Weekend Roundup

• Mary Sarah Bilder, Boston College Law School, delivers the 2026 Maurice and Muriel Fulton Lecture at the University of Chicago Law School on Catherine Macaulay's 1767 pamphlet, "Loose Remarks." 

• The Columbia Law Library tells the law school's history through an exhibit of its "artifacts and treasures" (CLS).  

• And the Princeton University Library has opened the exhibit “Nursery of Rebellion’: Princeton and the American Revolution,” featuring original copies of the Declaration of Independence and the U.S. Constitution (Daily Princetonian).

• From In Custodia Legis: a post on "William Paca, Deliberator and Declaration Signer.

• On April 28, Foley partner Harlan Levy will moderate a discussion with Akhil Reed Amar on The Declaration's Impact on American History, Law and the Constitution at the NYC Bar Series.  Also here.

• Over at Nursing Clio: Dori Hobbie on "British Reactions to the 1992 Irish X Case."

• Greg Ablavsky, Stanford Law, on Native Nations, Federal Indian Law, and the Birthright Citizenship Case (SLS Podcasts).  Also, the National Constitution Center's resource guide for classroom discussions of the birthright citizenship.

• More on that PRA EO: Marty Lederman, Georgetown Law, and Jack Goldsmith, Harvard Law, on who owns Presidential Records (Executive Function Chat).   Christopher Fonzone says that the Presidential Records Act is Constitutional (Just Security).  Gary M. Stern, a former general counsel for the National Archives and Records Administration, is astonished by the executive order (WaPo). 

• ICYMI: Jane Manners and Lev Menand summarize their argument on "The Law of For Cause Removal" (Oxford Business Law Blog).  Live from Penn Carey Law via WHYY: Kermit Roosevelt and Amanda Shanor of the history of the U.S. Supreme Court (YouTube).  Larry Solum takes issue with Richard Primus on enumeration and constitutional interpretation (Legal Theory Blog).

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

Amorosa and Suuronen on Schmitt and Vitoria

Paolo Amorosa, University of Helsinki Faculty of Law, and Ville Suuronen, University of Turku, have posted 'Ancora tu?' Questioning Carl Schmitt's Place in the Canon of International Law: 

In recent decades, the controversial intellectual legacy of Carl Schmitt, leading Nazi lawyer, has returned to prominence in political and legal theory as well as in international law. Schmitt’s work continues to inspire not only conservative and far-right thinkers but, somewhat surprisingly, also serves as a source of inspiration to leftist or even postcolonial positions. This revival is often justified through a decoupling of Schmitt’s odious political commitments from what is often seen as his uniquely valuable insight into the nature and history of the international legal order. The goal of this chapter is to problematize and question this decoupling and the resulting canonical position Schmitt has acquired as a theorist and historian of international law. As our starting point to this complex debate, we offer a critical analysis of Schmitt’s profoundly political narration of the history of international law, and in particular, his supposedly neutral appropriation of Francisco de Vitoria, usually examined apart from the historical context and motives that inspire Schmitt to take up this figure in the 1940s. By comparing Schmitt’s work on Vitoria with his earlier publications on international law, we offer a historical contextualization of the development of Schmitt’s arguments, showing how these were motivated by unscholarly and overtly political intentions. Indeed, Schmitt used Vitoria to develop a complex historical narrative of international law which not only reiterated far-right revanchist positions on the Treaty of Versailles but also aimed to offer an apologetic narrative concerning his own role within the Nazi party. 

--Dan Ernst 

The Decline and Fall of the State Executive Council

We note the publication, as an anonymous “Chapter” in the Developments of the Law section of a recent issue of the Harvard Law Review, of the article The Decline and Fall of the State Executive Council.  From the introduction:

Early state constitutions presented a mosaic of institutional design; but today, their structure largely mirrors that of the federal government. This structural convergence story is best told through the decline and fall of state executive councils. At the Founding, nearly every state had one. But today, only two remain. . . . 

Section A examines the rise of executive councils, beginning with their origins in medieval England. It catalogs how the early executive council evolved from a small circle of the King’s advisors to a central institution in English government exported to the colonies, both shaping and being shaped by early American societies. Section B explores the translation of these colonial-era executive councils into republican institutions and catalogs the abortive failure of the federal plural executive — and the victory of the unitary executive — at the Federal Constitutional Convention. Section C details the executive council’s long and consistent fall from grace. Section D discusses the role of the contemporary executive council in New Hampshire, its last true stronghold. Looking at the history of executive council dissolution over time, three sequential historical causes are clear: federalist reaction, Jacksonian democracy, and successive progressive movements. These three trends have one thing in common: They were national, top-down movements that flattened state power. This Chapter concludes that this institution is worthy of a second look, both locally and nationally.

--Dan Ernst 

Allread, "Indigenous Constitutionalism"

The Harvard Law Review has published "Indigenous Constitutionalism," by Tanner Allread (University of California, Los Angeles). The abstract:

By standard accounts, there are fifty-four constitutions across the federal, state, and territorial governments of the United States. But in fact, there are 230 other governmental constitutions that currently govern peoples and territories within the United States. These constitutions not only flow from a sovereignty that existed prior to the United States but also came out of a legal movement that asserted its independence from both the U.S. Constitution and state constitutions.

This Article tells the story of these constitutions — the constitutions of Native nations. Having existed for over two centuries with an archive of thousands of constitutional documents and amendments, tribal constitutions have been left out of the narratives of American constitutional history while being obscured within the fields of American constitutional law and federal Indian law. This Article corrects these oversights and calls for the recognition of a tradition of “Indigenous constitutionalism” in the United States.

This Article’s aims are both theoretical and historical. On one hand, it conceptualizes Indigenous constitutionalism as a distinct and shared constitutional practice through which Native nations claim and exercise self-governance while embedded in the wider constitutional — and colonial — landscape of the United States. On the other hand, this Article draws Indigenous constitutionalism’s features from the two-hundred-year history of tribal constitutions. It explores, for the first time, three major eras of tribal constitutional development: the first constitutions during the early nineteenth-century period of Indian Removal, the explosion of constitutions under the Indian Reorganization Act in the early twentieth century, and the movement for tribal constitutional reform that has stretched from the late twentieth century to today.

But this Article also brings theory and history together to rethink the prevalent narratives surrounding tribal law, federal Indian law, and American constitutionalism. Indigenous constitutionalism reveals the fundamental and persistent questions around which a tribal constitutional law framework can be constructed. It also revises the origin stories of federal Indian law, demonstrating that the field did not coalesce in isolation from tribal law but was actually cocreated with tribal constitutions. Finally, by placing tribal constitutions into conversation with other American charters, Indigenous constitutionalism disrupts and expands the category of constitutionalism itself. This Article demonstrates that tribal constitutions — unique among American constitutions — showcase how these documents can appear in many forms, function as external-facing declarations of sovereignty, and exist alongside other forms of fundamental law. 

Read on here (or at SSRN). 

-- Karen Tani 

 

Wieboldt on Catholic Legal Thought and First Amendment Originalism

Dennis J Wieboldt, III, a JD-PhD candidate at Notre Dame, has published ‘But the original intent of the Constitution would be restored’: Catholic legal thought and the emergence of First Amendment originalism, 1947-87, online and open access in the American Journal of Legal History:

Several scholars of twentieth-century American legal history have recently argued that originalism—a method of constitutional interpretation commonly associated with the conservative legal movement—first emerged as southern Republicans and conservative Democrats (many of whom were evangelical Protestants) reacted to the US Supreme Court’s 1954 decision in Brown v Board of Education. But southern opponents of Brown were not the only figures to have self-consciously introduced originalist ways of thinking about the Constitution into the nation’s legal vocabulary at mid-century. Indeed, this article reveals that, nearly a decade before Brown, Catholics hundreds of miles away from Selma and Little Rock similarly sought to convince their neighbours that the Constitution ought to be understood according to the intentions of its eighteenth-century drafters (or, when appropriate, its nineteenth-century amenders). And importantly, they did so not to undermine the Civil Rights Movement, but rather to ensure that the Court’s 1947 decision in Everson v Board of Education would not stymie the American Catholic Church’s efforts to obtain public financial assistance for parochial schools.

In encouraging jurists, scholars, and voters to understand the First Amendment’s Religion Clauses through the lens of founding-era history, post-Everson Catholics became as responsible as anyone outside of the Supreme Court for originalism’s decisive (re)shaping of the Religion Clauses during the next half-century. But this ultimately proved troubling to some as the conservative legal movement became ascendant in the 1980s. From the perspective of these critics of First Amendment originalism, God’s natural law, not Thomas Jefferson’s metaphorical ‘wall of separation’ between church and state, should determine the First Amendment’s meaning. In concluding, this article therefore suggests that Catholics initially turned to originalism pragmatically to vindicate their background philosophical and theological conceptions of religious liberty, but increasingly came to realize that originalism—to the extent that it relied on positivist assumptions about the nature of individual rights—was alone inadequate to do so.

--Dan Ernst 

Kent on the Interwar Development of American Economic Sanctions

Andrew Kent, Fordham University School of Law, has posted The Pre-History of Modern Economic Sanctions, which is forthcoming in Constitutional Commentary:

This review essay examines the historical emergence of modern economic sanctions through the lens of Professor Nicholas Mulder’s outstanding 2022 book, The Economic Weapon.  It then supplements Mulder’s account with a fuller treatment of developments in the United States between World War I and the start of World War II.  The emergence of modern sanctions depended on transformations in international and domestic law, international diplomacy, state administrative capacity, and moral and legal understandings of coercion against civilian populations.  Mulder shows that these changes took shape principally during and after World War I, and focuses his monograph on Britain, France, and the League of Nations, with some attention to the United States.  This essay supplements Mulder’s transnational history with a more detailed account of U.S. law and institutions in the first four decades of the twentieth century.  In the United States, developments during World War I and the interwar period—including the Trading with the Enemy Act, export-control measures, debates about Congress’s neutrality statutes and the merits of using American economic coercion against fascist and expansionist powers, and a growing acceptance of broad executive discretion in foreign affairs—worked together to help create a rudimentary but recognizably modern sanctions regime by the time the United States entered World War II.  The essay highlights the U.S. constitutional questions raised by these developments, including questions about the nondelegation principle, the scope of presidential power and Congress’s foreign and interstate commerce powers, and protections for individual constitutional rights. 

--Dan Ernst 

New Resource: The Supreme Court Indian Law Database

[The following is an invited guest post by Keith Richotte, Jr. (Director, Indigenous Peoples Law and Policy Program, and Professor of Law, University of Arizona), introducing The Supreme Court Indian Law Database.]

A critical new resource for scholars of the Supreme Court and Native America is now available: The Supreme Court Indian Law Database. Recently launched, this website offers a number of important features.

• It identifies every Indian law case decided by the U.S. Supreme Court (680 and counting). Listed chronologically, the list has a search function to allow a researcher to find a particular cases or cases easily 

• It places each case in one or more categories for identification and comparison. The site has forty-three categories, including plenary power, criminal jurisdiction, treaties, and many others 

•  It lists every justice of the U.S. Supreme Court and their participation in the cases on the list. It also identifies how the justice voted and if they wrote in a particular case 

•  The pages for each individual case identifies the other cases on the list that it cites and the cases where it has been cited. For example, Cherokee Nation v. Georgia cites three cases and has been cited forty-eight times 

In the future additional search functions will be added to the site. Once running a researcher will be able to easily identify cases decided between a certain date range, or cases that fall under the same four categories, or find out which three justices participated in the same cases or any combination of all three of these things and more.

 

In addition, there is room for debate for what counts as an Indian law case or for which category a particular case belongs. While acknowledging this certain subjectivity, quite a bit of thought and care went into curating the list. If you have questions about the list or would like to know how it was crafted please visit the methodology page.

 

Finally, while a lot of thought and care has been put into the list and the website, it is still very new and there is always room for improvement. To that end, if you have any constructive feedback you would like to share please send it to Keith Richotte, the curator of the site and Director of the Indigenous Peoples Law and Policy Program at the James E. Rogers College of Law at the University of Arizona. His email address is at the bottom of the main page.

 

The hope is that this website will be a valuable resource for practitioners, scholars, students, tribal nations and peoples, and anyone else with an interest in Native America and a desire to see Indigenous peoples thrive. Thank you and happy searching on SCILDB.com!

Widener on Greenleaf's Confessions and Corbin's Complaint

Mike Widener, formerly Rare Book Librarian in the Lillian Goldman Law Library at the Yale Law School, has made two recent articles available via Academia.  The first appeared in volume 29 of the Green Bag, 2d ser.: "Confessions of a Case Reporter."  “It describes and publishes a letter that Simon Greenleaf wrote in 1836, where Greenleaf discusses both the economics and the style of case reporting, and concludes that ‘it costs far more labor to make a neat & condensed report of a case, than to publish it, chaff & all, just as the materials come to the reporter’s hands.’”

The second appeared in volume 12 (2025) of the Journal of Law.  "Authoring: Reclaiming Credit Where Credit is Due” presents “an irate memorandum by Arthur Corbin, accusing the dean of the Yale Law School of trying to stiff him and a co-author over payment and credit for their work on Volume 22 of the Cyclopedia of Law and Procedure (1906).”  

--Dan Ernst 

Durrani, "Before Invention"

Haris Durrani (Harvard University) has posted "Before Invention," forthcoming in the Texas Intellectual Property Law Journal. The abstract:

This Article is the first comprehensive historical account of a foundational doctrine of U.S. patent law: conception. Conception supplies the meaning of invention at the root of the patent system. It is a mental act, the formation of the idea of an invention before it is made. Considered “the touchstone of inventorship,” conception can determine who receives a patent, awarding credit and title, and governs employee inventions and federally funded research. Despite conception’s import, courts inconsistently state its doctrinal standard while insisting on its deep historical continuity, and scholars exclude it from studies of patent law’s practice, theory, and history. Carefully reading nearly two centuries of cases and treatises, the Article details the doctrine’s development, reveals its causes and tectonic effects on the patent system, and proposes a new test. Due to conception’s influence across other doctrines, the test transforms the meaning of invention holding aloft the system’s whole architecture.

The conventional wisdom is that the meaning of conception is well-settled, “unchanged for more than a century.” But this Article argues the doctrine has oscillated between a “mentalist” tradition, privileging a general idea in the mind at an early stage of the inventive process, and a “materialist” one, privileging a detailed idea formed amidst the physical work of experimentation. The doctrine developed in three phases, crafted in the nineteenth century with a mentalist theory equating conception with invention; turned materialist in the twentieth, breaking that equation; and, near the twenty-first, reverted to mentalism, albeit unsteadily. Heedless of these conflicting traditions, scholars and judges pick and choose among their divergent doctrinal standards. The result is a modern doctrine as convoluted as its history. Clarity requires understanding the development of the doctrine’s oscillating preferences for ideation and work.

The Article draws two takeaways from this history. First, conception has long provided the meaning of invention underwriting the patent system. This claim counters popular belief in patent law’s early materialism and recasts the modern system as the triumph of conception’s doctrinal development. Conception is thus not only temporally before making an invention, but also ontologically before the very notion of invention—the first principle of the entire edifice. This conclusion provides a basis for a foundational theory of invention that traverses the many doctrines shaped by conception’s doctrinal development.

Second, conception must be reworked to bring back the materialist turn, grounded in experimental labor. The mentalist tradition is flawed, designed to exclude that labor. The Article proposes a new test synthesizing elements from the materialist case law. While scholars have advocated materialist approaches to other doctrines, primarily related to inventorship and a patent application’s disclosure, those doctrines were largely shaped by conception’s development and should incorporate versions of the proposed conception test, harmonizing divergent theories of invention with their source. The test resolves controversies over federally funded research and artificial intelligence, and the thorny case law on disclosure, the basis of the modern system 

Read on here.

-- Karen Tani  

Lake on Men's Suits for Sexual Misconduct Defamation

Jessica Lake, Melbourne Law School, has published Professional authority and institutional integrity: men's suits for sexual misconduct defamation in nineteenth-century America, open access, in the American Journal of Legal History:

Since the #MeToo movement, prominent men accused of sexual misconduct have frequently brought defamation claims against their accusers and media companies that have published the allegations. This trend has generated a wealth of debate and scholarship, but little research has placed such cases within a historical context. This article seeks to fill this gap in legal history by examining men’s sexual misconduct defamation claims in the nineteenth-century United States. By analysing numerous court records and connecting them with shifts in work patterns and models of masculinity, it argues that men’s claims for sexual misconduct defamation were increasingly connected to the rise of the professions during the nineteenth century. Whereas ideas of ‘male fortitude’ in the face of sexual accusations were central to judicial adjudication of rural men’s claims—particularly farmers—courts took the vindication of the sexual reputations of urban, professional men more seriously. Such scandals had the capacity not just to insult or wound individual feelings or threaten bonds of community or kin, but they could imperil respect for the emerging professions and undermine the authority of social institutions. Scandals involving professors could erode the repute of universities, reports about doctors could undermine respect for medicine, rumours about lawyers could breed distrust of the courts, and news articles about teachers could threaten the education system. Defamation cases show that men’s sexual transgressions mattered most when they questioned the authority of professional expertise and republican projects of other men.

--Dan Ernst

Weekend Roundup

• Over at JOTWELL, we've noticed several reviews of interest: Maya Manian (American University Washington College of Law) wrote about Aziza Ahmed's Risk and Resistance: How Feminists Transformed the Law and Science of AIDS (2025); Martha Ertman (University of Maryland Francis King Carey School of Law) reviewed Dorothy Brown, Getting to Reparations: How Building a Different America Requires a Reckoning with Our Past (2026); Jedidiah Kroncke (University of Hong Kong) spotlighted María E. Montoya's A Workplace of Their Own: Rockefeller, Roche, and Labor's Battle Over Industrial Democracy (2026). 

• The California Law Review's podcast has posted an episode on Michael Banerjee's "What Harvard’s Lawsuit Should Have Said" (published in the journal's online companion in August 2025).

• On the history-of-higher-ed theme, Banerjee also alerted us to this interesting Portland Press Herald article, on "How Maine’s elite private colleges sold Wabanaki land to bankroll early construction."  

• Vicki Jackson, HLS, delivered the  2026 Malyi Lecture at the University of Chicago Law School on “Knowledge Institutions and Constitutional Democracy.”   

• Jack Rakove will speak on Theory of Constitutional Failure: The American Case at Notre Dame Law on Friday, April 24, 2026, from 2:00 pm - 3:00 pm.

• Congratulations to Kunal Parker, Miami Law, on his selection as Beatrice Webb Visiting Professor at the London School of Economics! 

• And congratulations to Edward J. Balleisen, the new Provost of George Washington University! (GW Today)

• Nathan Dorn on Lodovico Carerio: Heresy, Lawbooks, and the Inquisition in the Kingdom of Naples (In Custodia Legis).   

• Haris A. Durrani, a Prize Fellow in Economics, History, and Politics at Harvard University, has published Engineering the Law: The Complicated Legal History of a Satellite in the American Historical Association's Perspectives on History.

• "The 1874 Arkansas Constitution and records from the convention that produced it are now available online through a collaboration between the University of Arkansas Libraries and the Quill Project at the University of Oxford" (Arkansas News) 

• Lawbook Exchange's April catalogue of Scholarly Law and Legal History.     

• The National Constitution Center has announced the opening on May 15 of "Governing the Nation, a new permanent gallery exploring the Constitution’s system of separated powers."  Its development was guided by "a distinguished scholarly advisory board representing leading universities and research institutions, ensuring a rigorous and balanced exploration of the separation of powers and federalism," including H. W. Brands, Cristina Rodríguez, Yuval Levin, Michael Klarman, Gail Heriot, and Ilan Wurman.

• Deborah Rosen reviews Andrew Fede's A Degraded Caste of Society in the Journal of Southern History.

• That E.O. on the PRA:  The American Historical Association and American Oversight file suit (CBS News).  The Trump Administration Is Trying to Erase Its Own History (Atlantic Daily).  Joyce Vance with the court filing (Civil Discourse).  The AHA's notice of the lawsuit.

• More on Birthright Citizenship: Steve Vladeck, Georgetown Law, on the "pitched battle within the legal academy over the fairly transparent efforts of a small cohort of right-wing law professors to provide a fig leaf of historical support for the Trump administration’s legally and morally odious position in the birthright citizenship case" (One First). Philip Hamburger, Columbia Law, on Allegiance, Birthright, and Citizenship (Law & Liberty).  For a brief time only, you may read, open access, the introduction to Anna O. Law's Migration and the Origins of American Citizenship, here.

• ICYMI:  In the National Constitution Center's series, "Constitutional Voices": W.E.B Du Bois and Elizabeth Cady Stanton.  Kevin Kruse rethinks the Civil Rights Movement (Campaign Trails).

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

Kohtz on a Successful Challenge to an Indian Boarding School

Rong Kohtz, a historically minded attorney-at-law, has posted In re Lelah-Puc-Ka-Chee: A Case Study on the Americanization of Law in the Heartland, 1898-1908:

Lelah Puc-Ka-Chee (SHSI via Wiki)

From 1899 to 1908 in Iowa, the Meskwaki people and their local allies repeatedly defeated forcible removal of their children to a federal Indian boarding school in a series of legal actions during the zenith of hostile assimilation.  The case of Lelah-Puc-Ka-Chee was the first one of these cases.  The Meskwaki’s legal victory unsettles the prevailing historical account that casts Indigenous peoples as passive and reactionary to the U.S.’s assimilationist Indian policies and calls for re-examination of Indigenous Americans’ role in the evolution of American law.  By examining the power dynamics in the cases regarding Lelah-Puc-Ka-Chee, this essay investigates how far was the reach of the colonial administrative and judicial powers in the lives of Indigenous families and individuals, and what forces accelerated, slowed, or redirected the colonial powers in the domestic sphere at the local level.  In this exploration, the essay finds powerful Indigenous forces in the Americanization of law, and Indigenous Americans role as progenitors of a pluralistic American polity. 

--Dan Ernst

Ritger's "Houses of Correction"

Matthew Ritger, Dartmouth College, has published Houses of Correction: Carceral Institutions and Humanist Culture in Early Modern England (University of Pennsylvania Press):

More than 250 years before the rise of the modern penitentiary, houses of correction pioneered the use of forced labor and individualized sentences within institutions of confinement, promoting reform and the “hope of amendment” for every individual. Yet these earlier carceral institutions faced many of the problems that remain familiar today: corruption scandals, recidivism, and abuses of power.

In Houses of Correction, Matthew Ritger turns to the archives of England’s first house of correction, Bridewell, to show how humanist reformers provided ideas, justifications, and administration for what came to be called bridewells, workhouses, and “Literary worke-houses,” even as repeated scandals made it clear that these coercive institutions would forever be at odds with the ideals of humanist culture. Examining how the work of writers including More, Shakespeare, and Milton dealt with humanism’s entanglements with these new prisons, Houses of Correction constructs the first book-length literary history of some of early modern Europe’s most influential carceral institutions. 

--Dan Ernst 

Sanders, "Parliament's American Shadow"

We missed this one from earlier this year: Anthony B. Sanders (Institute for Justice, University of Minnesota) has posted "Parliament's American Shadow." The abstract:

In the first century after 1776 American courts repeatedly compared their constitutional system's understanding of sovereignty-where the people are sovereign and speak through written constitutions and where legislatures are subordinate-with the British system where Parliament itself was sovereign. This distinction was central to the invention of judicial review. In 1776 Americans rejected British rule and Parliamentary sovereignty. But that did not necessarily mean they had to embrace popular sovereignty and written constitutions. Yet they did, and that choice led to the rise of judicial review just a few years later. American judges understood this genealogy and therefore found the "omnipotent" Parliament an incredibly useful rhetorical device when justifying judicial review. At the same time, judges used "Parliament" in other contexts, including the exact opposite-justifying judicial restraint-and also to shame American legislatures for at times behaving worse than Parliament did. 

This Article reviews the use of "Parliament" as a rhetorical device in American courts from the Republic's earliest days. After a review of the centrality of the Crown in Parliament in the British constitutional system and the choices Americans made in the Revolution to embrace a constitutional architecture that would lead to judicial review, it examines various cases where American judges repeatedly invoked what the Article calls "Parliament's shadow." Two well known examples are Calder v. Bull and Vanhorne's Lessee but there were numerous others. The review demonstrates that this practice continued at around the same frequency from the late eighteenth century through the mid-nineteenth century. However, the Article then documents that Parliament's shadow ebbed, steadily, in the late nineteenth and early twentieth centuries, essentially had disappeared by the mid-twentieth century, and has never rebounded. Although American courts today still sometimes compare the British constitutional system to the American, it is extremely uncommon. 

Why after the repeated use of Parliament's shadow over the first century of the United States did American courts slowly give it up? There is no clear answer but the author offers some suggestions. One is that after the Revolution passed out of living memory, although judicial review itself was secure, the connection between it and the Revolution's change in systems of sovereignty became less front of mind. Another, and perhaps the most important, is that as the title of "top nation" passed from Britain to America the shadow of Parliament inevitably receded. 

Read on here.

-- Karen Tani 

OAH Binkley Stephenson Award to Lim

The Organization of American Historians has announced its 2026 award winners, and among them is Julian Lim (Johns Hopkins). Lim won the Binkley-Stephenson Award for her article "Plenary Powers: Chinese Immigration, Sovereignty Challenges, and the Making of Federal Immigration Power in the U.S. West," Journal of American History 112, no. 3 (2025). This award "is given annually . . .  for the best article that appeared in the Journal of American History during the preceding calendar year." 

-- Karen Tani 

OAH Merle Curti Award to Lew-Williams for "John Doe Chinaman"

The Organization of American Historians has announced its 2026 award winners, and among them is Beth Lew-Williams (Princeton University). She won the Merle Curti Award for John Doe Chinaman: A Forgotten History of Chinese Life under American Racial Law (Harvard University Press, 2025). This award recognizes "the author of the best book in American social history."

-- Karen Tani  

Hamilton's "Nothing Less Than Equality"

Tikia K. Hamilton, Loyola University Chicago, has published Nothing Less Than Equality: The Battle over Segregated Education in the Nation’s Capital (University of Chicago Press):

The landmark Brown v. Board of Education case, which barred racial segregation in American public schools, wasn’t the only path for Black parents, teachers, and activists who sought equality of educational opportunity. Some believed that the solution to inequality lay in pressing the federal government to live up to the Jim Crow doctrine of “separate but equal” by providing more resources to Black schools. And for a time, this seemed true in Washington, DC, where Black activists leveraged their status as residents of the nation’s capital to advocate on behalf of Black education. However, disappointments with the “separate but equal” strategy and a sea change in activism led to an embrace of integration.
 
In Nothing Less Than Equality, Tikia K. Hamilton reveals the rich and complex history of educational activism in Washington prior to Brown v. Board of Education, illuminating complex dynamics that provide a counterpoint and backdrop to the landmark Supreme Court case. Hamilton thoroughly examines the multipronged strategies employed by parents, teachers, attorneys, and activists to democratize education, demonstrating that there was no linear path to Brown. 

--Dan Ernst 

Zelizer, ed., "The Presidency of Joseph R. Biden: A First Historical Assessment"

 

Out today from Princeton University Press: The Presidency of Joseph R. Biden: A First Historical Assessment, edited by Julian E. Zelizer (Princeton University). A description from the Press:

The Presidency of Joseph R. Biden presents a first draft of history by providing insights into how this one-term president fits within the broader historical forces shaping the United States in the twenty-first century. Acclaimed political historian Julian Zelizer brings together some of today’s leading scholars to give balanced and strikingly original assessments of the major issues of the Biden years, from education and reproductive rights to the economy, labor relations, climate policy, race, Russia’s invasion of Ukraine, and the culture wars.

These incisive essays trace the full arc of Joe Biden’s presidency from its early successes to the setbacks that ultimately consumed it. His domestic legislative achievements were hailed by some as the most momentous of any American presidency since the Great Society while his foreign policy ably met the challenges posed by the nation’s great power rivals. Yet by late 2024, Biden’s legacy was in tatters, overshadowed by immigration, inflation, the war in Gaza, and the president’s obvious physical decline. 

A full list of contributors -- including a number of legal historians:

• Kathryn Cramer Brownell
• María Cristina García
• Joel K. Goldstein
• Daniel C. Kurtzer
• Joyce Mao
• Natalia Mehlman Petrzela
• Khalil Gibran Muhammad
• Timothy Naftali
• Ekaterina Pravilova
• Noah Rosenblum
• Paul Sabin
• Timothy Stewart-Winter
• Sean H. Vanatta
• John Witt
• Mary Ziegler
• Michael Kazin

More information is available here.  Yale Law's notice of Professor Witt's chapter is here.

-- Karen Tani 

OAH Ellis Hawley Prize to Shanahan for "Disparate Regimes"

The Organization of American Historians has announced its 2026 award winners, and among them is Brendan A. Shanahan (Yale University). He won the Ellis W. Hawley Prize for his book Disparate Regimes: Nativist Politics, Alienage Law, and Citizenship Rights in the United States, 1865–1965 (Oxford University Press, 2025). This prize "is given annually by the . . . to the author of the best book-length historical study of the political economy, politics, or institutions of the United States, in its domestic or international affairs, from the Civil War to the present."

An Honorable Mention went to Beth Lew-Williams (Princeton University) for John Doe Chinaman: A Forgotten History of Chinese Life under American Racial Law (Harvard University Press, 2025).

-- Karen Tani

OAH Award for Contributions to Public Policy to Cornell, Ziegler

The Organization of American Historians has announced its 2026 award winners. Among them are Saul Cornell (Fordham University) and Mary Ziegler (University of California, Davis). In the "Excellence in Service" category, they both won the Award for Contributions to Public Policy. The award "recognizes a scholar of any discipline who has made a significant contribution to U.S. public policy through historical research, of any length, published or unpublished." The award also "recognize[s] the historical profession’s contributions to and ongoing obligations in helping to create public policy that is more firmly grounded in sound history."  

-- Karen Tani 

William E. Nelson Memorial Celebration

[We have the following announcement from our friends at NYU Law.  DRE]

The New York University School of Law invites you to celebrate the life and legacy of William E. Nelson ’65, Judge Edward Weinfeld Professor of Law Emeritus, on Tuesday, April 21, at 5:30 p.m. in Greenberg Lounge, located in Vanderbilt Hall at 40 Washington Square South.  Doors will open at 5:00 p.m.  A reception will follow.

Welcome remarks by Troy McKenzie ’00, Dean and Cecelia Goetz Professor of Law, New York University School of Law

Reflections from

John Sexton, President Emeritus, New York University; Dean Emeritus; Benjamin F. Butler Professor of Law, New York University School of Law

Noah Rosenblum, Associate Professor of Law, New York University School of Law

Daniel Hulsebosch, Russell D. Niles Professor of Law, New York University School of Law

Sarah Barringer Gordon, Arlin M. Adams Professor of Constitutional Law and Professor of History Emerita, University of Pennsylvania Carey Law School

Laura Kalman, Distinguished Research Professor, University of California, Santa Barbara

Harvey Rishikof, Visiting Professor, Carnegie Mellon Institute for Strategy & Technology

Hendrik A. Hartog, Class of 1921 Bicentennial Professor in the History of American Law and Liberty Emeritus, Professor of History Emeritus, Princeton University

William LaPiana, Dean of Faculty; Rita and Joseph Solomon Professor of Wills, Trusts, and Estates, New York Law School

Robert Kaczorowski, Professor of Law, Fordham School of Law

Leila Nelson

Jones on the Fugitive Slave Law and Public Rights

Scott Jones has published his YLJ note, The Fugitive Slave Act of 1850: A Public-Rights Paradox:

This Note reconstructs a historical regime that empowered inferior officers to decide matters of life, liberty, and property without judicial oversight. The Fugitive Slave Act of 1850 created a federal administrative apparatus that adjudicated core private rights through federal commissioners who rendered binding, final decisions without the safeguards of Article III.

The administration of this Act challenges the coherence of the modern public-rights doctrine, which purports to draw a formal line between public- and private-rights adjudications. Yet the 1850 Act exposes how that distinction collapses when federal power demands. This Note demonstrates that neither the imperative-necessity nor historical-tradition exceptions can adequately justify this regime within existing constitutional limits. Instead, it argues that the public-rights doctrine has functioned less as a principled constraint on the separation of powers than as a justification that expands to accommodate the state’s political needs.

As courts increasingly rely on historical tradition to define constitutional boundaries in administrative law, this Note shows that historical tradition is far less clear-cut than the “Grand Narrative” of modern administrative law suggests. It reveals that the separation between judicial and administrative power has been shaped by political necessity rather than fixed constitutional principle. The Act complicates the prevailing narratives in administrative law and originalist thought, urging a reevaluation of how constitutional meaning is constructed and state power legitimized.

--Dan Ernst

ICS Seminar: Presidential Power

[We have the following announcement from our friends at the ICS.  DRE]

The White House (LC)

The Institute for Constitutional Studies at The George Washington University Law School is pleased to announce another seminar for advanced graduate students and junior faculty:

Constitutional Controversies: Presidential Power

Disputes about the breadth and limits of the president’s constitutional powers have been recurrent throughout our nation’s history. This discussion-based seminar will explore a series of “constitutional moments” that relate to presidential authority. After examining debates over the structure of the executive branch eventually adopted in Article II, we will consider a variety of constitutional disputes about presidential power, focusing particularly on events during the Washington, Jefferson, Jackson, Lincoln, FDR, Truman, Nixon, and Trump administrations.

Instructors.  Maeva Marcus, a past president of the American Society for Legal History, is Research Professor of Law and Director of the Institute for Constitutional Studies at the George Washington University Law School. She serves as the general editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. Author of Truman and the Steel Seizure Case: The Limits of Presidential Power, she also edited the eight-volume series The Documentary History of the Supreme Court of the United States, 1789-1800 and Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789.

Steven Steinbach, GWU Professorial Lecturer in Law, taught United States History and American Government courses and served as History Department Chair at Sidwell Friends School in Washington, DC. Previously he was a partner in the Washington, DC, law firm of Williams & Connolly LLP, where he specialized in criminal and civil litigation.

Meeting Time. Monday evenings, 6-8 pm

Dates.  August 31; September 14, and 28; and October 5, 12, 19, and 26, 2026.

Location. The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052. The classroom location will be communicated at a later date.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their curriculum vitae and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at icsgw@law.gwu.edu until August 23, 2026. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at maevamarcus@law.gwu.edu.

Additional Information.  There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICS.  The Institute for Constitutional Studies (ICS) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution.  Begun with the assistance of a challenge grant from the National Endowment for the Humanities, the Institute is located at the George Washington University Law School.  To fulfill its mission, the Institute’s seminars explore the important role the Constitution has played in shaping American society.

Sunday Roundup

• The legal historian David Langum has died.  He was a professor or research professor at the Cumberland School of Law of Samford University as a professor of law from 1985 until his death.  His publications include the Hurst Prize-winning Law and Community on the Mexican-California Frontier: Anglo-American Expatriates and the Clash of Legal Traditions, 1821-1846 (University of Oklahoma Press, 1987) and Crossing Over the Line: Legislating Morality and the Mann Act (University of Chicago Press, 1994).  More.

• The Hoover Institution's Alliance for Civics in the Academy hosts "Historical Thinking and Democratic Citizenship" with Mary Clark, Suzanne Marchand, Jeffrey Collins, and Jonathan Gienapp on Wednesday, April 22, 2026, from 9:00–10:00 a.m. PT.

• The recent turn in the originalism wars has moved Dan Farbman, BC Law, to "an Emersonian polemic."

• On Sunday, April 19, 2026, from 2-4 pm, Michael Ross, University of Maryland, will lecture on “The Constitution They Argued Over: Power, Democracy, and Compromise in 1787” at the historic Rice’s Hotel/Hughlett’s Tavern, 73 Monument Place, Heathsville, Maryland (RealRadio).  

• Stephen Lubet, Northwestern Law, on John Brown's Trial and Birthright Citizenship (Slate).   

• A review of James Q. Whitman's From Masters of Slaves to Lords of Lands: The Transformation of Ownership in the Western World by Jane Webster, Newcastle University (BHR).

--Dan Ernst

Weekend Roundup

• An alarming opinion of the Office of Legal Counsel of the US Department of Justice advising White House Counsel that the Presidential Records Act is unconstitutional.  WaPo's story is here.

• 
  Having written about two thirds of a history of a law school, word of a new contribution to the genre always intrigues me.  Here's a notice of Legal Education at the University of Virginia: Tradition and Transformation (University of Virginia Press).  DRE

• In the American Prospect: Felicia Kornbluh (University of Vermont) writes about the Supreme Court's recent decision in Chiles v. Salazar (involving a Colorado ban on "conversion therapy"). The piece also quotes legal historian Marie-Amélie George (Wake Forest University Law School). 

• Via Brian Rosenwald: "Made by History" has a new home. Going forward, it will partner with the Philadelphia Inquirer. New pitch email: madebyhistory@inquirer.com.  

• On Friday, April 10, Alejandro de la Fuente, Harvard University, will deliver the sixteenth annual Presidential Lecture at Tufts University on Slavery, Freedom, Race, and the Law in the Americas.  The lecture will be based on his and Ariela J. Gross’s book, Becoming Free, Becoming Black: Race, Freedom, and Law in Cuba, Virginia, and Louisiana (THR).

• Over at Divided Argument, William Baude hosts a roundtable with Christian Burset, Jonathan Green, and Ryan Snyder on their recent articles, which Baude describes as some of the best contributions to a "recent round of scholarship on history and tradition in legal interpretation."    

• And over at Modern American History, Sarah Seo hosts a roundtable of historians to discuss  "the benefits of and challenges to translating historical scholarship for a legal audience."  With Laura Edwards, Jennifer Mittelstadt, Samuel Erman, Nathan Perl-Rosenthal, Maggie Blackhawk and Ned Blackhawk.

• G. Edward White discovers who pranked the U.S. Supreme Court "by filing a phony cert petition challenging an absurd DC noise ordinance" (Oyez).

• That symposium over at Balkinization on Stephen Skowronek's Adaptability Paradox continues, with, among other contributions, Jeremy Kessler's Material Foundations of American Constitutional Development. 

• The latest issue of the Journal of American History includes several articles of interest to legal historians, including One Person, One Vote? The Gap between Representative Equity and Mathematical Equality after Baker v. Carr, by Alma Steingart, which shows how "litigants, Supreme Court justices, judges, and mathematical experts struggled to align the theoretical concept of political representation with mathematical notions of equality" in the malapportionment cases of the 1960s. 

• The NYT review of Mark Peterson's The Making and Breaking of the American Constitution: A Thousand-Year History (Princeton University Press) and a blog post by the author.

• The April 2026 newsletter of the Historical Society of the District of Columbia Circuit is here. 

• More on Birthright Citizenship.  John Yoo says that it has a long historical precedent (AEI).   Kate Masur  "Fact-Checks President Trump’s Birthright Citizenship Order" (CBS Chicago).  John Mikhail on Jurisdiction, Domicile, and the Ratio Decidendi of Wong Kim Ark (Balkinization).  Yet another dispatch from the war between the law professors on the history of the citizenship clause.  (Courthouse News Service).  And has the distance between law professor Bluesky and NYT opinion page ever been shorter? 

• ICYMI: A new book on Sarah Keys Evans, "The Black Veteran Who Desegregated Interstate Buses" (Mother Jones).  Tom Lee on the Declaration of Independence at 250 (Fordham Law). A Century of Colonial Tariffs (LPE Project).  High school students explore Münster’s legal history (Universität Münster).

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

Dardini on the 14th Amendment, Human Rights, and American Samoa

Ross Dardani, Muhlenberg College, has published, open access, The Influence of Fourteenth Amendment Jurisprudence and the Universal Declaration of Human Rights in the U.S. Empire, in Law and History Review:

This article analyzes the influence of Fourteenth Amendment jurisprudence and the United Nation’s Universal Declaration of Human Rights (UDHR) during congressional debates in 1949 that focused on establishing a territorial government for American Samoa. In these hearings, naval leaders argued that Supreme Court decisions that had interpreted the Fourteenth Amendment as demanding colorblindness and others that established property ownership as a fundamental right, along with the creation of the UDHR, meant that Samoans might not be able to protect their land from further white-settler colonialism if Congress passed legislation establishing a civilian government in American Samoa. U.S. military leaders believed that the Court’s decisions in Buchanan versus Warley (1917) and Shelley versus Kraemer (1948), and the UDHR, could prohibit American Samoa from enforcing race-based land ownership restrictions if lawmakers extended citizenship, equal protection, or due process to American Samoa. Members of Congress, however, believed that the Court’s past rulings in the Insular Cases, models set in other unincorporated territories (e.g., the Philippines and Hawaii), and Federal Indian law established legal precedents that meant Samoans would be able to continue restricting land ownership on the basis of race if they became U.S. citizens and were governed by equal protection and due process. Samoan leaders demonstrated the unsettled nature of constitutional law in American politics by emphasizing that any congressional act that extended citizenship, equal protection, or due process to American Samoa would ultimately be reviewed and interpreted by the Court. For these Samoans, even if members of Congress were interpreting past Court precedents correctly, a future majority of justices could adopt a different understanding of what the extension of U.S. citizenship, equal protection, or due process meant for American Samoa by ruling that non-Samoans had fundamental constitutional rights to land ownership in American Samoa. This article thus helps explain how and why Samoan and naval leaders influenced U.S. lawmakers when Congress was considering legislation that would extend citizenship, equal protection, and due process protections to American Samoa in 1949. This legal history demonstrates how different interpretations of the Constitution, the UDHR, and fundamental rights influenced various actors within the context of the U.S. empire, illuminating the ambiguous nature of constitutional law in the U.S. unincorporated territories.

--Dan Ernst