Barbas on Originalism and Free Speech

Samantha Barbas, University of Iowa College of Law, has posted Originalism in Modern Free Speech History:

Contrary to what is often assumed, originalism has played an important role in our free speech history. During the 1950s, originalist interpretations of the First Amendment as prohibiting the crime of seditious libel became popular in legal argumentation, court rulings, and in popular culture more generally. The reason for the popularity of this argument was the Red Scare. Liberal lawyers, judges, and scholars deployed originalist arguments in their battles against government anticommunist measures. They argued that the original meaning of the First Amendment was the ban on punishment for criticism of the government, and that many of the government’s anticommunist measures were effectively a form of prosecution for seditious libel and unconstitutional.

This essay describes the popularization of First Amendment originalist arguments in the 1950s and early 60s, culminating in New York Times v. Sullivan. It explains how originalist First Amendment arguments came to be seen as an important liberal line of defense against government anticommunist efforts. Activists, scholars, lawyers, and justices on the left mobilized in a loosely affiliated sort of First Amendment “originalist movement” in an attempt to defeat the Red Scare. Ultimately, the essay suggests that originalism is a legal and social phenomenon that is intimately intertwined with culture and politics. Originalist ideas arise from multiple sources, including interest groups, intellectuals, journalists, lawyers, and ordinary citizens. The case study offers one example of how legal advocates and scholars in the mid-twentieth century deployed originalist arguments instrumentally, in response to the circumstances and perceived exigencies of their times. 

--Dan Ernst

Panel on the History of Administrative Law at NYU

I’m on a legal history panel at the NYU Law Review’s annual symposium, Where Does Administrative Law Go from Here? which will take place this Friday and is co-sponsored by NYU Law's Institute for Policy Integrity.  The other panelists are Joanna Grisinger, Northwestern University; Julian Mortenson, University of Michigan Law School; and Nick Parrillo, Yale Law School.  Noah Rosenblum, NYU School of Law, will moderate.

--Dan Ernst

CFP: ASLH/Notre Dame Graduate Legal History Colloquium

[We have the following announcement.  DRE]

The ASLH/Notre Dame Graduate Legal History Colloquium will again convene a series of graduate works-in-progress colloquia during the 2025-2026 academic year. With the financial support of the American Society for Legal History, Notre Dame Law School, The Graduate School, and the Center for Citizenship and Constitutional Government, the forum offers graduate students a valuable platform to present their research.

Dennis Wieboldt, a joint J.D./Ph.D. student in history, is spearheading the forum, which is now in its second year. The colloquium is currently accepting applications from prospective presenters, with graduate students in law schools and humanities departments encouraged to submit draft articles and express interest in presenting.

The ASLH/Notre Dame Graduate Legal History Colloquium is currently accepting applications from prospective presenters. Graduate students in law schools and/or humanities departments are encouraged to indicate their interest in presenting draft articles here.

The convenings will be held on the Notre Dame Law School campuses in Chicago and South Bend in October and November of 2025, and then again in February, March, and April of 2026.

The forum will provide budding legal scholars and practitioners with feedback on works-in-progress—an important step in fine-tuning research to a point where it can be submitted for publication. “This graduate legal history colloquium is a wonderful way to foster new scholarship,” said Donald Stelluto, co-director of the Center for Citizenship and Constitutional Government. “By bringing together talented faculty and students from several disciplines to engage each other as interlocutors, we, at the Center, hope that our support has the effect of forming lasting relationships as a community of scholars and a level of engagement that continues to elevate probative study of the major issues in legal history.”

“As the successes of this year’s workshops illustrate, Notre Dame is an excellent place to think seriously about the role of history in contemporary legal practice,” Wieboldt added. “I am excited to continue to welcome students and faculty from other institutions to engage in conversation with members of the Notre Dame community.”

The ASLH/Notre Dame Graduate Legal History Colloquium is open to master’s and doctoral students, as well as law students. Students will have the opportunity to present works-in-progress at convenings of the colloquium, and each work-in-progress will have a designated faculty commentator. All works in progress will be pre-circulated to prospective attendees to facilitate a robust discussion.

Weekend Roundup

• Ajay K. Mehrotra reviews Dylan C. Penningroth's Before the Movement in the Los Angeles Review of Books.

• A notice of the Legal History Consortium at Penn, led by LHB Blogger Karen Tani, with due credit given to Past ASLH President Susan Barringer Gordon, who was Professor Tani's predecessor as director of the consortium.  Also Professor Tani is among those faculty quoted by the Daily Pennsylvanian on teaching during Trump 2.0.  DRE 
  

• The Reed Gallery of the Dunedin Public Library has mounted an online exhibition of its Mary Downie Stewart Collection, a collection of portraits and autographed specimens of New Zealand judges, some of whom I discussed in this.  H/t: MW.  DRE

• A recording of that Tenement Museum-sponsored conversation, Receiving The Irish: The Origins of American Immigration Policy, with Hidetaka Hirota and Kevin Kenny. 
  

• The April 2025 issue of the Newsletter of the Historical Society of the District of Columbia Circuit is now available here.  It includes a summary of the recently opened oral history of Judith Areen.

• Brian Leiter reports on the Oxford University Press's current policy on review copies (Leiter Reports).
  

• 
  We've heard that the movie option for Victoria Saker Woeste's Henry Ford’s War on Jews and the Legal Battle Against Hate Speech has been picked up and look forward to seeing it on the big screen.

• Lawbook Exchange's April catalogue of Scholarly Law and Legal History.

• Made by History, via Time Magazine: Michelle Bezark on What the Children’s Bureau Teaches us About Promoting Federal Programs.  Brendan A. Shanahan says that A Century-Long Battle Over the Census is Brewing.  Jeanne Theoharis on How Newspapers Struggled to Cover Martin Luther King Jr. and Segregation in the North.  Hidetaka Hirota on The Long American Tradition of Categorizing Immigrants as Either Good or Bad.

• ICYMI: Lorianne Updike Schulzke makes an originalist case against overturning Humphrey's Executor (Volokh Conspiracy).  Mark Tushnet on why he signed the HLS faculty's letter to their students (Balkinization).  Andrew Wender Cohen on the history of tariffs (PBS). The lesson of Loving for the Roberts Court (Minnesota Star Tribune). A Short Course in Justice: the Freedmen’s Bureau Courts (JSTOR Daily).  Ellen Schrecker says that the current assault on the university is worse than McCarthyism (The Nation).

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

Poole and Clark on Adam Smith's Concept of "The Federative"

Thomas Poole and Martin Clark have published The Fragile Power of Political Nations: Adam Smith’s Federative open access in Modern Intellectual History:

Adam Smith (NYPL)

This article examines Adam Smith’s concept of the federative: the double-facing constitutional power to conduct international relations today called the treaty or foreign-affairs power. We reconstruct Smith’s account of the federative from his major and minor works and demonstrate its importance in his account of law and empire. We first examine Smith’s early “internal federative,” where the power grows from the internal constitutional organization of the state. What starts as a democratic right to wage war and make peace becomes concentrated over time in the sovereign and its advisers as a “senatoriall” power. We then turn to the “external federative” in Smith’s later works, where the federative is redesigned as a power to unify colonial legislative bodies, connecting the familial sentiments of Britain and America, and forming a model for moving, slowly, towards the conditions Smith deemed necessary for international justice.

--Dan Ernst

Cai on Tort Law in Early Imperial China

Liang Cai has published open access in Law and History Review Absence of Talion and Tort Law in Early Imperial China (221BCE-9 CE): How Body Politic Cancelled Corrective Justice:

From a comparative perspective, this paper argues that early Chinese empires lacked the concept of talion or tort law when malicious violence or intent became factors. Instead, wrongdoers were required to pay fines to the government or received punishment as hard labor for the state. Victims not only could not receive compensation but were sometimes punished along with the offender if their loss was perceived as a loss to the empire. I argue that the absence of corrective justice in criminal cases can be traced back to the philosophical underpinnings of the body politic, a prominent discourse in early China that viewed the emperor and the people as a single, organic entity. When people were conceived of as constituting a unified, singular entity, criminal actions against an individual were interpreted as damage to the empire. Therefore, punishments for offenders were designed to compensate the empire, not the individual. Furthermore, in the context of the body politic, the suffering of both victims and offenders was regarded as metaphysically equal, which justified frequently pardoning culprits on a large scale to secure harmony within the empire. Originally, the body politic was employed to admonish and criticize the throne, urging the emperor to align his interests with the well-being of his people, but in practice, it compromised the practice of justice.

--Dan Ernst

Furstenberg on Rabbinic Evidence for the Spread of Roman Legal Education

Yair Furstenberg has published open access in Law and History Review Rabbinic Evidence for the Spread of Roman Legal Education in the Provinces:

A long tradition of comparative scholarship has succeeded to establish the impact of Roman legal environment on rabbinic law making during the first two centuries CE, particularly in the field of family and status. Yet, the specific channels for acquiring this knowledge have hitherto remained a matter of conjecture. This paper argues that the rabbis were exposed to the contents of the current legal handbooks. Tractate Qiddushin (on betrothal) of the Mishnah includes two peculiar units: the first (1.1–5) regarding forms of acquisition and the second (3.12) on the status of newborns. Both units appear in key points in the tractate and exhibit striking structural and conceptual similarities to extended portions of the Roman school tradition regarding the laws of status, as handed down in Gaius’ Institutes and Pseudo-Ulpian's liber singularis regularum. It is therefore suggested that these units provide the earliest literary attestation already around the turn of the third century CE for the dissemination of Roman legal education among non-Roman provincials in the East, who sought to adjust their local practices into Roman-like legal structures.

--Dan Ernst

NCC Town Halls Announced

The National Constitution Center has announced several interesting online and in-person Town Halls, including:
    
The Future of Birthright Citizenship: A Constitutional Debate, on Thursday, April 24 at Noon ET

President Donald Trump’s executive order seeking to end birthright citizenship has reignited debates over the 14th Amendment and the meaning of citizenship in America. Join legal experts Amanda Frost of the University of Virginia School of Law, Kurt Lash of the University of Richmond School of Law, Ilan Wurman of the University of Minnesota Law School, and John Yoo of the University of California, Berkeley School of Law as they analyze the legal challenges surrounding birthright citizenship, explore the constitutional and historical arguments on all sides of this debate, and discuss its broader implications for immigration. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. 

Democracy in France and America With Justice Stephen Breyer and Christiane Taubira, on Thursday, May 15 at 6:30 p.m. ET

The Honorable Stephen G. Breyer, associate justice of the U.S. Supreme Court (ret.) and National Constitution Center honorary co-chair, joins Christiane Taubira, former French justice minister, for a conversation on democracy, the rule of law, and constitutional traditions from French and American perspectives. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. 

Executive Authority: Presidential Power From America’s Founding to Today, on Tuesday, June 3 at Noon ET

Legal scholars Gillian Metzger of Columbia Law School and Saikrishna Prakash of the University of Virginia School of Law examine the founders’ vision for the presidency, how presidential power has changed over time, and the key constitutional debates that have shaped the modern presidency. The discussion will also explore how the Trump presidency fits within this historical context and what it means for the future of presidential power. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.

The Story of the U.S. Constitution: Past and Present, on Monday, June 23 at 6:30 p.m. ET

This program is presented in partnership with the Sandra Day O’Connor Institute and the Organization of American Historians.  Akhil Reed Amar and David Blight of Yale University join National Constitution Center President Jeffrey Rosen for a sweeping conversation about the Constitution and the debates that have shaped America—from the founding era to today. They’ll examine transformative moments in American history and landmark Supreme Court decisions.

--Dan Ernst

Kim on Australia's Procedure Act of 1854

David Kim, of the Australian law firm Banki Haddock Fiora, has posted “A Turbid Admixture”: The Long Shadow of the Common Law Procedure Act 1854, which appeared in the Adelaide Law Review:

The innovations of the pre-judicature period continue to haunt us. In the 1850s, in response to agitation for procedural fusion, reforms were introduced to allow for the grafting of equitable remedies onto common law courts and vice versa. This well-intentioned blending of jurisdiction spawned two novel remedies that are with us to this day: equitable damages and the lesser known 'common law injunction'. This article explores the Australian jurisprudence that has coalesced around the common law injunction and surveys the difficult theoretical problems that come to the fore when attempting to define its nature and scope.

--Dan Ernst

Savarese on Parents' Habeas Suits in Late 19th-Century United States

Laura Savarese, Michigan State University, has posted The Origins of Family Rights and Family Regulation: A Dual Legal History, which is forthcoming in the Stanford Law Review:

The history of the state’s intrusions on the rights of marginalized parents has become central to today’s critical accounts of American family law and family courts, and rightly so. Missing from the conversation, however, is a full account of how those rights first entered the law, and how the state assumed its now-familiar, though often unfulfilled, obligation to afford due process to the parents and children it separates.

This Article is the first to locate that transformation in a now-forgotten wave of habeas litigation brought by parents seeking their children’s return from orphan asylums and juvenile reformatories—the institutions that comprised the nascent child welfare and juvenile justice systems in the late nineteenth century. Those conflicts are visible in archival sources and a set of state court cases that have not received systematic study. Drawing on those sources, this Article argues that modern understandings of the right to family integrity were forged through legal challenges to the state’s growing power to remove children from their parents, in the name of child welfare, from the Civil War through the Progressive Era. Parents, as habeas petitioners, pushed courts to recognize and enforce their rights to notice and an opportunity to be heard, to draw a distinction between child neglect and family poverty, and to affirm parents’ right to regain custody after they remedied the reasons for children’s removal—establishing the core legal principles that delimit the state’s power today.

Recapturing the story of resistance to the family regulation system, at its inception, offers insights for today’s efforts to transform or dismantle that system, and deepens our understanding of the genesis and function of constitutional family rights. Critically, recovering this line of cases provides a more complete account of the history and tradition in which substantive due process protections for family autonomy are rooted. This account also lends support to more ambitious conceptions of the right to family integrity, advocated today, as a tool for expanding legal protections against family separations and terminations of parental rights, as well as affirmative entitlements to state assistance for childrearing. At the same time, the records of parents’ legal challenges offer a warning about the limits of procedural rights and litigation as means of advancing parents and children’s interests, absent a more radical redistribution of public resources to meet families’ material needs.

--Dan Ernst

Fisher and Shapiro on Storytelling, Rulemaking and Agency Expertise

Elizabeth C. Fisher, University of Oxford Faculty of Law, and Sidney A. Shapiro, Wake Forest University School of Law, have posted Storytelling, Rulemaking, and the Expertise of Administrative Agencies.  The paper describes and categorizes comments from the records of twenty-five recent rulemakings by twenty agencies, as well as ten dockets from the years 1974-1992.

For ill or good, the world is full of stories. Given the political stories being used to deconstruct the administrative state, it is easy to be cynical about stories and to discourage their use. But humans are story telling animals. Administrative lawyers need to be cognizant of that fact, and craft their understanding of administrative competence considering it. In this groundbreaking survey of stories in rulemaking comments we show how many different types of commenters are telling stories for a variety of reasons. These stories differ in scale and focus, and in their value to the rulemaking processa fact that underscores that stories need to be evaluated. Given that stories are how humans structure reality, build social relations, and persuade each other this is inevitable. As is the way in which humans have developed the capacity to evaluate stories. But administrative lawyers have failed to pay attention to stories and thus have missed the opportunities to encourage a more enlightened approach to thinking about rulemaking and administrative expertise. Such an enlightened approach matters now more than ever.

--Dan Ernst