Ira C. Lupu, George Washington University Law School, has posted Gloria Steinem at the Harvard Law Review Banquet, which appeared in the Green Bag:
In the Spring of 1971, Gloria Steinem became the first woman to be the keynote speaker at the prestigious annual banquet of the Harvard Law Review. At that time, as an editor of the Review, I played an instigating part in the process that led to this controversial invitation. I attended the Banquet, and I paid close attention to the speech and its aftermath. In 1998, I decided to memorialize that experience in this essay, which frames the event in its cultural and political context – the rise of feminism, the Vietnam War, and American student radicalism, among other phenomena. In her book My Life on the Road (2015), Ms. Steinem draws explicitly from details in the essay in describing her experience at the Banquet.--Dan Ernst
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| Florence E. Allen (LC) |
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
New Directions in the Legal History of the Civil War Era
The Center for Civil War Research and the History Department at the University of Mississippi seek papers for the 2025 Conference on the Civil War, to be held October 16-18, 2025, in Oxford, Mississippi.
The conference features a keynote address by Ariela Gross (UCLA) and a special roundtable with Cynthia Nicoletti (UVA), Gautham Rao (American University), and Anne Twitty (Stanford University).
The mid-19th century saw a revolution not only in the written laws and constitutions that governed Americans, but in the ways in which Americans interacted with those laws and the people who administered them. The laws governing slavery and those emerging from it first tore the nation apart then posed significant challenges to its reconstruction. Americans likewise confronted severe legal questions as they prosecuted a cataclysmic conflict, one that brought the state and its armed forces into intimate contact with civilians of all stripes. Meanwhile, the changing ways in which Americans worked, moved, and understood their place in the world required fundamental reconsiderations of their relationships to government, capital, and one another–all of which necessarily involved the law.
This conference seeks to build on the work of historians who have begun critical re-evaluations of the legal history of the Civil War era. Papers may represent traditional legal histories, as well as military, social, and cultural histories demonstrating Americans’ encounters with the law. We welcome individual papers or full panel proposals exploring topics including, but not limited to:
Interested participants should submit a paper title, 250-word abstract, and one-page CV to civilwar@olemiss.edu by Friday, June 6, 2025. Panel proposals should include a CV and abstract for each participant; a commenter and/or chair is not required. The Center for Civil War Research offers stipends to offset costs for presenters lacking institutional travel support.
[We have the following announcement. DRE]
The American Historical Association invites you to attend a Congressional Briefing offering historical perspectives on the federal civil service. The briefing will take place on Monday, April 7, at 9:00 a.m. ET in Rayburn House Office Building Room 2075.
Panelists Joseph A. McCartin (Georgetown Univ.), Margaret Rung (Roosevelt Univ.), and Eric S. Yellin (Univ. of Richmond) will discuss how the federal government’s bureaucracy has evolved over time, including who has been eligible for federal employment, significant legislation concerning federal employment, processes of federal hiring and how they have changed over time, and the role of unions. The AHA's James Grossman will moderate.
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.
James E. Pfander and Mary Zakowski, Northwestern University Pritzker School of Law, have published Non-Party Protective Relief in the Early Republic: Judicial Power to Annul Letters Patent, which is forthcoming in the Northwestern University Law Review:
Much of the debate over the constitutionality of universal or non-party protective relief in the federal court system has focused on lessons drawn from historical practice. But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of non-parties. As a result, the story of non-party protective relief has not yet been fully told.--Dan Ernst
This Article offers a more complete story, highlighting a range of proceedings in which federal courts issued judgments that settled a matter once and for all and operated on all the world. Some familiar examples include proceedings in admiralty, where a decree could settle title conclusively and operate on those who did not appear in the litigation. Less familiar examples include naturalization judgments, which conferred the status of citizenship on an individual once and for all. We focus here on yet a third example: the power of federal courts, acting under the patent laws of the 1790s, to entertain individual suits to cancel or annul a patent for all purposes. Such cancellation proceedings, based on a practice that developed in England on the writ of scire facias, were understood to operate as a general matter and could confer benefits on artisans and manufacturers who did not appear in the litigation. Patent cancellation remains a part of the federal judicial role today.
History suggests, then, that federal courts were understood to have power, when so authorized by Congress, to issue decrees that settled matters conclusively and therefore conferred burdens or benefits on non-parties. Over the nineteenth century, the patent cancellation power migrated to federal courts of equity, resulting in decrees that prohibited patent owners from asserting claims against non-parties. These early examples of non-party protection make it challenging to argue on historical grounds that Article III of the Constitution bars federal courts from granting such relief today. In a brief concluding section, we suggest that assessments of non-party protective relief should focus instead on congressional authority; such a focus could help distinguish universal injunctions in general from the set-aside power conferred in section 706 of the Administrative Procedure Act.
Teemu Ruskola, University of Pennsylvania Carey Law School, has posted The Making of The Chinese Working Class, which is forthcoming in the New Left Review.
This essay, forthcoming in the New Left Review, is an advance excerpt from a book entitled The Unmaking of the Chinese Working Class: The Global Limits of Capitalism, to be published by Verso Books in 2026. The title of the essay is a deliberate nod to E.P. Thompson’s classic The Making of the English Working Class. The English working class constituted the paradigmatic proletariat in the initial stages of industrial capitalism in the West. It provides an ideal lens for examining the emergence of another proletariat of global significance on the opposite edge of the Eurasian landmass, one that is emblematic of capitalism’s latest stage.--Dan Ernst
Thompson framed his analysis in terms of the Enclosure Movement, which expropriated peasants of their land and left them with no option but to sell their labor. In China, too, there is occurring a similar dispossession of peasantry that is sometimes described as a New Enclosure Movement. However, the two enclosure movements differ notably in their temporal and spatial scope. First, processes that took place over a period of several centuries in England are being telescoped into just three decades in China. Second, they are taking place in the opposite order: the initial commodification of industrial labor in the 1990s was accompanied by a seemingly inexhaustible stream of migrant laborers into cities even without the large-scale commodification of rural land. Why, then, dispossess a peasantry that has already submitted to capital voluntarily, i.e., under economic duress without the need to resort to forcible dislocation? This essay, and the book of which it is a part, address this question by focusing on distinctive forms of ownership of rural and urban land in China—a legal distinction that has no precedent in Chinese history, Marxian thought, or Soviet praxis.
My new book, We the Men, concludes by exploring how Americans can learn from the past to change the future. The long history of women’s struggles for equality in the United States makes clear that real progress has always required women to challenge prevailing certainties, advance uncomfortable demands, and confront powerful opponents.
I argue that America needs more
conflict over women’s status rather than less.
Conflict can generate change. Patiently
awaiting men’s spontaneous enlightenment will not.
The last part of the book highlights some of the unwon battles that
need fighting, or continued fighting, to push progress forward—now and over the
long haul. This unfinished
reform agenda spans teaching,
commemoration, political representation, legislation, litigation, and everyday
life.
In this post, I will focus on the unfinished battle for the Equal Rights Amendment. The required thirty-eight states have ratified the ERA, but the last three ratifications came decades after the expiration of the seven-year ratification deadline that Congress inserted into the 1972 joint resolution sending the ERA to the states.
The crucial next step is to push Congress to embrace the ERA’s declaration that: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Federal lawmakers should either directly recognize the ERA as part of the Constitution, remove the ratification deadline, or—ideally—both.
Such congressional endorsement would make it more difficult for the
Supreme Court to resist the conclusion that the ERA’s ratification is complete. The Court has never denied recognition to a constitutional amendment that
Congress accepts.
Even so close to the finish line, fighting for the ERA remains arduous.
Continued opposition to the ERA in
Congress fits within a long history of vehement resistance to expanding women’s
rights and roles. The stakes are high.
Most broadly, the ERA could help transform how powerful and ordinary
Americans understand the relationship between women and the Constitution. Generations
of legal authorities have excluded women from the center of constitutional law.
Indeed, Justice Antonin Scalia argued in
2011 that the Constitution does not prohibit sex discrimination at all because:
“Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw
discrimination by sex, hey we have things called legislatures, and they enact
things called laws.” Scalia added:
“That’s what democracy is all about.”
This was never a compelling argument.
Men barred women from voting on both the original Constitution and the
Fourteenth Amendment prohibiting states from denying “any person” “the equal
protection of the laws.” From that
perspective, it is hard to see how abiding by what the men behind these
constitutional provisions purportedly thought about sex discrimination would be
a triumph of democratic legitimacy, rather than an importation of past
injustice into the present. But in any
event, women are unquestionably not an afterthought to the ERA. Adding that
amendment to the Constitution would affirm women’s equal citizenship and
women’s centrality to constitutional law.
Most practically, the ERA could help expand women’s rights and
opportunities. As We the Men recounts,
ERA opponents have spent over a half century describing the amendment as
simultaneously unnecessary and menacing. The first claim has always depended on
denying persistent sex discrimination and dismissing ongoing disparities. The
second line of attack has recently focused on arguing that the ERA would
provide constitutional protection for abortion rights. That latter argument has
an ironic dimension: Abortion opponents ordinarily refuse to acknowledge any
connections between abortion rights and sex equality. But anti-abortion attacks on the ERA suggest
the impact the amendment could have—eventually, if not necessarily with the
current Supreme Court. Embedding the
ERA’s explicit prohibition on sex discrimination into the constitutional
firmament would provide a new, sturdier foundation supporting feminist advocacy
about constitutional rights.
— Jill Hasday
Fred O. Smith, Jr., Emory University School of Law, and Peter O'Neill, Stanford Law School, have posted The Forgotten Face of "Our Federalism,” which is forthcoming in the Yale Law Journal:
Younger v. Harris is canonical in the field of Federal Courts, distinguished by its seminal role in federal civil rights litigation. The decision’s memorable exposition of “Our Federalism” produced the Younger abstention doctrine, which limits federal courts’ authority to address constitutional violations in state criminal proceedings. Today, this doctrine significantly impacts litigation challenging systemic illegalities in areas like pre-trial detention systems and child welfare programs. Yet, the origins of the case—a stark narrative of racialized surveillance, censorship, and police violence—remain largely unknown.--Dan Ernst
Through examination of diverse sources—including original interviews, newly acquired FBI files, press coverage, court transcripts, legislative records, memoirs, protest materials, and the archival papers of four Supreme Court justices—this Article reconstructs the case of John Harris, a Black civil rights activist and former SNCC organizer. While Harris’s Mississippi arrests in 1965 are clearly legible as Jim Crow oppression, his subsequent Los Angeles indictment in 1966 for similar activism became harder to recognize as racial persecution because it fell outside the Southern “Jim Crow paradigm.” This differential recognition helped courts maintain their image as champions against Southern injustice while limiting federal intervention elsewhere. Moreover, FBI files reveal extensive federal-state cooperation in suppressing Black political activism, contradicting Younger’s conception of federalism as “separate spheres.”
This case illustrates “legitimacy laundering”—a novel framework to describe the obscuring of canonical influential decisions’ original context and implications, conferring legitimacy on otherwise questionable legal practices. The Article also reveals how some modern courts have expanded Younger abstention beyond its carefully negotiated scope, undermining the doctrine’s origins in preserving federal courts’ power to prevent irreparable harm.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
The ASLH/Notre Dame Graduate Legal History Colloquium will convene on April 5, 2025. Virtual participation remains an option for those who wish to attend. Register here. The schedule:
Registration/Welcome 09:45 - 10:05 AM
Paper #1: Social Movements & Litigation Strategy 10:05 - 11:00 AM
“In re Primus and the Rise of Reproductive Rights Impact Litigation”
Author: Christen Hammock Jones, University of Pennsylvania
Respondent: Mary Ziegler. Martin Luther King Jr. Professor of Law, University of California, Davis
Paper #2: Legal History of Disability 11:05 - 12:00 PM
“Bargains & Bandages: Administrative Regulation of Occupational Safety and Care Labor During the HIV/AIDS Epidemic”
Author: Beck Boorstein, University of Chicago Law School/Yale University
Respondent: Laura Weinrib, Fred N. Fishman Professor of Constitutional Law / Suzanne Young Murray Professor, Radcliffe Institute for Advanced Study, Harvard University
Afternoon Break (Lunch) 12:05 - 1:00 PM
Paper #3: Civil Rights and the Constitution 01:05 - 2:00 PM
“Due Process Decarceration: The ACLU’s National Prison Project, 1971-1977”
Author: Daniel Fernandez, University of Chicago
Respondent: Christopher W. Schmidt, Professor of Law & Co-Director, Institute on the Supreme Court of the United States, Chicago-Kent College of Law
Paper #4: Legal History and the Welfare State 02:05 - 3:00 PM
“Policing Parenthood: Child Support Law and the Enforcement of Austerity in Late-Twentieth-Century America”
Author: Will Holub-Moorman, University of Pennsylvania Carey Law School/Princeton University
Respondent: Joanna Grisinger, Associate Professor of Instruction & Director of Legal Studies, Northwestern University
-- Karen Tani
Alexandra Fay (University of Tulsa College of Law) has posted "Courts of Indian Offenses, Courts of Indian Resistance," which is forthcoming in the Michigan Law Review (2026). The abstract:
In the late nineteenth century, the Department of the Interior created the Courts of Indian Offenses with the express goal of eliminating elements of Native culture through the coercive power of criminal law. The courts stood on dubious constitutional grounds, they were almost universally replaced by tribal courts in the twentieth century, and they have been widely derided as crude assimilationist tools.
This Article examines the Courts of Indian Offenses to study how law and legal institutions operate as sites of colonial struggle in the American context. The Courts of Indian Offenses were formally created to criminalize Native culture. In practice, they were more complicated. Native judges entrusted with Washington’s assimilationist designs frequently declined to enforce the “Indian offenses,” instead using the courts to resolve crimes and disputes recognized by their tribal communities.
The Article uses three decades of annual reports from the Commissioner of Indian Affairs and archival records from three Courts of Indian Offenses to illustrate the structure and function of the courts at the turn of the twentieth century. It engages with concepts from subaltern studies, tribal legal studies, and law and colonialism literatures to explore how tribal law adapted and survived despite the formal imposition of Anglo-American legal forms. The Article ultimately suggests that the Courts of Indian Offenses may be understood as contested institutions through which tribal leaders preserved tribal self-government against the imperatives of empire.
The full paper is available here, at SSRN.
-- Karen Tani
[We have the following announcement. DRE]
Please join the American Philosophical Society next Tuesday, March 25th at 12PM ET for our weekly brown bag featuring Katrina Jagodinsky, an Associate Professor of History at University of Nebraska-Lincoln and two-time APS Phillips Fund Award recipient.
Dr. Katrina Jagodinsky will discuss Petitioning for Freedom: Habeas Corpus in the American West, 1812-1924, which is a growing database of habeas petitions from county, state, and federal courts that highlights the remarkable diversity of legal protagonists and actors contributing to American legal tradition. Using digital tools and mixed analytical methods, Petitioning for Freedom documents surprising trends and suggests the potential for innovative research practices to uncover marginalized people's legal strategies over the long nineteenth century.
This will be an all-virtual Brown Bag at 12PM ET. Join Zoom Meeting. Meeting ID: 896 3862 0185. Passcode: 006521.
Esther Liberman Cuenca has published The Making of Urban Customary Law in Medieval and Reformation England (Oxford University Press):
Drawing on a quantitative analysis of hundreds of printed and archival sources from 77 towns, The Making of Urban Customary Law in Medieval England is the first cross-regional investigation into the history of urban customs since Mary Bateson's seminal, two-volume work Borough Customs (1904-1906). In contrast to English common law and church law, which both had long institutional and academic traditions devoted to training men in their legal philosophies, customary law constituted local practices that acquired the force of law over time. Urban customary law regulated political officeholding, trade, property holding, and even moral behaviour in English towns.
The Making of Urban Customary Law argues that urban customs, which governed the lives of people in English towns, were crucial to the development of a distinct, bourgeois identity in England-an evolution that this new study tracks from the early twelfth to the late sixteenth centuries. In the years following the Black Death, and especially during the Reformation period, this law became more concerned with defining political authority, maintaining morality, and articulating a consensus about the “common good” for townspeople.
This book makes two principal claims: First, customary law advanced the business interests of an urban oligarchy. These were urban (male) elites who drafted laws and obtained privileges to enhance their wealth and assert their political independence from local lords, and often made claims about the legitimacy of their privileges or laws by rooted them in history or some kind of ancestral past. These lawmakers also made considerable efforts to establish their identities as morally upright and even-handed patriarchs. In so doing, urban customary law played a central role in the development of a distinct bourgeois identity in medieval and Reformation England. Second, this law lent particular meanings to the “common good” in towns, as it helped these lawmakers articulate policies that cohered to their vision of an ideal civic community.
--Dan Ernst
Corrigendum
“Let the Commander Respond”: The Paradox of Obedience in the Imperial Japanese Armed Forces – CORRIGENDUM
--Dan Ernst
Elizabeth Lee Thompson, Southern Methodist University Dedman School of Law, has published Mandamus as a Democracy Tool, which is forthcoming in the Denver Law Review:
Legal scholars recognize the centrality of state courts and procedures to United States democracy but the study of state proceedings and their impact represents a largely unexplored arena. This Article illuminates one largely ignored procedural area—the writ of mandamus, which is a centuries-old writ recognized in all fifty states that a court issues to compel performance of a duty by a court or public official. The Article examines mandamus concerning public officers—specifically governors and secretaries of state—through an empirical study of 497 state cases over the last almost two centuries.--Dan Ernst
The Article composes the first empirical national study of mandamus petitions seeking to command action by public officers. The central conclusion is that mandamus forms a valuable democracy tool for citizens, particularly for citizen-directed litigation aimed at pressing public officials to correctly conduct elections. This principal conclusion contributes to a range of insights, including the predominance of mandamus cases concerning officials’ duties to conduct elections and certify candidates—and how these election cases display how individuals employed mandamus to press their democratic rights. The Article also recognizes the related trend of citizens employing mandamus to assert complaints arising from initiative and referenda processes, a finding that underscores how mandamus repeatedly supported direct democracy efforts.
Moreover, the Article brings a new perspective to recent scholarship that notes an increased politicization and frequency of state court mandamus filings and the related area of original jurisdiction. In contrast, this Article—with evidence from hundreds of cases—uncovers individuals’ and political groups’ enabling use of mandamus, including through its somewhat increased use over the last quarter century. Although recognizing mandamus’s potential drawbacks, the Article seeks to establish and encourage the role of mandamus as an accessible and powerful mechanism to support citizens’ rights and hold public officers accountable to perform duties.
--Dan Ernst The descriptions of the prizes appear after the jump.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
My Georgetown Law colleague Mark Jia has posted The Possibilities of Constitutional Education:
Constitutional scholarship has traditionally focused on formal constitutional actors: courts, legislatures, and executives. These actors are often regarded as primary sources of constitutional law, or in some cases, as final arbiters of constitutional meaning. More peripheral in this literature are actors thought to transmit what courts and high officials have established. These constitutional educators, including law professors, legal journalists, and civics planners, are often overlooked for defensible reasons: they lack the normative authorities of formal institutional actors, and they do not exercise power as it is often understood in public law.--Dan Ernst
This Article advances a general theory of constitutional education to show what is possible through centering the output of constitutional educators. In an age of global constitutional change and local constitutional upheaval, constitutional education can shed light on basic questions of constitutional order. The analytic value of constitutional education lies not in studying it in isolation, but from examining how primary constitutional research subjects—texts, ideas, methods, decisions, and reasons—are refracted through a distinct set of downstream epistemic actors. Focusing on two case studies, the United States and China, the Article shows how the study of constitutional education can illuminate the functions of authoritarian constitutions, the construction of constitutional culture, and the dynamics of constitutional change. In so arguing, the Article also suggests that certain constitutional patterns may transcend divisions between autocracy and democracy, constitutions and constitutionalism.
Noah Shusterman, Chinese University of Hong Kong, has posted England’s Standing Army Controversy (1697-99) and the Origins of the Second Amendment:
This article explores the writings of England's Standing Army Controversy at the end of the seventeenth century, and the links between those writings and the debates over military policy during the founding era that would eventually lead to both the Constitution’s militia clause and the Second Amendment. Staring in 1697, a small group of British authors turned what had been a long-standing but undertheorized distrust of professional armies into an elaborate theory in favor of citizens’ militias. These authors argued that standing armies were inconsistent with a free society; that militias were superior fighting forces; and that maintaining a professional army would inevitably result in the army's leaders becoming despots. To prove their arguments, the authors used a combination of historical examples and theoretical discussions, drawing on Ancient Rome, Medieval Europe, and their understandings of what would or would not motivate soldiers. These writings became relevant to colonists in North America once the British began stationing troops around Boston during the buildup to the American Revolution. The ideas of the Standing Army Controversy provided colonists with a framework and vocabulary that linked Britain's action to those of other tyrannies, because of the use of professional soldiers against a civilian population. As states began issuing their own constitutions in 1776, several included language that grew out of the Standing Army Controversy, including the claim that "standing armies, in times of peace, are dangerous to liberty." These fears of standing armies, and the belief in citizen-soldiers rather than professional soldiers, remained the basis for the Second Amendment and for the broader debates it grew out of. The claim that a well-regulated militia is necessary for the security of a free state grew out of the writings of the Standing Army Controversy.
--Dan Ernst
Thomas P. Gallanis, George Mason University Antonin Scalia Law School, has posted American Revolutions in the Law of Trusts, which is forthcoming in the ACTEC Law Journal:
American trust law is revolutionary. It departs in fundamental ways from the trust law of other major common-law jurisdictions, such as England, Australia, Canada, the Hong Kong Special Administrative Region, and Singapore. It also differs greatly from the trust law of the major civil-law countries that have adopted the trust, such as mainland China and Japan.--Dan Ernst
This Article identifies five revolutions in American trust law. Each revolution is examined in its historical context and with regard to its lasting effects. Together, the five revolutions explain American trust law's distinctiveness. The Article's primary aim is to shape how American trust law is understood, historically and today.
The Article's contribution is as fundamental as periodization. We used to teach that the "Roman Empire" was followed by the "Early Middle Ages." This periodization was transformed by the pioneering scholarship of the historian Peter Brown. Professor Brown is credited with creating the field of Late Antiquity, approximately AD 250-750. Analogously, this Article's framework of the five revolutions is designed to shape our understanding of the history and development of America's distinctive trust law.
Part I of the Article identifies and analyzes the five revolutions. Part II offers a personal assessment of American trust law's distinctiveness. A brief conclusion follows.
Jonathan Green, Arizona State University Sandra Day O'Connor College of Law, has posted Some Traditional Questions About “History and Tradition”:
Recently, in Vidal and Rahimi, the Supreme Court reaffirmed that “history and tradition” are probative of, and in some cases dispositive of, the outer bounds of constitutionally enumerated rights. But for the Court’s originalists, that move is puzzling. If the Constitution’s legal content resides in the original meaning of its terms, how might a tradition of political practice that arose long after a constitutional provision’s adoption be legally relevant?
Eighteenth-century English jurists had an answer to that question. By 1791, it was well-established that where a written source of law codified a preexisting, common law right—like the freedom of speech (at issue in Vidal), or the right to keep and bear arms (at issue in Rahimi)—the scope of that right would continue to be defined, as before, by custom. The codification of an unwritten right in written law did not alter its status as a customary right, whose limits were set by a tradition that preceded and succeeded the text’s enactment. So, if the provisions at issue in Vidal and Rahimi codified preexisting unwritten rights into our Constitution, then under Founding-era interpretive rules, the original meaning of First and Second Amendments would just direct contemporary judges to look beyond their words, to pre- and post-enactment tradition. From the eighteenth century looking forward, the Court’s turn to “history and tradition” is entirely reconcilable to originalism, and may be required by it.
At the same time, excavating how tradition delimited the outer bounds of fundamental rights in the decades before ratification throws up a number of interpretive puzzles. Whose tradition, exactly? What is tradition, anyway: how did past jurists conceptualize it? And where an unwritten right had been codified into written law, to what extent could later practice reshape its original scope? These questions vexed English jurists across the eighteenth century, and were unsettled when our Constitution was adopted. If classical English constitutionalism offers a way to square originalism to “history and tradition,” it also highlights the challenges of using tradition to define the scope of rights today. Under the surface, eighteenth-century jurists had questions about “history and tradition” too.
--Dan Ernst
Application deadline: June 1, 2025.
[We have the following CFP. DRE.]
The Northwestern University Law Review (NULR) is proud to be opening submissions for the seventh annual empirical issue! NULR is exceptional among flagship law reviews in the United States in that it publishes an annual issue fully dedicated to empirical legal scholarship. We seek to bring cutting-edge, interdisciplinary, empirical work to our legal audience, and enrich our understanding of the law, legal actors, and legal doctrine through robust and reliable examination of qualitative, quantitative, and mixed-method data. Publication at our Journal is especially of interest to authors who would like to benefit from an expedited publication timeline, have their work peer-reviewed from specialists in the field, be supported by a dedicated team of editors who can assist in sharpening the piece’s contribution for the legal audience, and who seek to have their work make impact on legal policy and advocacy in the United States. To provide some examples, we have previously published work evaluating racial bias in police stops, an examination of duplicative proceedings in international litigation, and a field experiment assessing incidence of judicial recusals when potential conflicts of interest come to light. You can find our past empirical issues here.
The exclusive submission window for the Vol. 120 Empirical Issue of the Northwestern University Law Review will open on April 1, 2025, and run until April 28, 2025. A subset of submissions will be selected to move forward to peer review. The Law Review will make every effort to notify authors of rejection or of advancement to peer review by June 30, 2025. Final publication decisions will be issued by August 10, 2025, with the publication date set in March 2026.
Submitted publications must be between 15,000 and 30,000 [words], and conform generally to the style and formatting expectations that are common to law reviews. For more information, please visit our website: Empirical Issue - Northwestern University Law Review or reach out to Thomas Burnett, Senior Empirical Editor for the Northwestern University Law Review at thomas.burnett@law.northwestern.edu.
Jeffery A. Jenkins and Justin Peck’s The Collapse of the Civil Rights Coalition: Congress and the Politics of Antibusing Legislation, 1966-86 is now available online from Law and History Review:
The legislative coalition responsible for passing the 1964 Civil Rights Act did not set out to use busing as a means to end school segregation. When it came time to implement relevant portions of the law, however, busing became the primary method for reversing “separate but equal” education. In this paper, we provide a legislative policy history detailing the unanticipated, but nearly two-decade long, congressional battle over busing. Through a detailed examination of congressional hearings, floor debate, and roll-call votes, we shed light on the collapse of the pro-civil rights coalition responsible for the landmark achievements of the early 1960s. In its place emerged a new, bipartisan, and interregional bloc of lawmakers—led by southern Democrats and Republicans but joined by a pivotal group of (ostensibly liberal) northern Democrats—who were opposed to efforts by the Supreme Court and administrative state to end school segregation in the North as well as the South.
--Dan Ernst
Stephen James Bogle, University of Glasgow School of Law, has posted James Dalrymple, Viscount Stair, 1619-1695: a pioneer of law and commerce?
James Dalrymple, Viscount Stair (1619-1695), is rarely associated with commercial law, yet this connection is both justified and valuable. While he does not explicitly use the term 'commercial law' or structure his writings around commercial transactions, his Institutions of the Law of Scotland, drafted between 1659 and 1661 and first published in 1681, offers an innovative theory of law and commerce. This nuanced outlook merits closer examination. Arguably, this perspective on Stair has largely been overlooked, perhaps due to the way in which the Institutions is presented as a comprehensive account of Scots customary law. However, as argued in the conclusion, to neglect the commerciality of Stair is to the detriment of our historiography of commercial law. Recognizing Stair as not only a lawyer but also a thinker on commerce highlights the significance of legal treatises to broader historical narratives. Moreover, today, there are efforts to rebuild connections between the fields of political economy and law, seeking to understand how economics and politics shapes legal thinking, and vice versa. Such efforts, however, can be enriched, it is argued here, by considering, from a historical perspective, what might otherwise appear dogmatic works of commercial law scholarship. To do that, we first need to identify who might be worth examination.
James Dalrymple, Viscount Stair (NYPL)
As will be argued, Stair took the ideas he found in the natural jurisprudence of Hugo Grotius - and perhaps also, those relating to free trade on the high seas - and incorporated it into domestic legal writing about internal commercial activity. Stair’s transformation of Grotius's ideas on international law, trade, and human sociability into the domestic context has not always been appreciated. However, when framed in this manner Stair’s project represents an interesting contribution to the development of commercial law literature in the early modern period. To adequately contextualise Grotius and Stair requires a deeper examination of seventeenth century natural jurisprudence, which continued to inform legal, economic, and political ideas well into the eighteenth century. Thus, for example, Istvan Hont has shown that natural jurisprudence, including the work of eighteenth-century Scottish philosophers, provided a key bridge between legal and economic ideas, and the eventual development of national state policy. Of course, much of this is beyond the compass of this present enquiry, but it does nonetheless underscore the importance of taking commercial law scholarship seriously. Our first task, however, is to establish Stair as a notable example of commercial law scholarship, explain why, and then suggest avenues for future study.
--Dan Ernst
My new book, We the Men, explores how America’s dominant stories about itself forget about women. This post draws on that book to highlight one mode of forgetting—simply ignoring women and their struggles for equality.
Some examples are concrete (literally).
A 2021 survey of federal courthouses found more than 165 named for a man and
just four named for a woman. Only three women made a 2021 list
of the fifty most frequently commemorated people in America’s public monuments,
compared to forty-four white men, many of them slaveholders.
Struggles over commemorating
women have drawn much less mainstream attention than commemoration conflicts
framed as centrally about race, even though many struggles over commemorating
women are simultaneously intertwined with race. Perhaps our male-dominated
commemorative landscape is such a perennial fact of life that it sometimes
fades into the background as we enter yet another government building with a
man’s name over the door or walk through yet another public square featuring a
man immortalized on horseback.
But commemorations are not just
decorative flourishes or scenery. They shape the vision of America that we
carry around with us, which is why generations of women have fought to
reconstruct the commemorative landscape and why they have faced such persistent
resistance.
For example, women in and out of
Congress have been fighting since the 1990s for construction of an American
Women’s History Museum. That battle has lasted so long because of sustained
opposition from conservative lawmakers and anti-feminist activists. As of this
writing, Congress has not passed the statute required to build on the National
Mall, and the museum remains
years away from opening.
Women’s erasure also runs
through the stories that powerful Americans tell with torrents of words rather
than blocks of concrete and stone. Politicians delivering odes to America on
significant anniversaries commonly celebrate the Founders for establishing
government by the consent of the governed. That account depends on excluding
almost everyone who was not a white male property owner.
Supreme Court opinions regularly
ignore women when remembering the Court’s key decisions. They skip over both
rulings that offered crucial support to women striving for equality and the
many cases where the Court blocked or undid women’s progress. Law professors
making lists of the Court’s most important or most terrible constitutional
judgments routinely omit decisions about women’s rights.
Indeed, I was surprised to
discover how frequently legal authorities and popular writers marginalize women
even within discussions of women’s status. When judicial opinions mention
women, judges on and off the Supreme Court often write as if men decided on
their own to expand women’s rights and opportunities. I call these tales
“spontaneous enlightenment stories,” and they feature in generations of popular
press and political debates as well. These stories attribute progress to
consensus and men’s wisdom while erasing the conflict and female agency that
forward momentum required, with women needing to demand change and fight for
reform against determined opponents.
For example, it remains all too
common for judges, politicians, and textbook writers to describe the Nineteenth
Amendment as a gift from men that “gave” all women the vote. That account is
doubly misleading.
First, framing the Nineteenth Amendment
as conclusively establishing women’s access to the polls misdescribes reality
and implicitly centers white women. While the amendment prohibits sex-based
denials of the franchise, it guarantees no one the right to vote. Laws on the
books or tactics on the ground have denied many women the vote since 1920, especially
women of color. Battles over voting and voter suppression rage to this day.
Second, the Nineteenth Amendment
was not a gift. It was a multigenerational battle that required suffragists to
overcome furious, sometimes violent, opposition. Suffragists were shot at,
assaulted, knocked from picket lines, dragged on the ground, arrested while
their assailants went free, brutalized in prison, and force fed.
— Jill Hasday
Cynthia Fountaine, University of North Texas, has posted Complicity in the Perversion of Justice: The Role of Lawyers in Eroding the Rule of Law in the Third Reich, in St. Mary’s Journal on Legal Malpractice and Ethics:
A fundamental tenet of the legal profession is that lawyers and judges are uniquely responsible—individually and collectively—for protecting the Rule of Law. This Article considers the failings of the legal profession in living up to that responsibility during Germany’s Third Reich. The incremental steps used by the Nazis to gain control of the German legal system—beginning as early as 1920 when the Nazi Party adopted a party platform that included a plan for a new legal system—turned the legal system on its head and destroyed the Rule of Law. By failing to uphold the integrity and independence of the profession, lawyers and judges permitted and ultimately collaborated in the subversion of the basic lawyer–client relationship, the abrogation of the lawyer’s role as advocate, and the elimination of judicial independence. As a result, while there was an elaborate facade of laws, the fundamental features of the Rule of Law no longer existed and in their place had grown an arbitrary and chaotic system leaving people without any protection from a violent, totalitarian government.
--Dan Ernst
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.
