Richotte's "Worst Trickster Story Ever Told"

Keith Richotte, Jr., has published The Worst Trickster Story Ever Told: Native America, the Supreme Court, and the U.S. Constitution (Stanford University Press):

When did the federal government's self-appointed, essentially limitless authority over Native America become constitutional?

The story they have chosen to tell is wrong. It is time to tell a better story. Thus begins Keith Richotte's playful, unconventional look at Native American and Supreme Court history. At the center of his account is the mystery of a massive federal authority called plenary power.

When the Supreme Court first embraced plenary power in the 1880s it did not bother to seek any legal justification for the decision – it was simply rooted in racist ideas about tribal nations. By the 21st century, however, the Supreme Court was telling a different story, with opinions crediting the U.S. Constitution as the explicit source of federal plenary power.

So, when did the Supreme Court change its story? Just as importantly, why did it change its story? And what does this change mean for Native America, the Supreme Court, and the rule of law? In a unique twist on legal and Native history, Richotte uses the genre of trickster stories to uncover the answers to these questions and offer an alternative understanding.

The Worst Trickster Story Ever Told provides an irreverent, entertaining synthesis of Native American legal history across more than 100 years, reflecting on race, power, and sovereignty along the way. By embracing the subtle, winking wisdom of trickster stories, and centering the Indigenous perspective, Richotte opens up new avenues for understanding this history. We are able, then, to imagine a future that is more just, equitable, and that better fulfills the text and the spirit of the Constitution.

--Dan Ernst

Weekend Roundup

• Dylan C. Penningroth will deliver Hidden Histories of Black Civil Rights, the 2025 Pro Lecture in Legal History at the William S. Boyd School of Law at the University of Nevada, Las Vegas, in conjunction with the UNLV Department of History, at 5:30 on February 11.  The program is free, but registration is required. 
  

• John Fabian Witt will deliver "Antagonists and Enablers: A First Draft History of Biden and the Supremes," the Mitchell Lecture for Spring 2025, at 2 p.m. on March 14, at the Charles B. Sears Law Library, John Lord O’Brian Hall, University at Buffalo (North Campus).  Robert H. Jackson delivered the first Mitchell Lecture in 1951, titled “Wartime Security and Liberty Under Law.”  Other Mitchell Lecturers include Derrick Bell, Paul Freund, Lawrence Friedman, Carol Gilligan, Sheila Jasanoff, Duncan Kennedy, Karl Llewellyn, Stuart Macaulay, Catharine MacKinnon, and Richard Posner.  So, no pressure.  Register here to attend.

• Former LHB blogger and president-elect of the American Society for Legal History Mitra Sharafi has won the Indian Law Review's article prize for 2023 for "Indian constitutionalism, the rule of law, and Parsi legal culture," which is available, open access, here. 

• 
  The organizing committee of the eighth European Society for Comparative Legal History’s biennial conference, "Back to the Past and Building the Future,” to be held at Szeged, Hungary, on July 2-3, 2025, “has launched a website containing information on accommodation, traveling, membership fee and registration fee.”  H/t: ESCHblog.  
  

• The Sandra Day O’Connor Institute for American Democracy, the National Constitution Center and the Organization of American Historians are sponsoring a week-long, intensive summer workshop for “social studies educators who currently work in sixth–12th grade classrooms who have an interest in learning more about the history of the U.S. Constitution,” from Sunday, June 22-Friday, June 27.  It opens with a panel discussion including Jeffrey Rosen, David Blight, and Akhil Amar, which will be open to the general public and livestreamed.  More.
  

• Congratulations to former LHB Blogger Emily Prifogle upon the Michigan Law faculty's vote to award her tenure.  H/T: WAKL
  

• Former LHB Guest Blogger Marie-Amélie George reviews Margot Canaday’s Queer Career in LHR.
  

• We did not know there was a Treasury Historical Association, much less that it awards a research prize, but we're glad we do now.  Let's get going on the history of this.
  

• Here is the CFP for the annual meeting of the American Historical Association, to be held in Chicago, January 8-11, 2016. 
  

• The Georgetown University Center for the Constitution has awarded its annual Thomas M. Cooley book prize (a $50,000 award) to Robert Cottrol and Brannon Denning for their book, To Trust the People with Arms: The Supreme Court and the Second Amendment (The Hoya).
  

• ICYMI: David Blight on birthright citizenship (The Atlantic).  Mark Thomas on originialism and impoundment (Notice & Comment). Howard University “Celebrates the Life of Alumnus Henry L. Marsh III" (Howard).
  

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

Erbsen on Presidential Power to Adjourn Congress

Allan Erbsen, University of Minnesota School of Law, has posted Constitutional Limits on the President's Authority to Adjourn Congress:

Can the President adjourn Congress, declare that the adjournment constitutes a recess, and appoint cabinet officers without the Senate’s consent? President-Elect Donald Trump has considered invoking this supposed power. Adjourning Congress would enable the President to appoint otherwise unconfirmable officials. Even if the President does not adjourn Congress, the looming threat of adjournment could chill the Senate’s review of nominees.

This Article concludes that the President cannot evade the Senate’s role in the appointments process by adjourning Congress. Three clauses in the Constitution inform the analysis: the Consent Clause, which requires each house to consent to the other’s adjournment; the Convening Clause, which authorizes the President to convene one or both houses in an “extraordinary” session; and the Disagreement Clause, which allows the President to adjourn Congress when the houses disagree about whether adjournment is appropriate. A plan that has percolated among some House members calls for manufacturing a disagreement with the Senate that the President would cite as a basis for adjourning Congress. I call this the “contrived adjournment plan.”

The contrived adjournment plan violates the Constitution for four independent reasons. First, the Constitution tethers the Disagreement Clause to the Convening Clause. The President may adjourn Congress only if the President convened at least one of the houses in an extraordinary session. If both houses convened on their own in a regular session, the President lacks power to adjourn them. Second, even if the Disagreement Clause applies to regular sessions, it does not enable the President to adjourn the Senate if the Senate allows the House to adjourn. The House and Senate each possess independent authority to continue meeting while the other adjourns. If the Senate permits the House to adjourn, then the Senate’s refusal to adjourn itself would not create a constitutionally significant disagreement that the President could resolve. Third, even if the President can force the Senate to adjourn, the Senate can reconvene to protect its role in the appointments process. The President can authorize the Senate to remain adjourned until a specified date, but cannot suppress the Senate’s inherent authority to reconvene on an earlier date. Fourth, even if the Senate could not reconvene, a forced adjournment of the Senate arguably would not create a “recess” that would permit the President to appoint officials without the Senate’s consent.

For the past 235 years, the Disagreement Clause has not been a cannon aimed at the Senate, waiting for a President to light the fuse. The Disagreement Clause has a narrow role that does not include empowering the President to evade Senate review of appointments. The Constitution’s separation of powers framework is more resilient than Machiavellian schemes assume.

--Dan Ernst

Schwartz on Dred Scott, Roe, and Enumerationism

David S. Schwartz, University of Wisconsin Law School, has posted An Ugly Common Ancestor: Dred Scott, Roe, and Enumerationism:

Roger Taney, CJ (LC)

The Dred Scott case holds a deserved place in the constitutional “anti-canon” of Supreme Court decisions that exemplify rejected constitutional views. But the complex history of the case, the convolution of the lead opinion by Chief Justice Roger Taney, and the complicated relationship between its two primary holdings have generated multiple, often conflicting arguments about its negative “lessons.” Such arguments—particularly that of Robert Bork arguing that Dred Scott is the “very ugly common ancestor” of Lochner v. New York and Roe v. Wade—have masked an important element of the Taney opinion: its central reliance on “enumerationism,” the doctrine of limited enumerated powers. This essay argues that the reasoning underlying Dred Scott’s holding striking down the Missouri Compromise—the holding that created the Republican backlash at the time—reflected, not a strong precedent for substantive due process, which was a mere makeweight argument, but instead turned on the core values of enumerationism. The opinion, whatever other lessons it supplies, demonstrates the close connection between enumerationism and slavery as well as the internal contradictions and incoherence of limited enumerated powers.

If you’ve been sleeping on the emergence of an anti-enumerationist, Madison-marginalizing revision of American constitutional history, Professor Schwartz’s paper is a good entrée.  See also his paper with my Georgetown Law colleague John Mikhail (The Other Madison Problem) and Professor Mikhail’s The Necessary and Proper Clauses and The Original Federalist Theory of Implied Powers, the latter of which would bring you up to speed quickly.

–Dan Ernst

Blocher and Garrett on Applying History as Law

Joseph Blocher and Brandon L. Garrett, Duke University School of Law, have posted Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine:

The U.S. Supreme Court has long relied on historical evidence in constitutional cases, but recent years have seen a major change in how it does so: not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward. Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application. This transformation in the legal significance of history raises important questions for originalism as a practice of constitutional adjudication, not simply a theory of law. How are judges and litigants to implement the historical tests the Court has increasingly prescribed for them?

In the first Part of this Article, we show how lower courts have been tasked with assessing history and tradition in applying constitutional standards, often with little guidance regarding how to proceed or what quality and quantity of historical evidence suffices to satisfy those standards. We taxonomize the Court's standards, describing the different burdens and challenges that judges face in carrying out their obligation to apply these standards while developing a historical fact record.

In Part II, we show how lower courts and litigants have attempted to navigate this new doctrinal landscape. Their efforts have revealed serious complications and debates about fundamental matters like the fact/law distinction, record development, expert witnesses, and independent judicial factfinding. Less attention has been paid to the impact on litigants, who potentially face higher costs of research and briefing and legal standards that are more obscure and unpredictable. The result has been incomplete and sometimes deeply flawed decision-making, and-perversely-a growing disjunction between law and historical facts.

In Part III we provide some prescriptions. We argue that if constitutional cases are to turn on matters of historical fact, those factual determinations should be initially made with an opportunity for party development of historical facts, including with appropriate use of expert witnesses. If no such trial court record exists, appellate courts can and often should remand for one to be developed. Moreover, fixed standards of review must regulate review on appeal, accounting for the differences between questions of fact and law

If adequate rules and practices for finding and applying historical facts cannot be identified or soundly implemented, then originalist constitutional standards that call for the application of historical facts should be reconsidered—not necessarily because they fail in theory but because they fail in practice. Insufficient rules for fact-development and review on appeal result in ill-defined precedent and unworkable constitutional doctrine and will call into question the judicial enterprise of applying history as constitutional law.

--Dan Ernst

An Anthology on the "Origins of Company Law"

New from Hart/Bloomsbury: The Origins of Company Law: Methods and Approaches, edited by Victoria Barnes and Jonathan Hardman:

What were the origins of company law? How did it begin? Why did it change? There is no single answer to these questions. Each discipline, and sub-discipline, has a different approach and method that brings different facets of study to the fore. This multidisciplinary endeavour is immensely valuable for debates taking place now among policy-makers in the UK and US about returning to historic modes of company regulation.

The book brings together Anglo-American scholarship that will not only shed greater light on the history of company law but also influence contemporary debates about our ability to return to, or learn from, the past. Historical research has great value here because it not only generates new insights into the evolution of present legal rules, but also corrects misunderstandings and misapprehensions about them.

The book shows how this body of law developed to become the rules with which we are now familiar. It showcases antecedents of present debates, reveals regulatory lessons from previous legal regimes, identifies instances of path dependency, unpicks pivotal legal events, and explains drivers for legal change. The chapters re-evaluate the history of company law, and the knowledge gathered here will inform the law-making and policy-making agenda.

–Dan Ernst.  TOC after the jump.

Symposium: The Worlds of Pre-Modern Neutrality

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

Symposium: The Worlds of Pre-Modern Neutrality (ca. 1400-1800): Norms, Institutions and Practices.  Antwerp, May 8, 2025 - May 9, 2025

To ensure their security in a world dominated by competing Great Powers, states have the choice between an alliance or a neutral position. If we consider the world as governed by brute force, neutrality (the choice not to participate in a conflict between two or more other polities) would merely be a factual condition, dependent on the big players’ goodwill. Even today the ongoing war in Ukraine and the geopolitical tensions between China and the US pose existential challenges to third countries and their positioning, demonstrating the persistent vitality of the concept of neutrality in the 21st century. This equally reverberates on third states’ nationals and other non-state actors. The articulation of the set of rights and duties associated with neutrality has a long pedigree in legal history. The rhetorical use of legal arguments is intertwined with the protection of one’s territory and population but also with the interdependence that fosters trade, especially at sea, connecting markets, spaces and peoples. Law and power are never disconnected in matters related to neutrality, a mutual and reciprocal influence of both tenets is usually present.

This symposium aims to contribute new insights to the long-term history of neutrality, focusing on its ‘pre modern’ dimension broadly understood (ca. 1400-1800). Indeed, the law of neutrality started to emerge in the Early Modern Age through the practices and beliefs of the European state system, but also from its interactions with non-European normative and cultural systems. Different but complementary angles of approach can be used to understand this phenomenon: e.g. diplomatic history, IR history, political history, economic history and legal history. Throughout history, polities as well as private actors have interpreted neutrality in flexible and divergent ways, e.g. proposing a proactive-assertive approach or a more passive and inward looking one.

Benefiting from multiple disciplinary perspectives, the symposium takes into consideration both the theory and the practice of neutrality, advancing our knowledge of the often-contested conceptualisation of legal regimes at sea as well as on land. Such a conceptualisation depended on the interaction between situations of peace and war, diverging across different temporal and spatial coordinates. The participants’ contributions will also unravel the recurrent misalignment between legal-dogmatic approaches and practical uses of knowledge, as well as its intellectual and bureaucratic production. As such, the symposium participates in a broader turn to bottom-up approaches in the history of international law, a booming field of interdisciplinary research.

[Complete schedule here.]

BU Spring 2025 History of International Law Speaker Series

[We have the following announcement.  DRE.]

The Frederick S. Pardee Center for the Study of the Longer-Range Future [at Boston University] is pleased to announce the International History Institute’s (IHI) Spring 2025 “History of International Law” speaker series. All three events will be held in the Pardee School of Global Studies’ Riverside Room at 121 Bay State Road. The series is open to the public. Please register to attend here.

Thursday, January 30 | 5:00-6:30 pm
Keynote Lecture: “The Law of International Society: Remarks on a Domesticated Notion”

Martti Koskenniemi, Professor Emeritus of International Law, University of Helsinki

Wednesday, February 26 | 4:00-5:30 pm
Book Talk: “Odious Debt: Bankruptcy, International Law & the Making of Latin America”

Edward Jones Corredera, Senior Research Fellow, Max Planck Institute for
Comparative Public Law and International Law

Discussant: Felipe Ford Cole, Assistant Professor, Boston College Law School

Wednesday, March 26 | 4:00-5:30 pm
Book Talk: “Arbitrating Empire: United States Expansion & the Transformation of International Law”

Allison Powers Useche, Assistant Professor of History, University of Wisconsin–Madison

Discussant: Andrei Mamolea, Assistant Professor of International Relations, Pardee School of Global Studies, Boston University

Berkeley Legal History Workshop

[We have the following announcement, which includes an abstract of Professor Weil's paper.  DRE]

Graduate Fellows Summer Research Institute in U.S. Law and Race

[We have the following announcement.  DRE]

Call for Applicants: Graduate Fellows Summer Research Institute in U.S. Law and Race, June 9-27, 2025.  Deadline: February 15, 2025

Funded by the Mellon Foundation, this three-week residential fellowship program supports four (4) graduate students in Summer 2025 at the University of Nebraska-Lincoln's U.S. Law and Race Initiative with the Digital Legal Research Lab. We seek proposals addressing race and racialization in U.S. law and history broadly, aiming to understand racialized people's use of the law to advance personhood, citizenship, rights, and sovereignty throughout American history.

The Fellowship: Fellows will workshop their research and writing, receive training in digital methods to support data structuring and analysis, contribute to an Open Educational Resource, and enjoy seminar-style discussion of shared readings. The 3-week program features tailored mentoring with U.S. Law & Race affiliate faculty and staff, along with opportunities to meet and network with UNL's History & Digital Humanities communities. Faculty mentors include William G. Thomas III (History), Katrina Jagodinsky (History and Women’s and Gender Studies), Jeannette Eileen Jones (History and Ethnic Studies), Donna Doan Anderson (History), Genesis Agosto (Law), Eric Berger (Law), Danielle Jefferis (Law), Laura Muñoz (History and Ethnic Studies), Jessica Shoemaker (Law), and Catherine Wilson (Law).

Benefits: $4,000 stipend; all housing and meals provided; and all travel costs are covered.

Eligibility: We seek Graduate Fellows researching topics broadly related to U.S. law and race. We are not able to accept proposals that are solely quantitative social science research. Fellows must be from Ph.D. programs in History or relevant humanities or humanistic social science disciplines, including joint J.D./Ph.D. programs. We are especially interested in applications from scholars who identify with traditionally underrepresented groups or attend Minority Serving Institutions.

How to Apply: To be considered for the Fellowship, you should send 1.) a letter of interest describing your research project, the writing you propose to workshop and how you would contribute to diversity, equity, and inclusion in the Initiative, 2.) a CV, and 3.) a list of two references the committee may contact. Please send materials to uslawandrace@unl.edu with the subject line "Mellon Graduate Fellows".

A PhD Studentship on Women Solicitors on England and Wales

[The Department of Law at Queen Mary University of London has announced the Lady Cruickshank PhD Studentship on Early women solicitors in England and Wales 1919-1939.  DRE.]

In 2016 Elizabeth Cruickshank published a paper entitled “'Follow the Money’: the first women who qualified as solicitors 1922-1930."  A central argument of “Follow the Money” was that women’s ability to practice law in the first two decades after the enactment of the Sex Disqualification (Removal) Act 1919 was primarily facilitated by family connections, in particular, by solicitor fathers seeking to replace their deceased soldier sons in the family law firm.

This studentship picks up the theme of “Follow the Money.”  Using previous research undertaken by Lady Cruickshank and the records of the Association of Women Solicitors, the studentship will facilitate the writing of a PhD thesis which explores Lady Cruickshank’s ideas.  The PhD awardee will work with supervisors to define the scope, research questions, and research methods for the doctoral project.

 It is envisaged that the research will include an examination of the following questions:

1. To what extent and in what ways was the solicitors’ profession affected by World War One?
2. What was the public and professional discourse surrounding the admission of women to the legal profession?
3. What was the position of women who qualified as solicitors between 1922-1939?
4. How many qualified? What can be said about them as individuals and as a group?
5. Of those who qualified, how many were able to practice as lawyers? What were the obstacles facing aspiring women solicitors?
6. How many trained and/or were employed in a firm to which they had family connections? Of those who trained and/or fund employment elsewhere?
7.  How did this phenomenon affect the development of their careers and those of other women who did not or could not avail themselves of this pathway into the profession? For example, did      it curtail their professional development? Were they able to continue with feminist activism (where relevant)?  
8. To what extent did women work as individuals or did they make use of informal or formal associations? To what extent did they make a difference to either the numbers or the experiences of early women solicitors?
9. What barriers did women seeking to become lawyers during this period face?

[Applications close on March 3 for entry in September 2025.  The supervisors will be Caroline Morris and Judith Bourne.]

ABF Chicago-area Legal History Workshop

[We have the following announcement from the American Bar Foundation (ABF).  DRE]

The ABF Chicago-area Legal History Workshop will be held periodically on Wednesday evenings at 4:00 pm (except where otherwise noted) at the 4th Floor Woods Conference Room of the ABF Offices (420 E. Superior St., Chicago, Illinois).

Wed. Jan. 29 (4:00pm start) – Christopher Schmidt (ABF, Chicago-Kent)

“The NAACP’s Campaign Against John Parker and the Making of the Modern Supreme Court”

Wed. Feb. 12 (4:00 pm start) –Josh Aiken (ABF/Yale)

Wed. Mar. 5 (4:00 pm start) – Dennis Wieboldt (Notre Dame)

Wed. Mar. 19 (4:00 pm start) – Rabia Belt (Stanford)

Wed. Apr. 2 (4:00 pm start) – Sally Hadden (W. Michigan)

Wed. Apr. 30 (4:00 pm start) – Yvonne Pitts (Purdue)

Weekend Roundup

• Congratulations to Rabiat Akande, University of Maryland Francis King Carey School of Law, upon being named the 2025 Wilson H. Elkins Professor by the University System of Maryland, which comes with “an award of $80,000 over two years to support a research project titled ‘Law and the Histories of Empire’” (The Elm). 
  

• A nice notice by Ronald A. Brand of his University of Pittsburgh School of Law colleague and legal historian Bernard Hibbitts upon Professor Hibbitts's retirement.
  

• In the wake of President Trump's Executive Order on "Protecting the Meaning and Value of American Citizenship," many historians and legal scholars are weighing in on the history of birthright citizenship: Martha S. Jones (Johns Hopkins) spoke to WBUR; Rachel Rosenbloom (Northeastern University School of Law) wrote for Made by History; Evan Bernick (Northern Illinois University) spoke to Time.
  

• The American Historical Association is hosting a congressional briefing on the history of the U.S. House of Representatives.  It will take place on Wednesday, January 29 at 9:00 a.m. ET in Rayburn House Office Building Room 2075.  The panelists are Kathryn Cramer Brownell (Purdue University), Matthew Green (Catholic University of America), and Rachel Shelden (Pennsylvania State University).
  

• 
  Guillaume Tusseau will speak on Bentham's constitutional thought on February 7 at Sciences Po.  The discussants will be Peter Niesen and Xiaobo Zhai.
  

• Pamela Brandwein reviews Mark Graber's Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War (Lawfare). 
  

• Paul Moreno reviews Stuart Banner’s The Most Powerful Court in the World: A History of the Supreme Court of the United States (Law & Liberty).
  

•  Talbot Publishing, an imprint of The Lawbook Exchange, Ltd., has published G. I. Tunkin: Selected Works, edited and translated by William E. Butler.

• ICYMI: The Constitution disappears from the White House website (Newsweek).  Rockingham County (Virginia) Circuit Court is celebrating the restoration and digitization of “a Burnt Deed Book from 1815, a Land Book from 1878, and a Land Tax Book dating as far back as 1812" (WHSV).  "Harvard Outsources Program to Identify Descendants of Those Enslaved by University Affiliates" (Harvard Crimson).
  

• Update: Mary Frances Berry on the Executive Order suspending civil rights enforcement (Yahoo/The Grio).  John Yoo on birthright citizenship (AEI).
  

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

Brennan Center's Polan Fellowship in Constitutional Law and History

 [We have the following announcement.  DRE.]

The Brennan Center [for Justice] is inviting applications for the 2025-26 class of the Steven M. Polan Fellowship in Constitutional Law and History, a fellowship program aimed at enhancing public understanding and appreciation of the meaning and promise of the United States Constitution. The Fellowship is open to outstanding individuals from an array of professional backgrounds – including historians and other experts in constitutional law and history – working on projects to spur urgently needed debate over the proper understanding of our Constitution at this crucial moment, when new approaches to constitutional interpretation including originalism, incubated by the conservative legal movement over the past half century, have gained traction in the courts. These projects may include conducting legal and historical research, publishing original writing, crafting amicus briefs, organizing symposia and public events, spearheading public education projects, and other activities as appropriate.

Proposals are due by February 15, 2025. These nonresident, part-time fellowships will be one year in duration. Fellows will be awarded compensation in the form of a $40,000 stipend. The Fellowship is open both to experienced individuals with a proven track record of achievement and expertise and to people at earlier stages of their careers who demonstrate the potential to develop into leaders in their field. We’re looking for visionaries who are animated by the challenge of reclaiming our Constitution as an enduring plan of government suited to the needs of a changing country.

Uncertainty in Comparative Law and Legal History

Published last month: Uncertainty in Comparative Law and Legal History: Known Unknowns, edited by Andrew J. Bell and Joanna McCunn (Routledge, 2025):

Laws are imposed on facts. But what is the law to do when its rules for establishing facts do not—because they cannot—produce a satisfactory answer? Scenarios that raise this intractable uncertainty problem have been treated as isolated concerns, but are in fact endemic across legal systems. They can cross jurisdictional and doctrinal boundaries, have recurred throughout history, and demand creative thinking from those faced with them. This book explores the law’s understandings of and responses to such situations from a comparative historical perspective. It investigates how the law has framed these most difficult problems of uncertainty; dealt with uncertainty’s often unclear boundaries; and developed a broad range of different responses to solve or avoid it, across doctrine, time, and jurisdiction. The work examines a selection of key uncertainty problems across private law as elements of a singular uncertainty issue endemic in legal systems. This analysis will be of interest to historians and comparatists, but also to doctrinal, theoretical, and other scholars and practitioners. The analysis leaves us better informed and better equipped for dealing with future scenarios where uncertainty arises, including insights beyond national and doctrinal confines.

A book launch will take place on Thursday, February 13, 2025, 17:00-19:00 GMT in the Lady Hale Moot Court Room at the University of Bristol Law School and online.  Gwen Seabourne and Catharine Macmillan will participate.

–Dan Ernst.  TOC after the jump.

Duke Human Rights Archive

We've been told that the David M. Rubenstein Rare Book & Manuscript Library at Duke University is offering research travel grants to work with the Human Rights Legal Collections of the Duke Human Rights Archive.   The DHRA director explains that the archive "has strong collections on legal history related to immigration law, international human rights law, Guantanamo, Attica, and the death penalty," detailed here.  For example, it has the Minneapolis law firm Dorsey & Whitney's files on its pro bono representation of Bahraini detainees at Guantánamo Bay and the papers of Juan E. Méndez, who served as the UN's Special Rapporteur on Torture and the Special Adviser for the Prevention of Genocide. 

--Dan Ernst  H/t: AZB

Post on the Judiciary Act of 1925 and the Supreme Court

Robert Post, Yale Law School, has posted The Supreme Court’s Crisis of Authority: Law, Politics, and the Judiciary Act of 1925:

William Howard Taft (LC)

This paper is written for a forthcoming symposium on the Judiciary Act of 1925 that will appear in the Notre Dame Law Review. Before the Judiciary Act of 1925, the Supreme Court functioned as an apex tribunal whose docket was dominated by trivial cases that it was forced to decide due to its expansive mandatory appellate jurisdiction. The Act substituted discretionary writs of certiorari for a large proportion of these mandatory appeals, thus allowing the Court to determine the nature of its own docket.

The point of the Act was to allow the Court to select cases that would clarify important questions of law and establish national priorities in constitutional and legal matters. Over time, these criteria for case selection have led both the public and the Court to imagine its proper role as supervising the development of federal law. The difficulty is that we lack any account of judicial authority that might justify the Court’s assumption of this essentially policymaking role.

The most basic source of judicial legitimacy derives from the dispute settlement function of courts. American courts may make law and policy, but they are justified in doing so only when it is necessary to decide concrete cases. This can be seen in how our legal system conceives the relationship between the dicta and the holding of a judicial opinion, and in how it differently treats judicial opinions and judicial judgments. This was also the basis of Marbury’s claim that federal courts were entitled to engage in judicial review. If the forward-looking lawmaking of a legislature is justified by its representative nature, the forward-looking lawmaking of a court is justified by the need to resolve disputes.

Over time, the Judiciary Act of 1925 has encouraged the Court to imagine that it can exercise a lawmaking authority that is virtually free-standing and independent of the retrospective need to settle disputes. The Court exercises this authority not only in self-consciously using certiorari to set the nation’s constitutional agenda, but in using its cases primarily as vehicles for the declaration of forward-looking law. This shift has produced a profound crisis of the Court’s legitimacy. A court that nakedly exercises its lawmaking authority is vulnerable to the charge that it can no longer settle disputes in a fair and impartial manner. It is stripped of its most basic claim to legitimacy.

It was during the era of the Warren Court when the Court first fully inhabited the policymaking role made possible by the Judiciary Act of 1925. At that time the Court imagined itself as the leader of American constitutional culture. Modern American constitutional theory developed as an effort to explain and justify the independent lawmaking authority of the Warren Court. But because judicial lawmaking, like any lawmaking, must ultimately be vindicated by popular acceptance, professional legal theory cannot insulate a court from popular opposition. The irony of our present situation is that although the Roberts Court has rejected the substantive doctrine of the Warren Court, it has nevertheless fully embraced the judicial role pioneered by the Warren Court.

Like its predecessor, the Roberts Court seeks to lead the constitutional culture of the country. This has put its legitimacy profoundly at risk, a danger that cannot be averted merely by the proliferation of constitutional theories. Instead the Court must find some way to make its constitutional views acceptable to the nation.

--Dan Ernst

Highsmith on Governing the Company Town

Brian Highsmith, Lecturer and Academic Fellow in Law and Political Economy at the Harvard Law School, has posted Governing the Company Town, which is forthcoming in the Stanford Law Review:

Workers in Pullman, 1914 (CHM)

This Article explores the forms of public and private governance that facilitate localized corporate domination. Researchers have documented the oppressive employment relationship that characterized historical “company towns,” but few accounts yet have examined these communities as local governments. I use archival research to identify institutional continuities between corporate fiefdoms like George Pullman’s model town outside Chicago (1880-1898) and Disney’s self-governed district near Orlando (1967-2023). I demonstrate that local government law has contributed to the recent reemergence of company-dominated enclaves, namely by deferring to private governance and facilitating jurisdictional fragmentation.

During the Gilded Age and Progressive Era, proprietors of company-owned towns exercised absolute control over workers through the private law of property and contract. Mining bosses and industrial barons like Pullman intentionally rejected the municipal form, using dismissal and eviction to enforce company policy as the operative governing authority within their dominions. This strategy became less effective after the New Deal, leading observers to pronounce the demise of the company town. But I argue that parallel developments in local government law have allowed the company town’s continuation through new institutional forms, enabling corporate titans to wield public powers without accountability to any broad public. Rather than facilitating domination over captive worker-residents, these institutional forms are used primarily to externalize costs and escape democratic obligations like taxation—goals that also deeply shaped the governance of historical company towns. I review this playbook through several recent case studies, demonstrating how territorial and functional fragmentation have facilitated the proliferation of corporate enclaves—allowing spatially-concentrated private capital to secede from local democratic control.

I suggest that the company town can be understood as a democratic phenomenon: a distinctive form of private tyranny. Since the Founding, theorists have acknowledged the vulnerability of small and non-diverse jurisdictions to tyrannical rule-by-faction. By contextualizing new examples like Elon Musk’s efforts to incorporate his model towns in Texas, I show that this fear is realized where corporate interests either commandeer our formal institutions of governance or displace their typical role in structuring public life.

--Dan Ernst

Lordship and the Decentralised State in Late Medieval Europe

New from Oxford University Press: Lordship and the Decentralised State in Late Medieval Europe, edited by Erika Graham-Goering, Jim van der Meulen, and Frederik Buylaert.

The origins of modern European states are often traced back to the expansion of royal and princely authority in the late Middle Ages, transforming scattered power structures into centralised governments.

Lordship and the Decentralised State in Late Medieval Europe rethinks state formation as a process of decentralisation, exploring how these governments willingly left power to lesser political players. It challenges the assumption that the rise of states made lordship obsolete, showing instead how distributing authority among local lords reinforced the development of new political systems.

The contributors tackle this fresh perspective on lordship and state formation from two complementary angles. Detailed snapshots of lordship in France and the Low Countries assess the political significance of different aspects of lordly power. Historiographical essays discuss frameworks for understanding relationships between lordship and the state in contexts across Europe. These comparative perspectives establish an innovative approach to a key question in political history.

--Dan Ernst.  TOC after the jump.

Weekend Roundup

• On February 21, 2025, the Heyman Center for the Humanities at Columbia University will convene a day-long event titled "The Law in Times of Emergency and Transition: Legal Perspectives on 40 Years of Democracy in Brazil." Registration is open to the public.  
  

• In Time Magazine's Made By History series: Karin Wulf on John Marshall's dinner with John Adams, Rachel Rosenbloom notes that Birthright Citizenship Has Been Challenged Before, and Bruce W. Dearstyne discusses TR's DOGE.
  

• Reviews of Jonathan Gienapp's Against Constitutional Originalism in the online journal of the Liberty Fundby John O. McGinnis and Mike Rappaport and Aaron N. Coleman.
  

• Keith Whittington discusses why free speech can't be taken for granted on the Inside Yale Law School podcast.

•  From ProMarket: Elizabeth Popp Berman (University of Michigan) on "How Industrial Policy Gave Us the Sherman Act." (H/t LPE Blog)
  

• A reminder: Amanda Tyler will speak on Mitsuye Endo and Japanese Incarceration on Zoom for the Supreme Court Historical Society on January 23 at 12 pm EST.
  

• Chelsea Gibson interviews Kenyon Zimmer, a historian of transnational radicalism, on his “comprehensive digital archive of Red Scare deportees” (SHGAPE Blog).
  

• Online and at the Signet Library in Edinburgh, Chloe Kennedy will discuss her book Inducing Intimacy: Deception, Consent and the Law on January 30, 6 - 8pm GMT.  More.
  

• Paul Finkleman discussed the complicated history of “John McLean: Southern Ohio’s Homegrown Anti-Slavery Justice" (UCNews).
  

• The Lillian Goldman Law Library at the Yale Law School, has a new exhibit.  Running through May 25, 2025, Flowers at Lambach "follows the history of a single manuscript volume: a collection of texts relating to canon law, produced by the scriptorium at the Benedictine Abbey of Lambach in Austria in the late 15th century, and entering into the collections of the Yale Law Library in 1949.
  

• An excerpt from Michelle Adams's The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North (Literary Hub) and Michigan Law's notice of the book.
  

• Just out from Oxford University Press: Redefining Comparative Constitutional Law: Essays for Mark Tushnet, edited by Madhav Khosla and Vicki C. Jackson.

• ICYMI: Eric Muller on what federal workers in a second Trump administration can learn from the lawyers of the War Relocation Authority (Chicago Tribune).  Therese O'Neill discusses the famous Mrs. Packard on the This Day In Esoteric Political History podcast. Egbert Benson: New York’s first Attorney General (New York Almanack). Alicia Gutierrez-Romine on the legal history of abortion bans (Perspectives in American History).  
  

• Update: Kenneth W. Mack and other historians (including Sarah Igo, Donald Critchlow, and Sean Wilentz) on Biden's presidential legacy (Politico).  An obituary of Shirah Neiman (1943-2025), who, some years after Eunice Hunton Carter left the office of the U.S. Attorney for the Southern District of New York, joined its by then all-male Criminal Division and became its expert on criminal tax law (NYT).  Holly Brewer on becoming a Friend of the Court (Perspectives in History).
  

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