Saturday, May 18, 2024

Weekend Roundup

  • Saul Cornell’s contribution to the Slate series, “How Originalism Ate the Law,” is Why the Right Dominates When It Comes to Legal “History.”  (His answer?  “They’re invested in legal education, creating an originalist industrial complex with outsize influence.”)  Also, Thomas Wolf explains the Brennan Center's efforts to mobilize historians to counter the Supreme Court's historical claims.
  • For Members of the American Society for Legal History:  A reminder that the ASLH  has announce "a new virtual initiative – the Early Career (Virtual) Legal History Workshop – designed to provide support and intellectual community to early career scholars working in legal history, broadly defined.  Applications are invited from early career, pre-tenure scholars, publishing in English, who have completed PhDs or JDs (those working toward a JD/PhD must have completed the PhD)."  Deadline for Applications: June 30, 2024More.
  • "History and the Law," a panel conversation "on important moments in American legal history, applying history education to the study and practice of the law, and more," presented as an introduction to the History Pre-Law Concentration at Villanova University (YouTube).
  • Ariela Gross, UCLA School of Law, will lecture on  “Erasing Slavery – How Stories of Slavery and Freedom (in Natchez) Shape Battles Over the Constitution” at the Tuesday, May 28 meeting of the Natchez Historical Society (Natchez Democrat).
  • LHB Founder Mary Dudziak, Emory Law, on the legacy of Korean War at the recent TCU Conference on the Korean War (YouTube).
  • More on that recent conference on the political history of the New Deal at Vanderbilt University.
  • Erika Rappaport, University of California, Santa Barbara, reviews The Rise of Mass Advertising, Law, Enchantment and the Cultural Boundaries of British Modernity, by Anat Rosenberg in the English Historical Review. Christopher Tomlins, Berkeley Law, reviews Joseph Fishkin and William E. Forbath’s The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy in the Journal of Law and Political Economy.  And Ajay K. Mehrotra, Northwestern Law, reviews Andrew Koppelman's Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed, also in JLPE.

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

Friday, May 17, 2024

CFP: The Medieval Academy's Centenary

[We have the following Call for Papers.  DRE]

The Medieval Academy at 100: The 2025 Annual Meeting of the Medieval Academy of America.  Harvard University, Cambridge MA,  20-22 March 2025.

The Centennial Meeting of the Medieval Academy of America will take place on the campus of Harvard University in Cambridge, Massachusetts, hosted by Harvard University, Boston College, Boston University, Brandeis University, Fitchburg State University, the Massachusetts Institute of Technology, Stonehill College, Tufts University, and Wellesley College. While the conference will take place in person, the plenary lectures and some other events also will be live streamed. Plenary addresses will be delivered by Kristina Richardson (Professor of History and Middle Eastern and South Asian Languages and Cultures, University of Virginia), Sara Lipton (Incoming President of the Medieval Academy of America and Professor of History, Stony Brook University), and Wendy Belcher (Professor of Comparative Literature and African American Studies, Princeton University). The Annual Meeting will be followed by the Sunday annual meeting of the Medieval Academy's Committee on Centers and Regional Associations (CARA). [More.]


Thursday, May 16, 2024

JACH (Spring 2024)

The Spring 2024 issue of the Journal of American Constitutional History has now been published.

Ida B. Wells’s Train Ride in Memphis and the Dawn of Jim Crow
Lee Harris

Most Americans know the story of Rosa Parks; fewer know the story of Ida B. Wells, who contested the nascent Jim Crow laws on the Tennessee railways more than 70 years before Rosa Parks’ famous bus ride. This article profiles Wells’ journey from small-town schoolteacher, to legal challenger in the fight against racial segregation.

Racism, Black Voices, Emancipation, and Constitution-Making in Massachusetts, 1778
David Waldstreicher

Black voices—even disembodied, anonymous, speculative Black voices—were part of the constitutional conversation in Massachusetts in 1777-78. If that isn’t being present at the creation of the American republic, then terms like “founding” and “creation” lose most of their meaning.

The Democracy Effects of Legal Polarization: Movement Lawyering at the Dawn of the Unitary Executive
Deborah Pearlstein

In the 1980s, a conservative legal movement began to advance a unitary executive theory of constitutional power inside the Executive Branch; these efforts functioned to kneecap a suite of post-Watergate ethics reforms designed to guard against corruption or other misconduct by government lawyers, which, over time, has led to an increasingly polarized system in which career advancement, not punishment, awaits lawyers willing to place partisan loyalty above professional obligation. This serves as a troubling case study of the range of harms legal polarization poses to constitutional democracy inside court and out.

Executive Power, the Royal Prerogative, and the Founders’ Presidency
Andrew Kent

[Forthcoming; LHB will update when available.] 

--Dan Ernst

Wednesday, May 15, 2024

Craig's "English Administrative Law from 1550"

Paul Craig, Emeritus Professor of English Law, St. John's College, Oxford, has published English Administrative Law from 1550: Continuity and Change in the series Oxford Legal History:

The commonly held view about English administrative law is that it is of recent origin, with some dating it from the mid-20th century and some venturing back to the late 19th century. English Administrative Law from 1550: Continuity and Change upends this conventional thinking, charting its development from the mid-16th century with an in-depth examination of administrative law doctrine based on primary legal materials, statute, and case law.

This book is divided into four parts. Part I sets out the book's principal thesis, contrasting standard perceptions concerning the existence of English administrative law with the reality of its emergence from the mid-16th century. Part II is concerned with Regulation and Administration from the mid-16th century to the end of the 19th century. There is detailed analysis of the regulatory and administrative state, which includes chapters on the way in which administrative policy was developed through individual decision-making and rulemaking, and the role played by contract in service delivery. Part III deals with Courts and Doctrine. It begins with discussion of foundational precepts followed by chapters on natural justice; review of law and fact; rights; delegation, fettering and purpose; reasonableness; proportionability; prerogative; and third and fourth source power. Part IV of the book covers Remedies and Review, with chapters on invalidity; standing; the prerogative writs; injunction, declaration, quo warranto and habeas corpus; and damages and restitutionary liability.

With thought-provoking and original insights, English Administrative Law from 1550 systematically elaborates and contextualizes the origins of administrative law features while linking them to their modern-day equivalents.
–Dan Ernst

Tuesday, May 14, 2024

Alan Rodger Postgraduate Visiting Researcher at Glasgow

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

The University of Glasgow School of Law invites applications from PhD students in Roman law/legal history for the post of Alan Rodger Postgraduate Visiting Researcher, to be held during the 2024/25 academic year. The selected candidate will spend a term in Glasgow and receive a £2,000 award for support. The deadline for applications is 28 June 2024. Full details are available from our website.

The post was established in memory of Lord Rodger of Earlsferry (1944-2011), Justice of the Supreme Court of the United Kingdom, and scholar of Roman law and legal history.

Contact Information: Ernest Metzger, Douglas Professor of Civil Law, The School of Law, Stair Building, 5 - 8 The Square, University of Glasgow, Glasgow G12 8QQ United Kingdom.

Monday, May 13, 2024

Visions and Realities of Black Freedom in the Nineteenth Century

[We have the following announcement from the Kluge Center via the American Historical Association.  DRE]

Visions and Realities of Black Freedom in the Nineteenth Century.  Wednesday, May 15, 4 p.m. ET

Join the John W. Kluge Center at the Library of Congress for an online event exploring how the United States grappled with the post-emancipation future for Black Americans. In the years preceding and during the American Civil War, antislavery reformers began to imagine what a world without slavery might look like—what shape a post-emancipation society might take. As such ideas clashed with realities in the wake of wartime emancipation, activists came to understand how the struggles for Black freedom and justice would be ongoing. This discussion will be chaired and moderated by Corey Brooks (York Coll. of Pennsylvania), and panelists include Frank Cirillo (Univ. of Michigan), Myisha Eatmon (Harvard Univ.), and Sarah Gronningsater (Univ. of Pennsylvania).

This online event is free and open to the public; registration is required. There is no in-person component for this event. A recording will be available at here in the weeks following the event.

CFP: Legal Histories of Empire IV

[We have the following CFP.  DRE]

Legal Histories of Empire IV: Empires in Touch.  St Michael’s College, University of Toronto, July 10-12, 2025.

Law in Empire. Law among Empires. We invite papers that consider how law has worked within empires at different times and places, how it has worked at the contact points between empires, and how imperial subjects have attempted to work law to their advantage. Law has facilitated, constituted, and enabled connections. People and societies have both suffered and benefitted from the uncertainties produced as empires have spread, imposed themselves on local populations, and competed with each other. Legal ideas have moved with people who had legal training and people without it. Institutions have formed and reformed, succeeded, failed, and produced intended and unintended consequences. In this fourth Legal Histories of Empire conference, we seek to explore these movements and connections, including the construction of illegality and non-legality. We hope to bring together historians working in different legal traditions and with a range of different sources to reveal the threads that have bound, ordered, and separated different empires, places, laws and legal traditions across the globe.

Please send abstracts to by 31 August 2024. Acceptances will be sent by the middle of October 2024. We are pursuing avenues to allow us to provide funding for travel, especially for graduate students and scholars from the Global South. Those interested in seeking funding should sign up for updates from our website.

Format: Chiefly in-person. We may have some limited capacity for online participation. Please indicate on your abstract whether your participation is contingent on the availability of online participation.

Personal information: For each participant (presenter, chair, or commentator), please submit: (1) biographical details of no more than 150 words; and (2) where, and in what timezone, you will be in July 2025 if you are not physically in Toronto.

Individual papers: If you are submitting an individual paper, please submit an abstract of no more than 200 words.

Panels (of no more than 4 speakers: a chair and/or commentator can be included): If you are submitting a panel, please include (1) a panel abstract of no more than 150 words; and (2) individual paper abstracts of no more than 200 words.

Streams.  We anticipate having streams in the program on the following themes, coordinated by the scholars listedbelow. If your proposal is to a particular stream please indicate that clearly in your abstract.

Illegality in Empire: Dr David Chan Smith

The American Empire: Dr Sam Erman

Empire in Oceania: Dr Mary Mitchell

Law in Africa: Dr Yolanda Osondu

Legal Transfer in the Common Law World: Prof Stefan Vogenauer and Dr Donal Coffey

Comparing Empires: Judicial Institutions and Legal Actors: Prof Heikki Pihlajam

Saturday, May 11, 2024

Weekend Roundup

  • The Death Panel podcast has released a conversation with Karen Tani (University of Pennsylvania) and Katie Eyer (Rutgers Law) on their article "Disability and the Ongoing Federalism Revolution," Yale Law Journal (2024). The episode is currently available to patrons only, but will eventually be "unlocked."
  • Welcome to the blogosphere to Legal History Insights, moderated by Thomas Duve, on th doings of the department on Historical Regimes of Normativity at the Max Planck Institute for Legal History and Legal Theory!
  • Boston College Law School has launched the website Black History at BC Law “to honor, document, and celebrate the rich history of contributions from Black BC Law community members as student leaders, educators, academics, judges, activists, litigators, transactional attorneys, and visionaries."  More.
  • Radcliffe Institute for Advanced Studies has announced its 2024-2025 Fellows.  They include Myisha S. Eatmon for “to complete a book on black Americans’ use of tort law to seek justice during the Jim Crow era, and to begin a second project on the legal relationship between black Americans and American Jews during Jim Crow and the Holocaust"; Daphna Renan and Nikolas Bowie, for a book “that contests judicial supremacy ...  and recovers a tradition rooted in abolitionism that allows the American people to define the Constitution democratically”; and Laura Weinrib, for “a book on labor unions, corporations, and money’s role in politics in the United States.”
  • Claire Potter interviews Paul Sabin, Yale University, about his book, Public Citizens: The Attack on Big Government and the Remaking of American Liberalism (Political Junkie).
  • "More than 200 people attended a special community celebration on Saturday, April 27, commemorating the sesquicentennial (150th) anniversary of the construction of Aliʻiōlani Hale, home of the Hawaiʻi Supreme Court." More. H/t Michael Banerjee 
  • The U.S. Capitol Historical Society will host a Native American Suffrage Symposium on Thursday, May 23, "to commemorate the 100th anniversary of the Indian Citizenship Act of 1924.”
  • Legal historians were among the political historians and political scientists at the conference, How the New Deal Was Run, held last weekend at Vanderbilt UniversityKevin Kruse's brief notice of the conference is here
  • New journal alert: "Early Medieval England and its Neighbours is an open access, interdisciplinary journal dedicated to new research on England, its closest geographic and intellectual neighbours, and their wider cultural contacts from the 5th to the 11th century." 

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

Friday, May 10, 2024

ASLH/Notre Dame Graduate Legal History Colloquium

[We have the following announcement, from a press release from Notre Dame Law.  DRE.]

With the financial support of the American Society for Legal History, Notre Dame Law School and the University of Notre Dame Graduate School will host the ASLH/Notre Dame Graduate Legal History Colloquium during the 2024-2025 academic year.

Dennis Wieboldt, a joint J.D./Ph.D. student in history, is spearheading the forum. Associate Dean Randy Kozel and Professor Christian Burset have worked with Wieboldt to launch the colloquium at Notre Dame next year.

The initiative is currently accepting applications from prospective presenters and commentators. Students and faculty members are encouraged to indicate their interest in presenting, commenting, or attending the colloquium here.

The convenings will be held on the Notre Dame Law School campuses in Chicago and South Bend in October and November of 2024, and then again in February, March, and April of 2025. Participants will also be able to join convenings of the colloquium virtually.

The forum will provide budding legal scholars and practitioners with feedback on works-in-progress—an important step in fine-tuning research to a point where it can be submitted for publication. “As the federal judiciary increasingly turns its attention to ‘history and tradition,’” Wieboldt noted, “it is crucial for future leaders in the legal profession to develop the skills necessary to employ historical methodologies and make historically informed claims about the meaning of legal texts.”

“Notre Dame is an excellent place to think seriously about the role of history in contemporary legal practice,” Wieboldt added. “I am excited to welcome students and faculty from other institutions to engage in conversation with members of the Notre Dame community.”

The ASLH/Notre Dame Graduate Legal History Colloquium is open to master’s and doctoral students as well as law students. Students will have the opportunity to present works-in-progress at convenings of the colloquium, and each work-in-progress will have a designated faculty or peer commenter. All works in progress will be pre-circulated to prospective attendees to facilitate a robust discussion.

[And here is more from the registration form.]

Please note that all convenings of the Colloquium will occur on the Notre Dame Law School campuses in South Bend, Indiana, and Chicago, Illinois, from 10 AM to 2 PM local time. All presenters, commenters, and attendees will receive complimentary lunch and refreshments. For those who are unable to attend convenings of the Colloquium in-person, virtual participation opportunities will be available.

The scheduling information provided in this form is subject to change to accommodate presenter and commenter schedules. The preferences you express will inform the Colloquium's final schedule, which will be made available during the summer. Once dates and locations are finalized, prospective presenters and commenters will have the opportunity to confirm their availability before the schedule is released publicly.

For further information about the Colloquium, please visit here.  If you have any questions, please contact Dennis Wieboldt at

Narechania, "Hamilton's Copyright and the Election of 1800"

Tejas Narechania (UC Berkeley) has posted "Hamilton's Copyright and the Election of 1800." The article was published in Volume 2024, no. 3, of the Wisconsin Law Review. The abstract:

Copyright is, perhaps surprisingly, a regular fixture of electoral campaigns. Candidates deploy copyright to obscure prior policy statements. Local governments assert copyright over recordings of public meetings to protect incumbents. And campaign committees have used copyright to prevent counter-advertisements, which respond to (by embedding) their adversaries’ ads. Are these examples of illegal copyright infringement or protected political speech?

The Supreme Court has balanced copyright and First Amendment interests by looking both to copyright law’s internal doctrinal limits (e.g., fair use) and to the “historical record.” But, in political contexts, the doctrine is sparing: candidates for public office, weighing the pressures of campaigning against the costs of copyright litigation, tend to prefer self-censorship—undermining protections for political speech.

The historical record may help. This Article highlights an episode—overlooked until now—that sheds new light on the speech-copyright equilibrium. Drawing on a mix of primary and secondary sources outside the legal literature, it tells the story of Alexander Hamilton’s secret, copyrighted pamphlet aimed at unseating John Adams from the top of the Federalist Party—secret, that is, until it leaked to Hamilton’s political opposition. Viewed in its entirety, this episode may reflect a shared—shared by both Hamilton and his adversaries—if contested understanding that favors a full and fair discussion of such matters of public importance, even if copyright’s rules might otherwise restrain such speech. This political precedent may thus have implications for the contemporary controversies in which candidates deploy copyright (and related speech restraints) to squelch public scrutiny over their prior statements regarding, say, abortion rights. And so this Article concludes by describing how the public governance interests in such political speech should trump copyright’s restraints. 

The full article is available here.

-- Karen Tani

Thursday, May 9, 2024

Papp Kamali's Chair Lecture on Veronica and the Jury

Saints Peter, Paul and Veronica (NYPL)
[Here’s a full report of Elizabeth Papp Kamali’s chair lecture at HLS.  DRE]

What do an iconic first century Christian saint, a 13th century medieval pope, and the twelve women and men currently sitting in judgment of the former United States president in a New York courtroom have in common?

While most observers would surely assume the answer is ‘not much,’ Harvard Law School’s Elizabeth Papp Kamali ’07 might beg to differ. An expert in medieval English law, Kamali argued during a recent lecture that while the origins of the modern jury trial can be traced to a momentous judicial reform enacted by a church council in 1215, England’s broader approach to fact-finding might be better understood by exploring Pope Innocent III’s personal devotion to the saga of Saint Veronica.

Kamali’s comments came during a Harvard Law School event on April 9 celebrating her appointment as the Austin Wakeman Scott Professor of Law. The author, among other works, of the award-winning book, “Felony and the Guilty Mind in Medieval England,” Kamali teaches criminal law and English legal history.  More.

Willrich a Pulitzer Finalist for "American Anarchy"

Congratulations to American Society for Legal History Past President, Michael Willrich upon being named a 2024 Pulitzer Prize Finalist in History for American Anarchy: The Epic Struggle between Immigrant Radicals and the US Government at the Dawn of the Twentieth Century (Basic Books):

A riveting and beautifully written story of how anarchists and their lawyers remade American law, with profound implications for modern jurisprudence, and prompting serious reflection on the meaning and limits of democracy.

--Dan Ernst

Wednesday, May 8, 2024

Call for Applications: Kluge Fellowships

We have the following announcement:

Paid Research Fellowships at the John W. Kluge Center at the Library of Congress

Applications are now open with a deadline of September 15, 2023, for multiple fellowship positions at the John W. Kluge Center at the Library of Congress in Washington, DC.

The Kluge Center exists to further the study of humanity through the use of the large and varied collections of the Library of Congress. All fields and disciplines within the social sciences and the humanities, including interdisciplinary and cross-cultural research, are welcome. Fellows hold book borrowing privileges and are in residence with desk space in the historic Thomas Jefferson Building with access to specialized librarians throughout the Library. Applicants may be US citizens or foreign nationals, and foreign nationals will be assisted in obtaining necessary visas.

Click here to begin your applications.

The Kluge Fellowship hosts 12 scholars each year. Fellowships are for a period of up to eleven months with a $5,000 monthly stipend. Applicants must have received a terminal advanced degree in the last seven years in the humanities, social sciences, or a professional discipline like law or architecture.

Applicants must submit, via our application portal:

  • A completed application form, in English
  • A curriculum vitae (maximum 2 pages; additional pages will be discarded)
  • An abstract describing your proposed research (maximum 500 words)
  • An explanation of how the Library of Congress and its collections will benefit your work (maximum 1 page, 500 words)
  • A completed project proposal including a work plan that identifies project outcomes (maximum 3 pages)
  • A bibliography of works you have consulted for your proposal (maximum 3 pages)
  • Two letters of reference with completed reference forms from people who have read the research proposal

The Kluge Fellowship in Digital Studies is open to scholars whose work encompasses digital scholarship, digital humanities, data science, data analysis, data visualization, and digital publishing that utilize digital collections, tools, and methods. The Kluge Fellowship in Digital Studies provides an opportunity for scholars to utilize digital methods, the Library’s large and varied digital collections and resources, curatorial expertise, and an emerging community of digital scholarship practitioners. Interdisciplinary and cross-cultural research is particularly welcome in the Kluge Digital Studies program. Fellowships are for a period of up to eleven months with a $5,000 monthly stipend.

Applicants must submit, via our application portal:

  • A completed application form, in English
  • A curriculum vitae (maximum 2 pages)
  • A complete project proposal, including:
    • A single-paragraph abstract
    • A statement of proposed research (maximum 3 pages)
    • An explanation of why the Library of Congress is the appropriate venue for your research and what collections you will utilize, if any (maximum 1 paragraph)
    • Description of your technical approach and/or methodology (maximum 2 paragraphs)
    • A bibliography of works you have consulted for your proposal
  • Two letters of reference with completed reference forms from people who have read the research proposal

More information is available here, via H-Net

-- Karen Tani

Tuesday, May 7, 2024

Spitzer on Weapon Restrictions for Minors

Bruen as the Legal Historians' Full Employment Act.  Robert J. Spitzer, SUNY Cortland, has posted  Historical Weapons Restrictions on Minors, which is forthcoming in the Rutgers Law Review:

Since the Supreme Court’s ruling in 2022 that recast the basis for judging the constitutionality of contemporary gun laws according to the existence of historical analogs, all manner of laws have been subject to court challenge, including those that restrict gun access to those under the age of twenty-one. To date, federal courts have split on this question. Given this new, history-based standard for judging the constitutionality of current weapons laws, this article examines the historical record pertaining to how the age of majority was defined in our past and how that pertains to the history of laws that restricted minors’ access to firearms and other weapons. This article offers the most extensive assessment of state laws and local ordinances from the eighteenth and nineteenth centuries to be found to date. In addition, it includes a new and extensive excavation of a wide range of college and university codes in the eighteenth and nineteenth centuries that limited or barred students from having weapons from that time period, the nature and extent to which has not been identified or reported before. All of this information supports the conclusion that the broadly accepted age of majority during this time period was twenty-one.

--Dan Ernst

Monday, May 6, 2024

Meyn on Convict Leasing

Ion Meyn, University of Wisconsin Law School, has posted White-on-Black Crime: Revisiting the Convict Leasing Narrative, which is forthcoming in the Wisconsin Law Review:

Between 1880 and 1915, the Southern criminal legal system enslaved and re-enslaved legally emancipated Black persons. Under the conventional account of this period, the law facilitated and legitimatized these practices, however odious and racially discriminatory. This view—one that critiques as it accepts the legality of the system—provides an explanation for a significant number of cases in which a Black person was convicted and sent to forced labor.

And yet, there is growing evidence that many convictions were not facilitated by law but rather the result of criminal conspiracies to traffic Black victims. County-level arrest data indicates “convictions” occurred in lockstep with the labor demands of businesses that contracted with local state actors. Numerous personal accounts from victims and their families indicate that arrests occurred in the absence of any criminal suspicion. This empirical data suggests many Black “convicts” were instead victims of human trafficking. Because completing these White-on-Black crimes required coordination among multiple parties, a criminal conspiracy was formed that implicated White participants in kidnapping, false imprisonment, perjury, peonage, reckless endangerment, and reckless homicide.

This Essay examines archival evidence that suggests the criminal trafficking of Black men was a common, if not widespread, practice between 1880 to 1915. Under this alternative view the term “convict leasing” is over-inclusive and mislabels these victims of human trafficking. Under the alternative view the historical Black crime rate is not only inflated but fabricated; conversely, the historical White crime rate omits a significant amount of criminal activity. This alternative view centers the criminal conduct of White beneficiaries, inviting a close accounting of their crimes and ill-gotten gains.
--Dan Ernst

Saturday, May 4, 2024

Weekend Roundup

  • The American Historical Association has announced “a Congressional Briefing offering historical perspectives on gerrymandering in legislative districts. The briefing will take place on Thursday, May 16 at 9:00 a.m. ET in Rayburn House Office Building Room 2060.” The panelists are Joanne Freeman, Yale University, Nancy Young, University of Houston, and Julian Zelizer, Princeton UniversityJames Grossman, American Historical Association, will moderate.  
  • ICYMI: A report of the reenactment of Korematsu in the US District Court for the District of Hawaii (United States Courts).  Doris Kearns Goodwin remembers her husband Richard Goodwin (WBUR).  (His HLS class picture, with RBG to one side, alone is worth a click.)

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

Friday, May 3, 2024

Littlewood and Burch on the Cold War Plan to Tax after a Nuclear Attack

It turns out taxes were more certain than death.  Michael Littlewood, University of Auckland Faculty of Law, and Micah Burch, The University of Sydney Faculty of Law, have posted The U.S. Government’s 1967 Plan for the Survival of the Tax System in the Event of a Nuclear Attack, which is forthcoming in the Virginia Tax Review:

In 1967 the U.S. Government produced a plan (the Proposal) designed to ensure the continued operation of the federal tax system in the event of “a major nuclear attack.” The assumptions on which the Proposal was based were horrific: they included that the number of casualties in the United States might number 100 million; that 50% of the country’s real estate might be destroyed; and that its economy might be even more seriously disrupted than those figures suggest. The Proposal produced in 1967 seems to be the first of its kind. Presumably more recent plans have been formulated, but it seems that almost no information about them has been made public.

This article examines the 1967 plan and the thinking behind it. This is worthwhile for three main reasons. First, the formulation of the Proposal is itself a significant event in the twentieth century history of the United States, but almost nothing has been published about it. Secondly, an examination of the Proposal and the relations between the men who devised it provides novel insights into the manner in which the nation was governed in the 1960s, and of the extent to which the Soviet threat lay like a cloud over all aspects of the government’s decision making. Thirdly, although the Soviet Union has dissolved, the threat of nuclear attack has not. The 1967 plan would seem to be the obvious starting point, therefore, for anyone considering what the government’s current plans are — or should be.
--Dan Ernst

Thursday, May 2, 2024

Campbell on the Union at the Founding

Jud Campbell, Stanford Law School, has posted Four Views of the Nature of the Union, which is forthcoming in the Harvard Journal of Law and Public Policy:

John Marshall (NYPL)
This Essay summarizes four Founding-Era views about the nature of the Union and the key interpretive implications that followed from those views. In doing so, it emphasizes the importance of social-contract theory and engages a recent scholarly debate over the influence of the law of nations on Founding-Era constitutional interpretation. Without taking a position about which view of the Union was correct, the Essay aims to illuminate the range of interpretive possibilities, including ones informed more by social-contractarian premises than by the law of nations.

--Dan Ernst

Wednesday, May 1, 2024

The Hinckley Trial: A Reenactment and Discussion

The Historical Society of the District of Columbia Circuit announces the next in its Judge Patricia M. Wald Programs on Life and Law in the Courts of the D.C. Circuit: “The Road to the Release of John Hinckley: Attempted Presidential Assassination, Insanity, Commitment, and the Courts” on Wednesday, June 27, 2024, from 4:30pm to 6pm, in the Ceremonial Courtroom on the 6th floor of the E. Barrett Prettyman U.S. Courthouse.  It will feature a reenactment of pivotal portions of the oral arguments held after John Hickley's insanity acquittal, followed by a panel discussion among experts on the unique challenges presented by this case for the courts, the advocates, the experts and the media and, thereafter, a reception.  Please direct questions to:  Register here.

--Dan Ernst

Tuesday, April 30, 2024

Ruskola on Liberalism, Authoritarianism, and China

Teemu Ruskola, University of Pennsylvania Carey Law School, has posted The Limits of Liberal Justice: On Authoritarianism and Instrumental Theories of Law, which is forthcoming in the Asia Pacific Law Review:

Baron de Montesquieu (NYPL)
In this essay, I use Professor Sucheng Wang's recent book Law as an Instrument: Sources of Chinese Law for Authoritarian Legality as a point of departure for reconsidering the conventional opposition between liberal and authoritarian forms of legality. I suggest that opposition is in turn embedded in an even more elemental distinction between different state forms. Turning to Montesquieu's The Spirit of the Laws, I first investigate the historical and geopolitical processes by which modern political theory reduced the political universe into three species of states (republics, monarchies, and despotisms) and then merely two (democracies and authoritarian states). I then turn to the contemporary genealogy of the concept of rule of law, which arose first as a critique of the rise of the administrative state in the West and then became a means to delegitimize socialist conceptions of legality. I conclude by focusing on the People's Republic of China to evaluate the utility of assessing its legal order in terms of authoritarian legality as well as in terms of democracy more generally.
--Dan Ernst

Monday, April 29, 2024

PhD Fellowship on the Court of Chancery during the English Civil War

[We have the following announcement.  DRE]

University College London and The National Archives are pleased to announce the availability of a fully funded Collaborative doctoral studentship from 1st October 2024, under the Arts and Humanities Research Council (AHRC) Collaborative Doctoral Partnership Scheme.

The PhD project will investigate the records of the Court of Chancery during the English Civil War and Interregnum (c. 1640-1660). The key aims of this project are to better understand how the Court of Chancery was being used by litigants between 1640 and 1660, and to unlock the records of this court through original research and cataloguing. The project has intentionally broad research aims to allow the student to develop their own research questions and answers based on discoveries in these collections. Their initial investigation of these records will provide them with case studies, which can be approached in a variety of ways depending on the student’s interests.

The richness of the records, the high stakes of the litigation, and the political uncertainty of the period promise to make this project an insightful and important archival study which will serve as a benchmark for future studies.

The key research questions of the project are:

  • How did the Court of Chancery function during this tumultuous period?
  • How and for what reason did litigants use this court?

Applicants should ideally have or expect to receive a relevant Masters-level qualification or be able to demonstrate equivalent experience in a setting involving knowledge of and critical reflection on relevant topics, such as Legal History, Constitutional History, and Political History. Suitable disciplines are flexible but might include Law or History.

As a collaborative award, students will be expected to spend time at both the University and The National Archives.

Any questions should be directed to UCL’s Faculty of Laws PhD team at

Applications will be considered following the 24th June application deadline, initially to be short-listed for interview.  Interviews will take place online, via Zoom, in July 2024.

[Tuition fees up to the full-time home rate for PhD degrees. The UKRI Indicative Fee Level for 2024/25 is £4,786 for full-time home students, plus an annual maintenance stipend which will be £21,237 in academic year 2024/25.  Closing date: June 29, 2024.]

Siegel on "History and Tradition" as the Right's "Living Constitutionalism"

Reva Siegel, Yale Law School, has posted The "Levels of Generality" Game, or "History and Tradition" as the Right’s Living Constitution, which is forthcoming in the Harvard Journal of Law and Public Policy:

Why does the Roberts Court appeal to history and tradition as reason to change the law? We see this logic in Dobbs v. Jackson Women’s Health Organization (reversing the abortion right) and in New York State Rifle & Pistol Ass’n v. Bruen (striking down gun-licensing restrictions under the Second Amendment). This Essay shows that what explains the turn to history in these cases is not an identifiable method that directs interpreters how to decide contested constitutional questions but instead a mode of justification. Both Dobbs and Bruen claim that fidelity to the nation’s history and tradition in interpreting the Constitution will constrain judicial discretion as traditional forms of doctrine or openly value-based judgment cannot.

For some years now, I have analyzed the value-laden claims on the past that Americans make as they are arguing about the Constitution as “constitutional memory” claims. As this Essay demonstrates, my account of constitutional memory poses a direct challenge to originalism’s judicial-constraint thesis. What appear to be positive, descriptive claims about the past in constitutional argument are often normative claims about the Constitution’s meaning. I analyze this dynamic in the Justices’ decades-long debate over levels of generality: a judge who employs the most specific level of generality in describing past practice can conceal rather than constrain value-based judgment. And I illustrate this logic at work in United States v. Rahimi, a Second Amendment case before the Supreme Court this Term, in which the Fifth Circuit applied Bruen’s history and tradition analysis to hold that 18 U.S.C. § 922(g)(8), a federal law that disarms persons subject to domestic-violence restraining orders, is unconstitutional under the Second Amendment.

The Essay argues that we are all living constitutionalists now—but, crucially, not all living constitutionalism is the same. A conclusion identifies reasons why the Justices who present appeal to the past as claims of judicial constraint may engage in anti-democratic forms of living constitutionalism.

Update: Emily Bazelon on "How ‘History and Tradition’ Rulings Are Changing American Law" in today's NYT.

--Dan Ernst

Saturday, April 27, 2024

Weekend Roundup

  • Holly Brewer, University of Maryland, discusses the Trump immunity case on the Law Dork podcast Nancy Isenberg, Louisiana State University, does so as well, here.  And Donald Nieman, University of Binghamton does here.
  • Legal history was well represented when the Society for Historians of the Gilded Age and Progressive Era met for its annual luncheon at the annual meeting of the Organization of American Historians.  Laura Edwards, Princeton University, gave the Distinguished Historian Address, “No Account: Rethinking the Narrative of Women and Property in the Late Nineteenth Century.”  Michael Willrich, Brandeis University, won the President’s Book Prize for American Anarchy: The Epic Struggle between Immigrant Radicals and the U.S. Government at the Dawn of the Twentieth Century (Basic Books, 2023).  Elizabeth D. Katz, University of Florida, received Honorable Mention for the Fishel-Calhoun Prize, an article prize for new scholars, for “Sex, Suffrage, and State Constitutional Law: Women’s Legal Right to Hold Public Office,” Yale Journal of Law and Feminism (2022).  And Mazie Hough, University of Maine, won the 2024 JGAPE Best Article Prize for “‘There is Nothing So Sacred as Human Life:’ Infanticide and the State of Maine, 1877-1917.” (SHGAPE Blog).   
  • ICYMI: Throckmorton's Case continues to fascinate decades after we first encountered it in John Langbein's DLI  (The Leaflet).  Ronald G. Shafer on Justice Joseph P. Bradley and the Hayes-Tilden Commission (WaPo Retropolis). A notice of Michael Hoeflich’s Legal Feasts (KU News).

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

Friday, April 26, 2024

Brown on the Pennsylvania Council of Censors and the US Constitution

Angus Harwood Brown, University of Cambridge, has published open access The Pennsylvania Council of Censors and the Debate on the Guardian of the Constitution in the Early United States in the American Journal of Legal History:

In 1776, Pennsylvania established an institution called the Council of Censors, which would be elected every seven years and was tasked with ensuring that the legislative, executive, and judicial branches of government had remained faithful to the constitution. None of the other thirteen colonies would create a similar institution, although Vermont would in 1777. Nor has the Council of Censors enjoyed a positive reputation among historians or constitutional scholars: Gordon Wood, for example, has attacked the institution as ‘a monster [pulled] out of Roman history’. Contemporaries agreed, and the body was abolished in Pennsylvania in 1790 after years of vociferous opposition and was criticized extensively at the Federal Convention in 1787. But the Council of Censors was a remarkably innovative institution, the first designed to enforce a written constitution, created decades before the Supreme Court’s assumption of the power of constitutional judicial review in 1803. This article presents a new history of the origins of the Council of Censors and its reception both in Pennsylvania and across the United States. It challenges prevailing accounts of the origins and purpose of the Council of Censors and argues that it was a product of a new theory of constitutionalism as the codification of popular sovereignty which emerged in the United States in the 1770s in response to the colonists’ fears about legislative overreach. Prior to the nineteenth century, it was only in Pennsylvania that this resulted in the creation of institutions to secure the supremacy of constitutional law over ordinary legislative power. As the final section of this article demonstrates, the idea that the constitution could be enforced against the legislative branch by an independent constitutional guardian—including the Supreme Court—was rejected at the Federal Convention precisely because of its framers’ antipathy to Pennsylvania’s radically democratic constitution.

 --Dan Ernst

Thursday, April 25, 2024

Daly to Speak on Africa's Military Regimes

Samuel Fury Childs Daly, University of Chicago, will present "Forward March: Time and Ideology in Africa’s Military Regimes, 1970-2000," in the EuroStorie research seminar series "Time and Identity" in Room 247, Unioninkatu 33, University of Helsinki, on Friday, May 3, 1:00pm-2:00pm (UTC+2).  You may also join via Zoom.

Across Africa, independence was followed by a wave of military coups and martial revolutions. The men who staged them had utopian visions. In Nigeria and other former British colonies, military officers believed they could remake their countries in the image of an army. Soldiers tried to condition civilians to think like they did—and when that failed they tried to beat the bad habits out of them by force. Militarism became the animating force of African politics. Like its better-known counterparts – communism, capitalism – militarism had a culture, an aesthetic, and a philosophy. It also had a theory of time, and military ideas about temporality permeated military dictatorships. Africa’s military regimes had revolutionary ambitions. Nearly all soldiers were committed to transforming their societies – though they didn’t always spell out what they wanted them to become. Coups were power grabs, but they also came with ideas. After they mopped up the blood in the barracks, soldiers set about governing. The ideology they created – militarism – is one of the twentieth century’s most neglected ideologies.
--Dan Ernst


Wednesday, April 24, 2024

Booth on Policing in Atlanta after Slavery

Jonathon Booth,  University of Colorado Law School, has posted Policing after Slavery: Race, Crime, and Resistance in Atlanta, which is forthcoming in the University of Colorado Law Review:

This Article places the birth and growth of the Atlanta police in context by exploring the full scope of Atlanta’s criminal legal system in the four decades after the end of slavery. To do so, it analyzes the connections Atlantans made between race and crime, the adjudication and punishment of minor offenses, and the variety of Black protest against the criminal legal system. This Article is based in part on a variety of archival sources, including decades of arrest and prosecution data that, for the first time, allow for a quantitative assessment of the impact of the new system of policing on Atlanta’s residents.

This Article breaks new ground in four ways. First, demonstrates that Southern police forces responded to the challenges of freedom: Atlanta’s police force was designed to maintain white supremacy in an urban space in which residents, theoretically, had equal rights. Second, it shows that white citizens’ beliefs about the causes of crime and the connections between race and crime, which I call “lay criminology,” influenced policing strategies. Third, it adds a new layer to our understanding of the history of order maintenance policing by showing that mass criminalization for minor offenses such as disorderly conduct began soon after emancipation. This type of policing caused a variety of harms to the city’s Black residents, leading thousands each year to be forced to pay fines or labor for weeks on the chain gang. Fourth, it shows that the complaints of biased and brutal policing that animate contemporary police reform activists have been present for a century and a half. Atlanta’s Black residents, across class lines, protested the racist criminal legal system and police abuses while envisioning a more equitable city where improved social conditions would reduce crime.
--Dan Ernst

Tuesday, April 23, 2024

The Legal History of the Church of England

Hart has published The Legal History of the Church of England: From the Reformation to the Present, edited by Norman Doe and the Reverend Stephen Coleman, Cardiff University:
The law has often been the site of major political and theological controversies, within and outside the church, including the Reformation itself, the English civil war, the Restoration and rise of religious toleration, the impact of the industrial revolution, the ritualist disputes of the 19th century, and the rise of secularisation in the twentieth. The book examines key statutes, canons, case-law, and other instruments in fields such as church governance and ministry, doctrine and liturgy, rites of passage (from baptism to burial) and church property.

Each chapter studies a broadly 50-year period, analysing it in terms of continuity and change, explaining the laws by reference to politics and theology, and evaluating the significance of the legal landmarks for the development of church law and its place in wider English society.

For the discount price of £80 (20% off), order online at and use the code GLR AT5.

--Dan Ernst.  Table of Contents after the jump.

Monday, April 22, 2024

Rare Book School: Seats Still Available

We hear that there are still a few open seats for the Rare Book School course, "Law Books: History & Connoisseurship," which will be offered June 9-14 in the Yale Law School Library, New Haven, CT.  As we said in an earlier post, the instructors are Mike Widener (rare book advisor, retired curator), who has taught the class since 2010, and Kathryn James (rare book librarian, Yale Law Library), who has been the co-instructor since 2023. The class features extensive hands-on experience with the Yale Law Library's outstanding rare book collection. Details on the class, including comments from past students and links to registration information, are available here.

--Dan Ernst

Waddilove on Equity in 1600

D.P. Waddilove, Notre Dame Law School, has posted Aspects of Equity in 1600: Wills, Forfeitures, and Trusts, which is forthcoming in Essays on the History of Equity, edited by David Foster and Charles Mitchel:

The Court of Chancery in 1600 stood somewhere on the bridge between medieval dispenser of ad-hoc justice and sclerotically rigid Regency court of punctilio. Equity was in an uncertain state, no longer unpredictably free-form, but not yet driven to the regularity of fully precedential lawlikeness.

At the time, the Great Seal was in the hands of Sir Thomas Egerton, Lord Keeper from 1596 to 1603, and Lord Chancellor (as Lord Ellesmere) from 1603 to his death in 1617. Although recognized in his own day and immediately afterward as particularly significant for the development of equity, legal history has tended to disregard him thanks to overreliance upon printed reports, which begin to cover the court meaningfully only after his tenure.

This paper, based on a comprehensive review of the daily record of the court, the Chancery Register, for the legal year beginning 1600 (9 October 1600 - 8 October 1601), considers aspects of equity to assess their state of development and shed light on Egerton's influence. Supplemented with the manuscript Chancery reports first printed by Professor Hamilton Bryson in Selden Society volumes of 2000-2001, it considers three major areas of equitable jurisdiction. Two of these, securities (such as bonds and mortgages) and trusts, are often considered the main jurisdictions of Chancery. The third, disputes over testamentary matters and decedents’ estates, became stereotypically associated with Chancery in Dickens's Bleak House, and also formed a major aspect of equitable jurisdiction. This paper thus sheds light on the nature of equitable development in these major areas in an under-studied period.
--Dan Ernst

Saturday, April 20, 2024

Weekend Roundup

  • Maximilian Del Mar, Queen Mary University of London, will present "Beyond Belief and Deeper than Argument: Character and Intellectual Historiography" in the Helsinki Legal History Series on Monday on April 29.  More.
  • Holly Brewer, University of Maryland, on that historians' brief in the Trump immunity case (Maryland Today).
  • The American Historical Association will conduct a Congressional Briefing “offering historical perspectives on federal safety regulations in transportation” on Thursday, May 9 at 9:00 a.m. ET in Rayburn House Office Building Room 2075.  More.
  • Carol Anderson, Emory University; Orville Vernon Burton, Clemson University; Alexander Keyssar, Harvard University; and J. Morgan Kousser, Emeritus, California Institute of Technology, have signed a Historians’ Amicus Brief in Alpha Phi Alpha Fraternity, Inc., et al., v. Secretary of State of Georgia (Brennan Center). 
  • "The Joseph Smith Papers Project has unveiled its latest historical study aid, Legal Records: Case Introductions. This compilation contextualizes Joseph Smith’s multifaceted interactions with the law, casting light on his roles as a plaintiff, defendant, witness, or judge in approximately 200 cases spanning the years 1819 to 1844" (Church News).
  • Paul Finkelman makes the case for the landmark status of the  home of Alexander Clark, who brought Clark v. Muscatine (1868) to racially integrate the schools of Muscatine, Iowa (Bleeding Heartland).
  • Hardeep Dhillon says that a grossly racialised legal structure was put in place by the British government to compensate Europeans affected in the [Jallianwala Bagh] massacre while undervaluing the claims made by families of Indians killed or injured in the incident” (Indian Express).

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

Friday, April 19, 2024

The Hunt for Iudex Non Calculat

We have the following announcement.  If we taught contracts, we might be tempted to put this on our exam.  DRE]

Whence “iudex non calculat”?  Research Competition 2024 in History of Language and Law

Seventy-five years ago, US professor Curt Gruneberg described “an old Roman proverb” supposedly “indicating the general dislike of Roman jurists against determining amounts by way of mathematical processes.” This proverb was “Iudex non calculat” – “a judge does not calculate.”  Like other writers before and after 1949, Gruneberg failed to cite a source for this supposedly ancient maxim. In fact, even today there is no known reference to “non calculat” in any source before 1850. Or is there?

The Professorship for Legal Linguistics at the Wiesbaden University of Business and Law (EBS Law School) holds the 2024 research competition to crowd-source the oldest available reference to “non calculat.”  Early career researchers and anyone else interested in legal language or history are invited to submit digitized primary sources (written or printed, published or not) containing the exact phrase “(i/j)udex non calculat” prior to 1850. The three oldest sources each win (fame and) a book prize.

The deadline to submit answers to Prof. Dr. Dr. Hamann, JSM, is Sunday, June 20, 2024.  The first, second, and third prizes are a book of your choice and an official award letter.

The Lemmon Slave Case: The Audio Drama

The Historical Society of the New York Courts has announced an event, Celebrating the Enslaved Heroine of the Lemmon Slave Case: A High-water Mark for the New York Courts.  It will include the world premiere of "How Emeline Got Free: An Untold Story of History," which the Society describes as “a 30-minute audio drama that tells the story of the landmark Lemmon Slave Case from the perspective of Emeline Thompson, the eldest of the eight enslaved women and children whose freedom was at stake at this 1852 trial.”  The playing of the drama will be followed by followed by a discussion with the director Mustapha Khan, author of The Eight: The Lemmon Slave Case and The Fight for Freedom, the Hon. Albert M. Rosenblatt, and the actors, moderated by Hon. Dianne T. Renwick, Presiding Justice of the Appellate Division, First Department.
The event will take place on Tuesday, May 21, 2024. From 6:00 - 8:00 PM, livestreamed and in person at the Schomburg Center for Research in Black Culture, 515 Malcolm X Boulevard (135th St and Malcolm X Blvd) New York, NY.  Register here.

--Dan Ernst

Latest Issue of Federal History

Issue 16 of the journal Federal History is now out. Some highlights from the contents:

Two "Reviews in Legal History": David E. Wilkins on Maggie Blackhawk, “Legislative Constitutionalism and Federal Indian Law”; Lisa K. Parshall on Gerald S. Dickinson, “The Fourth Amendment’s Constitutional Home.”
A roundtable on The Partisan Republic: Democracy. Exclusion, and the Fall of the Founders’ Constitution, 1780s–1830s by Gerald Leonard and Saul Cornell: Introduction by Matthew Crow; reviews by Katlyn Marie Carter, Graham G. Dodds, Jessica K. Lowe, Stephen J. Rockwell; author responses by Saul Cornell and Gerald Leonard. 
Full contents are available here.

-- Karen Tani

Thursday, April 18, 2024

Sinanis on Exemplary Damages in 18th- and 19th-Century England

Nicholas Sinanis, Lecturer on the Faculty of Law at Monash University, has published open access Exemplary Damages Practice in Late Eighteenth and Early Nineteenth-Century England in the American Journal of Legal History:

A longer perspective on the modern Anglo-American law of exemplary (or punitive) damages views it as having first begun to emerge after the cases of Huckle v Money and Wilkes v Wood were decided in 1763. This article seeks to further deepen and clarify this perspective. It does so by systematically tracing the evolution of the adjudicative practice according to which English civil juries awarded ‘exemplary damages’ from the period circa 1764 to the early nineteenth century. It shows that this practice scarcely ‘hardened into law’ in the aftermath of the Huckle and Wilkes decisions. In fact, as had been the case long before 1763, for a long time after it, jury determinations as to exemplary damages in common law tort actions remained entirely outside the control of any formal legal doctrine which either of these decisions were taken to have authoritatively recognized.

--Dan Ernst

Stanley-Ryan on Maori History and International Law

Ash Stanley-Ryan has posted Ka mua, ka Muri: He Whakaputanga, Concealed Indigenous Histories, and the Making of International Law, which is forthcoming in Law&History, the journal of the Australian and New Zealand Legal History Society:

He Whakaputanga
This article examines how our understanding of international law is harmed by the systematic erasure of indigenous experiences and histories. He Whakaputanga o te Rangatira o Nu Tireni is used as a case study. The article first considers several methodological considerations for legal historians. A theoretical approach is constructed which centres Maori voices and Te Reo Maori, and accepts that history is both political and contingent. In the next section, two parallel histories are detailed: pakeha stories of he whakaputanga as act to secure Imperial interests; and Maori recollections of he whakaputanga as an affirmation of independence, in response to an ever-more-intrusive world. The two histories are then considered through the lenses of jurisdictional encounter and international legal reproduction. These lenses show how history and law have undertaken a demarcating exercise, concealing Maori histories and removing he whakaputanga from legal relevance. This process has harmed international law, because it legitimises imperialism and hides law’s contingent nature. The article closes by recalling Moana Jackson’s call for ‘honesty about the misremembered stories and the foresight to see where different stories might lead’.

--Dan Ernst