Saturday, July 20, 2024

Weekend Roundup

  • New on the Talking Legal History podcast, Siobhan M. M. Barco, interviews past ASLH president Michael Willrich, Brandeis University, on his book, American Anarchy, a finalist for the Pulitzer Prize in History.
  • Via JOTWELL: Ezra Rosser (American University) reviews Vanessa Ann Racehorse, "Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives," which is forthcoming in the Columbia Human Rights Law Review. The article includes a discussion of "the history of the legal framework for the federal government’s provision of health care in Indian Country."  
  • The  FDR Library has posted to YouTube a recording of that book event on Diana B. Henriques’s Taming the Street: The Old Guard, the New Deal, and FDR's Fight to Regulate American Capitalism
  • ICYMI: Zachary S. Price says “The President Has No Constitutional Power of Impoundment” .(Notice & Comment).  Someone at the New Yorker is reading past ASLH president Lauren Benton's They Called It Peace.
 Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, July 19, 2024

Blackhawk on American Indians and Japanese Internment

Maggie Blackhawk, New York University School of Law, has posted The Crisis in Colonial Administration: American Indians and Japanese Internment, which is forthcoming in the American Historical Review:

On March 24, 1943, Acting Secretary of the Department of the Interior, Abraham “Abe” Fortas, and Director of the War Relocation Authority (WRA), Dillon Myer, agreed to repurpose a former Indian boarding school into the primary prison for camps that interned over a hundred thousand individuals “of Japanese ancestry” during World War II.  Built in 1909 on the homelands of the Navajo Nation and only recently closed to students, the Leupp Training School offered the WRA a foundation upon which to construct a prison for the “aggravated troublemakers” in the ten internment camps.  These “aggravated troublemakers” were largely dissidents—individuals who challenged their detention and forced loyalty oaths through collective action like strikes and other uprisings; these individuals were imprisoned at Leupp without charges or trial, and some were transported to the prison in “coffin-like” four-foot-by-six-foot wooden boxes with a single air hole that only narrowly prevented suffocation during the thirteen-hour trip.

Located 30 miles away from its nearest town of Winslow, Arizona (population ca. 4,500), the Leupp Isolation Center imprisoned approximately 80 of the circa 120,000 Japanese and Japanese Americans detained by the United States—seemingly yet another drop of injustice in a wave of “morally repugnant” policy.  But the Leupp Isolation Center provides a particularly paradigmatic example of the central role of American colonialism in facilitating Japanese internment.  Few scholars to date have drawn connections between American colonialism, Native nations, and Japanese internment.  Even fewer scholars have unearthed the direct, enduring, and broad relationship between the federal government’s efforts to colonize Native people and its efforts to intern people of Japanese ancestry.  Initially, all ten Japanese relocation centers were sited to be built on Indian reservations, and Commissioner of Indian Affairs, John Collier, campaigned to head the project he described as “colonization of the Japanese,” including the administration of all camps he termed “colonies.”  Disputes over how much self-determination to foster at the camps disrupted those initial plans, however, and the agency created to oversee Japanese internment, the War Relocation Authority, cobbled together seasoned colonial administrators from the Indian Service and another, more top-down, colonial administration agency, the Soil Conservation Service.    

This Essay explores how the administrative agencies and actors who built and maintained American colonial projects across Indian Country turned these same tools toward the detention, internment, and incarceration of individuals with Japanese ancestry.  This history is necessarily one of administration—it finds continuities between federal administrative institutions, their officials, and the legal justifications they offered (or did not) in accomplishing their aims.  Disputes between administrative officials over how best to colonize Indian Country spilled over into disputes over how best to intern Japanese Americans and Japanese nationals.  These disputes, in turn, then impacted federal policy for Indian Country as these officials returned to the Indian Service following closure of the internment camps.  This history is a history of American colonialism writ large. It reveals the ways that the American colonial project was not tethered to particular populations (Indians) or contexts (Indian Country) but was instead an effort to build infrastructure—legal, constitutional, technological, bureaucratic—to govern a range of populations.
--Dan Ernst

Thursday, July 18, 2024

Making Connections: New Works in Legal History Series

Making Connections: New Works in Legal History Series.  Sponsored by the American Society for Legal History.  Deadline for Applications: August 15, 2024
The ASLH "Making Connections: New Works in Legal History Series" is intended to foster conversation and connection beyond the annual meeting about exciting new work in the field of legal history or likely to be of interest to legal historians. The series is hosted by the ASLH Digital Initiatives Working Group.  Series Events this year will be 1 hour, 6-7 pm (Central) Wednesday evenings on Zoom.    

Event Structure:  Each event opens with a brief introduction by the author of their book or major article, followed by conversation between the author and an interlocutor of their choice, and closing with conversation with the audience.  There is no expectation that audience members have read the featured work; the format is structured with this in mind.

Eligibility:  Books or Articles published January 2023-December 2024
We encourage scholars at all career stages working in all geographic and chronological fields to apply as well as applications from international scholars.  We welcome applications for events featuring two books or articles in conversation, and events coordinated with another professional society. ASLH membership is encouraged, but not required to present.  Books featured on a panel at the Annual Meeting are not eligible. 

Applications:  (max. 1 page; 12 pt font)

  • Book/Article Author, Title, Publisher (for articles, Journal title) and Publication date
  • Book/Article Abstract (1 paragraph)
  • Author Bio (1 paragraph)(including email)
  • Interlocutor Bio (1 paragraph)(including email)

Please direct Questions & Submissions to: Barbara Welke,

Wednesday, July 17, 2024

Mack on E. Frederic Morrow

Kenneth W. Mack, Harvard Law School, has posted E. Frederic Morrow and the Historical Time of the Civil Rights Movement:

E. Frederic Morrow, between King & Ike (LC)
This article considers the life and career of E. Fredrick Morrow, the first African American White House staffer, whose government service in the Eisenhower White House (1955-61) intersected with the classical phase of the civil rights movement.  It argues that Morrow’s life and career illustrate an important problem with what it calls “historical time.”  Historical time can be defined this way: it is the order of events and the causal forces that historians use to make sense of and organize their narratives and analyses.  Morrow’s life and career illustrate the complex nature of historical time as it pertains to the events with which his life intersected.  He was an important figure in Black Republican politics during the early to mid twentieth century.  He was an equally important figure at the NAACP, and was an important voice in the organization’s leadership as it was debating its future strategy in the early 1940s.  He earned a law degree, but surprisingly chose to burn his bridges as he left the NAACP just before its lawyers were about to begin work on the cases that would comprise Brown v. Board of Education.  Morrow’s life and career, this article contends, help us make sense of these decisions as illustrations of the difficulty of constructing and narrating historical time, particularly as it relates to the civil rights movement.  Indeed, this article contends, historical time helps make sense not only of Morrow’s life but also of the choices and uncertainties that beset mid-twentieth century figures such as Thurgood Marshall and Rev. Martin Luther King, Jr., who acted, planned and promised in a world in which much of the narrative that is now taken for granted concerning civil rights at mid century remained deeply contested and uncertain.

--Dan Ernst

Family and Justice in the Archives

Just published: Family and Justice in the Archives: Historical Perspectives on Intimacy and the Law, edited by Peter Gossage and Lisa Moore (Concordia University Press):

Legal archives offer extraordinary opportunities for understanding intimacies across time and space. Family and Justice in the Archives presents a series of fascinating historical essays that unpack stories of familial, domestic, and sexual intimacy from the records left behind by legal processes, providing rich new insights about family, gender, race, sex, culture, identity, and daily life.

Contributors examine the written traces left by public proceedings that occurred in legally sanctioned spaces of social regulation, from notaries’ offices to criminal and civil courtrooms to legislatures. Focusing on the past two centuries and spanning five continents, the essays explore a wide range of topics including marriage, citizenship, inheritance, indentured servitude, infanticide, juvenile justice, parental abuse, bigamy, and sex work. Mindful of the ethical questions that arise when scrutinizing the details of people’s most vulnerable moments, these authors also demonstrate how individuals navigated and sometimes challenged legal prescriptions and processes to address systemic imbalances of power.

Family and Justice in the Archives reveals the wealth of detail that emerges from a close reading of documents generated by legal processes in the past, offering valuable new perspectives on the complex personal lives of so-called ordinary people in former times.
Here is an endorsement:
“This is a strong collection focusing on intimacy, affect, and emotion as viewed through legal archives. The individual stories told by the authors of Family and Justice in the Archives are compelling, moving, and often tragic. The glimpses and contexts of intimacy that they uncover constitute a major strength and unifying force in the collection. And, the narrative approach, based most often around the histories of specific individuals or kinds of court cases, not only unites the chapters but also makes the issues accessible to a wide audience.” —Bettina Bradbury, professor emeritus of history, York University, adjunct professor, Victoria University Wellington, New Zealand

--Dan Ernst

Tuesday, July 16, 2024

Montalvo's "Enslaved Archives"

Maria R. Montalvo, Emory University has published Enslaved Archives: Slavery, Law, and the Production of the Past:

It is extraordinarily difficult for historians to reconstruct the lives of individual enslaved people. Records—where they exist—are often fragmentary, biased, or untrue. In Enslaved Archives, Maria R. Montalvo investigates the legal records, including contracts and court records, that American antebellum enslavers produced and preserved to illuminate enslavers' capitalistic motivations for shaping the histories of enslaved people. The documentary archive was not simply a by-product of the business of slavery, but also a necessary tool that enslavers used to exploit the people they enslaved.

Building on Montalvo's analysis of more than 18,000 sets of court records, Enslaved Archives is a close study of what we can and cannot learn about enslaved individuals from the written record. By examining five lawsuits in Louisiana, Montalvo deconstructs enslavers' cases—the legal arguments and rhetorical strategies they used to produce information and shape perceptions of enslaved people. Commodifying enslaved people was not simply a matter of effectively exploiting their labor. Enslavers also needed to control information about those people. Enslavers' narratives—carefully manipulated, prone to omissions, and sometimes false—often survive as the only account of an enslaved individual's life.

In working to historicize the people at the center of enslavers' manipulations, Montalvo outlines the possibilities and limits of the archive, providing a glimpse of the historical and contemporary consequences of commodification. Enslaved Archives makes a significant intervention in the history of enslaved people, legal history, and the history of slavery and capitalism by adding a qualitative dimension to the analysis of how enslavers created and maintained power.

 --Dan Ernst

Monday, July 15, 2024

Wiebolt on Jesuits and the Neo-Scholastic Revival

 Dennis J. Wieboldt III, has posted a forthcoming article in the Journal of Law and Religion, The “Crusading Fanatics” of American Law: American Jesuits and the Origins of the Neo-Scholastic Legal Revival, 1870-1960:

Francis E. Lucey, SJ (GULC)
During the early twentieth century, Ivy League legal scholars developed a positivist jurisprudential method known as Legal Realism. Concerned with the law's relationship to social conditions, Realism methodologically triumphed in the elite legal academy and brought to a close what the legal historian Stuart Banner has recently described as the "decline of natural law" in American jurisprudence. Catholic legal scholars in the United States responded to this "decline" by invoking the natural law philosophy of Thomas Aquinas and his (Neo-)Scholastic disciples, arguing that Realism irredeemably divorced law and morality. In so doing, these scholars effectively inaugurated the (Neo-)Scholastic Legal Revival, a decades-long period of debate between Catholic natural lawyers and their positivist contemporaries about the American legal tradition's inextricability from natural law. To understand the history and significance of this debate, this article uncovers the origins of the (Neo-)Scholastic Legal Revival in particular features of nineteenth-century European Catholic intellectual culture that were transmitted to the United States through the Society of Jesus the world's largest Catholic religious order. In concluding, this article examines the lives and legacies of two American Jesuits who became leaders of the (Neo-)Scholastic Legal Revival and who thereby illustrate how recovering the Revival's forgotten history can enrich scholars' understanding of this important period in American legal history.
--Dan Ernst

Sunday, July 14, 2024

Sunday Roundup

  • A notice on the retirement of the legal historian Daniel R. Coquillette (BC Law).
  • Carl Schmitt, "The Nazi Jurist Who Haunts Our Broken Politics" (NYT).
  • Update: In the National Constitution Center’s We the People podcast series, Sai Prakash, University of Virginia Law School, and Michael McConnell, Stanford Law School, discuss the history of presidential power and immunity from the founding to present day, and whether the Court’s decision comports with the original understanding of the Constitution.

--Dan Ernst

Saturday, July 13, 2024

Weekend Roundup

  • The Brennan Center has posted in its podcast series a recording of "Supreme Fact Check," an event from October 2023,  moderated by Adam Serwer of The Atlantic, in which Karen Tani, Kate Masur, and Laura Edwards discuss the Supreme Court’s use of history (Brennan Center Live). 
  • Diana B. Henriques will discuss her book, Taming the Street: The Old Guard, the New Deal, and FDR's Fight to Regulate American Capitalism, over the FDR Library’s YouTube and Facebook pages on Wednesday, July 17, at 2pm ET.  I’ve been reading it this summer and appreciating how Henriques' experience as a financial journalist provides a fresh perspective on familiar landmarks of securities regulation in the New Deal.  The chapters on the fall of Richard Whitney are page-turners.  DRE
  • Holly Brewer says "The Case for Expanding the Supreme Court Has Never Been Stronger" (TNR).
  • Aziz Rana discusses The Constitutional Bind in The Nation's podcast, American Prestige.  A DSA review of the book is here.
  • A notice of past-ASLH president Lauren Benton’s They Called It Peace: Worlds of Imperial Violence (Yale News).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Wednesday, July 10, 2024

Wieboldt on Boston's Red Mass

Dennis J. Wieboldt III has posted Natural Law Appeals as Method of American-Catholic Reconciliation: Catholic Legal Thought and the Red Mass in Boston, 1941-1944, which appeared in U.S. Catholic Historian:

Thomas Aquinas (NYPL)
Amid the Second World War, the Boston College Law School and the Archdiocese of Boston co-sponsored the first Red Mass in New England. Though this liturgy had been celebrated for centuries to invoke divine guidance for legal administrators, the Red Mass tradition emerged in Boston during a particular American Catholic intellectual movement. This movement encouraged Catholic and non-Catholic legal practitioners to predicate their understandings of the American legal tradition on the Natural Law philosophy of Thomas Aquinas and, purportedly, the Founding Fathers. By employing the movement's intellectual resources during Red Mass sermons, Boston's Catholic leaders believed they could demonstrate the philosophical Americanness of U.S. Catholicism. Chiefly responsible for the Red Mass tradition's emergence and sustained influence in Boston was Father William J. Kenealy, S.J., Boston College Law School's dean (1939-1956). The history of the first four Red Masses in Boston suggests that the experience of wartime significantly informed Catholic leaders' postwar conviction that appealing to the Natural Law could offer an effective medium for American-Catholic reconciliation.
As Edward Purcell demonstrated in the Crisis of Democratic Theory and I discovered when I wrote a history of Georgetown Law that covered the same period, how Catholics invoked Natural Law to argue that they belonged in the United States during the years when the nation's exceptionalism was a fighting faith is fascinating.  The story Wieboldt recounts is news to me, and it might provide clues to the thinking of at least some of the Catholics justices on today's Supreme Court.

--Dan Ernst

The History Behind Rahimi

[We have the following announcement from the National Association of Women Lawyers of the first of a two-part series of podcasts, The History Behind U.S. v. Rahimi.  DRE.]

Join NAWL Advocacy Committee Members, Siobhan Barco, Princeton PhD Candidate, and Nicolette Sullivan, Milbank LLP Associate, as they interview a distinguished panel of historians and advocates for freedom from gender-based violence, including, Laura Edwards, Class of 1921 Bicentennial Professor in the History of American Law and Liberty in the History Department at Princeton University, Sara Mayeux, Associate Professor of Law and History at Vanderbilt University, and Margaret Drew, Associate Professor at UMass Law School. This episode kicks off a compelling two-part series exploring the historical context surrounding the Supreme Court case, U.S. v. Rahimi.

Please note that this episode was recorded before the Supreme Court decision was issued in this case. NAWL strongly supports the Supreme Court's decision in U.S. v. Rahimi, upholding federal restrictions preventing those under domestic violence restraining orders from possessing firearms. This ruling reaffirms critical protections against gun violence, particularly for individuals at heightened risk in domestic abuse situations. NAWL remains committed to advocating for policies against gender-based violence recognizing that gender equality cannot be achieved without freedom from gender-based violence.

Monday, July 8, 2024

Lanham on "How W.E.B. Du Bois and the Black Antiwar Movement Reimagined Civil Rights and the Laws of War and Peace"

Andrew Lanham (University of Houston Law Center) has posted "How W.E.B. Du Bois and the Black Antiwar Movement Reimagined Civil Rights and the Laws of War and Peace." The article appears in Volume 99 of the Washington Law Review (2024). The abstract:

This Article reconstructs the history of Black antiwar activism in the twentieth-century United States and argues that Black antiwar activists played a significant but largely forgotten role in the development of both modern civil rights law and the international law of war and peace. The Article focuses on the career of W.E.B. Du Bois, tracing how he built coalitions between civil rights and antiwar organizations to pursue a series of shared legal campaigns. Du Bois’s antiwar work was also representative of a larger tradition, and his career illuminates how a range of Black activists and civil rights lawyers like Pauli Murray, Prentice Thomas, Ella Baker, and Martin Luther King, Jr. creatively merged civil rights and antiwar protest.

These activists redefined the very idea of peace, as both a legal and a political category, to include racial equality. As a result of that conceptual shift, they also advocated for a much richer set of legal proposals to regulate warfare. While mainstream white peace activists and international lawyers in the first half of the twentieth century emphasized a formalistic legal ban on war, Du Bois and other Black activists consistently pursued a much more radical set of structural interventions in the socio-economic system that they believed would, functionally, help to prevent war. Their proposed interventions included global decolonization, economic redistribution, and equal civil, political, and socio-economic rights, which they saw as the path to lasting peace.

This Article recovers the legal and intellectual history of that more radical vision for the law of peace. It shows how a “long antiwar movement” collaborated with the better-known “long civil rights movement” across the twentieth century, and it traces how those collaborations helped remake civil rights and global governance. The Article then explores the normative lessons this history holds for vital debates today about movement building, movement lawyering, and the best legal tools to secure racial equality and constrain the use of military force.

The full article is available here.

-- Karen Tani

Saturday, July 6, 2024

Weekend Roundup

  • Also at Balkinization: an ongoing symposium on Mark Graber's Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University Press of Kansas, 2023). So far, you'll see posts by Evan Bernick (Northern Illinois University College of Law), Rebecca Zietlow (University of Toledo College of Law), Alexander Tsesis (Florida State University College of Law), Travis Crum (Washington University in St. Louis Law), Stephen Griffin (Tulane  Law), and Rogers Smith (University of Pennsylvania).
  • The Brennan Center reviews its Historians' Briefs in the U.S. Supreme Court in the October 2023 term.
  • The July Newsletter of the Historical Society of the District of Columbia Circuit is here.  It features the 1859 trial of Daniel Sickles.
  • The American Historical Association is presenting a Congressional Briefing to provide historical perspectives on the role of the federal government on issues of academic freedom in higher education. The briefing will take place on Thursday, July 11 at 9:00 a.m. ET in Rayburn House Office Building Room 2075.  David A. Bell (Princeton Univ.), Natalia Mehlman Petrzela (New School), and David M. Rabban (Univ. of Texas School of Law) will present.  James Grossman (American Historical Association) will moderate.
  • This panel on Loper-Bright, convened by Neysun Mahboubi and including Cary Coglianese, Emily Bremer, Bridget Dooling, Michael Herz, and Kristin Hickman, sounds in administrative law,  but I found it extremely helpful and thought-provoking about the history of the subject.  DRE 
  • ICYMI: Holly Brewer says The Supreme Court Turns the President Into a King  (New Republic).  The Court Went Too Far on Presidential Immunity (Cato Institute). The Supreme Court’s immunity ruling has a chilling parallel to the Jim Crow era (MSNBC). The Dred Scott of Our Time, says Sean Wilentz (NYRB). Alison LaCroix interviewed on a podcast on The Exoneration of Richard Nixon (Landslide).  Heather Cox Richardson weighs in (PBS Newshour).  Georgia in the house at the Founding (Atlanta History Center).  Steven K. Green, Willamette University, How Jefferson and Madison's partnership shaped America's separation of church and state (Akron Legal News).

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

Friday, July 5, 2024

Residencies in Regimes of Normativity at Max Planck

[We are in receipt of a special edition of the newsletter of the Department of “Historical Regimes of Normativity” of the Max Planck Institute for Legal History and Legal Theory consisting of a call for scholarships and guest residencies for 2025/26.  DRE]

We are looking for outstanding PhD students, post-doctoral or senior researchers who are passionate about legal history and would like to join our department for three or six months.

What Are We Looking for?  Your project should relate to our department’s research agenda. We are especially interested in legal historical studies on:

  • Key concepts of the School of Salamanca;
  • Production of Knowledge of Normativity in the Iberian Worlds;
  • The Papacy (and the Roman Curia) in the early modern and contemporary period.

When Can You Come? Start your research stay on 1 April 2025, 1 July 2025, 1 October 2025, or 5 January 2026.

When is the Deadline? Submit your application by 30 August 2024 via our online application system. We will let you know our decision in October.

What Do You Need to Apply? (1) Research Proposal: Up to 2,500 words explaining how your project fits with our research; (2) References: Contact details of two scholars who can provide references (if needed); and (3) Publications: PDFs of three relevant publications from the last five years.

Please note: Once you get the scholarship, you cannot change the start date or the month.

More information here.

Siegel and Ziegler on "Abortion's New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs and the 2023 Term"

Reva Siegel (Yale Law School) and Mary Ziegler (UC Davis) have posted "Abortion's New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs and the 2023 Term." The abstract:

Since Dobbs v. Jackson Women's Health Organization reversed Roe v. Wade as contrary to the nation's history and traditions, efforts to ban abortion appear as calls for a return to tradition. But criminalization after Dobbs is not a return to the past; it is a new regime, in certain respects less restrictive, and in others far more so. Today, states criminalize access to urgently needed health care for pregnant patients in ways they never have before. Cases in the Court's 2023 Term, Moyle v. United States and Food and Drug Administration v. Alliance for Hippocratic Medicine, demonstrate these trends. Under Dobbs, do abortion bans that break with history and tradition in obstructing access to urgently needed health care violate liberty guarantees of state or federal constitutions?

We present evidence that the nation has long had a tradition of exempting health care from criminalization that extended to abortion law and was expressed in the many state laws cited in Dobbs’s appendices, as well as in the text and case law of the Comstock Act. This tradition demarcated quite self-conscious limits on state action that were reiterated across jurisdictions and over time. We demonstrate that under Dobbs and Washington v. Glucksberg, such a tradition can guide interpretation of the Constitution’s liberty guarantees, even if access was not historically understood as a right. We show that courts in states with abortion bans view history-and-tradition analysis of this kind as faithful to Dobbs and have begun to employ it under their own state constitutions.

Finally, we defend this account of our law against an originalist reading of Dobbs advanced by Professor Stephen Sachs asserting that the Fourteenth Amendment only protects rights historically recognized as such at the time of the Fourteenth Amendment’s ratification. We argue that Sachs’s reading conflicts with important aspects of Glucksberg and Dobbs, misconstrues Dobbs’s reasons for turning to history and tradition, and, in the process, imposes constitutionally offensive status inequalities on the Constitution’s liberty guarantees.

Addressing these questions, we suggest, contributes to the broader debate about how history and tradition can guide constitutional inquiry. Posing concrete questions of Dobbs illustrates how much of Dobbs has yet to be written, showing the many senses in which, as Justice Barrett writes in Vidal v. Elster, “a rule rendering tradition dispositive is itself a judge-made test.”

The full paper is available here.

-- Karen Tani

Thursday, July 4, 2024

Max Planck Seeks Ph.D. Student for "Organising Architectures"

[We have the following announcement.  DRE]

The Max Planck Institute for Legal History and Legal Theory in Frankfurt/Main is a world leader in fundamental research on law. Its three research departments with more than 70 scholars, the unrivalled collections of its specialized library, and its numerous national and international co-operations make it the central research hub for a global scientific community investigating the past, present and future of legal regimes.

We are looking to recruit as of 1 November 2024 a PhD student (m/f/div) for the DFG Research Training Group "Organizing Architectures"

The DFG Research Training Group "Organising Architectures" (3022), which consists of 12 doctoral student positions and in which the Goethe University Frankfurt/Main, the Technical University of Darmstadt, the University of Kassel and our Institute are involved, focuses on architecture as the organized, collective shaping of modern societies through institutions, networks and discourses. This focus is based on the assumption that observation of social orders cannot be separated from architectural formations and that these, like the respective architectures, arise through specific, complex social negotiation processes. A detailed description of the graduate school and more detailed information on applications can be found at the website of the Center for Critical Studies in Architecture.

We are also offering an online information event where we will present the research concept, the study program and the future working methods of the college, and will of course be available to answer any questions. Registration is not required. The link to participate can be found on the website mentioned above.

We welcome applications that demonstrate a serious interest in legal history or in a historical discipline that addresses questions of normativity, as well as a willingness to combine this with the thematic fields of architecture and urban planning.

We expect a qualified, above-average university degree in law or history. Additionally, we expect a willingness to work in an interdisciplinary manner and ideally initial experience in this, the ability, eagerness and readiness to work in a team, presence at Frankfurt and good German or English skills, as well as the willingness to learn the other language.

You will have unlimited access to our world leading library and a multitude of databases. You will be provided with a work space and will receive extensive academic and administrative support. There are generous grants for research trips to archives and libraries, as well as for attending conferences. A variety of personal and career development opportunities is available, including funding for German language classes.

We offer an attractive and international work environment with an unparalleled research infrastructure and a good working atmosphere. The payment is currently €3,008 per month (gross) in the first year, which equals approximately €2,065 after taxes in the first year and €2,195 in the second year, depending on family circumstances, plus a special annual payment. The job is a full time position (currently 39 hours per week). While you will be based in Frankfurt/Main, there are generous opportunities for mobile working (at present, up to 40 per cent per month). The position is a fixed-term appointment for three years, with the possibility of renewal for a further year.

We welcome all applications, regardless of nationality, ethnic and social background, religion and age. We are striving to increase the proportion of female researchers and staff and therefore particularly encourage women to apply. Severely disabled people with the same abilities and qualifications will be given priority. The college also offers support in balancing family and work; there are generous opportunities for mobile working (at present, up to 40 per cent per month). Due to the collaborative nature of the interdisciplinary group, active participation in the qualification and study programme of the research training group is expected.

Application process.  Please submit the following application documents in German or English (compressed into one file, max. 5 MB):

  • A cover letter explaining your motivation for pursuing a doctorate in the Research Training Group, stating in which of the participating disciplines you are pursing your doctorate;
  • CV with information on your course of study and language skills and your academic certificates (scanned);
  • A detailed research exposé of a maximum of 3 pages plus a bibliography for a doctoral project taking into account the academic program of the Research Training Group.

Your application must be submitted online via our application form by the closing date of 28 July 2024.

Contact: Informal enquiries may be directed to PD Dr. Peter Collin ( or - as far as it generally concerns the activities of the Research Training Group – to the spokesperson of the group Prof. Dr. Carsten Ruhl ( or to the co-spokesperson Prof. Dr. Sybille Frank ( For questions as to the terms and conditions of employment please contact Ms. Anna Heym (

Wednesday, July 3, 2024

Reft on US v. Nixon

Ryan Reft's documentary essay on the U.S. Supreme Court's decision of United States v. Nixon (1974), decided fifty years ago, is just out on The Docket.

--Dan Ernst

Sandefur on State "Mandatory" Clauses

Timothy Sandefur, Goldwater Institute, has posted The "Mandatory" Clauses of State Constitutions, which is forthcoming in the Gonzaga Law Review:

Six state constitutions—those of California, North Dakota, South Carolina, Utah, Washington, and Arizona—include clauses declaring that everything in the state constitution is “mandatory” unless otherwise provided. This seems a strange thing to include; one might assume everything in a state’s fundamental law is mandatory. But these provisions, which I call Mandatory Clauses, originated during the wave of reform that swept the United States in the late nineteenth century, and they represent an effort to limit or even prohibit what is today known as “judicial deference.” That is, they were written by framers who wanted courts to be more diligent than they had been in enforcing constitutional commands or prohibitions, and less willing to accede to the acts or omissions of the legislative or executive branches. This article examines the history behind Mandatory Clauses and the problems their creators sought to fix. It concludes with some observations about how courts today should implement these clauses.
--Dan Ernst

Tuesday, July 2, 2024

Batlan on Antisemitism and the Displaced Persons Act

Felice Batlan, Chicago-Kent College of Law, has posted The 1948 Displaced Persons Act and Home-Grown Antisemitism:

This Article examines the 1948 Displaced Persons Act which provided for the ability of certain European refugees to immigrate to the United States following World War II. The 1948 Act discriminated against Jewish survivors of the Holocaust and imprinted Nazi racial laws and ideology upon U.S. law. Moreover, in debates over passage of such a law, a vast amount of overt antisemitism emerged, generated by politicians and ordinary citizens, which went well beyond the question of the admission of refugees to the United States. By examining the complex and transnational events leading up to the 1948 Displaced Persons Act, and drawing upon underutilized archival material, this Article helps to uncover and explain antisemitism in the immediate post-war period. This analysis has substantial implications for how we think about the history of antisemitism and its relationship to law in the United States.

--Dan Ernst

Monday, July 1, 2024

Zhang on the History of Statutory Interpretation

Alexander Zhang, the Legal History Fellow at the Yale Law School, has posted two papers on the history of statutory interpretation.  Legislative Statutory Interpretation appears in 99 N.Y.U. L. Rev. 950 (2024):

We like to think that courts are, and have always been, the primary and final interpreters of statutes. As the conventional separation-of-powers wisdom goes, legislatures “make” statutes while judges “interpret” them. In fact, however, legislatures across centuries of American history have thought of themselves as the primary interpreters. They blurred the line between “making” and “interpreting” by embracing a type of legislation that remains overlooked and little understood: “expository” legislation—enactments that specifically interpreted or construed previous enactments.

In the most exhaustive historical study of the subject to date, this Article—the first in a series of Articles—unearths and explains that lost tradition of legislative statutory interpretation from an institutional perspective. To do so, it draws on an original dataset of 2,497 pieces of expository legislation passed from 1665 to 2020 at the colonial, territorial, state, and federal levels—the first effort of its kind. It shows how expository legislation originated as a colonial-era British import that Americans came to rely on beyond the creation of new constitutions. Lawmakers used expository statutes to supervise administrative statutory interpretation and to negotiate interpretation in the shadows of courts. Judges accepted and even encouraged legislative statutory interpretation. In the mid-nineteenth century, judges increasingly fought back, emboldened by growing calls for judicial independence. Yet even as the backlash entered into treatises, and even as some lawmakers began to balk, legislatures and judges continued to accept and use legislative interpretations of statutes well into the nineteenth century.

The early history of expository legislation offers an alternative constitutional vision to the oft-repeated notion that statutory interpretation is necessarily and has always been an intrinsically and exclusively “judicial” power. As the Article ultimately argues, strict and formalist conceptions of separation of powers in statutory interpretation are misguided, for the extent to which statutory interpretation was considered a judicial power has fluctuated in ways that were intertwined with broader transformations in American society. This history teaches us to think of statutory interpretation as a shared task among branches but exercised in different contexts and domains.

It also illuminates the historically contingent nature of legislation, revealing new ways that statutes can contain an inherent interpretive openness. These particular forms of openness raise new questions about the validity of subsequent legislative history. They also reveal how legislatures have embraced a paradoxical concept of original intent and meaning—one that legislatures recognized was rarely a “pure” kind but more often a fictional, dynamic kind intertwined with the changing views of post-enactment interpreters.
Externalist Statutory Interpretation is forthcoming in the Yale Law Journal:

The dominant paradigm of statutory-interpretation scholarship is an “internalist” one. It treats statutory interpretation as a self-contained set of tools divorced from society and primarily deployed by lawyers and judges within the closed universe of courts. But as judges increasingly justify textualist statutory interpretation by invoking a populist fidelity to “the people,” the internalist paradigm has proven too narrow to support a robust democratic theory of statutory interpretation. Urgent, foundational questions such as “How should laypeople engage with statutes in the first place?” and “What is the relationship between statutory interpretation and power?” are entirely illegible within an internalist, juricentric paradigm. The concept of “ordinary meaning” has in turn developed with little attention paid to laypeople’s actual participation in political processes.

In response, this Article—the second in a series—begins a new conversation in the field of legislation by developing a broader, critically “externalist” perspective. The Article lays the foundations for a social and political theory of statutory interpretation that is more inclusive of diverse and historically marginalized peoples, grounded in the realities of lay politics, and capable of reflecting the social nature of statutory interpretation. An externalist perspective reveals the lived experience of statutory interpretation beyond traditional governmental actors. It sees statutory interpretation and society as mutually constitutive. It pays attention to on-the-ground manifestations of abstract values like “the rule of law.” And it situates statutory interpretation as a component of political culture, political economy, grassroots participation, and racial politics. This perspective reveals the potential role that statutory interpretation can play in framing how people imagine the possibilities of societal change. And it enables us to ask subversively: Does statutory interpretation counterintuitively make social change more difficult?

To begin the work of articulating this externalist paradigm, the Article chiefly recovers a new history of expository legislation—statutes that purported to interpret previous legislative enactments—and uses that history to articulate three new frameworks.

The first framework—“participatory statutory interpretation”—shows how statutory interpretation has been a profoundly democratic practice done by “ordinary” people. Many laypeople—including unenfranchised, poor, and historically marginalized people—once had a direct, personal, and intimate connection to statutory interpretation that they channeled into petitions for expository legislation. Through expository legislation, they were able to access an alternative to judicial remedies and to check administrative officials’ interpretations of statutes. However, this mechanism of participation was fragile and imperfect, as corporations also could exploit it to secure their own interests.

The second framework—“sociopolitical statutory interpretation”—shows how statutory interpretation was inseparable from mass politics. It challenges the idea that statutory interpretation is relatively apolitical. It highlights how statutory interpretation can be a part of grassroots, nationwide political struggles—not just individualized legal conflicts in courts. Yet it raises questions about the limitations of statutory interpretation as a tool of political struggle.

These two frameworks lead to a third framework: “legislative intent as ordinary meaning.” Whereas scholars and judges have presumed that the “ordinary meaning” of statutes must ultimately be about textual meaning, this framework demonstrates the historical basis of an “ordinary meaning” that decenters statutory text. As the Article shows, laypeople cared deeply about legislative “intentions,” and many saw text as merely evidence of law rather than law itself. Meanwhile, as expository legislation increasingly modified statutory text as time went on, the idea that “text is law” came under peril in new ways.

--Dan Ernst

Reminder: Register for ASLH 2024

[We're moving up this previously posted communication from Ari Bryen, the Secretary of the American Society for Legal History.  DRE]

Registration is now open for the Annual Meeting! The meeting will be held in San Francisco, from October 24-26, 2024. We are grateful to the Program Committee, the Local Arrangements Committee and to our sponsors, UC Berkeley, Stanford University, and UC Law San Francisco.

The 2024 ASLH Annual Meeting will be held at the Hyatt Regency in San Francisco, California. The conference room rate is $209.00. You can reserve rooms here. The ASLH commits to filling a minimum number of rooms and faces heavy penalties if the number falls short. We ask that members please consider booking at the conference hotel.  

In addition to the main conference, two pre-conferences will be held on Thursday, October 24:

  • "Canadian Legal Histories: Current Research and Future Prospects" (lead organizers: Lyndsay Campbell, University of Calgary, and Constance Backhouse, University of Ottowa).
  • "Freedom Suits and Legal Regimes of Bondage across the Mediterranean, Atlantic, Iberian, and Indian Ocean Worlds" (organizer: Michelle McKinley, University of Oregon;  and

For further details on timing and location, please contact the pre-conference organizers directly.

As always, membership in the ASLH provides a substantial discount for conference registration, as well as access to Law and History Review. So if you are not currently a member, please renew your membership! Student memberships (digital only) are available for only $10.

We look forward to seeing you in San Francisco!

Saturday, June 29, 2024

Weekend Roundup

  • In the Talking about Methods podcast series over at Frontiers of Socio-Legal Studies, Linda Mulcahy talks to Michael Lobban, All Souls College, Oxford, about working with archives as a legal historian.
  • The commentaries continue on the U.S. Supreme Court's use of history (and various reflections on the use of history in judicial decisionmaking) in the recently decided Second Amendment case United States v. Rahimi: Eric Segall at Dorf on Law; Mark Tushnet at Balkinization; Jennifer Tucker at CNN; Saul Cornell at Slate.
  • "Australia’s first civilian jury was entirely female. Here’s how ‘juries of matrons’ shaped our legal history," by Alice Neikirk, University of Newcastle (The Conversation).
  • Balkinization is hosting a symposium on Mark A. Graber's Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).  The first posts are by Anne Twitty, David S. Schwartz, and Evan D. Bernick.
  • Queens University has noted the prizes won by two of its doctoral candidates.  Michael Borsk received two awards for his article, “Conveyance to Kin: Property, Preemption, and Indigenous Nations in North America, 1763-1822,” William and Mary Quarterly 80, no. 1 (January 2023): 87-124.  They are the Peter Oliver Prize in Canadian Legal History from the Osgoode Society for Canadian Legal History, awarded to the best published work by a student, and the 2024 Jean-Marie Fecteau Prize by the Canadian Historical Association, awarded to the best article published in a peer-reviewed journal.  Margaret Ross won the best article prize awarded by the Canadian Committee on the History of Sexuality for her article, “‘Your Town Is Rotten’: Prostitution, Profit, and the Governing of Vice in Kingston, Ontario, 1860s–1920s,” Journal of the History of Sexuality 32 (May 2023).
  • ICYMI:  Washington [State's] legal history, including West Coast Hotel v. Parrish, captured in murals for a Wenatchee courtroom (NCWLIFE). John A. Lupton on John Doe and Richard RoeMark Tushnet thinks some more about originalism (after stopping trying to make sense of originalism) (X).  Blake Emerson puts Jarkesy in historical context (Marketplace).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, June 28, 2024

AJLH 64:1

American Journal of Legal History 64:1 (March 2024) is now published online.

The Pennsylvania Council of Censors and the Debate on the Guardian of the Constitution in the Early United States
Angus Harwood Brown

Alexander Hamilton’s Constitutional Jurisprudence and the Bank Bill
Peter Charles Hoffer

Letter Writing and Legal Consciousness during World War I
Elizabeth A Hoffmann

Exemplary Damages Practice in Late Eighteenth and Early Nineteenth-Century England
Nicholas Sinanis

A Turbid River of History and Law: The Procurement of Women in Imperial Japan and Colonial Korea
Marie Seong-Hak Kim

--Dan Ernst

Mossoff on Injunctions for Patent Infringement

Adam Mossoff, George Mason University Antonin Scalia Law School, has posted Injunctions for Patent Infringement: Historical Equity Practice Between 1790-1882:

A significant debate in patent law today concerns what remedy a patent owner may receive when a court finds a defendant liable for patent infringement. In eBay v. MercExchange (2006), the Supreme Court held that courts must use a “four-factor test historically employed by courts” for issuing injunctions that represented a “long tradition of equity practice.” Chief Justice John Roberts further claimed in a concurrence that, from “the early 19th century, courts have granted injunctive relief upon a finding of infringement in the vast majority of patent cases.”

Both of these historical claims are conventional wisdom today in law and scholarship, and both claims are empirically unverified. This article tests both historical claims in reporting the results of a database of 899 opinions in which federal courts sat in equity in patent lawsuits. The database comprises opinions by trial courts and appellate courts in lawsuits filed between 1790 and 1880 that are compiled in the Federal Cases reporter.

The database confirms and challenges the conventional wisdom. First, eBay is wrong: there was no four-factor test in the “long tradition of equity practice” in patent cases. In the 899 opinions, no judge applied a four-factor test in granting an injunction, either for a permanent or a preliminary injunction. Second, Chief Justice Roberts is correct: courts did grant permanent injunctions in a vast majority of cases as a remedy for patent infringement. In the 899 opinions, courts awarded permanent injunctions in 93.7% of the cases in which a defendant infringed a valid patent. Given the stark absence of a four-factor test, the article concludes by describing the historical equitable jurisprudence applied by federal courts. Based on the opinions, it describes how courts applied the same equitable doctrines and principles in patent cases as in redressing continuing trespasses of real property, protecting patents as much as they protected real estate and other property interests.

--Dan Ernst

Saucedo's "Poulterers’ Case"

Victor Saucedo, Universidad Carlos III de Madrid, has posted a book-length, thoroughly and extensively introduced edition of the testimony of a landmark case, entitled, The Poulterers’ Case (1611): A Landmark in the History of Criminal Conspiracy:

Every student of criminal law knows for a fact that the Poulterers' Case (1611) launched modern criminal conspiracy. This decision laid the first stone of the principle that an agreement to commit a crime is also a crime. However, besides what the law reports say, little is known about the facts of the case. This edition of the testimonies collected by the Star Chamber intends to fill this gap. Additionally, an introductory study will discuss how these facts shed new light on the reasons that were mustered in support of the decision. It will also argue that modern conspiracy was not a creation of the courts but rather of the nineteenth-century scholars who turned the Poulterers' Case into a landmark case.

Update: Saucedo has also posted a separate monograph, Conspiracy. A Conceptual Genealogy (Thirteenth to Early Eighteenth Century)

--Dan Ernst

Parrillo Replies to Critics on Nondelegation at the Founding

Nicholas R. Parrillo, Yale Law School, has posted Nondelegation, Original Meaning, and Early Federal Taxation: A Dialogue With My Critics, which appears in the Drake Law Review 71 (2024): 367-434

Proponents of toughening the nondelegation doctrine invoke original meaning. Confronted with the many congressional statutes that broadly delegated power in the 1790s, they claim that each of those acts falls into some exceptional category to which the nondelegation doctrine was supposedly inapplicable or weakly applicable, especially non-coercive matters or non-domestic matters. In a recent study in the Yale Law Journal, I brought to light major legislation of 1798 that delegated broadly, yet was coercive and domestic: the “direct tax” on all real estate nationwide, which empowered federal boards to revise the taxable values of land parcels on a mass regional basis “as shall appear to be just and equitable”—a delegation that elicited no constitutional objections. Several scholars have published rebuttals to my study, defending the idea of a tough originalist nondelegation doctrine in the face of my findings.

This Article, written for Drake University Law School’s Constitutional Law Symposium, responds to those rebuttals. First, Philip Hamburger and Aaron Gordon each argue that the nondelegation doctrine categorically prohibits administrative rulemaking, but with certain categorical exceptions, including one for fact-finding, into which they say the boards’ “just and equitable” mass revisions of 1798 fall. I respond that a fact-finding exception expansive enough to cover the boards’ indeterminate, contestable, and sweeping exercises of power will be unbounded and not distinguishable in a principled or predictable way from administrative rulemakings in general today. This means Hamburger’s and Gordon’s versions of the doctrine do not have the categorical objectivity they claim to deliver. Second, Ilan Wurman argues for a noncategorical, open-ended version of the nondelegation doctrine that allows Congress to delegate “details” but not “important subjects.” The mass-revision power of 1798, contends Wurman, was a detail. I respond that (a) the power was broader and more consequential than Wurman maintains, and (b) a theory of the nondelegation doctrine premised on the distinction between “important subjects” and “details” is so malleable as to be non-falsifiable as a historical matter, which means that any judge who invokes the theory to toughen the doctrine today is not following history’s lead but instead is engaging in a creative and political act of constitutional construction. Third, Ann Woolhandler argues for a categorical version of the nondelegation doctrine with an exception for all “public rights,” a category that includes taxation, suggesting Congress could delegate freely regarding taxation but not, say, interstate commerce. I respond that incorporating an exception for public rights (including taxation) into the nondelegation doctrine is not supported by either the discourse or the pattern of legislation in the founding era, nor by the mainstream of case law that first elaborated the doctrine in the mid-nineteenth century.
--Dan Ernst

Thursday, June 27, 2024

Amann on the Woman Acquitted at Nuremberg

Diane Marie Amann, University of Georgia School of Law, has posted Inge Viermetz, Woman Acquitted at Nuremberg:

Inge Viermetz (wiki)
Conventional narratives tend to represent the post-World War II international criminal proceedings as a men’s project, thus obscuring the many women who participated, as lawyers, journalists, analysts, interpreters, witnesses, and defendants. Indeed, two women stood trial before Nuremberg Military Tribunals. This article examines the case of the only woman found not-guilty: Inge Viermetz, who had been an administrator at Lebensborn, the Nazi SS adoption and placement agency. The article outlines the prosecution’s child-taking case against Viermetz, as well as her successful gendered self-portrayal as a conventionally feminine caregiver. With references to Professor Megan A. Fairlie, at whose memorial symposium it was presented, the article concludes by considering contemporary implications of this acquittal at Nuremberg.

--Dan Ernst

Wednesday, June 26, 2024

Lanham on the NYC Draft Riots and the Equal Protection Clause

Andrew J. Lanham, a Climenko Fellow and Lecturer on Law, Harvard Law School, has published “Protection for Every Class of Citizens”: The New York City Draft Riots of 1863, the Equal Protection Clause, and the Government’s Duty to Protect Civil Rights, in the UC Irvine Law Review 13 (December 2023): 1067-1118:

Burning of the 2d Avenue Armory (NYPL)
This Article examines an important but little-noticed moment in the intellectual history of the Equal Protection Clause: the New York City draft riots of 1863. In mid-July of that year, New York was engulfed by a weeklong riot against the Union military draft, as mobs of predominantly working-class white men beat and murdered Black New Yorkers, looted and burned stores and government buildings, and battled the police in the streets. The scale and intensity of the violence foreshadowed the white supremacist terrorism that subsequently consumed the postwar South. In the wake of the draft riots, though, New York City embarked on a remarkable project of remediation, mobilizing a variety of legal processes as it prosecuted rioters, paid civil damages to riot victims, raised philanthropic funds to provide free legal aid, charged police officers with dereliction of duty, and published extensive volumes of witness testimony to build a record of the events. Those measures anticipated the wider legal efforts at racial redress that were made during Reconstruction, and they also resonate with urgent debates about civil rights protections, racial justice, and police accountability today.

Crucially, moreover, as this remedial process unfolded in New York, a powerful discourse of equality took shape, and it sheds new light on the meaning of the Equal Protection Clause. In particular, it demonstrates that the idea of equal protection in 1863 included affirmative duties for the government to protect its people against harms caused by private parties, which stands in sharp contrast to the limitations on equal protection law set by the modern state action doctrine. Republican leaders in New York City, for example, promised to “protect” Black New Yorkers’ “full and equal right[s]” and “call[ed] upon the proper authorities to take immediate steps to afford them such protection,” while the Board of Police Commissioners charged one of its own officers, Sergeant Jones, with failing to provide “protection for every class of citizens[,] black or white, rich or poor,” during the draft riots. Sergeant Jones’s trial was then covered in the press under the front-page headline “Equal Protection Under the Law,” directly linking the affirmative duty to guarantee “protection for every class of citizens” with the “Equal Protection” vocabulary that would be written into the Fourteenth Amendment just over two years later. Rereading the Fourteenth Amendment in the context of the New York City draft riots, this Article therefore argues that the state action doctrine is an anachronism and that a much broader vision of equality, equal rights, and antidiscrimination law resides within the Equal Protection Clause.

--Dan Ernst

Tuesday, June 25, 2024

Smith on Emancipation in Roman Law

Lionel Smith, Cambridge University, has posted From Mancipatio to Emancipation in Roman Law, which appears in Revue du Notariat 124 (2024): 347-60:

This text was produced as a contribution to a series of seminars entitled Emancip(ense): penser l’émancipation en droit privé (‘Thinking about emancipation in private law’), which took place in 2021-23 and which was co-organized by the Groupe de réflexion en droit privé and the Groupe de recherche sur les humanités juridiques. In the modern civilian tradition, "emancipation" refers to the acquisition of some or all of the incidents of full legal capacity by a person who has not reached the age of majority. This short text traces the development of emancipation in Roman law through the adaptation of an institution of property law, exploring in the process the links between family law and property law in ancient Rome. It argues that in the Roman understanding of one of the most ancient written texts of law, found in the XII Tables, we can see a feature that is in common with modern law, both in the common law and the civil law: when a person acquires a legal power for an other-regarding purpose, they do not hold that power as patrimonial wealth, but on the contrary the power can be taken away if it is misused.
--Dan Ernst

Monday, June 24, 2024

Monday Roundup

  • Holly Brewer, University of Maryland, and Laura Edwards, Princeton University, on Rahimi (Washington Monthly).
  • Jill Lepore, Harvard University, on the history of the U.S. Constitution (NPR). 
  • John Fabian Witt, Yale Law School, review Aziz Rana's Constitutional Bind (New Republic).

--Dan Ernst

Hoffer's "Supreme Court Footnote"

Peter Charles Hoffer, University of Georgia, has published The Supreme Court Footnote: A Surprising History (NYU Press):

In May 2022, a seismic legal event occurred as the draft majority opinion in Dobbs v. Jackson Women’s Health was leaked. The majority aimed to eliminate constitutional protection for abortion. Amidst the fervor, an unnoticed detail emerged: over 140 footnotes accompanied the majority opinion and dissent. These unassuming annotations held immense significance, unveiling justices’ beliefs about the Constitution’s essence, highlighting their controversial reasoning, and laying bare the vastly different interpretations of the role of Supreme Court Justice.

The Supreme Court Footnote
offers a study of the evolution of footnotes in US Supreme Court opinions and how they add to our constitutional understanding. Through a comprehensive analysis, Peter Charles Hoffer argues that as justices alter the course of history via their decisions, they import their own understandings of it through the footnotes. The book showcases how the role of the footnote within Supreme Court opinions has evolved, beginning with one of the first cases in the history of the court, Chisholm v. Georgia in 1792 (a case concerning federalism vs. states’ rights) and ending with the landmark Dobbs v. Jackson case in 2022. Along the way, Hoffer demonstrates how the footnotes within these decisions reflect the changing role of the Supreme Court Justice, along with how interpretations of the constitution have transformed over time.

At once surprising and revealing, The Supreme Court Footnote proves that what appears below the line is not only a unique window into the history of constitutional law but also a source of insight as to how the court will act going forward.

--Dan Ernst

Saturday, June 22, 2024

Weekend Roundup

  • Justin Simard, Michigan State University Law School, on the Citing Slavery Project (The Conversation).
  • Giuliana Perrone, UC Santa Barbara, from Juneteenth to Reparations (The Current).
  • Amy Hart, UC Davis, says historians have a difficult task in guiding Supreme Court justices because 2024 is not 1789 or 1866 (The Conversation).
  • The National Constitution Center honors the civil rights lawyer William T. Coleman, Jr., with a bronze bas-relief (WHYY).
  • A historical marker for Emma Coger, refused a seat at a table of white women on the steamboat S.S. Merrill, despite her first-class ticket, in 1872 (Quincy, IL Herald-Whig).
  • As Vanderbilt Law’s George Barrett Social Justice Lecture, Sara Mayeux and Robert L. Tsai discuss Tsai's Demand the Impossible: One Lawyer’s Pursuit of Equal Justice for All (Norton 2024) (YouTube).
  • Undergraduates can again research slavery cases this summer in the University of Nebraska–Lincoln’s Center for Digital Research in the Humanities, led by Katrina Jagodinsky (Nebraska Today).
  • The Lawbook Exchange's June 2024 catalogue of Scholarly Law and Legal History is here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.