithacan).  DRE. 

• Last month, Nancy Cott, Harvard University, spoke on “Doctors, Lawyers, and Feminists on the Road to Roe v. Wade" at Vanderbilt Law (Vanderbilt)

• Kurt Lash discusses constitutional debates over slavery before the Civil War (NCC). 

• One of the Drinan Visiting Professors are at the Boston College Law School is Rebecca Horwitz-Willis, a recipient of the Kathryn T. Preyer Award from the American Society of Legal History (BC Law).

• In the series "Made by History" in Time Magazine: Samantha Barbas says that History Explains Why the U.S. Doesn’t Ban Hate Speech.  Bob Crawford on John Qunicy Adams and the "the Gag Rule." 

• 
  
  The Organization of American Historians is sponsoring two webinars on immigration in October.  The first, on denaturalization, will take place at 6pm ET on October 14.  Register here.  The second, on U.S. deportation policies from the Alien Friends Act of 1798 to today, will take place at 6pm ET on October 30.  Register here.  Both webinars are co-sponsored by the Immigration and Ethnic History Society.   

• The October 2025 issue of the newsletter of the Historical Society of the DC Circuit is now available.  

• We ought to have noticed sooner Time Immemorial, the podcast of the Osgoode Hall Society for Canadian Legal History. 

• ICYMI: (Before the government shutdown), visitors to the National Archives react to seeing the entire Constitution (WaPo).  Jillian Foley on America’s Privacy Policy (HNN).  Douglas M. Charles, Penn State, on history repeating itself at the FBI (The Conversation).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Treanor and Uelman on Religious Freedom, Jesuit Mission, and DEI

William Michael Treanor and Amy Uelmen, Georgetown University Law Center, have posted Religious Freedom, Jesuit Mission, and DEI, which is forthcoming in a special issue of the Jesuit Educational Quarterly entitled "Legal Education and the Society of Jesus."

The ability of Jesuit educational institutions to pursue a central part of their mission that of fostering diverse, equitable and inclusive educational environments is under attack. This essay outlines several dimensions of their religiously-grounded mission and the reasons to strongly protect from government interference the rights of Jesuit universities to implement programs and practices that align with DEI values. First, for Jesuit universities, these programs and practices are rooted in a much deeper culture of the more than 2,000-year old Catholic intellectual tradition and the now 500-year old tradition of Jesuit spirituality. Second, drawing on the classic work of Alexis de Tocqueville, Democracy in America, this essay highlights the important role that Jesuit universities play in protecting liberty and democracy. Third, a Jesuit university's control of its curriculum and admissions practices are protected by well-established First Amendment principles, including freedom of religion. In addition, the First Amendment principle of religious freedom also protects Jesuit universities' ability to have race-conscious programs of student support that advance the Jesuit pedagogic mission. The final section of this essay describes some of the curricular and co-curricular innovations and programmatic offerings at Georgetown University Law Center to illustrate how a Jesuit Law School might advance the Jesuit mission of creating an inclusive environment that supports reflective practices and the free exchange of ideas across differences. 

--Dan Ernst 

Kessler on Law's Constitution of Society

Jeremy Kessler, Columbia Law School, has posted Does Law Constitute Society? which is forthcoming in Law and Contemporary Problems :

This Essay identifies three senses in which law might be said to “constitute” society. First, law might be constitutive in that it is necessary to explain how humans experience the relative distribution of power within a given society (C1). A person’s control of certain means of production might be regularly understood in terms of their legal ownership of that means of production. Legal ownership is, phenomenologically speaking, constitutive of that person’s control. Second, law might be constitutive in that it facilitates, but does not cause, the relative distribution of power (C2). Certain property laws might render more efficient the exploitation of the means of production. Those property laws are, functionally speaking, constitutive of the efficient exploitation of the means of production. But those laws do not explain why a particular person controls the means of production, why they wish to exploit those means, or why more rather than less efficient exploitation is favored by the legal system. Finally, law might be constitutive in that it is causally responsible for the relative distribution of power among human individuals and collectives within a given society (C3). But for certain legal decisions, the relative distribution of power would be different. From this perspective, certain property and contract laws are, causally speaking, constitutive of a person’s control of certain means of production.  

In earlier work, I have described and defended the minimal historical materialist account of law (MHMAL), which affirms C1 and C2 but denies C3. By contrast, Umut Özsu’s Article, “Marx, Marxism, and the Critique of Law,” appears to affirm C3, and to argue that the best of the Marxist legal tradition – from volume 1 of Capital to Nicos Poulantzas’s State, Power, Socialism – also affirms C3. If the dialectic between law and class struggle that Özsu discerns in this tradition is an accurate description of social reality, then C3 is not only consistent with but essential to Marxist legal thought. Since law is shaped by class struggle, law is explicable in materialist terms. Since class struggle is shaped by law, law is not a mere reflection or derivative of the extra-legal balance of class forces. Özsu contends that this dialectical understanding of the relationship between law and class struggle is superior to Evgeny Pashukanis’s functionalism (which, like MHMAL, denies C3) and Katharina Pistor’s “juridical idealism” (which radicalizes C3 at the expense of materialism). This Essay argues that Volume 1 of Capital provides little evidence of Marx’s commitment to C3; that the putative dialectic between law and class struggle inevitably collapses back into either functionalism or idealism; and that functionalism – of the sort defended by Pashukanis and by MHMAL – is the preferable path forward for those interested in offering causal explanations of legal development in a materialist vein. 

--Dan Ernst

Engstrom and the Legal Insurance Experiment

Nora Freeman Engstrom, Stanford Law School, has posted Legal Insurance and Its Limits, which is forthcoming in the Michigan Law Review:

Courts are buckling under the weight of a staggering access-to-justice crisis. In three-quarters of cases, at least one side lacks a lawyer, default judgments are on the rise, and most Americans with valid claims never take legal action. The situation is dire, and it understandably has policymakers casting about for a fix. On the menu are a range of uncontroversial reform ideas, such as expanding legal aid, supporting system simplification, and promoting pro bono. But it is increasingly clear that those measures—even if accomplished—would not make a dent in the problem. Attention is thus turning to other reform ideas, such as relaxing unauthorized practice of law (UPL) rules and scrapping Model Rule 5.4(d), the provision that prevents nonlawyers from even partially owning entities that deliver legal services. Both reforms are promising. But both would dilute the longstanding lawyers’ monopoly. Perhaps not surprisingly, the bar is fighting these reforms tooth-and-nail.

Into this roiling landscape, some now have a new idea: legal insurance. They suggest that legal insurance is the way to expand access to justice for middle and working-class Americans. Reformers are also quick to point out that—unlike a relaxation of UPL restrictions or the abolition of Rule 5.4(d)—legal insurance stands to benefit lawyers.

We have seen this play before. In the 1970s, the bar seized on legal insurance as a solution to what was then seen as an urgent access-to-justice crisis afflicting the middle-class. The movement garnered enthusiastic support, not just from the bar, but also from unions, states, Congress, private insurers, and consumer groups. For a time, legal insurance even took off. By the mid-1970s, there were reportedly 5,000 distinct plans in operation, and experts predicted that, by the mid-1980s, half of practicing lawyers would be participating.  Of course, it didn’t come to pass—and remarkably, it seems the entire episode has been forgotten.

This Article recovers the lost history of the country’s first experiment with legal insurance. In so doing, it seeks to forestall another false start. In addition, by drawing on a range of disciplines—including insurance law (particularly insights concerning moral hazard and adverse selection), behavioral economics, legal ethics, and the legal profession—this Article explains why the legal insurance idea floundered, and seems destined to flounder, going forward.

It is undeniably seductive to think the access-to-justice crisis can be addressed in a way that benefits lawyers. It was seductive half-a-century ago. It is seductive now. But those who actually want to address the access-to-justice crisis need to look somewhere else. 

--Dan Ernst 

Shugerman on Removal and the Fed

Jed H. Shugerman, Boston University School of Law, on The Fed, Offices as Property, and the Meaning of "Cause":

The Federal Reserve Act states that "each member shall hold office for a term of fourteen years from the expiration of the term of his predecessor, unless sooner removed for cause by the President." 12 U.S.C. § 242. Based on the historical record, when Congress creates an office with a fixed term of years and protects against removal without "cause," Congress has both granted "a constitutionally protected property interest" under the Fifth Amendment (that cannot be taken away without "due process") and extended a statutory entitlement to receive fair notice and a meaningful opportunity to respond before any removal may take effect. 

Constitutional Protection: Under English law through the eighteenth century, termed executive offices-even cabinet-level offices-were considered "freehold" property, subject to protections from removal akin to those applicable to real property. This conception-of termed offices as "property"-would have been well known to the Founders and was reflected in Founding-era documents and commentary. The Constitution was drafted with this understanding. 

Statutory Protection: Independent of the Fifth Amendment, the "cause" requirement has a long-established common law meaning of requiring notice and an opportunity to be heard before removal. This understanding hails from pre-Founding English common law, and it is likewise reflected in American precedents soon before Congress drafted the Federal Reserve Act of 1913. The Act’s text of “cause” should be read in this context.

“Faithful Execution.”  Article II of the Constitution requires the President to undertake a “faithful execution” of the laws.  From a historical perspective, there is nothing inconsistent with that obligation.

--Dan Ernst 

Tour the Million-Dollar Courtroom

Million Dollar Courtroom (LC)

[We have word of an excursion on Thursday, November 13, that might interest attendees of the upcoming annual meeting of the American Society for Legal History, a tour at 3:00 pm of the "Million Dollar Courtroom" of the Theodore Levin Federal Courthouse, which is located just a block or so away from the conference hotel in Detroit.  It is not an ASLH-sponsored event but has been arranged Victoria Saker Woeste, an ASLH member who sent us the following.  DRE]

Anyone attending the ASLH meeting in November is welcome to take a tour of the famous “Million
Dollar Courtroom” on the 7th floor of the Theodore Levin Federal Courthouse, 231 W. Lafayette Blvd., less than a five-minute walk from the conference hotel. The tour is free and open to ASLH members and guests. We will get an architectural tour of the space, originally (and lavishly) constructed in 1896 and then lovingly preserved and reinstalled in the current courthouse which was completed in 1935. The room was renovated again in 2015.

Our docent will be Barbara Radke of the Michigan Federal Court Historical Society, and she will give a detailed presentation on the decoration and furnishings in the room, which remains an active courtroom today. We will also learn about important trials held in the space both before and after the relocation. Meet me in the lobby of the hotel at the front doors (at the Washington Blvd. entrance) and we will walk to the courthouse at 2:45 pm rain or shine. You’re also welcome to meet us at the courthouse. You won’t need to register ahead of time but courthouse rules prohibit phones inside the courtrooms, so, unless you are a lawyer with a bar registration card in your possession, prepare to leave your phone in your hotel room or store it in a secure cubby on the first floor of the Levin building. Courthouse security will show us where that is located.

I look forward to showing off this beautiful space. This is not an official ASLH event, so please direct any questions to me at vswoeste@icloud.com.

du Plessis's "Henry Maine’s Ancient Law as an Expression of Victorian Humanism"

Paul J. du Plessis, University of Edinburgh, has published Henry Maine’s Ancient Law as an Expression of Victorian Humanism (University of Edinburgh Press):

This monograph offers a comprehensive contextual analysis of Maine’s Ancient Law, emphasising the author’s use of various sources to construct the book's key themes. Ancient Law was written as a sophisticated piece of rhetorical prose grounded in Maine’s education in the classics. Central to this analysis is the significant role of Roman law in shaping the narrative, particularly its influence on Maine’s arguments and conclusions.

The monograph also positions Maine’s work within the broader intellectual debates of the nineteenth century, especially concerning the teaching of English law and Britain’s colonial presence in India. By situating Maine’s Ancient Law within this larger context, the study enhances our understanding of the text, revealing the historical legal framework that resonates in modern legal discourse and thought. This connection enriches our knowledge of Maine’s contributions and highlights the enduring relevance of his ideas.

–Dan Ernst

Pauline Maier Early American History Seminar

[Here is the schedule of the Pauline Maier Early American History Seminar.  DRE]

Sponsored and hosted by the Massachusetts Historical Society, 1154 Boylston Street, Boston

Seminars begin at 5:00 PM (ET). These sessions bring together a diverse group of scholars and interested members of the public to workshop a pre-circulated paper. Our sessions are free and open to everyone. Register through our online calendar to attend and receive the pre-circulated papers. The Pauline Maier Early American History Seminar steering committee at the MHS includes Profs. Mary Bilder, Katherine Grandjean, Brendan McConville, and Paul Musselwhite. Questions? Contact seminars@masshist.org.

14 October 2025.  Colonial North America in the 17th Century – A Panel Discussion Nathan Braccio, Clark University Elizabeth Hines, Johns Hopkins University Comment: Timo McGregor, Leiden University

2 December 2025.  The Devil Unleashed: The Royal Navy in Boston, 1685 – 1687 Steven Pitt, St. Bonaventure University Comment: Stephen R. Berry, Simmons University

15 January 2026.  Enemies: Treatment and Perception of the Defeated in the American Revolution – A Panel Discussion Susan Brynne Long, University of Delaware Tanner Ogle, Texas A&M University Comment: To Be Announced

3 March 2026. Unruly Convicts, Disorder, and Shifting Moral Responsibility in the British Atlantic Nicole Dressler, The College of William & Mary Comment: To Be Announced

19 March 2026.  “An ASYLUM from TYRANNY”: Slavery and the Anglo-American Politics of Asylum in the Late Eighteenth and Early Nineteenth Centuries Matthew Mason, Brigham Young University Comment: Francois Furstenberg, Johns Hopkins University

14 April 2026. Revisiting the Three-Fifths Compromise – A Panel Discussion Ben Mutschler, Oregon State University Andrew M. Schocket, Bowling Green State University Comment: To Be Announced

Weekend Roundup

• JOTWELL has recently published a few reviews of interest. A post by Natsu Taylor Saito (Georgia State University) encourages readers to check out Angi Porter, POISON! An Africana Legal Studies Investigation into Enslaved Africans and Their Deadly Roots, 43 Law & Ineq. 1 (2025). Sara Mayeux (Vanderbilt Law) spotlights Joseph Blocher & Brandon L. Garrett, "Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine," 104 Tex. L. Rev. __ (forthcoming 2026) (available at SSRN).

• At Balkinization: Dylan Penningroth (University of California, Berkeley) closes out the symposium on Before the Movement with two-part response (Part I, Part II). The symposium on Marital Privilege, by Serena Mayeri (Penn Carey Law), has also now concluded. All the posts, including Mayeri's response, are available here.    

• YLS's notice of Akhil Reed Amar's Born Equal: Remaking America’s Constitution, 1840–1920, which was the subject of the Rosenkranz Originalism Conference at Yale Law School (Yale Daily News).

• Selden's Sister has announced an undergraduate essay competition on women and legal history.

• Over at the LPEblog: Genevieve Lakier (University of Chicago Law) on "Title VI Turned Upside Down."    

• The Brennan Center for Justice has listed its Historians’ Friend-of-the-Court Briefs from the Supreme Court’s 2024 Term.

• "The Australia Studies Institute is hosting Associate Professor Alecia Simmonds to deliver the 2025 Reese Memorial Lecture on her book Courting: An Intimate History of Love and the Law" at King's College London on November 3, 2025 from 18:00 to 20:00.  More.  

• On November 19, at 6:00 p.m. EST, the Supreme Court Historical Society, in partnership with the Irish American Judicial Institute, invites you to a special lecture at the Supreme Court of the United States. Sean Meehan discusses The Emerald Bench: The History of the Irish American Justices on the Supreme Court on November 19, at 6:00 p.m. at the Supreme Court of the United States.

• Vermont Chief Justice Jeffrey Amestoy discusses his book on most notorious crime, "the 1926 murder of Cecelia Gullivan, treasurer of the Cone Automatic Machine company, in her home in Windsor" (VTDigger). 

• More Jill Lepore: PBS News Hour; WYPR; Katie Couric.

• The lectures in America at 250: A History, co-taught by Joanne Freeman, David Blight, and Beverly Gage on the YaleCourses YouTube channel. 

• The DC Circuit Historical Society has recently noted the exhibits in the Great Hall of the Barrett Prettyman U.S. Courthouse. 

• Brendan Shanahan discussed Disparate Regimes: Nativist Politics, Alienage Law, and Citizenship Rights in the United States 1865–1965 at Yale (Yale Daily News).

• ICYMI: Akhil Reed Amar on Lincoln's Lesson on Trump's Birthright Citizenship (Time). A Rare Draft of the Constitution Shows It as a Work in Progress (NYT).  The Vermont Constitution (State Court Report). Bowdoin's Role in the Massachusetts Constitution of 1780 and the U.S. Constitution of 1787 (mass.gov).  The Supreme Court Has Always Been This Bad (Nation).

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Atencio on the First Generation of Latina Attorneys

Dolores S. Atencio has published The Illustrious Impact of Luminarias on the Law: The Legal Handicraft of the First Latina Article III Judges, State Supreme Court Justices, and Public Interest Litigators (Carolina Academic Press):

The first generation of Latina attorneys, Luminarias, earned their law degrees over the 100-year period of 1880–1980. Lawyer and author Dolores Atencio uncovered their identities and legal careers through the Luminarias Study, which was conducted from 2016 to 2022 at 167 law schools in the country accredited by the American Bar Association.

This book features the legal work of the first Latina federal Article III judges, state supreme court justices, and select public interest litigators. Their story begins in the early 1970s when the first Luminaria public interest social justice activistas began advancing novel litigation theories seeking to expand voting rights, equal educational opportunities and funding, and the reproductive and work rights of women. Included are cases tried or supervised by Luminaria litigators and leaders—Vilma Martinez, Norma Cantú, Antonia Hernandez, Irma Herrera, and Deborah Escobedo—during their tenures at the Mexican American Legal Defense and Education Fund, the Multicultural Education and Training Advocacy, Inc., Youth Law Center, Equal Rights Advocates, and the U.S. Department of Education, Office of Civil Rights.

Beginning in the 1980s when Luminarias began ascending to the bench, significant decisions issued by the first eight Luminaria judges on courts of last resort are discussed, including those that codify theories tested by the Luminaria litigators. The juridical careers of the first seventeen Luminaria Article III judges are covered, from both the district trial courts and circuit courts of appeals. Obstacles faced during their confirmation processes are highlighted as is data construed and created expressly for the book, including a comparison of the number of days from dates of referral to dates of confirmation.

For each Luminaria featured in the book, biographical summaries of their early lives, education, and professional trajectory are included. The intersectionality of the careers of these thirty-five remarkable Latina lawyers blends together their individual histories with the country's during times of turmoil, reconciliation, and a return to a litigious past.

–Dan Ernst.  TOC here.

ASLH Environment, Law, and History Global Workshop

[We have the following announcement.  DRE]

The next meeting of the ASLH Environment, Law, and History Global Workshop will take place on 3 October at 11am UTC. Eddie Kola will be presenting his draft paper "Lessons for the Upcoming Age of Climate Refugees":

Many of the people who enjoy the least freedom of mobility in the world today, are also those most susceptible to the deleterious effects of climate change. And yet, neither those who must flee their homes due to urgent environmental catastrophes, nor economic migrants whose livelihoods are destroyed by the climate crisis, enjoy any protection under the 1951 Convention relating to the Status of Refugees. The plight of these so-called climate refugees are only set to worsen as time goes on. Through a detailed contextualization of the development of international refugee law, and the impact refugees have had on the development of the modern passport system, this paper will use historical lessons to make normative arguments that existing legal instruments must be amended and new ones negotiated, to address what is undoubtedly going to soon become an age of climate refugees.

Ben Richardson will provide commentary.  If you would like to attend the session, please email Susan Bartie (susan.bartie[at]anu.edu.au) or David Schorr (dschorr[at]tauex.tau.ac.il) and they will send you the paper and a link.

Liebman on Executive Reorganization in New York

Design for New York State Capitol (NYSA)

We missed this one when it first appeared: Bennett Liebman, "a government lawyer in residence at Albany Law School's Government Law Center," has published Whose Board or Commission Is This Anyway? in the Albany Law Review 87 (2023-2024): 607-646.  The paper provides a very useful overview of attempts to reorganize New York State government in the early twentieth century.  It reminds me of Willard Hurst's letter to Felix Frankfurter in which he said that an HLS conference on John Marshall was all well and good, but what legal history really needed was a conference on Alfred Smith's reorganization of New York State government.  Better late than never.

Liebman reproduces the following quotation of William Howard Taft to the New York State Constitutional Convention of 1915:

The study of the State government, like this of New York, with 150 different commissions spread all over the State, only arouses in me the same feeling that I have with respect to our methods of conducting our courts: profound admiration for the political adaptability of the people to make a machine work that nobody who had any real business sense would think would work under any other conditions.

 --Dan Ernst

JAH 112:2

[The latest issue of the Journal of American History, 112:2 (September 2025), includes much legal history.  Here’s the JAH’s summary.  DRE]

In recent years, sociologists have noted how the aggressive policing of small debts such as unpaid parking tickets contributes to the disproportionate incarceration of poor people and people of color. Justin T. Clark demonstrates how, centuries ago, debt played a similarly underappreciated role in the development of North American carceral punishment. Surprisingly, most early eighteenth-century prisoners in Boston were debtors, not criminals. After a series of evangelical religious awakenings, New England authorities began to imagine that imprisonment could serve a punitive (and not simply a procedural) function for criminals as well. This history may help us better understand the conditions leading to what legal historians have called the present “re-establishment” of debtor’s prisons.

Emancipated mothers whose children had been apprenticed against their wishes challenged those apprenticeships in the courts and enlisted the assistance of the Freedmen’s Bureau through the late 1860s. While the immediate goal was child recovery, freedwomen’s protests of apprenticeship marked a pursuit of long-denied reproductive justice rather than just an effort to contend with an individual act of kidnapping. By placing Black mothers at the center of postwar custody battles, Jessica Wicks-Allen illuminates how gender shaped the fight for family integrity in slavery’s aftermath and underscores the political and emotional stakes of reunion.

Nicole Martin encourages historians to view Reconstruction from an unexpected perspective: western boardinghouses of Nevada’s Comstock Lode. While western mining centers lay on the fringes of the consolidating nation, they provide a powerful lens for understanding how the idealized free-labor home at the heart of Reconstruction policy played out in rapidly industrializing economies struggling to reconcile older and newer values. By drawing on the private and public writings of people who lived in and ran Comstock boardinghouses, she insists that we turn our view of Reconstruction inward into the intimate lives of ordinary Americans to better understand the on-the-ground compromises that contributed to the success of American empire.

Crack cocaine cast a long shadow over the 1980s. While much is known about the carceral efforts to curb the drug’s influence, far less is understood about the urban political economy driving its spread. Pedro A. Regalado examines the rise of drug capitalism in New York City, revealing how long-simmering tensions in the city’s rental housing market created an opening for an illegal enterprise that extracted profit from buildings that landlords had struggled to exploit. Tenants fought back, defending the habitation value of housing and forging new alliances with police, housing courts, and elected leaders—a pattern that took hold nationwide.

AJLH 64:3

American Journal of Legal History 64:3 (September 2025) has been published.  
 
Early American versions of a homosexual-advances defence
William B Meyer

Litigating longshoremen in the Lone Star State: black dock workers and the struggle to maintain autonomy after the 1964 Civil Rights Act
D Caleb Smith

The progressive secularization of credit in New Granada and the antecedents of commercial banking in Colombia (1835–1863)
Marcela Castro-Ruiz

The State of Florida v Fortune Ferguson, Jr: the death penalty and legal change in Florida, 1924–1927
Brandon T Jett
 
Book Review
 
Hendrik Hartog, Nobody’s Boy and His Pals: The Story of Jack Robbins and the Boys’ Brotherhood Republic
Kathryn Schumaker

Brandeis's Uncollected Writings

Democracy and Social Justice: Uncollected Writings of Louis Brandeis, edited by Peter Scott Campbell (Carolina Academic Press) has been published:

Few Supreme Court justices have had a greater impact on modern life than Louis D. Brandeis.  His court opinions have shaped the law and have helped articulate many rights Americans enjoy today. But Brandeis was a prolific author before he ascended to the Court and much of what he wrote then continues to be relevant today. The threat of monopolies, the importance of unions, and the obligations of citizens living in a democracy were just a few of Brandeis's interests that still affect Americans.

Democracy and Social Justice: Uncollected Writings of Louis Brandeis collects many previously unanthologized writings to expand Brandeis's corpus as well as to re-introduce him to a new generation of readers. The title of this book reflects two themes of much of the work collected here and in much of Brandeis's work as a whole. Brandeis was a lifelong proponent of democracy and its promise of equal rights to all. Any person, or institution, that threatened a person's right to freedom and self-improvement was not just an affront to that person, but also to democracy itself.

The articles in Democracy and Social Justice: Uncollected Writings of Louis Brandeis touch on several issues that Brandeis believed threatened democracy, such as monopolies, union busting, and racial discrimination. Of special note, there is also a brief memoir that Brandeis dictated that was recently unearthed.

--Dan Ernst.  TOC and introduction here. 

Weekend Roundup

• The University of Pennsylvania digital history site, Building Inequality: Mapping the spatial and racial inequalities of FHA Section 608 rental housing, 1942-1950, is well worth a visit.

• We have updated information on that inaugural session of "Historicising Jurisprudence," a first-book symposium co-sponsored by the Selden Society and the School of Law, Queen Mary University of London, and co-hosted and co-organised by Maks Del Mar and Michael Lobban.  It will be held on September 30, and devoted to Natasha Wheatley's The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Princeton UP, 2023).  Registration and more information is here.  

• 
  Sara Butler, Ohio State University, discusses her book, Forensic Medicine and Death Investigation in Medieval England (2015) on the Medievialists.net podcast (YouTube).

• The Balkinization symposium continues on Serena Mayeri's Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025). Recent contributions include reflections by Kris Collins and Doug NeJaime.   

• A recording of Dylan Penningroth's talk on his book Before the Movement: The Hidden History of Black Civil Rights at The City Club Forum (ideastream).

• Over at the Jackson List: John Q. Barrett on the appointment of Harold Burton to the U.S. Supreme Court.  

• The historian Joan Wallach Scott recalls the firing of her father, a high school teacher in New York City, during the McCarthy Era  (Boston Review).  

• A concurring opinion in Alan Dershowitz v. CNN cited Samantha Barbas's article,  “New York Times v. Sullivan: Perspectives from History,” to provide historical context for the ongoing debate over defamation law (Iowa Law).

• On Thursday evening, Jonathan Turley, George Washington University Law School, and Michael Klarman, Harvard Law School, debated “Is There a Constitutional Crisis? How Would We Know?” at Colgate University.

• Jill Lepore's We the People had a substantial presence on the internet this week.  Professor Lepore's op-ed in the NYT.  Reviews in The Guardian and the LA Times.  Her argument that originalism "killed" the Constitution in The Atlantic; to which the National Review dissents.

• ICYMI: The Desegregation of Local 53 in New Orleans (1969) (BlackPast). The 18th-century legal case that changed the face of music copyright law (WIPO).  John Yoo on the long history of presidential discretion (Law & Liberty).  The Heritage Foundation's Guide to the Constitution.  The entire Constitution is on display for the first time in US history (Smithsonian; WTOP; USA9).  The Georgia Historical Society displayed its own rare copy, once owned by the Georgia’s signer Abraham Baldwin (TOC11).

 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Keller on China, Legal Transplants, and Policy Irritants

Kevin Byrne Keller, a Visiting Fellow in East Asian Legal Studies at Harvard Law and PhD candidate in history at Yale, has published From Legal Transplants to Policy Irritants: Chinese Economic Expansion and Global Legal Change in the American Journal of Comparative Law:

Since the 1970s, comparative law scholars have studied “legal transplants”: legal institutions that emerged in one location and then were moved to (or forced upon) another. This research agenda offers little traction on one of today’s most pressing questions of global legal change. For several decades, Chinese leaders have encouraged Chinese enterprises to increase their international engagement. Those leaders insist that they have no desire to alter the legal systems of their economic partners, but China’s growing global economic presence does seem to affect legal systems elsewhere.

To make sense of this pattern, this Article draws on and extends Gunther Teubner’s concept of a “legal irritant.” It introduces the idea of a “policy irritant”: a policy that a country implements, inspired by policies elsewhere, that places pressure on and potentially reshapes the country’s legal regime. To demonstrate how the concept of a policy irritant improves our understanding of theoretical questions about legal change and concrete questions about current global conflicts, this Article offers a case study of the Madaraka Express, a China-funded railroad project in Kenya.

From a theoretical perspective, the Article makes two contributions to the literature on legal transplants. First, it reveals that policy emulation can catalyze legal change. Second, it observes that policy emulation can result in changes both to the recipient legal system and to the policy being emulated. At a more concrete level, the Article offers two insights into China’s engagement with the Global South. First, the introduction of China-inspired policies caused controversy in Kenya not because those policies were inherently insidious, but because they rubbed roughly against features of Kenya’s legal system that many Kenyans value highly. Second, Kenya’s legal system has shown strength in the face of pressures introduced by China-inspired policies, and has in some instances forced changes in those policies.

--Dan Ernst

Priel on the Political Theories of the Legal Realists

 Dan Priel, Osgoode Hall Law School, has posted The Political Theories of the Legal Realists:

Jerome Frank, with William Douglas (LC)

A popular view about the legal realists is that, either knowingly or inadvertently, they advanced ideas inconsistent with traditional values, democracy, and the rule of law. Another view about them suggested that the realists had no political theory: they only offered a descriptive (empirical) theory of adjudication, albeit one that has normatively "quietist" implications. In this essay, I challenge both views. I argue that there were two legal realist camps whose jurisprudential ideas presupposed two quite different political theories. One group of legal realists consisted of public utilitarians who were consciously inspired by Bentham, wanted to turn legal and political theory into a science, and who thought law should be evaluated by its ability to increase social welfare. The other group had a very different political theory underlying its approach to law. For these legal realists, law was a traditionary institution, which should reflect, and be continuous with, community customs and values. After showing these different views, I show their relevance to contemporary debates in different areas of law. 

--Dan Ernst 

Fighting Words at the Founding

We were intrigued by this student note: Fighting Words at the Founding, Harvard Law Review 138 (June 2025): 2049-2070.  From its introduction: 

At the Founding, speakers of fighting words were indictable only if they intended to cause violence. Yet today, Americans who speak fighting words without any intention of causing a fight routinely face criminal sanctions. The Supreme Court has yet to rule definitively on whether the First Amendment requires that the government prove mens rea to punish the speaker of a fighting word. But in the lower courts, nearly every defendant prosecuted for speaking a fighting word faces strict liability: Her interior mental state is irrelevant. That approach breaks with the uniform practice of the common law at the time the nation ratified the First Amendment.

--Dan Ernst

An Oral History of Ruth Bader Ginsburg

RBG in 1993 (LC)

The Historical Society of the District of Columbia Circuit has just announced the opening of an oral history of Supreme Court Justice Ruth Bader Ginsburg conducted by Maeva Marcus, the general editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States and a past-president of the American Society for Legal History.  The interviews were conducted between 1995 and 2000 with a final session in 2014.

--Dan Ernst 

Larson on Rape and Medieval Canon Law

Atria A. Larson, Saint Louis University, has published Lucretia (and Lucia) and the Medieval Canonists: Guilt, Consent, and Chastity in the Early Canonistic Jurisprudence of Rape, online in Law and History Review:

This essay explores a key stage in the legal history of the concepts of consent and guilt in cases of rape, namely in twelfth-century canon law in the work of Gratian and the early canonists who commented on his Decretum. It substantially revises the account that currently exists in scholarship and explains that confusion between raptus and rape and a limited read of the Decretum have combined to provide a problematic picture in which, it has been claimed, neither Gratian nor broader medieval canon law took rape seriously as an offence. The essay focuses on the underexplored Causa 32 in the Decretum and discusses how Gratian very directly addressed forced coitus in that section of his text, both condemning it and exonerating women of all guilt who are forced to have sex without their consent. Gratian and the decretists ended up changing the discourse on rape, in part through their treatment of both Lucretia of Roman legend and an early Christian martyr, Lucia. Their considerations, which intersected with theology, resulted in a legal principle that a raped wife cannot be charged with adultery. Since their considerations could also be applied to any rape victim, their work is important for the development of rape law and legal notions of consent.

--Dan Ernst 

University of Pennsylvania Legal History Workshop, AY 2025-26

As usual, the University of Pennsylvania will convene a legal history workshop this year. The lineup is below:

September 25, 2025: James Q. Whitman (Yale Law), “The Apparatus of Abasement and Elevation: Death and Transfiguration of Rank.”  

 

October 16, 2025: Daniel Hulsebosch (NYU School of Law), TBD. 

 

January 29, 2026: Jessica Pliley (Texas State University), TBD.  

 

March 26, 2026: Susan Pearson (Northwestern University), TBD. 

 

April 9, 2026: Rachel Shelden (Penn State University), TBD.  

 

April 23, 2026: Amalia Kessler (Stanford Law School), TBD. 

-- Karen Tani