Judge Childs on the DC Circuit

Judge J. Michelle Childs, U.S. Court of Appeals for the D.C. Circuit, has published A Distinctive Court: A Glimpse into the History and Significance of the D.C. Circuit in the Fordham Law Review.  
Judge Childs visited Fordham University School of Law as the 2025 Distinguished Jurist in Residence and presented the article as a lecture on February 26, 2025.  From the introduction: 

In the first half of this Essay, I will begin by describing the distinct origins, structure, and docket of the D.C. Circuit. From its early years, the D.C. Circuit has considered issues involving the federal government. With the growth of the administrative state in the twentieth century, the D.C. Circuit became more involved in reviewing regulations. Today, the D.C. Circuit’s composition, jurisdiction, and docket reflect its role in examining issues of national importance, particularly around regulations. To resolve those questions, we often reflect on our nation’s history and our court’s responsibility for shaping the nation’s future. In the second half, I will turn to history and change. Cases before the D.C. Circuit may require that we engage with history, either because the record under review includes a historical archive, or because we turn to history to shed light on a question of law. At times, we must also reflect on the historical significance of our cases. Our decisions, ultimately, will face the court of history. And because our cases involve weighty national issues, their impact may extend well into the future. Our court, however, has proved resilient to change, adapting to new challenges.

For more on the history of all the courts in the District of Columbia Circuit, be sure to check out the website of the Historical Society of the District of Columbia Circuit.

--Dan Ernst 

Exploring the Foundations of Contract Law

Cause and Consideration: Exploring the Foundations of Contract Law, an anthology edited by Bruno Rodríguez-Rosado, Rocío Caro Gándara, and Antonio Legerén-Molina, has been published by Hart/Bloomsbury.  The publishers tell us that you may order it online here and use the code GLR BD8 to get 20 percent off.

This book provides a comprehensive study of two parallel notions of civil and common law: cause and consideration . . .  in three ways; with historical, comparative, and functional perspectives. Aspects of cause and consideration are hotly contested by contract lawyers and this book will bring clarity by looking at the English and Continental positions. Key areas of focus include: enforceability, questions of legality and morality, contractual justice, and the correction of unjustified property displacements.

Bringing together a team of experts, the book discusses (in some cases for the first time in English) complex questions of both academic and practical importance.

–Dan Ernst. TOC after the jump.

Mayeri, "Marital Privilege: Marriage, Inequality, and the Transformation of American Law"

Yale University Press has published Marital Privilege: Marriage, Inequality, and the Transformation of American Law, by Serena Mayeri (University of Pennsylvania). A description from the Press:

The United States is unusual among wealthy western nations in the degree to which the law channels public benefits and private economic resources through marriage. This remains so despite seismic changes in American family life in the last several decades of the twentieth century. During this period, marriage rates declined while divorce and nonmarital childbearing soared. Social movements—for racial and economic justice, women’s and gay rights and liberation, civil liberties, and reproductive freedom—transformed the legal landscape.
 
In Marital Privilege, Serena Mayeri tells the stories of parents and partners, activists and lawyers who challenged the legal primacy of marriage. They made innovative constitutional claims in courts and launched grassroots efforts to change laws and practices that penalized nonmarital relationships. But even though reforms eliminated the most visible discrimination against women, people of color, and children born to unmarried parents—and, eventually, against gay and lesbian Americans—marriage’s privileged status endured. Because marriage increasingly correlated with education and wealth, marital primacy intensified racial and economic inequality. Marital Privilege explains how, as American law selectively incorporated principles of liberty and equality, the benefits of marriage became increasingly unavailable to those who needed them most.  

Advance praise:

“Serena Mayeri’s hugely ambitious project is to map the changing legal status of marriage from the perspective of single women of color, gays and lesbians, feminists who wanted to reform (or even abolish) marriage, alternative family units, and unmarried fathers, among so many others. While the history of marriage looks different when considered from its edges, Mayeri ultimately demonstrates the resilience of an institution that so many labored to change over decades and decades.  This astonishingly comprehensive and organically intersectional book is a masterpiece that will be influential for years to come.” —Margot Canaday

“Mayeri masterfully shows how legal challenges to marriage over the past several decades made marriage itself more egalitarian but left intact marriage’s dominant legal status and preserved marital status as an engine of inequality.”—Douglas NeJaime

“‘Marriage is everywhere in American law.’ What often goes unnoticed by those who enjoy its manifold benefits and privileges is painfully written on the lives in its shadow. In this brilliant history, Serena Mayeri explains how despite a half century of challenges, marriage remains a key engine in the reproduction of inequality today.”—Barbara Young Welke

More information is available here.

-- Karen Tani 

JAEH: Special Issue on Immigration and Citizenship

The special issue (44:4) of the Journal of American Ethnic History devoted to Immigration and Citizenship, edited by Hardeep Dhillon and Maddalena Marinari, will be of interest to legal historians of the subject.

Networks of Power and Relationality: US Citizenship and Migration in the Twentieth Century 
Hardeep Dhillon and Maddalena Marinari

America's Foreign-Born “Citizens”: Disability and the Politics of Child Exclusion Available to Purchase
Yukako Otori

Indians Now Taxed: Citizenship and Taxation in Settler-Colonial South Dakota Available to Purchase
Lila Teeters Knolle

Citizen Aliens: American Xenophobia, Japanese American Migrants, and the Transpacific Borders of Belonging Available to Purchase
Michael R. Jin 

A Struggle Over Numbers: Legal Status in the Census, Hispanic Political Representation, and Federal Funding, 1970–1986 Available to Purchase
Benjamin Francis-Fallon

Comment
Mae Ngai

--Dan Ernst

Mass SCJ Records Transcribed

The Ames Foundation, with the financial support of the Colonial Society of Massachusetts, has been transcribing the twenty-two volumes of the records of the Massachusetts Superior Court of Judicature ca. 1690 – ca. 1780 (Mass SCJ), edited by Professor Sally Hadden of Western Michigan University.   The transcriptions of the first two volumes have just been published online.  The first transcribe the records of the Mass SCJ from 1760–1762; the second transcribes a volume of maritime cases dating from the period of the Revolutionary War.

--Dan Ernst 

Weekend Roundup

• Northwestern Law has a post on the grants Ajay K. Mehrotra received in support of his book project, “American Outlier: Economic Inequality and the U.S. Historical Resistance to National Consumption Taxes.”  On that NEH grant, though, see this and this. 

• Columbia Law's notice of new faculty member and legal historian Kate Redburn.     

• 
  Congratulations to Laura Flannigan, University of Oxford, for winning the Royal Historical Society's first book prize for Royal Justice and the Making of the Tudor Commonwealth, 1485–1547 (Cambridge University Press, 2023).

• Balkinization has completed its symposium in honor of Ken Kersch.  Contributors were Jack Balkin, Rogers M. Smith, Mark A. Graber, Sanford Levinson, George Thomas, Mary Ziegler, James E. Fleming, Linda C. McClain, Carol J. Nackenoff, Logan E. Sawyer III, and Dennis J. Wieboldt III. 

• Also over at Balkinization, Gerard Magliocca ponders "The Mystery of Birch Bayh's Amicus Brief in Reed v. Reed."   

• Samantha Barbas, Iowa Law, recently spoke on the history of freedom of speech and press at the Aspen Ideas Festival.     

• Over three days in October, Maggie Blackhawk, NYU Law, will deliver the 2025 Rothbaum Distinguished Lecture in Representative Government at the University of Oklahoma.  Professor Blackhawk's topic is Colonial Administration: Empire, Civilization, and the Making of Political Science.

• "The Margery Hunter Brown Indian Law Clinic at the University of Montana has embarked on an ambitious project to create the Indian Law Portal – a comprehensive digital archive of legal documents from each of Montana’s tribal nations" (University of Montana).  

• "Preliminary report into Indian boarding school history lays the groundwork for dismantling policies that have harmed Indigenous people" (Washington State Attorney General).

• “Becoming Thurgood: America’s Social Architect,” a new one-hour documentary, premieres on Tuesday, September 9, on PBS.  "What sets this film apart is that for the first time, [Thurgood] Marshall’s story is told in his own words—drawn from a rare eight-hour oral history recording" Chicago Defender).

• Time's Made by History:  Ryan LaRochelle and Kate Flynn say that History Shows us Why a Non-Partisan U.S. Military is Essential.

• At Inside Higher Ed: Michael Bannerjee (UC Berkeley) draws on the 1819 Dartmouth College case to argue that "Universities Need to Go Corporate"; doing so could "preserve institutional autonomy and defend academic freedom." 

• How the Heritage and the US Department of Education would have us observe the 250th. 

• The Institute of Historical Research has posted online its archive of interviews with UK historians, including Christopher Hill, Eric Hobsbawm, E P Thompson, Dorothy Thompson, and Maurice Cowling (History and Policy). 

• The comments on that proposal of the American Bar Association to double the number of required experiential credit hours from six to twelve have been posted online and are summarized here.  Mine is one of them.  DRE 

• The July 2025 newsletter of the Historical Society of the D.C. Circuit is now available here.

• ICYMI:  Brandan Buck on the Lost Liberalism of America First (Cato). Noria Doyle on How Plessy v. Ferguson sparked early civil rights activism from Milwaukee’s Black community in 1896 (Milwaukee Independent).  Alexis Coe, American History columnist for the NYTBR, lists some books to read on the US Supreme Court in "this moment of constitutional crisis" (NYT).  The rare book collection of the the Indiana Supreme Court Law Library (Indiana Lawyer).  Justice Jackson's inclusive original public meaning (Slate).

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

Brady on "Public Use" in State Constitutions

Maureen E. Brady, Harvard Law School, has posted Debates Over "Public Use" in the State Constitutional Conventions:

Historians and legal scholars alike have previously noted that the meaning of "public use" began to change in the nineteenth century, continuing into the twentieth. In the hands of some state courts, "public use" expanded from an approach dependent on "use by the public" to one that at least occasionally tolerated "use for the public benefit." This shift in meaning laid the groundwork for Berman v. Parker, the urban renewal decision from the United States Supreme Court that provided support for the broad reading of "public use" in the 2005 decision Kelo v. City of New London. 

In this Essay, I focus my attention on one of the vectors for the emergence of "public benefit" conceptions of the public use requirement: state constitutional text itself. In the nineteenth century, several states specifically authorized takings for private use in their state constitutions, usually to benefit local and economically critical industries. In other states, this approach was explicitly rejected. 

Although these private-use provisions have been noted by other scholars, this Essay collects and examines them as a group, including the lessons about "public use" that one might glean from the fruitful and fascinating debates that these provisions engendered among nineteenth-century lawyers at constitutional conventions. The conventions are an important site for understanding the logic underlying "public benefit" conceptions of "public use." And they might shape the future of "public use" doctrine by offering historical grounding for alternative conceptions of the line between permissible and impermissible takings, whether as a matter of federal or state constitutional law. 

Dan Ernst

Job Posting: Berkeley Law's Jurisprudence & Social Policy Program Seeks Applications for an Assistant Professor of Law and History

 We have the following job posting:

The Jurisprudence and Social Policy (JSP) PhD Program in the School of Law at the University of California, Berkeley invites entry-level and early-career lateral applicants for a full-time, tenure-track faculty position focused on law and history. We seek applications from scholars whose primary research focus is law and history in the United States, and also from those engaged in comparative analysis in which American law and history is a component. We seek a scholar versed in qualitative and/or quantitative research methods and theories, and ready to enter into the intellectual life of a unique multidisciplinary PhD Program. Within the broad ambit of law and history our search is open as to the field and/or period of specialization. However, we are particularly interested in candidates whose research relates to race and inequality.

The JSP Program attracts a diverse student body with a variety of experiences before graduate school. The JSP Program is committed to methodological pluralism and encourages scholars who are willing and able to mentor graduate and undergraduate students whose research uses a range of methods. JSP faculty members also teach in Berkeley’s interdisciplinary undergraduate Legal Studies major, which operates under the auspices of JSP.

The JSP Program is committed to addressing the family needs of faculty, including dual career couples and single parents. We are also interested in candidates who have had non-traditional career paths or who have taken time off for family reasons, or who have achieved excellence in careers outside academia. For information about potential relocation to Berkeley, or career needs of accompanying partners and spouses, please visit: http://ofew.berkeley.edu/new-faculty.

The law school strives to educate responsible, effective, and forward-thinking advocates who serve the public through legal practice, public policy, academic scholarship, and related fields. In doing so, the school addresses some of society’s most pressing challenges by leveraging its strengths in teaching and research to improve law, policy, and public institutions. At the heart of Berkeley Law’s public mission is a commitment to access, affordability, and empowering students from all backgrounds to pursue impactful careers across a wide range of professional paths. For more information, please visit: https://www.law.berkeley.edu/public-mission/.

Read on here.

-- Karen Tani

JAH 112:1

 [The June 2025 issue of the Journal of American History is chock full of legal history.  We reprodcue its “In This Issue.”  DRE.]

M. Scott Heerman examines the contours of race, citizenship, and legal personhood abroad during the 1850s. He examines two freedom suits filed by John Lytle and Ben Newton, illegally enslaved African Americans in Cuba, and unpacks State Department policy covering rights to citizenship in those cases and others. His article shows that consular agents on the ground in Havana and high-ranking State Department officials in Washington, D.C., maintained a two-tiered system of protection that distinguished between granting legal protections based on birthright and conferring full rights afforded to citizens.

What is the place of law in the history of anti-immigrant violence in the United States? Seeking an answer, Hardeep Dhillon historicizes several attacks on immigrants from India between 1907 and 1910. She argues that the lack of protection or justice for immigrant communities in the face of mob violence is not a simple history of law gone wrong or even a history of discriminatory law, but a history of anti-immigrant fervor and impunity structured through the law. Her article reveals how laws on the books and laws in practice shaped both the violence immigrants experienced and possible forms of redress.

Despite the wealth of scholarship on mortgage discrimination, comparatively little is known about how redlining affected rental housing. During World War II, the Federal Housing Administration (FHA) began underwriting new apartments for defense workers and war veterans. Brent Cebul and Michael R. Glass examine how developers such as Fred Trump and William Levitt abused FHA insurance programs by inflating their costs and reaping excess profits in a tactic known as “mortgaging out.” Drawing upon their original database of FHA-insured apartments, Cebul and Glass illuminate how developers not only deepened racial segregation but also transformed the landscape of rental housing across metropolitan America.

As historians debate the causes of the decline of American democracy—the backlash against civil rights, income inequality, changing media—the Iran-Contra scandal of the Ronald Reagan–George H. W. Bush years, over trading arms with Iran and funding rebels in Central America, never figures in this discussion. Iran-Contra has receded from history, regarded as a minor speed bump in the late Cold War. Reinterpreting the fiasco as an accelerant in the decay of U.S. democracy, Alan McPherson argues that the 1987 televised congressional hearings highlighted several major disparities in how Democrats and Republicans understood norms: Democrats warned of a broad assault on democracy, while Republicans dismissed the disturbing events as mere means to foreign policy ends. Unlike during the Watergate scandal, no one paid a price for Iran-Contra, and the behaviors worsened.

Katz on Minor v. Happersett

Ellen D. Katz, University of Michigan Law School, has posted Minor v. Happersett and the Repudiation of Universal Suffrage:

Minor v. Happersett rejected a constitutional challenge to a Missouri law that excluded women from the electorate. Ratification of the Nineteenth Amendment forty-five years later is often said to have “overturned” Minor. In fact, the Amendment did no such thing. Minor held that voting is not among the privileges of citizenship protected by the Fourteenth Amendment. The Nineteenth Amendment says nothing to the contrary, and instead bars laws that deny or abridge the right to vote “on account of sex.” Minor remains good law today. As part of a symposium marking the 150th anniversary of Minor, this Article describes and contrasts the theory of political participation Virginia Minor advanced and the Supreme Court rejected in 1875 with the one that propelled ratification of the Nineteenth Amendment in 1920. It shows that leading advocates of the Amendment all but repudiated Minor’s vision.

--Dan Ernst 

Legal History in the Curriculum

New from Routledge: Legal History in the Curriculum: Comparative Perspectives, Critical Approaches and Future Directions, edited By Caroline Derry and Carol Howells:

As legal education faces fresh challenges and opportunities, and a growing literature calls for subversive new approaches, this book engages with vital questions about the place of history in the law school. How and why should we teach legal history? What is its place in the curriculum? What can different jurisdictions learn from each other?

This collection offers an overview and examples of cutting-edge practice in teaching legal history across the law curriculum, challenging expectations of its place and potential. The book’s three sections explore practices and possibilities in the core curriculum, in dedicated legal history courses and in law schools across the world. They highlight how legal history offers diverse and inclusive content, global perspectives, and transnational understandings to students. By exploring contributors’ own purposes and practices, they provide insight and fresh ideas on how and why readers can incorporate legal histories into their own teaching.

The volume will be an invaluable resource for all those involved in the teaching of law and the law school curriculum.

–Dan Ernst.  TOC after the jump.

New in Touro: Calabresi, Emoluments, and Steven Duke

There's quite a bit of legal history in the current issue (40:2) of the Touro Law Review.  Roger Newman reviews of Guido Calabresi's oral history in On Guido Calabresi.  Liam E. Cronan explores the Dutch origins of the Foreign Emoluments Clause in "In Defiance of Gifts."  Steven B. Duke describes growing up in Arizona, clerking for Justice William O. Douglas, and becoming a criminal defense attorney while a full-time member of the Yale Law faculty, in On Becoming and Being a Criminal Defense Attorney.

--Dan Ernst

Watkins on BYU's Moral Policing

Grace Watkins, a recent graduate from the Yale Law School and a DPhil student in History at Oxford University has published her note, Piety Police, in the Yale Law Journal.  She received the Kathryn T. Preyer Scholars Award of the American Society for Legal History for the paper.

Religiously affiliated universities are permitted to maintain their own private police under the rationale that these departments serve an educational, rather than religious, mission. This Note calls that rationale into question by uncovering the history of the Brigham Young University Police Department’s (BYUPD’s) morals policing, which blurred the lines between the enforcement of the law and the school’s religious Honor Code. Drawing on extensive archival research and previously unexamined legal materials, this history reveals how the BYUPD waged vice- and sexual-policing campaigns that extended far beyond campus borders.

The Note argues that BYU’s religious affiliation shaped the methods, priorities, and powers of its campus police. In the 1960s, the BYUPD enlisted students and professors to assist with undercover drug operations, resulting in haphazard investigative tactics that disrupted campus life. During the 1970s, university administrators encouraged the BYUPD to aggressively police sexual morality. In response, campus officers used undercover student agents to conduct surveillance and sting operations targeting gay men living in Provo. Then, following a significant expansion of the BYUPD’s statutory authority in 1979, local residents reported that officers were using their law-enforcement powers to conduct Honor Code investigations off campus. In the 2010s, similar concerns resurfaced when it was discovered that a BYUPD officer had shared confidential police reports with administrators to punish victims of sexual violence for Honor Code violations related to their assaults.

Despite repeated attempts to separate the BYUPD’s law-enforcement and student-discipline functions, misconduct continued. This cycle suggests that the BYUPD’s religious and police duties are inextricably entangled. These findings provide a cautionary tale as more religious universities—and, more recently, megachurches—establish their own law-enforcement agencies nationwide. The Note concludes by mapping the legal landscape of this growing category of private police and reflecting on the inherent risks posed by departments acting under the authority of both church and state.

--Dan Ernst

Bernstein on the Court, Education and the KKK

David E Bernstein, George Mason University Antonin Scalia Law School, has published The Supreme Court, Education, and the KKK in the 1920s in Western Legal History 35 (2025): 97-107:

Meyer v. Nebraska and Pierce v. Society of Sisters present historians with a puzzle. The Court had refused previous opportunities to initiate a due process jurisprudence that expanded beyond freedom of contract and property rights. Why did the Court suddenly adopt a more aggressive understanding of the Due Process Clause in Meyer and Pierce?

As has been discussed elsewhere, there are several plausible and non-exclusive explanations. This article focuses on the Justices’ hostility to the Ku Klux Klan. The Klan had been a leading force behind laws regulating or banning private education, and the Court’s decisions in Meyer and Pierce likely in part reflected a pushback against the Klan’s agenda.

Part I of this Article discusses the Klan’s resurgence in the early 1920s and its role in sponsoring legislation targeting private schools. This included the Oregon compulsory public education law invalidated by the Court in Pierce.

Part II discusses the Court’s hostility to the Klan. This section discusses a significant anti-Klan ruling that has received little scholarly attention, the 1928 case of Bryant v. Zimmerman. In Zimmerman, the Court upheld a New York law requiring certain membership organizations, including the Ku Klux Klan, to register their membership lists with the state. The Court held that this requirement did not violate constitutional rights, particularly freedom of association or due process. Importantly, the Court’s holding was not based on a rejection of the notion that the Fourteenth Amendment protects the freedoms of private membership organizations. Rather, the Court focused on the malevolent nature of the Klan. 

--Dan Ernst 

William E. Leuchtenburg Fund at UNC Press

[We have the following announcement.  H/t: JQB.  DRE]

Established in 2025 by his family, the William E. Leuchtenburg Fund at the University of North Carolina Press honors both his decade-long membership on the Press’s Board of Governors and his preeminent scholarship in American history. Throughout his long life, Professor Leuchtenburg remained committed to advising, counseling, critiquing, and encouraging works by many who became leading scholars of their generations. Accordingly, the Fund will help publish works by early-career scholars that reflect Leuchtenburg’s unusually broad interests in American history and culture. These works will not only launch and solidify academic careers by shaping research and teaching in their fields, but also have the potential to appeal to wider audiences.  [Give here.]

Engelking on Kant, Kelsen and International Law

Wojciech Engelking, University of Warsaw, has published How Kantian is Kelsen’s Early Theory of International Law? in Law and History Review:

In this article, the author examines the influence of Immanuel Kant’s philosophical ideas on Hans Kelsen’s early theory of international law. He situates Kelsen’s work within the post-World War I context, where Kant’s vision of perpetual peace significantly impacted the creation of international organizations. The article delves into Kelsen’s seminal work “Das Problem der Souveränität und die Theorie des Völkerrechts,” exploring how Kelsen’s pure theory of law parallels and diverges from Kant’s concepts. While Kelsen’s ideas were shaped by Kantian philosophy, particularly in promoting a lawful international order, Kelsen transcended Kant by developing a more rigorous, epistemologically grounded legal theory. The author argues that Kelsen’s adaptation of Kantian principles reflects both a continuation and transformation of Kant’s vision, tailored to the political and cultural challenges of early 20th-century Europe.

--Dan Ernst

McMahon to Lecture on History of Tax Protests

Stephanie H. McMahon, Indiana University Maurer School of Law, will deliver America’s Love/HateRelationship with Tax Protests, the 2025 Harold C. Schott Lecture at the University of Cincinnati College of Law, at 12:15 pm on July 18, 2025. CLE credit available for Ohio and Kentucky.

--Dan Ernst 

Weekend Roundup

• Like us, you might have heard something about limited access to the collections at the National Archives, College Park.  Here is the latest that we've found, courtesy of the American Historical Association.  

• A recording of The Story of the U.S. Constitution: Past and Present, with Akhil Reed Amar, David Blight, and Annette Gordon-Reed, a "Town Hall" sponsored by the National Constitution Center, is now online.

• We were very pleased to learn that the Law, Culture and the Humanities has given its James Boyd White Award to Robert W. Gordon.  H/t: SB

• "John A. Kirk, George W. Donaghey Distinguished Professor of History at the University of Arkansas at Little Rock, has been awarded the Susie Pryor Award for his article examining the case of Mary Dinwiddie, the only African American woman sentenced to death in Arkansas during the 20th century."  More.  

• A colloquy with Jill Hasday, University of Minnesota Law School, on her book, We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality (Minnesota Law).

• "Kim Lane Scheppele will give Chautauqua Institution’s 21st annual Robert H. Jackson Lecture on the Supreme Court of the United States, on Monday, August 11, 2025, at 3:30 p.m." (Jackson List.) 

• A report on a symposium on that Magna Carta at HLS (Harvard  Law Today).

• "Etta Haynie Maddox: First Woman Licensed to Practice Law in Maryland" (In Custodia Legis). 

• Also on In Custodia Legis, A History of Self-Representation and How H.H. Holmes Represented Himself in His Criminal Trial, posted by Emily Tejada, a former intern with the Digital Resources Division of the Law Library of Congress.

• In Time's "Made by History" series: The Lavender Scare and the Long History of LGBTQ Exclusion in America by Joel Zapata. 

• "Why America Got a Warfare State, Not a Welfare State": Sam Moyn reviews Andrew Preston’s Total Defense: The New Deal and the Invention of National Security (New Republic).   

• The eighth biennial conference of the European Society for Comparative Legal History begins next week at the University of Szeged (ESCLH).

• Lawbook Exchange's June 2025 catalogue of Scholarly Law & Legal History: Part 1 and Part 2.

•  ICYMI:  "What Everyone Is Getting Wrong About SCOTUS’s Trans Rights Ruling" [New Republic, quoting legal historian Kate Redburn (Columbia Law)]. The Constitution is not in crisis; it has already failed, says Jack Rakove (Washington Monthy).

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

Klaaren on Law under Apartheid

Jonathan Klaaren, University of the Witwatersrand, has posted Law under Apartheid, which is forthcoming in the unfortunately timely Oxford Handbook of Law and Authoritarianism, edited by Cora Chan, Madhav Khosla, Benjamin Liebman, and Mark Tushnet:

Law under apartheid in South Africa between 1948 and 1986 may be understood as an instance of authoritarianism and specifically of autocratic legalism. Authoritarian regimes usually employ the tactics of autocratic legalism in the electoral field, using existing laws as well as creating new constitutional and statutory rules. In apartheid's first decade, the white National Party regime continued to adversely incorporate Africans and other blacks into subordinate legal orders and to exclude them from a common and equal citizenship. Law in a bureaucratic mode used to regulate civil registration and the mobility of urban residents was the locus of differentiation. With the declaration of the Republic of South Africa in 1961 and the commitment to apartheid Bantustans (homelands), the regime further eroded the rule of law, doubled down on racial discrimination, and regulated mobility through the construction of international borders internally and in Southern Africa. In the 1980s, law was used as a shield and a sword in both the maintenance of and the resistance to apartheid, providing some lessons for understanding law under authoritarianism. 

--Dan Ernst

Tillman on Citing Bellesiles

Seth Barrett Tillman, National University of Ireland Faculty of Law, has posted A Phenomenon in Search of a Theory/Recent Citations to Michael Bellesiles' Publications:

I intend to describe a phenomenon. I do not intend to explain it. Perhaps others can do so. By way of background … Michael Bellesiles, a history professor at Emory University, published a variety of journal articles on gun ownership during the colonial era and post-independence period. In 2000, he published a book: Arming America. In 2001, it won the Bancroft Prize. In 2002, the prize was rescinded. It was rescinded in large part in response to scholarly criticism. Unsurprisingly, Bellesiles' articles and book influenced public debate, scholarship, and judicial opinions in regard to gun control. Bellesiles and his publications were once cited actively, and then such citations dried up. But now, it appears that his publications are being cited again. 

Perhaps we should ask why? 

--Dan Ernst 

Bessler on the Forgotten Origins of "Cruel and Unusual Punishments"

[We're moving this up, because the article is now out in the British Journal of American Legal Studies. DRE]

John D. Bessler, University of Baltimore School of Law, has posted Lost and Found: The Forgotten Origins of the "Cruel and Unusual Punishments" Prohibition, which is forthcoming in the British Journal of American Legal Studies:

The U.S. Supreme Court and legal scholars have long traced the origins of the Eighth Amendment's prohibition against "cruel and unusual punishments" to the English Declaration of Rights, codified as the English Bill of Rights (1689). The English Declaration of Rights recited that, in King James II's reign, "illegal and cruel punishments" had been "inflicted," with its tenth clause then declaring in hortatory fashion: "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The prohibitions against excessive bail and excessive fines and the final phrase-"nor cruel and unusual punishments inflicted"-were later incorporated into the Virginia Declaration of Rights (1776), various state constitutions, and the U.S. Constitution's Eighth Amendment. One legal scholar, Anthony Granucci, once described the wording of the English bar on "cruel and unusual punishments" as the product of "chance and sloppy draftsmanship," concluding that American lawmakers, in adopting the Eighth Amendment, misinterpreted "the intent of the drafters of the English Bill of Rights." The Eighth Amendment famously reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Credit: Internet Archive

The U.S. Supreme Court and Eighth Amendment scholars have misidentified the English Declaration of Rights as the first appearance of the "cruel and unusual punishments" language, with Justice Thurgood Marshall, relying on Granucci's Eighth Amendment scholarship, observing that the use of "unusual" in the English Declaration of Rights "appears to be inadvertent." This Article demonstrates that the conventional account of the origins of the "cruel and unusual punishments" phraseology-spelled "cruell and unusuall punishments" in some early English sources-is woefully incomplete. The standard account of how that terminology first emerged during the Revolution of 1688-1689, popularly known as the "Glorious Revolution," fails to consider long-forgotten, far earlier uses of the cruel and unusual punishments terminology. Those usages stretch back as far as the early 1600s, during the reign of King James I, though they initially appear in non-legal contexts (i.e., in a history of Venice translated from French into English and published in 1612; in English courtier and poet George Wither's satire, Abuses Stript, and Whipt, first published in the early 1610s; and in 1642 Irish Catholic Remonstrances from Ulster following an Irish rising in 1641). Because of the terminology's prior appearances in those places, the use of the cruel and unusual punishments phraseology in the English Declaration of Rights was almost certainly neither inadvertent nor the product of sloppy drafting.

--Dan Ernst

CFP: Invisible Actors in the Making of International Law, 1750-2000

Via H-Net, we have the following CFP: Invisible Actors in the Making of International Law, 1750-2000 (Sciences Po Paris, 27–28 November 2025).

Location: France 

Subject Fields: Diplomacy and International Relations, Law and Legal History, Maritime History / Studies, Social History / Studies

Call for papers: Invisible Actors in the Making of International Law, 1750-2000
Colloque junior, CHSP, Sciences Po Paris, 27–28 November 2025

Abstracts submission deadline: 10 August 2025 

Contact: invisibleactors2025@gmail.com  

Co-funded by Sciences Po School of Research and the Centre for History and Economics in Paris

Organising committee: Clarisse Anceau (École de Droit SciencesPo); Lorenzo Bonomelli (CHSP/SSM Naples); Amina Hassani (École de Droit SciencesPo/Geneva); Conor Muller (Oxford/CHSP); Giovanni Roggia (CHSP/Univ. Roma Tre).

Scientific committee: Daniela Luigia Caglioti (Univ. Federico II Napoli); Jean d'Aspremont (École de droit Sciences Po/Manchester); Renaud Morieux (Cambridge); Horatia Muir Watt (École de droit Sciences Po); Paul André Rosental (CHSP); David Todd (CHSP-CHEP); Dina Waked (École de droit/École de la recherche Sciences Po).

Duration: 1.5 days (one afternoon and one full day) 

Participants: 9–12 PhD candidates and early career scholars

More information is available here.

-- Karen Tani

 

Brown & Vanatta, "Private Finance, Public Power: A History of Bank Supervision in America"

New from Princeton University Press: Private Finance, Public Power: A History of Bank Supervision in America (2025), by Peter Conti-Brown (Wharton School at the University of Pennsylvania) and Sean H. Vanatta (University of Glasgow). A description from the Press: 

Banks in America are private institutions with private shareholders, boards of directors, profit motives, customers, and competitors. And yet the public plays a key role in deciding what risks are taken as well as how, when, and to what end. Public-private negotiations over financial governance has evolved into an essential ecosystem of banking risk management. In Private Finance, Public Power, Peter Conti-Brown and Sean Vanatta offer a new history of finance and public policy in the United States by examining the idiosyncratic way the nation manages financial risk across the public-private divide. Covering two centuries, from the founding of the Republic to the early 1980s, Conti-Brown and Vanatta describe the often-contested, sometimes chaotic, engagement of bankers, politicians, bureaucrats, and others in the overlapping spaces of the public-private system of bank supervision.

Conti-Brown and Vanatta trace the different supervisory frameworks that evolved over time, from the imposition of private liability on bank shareholders to the development of the central bank to the creation of federal deposit insurance. Negotiations took place at federal and state levels, but, over time, the federal government assumed most of the responsibility for managing financial risk. Moreover, federal supervisory officials began to undertake more varied tasks, including monitoring racial discrimination and managing financial concentration. Conti-Brown and Vanatta introduce a diverse cast of characters—bankers, politicians, bureaucrats, and others—and show how they navigated two hundred years of financial panics, scandals, and crises to build the system that structures modern America’s banking system.

A sampling of advance praise:

“Conti-Brown and Vanatta have written a brilliant history of the murky realm of banking supervision. Recovering over two centuries of intense conflict and negotiations over risk within America’s banking system, the authors explain how the federal government readily absorbed the vital responsibility of managing financial risk. This sweeping history is a must-read for anyone interested in understanding the origins of our modern financial system.”—Julian Zelizer

 

“Supervision is the backbone of bank oversight in the United States and around the world. In their landmark book, Private Finance, Public Power, Conti-Brown and Vanatta pull away the curtain of opacity that has long shielded bank supervision from public view. They reveal supervision to be a constantly evolving set of relationships and practices that shape private risk-taking and public administration. In the process, they provide important new insights into a host of contemporary debates on matters ranging from how best to promote the health of the financial system to the dangers and benefits of regulatory discretion. It is required reading for everyone who wants to understand how best to promote financial stability, state capacity and the way public and private actors have cocreated today’s financial system.”—Kathryn Judge 

On June 10, the Brookings Institution in Washington, D.C., hosted a book launch conference, "The History of Bank Supervision in America and the Road Ahead," featuring legal historians Naomi Lamoreaux and Ed Balleisen, as well as legal academics, financial industry lawyers, journalists, and former supervisors. A video recording of the conference is available here.

 

-- Karen Tani

Bernstein's Very Short Introduction to Alexander Hamilton

We were surprised, moved, but also pleased to see the posthumous publication of R. B. Bernstein’s Alexander Hamilton: A Very Short Introduction (Oxford University Press):

Alexander Hamilton: A Very Short Introduction examines the life of a revolutionary leader, constitutional thinker, and the nation’s first secretary of the treasury. He led the effort to author The Federalist, offering a brilliant defense of the Constitution, and championed its broad interpretation. This VSI presents his drive to build a strong national government capable of preserving the Revolution’s achievements and securing the nation’s survival. It captures his role as a soldier, legal expert, and political strategist who shaped American governance. Through relentless ambition and action, Hamilton embodied the energy essential for the country’s success.

--Dan Ernst

Weekend Roundup

• 
  Salutations to the participants in the J. Willard Hurst Summer Institute in Legal History of the American Society for Legal History, which continues into next week at the University of Wisconsin-Madison under the direction of chairs John Fabian Witt and Michelle McKinley!  For some other reasons to join the ASLH, consider its Early Career (Virtual) Legal History Workshop, its Early Career Global Legal History Research Fellowships, and its just-announced Themed (Virtual) Legal History Workshops.

• Over at the LPE Blog, the symposium on Sandeep Vaheesan’s Democracy in Power: A History of Electrification in the United States continues. The most recent post, by William Boyd, is here.  

• The Minnesota Supreme Court Historical Society is hosting a one-hour CLE panel, A Dive Into Unitary Executive Theory: Presidential Powers and Limitations, on June 24 from 3-4 CDT in person at the Minnesota Judicial Center.  The panelists are Christine Chabot, Marquette University Law School; Heidi Kitrosser, Northwestern University Pritzker School of Law; and Nick Bednar, University of Minnesota Law School. 

• We hear there might still be spaces at next months Rare Book School, devoted to Medieval Manuscript Fragments: Cataloging & Discoverability, with Lisa Fagin Davis.

• From Time's "Made by History": Tom Hanchett on "The History of the Low-Income Housing Tax Credit—And How it Could Improve Trump’s ‘Big Beautiful Bill.’"  

• Via ESCH and H-Law, we have a CFP for the junior colloquium Invisible Actors in the Making of International Law (1750-2000) at Sciences Po/Center for History in Paris on November 27-28, 2025. 

• UC Irvine School of Humanities on its alumna, Stanford Law's Bernadette Meyler 

• Modern Criminal Law Review had a symposium on Chloë Kennedy’s Inducing Intimacy: Deception, Consent and the Law (Cambridge University Press, 2024).  A podcast version is here.

• ICYMI:  How Much Money Do Historians Make From Their Writing? (Contingent Magazine).  Kate Hampton on a Montana antidiscrimination case from 1881 (Daily Montana).  Manisha Sinha on Lincoln and the abolitionists (Unpopulist). John Yoo on Putting the Executive in "Unitary Executive" (Law & Liberty).  St. Louis's Old Courthouse (Ladue News).

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

Grossman and Friedman on History, Tradition and Abortion

The second of today’s HAT posts is Joanna L. Grossman, SMU-Dedman School of Law, and Lawrence M. Friedman, Stanford Law School, The Quick and the Dead: The Uses and Misuses of History in Abortion Jurisprudence, which appears in the Women’s Rights Law Reporter:

On June 24, 2022, a solid conservative majority of justices on the United States Supreme Court decided that the time had come to overrule Roe v. Wade, and it did so in Dobbs v. Jackson Women’s Health Organization. The opinion in Roe, according to the majority in Dobbs, “was egregiously wrong from the start.” And the time had come to get rid of it once and for all. There was no constitutional right to an abortion, according to the majority. In the Court’s words, “the authority to regulate abortion must be returned to the people and their elected representatives.”  

Dobbs is and will remain controversial. Abortion is clearly a major issue, politically speaking, with strong passions on both sides. Roe v. Wade itself was also controversial from the very beginning. Abortion had been a contested matter before that decision; and Roe itself was never accepted by a large minority of Americans, particularly in the South. Both sides in the abortion controversy have appealed to the historical record. The Dobbs majority opinion relies on the criminalization of abortion in the second half of the nineteenth century to conclude that abortion cannot be recognized as a fundamental right under the Fourteenth Amendment. In this article, we want to re-examine that history. 

It would be naïve to think that historical considerations made a crucial difference in the Dobbs decision (despite what the opinion claims); or that it will be decisive in a related dispute over the Comstock Act and the legality of abortion pills. But historical rhetoric has been a prominent tool in the abortion dispute; and this makes it worthwhile to pick apart the historical arguments. Yet this is not only, or primarily, a study in legal history. It is a study of the shape and meaning of the abortion controversy over time. It is a study of how the social context molded that controversy, in the past, and in the present. The goal is to broaden our understanding, first, of the abortion issue, and beyond that, how politics, religion, ideology, and other factors bear on the question of unborn life. 

The aim is objectivity—if that is possible. We will first consider the particular ways in which history was deemed relevant to the majority’s ruling in Dobbs and note the historical claims that are contested or even obviously wrong. Then, we will get to the heart of the article, in which we examine the history of abortion law and policy in social context. This analysis lays bare the absurdity of grounding constitutional rights in “history,” when laws and policies are plucked from their social context and dropped into a world that would have been unrecognizable to those who lived at the relevant time in history.

Abortion is, as before, a controversial issue. History, as we said, cannot convince either side that their view is right and the other view wrong. What it can do is shine the light of scholarship on the history of this controversy, with as much rigor as the subject allows. When we do this, the historical arguments in the Dobbs opinion seem more and more irrelevant. Those arguments, we have argued, were based on a profound misreading of the social context in which the abortion issue in Victorian times played out. Today, we live in a very different world. The terms of the debate in the nineteenth century are not the terms of today. They are in fact, as we tried to show in this article, essentially obsolete. 

--Dan Ernst 

Blocher and Siegel on History, Tradition and Guns

It’s “history and tradition” (HAT) Friday.  Our first post is Joseph Blocher, Duke University School of Law, and Reva Siegel, Yale Law School, The Ambitions of History and Tradition in and Beyond the Second Amendment, which is forthcoming in the University of Pennsylvania Law Review:

This Article examines the ambitions of history-and-tradition review in and beyond the Second Amendment. In Bruen and Rahimi the Roberts Court rejected means-end review in favor of a historical-analogical approach, claiming to constrain the exercise of judicial discretion, and thus to promote the democratic decisions of the founders. But our examination of these cases shows that the Court has created new opportunities for judges to advance their values in considerably less transparent ways. We identify contexts in which Second Amendment doctrine enables judicial discretion, key among them that it allows judges to reason about gun rights and regulation at disparate levels of generality, extending rights protection to modern guns while requiring gun laws to resemble ancient analogues. When applied in this asymmetric fashion, the historical approach deregulates in ways that are neither acknowledged nor justified. An eight-member majority objected to this strategy in Rahimi and voted to uphold a federal gun law. Yet numerous Justices wrote separately to limit Rahimi’s reach—and, a year later, to suggest that the Court should take a case involving an assault-weapons ban to clarify the method set forth in its earlier cases.

Our close reading of the history-and-tradition (HAT) cases shows that there is a persistent gap between what the Court says and does—between the judicial constraint the Roberts Court promises and the actual decisions it delivers. Understanding this dynamic in the Second Amendment cases helps us recognize it in the First Amendment and Substantive Due Process cases as well.

We can better appreciate the Court’s reasoning in extending HAT review if we excavate the arguments advanced in the decade between Heller and Bruen for substituting the HAT approach for means-ends review. This retrospective shows us that HAT approaches exhibit the very problems imputed to means-ends review: HAT review is not grounded in original understanding and employs shifts in generality to provide judges discretion to enforce value-based understandings. We can see this dynamic unfolding inside and outside the Second Amendment context.

HAT decisions pose distinctive threats to democracy. First, Bruen has implemented HAT through judicial review with a strong presumption of unconstitutionality, a counter-majoritarian practice lacking precedent at the founding. Second, HAT review is not transparent, obscuring reasons for judicial decisions from the people and thus obstructing democratic dialogue. Third, the HAT framework encourages judges to decide the constitutionality of public safety laws on grounds that ignore the public’s most urgent reasons for enacting the laws.

This reading of the Court’s Second Amendment cases indicates that the push to adopt HAT approaches in First Amendment, Due Process, and other areas of constitutional law is likely to compound the problems it is supposed to solve, while insulating the Court’s control of the Constitution from the public governed by it. 

--Dan Ernst

US History through Its Assassinations

Mark Jones, professor emeritus of criminal justice and criminology, East Carolina University, has published A History of the United States through High-Profile Assassinations (Cognella):

A History of the United States through High-Profile Assassinations presents a unique perspective on American history, framing the narrative through a sequence of notable assassinations and attempted assassinations. This approach offers a novel lens through which to examine historical continuity and change. The text emphasizes the broader social, political, and historical contexts revealed by these violent acts, regardless of whether the perpetrators aimed to make a political statement.

The book explores the evolution of the term "assassination," its historical roots, and its impact on social and political change globally and within the United States. It delves into typologies of assassins, uses various historical episodes to discuss broader issues, and includes less explored assassination attempts alongside well-known events. Additionally, the book pays attention to the narratives often relegated to the sidelines of history, reflecting on the experiences of ethnic minorities and women.

A History of the United States through High-Profile Assassinations serves as a compelling primary or supplemental text for courses in American history, criminal justice, and political science. It provides an innovative approach to learning that encourages students to connect individual events with larger national and international trends.

--Dan Ernst

Forum on Wang's "Making of Felony Procedure"

[We have word from the Modern Criminal Law Review of From Treason to Trump: Felony’s Medieval Origins and Modern Resilience, a forum on Elise Wang's Making of Felony Procedure in Middle English Literature.  DRE]

In The Making of Felony Procedure in Middle English Literature (Oxford 2024), Elise Wang explores the medieval origins and surprising modern resilience of “felony” in contemporary criminal law. Since its appearance as the ur-crime of Anglo-Saxon proto-criminal law, commentators, historians, and judges have waxed poetic about the radically exclusive evil attached to those who are branded, “attainted,” and just plain despised “with words of felony.”

The following passage from Pollock & Maitland’s classic history of medieval English law gives a nice flavor:

When the adjective felon first appears it seems to mean cruel, fierce, wicked, base. Occasionally we may hear in it a note of admiration, for fierceness may shade off into laudable courage; but in general it is as bad a word as you can give to man or thing, and it will stand equally well for many kinds of badness, for ferocity, cowardice, craft.

That’s memorably harsh, even for medieval law. More startling yet, talk of “felony” and “felons” survives to this day. Courts continue to quote the passage above to give their modern audience a flavor of what felony means today. In public discourse, the “branding” of a criminal defendant as a “felon”–as opposed to a mere “convict”–still appears as definitive evidence of that person’s (more or less permanent and total) exclusion from the political community, i.e., a type of civil death or outlawry (incl. disenfranchisement, deportation, and ineligibility for jobs, benefits, or privileges).

How can this be? What did felony mean in medieval law and literature? What does (and should?) it mean today? Does felony have a place in modern criminal law discourse and practice?

Why Legal Historians Need to Read Literature
Sara M. Butler

Felony, Fact-Finding, and Medieval Due Process
Jennifer Jahner

Law, Not-Law, and the Felon in Between
Alice Ristroph

Felon, Felonesse, President
Jamie Taylor

Felony and the Interdisciplinary Frounce
Elise Wang

In preparation for this Forum, MCLR+ hosted a book panel, live streamed on our YouTube channel, on January 17, 2025. The video of that event is available here; the audio is accessible here, or on any of the usual podcast outlets (Spotify, Apple, etc.). For additional materials, please consult MCLR+ Resources (“Felony”).

To stay informed about upcoming MCLR+ events, publications, and projects, please sign up for the MCLR+ mailing list and check the MCLR+ website; to receive notifications about new video content, subscribe to our YouTube channel.

Primus's "Oldest Constitutional Question"

Richard Primus, University of Michigan Law School, has published The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press):

Every law student learns that the federal government is constrained to act only according to its enumerated powers, meaning that Congress can do what the Constitution expressly authorizes it to and nothing more. Yet Richard Primus contends that this longstanding orthodoxy—allegedly required by the text of the Constitution, the Framers’ vision, and the logic of federalism—is fundamentally flawed.

Through careful analysis of constitutional text and history, and of the structure of American federalism, The Oldest Constitutional Question builds a powerful argument for broad congressional authority. In particular, Primus shows that the primary function of enumeration is to rule listed powers in, not to rule other powers out. The Framers were more worried that the federal government might be fragile and anemic than that it would be overwhelmingly strong. Enumerating congressional powers is thus best understood as a way of ensuring that the federal legislature has an incontestable warrant to exercise the powers specified there, not as an exhaustive description of all that Congress can do.

In practice, the enumeration of powers does little to limit Congress. But most constitutional lawyers—including many Supreme Court justices—think this means something has gone wrong, such that the courts must aggressively strike down federal laws exceeding Congress’s enumerated powers. Primus’s meticulous examination explodes the prevailing view, revealing its underlying errors. The constitutional system does place limits on Congress, and crucially so, but the enumeration of powers is not, and never has been, a sensible means for creating and enforcing those limits

Michigan Law's interview of Professor Primus about his book is here. 

 --Dan Ernst