Weekend Roundup

• The University of Pennsylvania digital history site, Building Inequality: Mapping the spatial and racial inequalities of FHA Section 608 rental housing, 1942-1950, is well worth a visit.

• We have updated information on that inaugural session of "Historicising Jurisprudence," a first-book symposium co-sponsored by the Selden Society and the School of Law, Queen Mary University of London, and co-hosted and co-organised by Maks Del Mar and Michael Lobban.  It will be held on September 30, and devoted to Natasha Wheatley's The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Princeton UP, 2023).  Registration and more information is here.  

• 
  Sara Butler, Ohio State University, discusses her book, Forensic Medicine and Death Investigation in Medieval England (2015) on the Medievialists.net podcast (YouTube).

• The Balkinization symposium continues on Serena Mayeri's Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025). Recent contributions include reflections by Kris Collins and Doug NeJaime.   

• A recording of Dylan Penningroth's talk on his book Before the Movement: The Hidden History of Black Civil Rights at The City Club Forum (ideastream).

• Over at the Jackson List: John Q. Barrett on the appointment of Harold Burton to the U.S. Supreme Court.  

• The historian Joan Wallach Scott recalls the firing of her father, a high school teacher in New York City, during the McCarthy Era  (Boston Review).  

• A concurring opinion in Alan Dershowitz v. CNN cited Samantha Barbas's article,  “New York Times v. Sullivan: Perspectives from History,” to provide historical context for the ongoing debate over defamation law (Iowa Law).

• On Thursday evening, Jonathan Turley, George Washington University Law School, and Michael Klarman, Harvard Law School, debated “Is There a Constitutional Crisis? How Would We Know?” at Colgate University.

• Jill Lepore's We the People had a substantial presence on the internet this week.  Professor Lepore's op-ed in the NYT.  Reviews in The Guardian and the LA Times.  Her argument that originalism "killed" the Constitution in The Atlantic; to which the National Review dissents.

• ICYMI: The Desegregation of Local 53 in New Orleans (1969) (BlackPast). The 18th-century legal case that changed the face of music copyright law (WIPO).  John Yoo on the long history of presidential discretion (Law & Liberty).  The Heritage Foundation's Guide to the Constitution.  The entire Constitution is on display for the first time in US history (Smithsonian; WTOP; USA9).  The Georgia Historical Society displayed its own rare copy, once owned by the Georgia’s signer Abraham Baldwin (TOC11).

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

Keller on China, Legal Transplants, and Policy Irritants

Kevin Byrne Keller, a Visiting Fellow in East Asian Legal Studies at Harvard Law and PhD candidate in history at Yale, has published From Legal Transplants to Policy Irritants: Chinese Economic Expansion and Global Legal Change in the American Journal of Comparative Law:

Since the 1970s, comparative law scholars have studied “legal transplants”: legal institutions that emerged in one location and then were moved to (or forced upon) another. This research agenda offers little traction on one of today’s most pressing questions of global legal change. For several decades, Chinese leaders have encouraged Chinese enterprises to increase their international engagement. Those leaders insist that they have no desire to alter the legal systems of their economic partners, but China’s growing global economic presence does seem to affect legal systems elsewhere.

To make sense of this pattern, this Article draws on and extends Gunther Teubner’s concept of a “legal irritant.” It introduces the idea of a “policy irritant”: a policy that a country implements, inspired by policies elsewhere, that places pressure on and potentially reshapes the country’s legal regime. To demonstrate how the concept of a policy irritant improves our understanding of theoretical questions about legal change and concrete questions about current global conflicts, this Article offers a case study of the Madaraka Express, a China-funded railroad project in Kenya.

From a theoretical perspective, the Article makes two contributions to the literature on legal transplants. First, it reveals that policy emulation can catalyze legal change. Second, it observes that policy emulation can result in changes both to the recipient legal system and to the policy being emulated. At a more concrete level, the Article offers two insights into China’s engagement with the Global South. First, the introduction of China-inspired policies caused controversy in Kenya not because those policies were inherently insidious, but because they rubbed roughly against features of Kenya’s legal system that many Kenyans value highly. Second, Kenya’s legal system has shown strength in the face of pressures introduced by China-inspired policies, and has in some instances forced changes in those policies.

--Dan Ernst

Priel on the Political Theories of the Legal Realists

 Dan Priel, Osgoode Hall Law School, has posted The Political Theories of the Legal Realists:

Jerome Frank, with William Douglas (LC)

A popular view about the legal realists is that, either knowingly or inadvertently, they advanced ideas inconsistent with traditional values, democracy, and the rule of law. Another view about them suggested that the realists had no political theory: they only offered a descriptive (empirical) theory of adjudication, albeit one that has normatively "quietist" implications. In this essay, I challenge both views. I argue that there were two legal realist camps whose jurisprudential ideas presupposed two quite different political theories. One group of legal realists consisted of public utilitarians who were consciously inspired by Bentham, wanted to turn legal and political theory into a science, and who thought law should be evaluated by its ability to increase social welfare. The other group had a very different political theory underlying its approach to law. For these legal realists, law was a traditionary institution, which should reflect, and be continuous with, community customs and values. After showing these different views, I show their relevance to contemporary debates in different areas of law. 

--Dan Ernst 

Fighting Words at the Founding

We were intrigued by this student note: Fighting Words at the Founding, Harvard Law Review 138 (June 2025): 2049-2070.  From its introduction: 

At the Founding, speakers of fighting words were indictable only if they intended to cause violence. Yet today, Americans who speak fighting words without any intention of causing a fight routinely face criminal sanctions. The Supreme Court has yet to rule definitively on whether the First Amendment requires that the government prove mens rea to punish the speaker of a fighting word. But in the lower courts, nearly every defendant prosecuted for speaking a fighting word faces strict liability: Her interior mental state is irrelevant. That approach breaks with the uniform practice of the common law at the time the nation ratified the First Amendment.

--Dan Ernst

An Oral History of Ruth Bader Ginsburg

RBG in 1993 (LC)

The Historical Society of the District of Columbia Circuit has just announced the opening of an oral history of Supreme Court Justice Ruth Bader Ginsburg conducted by Maeva Marcus, the general editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States and a past-president of the American Society for Legal History.  The interviews were conducted between 1995 and 2000 with a final session in 2014.

--Dan Ernst 

Larson on Rape and Medieval Canon Law

Atria A. Larson, Saint Louis University, has published Lucretia (and Lucia) and the Medieval Canonists: Guilt, Consent, and Chastity in the Early Canonistic Jurisprudence of Rape, online in Law and History Review:

This essay explores a key stage in the legal history of the concepts of consent and guilt in cases of rape, namely in twelfth-century canon law in the work of Gratian and the early canonists who commented on his Decretum. It substantially revises the account that currently exists in scholarship and explains that confusion between raptus and rape and a limited read of the Decretum have combined to provide a problematic picture in which, it has been claimed, neither Gratian nor broader medieval canon law took rape seriously as an offence. The essay focuses on the underexplored Causa 32 in the Decretum and discusses how Gratian very directly addressed forced coitus in that section of his text, both condemning it and exonerating women of all guilt who are forced to have sex without their consent. Gratian and the decretists ended up changing the discourse on rape, in part through their treatment of both Lucretia of Roman legend and an early Christian martyr, Lucia. Their considerations, which intersected with theology, resulted in a legal principle that a raped wife cannot be charged with adultery. Since their considerations could also be applied to any rape victim, their work is important for the development of rape law and legal notions of consent.

--Dan Ernst 

University of Pennsylvania Legal History Workshop, AY 2025-26

As usual, the University of Pennsylvania will convene a legal history workshop this year. The lineup is below:

September 25, 2025: James Q. Whitman (Yale Law), “The Apparatus of Abasement and Elevation: Death and Transfiguration of Rank.”  

 

October 16, 2025: Daniel Hulsebosch (NYU School of Law), TBD. 

 

January 29, 2026: Jessica Pliley (Texas State University), TBD.  

 

March 26, 2026: Susan Pearson (Northwestern University), TBD. 

 

April 9, 2026: Rachel Shelden (Penn State University), TBD.  

 

April 23, 2026: Amalia Kessler (Stanford Law School), TBD. 

-- Karen Tani 

Job Alert: Constitutional Law and Legal History

[We note the following advertisement for an Assistant Professor of U.S. Constitutional Law and Legal History in the Kinder Institute on Constitutional Democracy in the College of Arts and Sciences at the University of Missouri-Columbia.  DRE.]

The Kinder Institute on Constitutional Democracy at the University of Missouri invites applications for an
interdisciplinary, assistant professor tenure-track job in U.S. Constitutional Law and Legal History. Candidates from history, political science, and joint JD/PhDs are encouraged to apply, though all applicants should have PhD in hand by 1 August 2026. Depending on their expertise, the holder of this position will have an academic home in either the Department of History or the Truman School of Government and Public Affairs. The search committee is looking for candidates whose research and teaching focuses on the constitutional development, public law, and legal history of the United States in the chronological period

Minimum Qualifications: Ph.D. in History or Political Science by time of appointment.

Candidates should have an established research trajectory, commensurate with career stage, as well as college-level teaching experience. 

Application Materials.  Use the online application and be prepared to upload your cover letter, CV, list of three reference contacts, and chapter or article length writing sample. The cover letter should include statements on both your research and teaching. 

Applicants may contact the Chair of the Search Committee, Kinder Institute Associate Director Dr. Billy Coleman (colemanw@missouri.edu) with any questions about the job duties. Contact Andrew Longley (Andrew.longley@umsystem.edu) for any questions about the application process. Deadline for applications is October 22; the position will remain open until filled.
Benefit Eligibility

This position is eligible for University benefits. As part of your total compensation, the University offers a comprehensive benefits package, including medical, dental and vision plans, retirement, and educational fee discounts for all four UM System campuses.  For additional information on University benefits, please visit the Faculty & Staff Benefits website. 

The University of Missouri is an Equal Opportunity Employer.  To request ADA accommodations, please call the Director of Accessibility and ADA at 573-884-7278.

Rg-Legal History 33 (2025)

[We have the following announcement.  DRE.]

Rechtsgeschichte-Legal History 33 (2025), the journal of the Max Planck Institute for Legal History and Legal Theory, is now available, in print from the Vittorio Klostermann publishing house and online in Open Access via the journal's website.

The most recent issue of Rechtsgeschichte-Legal History (Rg) opens with an essay in the Research section on multilingualism and law in late antiquity. Hartmut Leppin focuses on Syrian, Coptic and Hebrew sources, showing the rich legal pluralism of the Roman empire and how its openness to diverse languages was part of the decentralisation of the empire, even transcending its borders. Thorsten Keiser uses sources from the late middle ages, the early modern period and the modern era to trace the transformation of labour law from a right to discipline workers into the workers' right to social security. Thomas Weitin and Katharina Herget demonstrate possible applications of Digital Humanities in their study of the criminal cases collection Der Neue Pitaval (1842-1890). The Research section closes with Daniel Siemens' contribution about the periodical Rechtsprechung zum Wiedergutmachungsrecht (1949-1981) and the tireless work of its editor Walter Schwarz to promote German jurisprudence on reparations.

The Focus section looks at a central issue of labour law: the normative structures of industrial relations in the 19th and 20th centuries. The studies by Peter Collin, Johanna Wolf, Tim-Niklas Vesper and Matthias Ebbertz result from years of research at the Institute into normative labour relationships in the metal industry. This section also contains further contributions by Roman Köster, Eva-Maria Roelevink und Fabian Trinkaus.

As always, the Critique section covers new publications from the colourful cornucopia of legal history, including: legal pluralism, Chinese legal history, legal history in Latin America, the history of private law, public law, and criminal law. The reviews in this section are authored by researchers at the Institute and from all over the world.

This edition of the Rg also premiers a new section: following the Critique, under the heading Comptes rendus, you will find ten short presentations of select publications from members of the Institute.

This year's Rg is rounded off by two Marginalia. In the first, Ralf Seinecke asks: Was ist Recht? (What is Law?). In the second, Karla Escobar offers a look, based on the dissertation that she wrote at the Institute and published in Colombia in the form of a Graphic History, at the Indigenous Movement in Colombia around 1900. This graphic novel also provided the material for the image spread in the printed issue of this Rg edition.

Amar's "Born Equal"

Akhil Reed Amar, Yale Law School, has published Born Equal: Remaking America’s Constitution, 1840–1920 (Basic Books):

In Born Equal, the prizewinning constitutional historian Akhil Reed Amar recounts the dramatic constitutional debates that unfolded across these eight decades, when four glorious amendments abolished slavery, secured Black and female citizenship, and extended suffrage regardless of race or gender. At the heart of this era was the epic and ever-evolving idea that all Americans are created equal. The promise of birth equality sat at the base of the 1776 Declaration of Independence. But in the nineteenth century, remarkable American women and men—especially Elizabeth Cady Stanton, Frederick Douglass, Harriet Beecher Stowe, and Abraham Lincoln—elaborated a new vision of what this ideal demanded. Their debates played out from Seneca Falls to the halls of Congress, from Bloody Kansas to Gettysburg, from Ford’s Theater to the White House gates, ultimately transforming the nation and the world. 
  
An ambitious narrative history and a penetrating work of legal and political analysis, Born Equal is a vital new portrait of America’s winding road toward equality.

Jeff Shesol's review in the NYT is here. 

--Dan Ernst 

Ablavsky, "Why We Should Stop Saying 'The Founders'"

Gregory Ablavsky (Stanford Law School) has posted "Why We Should Stop Saying 'The Founders,'" forthcoming in Volume 173 of the University of Pennsylvania Law Review. The abstract:

This short Essay—part of a symposium on Jack Balkin's Memory and Authority—argues that we should stop using the term "the Founders" in legal-academic writing. I understand the appeal; I have used the term myself. Nonetheless, I highlight five limitations of the term. It is vague because it is not clear who is in and who is out. It stresses uniformity over disagreement. It embraces filiopietism and ancestor worship. It transforms the study of institutions and ideas into biography. And it is exclusionary—not just in the sense of the widespread critique that the conventional Founders were elite white men, but also, more broadly, in the sense that the term conscripts its subjects into the project of building the United States.

If we don’t use “the Founders,” what should we use instead? In a word: nothing. That is, there are lots of terms that might capture with more specificity what we mean in any given instance when we say, “the Founders.” But we do not need a new collective noun that describes this amorphous group of late-eighteenth-century politicians. We manage to speak coherently about lots of other moments of significant historical and constitutional change—including, most notably, the “Second Founding,” the Reconstruction era—without a term analogous to “the Founders.” We could surely do so for the late eighteenth century, too. 

Read on here.

-- Karen Tani 

Arlyck's "Nation at Sea"

My Georgetown Law colleague Kevin Arlyck has published The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825 (Cambridge University Press).  It appears in the series Studies in Legal History, sponsored by the American Society for Legal History.

The Nation at Sea tells a new story about the federal judiciary, and about the early United States itself.  Most accounts of the nation's transformation from infant republic to world power ignore the courts. Their importance, if any, was limited to domestic politics. But the truth is that, in the critical decades following the Constitution's ratification, federal judges decided thousands of maritime cases that profoundly shaped the United States' relations with foreign nations. Judges ruled on the legality of naval captures made by European powers, regulated the conduct of American merchants, and tried pirates and slave traders who sought profit amid the turmoil of transatlantic war. Kevin Arlyck's vivid reconstruction of this forgotten history reveals how, over time, the federal courts helped realize an increasingly bold conception of American sovereignty, one that vindicated the Declaration of Independence's claim to the United States' place 'among the powers of the earth.'

Here are some endorsements:

‘In The Nation at Sea, Kevin Arlyck expertly bridges two significant but often detached areas of scholarship: the early history of the federal courts, a topic typically treated as ‘domestic,’ and the international struggles of the United States in the early national period. The intersection of these topics is of pressing interest to lawyers, judges, legal scholars, and historians, especially given the current prominence of originalist methods of legal interpretation.’

Alison LaCroix - Robert Newton Reid Professor of Law, University of Chicago Law School and author of The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms

‘In the first 40 years after the Constitution was ratified, much of the business of the federal courts consisted of maritime disputes with international dimensions. These disputes made judges central to U.S. foreign relations in ways that are scarcely imaginable today. Arlyck’s compelling and important study is the first major treatment of how federal judges took up this international role and with what consequences.’

Nicholas R. Parrillo - Townsend Professor of Law, Yale Law School and author of Against the Profit Motive: The Salary Revolution in American Government, 1780–1940

  

‘A Nation at Sea argues persuasively that America’s high courts negotiated international conflicts at a crucial period after the founding when the United States needed to establish credibility and assert neutrality in the midst of dangerous conflicts between powerful empires. Arlyck also demonstrates that Supreme Court justices failed to uphold American restrictions on the slave trade after 1808, even though they could have done so through extension of legal doctrines of their own maritime decisions.’

Holly Brewer - Burke Chair of American Cultural and Intellectual History, University of Maryland and author of By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority

--Dan Ernst 

CFP: Crime and Conjugality in Europe, pre-1800

[We have the following CFP.  DRE]

Call for papers: Crime and Conjugality in Europe, pre-1800.  6 July 2026, 9.00 AM - 6 July 2026, 6.00 PM.  All Souls College, University of Oxford.

We seek expressions of interest in participating in a one-day workshop on the theme of ‘crime and conjugality’ in European history prior to c. 1800, with the aim of producing an edited collection of essays on the topic thereafter. 

Context: Marriage is a social institution with complex functions and meanings that are neither transparent nor unchanging. It does much to determine many women’s legal capacity, social agency, and rights; it has shaped and been shaped by deeply gendered, patriarchal relations of power between and among women and men. As such, it has long been a site and source of conflicts both personal and political. The conversations at our one-day workshop will contribute to the historical analysis of this culturally significant pattern of social action by exploring its relationship with criminal law in the pre-modern past.  

The long history of marriage in Europe has been described as a shift from sacrament to contract but criminal law played parts in its regulation throughout. Even when canon law was the primary regulatory framework for ‘sacramental’ unions within Europe, the criminal laws of secular authorities also shaped marriage and the ways in which it served as an instrument in a wide field of power relations, well before state control and civil marriages came to dominate. We want to draw together a group of scholars whose work will afford new perspectives on marriage and its relationship with other social and political structures by looking comparatively at how criminal law helped define the institution before and during its early, haphazard ‘secularization’.  

The ultimate aim is a volume of essays in which individual chapters will examine how criminal law policed who could marry and how: which close personal relationships counted as conjugal? Other chapters will study how marriage altered criminal responsibility for acts otherwise understood when committed by the unmarried: what did marriage make lawful or unlawful? We aim to have chapters that explore the criminal law’s role in marriage both before and after the sixteenth-century religious reformation, in both civil and common law jurisdictions, and into the encounters that defined the colonial era, through to the emergence of civil marriage regimes. The collaborative, comparative format of a collection of essays by experts in the histories of different times and places seems the best way to examine the varied histories of this subject. Collectively, the papers will highlight some of the ways criminal law helped construct normative, functional distinctions between conjugal and non-conjugal relationships in pre-modern Europe. 

Possible topics for papers include but are not limited to the following: Abduction/forced marriage; adultery; bigamy; child Marriage; concubinage; legitimacy/bastardy; aestrictions on unions that crossed legal, national, racial, religious, sexual, social or other boundaries in ways deemed criminal; polygamy/plural marriage; spousal/intimate partner violence; spousal homicide; and marital status and criminal responsibility: behaviours made lawful or unlawful or differently categorised depending on the status of the actors (e.g., for men, theft from or the sexual or physical assault of women, and for women, spousal homicide and infanticide). 

If you are interested in participating in the workshop, with an eye to a possible contribution to the intended essay collection, please send a working title and a brief abstract (c. 300 words) to both organisers by 15 September 2025. 

Note that places for the workshop are limited, and booking, via Eventbrite, will be essential. A facility for booking will be added to this page in 2026.  While the workshop will be free to attend, we are unfortunately unable to cover travel or accommodation costs for participants.   

Contact addresses for the organisers: Gwen Seabourne (g.c.seabourne@bristol.ac.uk) and Krista Kesselring (krista.kesselring@dal.ca) 

Chapman on Fines and Common Bench

New online from Law and History Review: Fines and the Common Bench, 1218–1226 by Douglas R. Chapman, University of Cambridge:

The years immediately following the issue of Magna Carta and the death of John were of fundamental importance in determining the trajectory of the nascent common law legal system. Although the existence of the Bench had functionally been permanently established under chapter seventeen of Magna Carta, the central royal court faced an uncertain future under conciliar rule and in the aftermath of extensive civil conflict. The extensive extant records of the common law fines made to initiate actions in the Bench as recorded the Fine Rolls offer a window into the roles played by the court in relation to litigants, within the wider structure of royal governance, and in relation to a rapidly evolving legal system. An analysis of these sources can therefore both illuminate the early workings of the common law legal procedures and characterize the demand for royal justice that survived the First Barons’ War before continuing to grow across the thirteenth century. What emerges is a picture of a judicial system at the onset of a period of rapid development and widespread demand that would come to lay the foundation for the massive expansion of royal justice that was to follow throughout the reign of Henry III and beyond.

--Dan Ernst 

Tate on Liberty in the Common Law

Joshua C. Tate, Southern Methodist University Dedman School of Law, has posted Liberty as Entitlement in the Common Law, which is forthcoming in the San Diego Law Review:

In recent decades, some justices of the U.S. Supreme Court have questioned the broad definition of liberty that is the basis for the doctrine of substantive due process. In his dissenting opinion in Obergefell v. Hodges, for example, Justice Thomas argued that liberty in the common-law tradition "has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement." This Article will argue that such a narrow definition excludes many instances in which the common law used "liberty" as a synonym for "privilege" or "entitlement." Treatises that were well-known to the framers of the U.S. Constitution discussed various entitlements as examples of liberties. The rights to hold a fair or market were considered liberties, as were the rights to hold court in certain disputes and to select local officials. In addition, statutes from the American colonies used the term "liberties" in a similar way. This broad common-law understanding of liberty must factor into any consideration of the "original" meaning of the term. 

--Dan Ernst 

Weekend Roundup

• Over at Balkinization: a symposium has begun on Marital Privilege, by Serena Mayeri (Penn Carey Law).   

• Over at Notice & Comment: a symposium has begun on Private Finance, Public Power: A History of Bank Supervision in America, by Peter Conti-Brown & Sean Vanatta.

• What an interesting way to encourage student interest in legal historical research!  American Legal Histories is an exhibit at the Lillian Goldman Law Library of sources used in Yale University’s historical collections by students in YLS’s American Legal History course, “each week in class and over the semester in their final research papers. The exhibit highlights a document chosen by each student from their research in primary source collections, online and in person, from Yale and elsewhere.  

• The Supreme Court Historical Society, the White House Historical Association, and the U.S. Capitol Historical Society, hosts the 2025 National Heritage Lecture on Thursday, October 9, at 6:00 PM at historic Decatur House.  Douglas Brinkley will lecture on Presidential Evolution: A History of Executive Orders Over 47 Presidencies.

• 
  Jill Lepore is appearing on various podcasts, including Dahlia Lithwick's Amicus and Kara Shwisher's On on her new book, We the People: A History of the U.S. Constitution (Norton). The WaPo review is here.  

• NYU Law's post on Sarah Seo, who recently joined its faculty (NYU).  

• Bob Bauer, Richard Pildes and Samuel Issacharoff have launched the NYU Law Democracy Project, which seeks to engage,"along many dimensions and from diverse ideological perspectives," the challenge of the "dissatisfaction with democratic government [that] has been pervasive for the last decade throughout the West."

• On the back end of the latest episode of Strict Scrutiny, hosts Leah Litman, Melissa Murray, and Kate Shaw speak with Justin Driver (Yale Law) about The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education.  

• You can always check in on the most recent, digitally published, and open-access articles and book reviews in Law and History Review at its First View page at the Cambridge University Press. 

•  Becoming Thurgood: America’s Social Architect is now streaming on PBS.  

• The Supreme Court Historical Society's recording of John Q. Barrett's lecture, “Away Without Leave but Back in Washington, Briefly: Nazi Prosecutor Justice Robert H. Jackson on the Road to Nuremberg, September 1945,” is now available on the Society's YouTube site.

• Gerard Magliocca, the winner of the Erwin N. Griswold Prize of the Supreme Court Historical Society, will discuss his new book Washington’s Heir: The Life of Justice Bushrod Washington at the Supreme Court of the United States on September 25, 2025 at 6:00 PM at the Supreme Court of the United States.

• Over at Just Security: my Georgetown Law colleagues Marty Lederman and John Mikhail's ongoing series of posts on birthright citizenship.  DRE 

• Lawbook Exchange's September 2025 list of Scholarly Law and Legal History is here.   

• We are not the first to note the irony that the U.S. Immigration and Customs Enforcement's Human Rights Violator Law Division is advertising for a historian.  Julia Rose Kraut's discussion of the history of ideological exclusion and deportation suggests that they been at it for a while (Unsung History).

• ICYMI: American Historical Association Sends Letter in Support of the State Historical Society of Iowa Research Center (AHA).  A century later, the gunshots from the historic Ossian Sweet house still echo (Detroit Free Press).

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

Goh on "Potential Legal History" in Art

New online from Law and History Review: Potential Legal History in the Art of Sonny Liew by Benjamin Goh, National University of Singapore:

Photographs, much less comic books, are not often seen to be focal sources of legal-historical research. This is so despite the growing momentum in the humanities and social sciences to take the visuality of culture, history, and law seriously. Notwithstanding the “visual turn” in law and humanities and socio-legal studies, it remains quite rare for legal history journals to carry images for the close reading of their pertinent implications. For the most part, legal scholarship has continued to exclude much of the optical media that arrange and compose the history of law, including the textual documents whose visuality produces, even contests, foundational legal concepts. This omission calls for intervention, not because legal history has failed to engage critically with dominant histories and the legal orders that they sustain, but rather because archived photographs and their (re)entry into visual modes of storytelling expand the range of historical sources that facilitate such critical projects. More fundamentally, the remediated photograph discloses the technological and theoretical assumptions of history-writing, prompting reflection on how far legal history should evolve to accommodate insights from its neighboring fields.

--Dan Ernst 

Aulakh's "Empire and the Peasant Proprietor"

Preet S. Aulakh,York University, has published Empire and the Peasant Proprietor: Inter-Colony Land Reform in the Victorian Era (Oxford University Press):

As the British Empire consolidated its geographical possession of distant lands by the 19th century, the agrarian nature of its colonies necessitated careful considerations about land tenure relationships. After intense debates around property rights and political economy, several land laws were enacted across the Empire between 1868 and 1875, which recognised the proprietary rights of peasant cultivators. Empire and the Peasant Proprietor examines this transformative shift in the imperial approaches to land tenure.

Through a comparative analysis of historical land tenure arrangements in three diverse colonial sites, Punjab, Ireland, and Prince Edward Island, the book identifies two crucial mechanisms which facilitated the institutionalisation of peasant proprietorship. One, there was a fortuitous ideological alignment between important governing agents in the three colonies. Two, the debate about the impact of land reform in the colonies on the 'sanctity' of English principles was redirected, allowing for inter-colony analogies and precedents to support the proprietary rights of peasant cultivators.

Empire and the Peasant Proprietor demonstrates the importance of these reciprocal influences within the imperial system and provides insight into contemporary challenges of secure land rights for a large proportion of the global population that continues to be dependent on agriculture for sustenance.

This is an open access title available under the terms of a CC BY-NC-ND 4.0 International licence. It is free to read on Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations.

--Dan Ernst

A Self-Paced Course on American Constitutional History

The Gilder Lehrman Institute of American History is offering a “self-paced” course, The Fate of the American Constitution, led by John Fabian Witt, YLS.

Since 1787, the United States Constitution has aimed to hold together a divided political community around a set of basic agreements. Some now call it the oldest constitution in the world still in effect today; others insist that though the textual template has remained in many respects the same, we have actually had two or three, or maybe even four constitutional orders over time. Either way, its history has been one of tumult, controversy, and sometimes mass violence from the very start. This course takes up the social and political history of the document and the practices that have arisen around it, from the founding era to the 1937 transformation that now hangs in the balance. Readings and lectures draw on multiple disciplinary approaches to history and law and foreground competing perspectives on the past. 

--Dan Ernst 

Treaties in the Late Medieval and Early Modern West

New from Oxford University Press: Reframing Treaties in the Late Medieval and Early Modern West, edited by Isabella Lazzarini, Luciano Piffanelli, and Diego Pirillo:

The history of peacemaking has traditionally been reduced to isolated case studies and seen as the prelude to the presumed 'universal' and 'modern' international order. Countering this one-dimensional and Eurocentric narrative, this multi-authored volume reconceptualizes peace treaties as a range of successful and failed agreements, settlements, truces, leagues, and other forms of conflict resolution, thus recovering their multilayered history throughout the medieval and early modern period. Rather than a series of 'great' treaties, peacemaking is reframed as a flexible phenomenon; a 'political grammar', whose complexity is reflected in its variety of forms and sources. Drawing on both diplomatic history and international relations studies, this volume traces the central role that peacemaking has played in the political history of the Western World.

--Dan Ernst.  TOC after the jump.

McClain on Chinese Immigrants in the California Supreme Court

We missed this one when it first came out: Charles J. McClain, “Chinese Immigrants in the California Supreme Court: The Earliest Cases," California Legal History, vol. 19 (2024). Here's an excerpt from the introduction (footnotes omitted):

In April, 1862 California enacted a law that imposed a capitation tax of $2.50 per month on all adult “Mongolians” residing in the state, with a few exceptions. According to its caption, its purpose was to discourage the immigration of the Chinese into California. A San Francisco Chinese named Lin Sing, acting almost certainly with the support of Chinese organizations, challenged the law and his challenge was sustained by the California Supreme Court. In the case of Lin Sing v. Washburn it ruled that the law was an attempt by a state to regulate foreign commerce, which included immigration, and as such trenched impermissibly on a federal power that was paramount in this domain. The case is of considerable significance for what it had to say about the extent of the federal immigration power vis-a-vis the states. It was also the first instance in which Chinese litigants succeeded in having a California law declared unconstitutional.

Lin Sing was not the first time that Chinese immigrants found themselves involved in major Supreme Court civil litigation. In the previous decade, roughly the first decade of substantial Chinese immigration into the state, Chinese civil litigants appeared six times before the California tribunal either as petitioners or respondents. The purpose of this article is to examine these very early cases, as much for what they reveal about the structure and dynamics of the early immigrant community as for what they may tell us about the court or for any legal significance they might have. I reserve until the end a more detailed discussion of the Lin Sing case.

Read on here.

-- Karen Tani

An Exhibit and Conference on German Constitutional History

We have word of a library exhibit and panel at the Washington & Lee University School of Law: Locating the Law: Places of German Constitutional History.  First, the exhibit, which runs from September 4 – October 31, 2025:

Locating the Law explores the places where Germany’s constitutional identity has taken shape—from medieval cathedrals and Enlightenment-era town halls to postwar courthouses and modern office buildings. Featuring photographs by Alexander Telesniuk and adapted from the book Verfassungorte/Constitutional Places by Russell A. Miller, Markus Lang, and Kai-Michael Sprenger, the exhibition considers how democracy is rooted not just in texts but in physical spaces and shared public memory.

Spanning over five centuries, the exhibition highlights sites where constitutions were debated, drafted, or defended. Telesniuk’s images reflect the symbolic and practical importance of these locations, reminding viewers that building and maintaining a constitutional society is a collective, ongoing effort. The project builds on an original book project funded and published by Stiftung Orte der deutschen Demokratiegeschichte (The Foundation for the Places of the History of German Democracy).

The panel discussion is Wednesday October 22, 2025, 4:00–5:30 pm in Lykes Atrium, with a light reception following.  The panelists are:

Alexander Telesniuk, Constitutional Places Photographer, Frankfurt am Main, Germany
Russell Miller, Co-author of Constitutional Places, W&L University School of Law
Kish Parella, W&L University School of Law
Richard Wetzell, German Historical Institute, Washington DC 

--Dan Ernst 

Cheta's "How Commerce Became Legal"

Omar Youssef Cheta, Syracuse University, has published How Commerce Became Legal: Merchants and Market Governance in Nineteenth-Century Egypt (Stanford University Press):

When Egypt's markets opened to private capital in the 1840s, a new infrastructure of commercial laws and institutions emerged. Egypt became the site of profound legal experimentation, and the resulting commercial sphere reflected the political contestations among the governors of Egypt, European consulates, Ottoman rulers, and a growing number of private entrepreneurs, both foreign and local. How Commerce Became Legal explores the legal and business practices that resulted from this fusion of Ottoman, French, and Islamic legal concepts and governed commerce in Egypt.

Focusing on the decades between the formalization of Cairo's practical autonomy within the Ottoman Empire in the 1840s and its incorporation into the British Empire in the 1880s, Omar Cheta considers how modern laws redefined the commercial sphere, shaping a mode of market governance that would persist for decades to come. He highlights the demarcation of a new law-defined commercial realm separate from the land regime and from civil or family-centered exchanges, and reconstructs these changes through both legal codes and state orders, as well as individual merchant voices preserved in court documents. As this book documents both individual experiences and structural explanations, it offers a rare perspective on the scope and reach of market governance over the mid nineteenth century, revealing changes simultaneously from within and without state institutions.

--Dan Ernst 

Hughes's "Shattered Idol"

Tom Hughes has published A Shattered Idol: The Lord Chief Justice and his Troublesome Women (Marble Hill Publishers):

After the death of his first wife, Lord Chief Justice Coleridge’s unmarried daughter Mildred was expected to serve as housekeeper, hostess and companion to her father, one of the best known figures in Victorian England. But Mildred wanted to marry Charles Warren Adams, the irascible secretary of the Victoria Street Society for which Mildred worked. After disputed accounts of an incident “in a darkened room,” Lord Coleridge forbade the two to meet. And so began a scandal of the rich peer’s daughter and the fortune-hunting journalist that intrigued London society.

Worse was to follow - the threat of a breach-of-promise action as Lord Coleridge tried to end his attachment to a much younger divorcée with whom he had had an affair on a liner returning from America, a libel suit that revealed every squalid detail of his tyranny over his daughter, and public humiliation as he was questioned in his own court by his would-be son-in-law.

Tom Hughes has written the first full-length account of a scandal that enthralled Britain for more than a decade. This is a thrilling and wonderfully told story of “a family which has gone to ruin itself.”

Sir Paul Coleridge, KC, provides a foreword.

–Dan Ernst

Stern to Lecture on Reclaiming the Constitition at UNLV

[We have the following announcement from our friends at the University of Nevada, Las Vegas.  DRE]

On September 17, 2025, 4:30pm to 6:30pm, in the Marjorie Barrick Museum of Art/Harry Reid Center,
Mark Joseph Stern will deliver the 2025 UNLV Constitution Day Lecture, "Reclaiming the Constitution From the Shadows of an Authoritarian Presidency":

In recent years, the Supreme Court has awarded the president an ever-growing amount of power, elevating the executive branch to the apex of the government. This alarming expansion of presidential authority comes at the expense of Congress and the courts, disrupting the Constitution’s carefully calibrated separation of powers. Restoring American democracy will require reining in the imperial presidency—first, by rejecting the Supreme Court's theory of a "unitary executive," then by restoring constitutional checks that prevent the president from becoming a king.

Mark Joseph Stern is a senior writer covering courts and the law for Slate and co-host of the Amicus podcast. He regularly appears on MSNBC. Based in Washington, D.C., he has covered the U.S. Supreme Court since 2013. He holds a J.D. from the Georgetown University Law Center.

Admission is free.  Contact College of Liberal Arts Dean's Office (702-895-3401; liberalarts@unlv.edu).

CFP: Legal History in Asia and Beyond

 [We have the following CFP.  DRE.]

Call for Papers – Legal History in Asia and Beyond: Lessons from the Past for the Present

The Transnational Legal History Group, part of the Centre for Comparative and Transnational Law withinthe Faculty of Law at the Chinese University of Hong Kong, the Oxford Programme in Asian Laws of the Faculty of Law at the University of Oxford and the Asian Legal History Association are jointly hosting a conference on “Legal History in Asia and Beyond: Lessons from the Past for the Present.” The conference will take place in two parts: first on 17 and 18 March 2026 in Hong Kong, and then on 23 March 2026 in Oxford. Applicants should specify at which venue they would prefer to present when making their application. There is no obligation or expectation to attend both sessions, but participants are welcome to do so.

This unique cross-jurisdictional event will also serve to mark the institutionalization of the Asian Legal History Association (ALHA). The ALHA, which has its Secretariat at CUHK, brings together faculties and institutes from more than a dozen jurisdictions, collectively committed to promoting the study and knowledge of transnational legal history generally, enhancing the status and role of Asia as a generator and hub of global legal history knowledge, and developing collaborative relationships between universities in Asia and around the world.

Click here for the call for papers. The submission deadline is 31 October 2025.

Katz on the First US Women Judges

Elizabeth D. Katz, University of Florida Levin College of Law, has posted May It Please Her Honor": The United States' First Women Judges, 1870-1930, which is forthcoming in the Washington University Law Review:

Catherine Waugh McCulloch (LC)

Between 1870 and 1930, hundreds of women served as judges in the United States. While a small number compared to the men who served, these pathbreaking officials were particularly visible and influential in women's efforts to secure political rights and advance in the legal profession. Women's progress in obtaining judgeships developed in a regional pattern, with women in the Midwest and West able to secure earlier and broader jurisdiction positions than their counterparts in the Northeast and South. Seeking access to the judiciary, women in conservative states made gendered arguments about women's supposed superiority in overseeing cases involving women, children, and families. Some demonstrated women's skill in handling juvenile and family matters through service as the country's first probation officers, a step that supported women's selection as judges in juvenile and family courts. Regardless of location or type of court, women judges attracted significant attention because they seemed to embody the promise and perils of women's increasing political and professional power. Yet since most served in local trial courts, nearly all are forgotten today. This Article recovers the stories of these overlooked trailblazers, offering the most comprehensive account of the obstacles they faced and the strategies they deployed to join the country's judicial benches. 

--Dan Ernst 

Weekend Roundup

• Reminder: at noon on September 10, the Supreme Court Historical Society will sponsor a virtual lecture and conversation with John Q. Barrett, “Away Without Leave but Back in Washington, Briefly: Nazi Prosecutor Justice Robert H. Jackson on the Road to Nuremberg, September 1945.”  Register here.  

• The Supreme Court Historical Society’s latest episode in its Breaking History video series treats “two extraordinary behind-the-scenes stories from the latest Journal of Supreme Court History” concerning Reed v. Reed (1971) and Miranda v. Arizona (1966)

• In an episode of Historians & Their Histories, the Massachusetts Historical Society spoke with Cornelia H. Dayton, University of Connecticut, about her her research into the life of John Peters, the husband of acclaimed poet Phillis Wheatley, as well as abour Professor Dayton’s “path to becoming an historian, her early interest in constitutional law, and the challenges of researching subaltern subjects, such as Peters, who left few firsthand accounts.”  The transcript is here.

• Over at ESCLH Blog: a post on the "(Dis)continuity of Legal Systems in Czechoslovakia, Hungary and Poland after WWII: Difficult Heritage." 

• On Monday, September 8, at 6:30 p.m. at Paul Sawyier Public Library in Frankfort, Kentucky, Thomas C. Mackey, University of Louisville emeritus, will discuss his book, Opposing Lincoln: Clement L. Vallandigham, Presidential Power, and the Legal Battle over Dissent in Wartime (State-Journal).  

• Also on Monday, September 8, Aziz Rana, BC Law, will give the 2025 Kops Freedom of the Press Lecture, "The Constitution in crisis: how Americans came to idolize a document that fails them," at Cornell University, from 12-1 p.m.  More.  

• In C-SPAN’s “Bell Ringer” series, Joseph Crespino, Emory University, talks about “the changes in society, politics, institutions and the U.S. Senate in the 20th and 21st centuries.”  

• Keith Whittington, Yale Law School, will deliver the Constitution Day address at Washington and Lee University at 5 p.m. on September 18 on “By Birth Alone: The Original Meaning of Birthright Citizenship in the Fourteenth Amendment" (More). 

• Notre Dame Law’s notice of the second ASLH/Notre Dame Graduate Legal History Colloquium.

• A columnist praises the appointment of Lee Strang to direct the new Salmon P. Chase Center for Civics, Culture, and Society at the Ohio State University because the center promises to address "the partisan biases that have oozed into the teaching of American history and civic responsibility" (Columbus Dispatch).   

• The 14th Amendment Center for Law and Democracy at the Howard University School of Law has launched a newsletter, The Refounding.

• ICYMI:  How a Chinese Laundryman Shaped US Civil Rights (KQED).  The Evolution of the Bail System in America (History). The Volatile History of Flag Burning in the US (History).  The "Founders Museum" from White House and PragerU blurs history, AI-generated fiction (NPR).  Speaking of Founders: How about the one who lost a leg?  (Smithsonian).  And there's no rest for the Madison revisionist: “'If we truly want to look at the birthplace of the United States Constitution, it’s not in Philadelphia, it’s on the second floor of this home,' Montpelier’s Director of Interpretation and Visitor Engagement Kyle Stetz said." (29News).

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

Masur and Posner on the Political Origins of Originalism (and CBA)

Jonathan S. Masur and Eric A.  Posner, University of Chicago Law School, have published The Common Political Foundations of Originalism and Cost-Benefit Analysis in the Administrative Law Review:

Cost-benefit analysis (CBA) and originalism are rarely discussed together and seem to belong to different worlds of legal scholarship. The two methods are used by different  institutions in different spheres of lawfor different puwposes; what could they have in  common?  Nothing or so it would seem. Yet closer inspection reveals surprising commonalities-both in terms of structure and function, on the one hand, and in historical pedigree and political economy, on the other. CBA and originalism are what we will call midlevel legal methods.   Midlevel legal methods are neither normative commitments nor legal doctrines, but recurrently used methodologies that are applied to multiple substantive areas of law. What is peculiar and interesting about these two particular midlevel methods is that, despite the fact that they cover such divergent domains, they have developed similar structures to fill similar roles. 

How did these two methods with such similar structural and functional characteristics arise? We argue that the answer lies with their shared political history. Both methods have been propelled forward by significant financial support from an overlapping web of business groups and intellectual support from academic supporters associated with pro-market trends in intellectual and political circles in the 1970s and 1980s. Accordingly, both methods were originally backed largely by conservatives and associated with the conservative legal movement. But even that has shifted over time, and roughly contemporaneously. Yet the story of originalism and CBA is one of dynamic instability. New political forces and new populist trends pose threats to the continued preeminence of both methods.

--Dan Ernst

Pasker on Black Testimony in Antebellum Courts

Robert B. Pasker, City University of New York, has posted "Which History has Condescended to Notice": Black Testimony in Antebellum Courts:

This study investigates the contested admissibility of Black testimony in American courts between 1790 and 1865, analyzing 73 appellate opinions across 11 states and the District of Columbia. Contrary to the prevailing historiography that portrays antebellum statutes as universally excluding Black voices, these cases reveal that judges frequently exercised discretion to admit testimony where exclusion threatened the courts’ procedural capacity to adjudicate. The analysis demonstrates that judicial reasoning prioritized institutional functionality rather than moral or rights-based considerations.

A central challenge was methodological: appellate case law is vast, dispersed, and embedded in archaic legal language that resists conventional search tools. To overcome this, I developed Roscoe, a machine-learning system designed to perform conceptual searches, generate topical classifications, and produce plain-language summaries of nineteenth-century case law. Named for Roscoe Pound, the system allowed efficient retrieval and categorization of relevant cases from hundreds of thousands of digitized opinions. Roscoe not only enhanced recall and precision in identifying Black testimony cases but also facilitated thematic grouping across jurisdictional boundaries, making possible a genuinely national analysis.

The findings expose the structural contradiction at the core of antebellum jurisprudence: statutes that categorically barred Black testimony collided with the judiciary’s pragmatic need for probative evidence. Appellate decisions show how Black participation forced courts to adapt in ways that preserved institutional authority while reinforcing racial hierarchy. This duality—judicial flexibility without recognition of Black rights—complicates prevailing narratives of antebellum legal history and demonstrates how digital methodologies can expand the evidentiary base of legal historiography.

 I'm trying to decide whether Roscoe Pound would appreciate the hommage.

--Dan Ernst 

Mapping the Early Modern Inns of Court

 Now out from Palgrave/MacMillan: Mapping the Early Modern Inns of Court: Writing Communities, edited by Emma Rhatigan and Jackie Watson:

This collection of essays presents recent research on the Inns of Court and their place in the literature and culture of the early modern world. The volume is structured in three sections. Section One looks at the institutional spaces of the Inns themselves. The chapters consider how the Innsmen’s identities and writings were shaped by their participation in the communal life of the legal Societies. Section Two looks at the Inns in the context of early modern London. The chapters attend to the intellectual and cultural traffic between the Inns and the city in which they were located by examining the role of Innsmen in the book trade, the circulation of manuscripts, playhouses, and musical culture. Finally, Section Three sets a wider international context. The chapters focus on the role of Innsmen in translation, nation-building, and early colonisation. Together these sections attend to the Innsmen not only as writing communities in themselves, but as participants in a complex of intersecting networks reaching out into London and beyond.

TOC here.  A book launch is scheduled at Middle Temple Library (and also online) at 6.15 pm on Tuesday, September 9.  For details, email MappingInns@gmail.com. 

--Dan Ernst