Weekend Roundup

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  A head's up to those thinking about submitting proposals for the annual meeting of the American Society for Legal History in Banff, November 12-14: the deadline is March 24.   

• This year's Bancroft Prizes have gone to two works of legal history: Emilie Connolly’s Vested Interests: Trusteeship and Native Dispossession in the United States and Beth Lew-Williams’s John Doe Chinaman: A Forgotten History of Chinese Life Under American Racial Law (NYT).

• Legal history bulks large among the finalists for the book division of the American Bar Association’s Silver Gavel Awards for Media and the Arts: The Zorg: A Tale of Greed and Murder that Inspired the Abolition of Slavery, by Siddharth Kara; The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, by John Fabian Witt; We The People: A History of the U.S. Constitution, by Jill Lepore; You Can't Kill a Man Because of the Books He Reads: Angelo Herndon's Fight for Free Speech, by Brad Snyder; American Scare: Florida's Cold War on Black and Queer Lives, by Robert Fieseler; and The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North, by Michelle Adams.  

• The Irish Legal History Society has announced its 2026 essay prize.  "Submissions are invited by 31 May on any topic within Irish legal history, broadly conceived, from both undergraduates and postgraduates."

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  The latest two volumes in the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, The Taft Court: Making Law for a Divided Nation, 1921–1930, by Robert C. Post, Yale Law School, and The Hughes Court: From Progressivism to Pluralism, 1930 to 1941, by Mark V. Tushnet, Harvard Law School, are now available as paperbacks from Cambridge University Press.

• The U.S. Department of Justice has announced that a museum devoted to its past will open in July 2026. 

• Anna Snyder on the "odd omission" of lawyers in commemorations of the 250th anniversary of independence (AHA Perspectives). 

• A notice of Maria Fletcher, Charlie Peevers, and Seonaid Stevenson-McCabe's chapter on "Madge Easton Anderson, the first woman in Scotland and the UK to become a professional lawyer," in Celebrating Women in Legal History: Making and Shaping a Discipline (Scottish Legal News). 

• "The 1957 executive order signed by President Dwight Eisenhower to enforce the desegregation of Little Rock Central High School is one of the documents on display at the Clinton Presidential Center at a new exhibit chronicling the history of the 27 amendments to the Constitution" (Arkansas Advocate).    

• Michele Goodwin’s Presidential Address to the Law & Society Association prompted June Carbone to reflect on teaching Johnson v. McIntosh and Dred Scott in the comment Claiming History.

• A Harvard Law Review note: Making the Rules of the Rules of the Game: The Use, Misuse, and Disuse of the Rulemaking Grant in the Act of 1842.

• Robert L. Tsai reviews Cliff Sloan's The Court at War (Washington Monthly). 

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

• ICYMI:  Phillip W. Magness on Justice Thomas's dissent in the IEEPA decision (Law & Liberty). A notice of Vernon Burton's talk, “The First Amendment and Lincoln’s Constitutional Legacy" at Clemson's "week of celebrating First Amendment rights and history" (Clemson News). Tarun Choudhury on Sir Garfield Barwick (Legal Service India).  Ernie Walton thinks that Originalists Need the Classical Legal Tradition (Public Discourse).

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

Borwegen and Mehrotra on the OBBBA's Tax Provisions in Historical Perspective

Amanda Borwegen and Ajay K. Mehrotra, Northwestern University Pritzker School of Law, have posted The Beginnings of the One Big Beautiful Bill Act: Placing the 2017 Tax Cuts and Jobs Act in Historical Perspective, which appears in the Cornell Law Review Online:

On July 4, 2025, President Donald J. Trump signed into law the One Big Beautiful Bill Act (OBBBA). This new law was built on the foundations of its immediate predecessor, the 2017 Tax Cuts and Jobs Act (TCJA). This Essay examines the historical roots and contemporary implications of these two laws. It argues that both acts reflect continuities and ruptures in the recent history of U.S. tax law and fiscal policymaking. On the one hand, the two laws are a continuation of decades long trends in American tax policy—trends marked by persistent tax cutting, increasing partisan polarization, and a growing disregard for fiscal responsibility. Yet these two laws also depart from earlier episodes marked by bipartisan efforts to address fiscal challenges through compromise and revenue-conscious reform.

To highlight the continuities and ruptures, the Essay further analyzes three key historical analogs: (1) the Bush tax cuts of 2001 and 2003, (2) the 1990s Omnibus Budget Reconciliation Acts, and (3) the 1983 Greenspan Commission on Social Security Reform. While earlier tax laws established the partisan use of reconciliation and temporary tax relief, the TCJA and OBBBA expanded this model into permanent, deficit financed legislation. In contrast, the Omnibus Acts and Greenspan Commission exemplified bipartisan efforts to address fiscal challenges through compromise and revenue conscious reform.

The goal of this Essay is not to explicate the detailed provisions of the two new laws. Rather, our objective is to provide a broad retrospective look at how we have arrived at this historic and extraordinary moment. The historical trends explored in this Essay suggest that we may be entering a new era of tax law and fiscal policymaking—one defined by ideological entrenchment and legislative expediency rather than bipartisan cooperation and fiscal responsibility. By placing the TCJA in historical perspective, we identify and analyze some of the early beginnings of the OBBBA and other historical analogs, with the hope of better understanding the new law and perhaps future tax and spending legislation. 

--Dan Ernst 

Siegel on the Originalist Case for Prenatal Personhood

Reva Siegel, Yale Law School, has posted It's Alive! When the Original Meaning of "Person" Protected by the Fourteenth Amendment Is Not a Fixed, But Living Word:

This Article examines an originalist argument for prenatal personhood—that life from conception is included within the original public meaning of the “person” the Fourteenth Amendment protects—advanced by Josh Craddock, the most prominent proponent of the originalist-personhood claim in the years before and after Dobbs. Under the original public meaning of the Fourteenth Amendment, Craddock claims, the “preborn” are persons entitled to due process and equal protection of the laws so that homicide statutes should apply to “preborn” as well as born persons.

The Article begins by evaluating Craddock’s argument for the original public meaning of person on its own terms, and identifies fundamental flaws in the way Craddock uses dictionary evidence and addresses the textual and historical context in which the Fourteenth Amendment employs the term “person.”  It then shows that Craddock is reasoning about abortion inside contemporary frameworks and not as nineteenth-century Americans did. (Craddock’s argument employs a language of personhood that opponents of abortion only began using as they entered into struggles over the Constitution in the era of Roe; Craddock draws on “substantive” originalist methods and advances equal-protection arguments about homicide law that opponents of abortion did not advocate until the twenty-first century, in the era of Dobbs

In concluding, the Article situates Craddock among abortion “abolitionists” who support legislation that provides equal protection to unborn persons by applying homicide law to women who obtain abortions and those who assist them. Abolitionists defend their carceral equal-protection arguments by appeal to constitutional memory (e.g. “person,” Lincoln; Frederick Douglass’s North Star) and in openly religious terms.

--Dan Ernst 

Schmidt and Funk on the Supreme Court's "Equity Docket"

Thomas P. Schmidt and Kellen Funk, Columbia Law School, have posted The Equity Docket, which is forthcoming in the NYU Law review:

The Supreme Court has two sides. On its ordinary docket, the Court answers questions of law after briefing and oral argument. On its extraordinary docket, the Court fields applications from litigants asking it to equitably set the status of a new law or executive action while a lawsuit is pending. Only a decade ago, the equity side was an obscure backwater of Supreme Court practice; today it is where the Court confronts some of the most contested and consequential public law disputes. This aspect of the Court’s work has taken on various labels—the shadow docket, emergency docket, interim docket, to name a few. This Article proposes the “equity docket.” That term best captures what is distinctive about this growing part of the Court’s business, and helps us to get a normative handle on where the Court has gone right—and wrong.

Any judicial practice grounded in equity will be vulnerable to the charges of arbitrariness and lack of transparency; those critiques are as old as John Selden’s rebuke about the chancellor’s foot. And variants of those critiques have been ubiquitous in discussions of the equity docket. Historically, though, equity was able to reform itself successfully in response to these charges. Our basic contention is that the Court has assumed a far-reaching new form of equitable jurisdiction without also accepting the historical guardrails that both limited and legitimated equity.

The Article makes three contributions. First, it links the emergence of the equity docket to the Court’s broader engagement with the history of federal equity in recent years—what some have called the “new equity.” Second, it argues that the Court has lost sight of important constraints that kept equity in an adjectival position. And finally, it suggests that the Court has impoverished the inputs of equitable decisionmaking by relying almost exclusively on hastily formed predictions about the merits. In place of the Court’s current approach, we propose a model of a more objective, “filtered” conscience, drawn from the history of equity, that would give proper weight to precedent and keep the equity docket from engulfing the Court.

--Dan Ernst 

Sobkowski on Trump and Youngstown

Patrick J. Sobkowski, Marquette University, has posted Presidentialism at the Highest Ebb: Executive Power in the Age of Trump, which is forthcoming in the University of Dayton Law Review:

On July 1, 2024, the Supreme Court decided Trump v. United States. In a 6-3 decision, the Court held that presidents are absolutely immune from criminal prosecution for official acts taken pursuant to his “conclusive and preclusive” constitutional powers. Trump represents a watershed moment in the Supreme Court’s separation of powers jurisprudence. Critics worried that the Court’s decision put the president above the law. Because Trump creates a constitutional rule that places the president’s powers above those of Congress, the decision presents an interesting opportunity to contrast it to another famous separation of powers decision.

Youngstown Sheet & Tube Co. v. Sawyer is perhaps the most important separation of powers case the Supreme Court has ever decided. After President Harry Truman decided to seize the nation’s steel mills to avert a labor strike, the Court struck down his executive order as beyond the powers of the president. The Court’s decision in Youngstown stands for the propositions that (1) the president is not above the law, even in national emergencies; and (2) much of the president’s power flows not from implied or inherent constitutional authority, but from statutory authorizations from Congress.

This Article presents the first comprehensive comparative analysis of Trump and Youngstown. A close reading and attention to the historical and political context surrounding both cases reveal both striking similarities and differences. I employ archival evidence to shed light on the arguments presented by the Truman administration in defense of the seizure, as well as public reaction to the decision. The Court’s shift from functionalism to formalism in the period between the two cases also carries important implications for the separation of powers going forward. 

--Dan Ernst 

The Decline of Congress: An ICH Seminar

US Capitol (NYPL)

The New York Historical’s Bonnie and Richard Reiss Graduate Institute for Constitutional History has announced its spring seminar, “The Decline of Congress in American Politics and Law.”  The instructors are K.C. Johnson, professor of history at Brooklyn College and the CUNY Graduate Center, and Kevin J. McMahon, the John R. Reitemeyer Professor of Political Science at Trinity College. The seminar be conducted in person at The New York Historical, 170 Central Park West, New York, NY 10024, on Fridays, May 1, 8, 15, and 29, 2026, from 2 to 5 pm ET.  Although in-person attendance is encouraged, “livestream participation will be offered to admitted students who do not live in the New York Metropolitan Area or who are unable to attend a class in person.”  The deadline for applying is April 10, 2026.  

The ICH seminar is convened twice yearly and is designed for “graduate students, junior faculty, and other educators, in history, political science, law, and related disciplines.” There is no tuition. More information about the seminar and how to apply is here.

[A disambiguation note: The Institute for Constitutional History at the New York Historical ought not to be confused with the Institute for Constitutional Studies at GW Law, directed by Maeva Marcus.]

--Dan Ernst

The YJLH Symposium on Gienapp's "Against Constitutional Originalism"

We have previously noted some contributions to the symposium on Jonathan Gienapp’s Against Constitutional Originalism in the Yale Journal of Law and the Humanities.  The complete symposium is now available open-access online:

Can Originalism Survive Jonathan Gienapp?
Thomas B. Colby

Gienapp’s Big Book: Conceptual Rupture, Modernism, and the End of Originalism
Logan Sawyer

Birthright Citizenship, Unwritten Constitutionalism, and the Nature of the Union
John Mikhail

Against Against Constitutional Originalism: A Critique of a Critique
Mark Peterson

Essential Fidelities
Lawrence Lessig 

The Free Constitution: The Real Genius of the Constitution
Mary Sarah Bilder

The Obsolescence of the Originalism Battles
John Witt

History or Memory?: Claims on the Past in Constitutional Argument Over Originalism, Civil War/Reconstruction, and MAGA
Reva B. Siegel

In the Beginning There Was Positive Law: Section 25, Calder v. Bull, and Constitutional Continuity
Kevin C. Walsh

Historians and Originalists
Cass R. Sunstein

Yes, The Founders Were Originalists
William Baude and Stephen E. Sachs

The Constitution and Historical Rupture
Jonathan Gienapp

An Essay Collection on Work, Capitalism and Democracy Since the New Deal

Work, Capitalism, and Democracy: The United States Since the New Deal, edited by Elizabeth Tandy Shermer, has just been published by the University of Pennsylvania Press:

Changes to the meaning and nature of work, capitalism, and democracy during and after the New Deal have been contested from the mid-twentieth century to the present day. Rather than rehashing the familiar, tidy story of a Democratic coalition coming together in the 1930s only to be felled by conservative movements in the 1970s, this volume instead emphasizes that the prosperity many white American families enjoyed did not stop the fights over whose work would be recognized, how corporations would be regulated, and whose democratic rights would be protected, both on and off the job. Cultural representations of the ideal worker, legal battles over workplace rights, political standoffs over inflation policies, dire warnings against too much regulation, and abuses of the tax code indicate there never really was a consensus on how democratic the country, its economic system, and its workplaces would be.

As the collected essays suggest, backlash does not seem the right word to describe the challenges left-leaning politicians, environmental activists, and immigrants faced in the late twentieth century, when managing supply chains became far more lucrative than manufacturing the goods being shipped around the world. Using the broad categories of work, capitalism, and democracy to reinterrogate the past, contributors contend, is the only way to understand today’s conflicts over the future of how Americans will work, how capitalism will function, and how the country will be governed.

Essays of interest to legal historians include Jean-Christian Vanel, “‘The Nine Judges Have Gone Home’: Liberals, the 1949 “Closed Shop Cases,” and the Undermining of Union Democracy; and Reuel Schiller, “‘The Magnanimity of Disorder’: Counterculture Intellectuals and the Rise of Anti-Statist Thought in Late Twentieth-Century America.” 

--Dan Ernst 

Bauer to Lecture on Reparations for Victims of Brazil's Dictatorship

 [We have the following announcement.  DRE.]

Nos complace informaros de la celebración del próximo Coloquio de Historia del Derecho de la UAM. En esta ocasión contaremos con la presencia de la profesora Caroline Silveira Bauer, Universidade Federal do Rio Grande do Sul, que nos hablará de “Las posibilidades de reparación de crímenes cometidos por empresas y particulares durante la dictadura de 1964 en Brasil.”  [“The possibilities of reparation for crimes committed by companies and individuals during the 1964 dictatorship in Brazil.”]  Adjunto a este correo se puede encontrar un resumen de su propuesta, junto con la programación prevista para este ciclo de Coloquios.

El encuentro se celebrará el próximo viernes 13 de marzo, a las 11:30 h, en el seminario VI de la cuarta planta de la Facultad de Derecho. Asimismo, también se podrá seguir a través del siguiente enlace: Coloquios HD | UAM | Reunión-Unirse | Microsoft Teams.  

Tycko's "Captured Consent"

Sonia Tycko, Lecturer in History in the School of History, Classics and Archaeology at the University of Edinburgh, has published Captured Consent: Contract Labor in English Charity, Colonization, and War, 1600–1700 (Cambridge University Press).  It appears in the series Studies in Legal History, sponsored by the American Society for Legal History:

Consent has been celebrated as a guarantor of liberty and self-determination; however, its history suggests a different meaning. In this book, Sonia Tycko reconstructs the coercive role of contracts in early modern English labor. The long-term, long-distance, and high-risk nature of pauper apprenticeships, transatlantic indentured servitude, military conscription, and prisoner of war labor drove some English people to develop consent into a tool of labor coercion. Coercion could constitute valid consent for people whose social position, age, and gender fit the profile of natural laborers. Many subordinates experienced consenting – or the presumption of their consent – as a form of acceptance of, or even submission to, their position. This book reveals that early modern labor was one of the fields in which ideas of freedom of contract, voluntariness, and enticement developed.

--Dan Ernst

Kessler on Separation of Powers and the Draft

Jeremy Kessler, Columbia  Law School, has posted Selective Service and the Separation of Powers, which is forthcoming in the Boston University Law Review:

This Response argues that the secularization of conscientious objection during the Vietnam War is part of a larger and longer-running story. That story is about pacifists and draft resisters, but it is also about how the military draft destabilized the separation of powers, leading the federal judiciary to encroach upon congressional and administrative authority while fracturing the executive branch. The primary legal weapon deployed in these inter- and intra-branch conflicts was creative statutory interpretation. Congress rarely codified winning interpretations because congressional majorities usually opposed them. Accordingly, the statutory text itself -- whether in 1948, 1956, 1967, or today -- tells us little about how the federal justice system regulated the draft in light of that system's “underlying concepts of procedural regularity and basic fair play.” 

If a future Congress heeds Professor William Aceves’s call to codify judicial recognition of secular conscientious objection, it should thus take the opportunity to confront a more basic question: whether the Military Selective Service Act as written is consistent with contemporary concepts of “procedural regularity and basic fair play.” The answer to this question is likely "no," precisely because those concepts are consistent with -- and at times directly indebted to -- the norms elaborated by judicial and executive critics of draft administration. Yet to amend the draft law to reflect those critics' favored norms might frustrate any future war fought with drafted soldiers. As this Response shows, the legal preferences of federal judges and Justice Department officials played a significant, and perhaps determinative, role in the erosion of the draft’s capacity and legitimacy between WWII and Vietnam. 

Today, appalling casualty rates in Ukraine have led some factions of the military and national security bureaucracy to conclude that the outcome of any prolonged military conflict with Russia, China, or even, perhaps, Iran will depend on drafted soldiers. Whether such a conflict – or the interpretive methods used to adjudicate resistance to it – would break the historical pattern of official draft resistance is an open question. But the fate of both secular conscientious objectors and the Selective Service System as a whole will depend on the answer.

--Dan Ernst 

Murray on Judicial Review for Error of Fact

On March 17, 2026, from 18:00-19:30, Philip Murray, Robinson College, Cambridge, will deliver the lecture Ducks or Rabbits? The History of Judicial Review for Error of Fact.  The event will take place in the Keeton Room, Bentham House, Endsleigh Gardens, London.  It is sponsored by the UCL Law's Legal History Research Group and is open to all who register here.  

Contemporary English administrative law has got itself in a mess over the distinction between
errors of law (generally reviewable) and errors of fact (generally not renewable). Perhaps the low point came in R (Jones) v First-tier Tribunal [2013] 2 AC 48, where the Supreme Court suggested the distinction between the two types of error can be manipulated by the courts to control the availability of judicial review. As such, a factual finding made by an administrator has become a version of the famous duck-rabbit illusion: whether a court sees an error of law or error of fact depends on its psychological predisposition to review.

Looking back over the early history of English administrative law, the courts seemed to have less  of a problem in review for error of fact. Whether an error made by an administrator was of law or of fact didn’t really matter that much. The key issue was what the significance of that error was to the decision-maker’s power to act.

At a time when legal historians and contemporary public law scholars are increasingly turning to the history of administrative law as a site for productive study, this paper seeks to review the history of error of fact review from the middle of 17th century through to the early part of the 20th century. It will chart developments in the jurisprudence of the Court of King’s Bench when reviewing factual errors under the prerogative writs, especially certiorari and prohibition, and try to identify what really led to modern law’s confusion over error of fact review.

--Dan Ernst 

Davies on Pollock's Humor

Ross E. Davies, George Mason University Antonin Scalia Law School, has posted A Wig Without a Home: The Comedic Wisdom of Sir Frederick Pollock, which appeared in the Green Bag 2d:

Frederick Pollock (1845-1937) was the Green Bag’s kind of scholar. The first half of this paper consists of a sketch of his career and character, followed by a closer look at his sense of humor and the roles it played in his work. The second half of the paper is in two sections. First, there is a full republication of the text of a tiny book — a short story by Pollock titled “Queen Titania’s Chancellor”— that for nearly a century sat unnoticed on a bookshelf in the library of the Queen’s Dolls’ at Windsor Castle, until Elizabeth Clark Ashby (Curator of Books and Manuscripts in the Royal Library at Windsor Castle) gave Pollock’s miniature masterpiece some long-overdue and well-deserved attention in her 2024 book (full-sized), “The Miniature Library of Queen Mary’s Dolls’ House.” Second, there is a close (but incomplete) reading and analysis of that tiny text. If there are any lessons to be drawn from this paper, perhaps they are that greatness need not always be cloaked in dignity, and that Jack Point was not the only wit who could “teach you with a quip, if I’ve a mind” or “trick you into learning with a laugh.”

--Dan Ernst 

A Special Issue on Legal Humor

[We have the following CFP.  DRE] 

Touro Law Review: Special Issue on Legal Humor

Are you funny? Were you the life of the party in law school? Do you make your faculty colleagues or law firm partners laugh out loud? The Touro Law Review is planning a special issue on "Legal Humor" and seeks your work.

We are looking for short pieces (maximum of 10 pages double-spaced) that take a humorous look at any aspect of the law, including law schools, the practice of law, or the courts.

Pieces can take any form, including descriptive, expository, narrative, or technical. Poetry, screen writing, song writing, and other forms of creative writing are welcome as well.

Law professors, lawyers, judges, and current law students are eligible to participate. Non-lawyers also are welcome to submit their work.

Pieces are due by Tuesday, September 1, 2026, and should be e-mailed as a Word attachment to all three of the issue's Faculty Coordinators:
    Associate Dean Rodger D. Citron (Touro University):  rcitron@touro.edu 
    Professor Rena C. Seplowitz (Touro University):  rseplowi@touro.edu
    Professor Robert M. Jarvis (Nova Southeastern University):  jarvisb@nova.edu

The Faculty Coordinators will review all pieces that are submitted by the deadline. Acceptance decisions will be sent out on or before December 1, 2026.

It is expected that the accepted works will appear in Volume 41, Issue 5 of the Touro Law Review, which currently is set to be released by July 1, 2027.

Please keep in mind: All pieces will be judged on their originality, novelty, and general appeal to a legal audience. Previously published pieces will not be accepted. Pieces that seriously examine the use of humor in legal matters or proceedings also will not be accepted. Only legal humor pieces will be considered.

Questions? Please e-mail the Faculty Coordinators at the e-mail addresses listed above.  We look forward to laughing at your work!

[Um: Was that "at" or "with"?  Possibly both?  DRE]

Allison Tirres to Co-Edit AJLH

Congratulations to Allison Brownell Tirres, University of San Francisco School of Law, and to the American Journal of Legal History on Professor Tirres's selection as Co-Editor-in-Chief of the AJLH!  The Oxford Journals' announcement is here.

--Dan Ernst 

MPI Seeks a Doctoral Student

[We have the following announcement.  DRE.]

The Max Planck Institute for Legal History and Legal Theory in Frankfurt/Main is a world leading research institute with a staff of more than 150. Its three departments with more than 70 scholars, the unrivalled collections of its specialized library and its numerous national and international co-operations make it the central research hub for a global scientific community investigating the past, present and future of legal regimes.

We are looking to recruit as of 1 November 2026 one Doctoral Student (m/f/d) for the DFG Research
Training Group "Organizing Architectures¨. The DFG Research Training Group "Organising Architectures" (3022), in which the Goethe University Frankfurt/Main, the Technical University of Darmstadt, the University of Kassel and our institute are involved, focuses on architecture as the organized, collective shaping of modern societies through institutions, networks and discourses. This focus is based on the assumption that observation of social orders cannot b e separated from architectural formations and that these, like the respective architectures, arise through specific, complex social negotiation processes. A detailed description of the graduate school and more detailed information on pplications can be found [here].

We are also offering an online information event where we will present the research concept, the study program and the future working methods of the college, and will of course be available to answer any questions.  Registration is not required. The link to participate can be found on the website mentioned above. 

Your profile.  We welcome applications that demonstrate a serious interest in legal history or in a historical discipline that addresses questions of normativity, as well as a willingness to combine this with the thematic fields ofarchitecture and urban planning.

We expect a qualified, above-average university degree in law or history. Additionally, we expect  a willingness to work in an interdisciplinary manner and ideally initial experience in this, the ability, eagerness and readiness to work in a team, presence at Frankfurt and good German or English skills, as well as the willingness to learn the other language.

Our offer.  You will have unlimited access to our world leading library and a multitude of databases. You will be provided with a work space and will receive extensive academic and administrative support. There are generous grants for research trips to archives and libraries, as well as for attending conferences. A variety of personal and career development opportunities is available, including funding for German language classes. We offer an attractive and international work environment with an unparalleled research infrastructure and a good working atmosphere. The job is a full time position (currently 39 hours per week). While you will be based in Frankfurt/Main. The payment is currently £á3,185.72 per month (gross) in the first year, which equals approximately £á2,163 after taxes in the first year and £á2,301 in the second year, depending on family circumstances, plus a special annual payment.. The position is a fixed-term appointment for three years, with the possibility of renewal for a further year.

We welcome all applications, regardless of nationality, ethnic and social background, religion
 and age. We are striving to increase the proportion of female researchers and staff and therefore particularly encourage women to apply. Severely disabled people with the same abilities and qualifications will be given priority. The college also offers support in balancing family and work; there are generous opportunities for mobile working (at present, up to 40 per cent per month). Due to the collaborative nature of the interdisciplinary group, active participation in the qualification and study programme of the research training group is expected.

Application procedure.  Please submit the following application documents in German or English:

• A cover letter explaining your motivation for pursuing a doctorate in the Research Training Group, stating in which of the participating disciplines you are pursing your doctorate;
• CV with information on your course of study and language skills and your academic certificates (scanned).

Please also submit a separate, anonymized file (max. 1 MB) containing a detailed research expose of a maximum of 3 pages plus a bibliography for a doctoral project taking into account the academic program of the Research Training Group. Please indicate here in which supervisor(s) from among the Principal Investigators of the Research Training Group you prefer. Your application must be submitted online via our application form by the closing date of 7 April 2026. The selection interviews will take place in the beginning of June 2026.

Contact.  Informal enquiries may be directed to PD Dr. Peter Collin (collin@lhlt.mpg.de) or - as far as it generally concerns the activities of the Research Training Group ¡V to the coordinator of the research training group, Friederike Weidner (f.weidner@kunst.uni-frankfurt.de). For questions as to the terms and conditions of employment please contact Anna Heym (jobs@lhlt.mpg.de).

US Legal History VAP at University of Florida

[Via H-Law, we have the following announcement.  DRE] 

The Department of History at the University of Florida, College of Liberal Arts and Sciences, invites applications for a full-time, time-limited, nine-month, non-tenure-accruing position at the rank of Visiting Assistant Professor, beginning August 16, 2026, in United States legal history. 

The successful candidate will teach five courses during the academic year, and should be able to contribute to the Department of History’s intellectual growth and emphasis upon interdisciplinary and collaborative research.  The salary is competitive and commensurate with qualifications and experience, and the compensation includes a full benefits package.  UF offers a strong benefits package for eligible faculty appointments, including health insurance, paid leave (as applicable), and retirement options.... 

Applicants should have completed a Ph.D. in History by August 15, 2026.  We have a preference for candidates whose scholarship and teaching emphasize 19th and/or 20th century US history.  The successful candidate will be expected to demonstrate a strong commitment to teaching a diverse body of undergraduate and graduate students in Gainesville, Florida.  For full consideration, applications must be submitted online: Details - Visiting Assistant Professor, US Legal History

A complete application includes:

• Letter of application summarizing the applicant's qualifications, interests, and suitability for the position
• A statement on teaching goals
• A complete curriculum vitae
• Names and contact information for three professional references 

Application must be submitted by 11:55 p.m. (ET) of the posting end date. Review of applications will begin on March 24, 2026 and will continue until a successful applicant is selected.

All candidates for employment are subject to a pre-employment screening which includes a review of criminal records, reference checks, and verification of education.

The selected candidate will be required to provide an official transcript to the hiring department upon hire. A transcript will not be considered “official” if a designation of “Issued to Student” is visible. Degrees earned from an educational institution outside of the United States require evaluation by a professional credentialing service provider approved by the National Association of Credential Evaluation Services (NACES), which can be found [here].

Contact Information: Professor Ben Wise, benwise@ufl.edu

Weekend Roundup

• Over at the LPEBlog: an interview by Veena Dubal (University of California, Irvine) with Aziza Ahmed (Boston University) on her new book Risk and Resistance: How Feminists Transformed the Law and Science of AIDS (Cambridge University Press). 

• From In Custodia Legis: "David Hoffman: Early America’s Dark Horse Law Professor and the Natural Law." 

• Via H-Law: a "Call for Contributors: Digital Exhibits on Revolutionary-Era Texts (forgingUS)" 

• From the New York Amsterdam News: "The Legal Aid Society marks 150 years with new exhibit" -- noting upcoming programming at the New York Historical. The NYT story is here. 

• 
  "Read an exciting article on the legal history of Britain or the British empire published in 2025? Consider nominating the article to the ASLH Sutherland Prize for 'the best article on the legal history of Britain and/or the British Empire published in the previous year.' Self-nominations are also accepted. The deadline is June 1" (H-Law).

• ICYMI: Keith Whittington on the Historic Case for Birthright Citizenship (Dispatch). Hettie V. Williams on Black Women and the Brown Decision (Black Perspectives).  The California Judicial Center Library celebrates the "impactful women" of the state's legal history (EIN Presswire).  Julie Suk on the Declaration of Independence at 250 (Fordham Law News).  On that reunion of the descendants of the litigants in Plessy v. Ferguson (Tulane Law).  Rachel F. Seidman on Women Who Changed the Laws Shaping Economic Independence (Smithsonian). The Unique Protections of the Pennsylvania Constitution (JDSupra).

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

Cannan on the King of the Treatise Writers

John Cannan, Villanova University Charles Widger School of Law, on Joel Bishop's Reign as King of the Treatise Writers and What it Means for Persuasive Authority:

Joel Prentiss Bishop (wiki)

What does this say about law practice and legal education, which has long embraced and professed a perception of persuasive authority, mostly ruled by a rigid source hierarchy, that does not work and likely never did? Recently, there have been challenges to this status quo. The most comprehensive was made by Professor Amy Griffin in her article, Dethroning the Hierarchy of Authority, in which she demonstrated the necessity for a new understanding of persuasive authority and how to go about making one. This paper buttresses and strengthens her arguments by examining a persuasive authority case study-an authoritative biography, or rather a biography of the authority of Joel Prentiss Bishop, one of the greatest treatise writers of the 19th century. This biography is a concrete example to bolster Griffin's critique that persuasive authority is a vast and shifting field, with multiple influences and impacts that must be described in a new and more flexible way. The course of this article is as follows. First, it describes the nature and current understanding of persuasive authority and Griffin's challenge to the existing order. Griffin's call for a more pluralistic framework is combined with the observations of librarian and philosopher Patrick Wilson to suggest a means to better understand persuasive authority. Parts II-IV tell the history of Bishop's rise as a treatise writer and authority; the slow decline of his authoritative status after his death; and his recent resurrection as an authority, primarily by the United States Supreme Court. Part V demonstrates how Bishop's history as an authority supports Griffin's imperative for a new understanding of persuasive authority, especially as legal research and practice are increasingly influenced by new artificial intelligence (AI) tools. 

--Dan Ernst

Leshem on Ships as Legal Persons

Ela A. Leshem, Fordham University School of Law, has posted Normative Transplants: The Case of Ships as Legal Persons, which is forthcoming in Legal Personhood in Private Law, edited by Paul B. Miller, Christopher Essert and Eva Micheler (Cambridge University Press 2026):

(credit)

What does the legal personhood of ships contribute to theories of legal persons? Ships became legal persons in U.S. law through a process of “normative transplantation.” I coin this term to describe the migration of concepts between normative orders. In the case of ships, the conception that they are persons migrated from the normative order of aesthetics to that of law. When U.S. judges in the nineteenth century developed the doctrine of ships’ legal personality, they drew on longstanding personifications of ships in literature and culture. Influential judges in the twentieth century also traced the origin of ships’ legal personality to a migration from the normative order of religion.

This account of ships’ legal personality as a normative transplant is significant for theories of legal personhood in ways that apply both to past legal persons, like humans and corporations, and to potential future legal persons, like animals, parts of nature, and AI systems. First, the account reveals that artificial legal persons created for instrumental reasons, such as ships and corporations, can—like natural persons—have normative and ontological grounding outside of law. Second, the account shows that calling an entity’s legal personhood “fictional” amounts to a normative and not just a descriptive claim. Finally, the account encourages legal theorists to see that key concepts—such as personhood—migrate between law and a broad range of normative orders, including morality, aesthetics, and religion.  

--Dan Ernst 

Aikin on US v. Neeley

Joshua Aiken, American Bar Foundation Doctoral Fellow in Law & Inequality, has posted She Had Slain Her Favorite: Race, Gender, Violence, and the Rule of Law in the Military-Occupied South:

This Article excavates the 1865 trial United States v. Temperance Neely to analyze how emergent legal cultures in the military-occupied South calcified racial slavery's logic despite formal emancipation. Through examination of previously unanalyzed court proceedings, I demonstrate how this case illuminates three interlocking dimensions of postbellum jurisprudence: legal systems simultaneously acknowledged Black life while preserving white authority through plantation logics that naturalized Black women's subordination; violence against Black women and extraction of their labor became integral to reproducing social conditions necessary for racial-economic order; and Black witnesses' testimonies, though formally admitted, revealed systemic patterns that rendered Black women's experiences unintelligible within emergent legal frameworks. Drawing on the theoretical insights of Anthony Paul Farley, Saidiya Hartman, and Hortense Spillers, I observe the persistence of 'white-over-black' ideology through an "American grammar" of formal equality, liberal rights, and the "law's calculation of personhood.” Situating the Neely case in scholarship on the Reconstruction Era, Marxist feminism, Black women’s history, I consider how formal legal reasoning relied on notions of gendered sentiment, character, and subjectivity to privilege white sentiment and justify racial unfreedom. Attending the immediate post-surrender South, my reading emphasizes how legal actors allowed Black women’s bodies to be contested sites of meaning, through which categories of race, gender, and labor might be explored. Challenging conventional understandings of the rule of law, I reconceptualize the rule of law as deference to legal institutions that transmute historical subjugation into contemporary unfreedom sanctioned by the state. By reading “along the bias grain” of the legal archive, this investigation reveals how postbellum legal frameworks positioned Black women as objects rather than subjects. This case illuminates the constitutive role Black women’s labor played in reconstructing American society and the continuities between nineteenth-century rationalization of violence and the ability of contemporary legal systems to respond to Black people’s injuries and claims. 

--Dan Ernst 

Gans on Black Conventions during Reconstruction

David Gans, Constitutional Accountability Center, has published Forgotten Framers: Black Conventions and the Second Founding, which is forthcoming in the Stanford Law Review:

This Article tells the forgotten story of the Black Conventions of the Reconstruction era, examining convenings of Black Americans across the nation during the time when the Thirteenth, Fourteenth, and Fifteenth Amendments were under consideration. Invoking the promises of liberty and equality contained in the Declaration of Independence, these conventions insisted on Black Americans' right to respect and dignity, fought for control of their bodies and their right to be full members of the body politic, including at the polls, and demanded an end to racial prejudice and violence that kept them in a subjugated status. Through their relentless activism, Black Americans repeatedly pressed white Americans to make the United States into a multiracial democracy that guaranteed fundamental rights, protection, and equal citizenship as an American birthright. In large measure, the Amendments that produced our Second Founding bore the imprint of this constitutional activism. 

While critical to understanding the meaning of the Reconstruction Amendments, this history has never gotten its due. Dominant judicial and scholarly accounts of the text and history of the Reconstruction Amendments privilege elite white understandings, presenting history as if white voices were the only ones that mattered. As this Article demonstrates, this impoverishes our understanding of the Reconstruction Amendments and ignores how the Black Convention movement of the Reconstruction era shaped the transformational guarantees in those Amendments. Grappling with the work of the Black Conventions can help generate an inclusive constitutionalism, deepen our understanding of the text and history of the Reconstruction Amendments, provide resources to resolve current constitutional disputes, and help recover fundamental constitutional principles the Supreme Court has long betrayed.  

--Dan Ernst 

White on Souter

G. Edward White, University of Virginia School of Law, has posted Taking Stock of Justice Souter, which is forthcoming in the Catholic University Law Review:

David Souter (LC)

With Justice David Souter’s death in May, 2025 there has been a revival of interest in his life and career on the Supreme Court, but Souter remains largely unknown to the general public and there has been a paucity of efforts to characterize his performance as a justice. The result has been the presence of some uninformed conventional wisdom about Souter’s tenure on the Court. Souter has been characterized as a “stealth nominee,” one with a very sparse record as a lower court judge who deliberately hid his ideological tendencies during his nomination and was consequently expected to be a predictable conservative but turned out not to be so. It has also been suggested that Souter, after a first Term in which he regularly voted along with right-leaning justices, “moved left” after the appointments of Ruth Bader Ginsburg and Stephen Breyer in the early 1990s, justices whose liberal voting patterns influenced Souter. Finally, it has been claimed that Souter’s nomination ushered in a sea-change in the process of nominating justices: one in which the primary goal of nominating presidents and confirming senators has been to identify ideologically predictable justices, “no more Souters.”

--Dan Ernst 

CFP: Annual Forum of Young Legal Historians

[Via ESCLH Blog, we have the following CFP.  SRE]

Annual Forum of Young Legal Historians: “Values in law through the ages,” Adam Mickiewicz University, Poznan

Legal traditions, community, harmonization and integration have been the hallmarks of the Association's Annual Forums for 29 years. Values in law, which is the main topic of the 30th anniversary edition of the Meeting of Young Legal Historians, is an excellent opportunity to look at the issues discussed at previous forums from a wider perspective. The legal maxim Ubi societas ibi ius, which dates back to ancient times, is a simple affirmation of common sense: wherever there are people, wherever there is a community, wherever relationships and bonds are formed, there must be a certain order, which is referred to as ius — law. The conference “Values in law through the ages”, organized by the Faculty of Law and Administration and the Faculty of History of the Adam Mickiewicz University in Poznan, will be a space for discussion on the transdisciplinary issues of axiological matters present in various cultures and legal systems.

Conference theme.  We are planning to include various contexts for the use of the main topic at the conference. We invite you to submit proposals for papers from various fields of law and other fields related to law, clearly linked to historical and legal analysis and the topic of the conference. The proposed topics, which are not exhaustive, include in particular issues such as principles of law, rule of law, legal unlawfulness, revolutions in law, crises of values in law, inter-systemic and intra-systemic contrasts of values, history of human rights, theoretical concepts of values in law or constitutional protection of values.

Requirements for submitting abstracts.  We invite submissions on essentially any aspect of the values in the legal history. Authors may approach the topic dogmatically, historically or comparatively, they may focus on a specific period and place or present general reflections on the axiology of law in a historical context. Authors are encouraged to use innovative approaches and transdisciplinary research.

If you would like to present a paper during the conference, please send an application including an abstract of not more than 300 words and your CV to aylhforum2026@amu.edu.pl before 30 April 2026. Acceptance letters will be sent out by the end of May. Please send documents in PDF format.

In justified individual cases, the forum's scientific committee may consider abstracts earlier. To do so, please contact the organizing committee, indicating “EARLY APPLICATION” in the subject line of your message.

Presentations have to be in English and should not exceed 15 minutes each. Since one of the primary goals of the conference is to allow young researchers to get to know each other personally, we only accept presentations in person.

Publication.  We intend to publish the presented papers. The organizing committee intends to resume publication with Peter Lang Publishing, which was associated with the first editions of our forums. Depending on the number of interested parties and financial possibilities, we plan to publish another volume of the Yearbook of Young Legal History, or a monograph, or a special issue in a Polish academic journal. The related details will be sent in advance to the accepted participants.

Conference fee.  Two types of conference fees are anticipated for this year's forum:

1. The conference fee without post-conference publication costs is 200 € and does not include travel or accommodation costs.
2. The conference fee including post-conference publication costs is 300 € and also does not include travel or accommodation costs.

After the announcement of the abstract selection results on May 31, 2026, the Organizing Committee will contact the selected participants with further information on registration by paying the conference fee.

Other information.  The Forum will be in English, and each paper presentation should not exceed 15 minutes, so there is time for discussions in the last part of each panel. 

The submission deadline is 30th April 2026. Abstracts received after the submission deadline will be declined. Please indicate in your application the type of participation (without publication or with publication).

Keep in mind that registration is limited to a number of people. Therefore, early registration is strongly recommended!

Event organization.  The forum will last four days: the first day will be a welcome day with the participation of keynote speakers and a special guest, the next two days will feature many parallel sessions, and on the last day we are planning a jubilee meeting on organizational matters of the Association for Young Legal Historians.

Our meeting will take place in Poznan, the capital of Greater Poland. The city can be reached by plane or other means of transport (train, bus). We recommend planning your travel and accommodation in advance. The organizing committee will provide recommendations in this regard at a later date.

We look forward to receiving your abstracts and we will uncompromisingly endeavor to provide a conference that is both academically and socially fulfilling. We wish you all the best for this time!

Organizing Committee:

Dawid Szulc, MA, Department of Government Systems Studies and Political and Legal Thought – Committee Chair
Patryk Mackowiak, MA, Department of Source Analysis and Auxiliary Historical Sciences – Vice Committee Chair
Fatma Mejri, MA, Department of Government Systems Studies and Political and Legal Thought
Maria Kola, MA, Department of Roman Law, Legal Traditions and Cultural Heritage Law
Szymon Siuda, MA, Department of Public Economic Law
Kamil Gawel, MA, Department of Medical and Pharmaceutical Law at the Poznan University of Medical Sciences

"Performing Law"

Performing Law: Actors, Affects, Spaces, edited by Peter Goodrich, Cardozo School of Law, Anna Jayne Kimmel, George Washington University, and Bernadette Meyler, Stanford Law School (Cambridge University Press), is now available open access on Cambridge Core:

The words 'all rise' announce the appearance of the judge in the thespian space of the courtroom and trigger the beginning of that play we call a trial. The symbolically staged enactment of conflict in the form of litigation is exemplary of legal action, its liturgical and real effects. It establishes the roles and discourses, hierarchy and deference, atmospheres and affects that are to be taken up in the more general social stage of public life. Leading international scholars drawn from performance studies, theatre history, aesthetics, dance, film, history, and law provide critical analyses of the sites, dramas and stage directions to be found in the orchestration of the tragedies and comedies acted out in multiple forums of contemporary legality.

--Dan Ernst

Chowdhury to Lecture on the British Constitution, Capitalism and Constitutional Change

Tanzil Chowdhury, Queen Mary University of London, will lecture on The British Constitution, capitalism and constitutional change at ANU Law School on March 4 2026 from 1:00pm - 2:00pm:

This talk is from Associate Professor Chowdhury's current book project that examines the transformation of the British Constitution over the last century. His argument is that we cannot understand significant changes to the British constitution without understanding the broader historical developments in capitalist social relations and the significant social antagonisms that have occurred throughout the last 100 or so years. Capitalism is a totality of different social relations and processes oriented around the value form; different social relations (economic, but also political, legal, cultural, moral etc) which are all important to the reproduction of that social totality. 

Contrary to heteronomous theories of constitutional change (including some Marxist ones), this project seeks to understand constitutions (the different institutional combinations of state and social power, subject formations, forms of mediation and characterisations of legality) as having an internal relation with capitalist social relations. In that sense, constitutions cannot be abstracted from capitalist social relations and are in fact, as he will argue, historically specific to capitalism. 

However, even though constitutions are internally related to capitalist social relations, that does not mean that capitalist societies are not fraught with all manner of tensions, contradictions and ruptures. This is not therefore a rigid economistic and deterministic theory of constitutional development, but one which takes seriously the historical distinctness of the legal form, constitutionalism, and the specific work they do (or not) in the reproduction of capitalist social relations. 

Constitutionalism, as he will argue, operates at different levels within the contradictory totality of capitalist social relations. Changes to the British constitution are the results of specific forms of struggle over the reproduction of capitalist social relations. In this paper, he will set out some examples of this theoretical approach and focus on how I will periodise the last century of the British constitution which connect to distinct forms of what I will call historical forms of capitalist constitutionalism.

--Dan Ernst 

Weekend Roundup

• Congratulations to Hardeep Dhillon (University of Pennsylvania), who received the Early Career Achievement Award from the Association for Asian American Studies.  

• The University of Nebraska-Lincoln's notice of Katrina Jagodinsky's NEH grant to "reveal [the] untold history of habeas corpus" (Nebraska Today).  

• Overt at Jotwell, Marin Levy reviews Kevin Arlyck's The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825 (2025). 

• "Reclaiming the Founders’ Frameworks": Stanford Law's notice of Jud Campbell. 

• We've learned of several historians' briefs in the birthright citizenship case, Trump v. Barbara. This one is by Jed H. Shugerman and Evan Bernick, and this one, prepared in cooperation with the Brennan Center for Justice, is by Martha S. Jones and Kate Masur.  Eric Muller's brief describes the recognition of the birthright citizenship of the children of interned Japanese parents without allegiance to the United States.  Keith Whittington's brief includes the heading, "Revisionist History Cannot Hold Water."  And the Cato Institute weighs in here.

• A recording, with a very substantial timeline, of the American Historical Association's congressional briefing on the history of vaccines, with Elena Conis, David Oshinsky, and former ASLH president Michael Willrich. 

• “The Rule of Law and the Common Good,” a conference on March 12 and 13 at Boston College, "will explore the synergy between legal theory and Catholic social thought."

• "A short piece for lay readers" on Youngstown by William Baude, University of Chicago Law.  

• Mary Arden, Lady Arden of Heswall, the former Justice of the Supreme Court of the United Kingdom, will lecture on Magna Carta on Friday, April 24, at Soulton Hall, Shropshire (Star). 

• The Historical Society of Michigan is hosting the virtual event The 1962 Michigan Constitutional Convention: Policy, Politics, and Citizen Engagement, with Doug Brook and Aria Dwoskin, on Tuesday, March 3, at 12:00 p.m.  Free for members; $7 for everyone else.

•  ICYMI: A report of a panel on the New Hampshire Constitution of 1776, with Lorianne Updike Schulzke (Concord Monitor).  The New York State Bar Association notes its sesquicentennial (NYSBA).  Eric Segall argues that "If 'It Takes a Theory to Beat a Theory,' Originalism Loses" (Dorf).  Robert Morton Duncan, the first Black justice of the Supreme Court of Ohio (CNO).

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

Manners and Menand on the Removal Power

Jane Manners, Fordham University, and Lev Menand, Columbia Law School, have posted The Power to Remove For Cause:

This Article reconstructs the common law of for cause removal in the United States. Drawing on extensive new analysis of state and federal materials, it shows that legislators typically paired fixed terms in office with “for cause” removal language to strike a balance: to protect officers from political termination while enabling the discharge of officials unable to carry out their duties effectively. Where a statute conferred a fixed term and authorized removal “for cause,” nearly all courts treated removal as an adjudicatory act—requiring notice, an opportunity to be heard, and de novo judicial review of the legal sufficiency of the asserted cause. By contrast, in schemes lacking fixed terms, some courts treated “for cause” language as merely admonitory, leaving process and review to political actors. Building on these findings, this Article recovers the significance of Reagan and Shurtleff, two largely forgotten Supreme Court cases from the early 1900s. These decisions form the doctrinal foundation on which much of the federal administrative state was subsequently built including institutions like the Federal Reserve Board. Our recovery provides a framework for evaluating ongoing disputes between the President and federal administrators. It cuts strongly against the government’s current position that “for cause” removals are nonreviewable and can be conducted without formal process—and offers concrete legal bases that courts today can use to police the outer limits of presidential removal power.

--Dan Ernst 

Price on Congress's "Power of the Purse"

Zachary Price, UC Law, San Francisco, has posted Effectuating Congress's Power of the Purse:

Congress’s power of the purse—its authority to control government spending—is one of its most important authorities. Yet its hold on the executive branch may be fraying, as recent presidents have applied appropriations statutes inventively and the current administration seems poised to assert still greater control over spending.  In part because advocates have advanced tendentious historical claims to support such unilateral executive action, this Article explores the history of how Congress in the past has effectuated its constitutional power over government spending.

The Article explains that although Congress’s power of fiscal control has generally been quite potent across U.S. history, Congress’s grip on executive spending was in some ways weaker before the development of the modern administrative and national-security state.  In the nineteenth century, although Congress exercised considerable informal influence over administration, executive officials frequently overran their appropriations, shifted money creatively between accounts, and spent money for purposes for which Congress did not clearly appropriate funds; in addition, they sometimes did the opposite and “impounded,” or declined to spend, funds that Congress did appropriate.  Such actions, however, occurred in a markedly different practical, legal, and institutional context from contemporary administration.

This history has at least three important implications in the present.  First, it undermines contemporary arguments for a unilateral executive prerogative based on nineteenth century spending practices.  Second, the history sheds new light on the fraught debate over presidential administration and the unitary executive branch, suggesting that congressional control over spending is an essential complement to presidential control over the executive branch.  Finally, the history may support greater contemporary application of mechanisms for holding individual officers liable for unlawful expenditures.

--Dan Ernst

Baronia et al. on Private Enforcement at the Founding

Nitisha Baronia, Jared Lucky, and Diego A. Zambrano have published Private Enforcement at the Founding and Article II in the California Law Review:

Article II vests the executive power in the President. Yet Congress routinely empowers private plaintiffs, not just the President, to enforce public regulatory laws. Because of this, in almost every area of law—from environmental and antitrust law to civil rights and securities law—the bulk of enforcement occurs through private civil suits rather than government-initiated litigation. Scholars and originalist judges are, for the first time, seizing on this apparent contradiction to argue that this mode of “private enforcement” may be an unconstitutional delegation of executive power. In TransUnion v. Ramirez, the Supreme Court observed that a “regime where Congress could freely authorize unharmed plaintiffs to sue defendants” would “infringe on the Executive Branch’s Article II authority.” This, along with invitations by Justices Alito and Thomas, ignited a series of lower court cases and historically grounded critiques of private enforcement. In an emblematic case, Circuit Judge Kevin Newsom drew on TransUnion and other cases to argue that “Article II’s vesting of the ‘executive Power’ in the President . . . prevents Congress from empowering private plaintiffs to sue for wrongs done to society.”

This emerging “Article II Challenge” relies, at its core, on a particular reading of Founding Era history and the original meaning of the Vesting Clause. Challengers argue that the Take Care Clause’s command that the President “shall take care that the laws be faithfully executed,” combined with Founding Era history, establishes that public rights claims—those seeking civil penalties or enforcement of regulatory violations against society—must be enforced exclusively by the executive branch. If the Supreme Court embraces this argument, hundreds of statutory schemes and thousands of claims will crumble.

This Article provides a historical corrective and refutes the emerging Article II Challenge. Our original historical investigation of “penal statutes”—a category of Founding-Era regulatory legislation that anticipated modern private rights of action—uncovers the deep constitutional foundation of this tradition of private enforcement. We offer three key historical contributions. First, we demonstrate that Founding Era lawmakers passed reams of statutes empowering private plaintiffs to sue for wrongs done to society, at both the state and federal levels. Private enforcement of regulatory law was ubiquitous in England, colonial America, and the Early Republic, a broader legal history that originalist proponents of the Article II Challenge have overlooked or misunderstood. Second, we show that post-ratification contemporaries saw no conflict between executive power and private enforcement, even when these suits vindicated public rights. Third, we reveal that the Crown, governors, and presidents could not control private penal statute claims through the writ of nolle prosequi or other mechanisms. We demonstrate this by surfacing a previously neglected 1791 case in which President Washington and Secretary Hamilton concluded that the President could not control civil litigants seeking statutory penalties, even when they proceeded nominally on behalf of the United States. This historical evidence weakens both the Article II Challenge and the “unitary executive” theory because it shows that Congress was free to empower private plaintiffs to execute the law. We then supplement those historical insights with an analysis of contemporary legal doctrines governing executive control over private enforcement. We conclude that private enforcement does not violate Article II, except under extremely narrow conditions. Our proposed constitutional test would leave most private enforcement schemes untouched. Ultimately, this Article provides a comprehensive historical and doctrinal defense of private enforcement writ large.

--Dan Ernst

Hayes on Antitrust Reform in Postwar Japan

Gregory Hayes, a 2025 graduate of Northwestern Law, has published The Failings of Post-War Japanese Antitrust Reforms, in the Northwestern Journal of International Law and Business:

This paper discusses the antitrust reform measures taken during the occupation of Japan following the end of World War I. These antitrust reforms included the dissolution of the zaibatsu business groups and the adoption of the Antimonopoly Act. However, the trust-busting and antitrust measures taken by Japan failed to prevent the eventual rise of keiretsu business groups and lower the concentration of corporate ownership in Japan. The primary reasons behind this failure were the inability of the reformers to fully dismantle the zaibatsu business groups and the changing priorities of the reformers due to the growing threat of the spread of communism in Asia. Despite the shortcomings of the Japanese antitrust reforms, the existence of the keiretsu business groups within Japan did not prevent Japan from successfully democratizing, experiencing significant economic growth, or reducing income inequality.

--Dan Ernst 

Strange on Penal Expertise and the Death Penalty in the 1950s

Carolyn Strange, Australian National University, has published, open access, The Contestation of Penal Expertise in the Age of the Expert: Thorsten Sellin and the Death Penalty in the 1950s, in Law and History Review:

Readings of the history of penal expertise trace its rise to the late nineteenth century and its decline to the late twentieth century, with the crumbling of the welfare state. Despite stark differences along Whiggish and Foucauldian lines in evaluations of that history, a consensus has emerged that the penal-welfare complex peaked around mid-century, dependent on correctional experts. Most studies of that phenomenon have focused on the institutionalization and “treatment” of “problem” populations while neglecting the role of penal expertise in critiques of capital punishment. When Britain and Canada undertook major inquiries into the death penalty in the 1950s, they turned to the world’s foremost expert on the subject: sociologist Thorsten Sellin. Yet, these government-appointed studies devalued his academic capital in favor of the lived expertise of police. By examining the contestation of Sellin’s sources, methods, and conclusions, this paper puts the chronology of penal welfarism and its experts into question. Not simply a case of ill-informed opinion prevailing over criminological evidence, the dismissive treatment of this penal expert highlights the need to apply a more capacious understanding of contending forms of expertise at numerous points in penal history, rather than setting the devaluation of penal expertise in the recent past.

--Dan Ernst