Graber on Insurrection and Section 3 of the 14th Amendment

Mark Graber, University of Maryland Francis King Carey School of Law, has posted Section Three of the Fourteenth Amendment: Insurrection, which is forthcoming in the William & Mary Bill of Rights Journal:

The public, scholarly, and legal debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing.  Trump v. Anderson (2024) focused on state incapacity to disqualify “oathbreaking insurrectionists” rather than on whether Trump was an “oathbreaking insurrectionist.” One consequence of this omission in the popular press and Supreme Court is the impression that what constituted an insurrection or engaging in an insurrection was not well defined in 1866, that the Reconstruction Republican framers largely jerry-rigged a vague understanding of insurrection into the Constitution.

This Article demonstrates that the constitutional/common law of insurrection was well-established and well-understood in 1866. “Insurrection” at the time Section Three of the Fourteenth Amendment was framed and ratified “had a precise and well-understood meaning.” This understanding was articulated from the American Revolution to Reconstruction by the Supreme Court, by Supreme Court Justices riding circuit, by other federal judges, by state court justices, and by the leading legal treatise writers during the period between the  ratification of the Constitution and Reconstruction. Clear standards exist from 1866 that enable state and federal officials to determine whether the persons responsible for drafting Section Three of the Fourteenth Amendment would have thought the events of January 6, 2021, were an insurrection and whether Trump engaged in that insurrection.

The Congressional Globe, case survey, and constitutional commentaries clearly support the following conclusions: First, an insurrection at the time Section Three was framed consisted of an assemblage resisting the implementation of any law by force, violence, and intimidation for a public purpose and was not limited to rebellious attempts to overthrow the government. Second, the events of January 6, 2021, are consistent with the legal understanding of insurrection in 1866. Third, constitutional authorities before, during, and immediately after the Civil War maintained that any person who knowingly contributed to an insurrection was engaged in that insurrection, even if that person did not personally commit an act of violence or was far from the scene of the violence, force, and intimidation. Fourth, if the allegations made by the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol and state decisions disqualifying Trump are true, the Former President participated in the insurrection that took place on January 6, 2021.

Congress relied on this consensual understanding of insurrection when framing the Second Confiscation Act of 1862. The Senators who insisted that Section Two of that measure punish persons who “shall hereafter incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States” stated that they were not altering the law of treason and insurrection by describing separate offenses. Section Two was rooted in part by a misinterpretation of judicial  decisions that some Senators believed required that they spell out what they believed constituted insurrectionary behavior and in part because no one wanted all participants in the Civil War to be executed for treason. If members of the Thirty-Seventh Congress would have thought that an insurrection took place on January 6, 2021, and Trump participated in that insurrection, then those members of the Thirty-Ninth Congress who framed Section Three would have thought Trump is disqualified from holding state or federal office in the United States.

--Dan Ernst

Kenneth Ira Kersch

With the assistance of his friends, we note more remembrances of Ken Kersch, who died last month at the age of 60 from cancer.  The obituary in Newsday, composed by his father and by a long-time college friend, noted his B.A. from Williams College, J.D. from Northwestern University, and Ph.D. in Government from Cornell University before identifying Professor Kersch as "a preeminent scholar of the United States Constitution, American political and constitutional development, and conservative constitutional thought."  It continued, "He truly enjoyed teaching, and he was greatly admired and appreciated by his students.  . . . Ken was a lover of art, music, literature, an history, and had a passion for the outdoors."

Boston College's very full and impressive memorial is here.  Recollections of him by colleagues and a former student are here.

--Dan Ernst.  H/t: JEF

 

A Festschrift for David Ibbetson

Essays in Law and History for David Ibbetson, edited by Joe Sampson and Stelios Tofaris is published today by Hart Publishing/Bloomsbury:

Over the last 40 years, David Ibbetson has paved the way in a remarkably broad range of fields.  In ancient law, his scholarship has spanned both the detailed doctrine of the Roman law of obligations and the cross-pollination of legal influences around the ancient Mediterranean. His work on English legal history has ranged from the earliest days of the common law through to the turn of the 20th century, combining forensic archival research with a sensitivity to how lawyers thought about their subject. In European legal history, he has shown the porousness of the civil law and the extent to which it has been shaped by other areas of intellectual life, from theology to rationalist philosophy.

The contributions to this volume in his honour mirror both the breadth and the depth of Ibbetson's scholarship. The book combines chapters from leading legal historians, close colleagues and over a dozen of Ibbetson's students. Some chapters build upon or respond to Ibbetson's ideas, others his areas of interest. The contributions are introduced by Ibbetson's valedictory lecture on the importance of legal history to modern practice and scholarship, and the work yet to be done.

–Dan Ernst.  Table of Contents after the jump.

Kastor's "Creating a Federal Government"

We note with interest the website Creating a Federal Government, created by Peter J. Kastor, Washington University, St. Louis, which

combines a book that chronicles how the federal government operated in
 its first decades of existence with a major digital archive that will reconstruct the scope and scale of the early federal workforce. The Website will contain a full listing of federal officials, both civil and military, and will enable users to analyze the careers of these officials at both the individual and aggregate levels. Creating a Federal Government continues Kastor’s commitment to interdisciplinary inquiry by bridging the gap between history and political science, engaging questions in American political development, presidential history, and institutional behavior.  This project also reflects over three decades of work in digital history.

--Dan Ernst.  H/t: GR

CFP: ASLH 2025

[We have the following CFP.  DRE]

Call for Papers: American Society for Legal History 2025 ASLH Annual Meeting, (Detroit, November 14-16, 2025)

The Program Committee of the American Society for Legal History invites proposals for the 2025 meeting to be held November 14-16 in Detroit. Panels and papers on any facet or period of legal history from anywhere in the world are welcome. We encourage thematic proposals that transcend traditional periodization and geography. The online portal opens on December 9, 2024. The deadline for Pre-Conference Symposia proposals is Friday, February 28, 2025. The deadline for all other submissions is Tuesday, March 25, 2025. All proposals except for pre-conference symposia must be submitted through this link.

Panel proposals should include the following: a CV with complete contact information for each person on the panel, including chairs and commentators; 300-word (maximum) abstracts of individual papers; and a 300-word (maximum) description of the panel. Only complete panel proposals will be considered.

Scholars looking to build a panel may post their potential paper topics here. We encourage individuals to peruse this spreadsheet to identify other scholars with common interests, beyond their familiar networks. Senior scholars who are willing to chair and/or comment on a panel may register their interest and availability here. All program participants must be current members of the Society by the date of the Annual Meeting. Information on how to build a successful panel can be found here. The Program Committee especially encourages panels that include participants from groups historically under-represented in the organization, and that include participants who represent a diversity of rank, experience, and institutional affiliation.

In addition to traditional panels featuring presentations of work in progress, the Program Committee welcomes other forms of structured presentation for a 90-minute slot, such as a skills/pedagogical workshop (chair, 3-4 presenters) or a roundtable format (chair, 3-5 presenters).

Following last year’s highly successful inaugural session, this year’s Annual Meeting will also dedicate a session to a presentation and discussion of Digital Legal History projects. Individuals interested in participating in this session should submit a short description of their project (up to 300 words) as well as a CV. As a complement to the session, there will be a poster display of the accepted projects. Accepted participants in the Digital Legal History session will be asked to submit a poster design to the organizers by early October. Posters will be printed onsite.

In addition to the above formats, this year’s meeting will also consider New Directions panels. The purpose of these panels will be to identify cutting-edge methodological and topical directions in legal history, to define new subfields, and/or generate dialogue among scholars whose recent books (published since 2022 or forthcoming) have tackled common historiographic questions. These panels will feature three to five authors of new books organized by theme, chronology, methodology and may also include scholars writing review essays of a field, or others similarly positioned. The session abstract should include the author, title, publisher, and publication date for each proposed book. Please note that the Program Committee will devote only a small number of sessions to this type of panel. The New Directions panels replace the Author-Meets-Readers (AMR) panels which were formally on the program; AMRs will not be available for the 2025 meeting.

[The Program Committee invites "traditional panels," "skills/pedagogical workshops," "roundtables," "New Directions" sessions, and "Digital Legal History" sessions.  For formats and submission requirements, see the CFP.]

The Program Committee additionally seeks proposals for full-day or half-day pre-conference symposia crafted around related themes to augment traditional conference offerings. We especially encourage proposals for pre-conference events that will involve scholars in emerging fields or in fields previously underrepresented at ASLH conferences and/or that will promote early career scholarly development. We encourage those considering submitting a proposal for pre-conference symposia to be in touch with the program committee chairs. To submit a proposal, please email the program co-chairs directly to provide a short proposal (1-2 pages) including program title, the intended length of program, and a program description, as well as a CV and contact information for each presenter. The Program Committee is available to consult with organizers of such symposia as they develop their proposal, but pre-conference symposia must be self-funded. Organizers are encouraged but not required to host their symposia at the conference hotel. Please note that the deadline for these submissions is earlier than the deadline for main conference submissions so that organizers whose symposia are not selected have an opportunity to submit their panels to the main conference.

As a general matter, we will not be able to accommodate special scheduling requests, nor will we be able to support hybrid or virtual presentations or panels. (For a fuller explanation of this policy, please see the ASLH Annual Meetings FAQ page.) Until a draft of the program is circulated, prospective presenters, chairs, and commentators at the main conference should plan to be available in person on Friday, November 15, and Saturday, November 16.

The ASLH has a strict one-appearance policy (excluding appearances at pre-conference symposia). Prospective participants may submit proposals for multiple sessions, with the understanding that the panel chair will be responsible for promptly finding an appropriate substitute member for any session from which a participant has to withdraw.

Limited financial assistance (covering airfare and ground transportation only) is available for presenters in need, with priority given to graduate students, post-doctoral fellows, contingent faculty, and scholars from abroad.

The members of the Program Committee are Maggie Blackhawk, Jocelyn Hendrickson, Zach Herz, Hide Hirota, Youssef Ben Ismail, Jedidiah Kroncke, Tim Lovelace, Jane Manners, Noah Rosenblum, Natasha Wheatley, and Yanna Yannakakis. The co-chairs of the Program Committee are Deborah Dinner (deborah.dinner@cornell.edu) and Jessica Marglin (marglin@usc.edu).

ASLH Election Results

We have been (slowly) recapping the news announced at this year's meeting of the American Society for Legal History. This post reports election results.

Incoming Board Members: Sally Hadden (Western Michigan University), Kate Masur (Northwestern University), Kim Welch (Vanderbilt University), Jane Manners (Temple Beasley School of Law), and Will Smiley (University of New Hampshire).

Incoming Nominating Committee Members: Rohit De (Yale University) and Alison LaCroix (University of Chicago Law).

The full memberships of the Board and the Nominating Committee are available here.

-- Karen Tani

Lee on Privacy's Redeemer Origins

Sophia Z. Lee, University of Pennsylvania Carey Law School, has posted The Reconciliation Roots of Fourth Amendment Privacy, which appears in the University of Chicago Law Review:

The Roberts Court has made protecting “the privacies of life” a catchphrase of Fourth Amendment law in the digital era. The time is thus ripe for revisiting the doctrinal and political roots of this newly influential quote from the Court’s 1886 decision Boyd v. United States. Existing scholarship views Boyd and its paean to privacy as an opening salvo in the Supreme Court’s turn-of-the-twentieth-century deregulatory jurisprudence (often associated with the Court’s most famous substantive due process decision, Lochner v. New York). Scholars also assume Boyd’s emphasis on privacy was in keeping with the Founders’ view of the Fourth Amendment.

This Article makes a novel argument that Boyd and its elevation of protecting the “privacies of life” to an animating principle of the Fourth Amendment was instead a product of Reconstruction and its dismantlement. Doctrinally, the Article argues that legal actors did not commonly associate the Fourth Amendment with something they called “privacy” until after the Civil War. This association, along with Boyd’s other core doctrinal elements, was instead established during Reconstruction. Further, these Fourth Amendment innovations were pioneered in Congress, not the federal courts. Politically, the Article argues that Boyd’s innovations did not arise in response to growing federal economic regulation. Instead, the idea that the Fourth Amendment protected the privacies of life was fed by white Americans’ commitment to preserving racial hierarchy after the Civil War. Shared by moderate Republicans and Democrats, this embrace of Fourth Amendment privacy built an anodyne bridge between otherwise fierce political foes. In other words, Fourth Amendment privacy was produced by and helped secure Reconciliation—the process through which white Americans North and South, Democrat and Republican came together to limit Reconstruction, preserve white supremacy, and pave the way for the violent disenfranchisement of newly freed Black men.

The Article is primarily a work of legal history; it concludes, however, by considering the divergent doctrinal implications of resituating Boyd and Fourth Amendment privacy in the politics of Reconciliation. Doing so supports the Roberts Court’s recent Fourth Amendment decisions without undermining scholars who contend that the Fourth Amendment protected what we today call privacy from the start. At the same time, this history poses a problem for Justice Neil Gorsuch and other libertarians who use the modern administrative state’s connections to Jim Crow-era white supremacy to undermine its legitimacy. This Article shows that the very libertarian tradition championed by these skeptics of the administrative state suffers the same tainted roots. Critical scholars, for their part, document how constitutional privacy doctrines provide limited protection to marginalized communities. This Article’s history could support their reparative case for more robust Fourth Amendment protections.

--Dan Ernst

ASLH Preyer Awards to Hammock Jones, Watkins

Continuing our tradition of recapping the prizes and awards announced at the recent meeting of the American Society for Legal History, this post features the 2024 winners of the Kathryn T. Preyer award. About the award:

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to early career legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society.

This year's awards went to Christen Hammock Jones (University of Pennsylvania) for "Consuming Abortion On Demand: Medicine, Law, & Consumer Rights After Roe V. Wade" and to Grace Watkins (Yale University) for "'Incurable Entanglement': The Hybrid Powers of Campus Police."

As is customary, the winners presented their work at the annual meeting. Reva Siegel (Yale Law School) and Anna Lvovsky (Harvard Law School) provided comments. 

Congratulations to Christen Hammock Jones and to Grace Watkins!

-- Karen Tani

Weekend Roundup

• LHB mourns the passing of Ken Kersch, a professor of political science at Boston College and an excellent historian of American conservatism, including its constitutional dimensions.  David Bernstein has posted his AHR review of Kersch's Constructing Civil Liberties on the Volokh Conspiracy.  H/t: DS.
  

• An essay by H.L.A. Hart, found in Ronald Dworkin's papers and responding to Dworkin's work, has now been published in the American Journal of Jurisprudence as Policies, Principles, and Adjudication: (c. 1977-82). 

• From Process, the blog of the Organization of American Historians: Jennifer Thomson (Bucknell University) reflects on her June 2024 Journal of American History article on “The Environmental Protection Agency, Sewer Infrastructure, and the Racialized Geography of the United States.”

• Julian Ku ‘s review essay of Curtis Bradley’s Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Federalist Society). 
  

• From In Custodia Legis (the blog of the law librarians of Congress): news that the Senate Journal from Century of Lawmaking has been added to Congress.gov. Also: a remembrance of "Pablo Abeita: Judge and Isleta Governor."

• Keith Whittington, YLS, discusses his book, The Impeachment Power: The Law, Politics, and Purpose of an Extraordinary Constitutional Tool in the podcast series of the Princeton University Press.

• The final Helsinki Legal History Series seminar of the year is “Corporations and Jurisdictional Culture: Exploring the Political Identity of Early Modern Iberian Monarchies,” presented by Pedro Cardim, Nova University Lisbon. Tuesday, December 10th, 2024, 3:00 PM - 4:30 PM (UTC+2) at University of Helsinki Main Building, Room U3039.  More.
  

• "The next online meeting of the Environment, Law, and History Global Workshop will take place at 9 pm GMT on Thursday, January 16. We will discuss with Rebecca McLennan (UC Berkeley History Department) her "Litigating Extinction, Anticipating the Anthropocene: Law, Nature, and the ‘Fur Seal Trial’ of 1893", with comments by Angela Fernandez (U Toronto Law)" (H-Law).
  

• CFP: "The Bentham Project is hosting a two-day conference entitled ‘Jeremy Bentham, the Panopticon penitentiary scheme, and “A Picture of the Treasury”’, which will take place at Bentham House, Faculty of Laws, University College London, on 23 and 24 July 2025"  (H-Law). 
  

• From LPE Blog: Eamon Coburn (Yale Law School) on the history of treating abusive labor practices as a form of unfair competition (drawing on this recent piece in the Yale Law Journal).
  

• Syllabi for our times, from the Stanford's Advanced Study in the Behavioral Sciences. 
  

• ICYMI: The legal historian Nathan Perl-Rosenthal got a shout out when his student entered the transfer portal (Press-Telegram).  As a former Fulbrighter to NZ, I feel for that country's humanists (RNZ) (DRE).  Five times martial law was declared (History).  The first blind woman licensed to practice law in California (UC Law SF). A virtual tour of Hawaii's King Kamehameha V Judiciary History Center (KHON). Ned Blackhawk’s list of best recent books about Native America (New Yorker).
  

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

Call for Nominations: ASLH Honorary Fellows

[We have the following announcement.  DRE.]

The Honors Committee of the American Society for Legal History solicits nominations of senior scholars for consideration for election as Honorary Fellows of the Society.  Election as Honorary Fellow is the highest honor the Society can confer.  It recognizes distinguished historians whose scholarship has shaped the broad discipline of legal history and influenced the work of others.  Honorary Fellows are the scholars we admire, whom we aspire to emulate, and on whose shoulders we stand.  The Society seeks to recognize scholars who are not simply distinguished in their fields, but who also have given back to the discipline and made their fields stronger by creating communities of scholars and scholarship and by helping other (often younger) scholars to stand on their shoulders.  In other words, scholars who are as committed to building a future for their fields as they are to studying the past.  Commensurate with the growing international reach of the Society, we seek nominations of senior scholars who, collectively, similarly encompass the wide scope of scholarship in legal history.

Nominations should be submitted to Bruce H. Mann, chair of the Honors Committee, by email (mann@law.harvard.edu) before January 15, 2025.  Each nomination should include a statement of why the nominee merits election.  Statements should address the nominee’s scholarly distinction and their citizenship in the field.  A list of current and past honorary fellows is [here].

Cherneff on Reconstruction-Era Racial Apprenticeship

Lyle Cherneff, a 2024 Yale Law graduate, has published Remembering In re Turner: Popular Constitutionalism in the Reconstruction Era, in the Yale Law Journal:

This Note presents a historical account of the underexamined movement to end racialized apprenticeship laws in the post-slavery era. Original archival research from census records, Union Army files, and newspaper articles illustrate the contributions of formerly enslaved men, women, and children to the ultimately successful movement to declare Maryland's apprenticeship laws unconstitutional. Relying on the insights of Critical Race Theory and feminist legal theory, this Note fills a gap in existing legal history by producing a consideration of Reconstruction Era constitutional lawmaking "from the bottom." This Note argues that our shared constitutional memory has been artificially narrowed by an underconsideration of freedpeople's constitutional theories and claims. Restoring the anti-apprenticeship movement to our constitutional memory strengthens contemporary efforts to end racial discrimination in the child welfare system and to vindicate familial rights under the Thirteenth and Fourteenth Amendments.

--Dan Ernst

CFP and Plenaries at Policy History

[We have the following CFP and news of plenary sessions at the Policy History Conference from its convenor, Donald Critchlow, ASU Katzin Family Professor of History, Director, ASU Center for American Institutions.  DRE]

The Institute for Political History, the Journal of Policy History and the Arizona State University Center for American Institutions are hosting the Policy History Conference in Charlotte, North Carolina at the Hilton Charlotte Uptown hotel from Wednesday, June 4 to Saturday, June 7, 2025.

We are pleased to announce the following plenary sessions

Thursday, June 5
Richard Bensel, Cornell University
Jennifer Burns, Stanford University
Richard John, Columbia University

Friday, June 6
Daniel Tichenor, University of Oregon

Since 2002, the Policy History Conference has provided an interdisciplinary forum for presentations and roundtable discussions on policy history topics and recent policy history research. The conferences bring together academy scholars, independent scholars and graduate students to share their research. Many of the papers presented eventually appear in academic journals and other publications.

We are currently accepting panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s), and individual paper proposals are welcome. Participants may only appear once as a presenter in the program.

The deadline for submission is December 31, 2024.  Proposals for panels and papers must be submitted online at the links below, and must include the following:

1. Name(s)
2. Institutional Affiliation(s)
3. Status (i.e. ABD, Doctoral Student, Assistant/Associate/Full Professor)
4. Email address(es)
5. Mailing Address(es)
6. Panel and paper title(s)
7. One (1) 150 word abstract of panel and papers in Microsoft Word or PDF format.
8. A description of each presenter or panel participant including educational background, major publications, awards or fellowships, also in Microsoft Word or PDF format.

Submit paper proposals here.  Submit panel proposals here.

Cox on the Invention of Immigration Exceptionalism

Adam B. Cox, NYU Law, has published The Invention of Immigration Exceptionalism in the Yale Law Journal:

American immigration law is a domain where ordinary constitutional rules have never applied. At least, that is the conventional wisdom. Immigration law’s exceptionalism is widely believed to flow directly from the Supreme Court’s invention, in the late nineteenth century, of the so-called plenary power doctrine. On the standard account, that doctrine has long insulated immigration policies from constitutional scrutiny. The plenary power doctrine is thought to permit everything from President Trump’s Muslim ban to the indefinite detention of migrants at the border.

But the reigning historical account of immigration exceptionalism is wrong. Revisiting the field’s canonical cases, this Article reveals that the plenary power doctrine lawyers and judges argue over today was not created in a series of late nineteenth-century cases. Far from being exceptional, those cases applied the then-standard framework linking due process and the separation of powers. By failing to understand that nineteenth-century immigration law was ordinary public law, scholars and jurists have, for decades, badly misunderstood immigration law’s foundational cases. We have also overlooked the role that immigration law played in the development of modern public law. At the turn of the twentieth century, immigration law evolved apace with the rest of public law as both underwent a dramatic transformation. In some cases, immigration law even led the revolution, driving the development of the legal regime we now call “administrative law.”

Immigration exceptionalism is thus a recent invention. Indeed, it might be more accurate to say that the immigration plenary power doctrine was invented in the Roberts Court rather than in the late nineteenth century. Once we locate immigration exceptionalism in its proper moment, we can better appreciate immigration law’s centrality to the development of American public law. We can also assemble new arguments against the modern exceptionalism that is responsible for the very worst parts of immigration law today.

--Dan Ernst

Ankersen on Sea Turtle Conservation Law

Tom Ankersen, University of Florida Levin College of Law, has posted, in three parts, "Not for Long a Fishe: The Early History of Sea Turtle Conservation Law and Policy in Florida":

Shipping Green Turtle, Key West, 1898 (NYPL)

[Part I] reviews the broad history during the colonial era and then focuses on some of the first laws Florida’s territorial and early statehood years, when sea turtles were considered a fishery. By the end of the 19th century and continuing into the 20th century, the State’s sea turtle population had declined significantly due to over-harvest and a poor understanding of the species biology.  In 1897, a federally commissioned Fisheries Report sounded the alarm.  The Florida Legislation acted on one of the report’s conclusions, leading to the first law to protect nesting sea turtles in the state in 1907.

[Part II] tracks the efforts of the Florida Legislature to establish and regulate a managed fishery through county-specific legislation in the first half of the 20th century, and documents the early efforts to understand the late-maturing and highly migratory animal’s life history. With little understanding of sea turtle biology and behavior, the State attempted to maintain a viable sea turtle fishery during this period, with little success.  In the 1950s, Dr. Archie Carr from the University of Florida laid the foundation for sea turtle science, along with a handful of other pioneering researchers.  Carr founded the first advocacy group devoted to sea turtle conservation, which he and the founders called the “Brotherhood of the Green Turtle.” This advocacy group would eventually become the Sea Turtle Conservancy.

[Part III concludes the series.]  Not without controversy, the 1970s brought an end to the sea turtle fishery in Florida, and along with it the classification of sea turtles as legally endangered. In this era, both international and federal law began to play a role in how sea turtles were legally treated by the State of Florida.

--Dan Ernst

Phillips-Sawyer on the Labor Exemption and Extraterritoriality in Antitrust

Laura Phillips-Sawyer, University of Georgia School of Law, has posted two papers.  The first is  Restructuring American Antitrust Law: Institutionalist Economics and the Antitrust Labor Immunity, 1890-1940s, which appeared last year in the University of Chicago Law Review:

Thurman W. Arnold (LC)

 Labor unions and their leaders were cast as the perennial antitrust defendants for the first fifty years of federal antitrust law, and this historic imbalance fostered a movement in economic scholarship and labor activism to restructure American antitrust law. The progressive liberal-institutionalist movement in economics played an important role in legitimizing trade unions by recasting them, not as anticompetitive cartels, but rather as a necessary corollary to the growing market power of industrial firms. Louis Brandeis, the litigator and future jurist, drew from institutionalists’ work to support antitrust reform. He argued that antitrust law was not necessarily anathema to the interest of labor organizations, and he advocated for both the application of the rule of reason to labor association activities and the revision of antitrust laws to exempt certain labor activities. The Clayton Act of 1914 created such an antitrust labor exemption, but as soon as union activity spilled over into interstate commerce the Supreme Court insisted on antitrust liability and applied it categorically against laborers. Even after the passage of additional labor exemptions in the 1930s, the reigning Commerce Clause doctrine rendered labor’s immunity from antitrust liability uncertain. This lingering uncertainty was exacerbated by a fracturing within the progressive liberal movement as some economic institutionalists, schooled in the legal realist tradition, revived the Department of Justice’s antitrust prosecutions in the late 1930s. Assistant Attorney General Thurman Arnold led this renewed antitrust agenda; armed with a more expansive interpretation of federal commerce power, he targeted labor groups in several headline-grabbing cases, enraging his former allies on the Left. Arnold, however, seemed to represent a divergent institutionalism that embraced both the Brandeisian distaste for economic concentration and the Keynesian macroeconomic policies of mass consumption. Ultimately, in 1941, an uneasy settlement was reached in United States v. Hutcheson, where the Supreme Court authorized a non-statutory labor exemption for secondary boycotts. The ruling helped establish guardrails for lawful labor union activities; however, it did not resolve this division on the progressive Left, and laborers continued to seek protective legislation and statutory immunities. Recasting antitrust law’s bias against laborers as historically contingent demonstrates the moments of possibility to reconcile this historic imbalance, and it implicitly argues that the progressive law and economics movement provided necessary groundwork but also required interest group organization and statutory interventions.

The second is Jurisdiction Beyond Our Borders: United States v. Alcoa and the Extraterritorial Reach of American Antitrust, 1909-1945:

In 1945 Judge Learned Hand wrote one of the most influential opinions in modern antitrust law. In declaring that the Aluminum Company of America (Alcoa) had illegally monopolized the industry for virgin aluminum and had participated in an illegal international cartel, Hand both revived and extended American antitrust law. The ruling is famous for several reasons: It narrowly defined the relevant market in favor of the government; it expanded the category of impermissible dominant firm conduct; it interpreted congressional intent as protecting an egalitarian business environment; and it established the extraterritorial reach of US antitrust laws. Although each of those contributions has incited legal commentary and critique, Hand’s decision to redraw the territorial application of US antitrust has remained largely unexamined. This essay offers a historical explanation for the origins of antitrust extraterritoriality and advances two arguments: First, before and during the interwar years, the antitrust doctrine of strict territoriality had been eroded through a series of distinguishing cases and contradictory congressional policies. Second, the well-documented connection between European fascism and cartelization provided strong external pressures to extend American antitrust law and policy abroad and to redouble anticartel and antimonopoly provisions at home. Thus, both internal and external pressures culminated in the Alcoa case, which signaled a new era in American antitrust law—renewing both anticartel and anti-monopolization policy while at the same time linking market competition to the protection of American territorial and popular sovereignty. By 1945 extraterritorial antitrust emerged as an acceptable means of governance to curtail international cartel behavior, discipline monopolies at home, and impose an American-led liberal—and hegemonic—internationalism on its trade partners.

--Dan Ernst

Sugarman to Lecture on Pinochet Case

[We have the following announcement.  DRE]

The Centres for English Legal History and Public Law at the University of Cambridge will host a seminar by Professor Emeritus David Sugarman entitled ‘Hidden Histories of the Pinochet Case’ at 5:15pm (GMT) on December 3 in Cambridge, England. The lecture is free and open to the public and will stream online [here].

Weekend Roundup

• 
  Balkinization has been hosting a symposium on Kunal Parker's The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).  So far, Aziz Rana, Ajay K. Mehrotra, Paul Gowder, Amalia D. Kessler, and John Fabian Witt have contributed.
  

• The Institute for Advanced Legal Studies at the University of London has announced the establishment of the Law and the Humanities Hub (LHub), led by Anat Rosenberg.  It “aims to foster academic expertise, creativity, and intellectual leadership in law and the humanities.”  Here are its 2024/25 Visitors.
  

• The Illinois Supreme Court Historic Preservation Commission has digitized approximately 3,700 case files from 1819 to 1865.  Its "freely accessible and user-friendly website . . . will be publicly available within the next few months."  More.
  

• The University of Chicago Law School will host a book launch for Curtis Bradley’s Historical Gloss and Foreign Affairs: Constitutional Authority in Practice, with comments by Will Baude and David Strauss, on Wednesday, December 3, 12:15pm to 1:10pm, at the Law School.  The event is open to the public.
  

• A notice of the 44th German Legal History Conference (Goethe Universität).

• A notice of a conference at Kings College London in support of the Cambridge History of International Law volume on the Pacific from circa 1500 until 1920 (KCL).
  

• The National Constitution Center will hold a symposium on The Life and Constitutional Legacy of Gouverneur Morris at Noon ET on Thursday, December 12 with Dennis Rasmussen, Melanie Randolph Miller, and William Treanor.  Jeffrey Rosen will moderate.
  

• The next session in the American Society for Legal History series, Making Connections: New Works in Legal History, will occur on Wednesday, December 11, 6-7pm Central Time. Chlöe Kennedy will discuss her Inducing Intimacy: Deception, Consent and the Law (2024) with interlocutor Catherine Evans.  ASLH President Barbara Welke will moderate.  Register here.
  

• On Lawfare's "Chatter" podcast, Rachel Shelden, Penn State University, discusses how widespread violence and another civil war were avoided as the nation resolved the disputed presidential election of 1876.
  

• Thomas McSweeney's Jot on Ada Maria Kuskowski's, "The Time of Custom and the Medieval Myth of Ancient Customary Law," 99 Speculum 143 (2024).
  

• ICYMI: Sandra Day O'Connor was no conservative (HNN).  The price America paid for the Chinese Exclusion Act (NPR).  Open access (for a few more days): The Case of the Slave Ship Zong (History Today).
  

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

McClure's "Trials of Sovereignty"

Alastair McClure, The University of Hong Kong, has published Trials of Sovereignty: Mercy, Violence, and the Making of Criminal Law in British India, 1857–1922 (Cambridge University Press).  It appears in the ASLH-sponsored series, Studies in Legal History.

Trials of Sovereignty offers the first legal history of mercy and discretion in nineteenth and twentieth-century India. Through a study of large-scale amnesties, the prerogative powers of pardon, executive commutation, and judicial sentencing practices, Alastair McClure argues that discretion represented a vital facet of colonial rule. In a bloody penal order, officials and judges consistently offered reduced sentences and pardons for select subjects, encouraging others to approach state institutions and confer the colonial state with greater legitimacy. Mercy was always a contested expression of sovereign power that risked exposing colonial weakness. This vulnerability was gradually recognized by colonial subjects who deployed a range of legal and political strategies to interrogate state power and question the lofty promises of British colonial justice. By the early twentieth century, the decision to break the law and reject imperial overtures of mercy had developed into a crucial expression of anticolonial politics.

Here are some endorsements:

‘In this fresh and stimulating book, Alastair McClure explores the recalibrations of colonial rule which took place in the loop between calamitous violence and the exercise of mercy, between harsh punishment and its mitigation. We get a full sense of the impact of the 1857 rebellion on the codification of criminal law, and the accommodation in it of vast areas of judicial discretion to uphold both race privilege and unequal categories of colonial subjecthood. This is fine-tuned and rigorous scholarship, a major contribution to our understanding of colonial sovereignty in India and its unwinding.’ Radhika Singha, author of A Despotism of Law: Crime and Justice in Early Colonial India

‘Trials of Sovereignty offers a compelling history of the ensnaring promise of mercy and its rejection in colonial India. Breaking with the conventional idea that sovereignty was solely built on state violence, Alastair McClure traces how terror and mercy were wielded as related expressions of sovereign power in the courtroom. From the last Mughal emperor to Mohandas Gandhi, McClure's meticulous analysis of modern India’s iconic political trials unearths mercy's fingerprints throughout colonial legal history. Because mercy was a crucial colonial tool for curtailing political rights and upholding a hierarchical social order, its rejection was pivotal to ideas of anti-colonial liberation. Trials prompts us to ask: who has the right to punish and by what measure? Posed as a question for the historian, McClure lays bare its significance to our unfinished present.’ Bhavani Raman, author of Document Raj: Writing and Scribes in Early Colonial South India

 --Dan Ernst

Lim on Canadian Originalism in the Great Depression

Preston Jordan Lim, Villanova University Charles Widger School of Law, has posted The Great Depression and Canada's Major Originalist Decade, which is forthcoming in the Osgoode Hall Law Journal:

Few periods of Canadian history have been as momentous or terrible as the Great Depression. The Dominion and provincial governments’ inability to combat financial and environmental catastrophe led many Canadians to openly question the appropriateness of their constitutional framework. As legal historians have since documented, many leading jurists of the time believed that a strong central government could, through the institution of national programs, contain the Great Depression; in the eyes of these 1930s jurists, the Judicial Committee of the Privy Council—then Canada’s apex court—had sapped the federal government of its powers by misinterpreting the British North America Act, 1867.

Although scholars have correctly identified the Great Depression as a period of intellectual ferment and even revolution, none has fully accounted for the prevalence of originalist thought in the legal debates of the time. In response to the Great Depression, the major legal thinkers and reformers of the 1930s deployed originalist arguments. They criticized the Privy Council for having departed from the original intentions of the Fathers of Confederation and the original meaning of the Constitution. While the leading jurists of the period all tended to employ originalist reasoning, they often disagreed on interpretive outcomes. Thus, while many jurists used originalist reasoning to argue in favour of a strong central government, some argued that the original intentions of the Framers and the original public meaning of constitutional provisions favoured a federalist interpretation of the British North America Act. I conclude that the dominance of originalism during the legal debates of the 1930s bears several lessons for modern constitutional theorists. The fact, for example, that jurists of all ideological backgrounds employed originalist logic demonstrates that the characterization of originalism as inherently conservative makes little sense in the Canadian context. 

--Dan Ernst

Levin Center on Congressional Oversight of the War on Terror

[We have the following announcement from the Levin Center for Oversight and Democracy of the Wayne State University Law School.  DRE.]

Today, the Levin Center for Oversight and Democracy, with the support of the U.S. Capitol Historical

Society, is releasing a new Portrait in Oversight describing two in-depth Senate investigations into the torture and mistreatment of individuals in U.S. custody during the wars in Iraq and Afghanistan.

Both oversight investigations – the first by the Senate Armed Services Committee from 2004 to 2009, and the second by the Senate Select Committee on Intelligence from 2007 to 2014 -- collected evidence exposing the role of senior U.S. defense and intelligence officials in devising, approving, and directing the use of brutal interrogation methods on Abu Ghraib and Guantanamo Bay detainees. Both Senate investigations also led to enactment of new laws to prohibit the future abuse of individuals in U.S. custody.

“The explosive release of 2004 photos showing prisoners being tortured at Abu Ghraib Prison in Iraq shocked the American public and led to worldwide condemnation of U.S. brutality,” said Jim Townsend, director of the Levin Center. “This new Portrait in Oversight demonstrates how Congress exposed government misconduct, held U.S. military and intelligence officials accountable for what they did, and paved the way for laws to prevent this shameful history from repeating itself.”

“Checks and balances are the foundation of the American governmental system," said Jane L. Campbell, President & CEO of the U.S. Capitol Historical Society.  "It's therefore vital to the health of our democracy that Congress continues to exert its power of oversight on our co-equal branches of government. The U.S. Capitol Historical Society thus commends the work of the Levin Center to inform Americans of the history of this vital process, including the aftermath of the September 11 terrorist attacks.”

The portrait is being released today in observance of the 16th anniversary of the Senate Armed Services Committee’s action on November 20, 2008, approving a 265-page report detailing how senior U.S. Department of Defense officials ordered abusive interrogation methods to be used on U.S. detainees. Six years later, on December 9, 2014, the Senate Select Committee on Intelligence released to the public a 700-page executive summary of its still classified report on the role of the Central Intelligence Agency in the misconduct.

Henry J. Abraham Early Career Research Grant

[We have the following announcement.  DRE]

As of 2023, the Supreme Court Historical Society awards the Henry J. Abraham Early Career Research Grant for research on the history of the United States Supreme Court. The award is named for the distinguished scholar whose numerous works on constitutional law and the judicial process have had an enduring impact on the field of Supreme Court history.

Awarded on a competitive basis by a jury panel in June of each year, the $1,000 grant supports the research of those who are pursuing academic careers in legal history, including graduate students, law students, and those who are no more than five years from completion of either the Ph.D. or J.D. The award is given on the basis of the applicant's potential for producing publishable work in the field of Supreme Court history, and the grant recipient will be expected to produce an article for submission to the Journal of Supreme Court History.

A completed application consists of:

1. c.v.;
2. the name and contact information of a faculty reference; and
3. 750-1,000-word proposal (which should include a general description of the project and a plan for research)

Applicants should submit all materials to Clare Cushman, Executive Editor of the Journal of Supreme Court History, by May 1, 2025. The award winner will be notified by: June 1, 2025.

Past Henry J. Abraham Early Career Research Grant  Awardees: 

2023.  M. Henry Ishitani, JD Yale Law School 2023, completing his PhD with the Yale University Department of History.

A Festschrift for Charle Donahue

The Learned and Lived Law: Essays in Honor of Charles Donahue (Brill), edited by Elizabeth Papp Kamali, Saskia Lettmaier, and Nikitas Hatzimihail, has been published:

This wide-ranging collection of essays reflects the manifold scholarly interests of legal historian Charles Donahue, whose former students engage here with questions related to foundational Roman law concepts, the impact of the law on women and families in medieval and early modern Europe, the intersection of law and religion, and the echoes of legal ideas on later developments in American law and in world literature and philosophy. From the monks of Metz to the book sellers of colonial Boston, from fourteenth-century English charters to the writings of Faust, these essays invite you to experience law at once learned and lived.

Contributors are: Charles Bartlett, Anton Chaevitch, Wim Decock, Rowan Dorin, Sally E. Hadden, Elizabeth Haluska-Rausch, Nikitas E. Hatzimihail, Samantha Kahn Herrick, Daniel Jacobs, Elizabeth Papp Kamali, Amalia D. Kessler, Saskia Lettmaier, Sara McDougall, Stuart M. McManus, Elizabeth W. Mellyn, Bharath Palle, Ryan Rowberry, Carol Symes, James R. Townshend, and John Witte, Jr.

 --Dan Ernst

Queer Constitutional History: A JACH CFP

[We have the following CFP.  DRE]

Call for Papers: “Queer Constitutional History” in the Journal of American Constitutional History.  Guest edited by Professors Felicia Kornbluh and Marie-Amélie George     

We invite scholars in history, law, and related fields to submit articles for a symposium issue of the Journal of American Constitutional History on “U.S. Queer Constitutional History,” to be edited by Professors Felicia Kornbluh and Marie-Amélie George, in consultation with journal editor David Schwartz.  We plan to publish the symposium issue in 2025 to coincide with 10th anniversary of the U.S. Supreme Court’s decision in Obergefell v. Hodges. At the time the Court issued the Obergefell decision, the opinion appeared to settle specific questions about the legal and constitutional status of marriages between people of the same sex and broader questions about the constitutionality of formal discrimination against gays and lesbians. Since then, the Supreme Court has issued decisions challenging established sexual-liberty jurisprudence, including Justice Thomas’ concurrence in Dobbs v. Jackson (2022), which promised a reconsideration of the whole “substantive due process” tradition.

We invite essays on the queer constitutional history that gave rise to the Obergefell decision—including events outside of the realms of marriage, family law, or U.S. constitutional law—as well as the place of marriage equality within the Court’s broader sexual liberty jurisprudence.  We welcome contributions on the evolution of marriage equality, queer parenting, and sexual privacy rights under the U.S. Constitution, as well as related topics. For example, submissions might examine how and why these rights became recognized, their doctrinal underpinnings, the gaps that exist in Constitutional jurisprudence, and the relationship between queer Constitutional rights and the Court’s decisions in related fields.

We hope to publish a broad array of perspectives on these topics, to help inform scholarship on queer legal history and U.S. Constitutional history, as well as studies of legal institutions more generally. For that reason, this symposium issue takes an expansive approach to all of its terms: “U.S.” extends beyond the mainland to include American territories and the country’s diplomatic and international relations; we take “Queer” to mean research on gay, lesbian, bisexual, trans, nonbinary, or asexual people, or otherwise relating to nonnormative and stigmatized gendered and sexualized phenomena; “Constitutional” refers to questions that have been considered in U.S. constitutional courts, as well as related questions that have preceded or transcended them, and matters of state-level and not national constitutional adjudication; and “History” means the study of the past, but not necessarily the deep or distant past, and in this case cannot help but look over its shoulder to connections with contemporary issues.

Abstracts are due February 1, 2025. Please submit them by email to Felicia Kornbluh (Felicia.Kornbluh@uvm.edu) and Marie-Amélie George (georgemp@wfu.edu). Authors of selected articles will be notified by March 1, 2025. Drafts, which should range from 5,000 to 10,000 words, will be due July 1, 2025 for submission to peer reviewers. Final versions of the articles will be due September 1, 2025. The guest editors may propose a half-day conference to immediately proceed the American Society for Legal History’s annual meeting in 2025. Contributors to this symposium issue would be invited, but not required, to participate.

JSCH 49:3

Journal of Supreme Court History 49:3 has been published:

"Judge" Eugene Brooks: Supreme Court Messenger, Proponent of Black Awareness, 1881-1926
Terence Walz

"The ct is disposed to consider the merits…Wow!": Anthony Lewis Takes Us Inside the Oral Arguments in NAACP v. Alabama ex rel. Flowers (1964)
Helen J. Knowles-Gardner

An End to Rebel "Punishment": The Test Oath Cases and the Constitutional Politics of Confederate Disqualification
M. Henry Ishitani

"Our Leading Feminist": Dorothy Kenyon and the Origins of Equal Protection for Women in Hoyt v. Florida
Isabel Miller

The Judicial Bookshelf
(reviews of Michael Nelson: Vaulting Ambition: FDR's Campaign to Pack the Court, and Greg Zipes, Justice and Faith, The Frank Murphy Story.
Donald Grier Stephenson, Jr.

--Dan Ernst

CSCHS Review (Fall/Winter 2024)

The Fall/Winter 2024 issue of the California Supreme Court Historical Society Review is now available on line.  Here is Editor Molly Selvin's description of its contents.

Our lead article explores the tumultuous founding of San Quentin Prison nearly 175 years ago. As the population of the new state of California grew, driven in part by the discovery of gold in 1848, so did crime. Yet, the lack of state revenue led the Legislature to force counties to house a growing number of convicted inmates in county jails, a function for which they were largely unequipped and underfunded. Building a state prison was, as McGeorge School of Law Professor Clark Kelso wrote, an “urgent priority.” But the new state had no funds and was still getting organized. Kelso details the first decades of the iconic San Quentin Prison, and of the California Supreme Court’s key role in safeguarding the public’s interest by exercising necessary oversight of the Legislature and the governor.

Also in this issue, David Ettinger notes the centennial of the California Supreme Court’s decision in Piper v. Big Pine School District. That 1924 decision ordered the school district to admit to its school Alice Piper, a 15-year-old Native American, instead of requiring her to attend a separate “Indian School.” Ettinger, a member of the Society’s board of directors, writes that Piper “is not the best known school desegregation case in the country, or even the state.” By today’s legal standards, the ruling seems obvious, he argues, but at a time when Plessy v. Ferguson was the law of the land, “it was not easy case for Alice to win,” and was an important step toward advancing equality.

Next, we conclude the history of voting rights in California produced by a UCLA research team. Part I, in our Spring/Summer ’24 issue, explored how California systematically discriminated during its first hundred years against different groups of prospective voters, employing some of the same tools used under the Jim Crow regime of the South. Part II, in this issue, focuses on the post-World War II decades during which California law gradually made voting easier and broadened those rights, while maintaining the integrity of voting systems.

Elsewhere in this issue, UC College of the Law, San Francisco Professor and former California Supreme Court Justice Joseph R. Grodin reviews former Justice Stephen Breyer’s latest book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. We also present the three winners of the Society’s 2024 legal writing competition. And there’s more.

Finally, a personal note from Review Editor Molly Selvin: After eight years, I am retiring as the Review’s editor. It’s been a privilege to work with so many thoughtful legal historians, professors, and practitioners. We hope you’ll enjoy this issue. Beginning with the Spring/Summer ’25 publication, the Review will rest in the capable hands of Professor Clark Kelso.  As always, we welcome your comments and your article ideas. Please write to ckelso@pacific.edu.

We want to record our appreciation of Molly Selvin, for taking on what we imagine was the sometimes challenging job, common to court-based historical societies, of bridging between professors, lawyers, judges, and the public and for her earlier study (with Patricia Ebener) of civil litigation in the Los Angeles Superior Court, which was a major contribution to the genre of caseload studies and thus to our understanding the history of the American judiciary.

--Dan Ernst

Weekend Roundup

• Angela Fernandez's Vox article (with  Justin Marceau), occasioned by the escape of those 43 lab monkeys, led to this interview with Professor Fernandez in Psychology Today on her book, Pierson v. Post, the Hunt for the Fox. 
  

• UMass Law has posted a recording of its launch of Faisal Chaudhry’s South Asia, the British Empire, and the Rise of Classical Legal Thought: Towards a Historical Ontology of Law (Oxford University Press).  In addition to Professor Chaudry, the participants were Tiraana Bains, Brown University; Osama Siddiqui, Providence College; Sana Haroon, UMass Boston; Duncan Kennedy, Harvard Law School; and Danya Reda, Wayne State Law.
  

• UC Berkeley Law’s Robbins Collection Research Center is digitizing its hundreds of manuscripts “written in Latin, Italian, Greek, Hebrew, English, French, German, and Arabic, dating as far back as the 12th century" (Berkeley Law).
  

• In collaboration with the University of Arkansas, Arkansas devotes $1 million to digitizing correspondence, journals and proceedings relating to its constitution (Arkansas Advocate; UA News). 
  

• The Clough Center for the Study of Constitutional Democracy at Boston College is hosting as a hybrid event a book launch for Anna Grzymala-Busse’s Sacred Foundations: The Religious and Medieval Roots of the Modern State on December 5 from 5-7.
  

• Sam Mihara, will deliver the 2024 the National Endowment for the Humanities' Jefferson Lecture in the Humanities, entitled “Memories of Injustice,” at 6 p.m. on January 15, 2025, in Los Angeles. “The lecture is free and open to the public and will stream online [here].  Mihara will speak about the history of Japanese American incarceration during World War II and his personal experiences as a prisoner at a U.S. relocation camp near Heart Mountain, Wyoming.”  More.
  

• Congratulations to Saikrishna Prakash, Virginia Law, upon his receipt of the 2023 Mike Lewis Prize for National Security Law Scholarship for his surprising and illuminating article, “Deciphering the Commander-in-Chief Clause.”  
  

• Law Book Exchange's November 2024 catalogue of Scholarly Law & Legal History is here.
  

• ICYMI: An essay on Gong Lum v. Rice (U.S. 1927) in New York Almanack.  How NYC's Women's Court made Greenwich Village Bohemian (Gotham Center).  John Lawrence uses the Port Chicago Exoneration case to show How Congress Is Written Out of History (AHA Perspectives).
  

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

Knowles-Gardner on the Supreme Court and the AJC Brief in Patterson

Helen J. Knowles-Gardner, Institute for Free Speech, has posted Without a Little Help from Your Friends: The Supreme Court's Rejection of the American Jewish Congress Amicus Brief in NAACP v. Alabama ex rel. Patterson (1958), which is just out in the Journal of Supreme Court History:

It was a requirement that stood for almost eighty-five years. Beginning in 1939, the formal Rules of the Supreme Court stated that an amicus curiae brief could only be filed with the consent of the parties to a case (or, effective 1949, with the consent of the parties or a majority of the justices). That all changed on January 1, 2023, when Scott S. Harris, Clerk of the Court, issued a memorandum indicating that the consent requirement was no more. The legal community did not view the change as surprising, but rather as reflective of the fact that nowadays “virtually all amicus briefs are, as a practical matter, docketed,” regardless of whether consent is obtained.

Over the course of its history even when consent to file an amicus brief was withheld by one or both of the parties, the Court rarely denied a subsequent motion for leave to file the brief without the parties’ consent. This article engages in a case study of one of those rare denials – the denial of the motion filed by the American Jewish Congress (AJC) which sought to file an amicus brief in the First Amendment associational freedom case NAACP v. Alabama ex rel. Patterson (1958). The article analyzes the substance of the brief, the Court’s Rules that were in existence at the time, and the justices’ reaction to the AJC motion.

--Dan Ernst

Wiecek's "The Dark Past"

William M. Wiecek, emeritus, Syracuse University, has published The Dark Past: The US Supreme Court and African Americans, 1800-2015 (Oxford University Press):

For most of its existence, the US Supreme Court has sustained slavery, racial discrimination, segregation, racial inequality, and white preference through constitutional interpretation and legal doctrine. During America's first two centuries, slavery was the law of the land. The Court initially avoided challenging it, and in 1857, it seemed that the justices were committed to defending it with the disastrous Dred Scott decision, which denied that Black Americans could claim any rights under the Constitution. The Court also failed to sustain Congress's effort to accord rights and status to Black Americans during Reconstruction, and it accepted white supremacy in the 1896 decision in Plessy v. Ferguson, which ratified the doctrine of "separate but equal." It did better in the Civil Rights Era, 1954-1972, but then again retreated in the face of political backlash.

The Dark Past offers a historical overview and interpretive guide to all the major cases decided by US Supreme Court that have affected the freedom and rights of Black Americans since 1800. It lends coherence to what could otherwise be a disjointed chronicle of cases and connects the events of the past to the current era of racial inequality-most recently exhibited in the Shelby County v. Holder (2015) decision, which hobbled the Voting Rights Act. Throughout the six hundred volumes of the United States Reports the justices have almost never alluded to the reality of racism or used words that denote it. Only once has the phrase "white supremacy" appeared in an opinion of the Court, and only thirty or so times has a member of the Court referred to "racism." The Dark Past, on the other hand, incorporates structural racism as a principal definition of inequality in the contemporary Black legal experience as it updates and enlarges our understanding of how the legal foundations of inequality structure American society.

--Dan Ernst

ASLH Max Planck Dissertation Prize for European Legal History in a Global Perspective to Aden Knaap

Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the Max Planck Dissertation Prize for European Legal History in a Global Perspective -- awarded for the first time this year. About the prize: 

The Max Planck-ASLH Dissertation Prize for European Legal History in a Global Perspective will honor exceptional dissertations on topics in European legal history in global perspective and presented for PhD or JSD degrees awarded in the previous calendar year. Topics may include European legal interactions with people or places outside Europe, legal processes spanning Europe and other world regions, and developments in legal theory closely related to imperial, transnational, or trans-regional trends.

This inaugural award went to Aden Knaap (Henry Chauncey ’57 Postdoctoral Fellow, Yale Jackson School of Global Affairs) for “Judging the World: International Courts and the Origins of Global Governance, 1899–1971” (Harvard University, 2023). The citation:

The 2023 Max Planck-ASLH Dissertation Prize is awarded to Aden Knaap for his dissertation “Judging the World: International Courts and the Origins of Global Governance, 1899–1971.” This deeply original, carefully researched study presents a sweeping history of world courts, from early initiatives in 1899 to the postwar origins of today’s international courts. The dissertation makes two key contributions. It emphasizes formative efforts to establish world courts in the first half of the twentieth century, an overlooked but important period, and places visions of world courts at the very center of the evolution of global governance. The dissertation reveals how plans for key international institutions, including the World Bank and the United Nations, imagined them initially as global courts. Knaap’s study is based on extensive research in multiple archives and is beautifully written. It brings together legal, diplomatic, and international history in exposing an understudied but important dimension of European and global legal history.

Congratulations to Aden Knaap!

-- Karen Tani

CFP: History of International Law Colloquium

[We have the following CFP for a History of International Law Colloquium from Andrei Mamolea.  DRE]

The organizers of the Boston area colloquium on the history of international law are pleased to announce a call for papers to be presented during the Spring and Fall of 2025. This initiative is organized with the support of Boston University’s Pardee School of Global Studies, which will host a series of book talks, and Harvard Law School’s Institute for Global Law & Policy, which will host the paper series.

The call is open to all scholars, covering all areas of international law and all periods of history. Because this initiative aims to build a community of scholars in the Boston area, preference will be given to those who can present in person.  To be considered, please email a copy of your submission to mamolea@bu.edu by Dec. 31, 2024.

Rodriguez's "Good Governing"

Daniel B. Rodriguez, Northwestern Law, has published Good Governing: The Police Power in the American States, with Cambridge University Press.  It is available open access via Cambridge Core.

Good Governing: The Police Power in the American States is a deep historical and legal analysis of state police power, examining its origins in the founding period of the American public through the 20th century. The book reveals how American police power was intended to be a broad, but not unlimited, charter of regulatory governance, designed to implement key constitutional objectives and advance the general welfare. It explores police power's promise as a mechanism for implementing successful regulatory governance and tackling societal ills, while considering key structural issues like separation of powers and individual rights. This insightful book will shape understanding of the neglected state police power, a key part of constitutional governance in the U.S.

--Dan Ernst

ASLH William Nelson Cromwell Dissertation Prize to Min Tae Cha

Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the William Nelson Cromwell Dissertation Prize ("awarded annually to the best dissertation in any area of American legal history, including constitutional and comparative studies").

This year's award went to Min Tae Cha (currently a Postdoctoral Fellow with the Nova Forum at the University of Southern California) for a dissertation titled “Constitutional Religion: Presbyterians between the British and American Empires” (Princeton University, 2023). The citation: 

“Constitutional Religion” is an astonishingly ambitious project that seeks to refold religious ideas and practices into the history of Anglo-American constitutional thought. Following Presbyterians in the British Empire and the United States in the long nineteenth century, Cha reveals the extent to which debates within the Presbyterian Church over issues including disestablishment, constitution making, and empire, were not conducted in isolation. Rather, they were shaped by and in turn shaped broader political events. That Cha finds a mutually constitutive relationship between Church and State is not surprising. What commands our attention is Cha’s argument that intertwined religious and political developments -- particularly disestablishment -- led to the creation of a “fiscal-missionary” church in the long nineteenth century. In an age of revolutions, immigration, and imperial expansion, Presbyterians scrambled to win souls and organize increasingly far-flung congregations. One striking result of this was ecclesiastical constitution making, which existed in a dialectical relationship with more familiar forms of secular constitution making. Skillfully tracing this process through close readings of underutilized religious sources, Cha shows how Presbyterians deployed written constitutions in order to mobilize congregants across the globe in the face of sectarian conflict. From Scotland to the United States to the Antipodes, Presbyterian lay people and clergy searched for solutions to pressing institutional problems, often settling upon older religious ideas and practices. Indeed, Cha deftly places Presbyterian constitutionalism within a much longer tradition of religious constitutionalism, Catholic and Protestant alike, even as he elucidates how the unique pressures of modernity required creative adaptations. He likewise connects centuries-old religious thought and praxis to processes of globalization and colonization. Through painstaking archival work, he traces the movement of people, practices, and ideas across oceans, and thereby makes a case for the broader significance of Presbyterian constitutional thought.

Congratulations to Min Tae Cha!

Update: Notre Dame Law's notice of the award is here.

-- Karen Tani