Weekend Roundup

• A recording of David Sugarman's lecture, “Hidden Histories of the Pinochet Case,” which he delivered at the University of Cambridge on December 3, 2024, is now on-line. 
  

• This March 11 event is open only to the YLS community; still, we want to note Historical Roots of the Current Catastrophe: A Conversation, with John Fabian Witt and James Q. Whitman.
  

• A podcast of Heather Cox Richardson in conversation with Dylan Penningroth on February 26 on the evolution of the Republican Party and what gives her hope for America (Berkeley Talks).

• 
  Over at Regulatory Review, a symposium has been underway on How Government Built America, by Sidney A. Shapiro, Wake Forest University School of Law and Joseph P. Tomain, University of Cincinnati College of Law.  It includes and exchange with Edward Balleisen: here and here.

• The Brennan Center has posted a report of the session at the annual meeting of the American Historical Association on originalism and the Supreme Court.  The participants were Thomas Wolf, Jane Manners, Jack Rakove, and Jennifer Tucker.

• “We should look for judges who are likely to display good judgment in their rulings," says Mark Tushnet on the Modern Law Library podcast, "and we shouldn’t care whether they have a good theory about how to interpret the Constitution as a whole—and maybe we should worry a bit if they think they have such a theory."  He also his experience as law clerk to Justice Thurgood Marshall.
  

• The Organization of American Historians has launched an oral history project for federal employees.   
  

• The legal historian (and University of Wisconsin-Madison Chancellor) Jennifer Mnookin's message on that "Dear Colleague" letter and recent executive order affecting colleges and universities.    The legal historian (and Dean of Georgetown Law) William M. Treanor replies to (Interim) U.S. Attorney Edward R. Martin's DEI letter. 
  

• David W. Blight, Beth English, and James Grossman on the Executive Order “Ending Radical Indoctrination in K-12 Schooling” (New Republic).

• The American Enterprise Institute has named Philip Hamburger a nonresident fellow in its Social, Cultural, and Constitutional Studies research division.
  

• The Smithsonian Magazine's notice of Martha S. Jones's The Trouble of Color: An American Family Memoir. The book is among Ebony's "must reads" and New York Times's Six Books We Recommend This Week.
  

• The Special Collections Department at the Williams & Mary Law Library has posted a digital recreation of its recent exhibit, Women in History & the Law. 
  

• A notice of Emma Kaufman's recent article on the history of private criminal prosecution (NYU Law). 
  

• An AP story has put Justin Simard's Citing Slavery Project back in the news. 

•  Jedidiah Kroncke reviews Allison Powers's Arbitrating Empire (Jotwell).

• The Rise and Fall of Treason in English History, by Allen Boyer and Mark Nicholls, has been reviewed in the English Historical Review.
  

• ICYMI, Birthright Citizenship Edition:  Kate Masur on the Strict Scrutiny podcast.  Eric Segall and Anthony Michel Kreis on Dorf on Law.  Gerard N. Magliocca on Balkinization.

• ICYMI:  Researchers uncover stories of Black Londoners who escaped slavery (Guardian). The Long History of Executive Excess (Governing). 
  

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

Upham on "Black and Tan Conventions and the 14th Amendment

David R. Upham, St. Thomas University, has posted The "Black and Tan Conventions," Diverse Originalism, and the Fourteenth Amendment

This essay will highlight the contributions of the biracial "Black and Tan Conventions" that drafted state constitutions pursuant to the Reconstruction Acts of 1867.  I make the following conclusions: (1) that the work of these Conventions was necessary to the making of the Fourteenth Amendment, (2) that this work provides critical, if not dispositive, evidence as to that Amendment’s original meaning—especially as to what the Amendment did not prohibit—and (3) that members of the bench, bar, and academy have unjustly neglected this contribution—a neglect that has become a deafening silence among those advocating racial diversity or originalism, and the combination thereof as “diverse originalism.”

--Dan Ernst

DeBrincat on Colonial Connecticut Judges

Dominic DeBrincat, Missouri Western State University, has published, open access, Solomon in the Wilderness: Colonial Connecticut Judges and Their Qualifications, in Law, Culture and the Humanities:

In colonial America, governments relied on county court judges to render justice and maintain order. To be effective, judges needed wisdom to administer three diverse sources of authority: God’s law, English common law, and provincial statutory law. This article uses one colonial tribunal—Connecticut’s New London County Court—to explore an unasked question: what qualified these men to serve wisely as judges? Examining colonial Connecticut judges’ lives and careers unveils a bundle of shared characteristics that prepared them well to manage neighbors’ legal affairs: personal wealth, public service, military leadership, New England Indian relations, and religious administration experience.

--Dan Ernst

Desan on the US History of Public Banking

Christine A. Desan, Harvard Law School, has posted Public Banking in the United States: Historical Lessons for Today, which is forthcoming in the Williamette Law Review:

This article reviews the long history of American public banking from its start in colonial Pennsylvania to current state-level initiatives.  That history includes banks owned exclusively or in part by states – every one of the original 13 states owned stock in some of the banks it chartered.  States also conditioned charters to private investors on activities conducive to the public welfare and imposed significant taxes on bank capital.  Public ownership declined over the 19th century for several reasons, including the development of legal doctrines that enlarged corporate autonomy and their privileges as business entities, as well as the rise of profits available to banks as commercial actors.  There is a strong case for returning to public banks.  At the economic level, private retail banking lends according to criteria overly narrow to reach all deserving borrowers, particularly those whose wealth accumulation has been limited by past discrimination.  At the ethical level, a return to public banking comports with the way money is created. That operation is pervasively supported by public authority, a reality that public banking would make more transparent.

--Dan Ernst

AHA Congressional Briefing on Deportation

[We have the following announcement.  DRE.]

The American Historical Association invites you to attend a Congressional Briefing offering historical perspectives on United States deportation policies and practices. The briefing will take place on Thursday, March 13, at 9:00 a.m. ET in Rayburn House Office Building Room 2075.

Panelists Hidetaka Hirota (Univ. of California, Berkeley), Ana Raquel Minian Andjel (Stanford Univ.), and Yael Schacher (Refugees International), with moderator James Grossman (American Historical Association), will discuss history of policies related to immigration and deportation throughout US history. Topics will include the origins of deportation policy, the post WWI "Palmer Raids," mass deportations of Mexican Americans during the 1930s and 1950s, evolving policy changes around asylum, and other issues.

The event is open to the public; no registration is required. A breakfast spread and coffee will be served. If you have any questions, please email brosenbaum@historians.org.

The AHA’s Congressional Briefings series seeks to provide Congressional staff members, journalists, and other members of the policy community with the historical context essential to understanding contemporary issues. The sessions are strictly nonpartisan and avoid advancing particular policy prescriptions or legislative agendas. Recordings of our recent briefings providing historical perspectives on are available on the AHA’s website.

Berger-Howe Fellowship to Hayes

[We have the following announcement.  DRE]

The Raoul Berger-Mark DeWolf Howe Legal History Fellowship for 2025-2026 at Harvard Law School has been awarded to Jelani Hayes.  A fifth-year doctoral candidate in history at Harvard, she received her B.A. from Penn and her law degree from Yale, where she was editor-in-chief of the Yale Journal of Law & Feminism.  Her dissertation, which she expects to complete during the fellowship, is entitled, “Mother Country: The Making of the Modern Family Regulation System, 1954-1978.”

CFP: Legal Education Prognosticators in Retrospect

[We have the following announcement.  DRE]

The Journal of Legal Education is the official scholarly journal of the [Association of American Law Schools] and in that role it has and continues to play an important role in chronicling the development of legal education in the United States. For a special symposium issue dedicated to analyzing that role, the editors invite submissions of articles that reflect on one or more articles published in the journal which at the time of publication discussed the future of United States legal education and then assess how the events in the years following the publication exhibited the arguments put forward by the authors. For example, publication of the McCrate and Carnegie reports inspired articles on the what the future should hold in light of those studies. How prescient were the authors of those articles? Other articles have discussed and assessed what at the time were new developments in pedagogy, scholarship, and the profession in general. Have those developments simply continued, flourished, or withered away?

The goal is to publish in JLE work honoring its history by presenting thoughtful assessments of the plans and predictions put forward in the past with the goal of helping think more rigorously about our own future.  The entire run of JLE is available on HeinOnline and from the mid-1980s on Westlaw. Both platforms, of course, have search functions, and Hein provides a complete view of each issue.

Proposals for individual responses or collections of shorter responses all responding to the same article with an abstract of the work are due March 24, 2025 to the New York Law School editorial team at JLE-CFP@law.nyls.edu. Contributors will be notified promptly with the expectation that final drafts of articles will be due July 15, 2025.

CFP: ASLH 2025

[We are reposting the Call for Papers for the annual meeting of the American Society for Legal History to be held in Detroit on November 13-15, 2025, ass the deadline on March 25 is approaching.]

The Program Committee of the American Society for Legal History invites proposals for the 2025 meeting to be held November 13-15 in Detroit. Panels and papers on any facet or period of legal history from anywhere in the world are welcome. We encourage thematic proposals that transcend traditional periodization and geography. The online portal opens on December 9, 2024. The deadline for Pre-Conference Symposia proposals is Friday, February 28, 2025. The deadline for all other submissions is Tuesday, March 25, 2025. All proposals except for pre-conference symposia must be submitted through this link.

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

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

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

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

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

[For a table setting out requirements for the submission of various types of panels, please visit the ASLH website.]

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

As a general matter, we will not be able to accommodate special scheduling requests, nor will we be able to support hybrid or virtual presentations or panels. (For a fuller explanation of this policy, please see the ASLH Annual Meetings FAQ page.) Until a draft of the program is circulated, prospective presenters, chairs, and commentators at the main conference should plan to be available in person on Friday, November 14, and Saturday, November 15.

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

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

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

Machona on the Ilbert Controversy of 1883

Now available online from Law and History Review: Constitutional Panic in British India: How the Ilbert Bill Controversy of 1883 Revealed the Constitutive Character of Racial Discrimination in the British Empire, by Gwinyai Machona:

Until today, not only the general public but also scholars of colonialism and imperialism debate about the extent to which Europeans were aware of the centrality of racial discrimination for colonialism and empires. Those who stress that racism was the foundation of European colonialism appear to be anachronistic. However, as this essay demonstrates, at least the British of the late nineteenth century were well-aware of the constitutive character of racial discrimination for their Empire. During the “constitutional panic” which the proposal of the Ilbert Bill in 1883 caused, the arguments exchanged in newspapers, town hall meetings and parliamentary debates revealed the racist foundation of British India. One contemporary observed “the unhappy tendency of this controversy to bring into broad daylight everything which a wise and prudent administrator should seek to hide.” This essay seeks to bring into broad daylight once again what has been widely forgotten or ignored. Statements in Parliament expressing that it was “perfectly impossible and ridiculous, so long as we retained our hold on India, to give Native races full equality” testify for explicitness of the debate. Analyzing the arguments against the Ilbert Bill, which sought to introduce full racial equality in the judiciary, serves for better understanding the foundation of British India.

--Dan Ernst

Legal Transfer and Legal Geography in the British Empire

The Max-Planck-Institut für Rechtsgeschichte und Rechtstheorie have published, open access, Legal Transfer and Legal Geography in the British Empire: Global Perspectives on Legal History, edited by Donal K. Coffey and Stefan Vogenauer:

The legal history of the British Empire is in its infancy. The research field ‘Legal Transfer in the Common Law World’ in the Max Planck Institute for Legal History and Legal Theory under the Directorship of Prof Stefan Vogenauer has been engaged in scientific examination and analysis of this field. In 2021, the Third Legal Histories of Empires Conference was held in the National University of Ireland, Maynooth. A stream looking at the state of the art in Legal Transfer in the Common Law World was organized by Stefan Vogenauer and Donal Coffey, who have co-edited this volume which flows from that stream.

The book argues that a comparative approach can overcome jurisdictional and ahistorical biases still often present in the legal history of empires. In an imperial legal superstructure, such as the British Empire(s), models of legislative and interpretative methods were self-consciously adopted and adapted to different jurisdictions. Moreover, the process of decolonisation disclosed similarities and divergences in the legal development of these territories. Useful insights can be gleaned from a comparison across different methodologies which are concerned with a similar normative framework between and within societies, and their relationship to the natural world.

The volume has two parts. The first presents four case studies for legal transfers in chronological order. Philip Girard’s chapter traces the evolution of the law regulating employers’ liability for injured workers in Quebec. Matilde Cazzola’s work looks at the evolution of the ‘protective principle’ and its deployment through a comparative lens, with a particular focus on the United Kingdom and the Australian colonies in the 19th century. Scott A. Carrière looks at the evolution of law in colonial Newfoundland, and in particular at the relationship between contract law, charters, and Company States. In Hong Kong, Christopher Roberts and Hazel W. H. Leung analyse the evolution of vagrancy law.

The second part contains a number of contributions engaging with the burgeoning field of legal geography in the context of the Empire. This is based around the ‘Property [In]Justice’ ERC group in University College Dublin headed by Amy Strecker. It includes chapters on the Caribbean by Amanda Byer, Southern Africa by Sonya Cotton, Kenya by Raphael Ng’etich, and a chapter by Sinéad Mercier on Ireland.

The different areas of law covered – including inter alia public law, employment law, land law – demonstrate the vitality of the comparative method.

--Dan Ernst.  TOC after the jump.

Birthright Citizenship: Kreis et al. and Lash

Anthony Michael Kreis, Georgia State University College of Law, Evan D. Bernick, Northern Illinois University College of Law, and Paul A. Gowder, Northwestern University Pritzker School of Law, have posted Birthright Citizenship and the Dunning School of Unoriginal Meanings, which is forthcoming in Cornell Law Review Online:

This essay critically surveys the recent debate surrounding birthright citizenship in the United States, particularly in light of arguments presented by legal scholars Randy Barnett and Ilan Wurman. Under the guise of "originalism," Barnett, Wurman, and others propose an ahistorical, revisionist interpretation of the Fourteenth Amendment's Citizenship Clause. They suggest that the term "jurisdiction" should be understood as "allegiance," seemingly to give the veneer of legitimacy to the Trump Administration's view that the children of undocumented immigrants may not be American citizens. The essay argues that Barnett and Wurman's approach, which attempts to radically redefine the historical understanding of citizenship, is methodologically flawed and undermines core principles of constitutional law. The critique exposes the inaccuracies and inconsistencies in their position and scrutinizes the scholarly merit of new theories of birthright citizenship that are wildly inconsistent with constitutional text, history, precedent, and unbroken tradition. The essay concludes by examining the professional responsibility of legal scholars to engage in rigorous, fact-based historical analysis rather than politically motivated reinterpretations that threaten to destabilize fundamental constitutional rights.

And Kurt Lash, University of Richmond School of Law, has posted Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment Citizenship Clause:

The current debate over the original meaning of the so-called Birthright Citizenship Clause generally divides over how much weight to give each of the two requirements for birth citizenship. Some scholars emphasize the role of birth on American soil, making it dispositive unless trumped by a limited and closed set of common law “exceptions.” Other scholars claim the second requirement of “jurisdiction” must be given equal and independent weight. For example, some scholars claim there must be independent evidence that one has become “subject” by way of mutual consent or positive allegiance to the American sovereign.

This essay proposes a different and more historically justified way to understand the dual requirements of birth citizenship: Prima facie citizenship. As explained by Attorney General Edward Bates in his influential 1862 Report “On Citizenship,” prima facie citizenship treats birth in the United States as establishing a presumption of citizenship. That presumption may be overcome, however, by positive evidence that the person was not born “subject to the jurisdiction” of the United States. That requirement involves considerations of familial allegiance to the law-speaking authority of the people of the United States.

This approach solves a number of conundrums unexplained under either of the standard approaches. For example, it explains why children born on the same “invader-occupied” American soil have different citizenships depending on the allegiance of their parents. It also explains why children born to foreign diplomats are not American citizens even if born on the obviously American soil of an American hospital. Finally, and most importantly to the framers of the Fourteenth Amendment, it explains why children born on American soil to Native American parents who refused to be bound by either the laws of their Tribal Government or the laws of the United States were not considered to have been born “subject to the jurisdiction of the United States.”

This last group are most analogous to children born to non-citizen parents who intentionally enter the United States in violation of the law-speaking authority of the sovereign people of the United States. According to the original understanding of the Citizenship Clause, these children were born in the United States, but not in a manner “subject to the jurisdiction thereof.” This would not be true, however, of children born to parents kidnapped and illegally smuggled into the United States in violation of laws banning the international slave trade.

--Dan Ernst

We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality

I am excited to spend March as a guest blogger for the Legal History blog. Thanks to Karen Tani and Dan Ernst for inviting me. 

My posts will preview my latest book, We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality (Oxford University Press forthcoming March 13, 2025). The United States Constitution purports to speak for “We the People.” I wrote this book because too many of the stories that powerful Americans tell about law and society include only We the Men. 

America’s dominant modes of forgetting about women help perpetuate women’s inequality, rationalizing the status quo, promoting complacency, and undercutting reform. I argue that remembering women’s stories more often and more accurately can help the nation advance toward sex equality. 

Stay tuned for more posts. Let’s celebrate Women’s History Month—while it still exists.

 — Jill Hasday

Welcome, Jill Hasday!

We at LHB are thrilled to welcome back Professor Jill Hasday as a guest blogger for the month of March. Some highlights from Professor Hasday's University of Minnesota faculty webpage:

Professor Jill Hasday teaches and writes about anti-discrimination law, constitutional law, family law, and legal history. She is the author of three books: Family Law Reimagined (Harvard University Press 2014), Intimate Lies and the Law (Oxford University Press 2019), and We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality (Oxford University Press forthcoming 2025).  Intimate Lies and the Law won the Scribes Book Award for “the best work of legal scholarship published during the previous year” and the Foreword INDIES Book of the Year Award for Family and Relationships.

Professor Hasday’s articles have appeared in many leading law reviews, including the Harvard Law Review, Stanford Law Review, New York University Law Review, Michigan Law Review, California Law Review, Georgetown Law Journal, UCLA Law Review, Vanderbilt Law Review, and Minnesota Law Review.

Professor Hasday received her B.A. from Yale University in 1994, graduating summa cum laude with distinction in history and winning election to Phi Beta Kappa. In 1997, Professor Hasday graduated from Yale Law School, where she was an articles editor of the Yale Law Journal and received honors in all graded courses. After law school, Professor Hasday clerked for Judge Patricia M. Wald of the United States Court of Appeals for the D.C. Circuit.  Professor Hasday joined the University of Minnesota Law School as a tenured faculty member in 2005. She has been the Centennial Professor in Law since 2013.

She will be blogging mainly about her new book We the Men, which we profiled earlier this month (here).

Welcome, Professor Hasday!

-- Karen Tani