Using Detective Fiction as a Source

 A question hovered over my head as I worked on Fear of the False: Forensic Science and the Law of Crime in Colonial South Asia: how should I use detective fiction as a source? There was a rich and vibrant world of detective stories in colonial India—in Bengali, Urdu, Hindi, and English, for instance. But unlike my other primary sources, these were fiction... In this 4^th and final guest post for August, I’d like to share some of the ways I got past my initial (disciplinary?) resistance to using fiction as a source. I’m picking up the baton here from Rohit De in his 2020 guest blogposts. 

More after the jump.

Stern on Henry Fielding

Simon Stern, University of Toronto Faculty of Law, has posted Henry Fielding on Crime and Punishment:

Henry Fielding (NYPL)

In his own right as an author on crime, punishment, and questions of social reform and poor relief, and as a pioneering magistrate who organized the Bow Street Runners ("the first English detectives," as John Beattie has called them), Fielding is an important figure in legal history. This chapter discusses Fielding's career as a barrister and then turns to his practice as a magistrate, considering his methods of evidence-gathering and verification, particularly through his approach to cross-examination. The chapter examines the implications of these materials for Fielding's handling of crime and its detection. The discussion then turns to Fielding's doctrinal writings, including the surviving manuscript evidence concerning his ambitious but eventually abandoned treatise on criminal law, An Institute of the Pleas of the Crown, and his Treatise on the Office of Constable. These writings offer a valuable perspective not only on the subjects he addresses there but also on his understanding of a treatise's purpose. 

--Dan Ernst 

Bremer on the Judges Bill and Administering the Courts

Emily S. Bremer, Notre Dame Law School, has posted Making Our Ministry of Justice, which is to appear in Notre Dame Law Review Reflection:

William Howard Taft (LC)

This Essay evaluates the Judiciary Act of 1925 from an administrative law perspective. It argues that principles ordinarily associated with administrative governance pervade the law's origin, purpose, means, and effect. The cumulative result was to transform the Supreme Court from an appellate court of last resort into a ministry of justice, i.e., an agency at the head of a hierarchically organized federal judicial branch. 

--Dan Ernst 

CFP: Rethinking Pakistan through Legal History

[Via H-Law, we have the following CFP.  DRE]

Rethinking Pakistan through Legal History.  Pakistan Legal History Workshop, December 18-19, 2026, IBA Karachi, Pakistan

Law has played a remarkably central role in Pakistan’s political, institutional and social life. From military rulers seeking judicial validation for coups and constitutional interventions, to citizens turning to courts for questions of social justice, property, family, labour and economic regulation, law has remained deeply woven into the fabric of the country.

Yet, despite this ubiquity, the academic study of law in Pakistan remains relatively limited and fragmented. Much legal education continues to be oriented towards professional training, with comparatively less emphasis on legal history, legal theory and historically grounded scholarship. This is particularly striking in the case of legal history. Historical analysis is often treated as peripheral to the study of law, rather than as fundamental to understanding how legal institutions, doctrines and practices emerged and acquired meaning.

At a moment when Pakistan faces renewed debates over constitutionalism, judicial independence, and legal pluralism, this workshop is a timely intervention. It seeks to reframe legal history as foundational, not marginal, to Pakistan’s legal, political, and social understanding — and to build the scholarly infrastructure the field currently lacks. 

Scope.  For the purposes of this workshop, ‘Pakistan’ is understood broadly. It includes the former East Pakistan — now Bangladesh — until 1971, a dimension that much writing on Pakistan forgets, and one that offers valuable comparative perspective. As a history workshop, it also welcomes work on the British Raj, the rule of the East India Company, and the kingdoms and polities that preceded them in the lands now comprising Pakistan, bringing both depth and a broader South Asian frame to the study of Pakistan today.

Legal history is inherently interdisciplinary, and proposals are welcome from history, law, political science, anthropology, sociology, religious studies, public policy, and adjacent fields, as well as from practitioners engaged in historical research.

We particularly encourage submissions that challenge conventional periodisations, cross the 1947 divide, bring East Pakistan/Bangladesh into histories of Pakistan, recover overlooked legal actors and institutions, or demonstrate how historical research can transform our understanding of contemporary legal and constitutional questions.

Format.  This will be a small, intensive two-day workshop, designed to encourage sustained discussion rather than a conventional conference format.  Approximately 8–10 papers will be selected.  Each paper will receive approximately 30 minutes for presentation and 30 minutes for discussion and comments, led by an invited discussant and followed by wider discussion.

The deliberately small format is intended to allow substantial engagement with each paper and to provide participants, particularly early-career scholars, with detailed and constructive feedback.  The workshop will also include opportunities for informal intellectual exchange and mentoring.  A particular aim of the workshop is to provide mentorship to graduate students and early-career scholars developing research in the legal history of Pakistan and South Asia.

Who Should Apply?  We welcome submissions from: Faculty and established scholars; Early-career researchers; Postdoctoral researchers; PhD candidates; Advanced MA/MPhil students; and, Independent scholars whose research engages with the workshop focus. 

Applicants need not be trained as legal historians. Given the interdisciplinary character of legal history, submissions from historians, lawyers, political scientists, sociologists, anthropologists and scholars of related disciplines are particularly welcome.  We are especially interested in work based on original archival research, previously unexplored primary sources, or innovative approaches to existing legal and historical materials.
 
Submission Guidelines.  Applicants should submit:

• An abstract of no more than 500 words, outlining the paper’s central argument, sources and contribution; 
• A short academic biography/CV of no more than two pages.

The proposal should clearly indicate the historical period, geographical focus and primary sources on which the paper is based.  Please send submissions to: pakistanlegalhistory@gmail.com with the subject line: Pakistan Legal History Workshop – CFP The deadline for submissions is September 30, 2026.  Successful applicants will be notified by October 10, 2026.

Publication and Further Outcomes.  The workshop is intended not simply as a standalone academic meeting but as the beginning of a sustained scholarly network in the field of Pakistan’s legal history.  Following the workshop, participants will be encouraged to revise their papers in light of the discussions and comments received. Subject to the quality and thematic coherence of the resulting papers, the organisers intend to explore the possibility of developing a special issue of a leading journal in legal history or South Asian studies.  Participants will also be invited to translate the arguments of their scholarly papers into shorter pieces for wider public audiences, contributing to a broader understanding of the importance of legal history in Pakistan.

Bursaries and Accommodation.  Limited Bursaries of up to USD 500 will be provided for graduate students/early career scholars to defray travel costs. IBA Karachi will provide accommodation for 3 nights for all speakers.  

This workshop is generously supported by the American Society for Legal History. 

Bruhl on Legislative Interpretive Directives

Aaron-Andrew P. Bruhl, William & Mary Law School, has posted The Forgotten History of Legislative Interpretive Directives, which is forthcoming in the Texas Law Review:

This Article addresses an overlooked aspect of the history of legal interpretation: the early emergence of "legislative interpretive directives," enactments in which legislatures instruct courts on the rules for interpreting statutes. Although some modern courts and commentators treat such directives as constitutionally suspect, it is the objection to legislative directives that is new, not the directives themselves. As far back as the early republic, and with increasing frequency in the nineteenth-century age of codification, state legislatures enacted interpretive directives that changed the judicially developed rules. And courts applied those instructions without suggesting that they violated separation-of-powers principles. Early treatise writers sometimes raised pragmatic concerns about the directives' usefulness, concerns that originated in English decisions, but the commentators did not raise constitutional objections. 

This Article reconstructs the long tradition of legislative interpretive directives and chronicles the slow emergence, in the twentieth century, of constitutional doubts about legislative authority to guide statutory interpretation. By recovering the forgotten past of interpretive directives, the Article presents an alternative vision of the division of authority over interpretation. It also provides resources for state courts that want to understand their own constitutional histories. And by tracing the intellectual history of how early receptivity to legislative involvement turned into skepticism, the project contributes to the literature on the rise of judicial power. 

--Dan Ernst 

Curran on the Declaration of Independence and the Declaration of the Rights of Man

 Vivian Grosswald Curran, University of Pittsburgh School of Law, has posted Disentangling the U.S. Declaration of Independence and the French Declaration of the Rights of Man and Citizen, which is forthcoming in the Duke Journal of Comparative and International Law:

Le Barbier's Declaration (wiki)

The American Declaration of Independence and Revolution are linked to the French Declaration of the Rights of Man and Citizen and its Revolution through the mutual, strong influences of the Enlightenment philosophes whom both the American Founding Fathers and the French revolutionaries read. They also were linked through acquaintance and ongoing communication, with the American Declaration serving as a model for the first, but not final, draft of the French one. Both Declarations and Revolutions were to follow divergent paths through time, however, a cause for great concern in nineteenth-century France when intellectuals such as Laboulaye, Tocqueville and Taine, fearful for France’s future in yet another new régime, looked to America’s foundational documents and governmental system to uncover the secrets of America’s stability and of France’s failure to safeguard the principles of 1789. This article proposes that the answers were far less to be found in the U.S. documents or bicameral legislative structure than in a comparative, contextual examination of the two societies, their populations and their political histories. Those were the differences which led France to sink into a Reign of Terror within a few years of its Revolution and to proceed to seesaw among various forms of government thereafter, while the United States was able to enjoy a single Constitution and general political stability.  The aims of each Revolution differed, as did the consequences of those differences, including how each nation perceived and dealt with freedom of religion, the abolition of slavery and the struggle for women’s equality. In France, the Revolution was intended to achieve a total rupture with the past, but France unwittingly fell prey to its past, as the absolutist tradition of the monarchy permeated its ranks in new ways, transforming egalitarianism into repression. In America, the colonists’ chief complaint had been their lack of representation in the British Parliament, not a wish to change a constitutional form of government which allowed for freedom of representation and had a king who bowed to the will of Parliament. After the American Revolution, the French looked to the new country overseas, often both idealizing and distorting it, with a view to how it could be a model for a new France.  The two nations had a common point of departure in the literature of the philosophes which had deeply inspired and captured the imagination of the American Founding Fathers and the French revolutionary thinkers alike. Even a written text, however, is interpretive, such that the texts themselves were a function of what they meant to their readers. Some have thought that the Founding Fathers understood Montesquieu’s intentions better than the French. This article hopes to illuminate twists and turns from a shared point of departure, and to address ongoing debates concerning their nature.  

--Dan Ernst 

Breen and Strang on Jesuit Identity in American Legal Education

John M. Breen, Loyola University Chicago School of Law, and Lee J. Strang, Ohio State University, have posted Jesuit Identity in American Legal Education: An Historical Examen:

Georgetown Law Building, 1891-1971 (credit)

Georgetown University opened its law school in 1870. Today, fourteen universities in the US operate law schools under Jesuit auspices. Making use of St. Ignatius's examen, this article reviews the history of American Jesuit legal education. Most Jesuit schools were founded in the early twentieth century to provide professional opportunities for Catholic immigrants and their progeny. As law schools, these institutions have enjoyed great success in providing their students with the legal knowledge and skills necessary to serve as attorneys, largely mimicking their secular counterparts and satisfying the standards for accreditation. In this historical examen, we review how these schools have succeeded as Jesuit institutions, in the curricula offered, the pedagogies employed, the religious make-up of student bodies and law faculties, and the presence of Jesuits. Despite the contemporary rhetoric of "social justice, " our examen questions whether the intellectual culture and other features at these schools are consistent with a claimed Jesuit identity. 

--Dan Ernst 

Dhaliwal on Du Bois as Legal Realist

Sandeep Dhaliwal, St. John's University School of Law, has posted The Legal Realism of W.E.B. Du Bois:

W.E.B. Du Bois, 1907 (wiki)

The great writer, activist, and scholar W.E.B. Du Bois saw his career unfold alongside the development of Legal Realism, an intellectual movement whose rapid rise to prominence in American legal thought was concentrated in the 1920s and 1930s. Though more often remembered as a sociologist or historian, Du Bois's work contained considerable theorizing about law that tracked key Realist insights. 

But this Article shows that Du Bois wasn't simply another legal theorist. He was an outstanding one, whose own theorizing emerged not through colorblind critiques of classical legal thought (what the Realists did), but through thinking, organizing, and propagandizing against race hierarchy. The slave trade, sharecropping, Lynch Law, race riots, and cases like Bailey v. Alabama comprised his distinct objects of study. And Du Bois's embeddedness in domestic and transnational social movements for civil rights, decolonization, and global peace inescapably shaped his constant thinking toward emancipation. All this fueled an extraordinary range of legal theorizing, from experimental notions of "legal violence," to more mature concepts like the "dictatorship of property," to intertwined critiques of rights, capitalism, and the U.S. Constitution. Such theorizing is not only visible in classic texts, like Du Bois's famous Black Reconstruction, but also in underexamined ones, like his 1896 dissertation on the transatlantic slave trade, and his and the NAACP's remarkable 1947 petition to the new United Nations. 

In charting the development of Du Bois's legal thought, this Article advances two main claims. First, that radical commitments to overcoming racial subordination provide critical pathways to understanding American law. Partisans for racial justice, like Du Bois, have produced profound legal-theoretical insights not in spite of, but because of, their normative commitments. 

Second, that Du Bois belongs in the canon of American legal thought. Who and what comprise the canon is a matter of perennial importance. As someone who thought deeply about law's relation to the project of multiracial democracy in the United States, and that project's inextricable connection to the problem of the global color line, now is as good a time as any to confirm Du Bois's place. 

--Dan Ernst 

Teaching the Japanese American Incarceration

Heart Mountain High School Campus Scene, 1943 (LC)

We have the following announcement.  DRE.]

Federalism in Action: Teaching Japanese American Incarceration During WWII.  Thursday, September 10, 2026, 9am ET.  [Register here.]

Join the National Constitution Center, the UCLA Asian American Studies Center, and Densho for a full-day professional development workshop exploring the incarceration of Japanese Americans during World War II through the lens of federalism and the Constitution. 

Using the World War II incarceration of Japanese Americans as a case study, participating educators will examine fundamental constitutional questions about the scope and limits of government power, the protection of civil liberties during wartime, and the role of the courts in reviewing government action. Through primary sources, historical scholarship, and classroom-ready resources, teachers will consider these questions from multiple perspectives and develop strategies for engaging students in rigorous constitutional inquiry.

Participating teachers will receive a $100 stipend and workshop materials, as well as light breakfast and a boxed lunch (dietary needs will be accommodated).

This program was made possible because of the National Constitution Center and The Asian American Foundation (TAAF). 

Weekend Roundup

• "Annette Gordon-Reed will present 'Thomas Jefferson and the Presidency," as the University of Northern Iowa’s 2026 Constitution Day address on Thursday, Sept. 17, at 7 p.m. in Bengtson Auditorium, Russell Hall," Cedar Falls, Iowa (Clear Lake Mirror Reporter). 

• Western New Mexico University Professor Andy Hernandez's presentation to a recent Children’s Law Institute conference set out "the historical continuum from early state-sponsored practices and the Indian Slave Trade to the residential boarding school era" (WNMU).

• 
  A prince narrates the audiobook of Charles A. Beard’s An Economic Interpretation of the Constitution of the United States. 

• The new Postdoctoral Associates and Mid-Career Fellows at the Baldy Center for Law and Social Policy at the University at Buffalo School of Law include the historians Aaron Jacobs, who studies vigilantism, Eva Vaillancourt, whose current project is the history of European road traffic rules, and University of Kentucky professor Nikki Brown, an expert on race, representation, and African American history.  More. 

• "The Law and Us," a new exhibit at the UK Supreme Court, includes a copy of Magna Carta (Scottish Legal News).   Update: For Women Scotland notes that its case is one of the seventy mentioned.

• A notice of Ava DuVernay's forthcoming documentary on the 14th Amendment.

• Fay Diploma winner Abigail Simon really liked her constitutional history course with Michael Klarman (Harvard Law Today). 

• From the Chronicle of Higher Ed [behind a paywall, unfortunately]: "Higher Ed’s Hidden Corporate Empire," by Michael Banerjee (UC Berkeley). 

• Over at In Custodia Legis: "Giulio Claro: Renaissance Italy’s Would Be Encyclopedist of the Law and his Criminal Law Book"; "150 Years After Her Death: George Sand and the Napoleonic Code of 1804."

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

Croucher on an 1881 Australian Murder Trial

John Croucher, Macquarie University, has posted The Murder at Agnes Banks: Unravelling Truth, Lies, and 19th Century Justice:

The setting for a murder that took place in the early days of the New South Wales penal colony in Australia was the regional town of Agnes Banks. Beginning with an outline of the transported convicts William Williams from England in 1798 and Julia Leahy from Ireland, the paper follows the life of their daughter, Mary Ann, who married the unrelated Robert Williams in 1840, who had the distinction of having all four grandparents as convicts. Some forty years later, in 1881, the now mentally challenged Robert was charged with murdering a neighbour, William Freeman, and was committed to an insane asylum where he remained for the rest of his life. The research reflected in this paper shows that there were numerous flaws in the prosecution's case, which was treated as open and shut. Robert had pleaded not guilty, and there was every chance he was correct. This paper examines the lead-up to the trial and the questions that should have been asked to avoid a possible miscarriage of justice. 

 --Dan Ernst

Henderson on the Oresteia's Jury Trial

Stephen E. Henderson, University of Oklahoma College of Law, has published An Honest Verdict:

In America, we’ve now had 250 years of criminal juries. And our high court will soon decide whether, everywhere in this country, they must consist of the mythic number of twelve. So, there is no better time to turn to where it all began: Aeschylus’s Oresteia. Written and first performed nearly 2500 years ago, and today the only remaining Classical Greek trilogy, it provides the earliest surviving description of jury trial. It is the jury’s very origin story, written to justify and celebrate the transition from clan vengeance to this democratic adjudicatory form of State-monopolized violence, and it speaks as poignantly today as when it won first prize at the Great Dionysia thousands of years ago. For that first jury was not only a voice of the people, but also, and critically, a voice of mercy. 

--Dan Ernst 

Bray and Burset on General Law: The British Empire, the American Republic, and Now

Samuel L. Bray, University of Chicago Law School, and Christian R. Burset, University of Pennsylvania Law School, have posted Why General Law?

It has been almost a century since the Supreme Court said in Erie, "There is no general federal common law." But the general law is in the middle of a controversial revival. Instead of siding with the adherents or detractors of general law, this Essay explores why general law emerges, and why it disappears. Three episodes of the emergence of general law are considered: the rise of general law in the late-eighteenth century British Empire, the rise of general law in the early American Republic, and the rise of general law in twenty-first century originalist and textualist scholarship. In each of these episodes, general law is a solution to a problem of missing law. The law it provides is formally acceptable, abstract, and locally defeasible. These characteristics make general law valuable, but they also tend to make it temporary, as it provides the scaffolding for the construction of a more permanent legal regime.

--Dan Ernst

Teaching for Research

When I started working on my second book, Fear of the False: Forensic Science and the Law of Crime in Colonial South Asia, I created a course to help my research. Specifically, I designed an undergraduate Legal Studies/History course called “History of Forensic Science” (HFS). I’d like to use this 3^rd guest post for August to reflect on how and why this was such a valuable experience.

More after the jump.

ASLH Banff: Draft Program Released

The draft program for the annual meeting of the American Society for Legal History to be held November 12-14, 2026, at the Banff Centre for Arts and Creativity, Banff, Alberta, Canada, is here.  In her email circulating the link, ASLH Secretary Emily Prifogle adds:

Please note that Pre-Conference Symposia and Workshop are open to all ASLH registrants, but that the early modern pre-conference workshop requires prior registration and is capped at 20 participants.

I want to take this opportunity to remind you that now is a great time to register for the conference! Please also use this as an occasion to make reservations in the conference hotel. Staying in the conference hotel benefits the Society, but rooms do often fill up quickly. 

--Dan Ernst

Su on the 12-Person Jury

Wanling Su, Indiana University, Bloomington, has posted her amicus brief in Kian v. Florida (25-6623):

(DRE/DPE Collection)

Williams v. Florida centered on a historical premise: Although the common law jury unquestionably consisted of twelve members, the historical record was too “scanty” to say that the Framers intended that the Constitution preserve the twelve-juror requirement. 399 U.S. at 92–93. The Court could not find “a single instance where concern was expressed for preservation of the traditional number 12.” Colgrove v. Battin, 413 U.S. 149, 156 n.10 (1973). It presumed that the dearth of historical evidence could be attributed to the Founders’ indifference toward the number of jurors seated for trial. In the Court’s words, “the most likely conclusion to be drawn is simply that little thought was actually given to the specific question we face today.” Williams, 399 U.S. at 98–99.

That historical premise hasn’t survived scrutiny. Part of the problem was an incomplete record: historical materials unknown or unavailable to the Court now supply the evidence that Williams thought was missing. Those materials—ranging from Founding-era practices and legal authorities to early American state-court decisions—undermine what Williams inferred from silence. Furthermore, evidence that the Court considered in Williams and subsequently in Colgrove was misunderstood: The supposed Pennsylvania counterexample of smaller juries concerned a pre-Penn regime that vanished more than a century before the Sixth Amendment’s ratification. Dictionaries and treatises that supposedly didn’t show twelve was necessary in fact said just that. Justice James Wilson’s supposed indifference to the twelve-juror requirement was actually commentary on the distinction between grand and petit juries. And a postbellum South Carolina court decision invoked as supposed support for eight-juror panels rested on an extraordinary provision in the State’s 1865 constitution, adopted as part of a racially discriminatory and anti-Reconstruction regime.

With a more complete record and proper understanding of it, the answer to the juror-number question becomes plain. When the Framers guaranteed criminal defendants trial by an impartial jury, they used a settled legal term that meant twelve. 

--Dan Ernst

CFP: Special Issues of the AJLH

[We have the following Call for Proposals.  DRE]

The American Journal of Legal History is a well-established, quarterly publication covering all facets and periods of legal history. We are now accepting Special Issue proposals for 2027.  Deadline: November 30th, 2026

A Special Issue is a peer-reviewed collection of articles centred on a specific theme. Ideally, the theme should focus on a new or distinctive area of inquiry that has not been sufficiently explored in previous AJLH work, holds broad relevance, and aligns with the Journal's aims and scope. This provides an opportunity to collectively explore a new topic, potentially developing insightful new lines of research and practice through interdisciplinary dialogue.

A proposal should contain the following information:

• The names, contact details, and positions of the proposed Guest Editor(s) together with brief biographical details. 

• The title of the proposed special issue. 

• A one-page “call for papers” indicating the main theme, key topics, and methodological foci for submissions to the Special Issue (500 words maximum).  

• A description of the rationale behind the proposal, its planned scope, innovative nature in relation to existing published work, and likely relevance for readers of the American Journal of Legal History (500 words maximum). 

• A list containing titles and short abstracts of any potential contributions, information about the authors and indication of their commitment.  Guest editors are also encouraged to write a substantive introductory article developing the state of the art around the topic. 

• A detailed timetable, including a deadline for the first submission, a period for review and resubmission (done by the Guest editors), and a deadline for final papers.

Key information.  The team of Guest Editors for the Special Issue will handle all manuscripts from their initial submission; they assign reviewers, and they make decisions (reject, revise, conditionally accept) and communicate those decisions to the authors. Guest Editors are encouraged to use a mix of invited and open submissions for the Special Issue, working to actively solicit quality submissions.  However, all manuscripts for the Special Issue must undergo double-anonymised peer review and revisions according to normal AJLH review process. Final acceptance of papers is done in consultation with the Editors of the American Journal of Legal History.  A special issue typically has 5-6 regular length papers, plus editors’ introduction.

Ready to send proposal?  Proposals and queries may be sent to ajlh.editorialoffice@theeditorialhub.com by November 30th, 2026

JACH (Summer 2026)

The Summer 2026 issue of the Journal of American Constitutional History is now online:

Recovering the Lost Pragmatist Promise of Legal Process by Emily F. Regier

Legal Process Theory, a process-focused jurisprudential framework that predominated in the American legal academy in the 1950s with lasting influence on American constitutional development, has for decades since been depicted as a complacent and relativistic jurisprudence, designed to evade controversial value judgments by seeking substantively neutral determinacy in matters of process. I upend this wrongful narrative by recovering the inspiration that Legal Process thinkers took from John Dewey’s democratizing approach to pragmatism, and in particular, from Dewey’s commitments to the interconnection of fact and value and the moral productivity of deliberative and collaborative processes. I argue that Dewey’s rightful influence on Legal Process Theory has been obscured by prominent left-leaning academic accounts that erroneously attribute to him value relativism and a depoliticizing relativist theory of democracy, which Legal Process thinkers supposedly repurposed for the legal domain. But Dewey rejected ethical and intellectual relativism; he also rejected absolutism. I argue that the Legal Process thinker Lon Fuller followed Dewey’s democratizing pathway through these extremes and adapted it to legal theory. I further connect Fuller’s Deweyan jurisprudence to the canonical mid-century Legal Process text written by Henry Hart and Albert Sacks, and to the legal pragmatism espoused by former U.S. Supreme Court Justice Stephen Breyer. Following Dewey, Legal Process thinkers mounted a compelling and synthetic yet underappreciated response to the difficult questions raised by Legal Realism about moral and legal relativism and the relationship between judicial and democratic decision making.

“Perpetuate the Union, and Redeem the Honor of the Republican Name”: Monarchy, Empire, and James Madison’s Negative on State Laws by Zachary Brown

In 1787, James Madison proposed that Congress should wield a “negative” over state laws. Historians, legal scholars, and political theorists have long argued that this veto was the linchpin of his plan for constitutional reform: the mechanism through which the federal government would suppress irresponsible state legislation, especially laws that infringed on individual and minority rights. According to the standard account, Madison’s support for the negative as a check on majoritarianism is emblematic of his deepest constitutional commitments. While other leading nationalists focused primarily on creating a strong federal government, Madison was chiefly concerned with rescuing democracy within the states by curbing the vices of local legislatures. My article argues that this conventional story about the negative—and Madison’s constitutional thought more broadly—is incomplete. Throughout the spring and summer of 1787, Madison’s principal interest was reconciling national power and stability with republican government. His research on confederal and imperial models suggested that only the prerogatives of monarchs had protected federations against the centrifugal force of their parts. Madison came to believe that without these prerogatives, even a strong general government would become impotent and the confederation it governed would dissolve. The negative was his attempt to find an equivalent power to harmonize the union without adopting a monarchy. Madison’s celebrated theories on minority rights and faction developed as he worked out why a national republic could exercise both the negative and its other powers responsibly. Yet the Convention ultimately rejected both the veto and the Madisonian vision of federalism it underpinned. As a result, Madison left Philadelphia convinced that the delegates had created a “feudal system of republics” lacking a replacement for the unifying power of kings.

The Birth of Compact Theory by David S. Schwartz

For claims about constitutional interpretation that hinge on the Constitution’s “original meaning,” it matters whether members of the Philadelphia Convention, or the state ratifying conventions, or the early post-ratification congresses, asserted that the Constitution was a compact of the states; or whether, instead, compact theory was a novelty that gained adherents only much later.

--Dan Ernst 

Histories of Law and Technology: An ASLH Virtual Working Group

[We have the following announcement from the ASLH.  DRE]

Virtual Working Group 2026-2027: “Histories of Law and Technology”

We are delighted to invite legal historians and historians of technology to participate in the “Histories of Law and Technology” virtual workshop during 2026–2027. The group will explore the historical relationship between law and a variety of different technologies, including agricultural, military, industrial, domestic, communication, surveillance, transportation, and reproduction. We imagine historical explorations of key sociolegal concepts such as “technology,” “invention,” and “innovation” that engage not only constitutional law and intellectual property law, but also torts, contracts, and family law (among others), while considering questions of empire, race, Indigeneity, and sovereignty.

Format: In this workshop, we will discuss pre-circulated drafts of works in progress. We will meet monthly during the September 2026–May 2027 academic year (except for December), for a total of eight meetings. We will meet at a set time (to be determined by participants). Each workshop is 1 hour in length.

Participating in the Workshop: Participation in the group is open to scholars from all backgrounds and locations interested in the history of law and technology. (While maintaining a focus on technology, the group will also welcome those working in the history of science and medicine who are also engaging with law and technology.) We especially invite junior scholars, international scholars, as well as historians of technology who would like to become involved with the ASLH. We expect participants to attend most, if not all, of the meetings.

Presenting a Paper in the Workshop: If you would like to present a work in progress in the workshop, please indicate so in your application.

To apply: By August 31, please send the following to K.Swanson@northeastern.edu and jss2110@gmail.com with the subject line “Histories of Law and Technology”

• A brief bio (200 words max)
• A short statement explaining your interest in the topic (300 words max)
• Indication of your scheduling preferences for time of day (EST) and day of the week*

If you want to present a paper, please provide a potential title*

Workshop Coordinator Bios:  Jason Schulman, PhD, is an adjunct instructor in History at New York University and the Jewish Theological Seminary, where he has taught courses on the US constitution, legal theory, and the criminal justice system. His interests are in American constitutional history, religious history, and the history of technology. He is the co-coordinator (with Amy Bix) of the CJH Scholars Working Group on Jewish History and Technology. He is the editor of Holocaust Education in America: Politics and Pedagogy, 1982–2025 (Texas Tech University Press, 2026). He was a 2025 Fulbright Scholar to Australia.

Kara W. Swanson, JD/PhD, is Professor of Law/Affiliate Professor of History at Northeastern University. Her research examines the intersections among technology, science, medicine and law throughout US history, with particular attention to intellectual property and property law, gender and sexuality, race and racism, and empire. Before coming to Northeastern, she was the Berger-Howe Fellow in Legal History at Harvard Law School. Her first book, Banking on the Body: The Market in Blood, Milk and Sperm in Modern America (Harvard University Press, 2014), was a medicolegal history of human body property. Her article “Inventing the Woman Voter: Suffrage, Ability, and Patents,” 19 J. Gilded Age & Progressive Era 559 (2020), received the Martha Trescott Prize from Society for the History of Technology. Her book-in-progress is "Inventing Citizens: A Surprising History of U.S. Inventors, Patents, and Civil Rights."

Gomez-Arostegui on Patent-Infringement and the Right to a Jury Trial

Tomas Gomez-Arostegui, Lewis & Clark Law School, has posted Patent-infringement Actions in the Eighteenth Century and the Right to a Jury Trial:

This Article offers a wide-ranging reappraisal of patent-infringement litigation in the law courts of England in the 18th century. Infringement actions from this period are vitally important. They are foundational to those who work in patents, intellectual property generally, and constitutional law. Most saliently, 18th-century English law and practice continues to influence critical rights and governance in the United States. Litigants today have a Seventh Amendment right to have juries decide the same types of issues that English juries decided in 1791. They also have a constitutional right to have their disputes heard in Article III courts, rather than Article I administrative tribunals, if those types of disputes were heard in the regular English courts during the same foundational period.

To assess these constitutional issues, this Article presents the procedural context and excavates the vital materials needed to do so. Using a broad array of untapped primary sources, including thousands of manuscript records, it discusses the mechanics of infringement litigation in the King’s Bench and Common Pleas, and focuses on how contested issues were allocated between judges and juries. It demonstrates how and why juries dominated the system of adjudicating infringement cases; corrects many misconceptions; and aims to add to the scholarly corpus on 18th-century litigation and trials more generally. Most broadly, it illustrates the kind of historical work that originalism often requires, but which judges, lawyers, and non-specialist scholars usually find too difficult to perform.

Although the history recovered here supports some prior court decisions on these important constitutional issues, it calls many others into question, including those that permit the International Trade Commission to adjudicate patent infringement, as well as those that assign claim construction entirely to judges, validity issues to judges, and enhanced damages to judges. In short, many litigants appear to have constitutional rights where the courts presently deny them.

--Dan Ernst 

Fede on an 1859 South Carolina Segregation Case

Andrew T. Fede has published An Antebellum Protest against Segregation and the Criminal Law Response: A Preview of Jim Crow Law and the Struggle for Civil Rights, open access, in Law and History Review:

Historians have documented resistance to racial segregation in the United States South during the Reconstruction and Jim Crow eras, decades before the civil rights movement of the 1960s. To these protests should be added the until-recently overlooked 1859 case of Pringle, Henry, and Morgan Jackson. They were mixed-race South Carolina men who resisted racially segregated seating in a church’s pews. Some of the white parishioners responded by prosecuting the Jacksons for riot and assault and battery, even though the Jacksons were considered to be white under their state’s laws. This article describes the social and legal context of this antebellum racial segregation, protest, and prosecution. An evaluation of the press report of the trial follows, suggesting that the proponents of this segregation previewed the first phase of Jim Crow law, when they invoked the race neutral criminal law to enforce their “private” segregation. This episode, therefore, could have served as a warning of one way that southerners would continue to impose de jure racial segregation after the Civil War Amendments were ratified. It can also contribute toward the creation of a more coherent Thirteenth Amendment jurisprudence, which includes “private” racial segregation among the badges of slavery that the Amendment prohibits.

--Dan Ernst

Weekend Roundup

• Berkeley Law's notice of its new legal historian, Aaron Hall (UC Berkeley Law).  

• Daniel F. Gosling, Principal Legal Records Specialist at UK's National Archives, has announced the completion of his searchable database of 

• Legal Histories of Empire has posted a "save the date" for its fifth conference, 13-15 July 2028, at NLSIU Bengaluru.   

• The University of Kansas's notice of Raj Bhala's article on the rule of law in “Measure for Measure" (KU News).

• The Library of Congress has a new research guide on the Legal Tender Act of 1862.

• Kevin Kruse on The Rise, Fall, and Possible Rebirth of the DOJ's Civil Rights Division (Talking Feds with Harry Litman). 

• Julia Rose Kraut, Sam Lebovic and Ellen Schrecker's amicus brief in an ideological deportation case, AAUP v. Rubio (1st Cir.) (Brennan Center).   

• The legal historian Patti Minter has been appointed to Kentucky’s Board of Education (College Heights Herald). 

• 
  Noticed in the New York Almanack: Carol Kammen's Smut: An 1883 Obscenity Trial and Its Echoes Today (Paul Dry Books, 2026), on an 1883 trial for “selling and exhibiting obscene pictures.” 

• Rosemarie Zagarri on The Grievances of the Declaration of Independence: a National Constitution Center podcast.  

• Danielle Allen and Mary Bilder on the Declaration of Independence on Preet Bharara's podcast. 

• Robert P. George, Princeton University, and Jonathan Gienapp, Stanford University, on the Declaration of Independence as the nation’s “promissory note” (SLS Podcasts).

• Did the Constitution Lay the Groundwork for Abolition? A Federalist Society webinar with Timothy Sandefur and Kenneth Williams.  The recording of the National Constitution Center's book even for Mr. Sandefur's new book Proclaiming Liberty: John Adams, Thomas Jefferson, and the Declaration of Independence is here.  

• "Founding Friends, Founding Foes": Kurt Graham and Steve Light on John Adams and Thomas Jefferson, at the Harry S. Truman Library on September 23.   

• A notice of Gautham Rao's course, HIST-196 America at 250: Revolution (AU Magazine).

• Check out Drafting the Past: "a new home to celebrate nonfiction history books." 

• ICYMI: Hangings in Jefferson County, PA (ExploreJefferson).  What the Framers Were Really Thinking (Harvard Gazette).  Ohio in the oleomargarine wars (CNO) .

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

10 Sources I discovered while writing my (second) book

During the 12+ years I spent working on Fear of the False: Forensic Science and the Law of Crime in Colonial South Asia, I came across some truly incredible primary sources. In this 2^nd guest post for August, I’d like to share my top 10. These sources may be useful not just for legal historians working on South Asia or the British empire, but also for those working on criminal cases, forensic science, or related themes in other times or places who want to dip their toe into the comparative context. And as everyone dusts off their syllabi to get ready for the new semester, these sources could also be useful for teaching.

Here they are in no particular order (after the jump): 

Bellis-Phan on Distraint in Early Modern France

Nga Bellis-Phan has posted A Legal Remedy Against Rent Arrears: Landlords’ Privilege on Furniture in Sixteenth- and Seventeenth-Century France, which appeared in Early Modern Debts, 1550-1770 (Palgrave Macmillan, 2020):

The frequent default in rents payments was a real challenge in the rise of urban housing in Early Modern France. Unpaid landlords were protected by customary laws with a creditor's privilege which allowed them to pursue all movable furniture brought in by the tenants, including that which had been fraudulently removed to avoid seizure. This privilege was not necessary when tenants were eager to pay their debts but became useful to minimize economic loss when they disappeared without paying. Although the privilege was confirmed in legal litterature and case law, it faced challenges arising from the royal authority's struggles to organize an efficient procedure of execution on the disputed furniture and a clear hierarchy of privileged creditors.

--Dan Ernst 

Reparations and Restitution

[Via H-Law, we have word of the publication of a special issue (53:2) of istorical Reflections/Réflexions Historiques devoted to Reparation and Restitution.  DRE.]

Reparations and Restitution: Comparative Perspectives on Austria, France, Germany, and the United States 
Julia Roos 

Revisiting the 1825 Indemnity Law in France 
Elisabeth C. Macknight   

Reparations and the Reconstruction of Jewish Livelihoods in Postwar West Germany  
Anna Holian  

Compensation for Nazi Injustice as Administrative Practice: Baden-Württemberg Sinti and Roma Inside the “Contact Zone” 
Joey Rauschenberger 

Reparations as Learning Process?  West Germany and the Nazi-Era Sterilizations of Biracial Rhinelanders 
Julia Roos 

Europeanization through Repair? Austria's Belated Reparations to Holocaust Survivors and Their Descendants in the 1990s and 2000s 
Emily Marker 

The Case for Thinking Comparatively about Reparative Justice: Race and Reckoning in the United States and Germany 
Rita Chin

Moyn on John Fried, Hans Kelsen, and the Vietnam War

Samuel Moyn, Yale Law School, has posted A Letter to Hans Kelsen on the Use of Force:

In the last days of 1966, John Fried wrote a letter to Hans Kelsen. American by emigration, Austro-Hungarian in their origins, and international lawyers both, Fried and Kelsen were colleagues-and family. At the time, Fried, Kelsen's nephew, was the behind-the-scenes organizer of the ragtag band of international law experts contesting America's escalation of the Vietnam war. In the letter, Fried agonized over the authority that Kelsen, by far the most famous international lawyer of the twentieth century, had ostensibly furnished Lyndon Johnson's administration for what had become a gargantuan enterprise-and what had begun, Fried insisted, as a flagrantly illegal war, regardless of its consequences or scope. The letter is a fascinating and moving historical document that has to be deciphered in its context. It is likewise, I believe, a commentary on our own contemporary dilemmas about the uses of international law, or even law as such, and the spirit in which to think about both. After all, we have our wars, too, and our agonizing uncertainties about how and whether to turn to law to restrain them — indeed, about how best to think about law’s relation to morality and politics in the first place. If the rule of law Fried and Kelsen followed, in their different ways, brought them to this, of what use was the rule of law? 

--Dan Ernst 

Kastenberg on Historians and Expert Witnesses in the Ford Libel Case

Joshua E. Kastenberg, University of New Mexico School of Law, has published “Ford is an Anarchist” and “History is Bunk”: William Archibald Dunning and Jesse Siddall Reeves as Precedent for the First Professional Historians Testifying as Expert Witnesses in United States History in the Mississippi Law Journal.  From the introduction:

Automobile magnate Henry Ford infamously stated “[h]istory is . . . bunk,” evidencing his disdain for academic history or even the need to know something of the past. . . . Yet, from July 29 through July 31, 1919, he required the testimony of Columbia University professor William Archibald Dunning [and] one of Dunning’s former students, Ohio State University professor Francis W. Coker . . . to counter University of Michigan professor, Jesse Siddall Reeves, who gave powerful evidence in a Michigan state trial undermining Ford’s claim that the Chicago Tribune libeled him. . . . The Ford v. Chicago Tribune trial that lasted over the summer of 1919 is absent from judicial decisions and law review articles alike, but it marked the first time in history that professional historians testified as experts for adverse litigants in a jury trial.

--Dan Ernst

Cohen's "Gangster of New York"

Andrew Wender Cohen, Syracuse University, has published Gangster of New York: A Violent Life in Nineteenth Century America (Cambridge University Press, 2026).

 This is the story of Louis Bieral, a nineteenth-century gangster, politician, sportsman, and Civil War hero. Kidnapped from his birthplace in revolutionary South America, he doused fires in Jacksonian New York, battled Sumatran pirates with the US Navy, and panned for California gold. As a crime boss, he raced horses, boxed champions, and ran brothels. Yet Bieral's adventurous life was also steeped in the brutality of his time. He befriended rowdies like 'Butcher' Bill Poole, returned fugitives like Anthony Burns to slavery, and assaulted abolitionists such as Richard Henry Dana. As a Union officer, Bieral won fame in battle. He was a Gilded-age bodyguard for 'Boss' Tweed, William Seward, and Jim Fisk, becoming a suspect in that tycoon's murder. From the docks of Valparaíso to the dining room of Delmonico's to the cells of Auburn Prison, Bieral's remarkable journey illustrates the violence that bound nineteenth-century America together.

Professor Cohen is interviewed about the book here. 

--Dan Ernst

Francois and Hershkopff on Pennoyer and Redemption

Aderson Francois, Georgetown University Law Center, and Helen Hershkoff, New York University School of Law, have posted Pennoyer, Due Process, and the End of Reconstruction, which is forthcoming in the forthcoming in the New York University Law Review:

In 1877, the United States withdrew the last of its troops from the states of the former Confederacy and returned the rebel states to “home rule”—actions that are said to be a part of the “Compromise” by which the Electoral Commission of 1876 resolved that year’s contested presidential election and placed the Republican candidate, Rutherford B. Hayes, in the White House. Over the next generation, the country underwent a case of collective amnesia about the causes of the Civil War, in thrall to a “Lost Cause” myth that the South seceded to protect the heroic ideal of states’ rights and not to preserve racial chattel slavery. As is well known, during this period the national government stopped enforcing the civil rights of Black people; the Supreme Court gutted the emancipatory potential of the Thirteenth, Fourteenth, and Fifteenth Amendments; and by law and practice systems of racial subordination became entrenched, as the nation came to celebrate Confederate officials in monuments and institutions.

1877 also is the year the Court heard argument in Pennoyer v. Neff, shortly after those Justices who participated in the Electoral Commission returned to the bench. Pennoyer is of course a case about personal jurisdiction and is a staple of the first-year Procedure course. Scholars treat the decision as an exemplar of formal reasoning, and their analyses of the decision likewise are formal in approach, detached from the concerns of the Civil War and the end of Reconstruction.  By examining Pennoyer in the context of the social and political issues of this period, this Article aims to make sense of the decision’s “central mystery”: why the Court associated its territorial theory of personal jurisdiction with the Due Process Clause of the Fourteenth Amendment—a move that scholars remain unable to explain or justify.

In particular, we argue that Pennoyer’s invocation of the Fourteenth Amendment  helped to set a jurisprudential baseline about state sovereignty that became the conceptual starting point of arguments about national incapacity to enforce the rights of Black people, just as Lochner later set the baseline for arguments about state incapacity to regulate common law  property rights. Moreover, by enforcing rights under the Oregon Donation Act, a federal statute that explicitly excluded Black people from its benefits, Pennoyer rendered invisible for purposes of the Fourteenth Amendment the ways in which legal rules protected, enforced, and preserved property benefits for white people even in the face of de jure discrimination. And Pennoyer provided protection for landowners by making it more difficult for financiers to seize their land when debts came due. At a time when scholars and the Court currently are questioning whether to decouple personal jurisdiction from the due process foundation that is said to trace to Pennoyer, it seems worthwhile to ask how, when, and why they became intertwined in the first place, and what the Fourteenth Amendment gained and lost in the process. 

--Dan Ernst 

CFP: ASLH Projects and Proposals Committee

[Via H-Law, we have the following from the ASLH.  DRE]

The American Society for Legal History welcomes proposals for the funding of new initiatives in the study, presentation, and production of legal historical scholarship and in the communication of legal history to all its possible publics and audiences. The Projects and Proposals Funding Committee is accepting applications now through September 1, 2026. Funding may support conferences, publications, museum exhibits, pedagogical experiments, and other collective pursuits.  For more detail and to access the application form, please visit the ASLH website. 

For information, contact Elizabeth D. Katz, Chair, American Society for Legal History Projects and Proposals Committee, Professor, University of Florida Levin College of Law at 
proposals@aslh.net.

ICS Seminar: Presidential Power

[We're moving up this previously posted announcement, as the deadline for applying is fast approaching. 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.

Mattix's "National Parks and the Supreme Court"

It is publication day for National Parks and the Supreme Court: Groundbreaking Legal Battles (University of Nevada Press), by Carla Chung Mattix, who for over twenty-five years was an attorney for the National Park Service in the U.S. Department of the Interior’s Office of the Solicitor.

Many Americans revere their national parks as places of natural beauty and cultural significance—but few realize how often these landscapes have been shaped by the courtroom as much as by conservation policy. With more than 3,500 lawsuits involving the National Park Service, litigation has defined, defended, and sometimes even threatened the character of the parks. Without these legal fights, the Gettysburg battlefield might be covered with strip malls and the Grand Canyon reduced to a mining site.

This book examines five landmark Supreme Court cases involving national parks—Gettysburg, Yellowstone, Grand Canyon, Death Valley, and the National Mall. Each chapter blends legal analysis with historical context, tracing the origins of the parks and the disputes that brought them before the nation’s highest court. Spanning nearly a century, these cases reveal how the Court has shaped park policy, land use, Native American rights, water law, and free speech.

Through these pivotal decisions, National Parks and the Supreme Court offers a new lens on the contested terrain of the national parks, where legal, environmental, and cultural values collide. By exploring the courts’ influence on public lands, it deepens our understanding of the complexities of managing America’s most cherished landscapes.

Ms. Mattix discusses her "path to publication" here. 

--Dan Ernst 

Yeargain on State Constitutional Checks on McCarthy-Era Investigations

Quinn Yeargain, Michigan State University College of Law, has published “Anti-McCarthyism and the Right to ‘Fair and Just Treatment’ in State Constitutions” in the Kansas Law Review 74 (April 2026): 611-653.  From the introduction:

In two states . . . McCarthy-era concerns about abuses of power by executive branch agencies and legislative committees alike prompted constitutional responses. In Alaska's constitution, which was ratified in 1956 and came into effect in 1959, delegates adopted a Fourteenth Amendment-style due process guarantee, but added onto it another sentence: "The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed."  . . .  Less than a decade later, at the 1961-62 Michigan constitutional convention, delegates proposed a new constitution with a nearly identical provision, which voters ratified. . . . 

In this Article, I situate these rights in the broader historical context of the Second Red Scare and state constitutional responses to it, lay out the processes by which the right to "fair and just treatment" were adopted, and argue that their reach has been improperly limited by cramped judicial interpretations. I begin in Section II by exploring the extent to which state constitutions incorporated the tactics and approaches used in the Second Red Scare, focusing specifically on the adoption of disqualification and loyalty oaths, as well as efforts to constitutionalize criminal prohibitions of "subversion."

Then, in Section III, I analyze the proposal and adoption of the right to "fair and just treatment." Relying on constitutional convention records from Alaska and Michigan, both of which include verbatim transcripts and detailed committee reports, I synthesize the debates surrounding these provisions. While the right was not successfully incorporated into any other state or territorial constitution, I discuss the efforts in Guam and Maryland to include such a right in their failed constitutions, as well as other (and more successful) efforts to constitutionalize more limited responses to McCarthy-esque abuses. Finally, in Section IV, I summarize the caselaw from Alaska and Michigan interpreting and applying these rights. While neither state has seen many published opinions from their supreme courts that lay out the right's ambit, the opinions that do exist--often unpublished, nonprecedential opinions from intermediate appellate courts--illustrate the conservative response by the judiciary to this protection. I then argue that these interpretations are unnecessarily limited, and cabin both the text and available historical evidence to avoid the potentially far-reaching implications of these rights.

--Dan Ernst 

Weekend Roundup

• Legal historian Tomiko Brown-Nagin has been appointed dean of the Stanford Graduate School of Education. Stanford's notice is here.
   
• Over at JOTWELL: Bethany Berger (Iowa College of Law) spotlights Lila Teeters Knolle's Indians Now Taxed: Citizenship and Taxation in Settler-Colonial South Dakota, 44 J. Am. Ethnic History 44 (2025); Lisa Owens (UMass Dartmouth) flags K-Sue Park's Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power, 133 Yale L.J. 1487 (2024). 

• From In Custodia Legis: "Murder, He Signed? The Unexpected Death of A Declaration of Independence Signer." 

• We have previously posted about Christina Kexel Chabot's "The Interstitial Executive: A View from the Founding," forthcoming in the BYU Law Review. She has now posted an updated version, which includes historical evidence that bears directly on the Supreme Court's recent decision in Trump v. Slaughter. 

• Nursing Clio is spotlighting undergraduate writing this summer. Here's a post on "Registration of Maternity Homes Act, 1934: Institutional inadequacy and indifference in Irish maternity homes," by Whitney Cowan (St. Olaf College). 

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