Mapping the Early Modern Inns of Court

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

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

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

--Dan Ernst

Legal History Colloquium at NYU Law

[We have the schedule for the Legal History Colloquium at NYU Law.  For more information about these talks, offered as part of a course, please contact one of its organizers (Daniel J. Hulsebosch, David Golove, and Noah Rosenblum).  DRE]

August 27
Nathaniel Donahue, Samuel I. Golieb Fellow in Legal History, NYU School of Law
“Officers at Common Law”

September 17
Joanna Grisinger, Associate Professor of Instruction & Director of Legal Studies, Northwestern University 
“My magic carpet ride”: Discount Air Fares, Youth Culture, and Bureaucratic Expertise

October 1
Mark Peterson, Edmund S. Morgan Professor of History, Yale University 
The Making and Breaking of the American Constitution (tentative title)

October 15
Jud Campbell, Professor of Law, Helen L. Crocker Faculty Scholar, Stanford Law School; Visiting Professor of Law, NYU School of Law
The Myth of American Constitutional Exceptionalism (tentative title)

October 29
Hannah Farber, Associate Professor of History, Columbia University
Title TBA

November 12
Greg Conti, Associate Professor of Politics, Princeton University
Title TBA

November 26
Lauren Benton,  Barton M. Biggs Professor of History and Professor of Law, Yale University 
“Piracy as Political Prism: Becoming International in the Counterrevolutionary Atlantic”

Barbas on Beauharnais

Samantha Barbas, University of Iowa College of Law, has posted The Story of Beauharnais v. Illinois, which is forthcoming in the Journal of Free Speech Law:

In 1952, the U.S. Supreme Court issued its landmark First Amendment decision in Beauharnais v. Illinois, upholding an Illinois hate speech law. Beauharnais, involving a white supremacist “hate group” leader in Chicago, was the Supreme Court’s first encounter with racist speech. The Illinois statute, enacted in 1917, was one of several hate speech or “group defamation” laws that existed in the United States during the first half of the twentieth century. Commentators believed that the Supreme Court’s approval of the Illinois statute would lead other jurisdictions to enact hate speech laws. Yet Beauharnais facilitated the demise of hate speech laws. This article tells the story of Beauharnais v. Illinois and explains why the Supreme Court’s ruling helped bring about the end of hate speech laws in America.

--Dan Ernst 

White's "Robert H. Jackson: A Life in Judgment"

G. Edward White,. UVA Law, has published Robert H. Jackson: A Life in Judgment (Oxford University Press):

Until he joined the U.S. government in 1934, Robert H. Jackson had been a lawyer in private practice in Upstate New York who was admitted to the bar without going to college and after completing only one year of law school. Once part of FDR's administration, Jackson became, in rapid succession, United States Solicitor General and United States Attorney General, where he successfully defended New Deal programs before the Supreme Court, including the legality of Lend Lease, which helped the U.S. give war supplies to England in exchange for grants of territory and harbors. Jackson played a central role in formulating the arguments justifying a number of initiatives on constitutional grounds and in drafting the policy statements that accompanied them. In 1941, FDR nominated him to be Associate Justice of the Supreme Court, on which he served until his death in 1954, only months after his adding his vote to the unanimous decision in Brown V. Board of Education.

It was a meteoric rise for someone from outside the elite, and essentially self-trained. That didn't stop Jackson from becoming one of the most influential and independent-minded judges of his day, unafraid to question the status quo and leave his mark on a number of landmark cases, including West Virginia State Board of Education v. Barnett, which guaranteed First Amendment rights by holding that students in public schools did not have to salute the flag or recite the Pledge of Allegiance. He dissented from the notorious decision in Korematsu v. U.S., which condoned the internment of Japanese-Americans during World War Two. To many, however, Jackson's most significant contribution was as chief U.S. prosecutor at the Nuremberg war trials following the war.

Drawing on Jackson's extensive personal papers in the Library of Congress and the Jackson Center, as well as a substantial oral history, G. Edward White's biography offers the first full-length portrait in decades of this fascinating and seminal figure.

--Dan Ernst

Donahue on Officers at Common Law

Nathaniel Donahue, Samuel I. Golieb Fellow at the New York University School of Law, has posted a terrific paper, Officers at Common Law, which is forthcoming in the Yale Law Journal:

The Framers of the federal Constitution said almost nothing about how subordinate officers would be held accountable. This Article provides one overlooked explanation for this longstanding puzzle. The Constitution was enacted against a well-defined jurisprudence that has largely fallen from view: a law of officers. When using the term “Officer” and its framework of “Duties,” the Constitution invoked a distinctive method of regulating state power, in which officers were personally responsible—and liable—for discharging duties defined by law. The Framers and Ratifiers of the Constitution expected that these common-law rules would fill the gap left by the document’s silence.

This Article weaves together the strands of statutory and common law that constituted and regulated the early American officer. This system of legal organization, drawn from longstanding English and colonial practice, empowered officers to create a decentralized governing apparatus that blurred the line between public and private. Its regime of harsh personal liability and individual empowerment impeded efforts to construct a top-down hierarchy by empowering and encouraging officers to resist orders from their superiors. As Americans developed a bureaucratic state over the nineteenth- and twentieth centuries, judges and lawmakers replaced this officer-based paradigm of governance with a system of administrative law that was more conducive to the modern state.

The legal regime of early American officeholding is inconsistent with many originalist justifications of the “unitary executive theory,” which assert that the Constitution relies on a combination of managerial control and presidential elections to discipline the state. Because the traditional law of officers centered officers’ independent obligations to law rather than to the executive hierarchy, it actively frustrated efforts to construct the command-and-control executive branch that unitarists believe the Constitution requires. The unitarists implicitly impose a theory of the state that developed as the early American law of officers was fading from view. 

--Dan Ernst 

Smith on Petitioning in 18th-Century Russia

Alison K. Smith, University of Toronto, has published “To Each Their Grievance Is Bitter and Unbearable”: Petitions, Autocracy, and the Rule of Law in Eighteenth-Century Russia in Law and History Review:

Over the course of the eighteenth century, Russian rulers released dozens of decrees about petitions. First, the decrees regulated the format of petitions, emphasizing their formulaic nature and moving them away from the personal appeals with supplication and abasement that were present in earlier centuries. These decrees recognized that petitions were essential to the administrative functioning of the imperial Russian state but saw them as akin to forms or applications. Second, the decrees stated firmly that petitioners should not approach the ruler directly. In part, these decrees reflect the rulers’ irritation at being endlessly bothered by personal requests, but Russia’s rulers also gave a more serious justification for the ban on personal appeals: they had established the rule of law, which meant that their subjects did not need to bother them personally and instead should clearly know other authorities—courts, governors—to address for aid. While efforts to change the format of petitions largely succeeded, efforts to curtail petitions directly to the ruler largely failed. That failure likely reflects several factors: inefficiencies in the judicial or administrative system, contradictory laws that still made space for petitions because they were useful, and because they held the promise of getting help quickly.

--Dan Ernst 

Balkin & Levinson, "Casebooks, Canons, and Constitutional Memory"

Jack M. Balkin (Yale Law School) and Sanford Levinson (University of Texas Law School) have posted "Casebooks, Canons, and Constitutional Memory." The abstract:

Why edit a constitutional law casebook? One might want to shape how professors teach the subject and how students learn it. But the influence of casebook editors is limited. Most students at most law schools will never practice constitutional law, and those that do probably deal with subjects not in the standard introductory course.

Editing a casebook involves the construction of a canon. The canon in literature is organized around  great works of excellence. By contrast, the canon in constitutional casebooks does not reflect the best opinions ever written; instead it reflects generations of political and legal struggles over the Constitution.

There are three kinds of canons in constitutional law, and in constitutional law casebooks: (1) the pedagogical canon of materials that students need to know to be well-trained lawyers; (2) the cultural literacy canon of materials that citizens need to know to understand their constitutional system; and (3) the constitutional theory canon of materials that are grist for the mill of serious academic discussion. Each of these canons has a politics, and different casebooks may align themselves with different political and legal visions and movements.

Casebooks are also sites of collective memory. A casebook foregrounds what teachers and students are likely to focus on and remember. What is left out of teaching materials is more likely to be forgotten. Hence constitutional law casebook authors are almost inevitably memory entrepreneurs, who seek to get people to remember certain things or remember them differently. But casebook editors are hardly all-powerful memory entrepreneurs. Authors must work with their coauthors to decide what materials to include and delete in successive editions. Casebook authors face serious constraints from publishers. Publishers demand frequent new editions to undercut sales of used casebooks; and they want casebooks to be ever shorter and simpler to understand.

Perhaps most important, casebook authors feel obliged to cover contemporary issues in constitutional law. Those issues are not in their control. They are shaped by the continuous interaction and collision between the political branches and the courts, and especially the United States Supreme Court. In this way the Supreme Court exercises vast control over the content and organization of constitutional law casebooks. This creates important problems of constitutional memory. If the Supreme Court overrules a line of cases, those cases are likely to be flushed down the memory hole unless casebook editors are willing to sacrifice other valued content.

The Supreme Court constantly destroys existing canons of constitutional law and reconstitutes them through its choice of cases to decide. Casebook authors must carefully consider how much of this constant churning and change is noise and how much is genuinely important and lasting for understanding the U.S. Constitution. This makes casebook authors' limited choices about what to remember especially important.

At most, by placing certain materials before professors and students,  casebook authors can provide opportunities to recall and absorb what is most important about our constitutional traditions. Yet what others do with those materials--and those memories--is ultimately beyond casebook authors' control. 

Read on here.

 

--Karen Tani

Weekend Roundup

• Over at JOTWELL, Bethany Berger (Iowa College of Law) has posted an admiring review of Alexandra Fay's "Courts of Indian Offenses, Courts of Indian Resistance," which is forthcoming in the Michigan Law Review. Sida Liu (University of Hong Kong) praises Jedidiah J. Kroncke's "Legal Complicity in an Age of Resurgent Authoritarianism," forthcoming in the Georgetown Journal of Legal Ethics. And Allison Brownell Tirres (University of San Francisco School of Law) spotlights Eric R. Schlereth's Quitting the Nation: Emigrant Rights in North America (2024).

• Columbia Law is offering two new legal history courses, The 14th Amendment, taught by Christina D. Ponsa-Kraus, George Welwood Murray Professor of Legal History, and Legal Conflict and Change During the Civil War and Reconstruction, taught by Kerrel Murray, Associate Professor of Law and Milton Handler Fellow.  

• At the back end of this episode of Strict Scrutiny, Kate Shaw (Penn Carey Law) chats with Serena Mayeri (Penn Carey Law) about Mayeri's new book Marital Privilege. 

• William Baude, University of Chicago Law, weighs in on birthright citizenship (Divided Argument). 

• Paul Moreno, Hillsdale College, reviews Private Finance, Public Power by Peter Conti-Brown and Sean H. Vanatta in "the Forever Bank Wars" (Law and Liberty). 

• ICYMI: Historians say the professional study of history ain't over until history is over (and it's never over) (WaPo). The National Review on the Japanese American Internment.  The Heritage Foundation on Separation of Powers at the Founding.

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

Addae on Anti-Blackness in Liquor Licensing

Angela E. Addae, University of Oregon School of Law, has published Booze, Bars, and Bias: Anti-Blackness in Liquor Licensing Enforcement in the Washington and Lee Law Review:

This Article explores the disharmonious and disturbing influence of race in the enforcement of liquor licenses. Across the length and breadth of this nation, attentive Black revelers bear witness to an all-too-familiar trend signified by the disproportionately frequent closures of Black entertainment businesses. This Article argues that the punitive disposition toward Black entertainment businesses is not just a contemporary phenomenon; rather, it is a set of practices rooted in centuries of exclusion and regulatory abuse.

Over the past two centuries, state liquor licensing agencies have emerged as contentious battlegrounds where legal, social, and economic factors converge—often to the detriment of the very businesses they were intended to regulate. Throughout the colonial, post-revolutionary, and antebellum eras, state boards and commissions used liquor license regulations to maintain systems of control and preserve the racialized status quo. By unveiling these historical and ongoing practices, this Article reconceptualizes how legal reform might rectify the structural obstacles that disproportionately affect Black entertainment businesses.

Additionally, this Article challenges the perception of drinking establishments as trivial or controversial by highlighting their significance as profound sites for meaning-making, cultural production, and reclamation. This exploration presents an emic perspective that counters the negative and inaccurate stereotypes often associated with spaces of Black entertainment, leisure, and recreation.

--Dan Ernst

Holmes: The Movie

 [We have the following announcement.  DRE] 

On September 11, 2025, at 5 p.m., join the Law Library of Congress and the Supreme Court Historical Society for a special film screening to celebrate Constitution Day in the Coolidge Auditorium. This event will feature a screening of “Holmes.” This film depicts Justice Oliver Wendell Holmes, on his 90th birthday, reflecting on his life on the Supreme Court of the United States and his service to the Union Army in the United States Civil War.

This event will also feature remarks by Law Librarian of Congress Aslihan Bulut, Supreme Court Historical Society Director of Publications Clare Cushman, and Senior Counsel of Legal Programs and Initiatives for the Library of Congress Jeanne Dennis. We hope you can join us.

Please register here. 

ASLH/Notre Dame Graduate Legal History Colloquium

[We have the following announcement.  DRE]

ASLH/Notre Dame Graduate Legal History Colloquium

September 27, 2025  | 10 AM - 3 PM (CST)
Notre Dame Law School | Chicago, IL

Registration/Welcome, 09:45 - 10:05 AM
Coffee & Morning Refreshments

Paper #1: Property Law and Indian Removal, 10:05 - 11:00 AM

"Indigenous Incendiaries: Forest Fires, Arson Law, and Ute Removal in 1870s Colorado"

Author:     Jacquelyn M. Davila, Yale University 
Respondent:    M. Todd Henderson, University of Chicago Law School

Paper #2: Colonization and Property Law, 11:05 - 12:00 PM

"Property Law as Colonial Forerunner"

Author:     Nathan Lee, New York University 
Respondent:    Nadav Shoked, Northwestern University Pritzker School of Law

Afternoon Break (Lunch), 12:05 - 1:00 PM

Paper #3: International Taxation, 01:05 - 2:00 PM

"Southern African Mining and the Modern Formation of Offshore Finance, 1860 - 1925"

Author:     Simon Rakei, University of Michigan
Respondent:    Ajay K. Mehrotra, Northwestern University Pritzker School of Law

Paper #4: The Common Law and the Fourth Amendment, 02:05 - 3:00 PM

"What is a House? Investigating the Meaning of Curtilage at Common Law" 

Author:     Mitchell Del Bianco, University of Virginia 
Respondent:    R. H. Helmholz, University of Chicago Law School

Katz, Rosenblum, and Manners on Removal and Historical Argument

Andrea Scoseria Katz, Washington University in St. Louis School of Law, Noah A. Rosenblum, New York University School of Law, and Jane Manners, Fordham University, have posted Disagreement and Historical Argument or How Not to Think About Removal:

William Howard Taft (LC)

Scholars have debated the reach of the President’s power to remove government officers for over one hundred years. This old fight is now suddenly urgent as President Trump asserts far-reaching powers to control the federal bureaucracy and the Supreme Court transforms Unitary Executive Theory into caselaw. Yet the scholarly case for an indefeasible presidential removal power has never been weaker.

This Essay continues an ongoing conversation about how to read some critical early republic evidence about removal. It briefly recapitulates the stakes of the disagreement before offering in-depth analyses of developments in Pennsylvania removal practice, including a reading of the Council of Censors’ Report from 1784. Along the way, it responds to some recent criticisms of our work by Professors Saikrishna Prakash and Aditya Bamzai.

The Essay makes two overarching arguments: First, there was no consensus in the early republic that the executive power included an indefeasible power of removal. Second, legal historians must take dissensus seriously. Historical disagreement is a fact that lawyers wishing to make legal meaning out of history need to confront. In this case, it straightforwardly undermines the notion there was a shared understanding in the early republic that the executive power included an indefeasible power of removal. 

--Dan Ernst 

Sheehan on Charles Fahy's New Mexican Murder Case

Charles J. Sheehan has published Only the Moon to Shed Light on What Occurred: Charles Fahy and Frontier Justice in New Mexico in the Journal of the Southwest 67:1 (Spring 2025): 134-163: 

The tale had the homeliest beginning. One night of bitter cold in northern New Mexico three companions settled into a horse-drawn sleigh. The trail through the Tusas Mountains lay under deep, new snow. Under moonlit skies they made their way westward from Tres Piedras toward warm hearths in Tusas, 9 miles distant, but just two travelers arrived. At dawn on January 23, 1929, the postman on his route from Tusas to Tres Piedras came upon the frozen body of Miguel Sánchez. In New Mexico and far beyond, that lonely night began a path of greater rights for men and women at the mercy of powerful systems and institutions.

--Dan Ernst 

Boston College Law School Legal History Roundtable

[We have the following announcement.  DRE] 

This year, the Boston College Law School Legal History Roundtable begins its 24th successful year. BC Law's legal history group–Mary Sarah Bilder, Felipe Cole, Daniel Farbman, Aziz Rana, Adnan Zulfiqar, Marco Basile, Daniel R. Coquillette, and Frank R. Herrmann, S.J.–welcome anyone in the Boston area to join us. The Roundtable meets and discusses a pre-circulated paper in an informal, collegial atmosphere of informed discussion. We meet in the Boston College Law Library, Daniel R. Coquillette Rare Book Room. More information can be found on the website or by contacting Chris Fitzgerald (fitzgefk@bc.edu).

Thursday, October 30, 4:30 PM
Professor Michael Glass, Boston College

Thursday, November 20, 4:30 PM
Professor Emilie Connolly, Brandeis University

Quinn on Female Shareholding in the Middlesex Canal

Brian JM Quinn, Boston College Law School, has posted Economic Lives of Women: Shareholding by Women in the Middlesex Canal Corporation, 1793-1859:

Middlesex Canal (LC)

This Article explores the participation of women as shareholders in early American corporations, focusing on the Middlesex Canal Corporation. Corporate records reveal that many women, including many women in elite economic and political circles, became shareholders of the Canal Corporation. During the early Republic, the corporate form, as well as corporate equity securities, were still relatively uncommon. The Middlesex Canal Corporation was one of the earliest, and most high-profile, business corporations at the time of its incorporation in 1793. With the subsequent development of the modern corporate form came the proliferation of corporate equity securities. The creation of corporate equity securities generated passive income earning opportunities that permitted elite women to remain economically active and independent in ways that were previously impossible. Thus, the Middlesex Canal Corporation marks an important, but understated, milestone in the economic lives of women in the United States. This Article uses historical corporate records to tell the stories of the first women shareholders of the Middlesex Canal Corporation and the beginnings of financialization of the American economy. 

--Dan Ernst 

Weekend Roundup

• From the Chronicle of Higher Education: Adam Sitze (Amherst College) on "The Strange History of University Autonomy — and Why We Need It More Than Ever."

• "Miscarriage is a Crime Again": over at Nursing Clio, Lara Freidenfelds draws connections between the contemporary U.S. and early modern England.   

• A recording of Kim Lane Schepple's really terrific Robert H. Jackson Lecturer on the Supreme Court of the United States.at the Chautauqua Institution is here.  "Professor Scheppele’s lecture focused on Robert H. Jackson and constitutional separation of powers": Court-packing, destroyers for basis, North American Aviation, Nuremberg, Youngstown, and Trump v. United States.  With an introduction by John Q. Barrett.

• 
  MIT's notice of Malick Ghachem’s new book, The Colony and the Company: Haiti after the Mississippi Bubble, which "examines the pre-revolutionary changes that set Haiti’s long-term economic structure in place." 

• Patrick S. O'Donnell on "The Haitian Revolution and Jacob Lawrence: Exemplifying Historical Narrative, Values and Purposes through Art."

• Check out A.B. Hart's Suggestions on the Study of History (1893).  H/t: MSB. 

• "The Supreme Court of Ohio is staying open late to the public on Sept. 9 with two evening tour offerings. ... See Ohio’s rich history on full display at the Thomas J. Moyer Ohio Judicial Center" (CNO).  

• "Three UMass Dartmouth School of Law 2L students, Patrick Wilson, Adyen Artica, and Nathan Gudas, helped North Shore government officials verify approximately 200 property deeds containing racist or discriminatory language, contributing to a broader effort to clean "dirty deeds" in southern Essex County, as part of their legal internships at the Essex Registry of Deeds" (UMass Law).

• "Patrick T. Conley has donated his 1,500-volume private collection on American legal and constitutional history to the Roger Williams University School of Law" (Warwick Beacon). 

• The Brennan Center Fellows Eric Ruben and Andrew Willinger's essay on the Supreme Court's reliance  on historical scholarship in Second Amendment case.  

• Patrick O'Donnell also has an essay on the criminal defense and cause lawyer Charles R. Garry (1909-1991).

• On September 21, 2025, 5:00 pm -6:00 pm, Jill Lepore will discuss her new book on the Constitution, We the People, at Politics and Prose, 5015 Connecticut Ave NW, Washington, DC PoPVille). 

• "Tulane University School of Law invites applications from entry-level and lateral candidates for one or more tenure-track faculty positions.  We welcome applications from candidates with teaching and research interests in all topics, but we are particularly interested in candidates who focus on torts, business organizations, and commercial law."  More. 

• ICYMI:  Thomas Edsall on the Mind-Boggling Intrusiveness of Donald J. Trump, with quotes from Terri Bimes, Matt Dallek, Bruce Miroff, Jack Rakove, Rogers Smith, Jeremi Suri, Sean Wilentz et al. (NYT).

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

Whittington on Birthright Citizenship

Keith E. Whittington, Yale Law School, has posted By Birth Alone: The Original Meaning of Birthright Citizenship and Subject to the Jurisdiction of the United States:

The citizenship clause of the Fourteenth Amendment entrenched birthright citizenship into the Constitution. Building on a recent revisionist scholarly literature, President Trump's executive orders have asserted that the scope of birthright citizenship should be understood to exclude children born on American soil to parents who are unauthorized to be in the country or authorized to be in the country for only a limited purpose and period. This asserted limitation of birthright citizenship is at odds with the original meaning of the Fourteenth Amendment and the antecedent common-law rule of nativity that the language of the Fourteenth Amendment embodied and declared.

--Dan Ernst 

Palau-McDonald on Farrington v. Tokushige

MJ Palau-McDonald, University of Hawai’i at Manoa--William S. Richardson School of Law, has posted Farrington v. Tokushige: Language & Power in Hawai’i:

In Farrington v. Tokushige (1927), the U.S. Supreme Court struck down on Fifth Amendment grounds a series of laws enacted by the Territory of Hawai'i to control and ultimately eradicate private Japanese language schools. Legal commentary on Tokushige is sparse. The case is often characterized as a straightforward application of Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923). Together, Tokushige, Pierce, and Meyer are often cast as the Court’s public education chapter of the Americanization period. However, viewing Tokushige as a simple extension of Meyer and Pierce alienates the case from its historical context of white elites’ attempts to maintain political and economic control in the Territory in the face of a growing population of Nisei (U.S.-born children of first-generation Japanese immigrants), who, unlike their parents, were U.S. citizens with the right to vote. In this way, the Territory’s anti-Japanese movement was distinct from concurrent Japanese exclusion initiatives in California and Washington, which revolved around attempts to prevent Japanese land ownership and economic ascension, though the fear of the “yellow peril” was the fulcrum around which these movements metastasized. Through an examination of the social and legal history behind Tokushige, this article reinserts the significant racial dynamics that undergirded the events, the cultural depictions, and the legal justifications for the Japanese school control legislation that was lost in the Court’s sterilized decision. It also resituates Tokushige within the context of U.S. colonization and the forces that justified control over Hawai’i’s politics, land, and culture. The case’s unique history is inextricably intertwined with the establishment and maintenance of U.S. hegemony in the Pacific. Recontextualized, Tokushige implicates core questions of power that are increasingly relevant today, including who has access to political and economic power and who creates the conditions for access to that power.

--Dan Ernst 

Dabhoiwala's "What Is Free Speech?"

Fara Dabhoiwala, Princeton University, has published What Is Free Speech? The History of a Dangerous Idea (Harvard University Press):

Every premodern society, from Sumeria to China to seventeenth–century Europe, knew that bad words could destroy lives, undermine social order, and create political unrest. Given the obvious dangers of outspokenness, regulating speech and print was universally accepted as a necessary and proper activity of government. Only in the early 1700s did this old way begin to break down. In a brief span of time, the freedom to use words as one pleased was reimagined as an ideal to be held and defended in common.

Fara Dabhoiwala explores the surprising paths free speech has taken across the globe since its invention three hundred years ago. Though free speech has become a central democratic principle, its origins and evolution have less to do with the high-minded pursuit of liberty and truth than with the self-interest of the wealthy, the greedy, and the powerful. Free speech, as we know it, is a product of the pursuit of profit, of technological disruption, of racial and imperial hypocrisy, and of the contradictions involved in maintaining openness while suppressing falsehood. For centuries, its shape has everywhere been influenced by international, not just national, events; nowhere has it ever been equally available to women, the colonized, or those stigmatized as racially inferior.

Rejecting platitudes about the First Amendment and its international equivalents, and leaving no ideological position undisturbed, What Is Free Speech? is the unsettling history of an ideal as cherished as it is misunderstood.

Here is a recording of Professor Dabhoiwala's recent book talk at Politics and Prose.

--Dan Ernst

Center for the Study of Law and Society Speaker Series Fall 2025

The Center for the Study of Law and Society at the University of California, Berkeley, has announced the lineup for its Fall 2025 speaker series. Of particular interest to readers of this blog:

• August 25: Stephanie Jones-Rogers (UC Berkeley), "Puer Sequitur Parentis and Coniugis Sequitur Coniugis?: British Laws of Slave Descent on the Eighteenth-Century Gold Coast" 

• November 3: Justin Simard (Michigan State University College of Law), “Agents of Commerce: Transactional Lawyering in the 19th Century United States”

The full line-up is available here.

If your institution runs a legal history workshop and you'd like us to post your schedule, please be in touch! 

-- Karen Tani 

CFP: American Political History Conference

[We have the following CFP.  DRE]

Call for Proposals: American Political History Conference, June 4-6, 2026, Johns Hopkins Bloomberg Center, Washington D.C.  Proposal Deadlines: December 31, 2025

“American Democracy as Political History: Challenges across the Past, Present, and Future"

 A strong understanding of the past is critical to strengthening American democracy and to navigating the seismic shifts happening in our nation today. This conference will explore the social, economic, and cultural pathways that created this current political moment and provide essential insights on how to address pressing issues of polarization, injustice, inequality and democratic erosion. This event will bring political historians and other historically minded scholars into conversation with one another and the broader public to grapple with the democratic challenges facing the vast “American project” at the nation’s semiquincentennial. It will challenge the traditional categories of political history — liberal and conservative, elite and populist, rural and urban — as well as subfield divisions that have produced disciplinary silos. It will create opportunities to build networks, share new research, debate ideas, think about the contemporary implications of this research, and discuss strategies for public engagement.

We invite panel and paper submissions that reflect the diversity of the field of American political history, from the colonial era to recent history. We especially encourage roundtable and workshop ideas that will foster dynamic conversations about how we write and understand political history across time periods, subfields, and disciplines. We welcome sessions that challenge traditional paradigms in political history and address broad historical time periods. We especially encourage conversations that include scholars working in the eighteenth and nineteenth century. We also welcome historians from different arenas—including academia, public history, public policy, journalism, documentary film, television, podcasting, and radio—to launch conversations about the contemporary meaning and uses of history. More than just sharing specific historical insights, this conference aims to bring together an intellectual community of historians within and beyond academia to inspire conversations about the uses of history, the public responsibilities of historians to engage broader audiences, and the skills needed to do this.

The program committee is deeply committed to inclusion and diversity. Successful session proposals will be attentive to gendered, racial, and career diversity among participants. In service of this goal, we have limited funds available to support graduate students and contingent faculty. The conference will be held in-person, with provisions made for international scholars concerned about entry into the U.S.

Submissions should be up to 500 words with proposals for individual papers or panel, roundtable, or workshop sessions. Each proposal should also include a biographical statement for each participant of up to 150 words that includes contact information. Please submit proposals in one Word or PDF document to brownell@purdue.edu by December 31, 2025.

Program Committee:

Kathryn Cramer Brownell, Purdue University (co-chair)
Nicole Hemmer, Vanderbilt University (co-chair)
Leah Wright, Johns Hopkins University (co-chair)
A.J. Bauer, University of Alabama
Kellie Carter Jackson, Wellesley College
Bobby Cervantes, Harvard University
Lindsay M. Chervinsky, George Washington Presidential Library at Mount Vernon
Elizabeth Hinton, Yale University
John S. Huntington, Houston Community College
Michael Koncewicz, New York University
Cecilia Márquez, Duke University
George Derek Musgrove, University of Maryland Baltimore County
Gautham Rao, American University
Rachel Shelden, Penn State University

This conference is made possible in part by funding from the Johns Hopkins Nexus Award grant.

Native Peoples, American Colonialism, and the US Constitution

[We have the following announcement from the Bonnie and Richard Reiss Graduate Institute for Constitutional History at the New York Historical, which is not to be confused with the  Institute for Constitutional Studies at the George Washington University Law School.  DRE.]

The Bonnie and Richard Reiss Graduate Institute for Constitutional History is pleased to announce its fall 2025 seminar for advanced graduate students and junior faculty, Native Peoples, American Colonialism, and the US Constitution. 

Description.  As the United States marks the 250th anniversary of the Declaration of Independence, this seminar invites a critical examination of a central paradox in American constitutional history: how can a nation celebrate a founding document and constitutional tradition built, in part, on the dispossession of Indigenous homelands? 

From the Founders’ long-standing relationships with Native nations to the grievances lodged regarding ‘merciless Indian savages’ into the Declaration, Indian affairs and westward expansion were foundational to the creation and evolution of the US Constitution.  The Northwest Ordinance laid the “blueprint for empire” for federal imperial expansion from thirteen states clinging to the Eastern seaboard to a nation that stretched “from sea to shining sea,” while the United States Constitution excluded “Indians not taxed” from American polity—in so doing, also codifying the specific subordination of a people by name within constitutional text. 

Despite this deep entanglement, Native history remains marginalized within the fields of constitutional history and mainstream constitutional scholarship.  This seminar explores emerging historical and legal literature that re-centers Native peoples and American colonialism in the narrative of US constitutional development.  Topics include the role of Native peoples and “Indian affairs” in the Constitution’s initial drafting and ratification and the legal architecture of colonial expansion.  The seminar will also explore how centering Native peoples allows for a rethinking of United States constitutional history and American public law more broadly.

Logistics.  The seminar meets at the New York Historical, 170 Central Park West, New York, NY 10024, and via Zoom,* on the following dates:

    Friday, November 7, 2025 | 11 am–2 pm ET
    Friday, November 21, 2025 | 11 am–2 pm ET
    Friday, December 5, 2025 | 11 am–2 pm ET
    Friday, December 12, 2025 | 11 am–2 pm ET

*Although we encourage students to attend the class in person, 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. If you are interested in attending some or all of the class sessions virtually, please indicate this in your application statement.

Accepted students will receive further instructions and the classroom location within The New York Historical.  There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

Instructors.  Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe) is a professor of law at NYU whose work explores the relationship between law and power, with a focus on how subordinated peoples leverage legal tools—often beyond rights and courts—to shift power to their communities.  Her scholarship appears in leading journals, including Harvard Law Review, Yale Law Journal, Supreme Court Review, American Historical Review, Journal of Politics, among others.  Her recent projects, including the Foreword The Constitution of American Colonialism, investigate how the American colonial project, including the resistance and advocacy of Native and other colonized peoples, shaped U.S. constitutional law and history.  She is currently at work on two book projects that examine American colonialism, the field of “colonial administration,” and its boomerang effects.

Ned Blackhawk (Te-Moak Band of Western Shoshone) is the Howard R. Lamar Professor of History at Yale University.  He is a historian of Native America and federal Indian law, as well as a scholar of violence and state formation, particularly in the American West.  He is the author of several books and/or co-edited works, including the recent Rediscovery of America: Native Peoples and the Unmaking of U.S. History, which took home the National Book Award, among numerous other prizes.  His recent writings can be found in The Boston Globe and The Atlantic (forthcoming), and draw upon his current research on the American Revolution and the many challenges that it brought to Native American communities in the 18th-century world.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities.

Space is limited. To apply, please submit the following material to ich@nyhistory.org by October 10, 2025: (1) Your C.V.; and (2) a short statement on how this seminar will be useful to you in your research, teaching, or professional development.

Successful applicants will be notified soon thereafter. For further information, please email Andrew Fletcher at ich@nyhistory.org.

Su and Goravara on Slave Courts and the 7th Amendment

Wanling Su, Indiana University Bloomington, and Rahul Goravara, Georgetown University Law Center, have posted What is a Jury? which is forthcoming in the North Carolina Law Review:

The Supreme Court has held that the Seventh Amendment “preserves” the right to a civil jury as it existed when the Amendment was adopted in 1791. This “historical test” has become a hallmark of Seventh Amendment doctrine, but also, at times, a source of frustration. In one instance, the vexed Court has thrown up its hands and given up on the historical test entirely. Despite its best efforts, the Court has not been able to determine based on the historical record available whether the Framers intended to preserve the right to twelve jurors, or if a smaller number would suffice.

Although twelve was likely the usual number in 1791, its prevalence, in the Court’s words, could very well have been an “accidental feature of the jury.” The Court held that “forever codifying” the right to twelve jurors “would require considerably more evidence than we have been able to discover in the history and language of the Constitution.” This Article scours ratifying convention records, contemporaneous treatises, Founding-era legal dictionaries, early precedents, and archival records from the private libraries of the Seventh Amendment’s drafters in search of evidence that may shed light on their intentions and the Amendment’s public meaning at ratification.

Perhaps most informative, however, is what the Framers did not consider a jury. As this Article chronicles, Carolina slave courts denied enslaved people constitutional and common law rights, but nevertheless offered accused slaves as many as five jurors in what were described as “non-jury” trials. By offering a careful and comprehensive look at what the drafters did not consider a jury, as well as at the events, early precedents, and writings that inspired the Seventh Amendment, this Article corrects the Court’s misperception that the Founding-era practice of impaneling twelve jurors was mere happenstance. 

--Dan Ernst 

Bradley on Extradition in the Early Republic

Curtis Bradley, University of Chicago Law School, has posted Extradition in the Early Republic: International Law and Constitutional Authority:

This Article is the first comprehensive account of the constitutional foundations of U.S. extradition practice and its relationship to international law. Through detailed analysis of early American extradition controversies—including the Longchamps Affair and the Robbins case—the Article shows how political actors and courts constructed the modern constitutional law of extradition, resolving key issues concerning presidential power, the role of the states, and the scope of congressional authority. This regime, the Article argues, emerged not from appeals to the constitutional text or original understandings, but rather from structural intuitions, consequentialist considerations, and, as time went on, historical traditions. As the Article further documents, the constitutional law of extradition had a relational interaction with international law, in that the views of U.S. interpreters concerning the nation’s international law duties were relevant to their views of constitutional authority, and vice versa. The Article also complicates the dominant narrative of a unilateral “imperial presidency” in foreign affairs by showing that, because of the liberty interests involved, extradition authority evolved and remained as a shared power, requiring a treaty-based or statutory foundation as well as judicial involvement. In this respect, extradition parallels the development of certain other unenumerated foreign affairs powers, including most notably the authority over immigration. Finally, the Article situates extradition within the broader field of foreign relations law, illuminating its ties to doctrinal developments such as treaty non-self-execution, foreign affairs federalism, and sovereignty-based legislative power—developments that still resonate today.

--Dan Ernst 

Graham on the Forgotten History of Prison Law

Wynne Muscatine Graham, Lecturer in Law, UCLA, has published The Forgotten History of Prison Law: Judicial Oversight of Detention Facilities in the Nation's Early Years in the Harvard Law Review 138 (May 2025): 1716-1768:

Walnut Street Prison (wiki)

Prison law is characterized by judicial deference to penal administrators. Despite the well-documented horrors that occur behind prison walls, federal and state courts often decline to intervene, asserting, among other things, that prisoners’ rights are limited and that the judicial branch lacks the power and expertise to get involved in the inner workings of detention facilities. Moreover, jurists often assume that the nation’s first courts largely stayed out of prisons and jails, and contemporary judicial deference is therefore historically rooted.

This Article complicates that historical narrative. It shows that the nation’s Founding generation established an expansive system of judicial oversight over prisons and jails that lasted through much of the nineteenth century. During that period, state and local judges across the fledgling republic conducted regular inspections of detention facilities; set prison and jail rules and policies; appointed, removed, and occasionally served as penal administrators; managed the funding and building of jail facilities; and remedied abuses. On occasion, federal courts also interceded on behalf of prisoners.

Relying on neglected state statutes, case law, and reports, as well as the writings of prison theorists and observers, this Article explores the oft-ignored history of American prison law. In so doing, this Article shows how far modern courts have diverged from their early predecessors, especially at the state and local levels. For jurists - and particularly originalists - who use history to inform contemporary doctrine, this Article provides a fuller account of the early relationship between courts and prisons. Finally, this Article reveals a model of judicial oversight from which scholars and advocates can learn.

--Dan Ernst 

JACH (Summer 2025)

The Summer 2025 issue of the Journal of Supreme Court History is now available online.   

Gerard N. Magliocca, Right in Theory, Wrong in Practice”: Women’s Suffrage and the Reconstruction Amendments

The most remarkable constitutional argument ever forgotten is Representative William Loughridge’s dissent from an 1871 report by the House Judiciary Committee. That Report rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote. 

S. Deborah Kang, Creating a “Mass Production Technique”: Anti-Mexican Racism and the McCarran-Walter Act of 1952

New archival research shines a light on the anti-Mexican animus that motivated the authors and agents of the McCarran-Walter Act of 1952 and reveals that racism was a feature, rather than a bug, of the legislation that still impacts today’s immigration debates.

Sam Erman and Nathan Perl-Rosenthal, Jus Soli Nation to Jus Soli Evasion: International Lawyers for White Supremacy and the Road through Wong Kim Ark 

 In an effort to dismantle the Citizenship Clause and the U.S.’s traditional recognition of “jus soli,” racist opponents to the Fourteenth Amendment set out to establish a practice of “jus sanguinis” with a weaponization of international law. These attempts backfired, and “country by birth” prevailed and more solidly reaffirmed as the Citizenship Clause.

Katherine Shaw reviews David Pozen's The Constitution of the War on Abortion

 David Pozen’s The Constitution of the War on Drugs reveals how constitutional law and values have largely been absent from the arguments surrounding the war on drugs—in an interesting contrast to the constitution’s central place surrounding the debates on abortion and reproductive freedoms. 

--Dan Ernst 

Weekend Roundup

• On the Amicus podcast: Who Gets Left Out of Originalism? with Mark Joseph Stern, Maggie Blackhawk, and Greg Ablavksy.  A machine-generated, unedited transcript is here.  

• Carl Wilén, Lund University, will deliver The Haitian Revolution and the Concept of the Legal Form: Capitalism, Slavery and the Universality Paradigm in the Distinguished Speaker series of the Baldy Center for Law and Social Policy at the University at Buffalo Law School on October 3 from 12:30 to 2p.m with a noon reception.  Zoom registration here.

• 
  
  The Georgia Historical Society has announced its program for the 250 anniversary of the founding, Restoring Trust in American Institutions: History and the Foundations of American Democracy (Saporta Report).   
  

• First 125 Years of AALS: a "coffee table book" on the Association of American Law Schools (ABA Journal).

• Adam Cox, NYU Law, "contests the origins of 'immigration exceptionalism,' the doctrine holding that the political branches of government exercise extraordinary discretion over immigration policy, subject only to limited oversight from the courts" (Regulatory Review).

•  In United States ex rel Zafirov v. Florida Medical Associates, LLC, James Pfander, Diego Zambrano, and Jared Lucky submitted an amicus brief “to correct the district court’s misstatement of the historical record and mischaracterization of their work" on qui tam proceedings at the Founding (JD Supra).   

• "The American Constitution Society’s Chicago Lawyer Chapter has named Geoffrey R. Stone, '71, the Edward H. Levi Distinguished Service Professor of Law, as the inaugural recipient of the Geoffrey R. Stone Award, established in his honor" (Chicago Law). 

• Leah Litman speaks with Richard Primus about his book, The Oldest Constitutional Question: Enumeration and Federal Power (Strict Scrutiny). 

• Balkinization Symposiums--A Continuing List 

• 
  
  ICYMI: Jamelle Bouie asks, What if Dred Scott Had Been Decided Correctly? (NYT). LHB Founder Mary Dudziak on the Trump Administration's takeover of the DC National Guard and police (CSM).  A review of Jere Nash's Reconstruction in Mississippi, 1862-1877 (Clarion Ledger). 

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

Stenlund and Erkkilä on Memory, Law, and Politics

Karolina Stenlund and Ville Erkkilä, University of Helsinki, have published the introduction to a special issue of in Law and Critique on "Memory, Law, and Politics".

This introduction to the Law and Critique special issue explores the complex interplay between collective memory, law, and politics. It argues that “moral remembrance” — the strategic use of selected pasts — shapes political legitimacy, identity formation, and legal interpretation across liberal and illiberal regimes. Rejecting teleological views of legal progress, the authors highlight how both remembering and forgetting serve ideological purposes. Contributions examine diverse contexts, from authoritarian memory regulation in the GDR and contemporary Hungary to EU and international legal frameworks surrounding Holocaust remembrance, slavery memory laws, and museum-based memory practices. Together, these studies show that law not only regulates but also constructs collective memories, influencing which histories are legitimized or suppressed. By integrating perspectives from history, legal studies, and critical theory, the issue invites readers to critically assess the political stakes of legal memory-making and the selective mobilization of history in contemporary governance.

--Dan Ernst 

Vlahoplus and Rosin on an 1872 Birthright Citizenship Precedent

John Vlahoplus and Michael L. Rosin have published Birthright Citizenship of Child Born to Enemy Alien Visitors in the Washington University Law Review Online:

This is the story of Mogridge v. United States, in which the United States asserted, and a multinational commission held, that a child born in Pennsylvania to enemy alien visitors was a U.S. citizen even though he also acquired the nationality of his parents at birth and left the United States with them only a few weeks afterward. This compelling 1872 precedent undermines arguments for the narrow scope of birthright citizenship set out in President Trump’s Executive Order 14160, “Protecting the Meaning and Value of American Citizenship."

--Dan Ernst 

Leading Works in the History of the Constitution

Chris Monaghan, a Principal Lecturer in Law at the University of Worcester, has published the edited collection, Leading Works in the History of the Constitution (Routledge):

 This collection brings together academic analysis of leading contemporary accounts of the British Constitution with key constitutional documents and sources, while also offering analysis of the leading histories of the Constitution.

The works in question represent examples of the constitutionally most significant legislation, judicial decisions, and commentaries by scholars and key actors. Its scope is the seven hundred years of English, and then British, history from the Magna Carta to Britain as an imperial power grappling with the question of how to govern India.

The contributors, presenting a balance of established academics and early career researchers, present an original and succinct account of the significance of each leading work. They draw upon the context in which it was written, contemporary literature and more modern academic analysis of the work and its author(s).

--Dan Ernst.  TOC after the jump.

HLS Symposium: Brandeis on "the Jewish Problem"

Louis D. Brandeis (NYPL)

[We have the following announcement.  DRE] 

“The Jewish Problem, Then and Now: Rethinking Louis Brandeis’s Liberalism”

A Symposium sponsored by the Julis-Rabinowitz Program on Jewish and Israeli Law at the Harvard Law School.  September 16, 4:00 pm - 8:00 pm

2025 marks the 110th anniversary of Louis Brandeis’s famous essay, “The Jewish Problem – How to Solve It.” Taking as his point of departure the persistence of antisemitism in the twentieth-century world, Brandeis laid out a diagnosis of liberalism’s challenges and a positive vision for its future. His essay also marked a major statement on liberal Zionism and the rationale for American Jewish commitment to reconciling Jewish nationalism and American democracy. A century later, we revisit this text and the broader Brandeisian legacy to think about the contemporary questions of liberalism and Zionism, law and economics, and citizenship and group rights in American law. 

Symposium Chairs: Noah Feldman, Felix Frankfurter Professor of Law, Harvard Law School and James Loeffler, Felix Posen Professor of Modern Jewish History, Johns Hopkins University.  With William Forbath (Univ. of Texas, Austin), Amalia Kessler (Stanford), Linda Kinstler (Harvard), Shaul Magid (Harvard), Eric Nelson (Harvard), Simon Rabinovitch (Northeastern), and Laura Weinrib (Harvard)

4pm

Welcome from James Loeffler and Noah Feldman

4:15 – 5:30pm

William Forbath “Brandeis and his Jewish Socialist Critics & Collaborators on Zionism & Industrial Democracy” 

Amalia Kessler “Arbitration and the Jewish Question, 1900-1950” 

Simon Rabinovitch Moderator 

5:30-6:30pm

Shaul Magid “Jewish Nationality, Nationhood, and Diaspora Nationalism: Reading Mordecai Kaplan and Daniel Boyarin through Louis Brandeis”

Laura Weinrib “Free Speech, Group Rights, and Jewish Identity”

Linda Kinstler moderator

6:45-7:45pm

Keynote: “Brandeis’s Jewish Question(s): Global Liberalism Reconsidered”
James Loeffler
Response: Noah Feldman
Moderator: Eric Nelson

Handler on the Administrative Law of McCarthyism

Nicholas Handler, Texas A&M University School of Law, has posted The Administrative Law of McCarthyism, which is forthcoming in the Stanford Law Review:

Senator Joseph McCarthy (wiki)

This Article recovers the largely overlooked legal and administrative history of the federal loyalty-security program, and argues that it played a formative role in the development of modern civil service protections and administrative law. During the McCarthy era, the United States Civil Service Commission (CSC), under pressure from Congress, implemented a sweeping loyalty program aimed at rooting out purportedly disloyal federal employees. Though often remembered as a moment of political overreach and civil liberties violations, this Article shows that the loyalty program simultaneously catalyzed a surprising expansion in procedural rights for government workers—both through internal reforms initiated by the CSC and through judicial decisions that extended emerging administrative law doctrines into the domain of federal employment.

Drawing on original archival research, this Article reconstructs how the Loyalty Review Board, housed within the CSC, developed formalized standards for loyalty adjudications, including evidentiary thresholds, rights to notice and counsel, and appellate review. These procedures, while initially limited to loyalty hearings, came to inform broader doctrines governing the removal and discipline of civil servants. In particular, courts began to apply principles such as the Accardi doctrine and the Chenery rule—originally developed for public-facing regulatory action—to disputes between the federal government and its own employees. The result was a nascent body of administrative law that treated personnel decisions not as matters of unfettered executive discretion, but as legal acts subject to procedural constraint.

The Article makes two central claims. First, it argues that civil service law should be understood as a core component of administrative law—not merely a subspecialty of public employment law. Legal rules governing the hiring, discipline, and removal of civil servants serve the same functions as more familiar administrative law doctrines: they mediate interbranch conflict, preventing any one branch from dominating federal policy-making and thus serving deeper separation-of-powers and rule of law values. Second, it argues that the regulation of federal employment not only prevents the aggrandizement of the political branches, but also protects individual rights. In the postwar era, federal jobs functioned as a major form of state-administered benefit, and the procedures surrounding those jobs shaped broader public expectations about fairness, merit, and due process. Those expectations were deeply challenged during the unrest of the McCarthy period, but were ultimately vindicated by the creative adaption of administrative law principles.

These lessons are newly relevant today, as the second Trump administration embarks upon one of the most ambitious attempts to remake the federal civil service in generations, often explicitly seeking to replace merit systems with tests of personal and political loyalty.

--Dan Ernst

LHR 42:4

Volume 42:4 (November 2024) of Law and History Review, delayed by a malware attack on Cambridge University Press last summer, is now complete and available online.

Emergency by Design: The “Native Repressive Tribunals” and the Normalization of Exception in Colonial Algeria, 1858–1904
Sarah Ghabrial

Legacies and Legalities: Bequests of Land to Ecclesiastical Institutions in England c. 1180–1300
Sarah B. White

Rabbinic Evidence for the Spread of Roman Legal Education in the Provinces
Yair Furstenberg

The Isle of Man, Channel Islands and Statutes of the English Parliament, to 1640: Development and Change in Territorial Extent
Tim Thornton

Innovation in the Courts: Ellis and Jeffery Hart Bent in New South Wales—an Analysis of Minute Books
Paula Jane Byrne

“Lost in Translation”: Extraterritoriality, Subjecthood, and Subjectivity in the Anglo–Yemeni Treaty of 1821
Itamar Toussia Cohen

Constitutional Panic in British India: How the Ilbert Bill Controversy of 1883 Revealed the Constitutive Character of Racial Discrimination in the British Empire
Gwinyai Machona

“Another Human Sacrifice Thrown to the Pitiless Moloch of Police Power”: The Anti-Vaccination Movement, Parental Rights, and the Roots of American Anti-Statism, 1890–1917
Julia Bowes

Weber in Jerusalem: The Rabbinical Debate over the Establishment of the Rabbinical Court of Appeals, 1918–1921
Chagai Schlesinger

Conflicting Legal Perspectives on the Establishment of Kingdom of Serbs, Croats, and Slovenes
Igor Ivaškovic

Not Only Territorial Waters But Also Free Sea: Contested Coastal Jurisdiction in the Ravenna–Chishima Case (1892–1895)
Jiaying Shen

Book Reviews

Christian R. Burset, An Empire of Laws: Legal Pluralism in British Colonial Policy New Haven: Yale University Press, 2023. Pp. 272. $75.00 hardcover (ISBN 9780300253238). doi:10.2307/jj.5666741
Lisa Ford

Martti Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power, 1300–1870 Cambridge: Cambridge University Press, 2021. Pp. 1124. $99.99 paperback (ISBN 9781139019774). doi:10.1017/9781139019774
Aden Knaap

Alex Thompson, British Law and Governance in Treaty Port China 1842–1927: Consuls, Courts and Colonial Subjects Amsterdam: Amsterdam University Press, 2024. Pp. 180. €104,00 hardcover (ISBN 9789463720397). doi: 10.1515/9789048557097-004
Ivan Lee

Cushman on "the Erie Scoop"

Arthur Krock (LC)

Barry Cushman, Notre Dame Law School, has posted The Erie Scoop, which is forthcoming in the Green Bag 2d.:

When the Supreme Court decided the case of Erie Railroad Co. v. Tompkins on April 25, 1938, the entire Washington press corps missed the story. The universality of the oversight prompted at least two of the Justices to send word of the decision’s importance out through various channels. This article relates the tale. 

--Dan Ernst 

Bracke's "Reproductive Rights in Modern France"

Maud Anne Bracke has published Reproductive Rights in Modern France: Feminism, Contraception, and Abortion, 1950–1980 (Oxford University Press):

The introduction of the principle of women's reproductive liberty in France, tentatively by the family planning movement after 1960 and explicitly by the women's liberation movement after 1970, marked a deep shift, transforming public discourses. Yet this principle remained fiercely contested, and moderate and conservative actors responded by foregrounding notions of 'reproductive responsibility', or the expectation that individuals perform the 'right' sexual and family-making behaviour, benefiting not only themselves and their families, but the nation at large. Such responsibilisation underpinned the legal reforms of the 1960s-70s, framing a notion of reproductive citizenship based on a tension between individual rights and social norms.

This book breaks new ground by taking an intersectional approach to the defining moments of this period: the legalisation of contraception (the laws of 1967 and 1974) and the liberalisation of abortion (1975, 1979). Drawing on a wide range of sources and actors--including feminist and family planning movements, government actors, demographers, medical-professional organisations, disability rights groups, and key actors in the overseas departments--Maud Bracke demonstrates how the discourse of responsibilisation allowed actors to distinguish between citizens 'worthy' of reproductive rights and those seen as less worthy. Bracke analyses the distinct regulations regarding contraception in the overseas departments of Guadeloupe and Martinique, framed by racialised anti-natalism. The book also demonstrates that disability rights organisations contributed to the discrediting of the notion of 'eugenic abortion', used among experts and policy-makers until the early 1970s. Furthermore, Bracke goes on to highlight the silence in the feminist movement around both disability rights and race as part of its universalisation of women's conditions of oppression, and analyses the emergence of Black Feminism in late-1970s France. In so doing, the book offers a major contribution to the history of sex, gender, family life, healthcare, demography, and political debate in post-war France, and more generally.

--Dan Ernst