Desan on the US History of Public Banking

Christine A. Desan, Harvard Law School, has posted Public Banking in the United States: Historical Lessons for Today, which is forthcoming in the Williamette Law Review:

This article reviews the long history of American public banking from its start in colonial Pennsylvania to current state-level initiatives.  That history includes banks owned exclusively or in part by states – every one of the original 13 states owned stock in some of the banks it chartered.  States also conditioned charters to private investors on activities conducive to the public welfare and imposed significant taxes on bank capital.  Public ownership declined over the 19th century for several reasons, including the development of legal doctrines that enlarged corporate autonomy and their privileges as business entities, as well as the rise of profits available to banks as commercial actors.  There is a strong case for returning to public banks.  At the economic level, private retail banking lends according to criteria overly narrow to reach all deserving borrowers, particularly those whose wealth accumulation has been limited by past discrimination.  At the ethical level, a return to public banking comports with the way money is created. That operation is pervasively supported by public authority, a reality that public banking would make more transparent.

--Dan Ernst

AHA Congressional Briefing on Deportation

[We have the following announcement.  DRE.]

The American Historical Association invites you to attend a Congressional Briefing offering historical perspectives on United States deportation policies and practices. The briefing will take place on Thursday, March 13, at 9:00 a.m. ET in Rayburn House Office Building Room 2075.

Panelists Hidetaka Hirota (Univ. of California, Berkeley), Ana Raquel Minian Andjel (Stanford Univ.), and Yael Schacher (Refugees International), with moderator James Grossman (American Historical Association), will discuss history of policies related to immigration and deportation throughout US history. Topics will include the origins of deportation policy, the post WWI "Palmer Raids," mass deportations of Mexican Americans during the 1930s and 1950s, evolving policy changes around asylum, and other issues.

The event is open to the public; no registration is required. A breakfast spread and coffee will be served. If you have any questions, please email brosenbaum@historians.org.

The AHA’s Congressional Briefings series seeks to provide Congressional staff members, journalists, and other members of the policy community with the historical context essential to understanding contemporary issues. The sessions are strictly nonpartisan and avoid advancing particular policy prescriptions or legislative agendas. Recordings of our recent briefings providing historical perspectives on are available on the AHA’s website.

Berger-Howe Fellowship to Hayes

[We have the following announcement.  DRE]

The Raoul Berger-Mark DeWolf Howe Legal History Fellowship for 2025-2026 at Harvard Law School has been awarded to Jelani Hayes.  A fifth-year doctoral candidate in history at Harvard, she received her B.A. from Penn and her law degree from Yale, where she was editor-in-chief of the Yale Journal of Law & Feminism.  Her dissertation, which she expects to complete during the fellowship, is entitled, “Mother Country: The Making of the Modern Family Regulation System, 1954-1978.”

CFP: Legal Education Prognosticators in Retrospect

[We have the following announcement.  DRE]

The Journal of Legal Education is the official scholarly journal of the [Association of American Law Schools] and in that role it has and continues to play an important role in chronicling the development of legal education in the United States. For a special symposium issue dedicated to analyzing that role, the editors invite submissions of articles that reflect on one or more articles published in the journal which at the time of publication discussed the future of United States legal education and then assess how the events in the years following the publication exhibited the arguments put forward by the authors. For example, publication of the McCrate and Carnegie reports inspired articles on the what the future should hold in light of those studies. How prescient were the authors of those articles? Other articles have discussed and assessed what at the time were new developments in pedagogy, scholarship, and the profession in general. Have those developments simply continued, flourished, or withered away?

The goal is to publish in JLE work honoring its history by presenting thoughtful assessments of the plans and predictions put forward in the past with the goal of helping think more rigorously about our own future.  The entire run of JLE is available on HeinOnline and from the mid-1980s on Westlaw. Both platforms, of course, have search functions, and Hein provides a complete view of each issue.

Proposals for individual responses or collections of shorter responses all responding to the same article with an abstract of the work are due March 24, 2025 to the New York Law School editorial team at JLE-CFP@law.nyls.edu. Contributors will be notified promptly with the expectation that final drafts of articles will be due July 15, 2025.

CFP: ASLH 2025

[We are reposting the Call for Papers for the annual meeting of the American Society for Legal History to be held in Detroit on November 13-15, 2025, ass the deadline on March 25 is approaching.]

The Program Committee of the American Society for Legal History invites proposals for the 2025 meeting to be held November 13-15 in Detroit. Panels and papers on any facet or period of legal history from anywhere in the world are welcome. We encourage thematic proposals that transcend traditional periodization and geography. The online portal opens on December 9, 2024. The deadline for Pre-Conference Symposia proposals is Friday, February 28, 2025. The deadline for all other submissions is Tuesday, March 25, 2025. All proposals except for pre-conference symposia must be submitted through this link.

Panel proposals should include the following: a CV with complete contact information for each person on the panel, including chairs and commentators; 300-word (maximum) abstracts of individual papers; and a 300-word (maximum) description of the panel. Only complete panel proposals will be considered.

Scholars looking to build a panel may post their potential paper topics here. We encourage individuals to peruse this spreadsheet to identify other scholars with common interests, beyond their familiar networks. Senior scholars who are willing to chair and/or comment on a panel may register their interest and availability here. All program participants must be current members of the Society by the date of the Annual Meeting. Information on how to build a successful panel can be found here. The Program Committee especially encourages panels that include participants from groups historically under-represented in the organization, and that include participants who represent a diversity of rank, experience, and institutional affiliation.

In addition to traditional panels featuring presentations of work in progress, the Program Committee welcomes other forms of structured presentation for a 90-minute slot, such as a skills/pedagogical workshop (chair, 3-4 presenters) or a roundtable format (chair, 3-5 presenters).

Following last year’s highly successful inaugural session, this year’s Annual Meeting will also dedicate a session to a presentation and discussion of Digital Legal History projects. Individuals interested in participating in this session should submit a short description of their project (up to 300 words) as well as a CV. As a complement to the session, there will be a poster display of the accepted projects. Accepted participants in the Digital Legal History session will be asked to submit a poster design to the organizers by early October. Posters will be printed onsite.

In addition to the above formats, this year’s meeting will also consider New Directions panels. The purpose of these panels will be to identify cutting-edge methodological and topical directions in legal history, to define new subfields, and/or generate dialogue among scholars whose recent books (published since 2022 or forthcoming) have tackled common historiographic questions. These panels will feature three to five authors of new books organized by theme, chronology, methodology and may also include scholars writing review essays of a field, or others similarly positioned. The session abstract should include the author, title, publisher, and publication date for each proposed book. Please note that the Program Committee will devote only a small number of sessions to this type of panel. The New Directions panels replace the Author-Meets-Readers (AMR) panels which were formally on the program; AMRs will not be available for the 2025 meeting.

[For a table setting out requirements for the submission of various types of panels, please visit the ASLH website.]

The Program Committee additionally seeks proposals for full-day or half-day pre-conference symposia crafted around related themes to augment traditional conference offerings. We especially encourage proposals for pre-conference events that will involve scholars in emerging fields or in fields previously underrepresented at ASLH conferences and/or that will promote early career scholarly development. We encourage those considering submitting a proposal for pre-conference symposia to be in touch with the program committee chairs. To submit a proposal, please email the program co-chairs directly to provide a short proposal (1-2 pages) including program title, the intended length of program, and a program description, as well as a CV and contact information for each presenter. The Program Committee is available to consult with organizers of such symposia as they develop their proposal, but pre-conference symposia must be self-funded. Organizers are encouraged but not required to host their symposia at the conference hotel. Please note that the deadline for these submissions is earlier than the deadline for main conference submissions so that organizers whose symposia are not selected have an opportunity to submit their panels to the main conference.

As a general matter, we will not be able to accommodate special scheduling requests, nor will we be able to support hybrid or virtual presentations or panels. (For a fuller explanation of this policy, please see the ASLH Annual Meetings FAQ page.) Until a draft of the program is circulated, prospective presenters, chairs, and commentators at the main conference should plan to be available in person on Friday, November 14, and Saturday, November 15.

The ASLH has a strict one-appearance policy (excluding appearances at pre-conference symposia). Prospective participants may submit proposals for multiple sessions, with the understanding that the panel chair will be responsible for promptly finding an appropriate substitute member for any session from which a participant has to withdraw.

Limited financial assistance (covering airfare and ground transportation only) is available for presenters in need, with priority given to graduate students, post-doctoral fellows, contingent faculty, and scholars from abroad.

The members of the Program Committee are Maggie Blackhawk, Jocelyn Hendrickson, Zach Herz, Hide Hirota, Youssef Ben Ismail, Jedidiah Kroncke, Tim Lovelace, Jane Manners, Noah Rosenblum, Natasha Wheatley, and Yanna Yannakakis. The co-chairs of the Program Committee are Deborah Dinner (deborah.dinner@cornell.edu) and Jessica Marglin (marglin@usc.edu).

Machona on the Ilbert Controversy of 1883

Now available online from Law and History Review: Constitutional Panic in British India: How the Ilbert Bill Controversy of 1883 Revealed the Constitutive Character of Racial Discrimination in the British Empire, by Gwinyai Machona:

Until today, not only the general public but also scholars of colonialism and imperialism debate about the extent to which Europeans were aware of the centrality of racial discrimination for colonialism and empires. Those who stress that racism was the foundation of European colonialism appear to be anachronistic. However, as this essay demonstrates, at least the British of the late nineteenth century were well-aware of the constitutive character of racial discrimination for their Empire. During the “constitutional panic” which the proposal of the Ilbert Bill in 1883 caused, the arguments exchanged in newspapers, town hall meetings and parliamentary debates revealed the racist foundation of British India. One contemporary observed “the unhappy tendency of this controversy to bring into broad daylight everything which a wise and prudent administrator should seek to hide.” This essay seeks to bring into broad daylight once again what has been widely forgotten or ignored. Statements in Parliament expressing that it was “perfectly impossible and ridiculous, so long as we retained our hold on India, to give Native races full equality” testify for explicitness of the debate. Analyzing the arguments against the Ilbert Bill, which sought to introduce full racial equality in the judiciary, serves for better understanding the foundation of British India.

--Dan Ernst

Legal Transfer and Legal Geography in the British Empire

The Max-Planck-Institut für Rechtsgeschichte und Rechtstheorie have published, open access, Legal Transfer and Legal Geography in the British Empire: Global Perspectives on Legal History, edited by Donal K. Coffey and Stefan Vogenauer:

The legal history of the British Empire is in its infancy. The research field ‘Legal Transfer in the Common Law World’ in the Max Planck Institute for Legal History and Legal Theory under the Directorship of Prof Stefan Vogenauer has been engaged in scientific examination and analysis of this field. In 2021, the Third Legal Histories of Empires Conference was held in the National University of Ireland, Maynooth. A stream looking at the state of the art in Legal Transfer in the Common Law World was organized by Stefan Vogenauer and Donal Coffey, who have co-edited this volume which flows from that stream.

The book argues that a comparative approach can overcome jurisdictional and ahistorical biases still often present in the legal history of empires. In an imperial legal superstructure, such as the British Empire(s), models of legislative and interpretative methods were self-consciously adopted and adapted to different jurisdictions. Moreover, the process of decolonisation disclosed similarities and divergences in the legal development of these territories. Useful insights can be gleaned from a comparison across different methodologies which are concerned with a similar normative framework between and within societies, and their relationship to the natural world.

The volume has two parts. The first presents four case studies for legal transfers in chronological order. Philip Girard’s chapter traces the evolution of the law regulating employers’ liability for injured workers in Quebec. Matilde Cazzola’s work looks at the evolution of the ‘protective principle’ and its deployment through a comparative lens, with a particular focus on the United Kingdom and the Australian colonies in the 19th century. Scott A. Carrière looks at the evolution of law in colonial Newfoundland, and in particular at the relationship between contract law, charters, and Company States. In Hong Kong, Christopher Roberts and Hazel W. H. Leung analyse the evolution of vagrancy law.

The second part contains a number of contributions engaging with the burgeoning field of legal geography in the context of the Empire. This is based around the ‘Property [In]Justice’ ERC group in University College Dublin headed by Amy Strecker. It includes chapters on the Caribbean by Amanda Byer, Southern Africa by Sonya Cotton, Kenya by Raphael Ng’etich, and a chapter by Sinéad Mercier on Ireland.

The different areas of law covered – including inter alia public law, employment law, land law – demonstrate the vitality of the comparative method.

--Dan Ernst.  TOC after the jump.

Birthright Citizenship: Kreis et al. and Lash

Anthony Michael Kreis, Georgia State University College of Law, Evan D. Bernick, Northern Illinois University College of Law, and Paul A. Gowder, Northwestern University Pritzker School of Law, have posted Birthright Citizenship and the Dunning School of Unoriginal Meanings, which is forthcoming in Cornell Law Review Online:

This essay critically surveys the recent debate surrounding birthright citizenship in the United States, particularly in light of arguments presented by legal scholars Randy Barnett and Ilan Wurman. Under the guise of "originalism," Barnett, Wurman, and others propose an ahistorical, revisionist interpretation of the Fourteenth Amendment's Citizenship Clause. They suggest that the term "jurisdiction" should be understood as "allegiance," seemingly to give the veneer of legitimacy to the Trump Administration's view that the children of undocumented immigrants may not be American citizens. The essay argues that Barnett and Wurman's approach, which attempts to radically redefine the historical understanding of citizenship, is methodologically flawed and undermines core principles of constitutional law. The critique exposes the inaccuracies and inconsistencies in their position and scrutinizes the scholarly merit of new theories of birthright citizenship that are wildly inconsistent with constitutional text, history, precedent, and unbroken tradition. The essay concludes by examining the professional responsibility of legal scholars to engage in rigorous, fact-based historical analysis rather than politically motivated reinterpretations that threaten to destabilize fundamental constitutional rights.

And Kurt Lash, University of Richmond School of Law, has posted Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment Citizenship Clause:

The current debate over the original meaning of the so-called Birthright Citizenship Clause generally divides over how much weight to give each of the two requirements for birth citizenship. Some scholars emphasize the role of birth on American soil, making it dispositive unless trumped by a limited and closed set of common law “exceptions.” Other scholars claim the second requirement of “jurisdiction” must be given equal and independent weight. For example, some scholars claim there must be independent evidence that one has become “subject” by way of mutual consent or positive allegiance to the American sovereign.

This essay proposes a different and more historically justified way to understand the dual requirements of birth citizenship: Prima facie citizenship. As explained by Attorney General Edward Bates in his influential 1862 Report “On Citizenship,” prima facie citizenship treats birth in the United States as establishing a presumption of citizenship. That presumption may be overcome, however, by positive evidence that the person was not born “subject to the jurisdiction” of the United States. That requirement involves considerations of familial allegiance to the law-speaking authority of the people of the United States.

This approach solves a number of conundrums unexplained under either of the standard approaches. For example, it explains why children born on the same “invader-occupied” American soil have different citizenships depending on the allegiance of their parents. It also explains why children born to foreign diplomats are not American citizens even if born on the obviously American soil of an American hospital. Finally, and most importantly to the framers of the Fourteenth Amendment, it explains why children born on American soil to Native American parents who refused to be bound by either the laws of their Tribal Government or the laws of the United States were not considered to have been born “subject to the jurisdiction of the United States.”

This last group are most analogous to children born to non-citizen parents who intentionally enter the United States in violation of the law-speaking authority of the sovereign people of the United States. According to the original understanding of the Citizenship Clause, these children were born in the United States, but not in a manner “subject to the jurisdiction thereof.” This would not be true, however, of children born to parents kidnapped and illegally smuggled into the United States in violation of laws banning the international slave trade.

--Dan Ernst

We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality

I am excited to spend March as a guest blogger for the Legal History blog. Thanks to Karen Tani and Dan Ernst for inviting me. 

My posts will preview my latest book, We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality (Oxford University Press forthcoming March 13, 2025). The United States Constitution purports to speak for “We the People.” I wrote this book because too many of the stories that powerful Americans tell about law and society include only We the Men. 

America’s dominant modes of forgetting about women help perpetuate women’s inequality, rationalizing the status quo, promoting complacency, and undercutting reform. I argue that remembering women’s stories more often and more accurately can help the nation advance toward sex equality. 

Stay tuned for more posts. Let’s celebrate Women’s History Month—while it still exists.

 — Jill Hasday

Welcome, Jill Hasday!

We at LHB are thrilled to welcome back Professor Jill Hasday as a guest blogger for the month of March. Some highlights from Professor Hasday's University of Minnesota faculty webpage:

Professor Jill Hasday teaches and writes about anti-discrimination law, constitutional law, family law, and legal history. She is the author of three books: Family Law Reimagined (Harvard University Press 2014), Intimate Lies and the Law (Oxford University Press 2019), and We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality (Oxford University Press forthcoming 2025).  Intimate Lies and the Law won the Scribes Book Award for “the best work of legal scholarship published during the previous year” and the Foreword INDIES Book of the Year Award for Family and Relationships.

Professor Hasday’s articles have appeared in many leading law reviews, including the Harvard Law Review, Stanford Law Review, New York University Law Review, Michigan Law Review, California Law Review, Georgetown Law Journal, UCLA Law Review, Vanderbilt Law Review, and Minnesota Law Review.

Professor Hasday received her B.A. from Yale University in 1994, graduating summa cum laude with distinction in history and winning election to Phi Beta Kappa. In 1997, Professor Hasday graduated from Yale Law School, where she was an articles editor of the Yale Law Journal and received honors in all graded courses. After law school, Professor Hasday clerked for Judge Patricia M. Wald of the United States Court of Appeals for the D.C. Circuit.  Professor Hasday joined the University of Minnesota Law School as a tenured faculty member in 2005. She has been the Centennial Professor in Law since 2013.

She will be blogging mainly about her new book We the Men, which we profiled earlier this month (here).

Welcome, Professor Hasday!

-- Karen Tani

Shanahan's "Disparate Regimes"

Brendan A. Shanahan, a Lecturer in the Department of History at Yale University, has published Disparate Regimes: Nativist Politics, Alienage Law, and Citizenship Rights in the United States, 1865-1965 (Oxford University Press):

Historians have well described how US immigration policy increasingly fell under the purview of federal law and national politics in the mid-to-late nineteenth century. It is far less understood that the rights of noncitizen immigrants in the country remained primarily contested in the realms of state politics and law until the mid-to-late twentieth century. Such state-level political debates often centered on whether noncitizen immigrants should vote, count as part of the polity for the purposes of state legislative representation, work in public and publicly funded employment, or obtain professional licensure.

Enacted state alienage laws were rarely self-executing, and immigrants and their allies regularly challenged nativist restrictions in court, on the job, by appealing to lawmakers and the public, and even via diplomacy. Battles over the passage, implementation, and constitutionality of such policies at times aligned with and sometimes clashed against contemporaneous efforts to expand rights to marginalized Americans, particularly US-born women. Often considered separately or treated as topics of marginal importance, Disparate Regimes underscores the centrality of nativist state politics and alienage policies to the history of American immigration and citizenship from the late nineteenth to the mid-twentieth centuries. It argues that the proliferation of these debates and laws produced veritable disparate regimes of citizenship rights in the American political economy on a state-by-state basis. It further illustrates how nativist state politics and alienage policies helped to invent and concretize the idea that citizenship rights meant citizen-only rights in law, practice, and popular perception in the United States.

--Dan Ernst

Race and US Citizenship in the 1850s: View from Abroad

M. Scott Heerman's Sources and U. S. Citizenship in the Antebellum United States: A View from Abroad is available as a "first look" in Law and History Review:

William L Marcy (wiki)

This article republishes a series of documents concerning citizenship rights for African Americans who were abroad. Twice during the 1850s the U.S. Secretary of State (William L. Marcy) issued instructions to consuls where he spelled out the relationship between race and citizenship for individuals who were beyond the borders of the United States. Because citizenship was not clearly defined the antebellum period, either in law or practice, the Secretary's guidance offers an important set of documents that scholars from a variety of fields can incorporate into their scholarship and teaching.

--Dan Ernst

Macey and Richardson on Public Utilities and the Nondelegation Doctrine

Joshua C. Macey and Brian Richardson have published The Public Law of Public Utilities in 42:1 of the Yale Journal on Regulation:

This Article describes the constitutional history of public utility regulation to make sense of apparent puzzles and inconsistencies in modern administrative law. In chronicling this history, we first show that utilities’ special constitutional right to challenge regulations on substantive-due-process grounds is based on a public-private distinction that courts have otherwise rejected. Second, we argue that modern efforts to invoke Article III to restrict agency adjudication do not reflect a consistent understanding of the public-private distinction, but instead revive the distinction in some contexts (adjudication) but not others (rulemaking). Third, we provide a new framework for understanding the Supreme Court’s turn to structural arguments to check administrative agencies. On the last point: for nearly five decades prior to 1935, courts used rights-based arguments, not structural ones such as the nondelegation doctrine, to deduce the scope and content of the legislative, executive, and judicial powers. Once the Supreme Court abandoned its freedom-of-contract jurisprudence, it was a public utility case that breathed new life into the nondelegation doctrine. Public utilities were a natural battle ground for reshaping the public law of administration. Like today, private rights, delegation, and agency adjudication were all central preoccupations of this public utility moment, but the frameworks courts advanced to answer these puzzles have vanished from our modern debate. Today’s administrative law thus reflects an ad hoc revival of public utility legal concepts, and it reinvents these concepts such that they bear little resemblance to their public utility genealogy.

--Dan Ernst

Goldsmith, Barco and Mack to Lecture at SCHS

The Supreme Court Historical Society has announced a three-part lecture series for Spring 2025:

Lecture One – Virtual
In Hoffa’s Shadow: Chuckie O’Brien, the Supreme Court, and a Son’s Search for the Truth
A Lecture by Professor Jack Goldsmith
March 19, 2025 | 12:00 PM ET | Via ZOOM

As a young man, Jack Goldsmith revered his stepfather, longtime Jimmy Hoffa associate Chuckie O’Brien. But as he grew older and pursued a career in law and government, he came to doubt and distance himself from the man long suspected by the FBI of perpetrating Hoffa’s disappearance on behalf of the mob. It was only years later, when Goldsmith was serving as assistant attorney general in the George W. Bush administration, that he began to reconsider his stepfather and to understand Hoffa’s legacy.  

Professor Goldsmith wrote In Hoffa’s Shadow to share how he reunited with the stepfather he’d disowned and then set out to unravel one of the twentieth century’s most persistent mysteries and Chuckie’s role in it.

Lecture Two – Virtual
Denied but Not Defeated: Myra Bradwell and the Battle for Women in Law
A Lecture by Siobhan Barco
April 22, 2025 | 2:00 PM ET | Via ZOOM

Myra Colby Bradwell (February 12, 1831 – February 14, 1894) was a Chicago publisher and political activist. She attempted in 1869 to become the first woman to be admitted to the Illinois bar to practice law but was denied admission by the Illinois Supreme Court in 1870 because of her sex. She was denied again on appeal to the Supreme Court of the United States in Bradwell v. Illinois (1873). What happened to Ms. Bradwell after her case was decided?

Lecture Three – In Person
The Vanishing of Lloyd Gaines: A Supreme Court Victory and a Civil Rights Mystery
A Lecture by Professor Kenneth W. Mack
May 21, 2025 | 6:00 PM ET | Supreme Court of the United States
Tickets: $50 | Reception to Follow | Advance Registration Required

Lloyd Gaines (1911 – disappeared March 19, 1939) was born in Mississippi and moved to Missouri with his mother and siblings.  He attended the Blacks-only Lincoln University in Jefferson City, Missouri.  He then applied to the University of Missouri Law School, which did not admit Black students. With the help of the NAACP, he was the petitioner in Gaines v. Canada. In 1938,  the Supreme Court held that states that provided a school for  White students had to allow Black students to attend or provide a separate school for them. Shortly after this victory though, Lloyd Gaines disappeared. He was never found.  What happened to Lloyd Gaines?

--Dan Ernst

ICH Seminar: Religion in American Law

[We have the following announcement.  And, to disambiguate: the Institute for Constitutional History is not to be confused with the Institute for Constitutional Studies, directed by Maeva Marcus at GW Law.  DRE]

The New York Historical's Bonnie and Richard Reiss Graduate Institute for Constitutional History's spring
seminar has been announced and will examine how the principles of disestablishment and religious freedom were incorporated into American law, and their subsequent transformation over time.  The ICH seminar is produced twice per year and designed for graduate students, junior faculty, and other educators, in history, political science, law, and related disciplines. There is no tuition for this seminar. The spring seminar will take place in person throughout April/May.

“Religion in American Law: Incorporation, Transformation, Restoration,” Fridays, April 25; May 9, 16, and 30, 2025,  2–5 pm ET.  The seminar will be presented in person at The New York Historical, 170 Central Park West, New York, NY 10024.  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.

The instructors are Sally Gordon, the Arlin M. Adams Professor of Constitutional Law and Professor of History, emerita at the University of Pennsylvania, and Nomi M. Stolzenberg, the Nathan and Lilly Shapell Chair at the University of Southern California Gould School of Law.

The application deadline is March 28, 2025.  More information about the seminar and how to apply can be found here.

Weller, "Moses, Muhammad and Nature’s God in Early American Religious-Legal History, 1640-1830"

Palgrave Macmillan Cham has published Moses, Muhammad and Nature’s God in Early American Religious-Legal History, 1640-1830 (Sept. 2024), by R. Charles Weller (Washington State University). A description from the publisher:

This is the first comparative study of Mosaic and Islamic law in American history to be published. Constructing a complex picture in trans-Atlantic, trans-European and world historical perspectives, this book elucidates the intersections that lie beneath and behind the rise of the debates in the 1990s and 2000s over the promotion of the Ten Commandments and Mosaic Law as alleged sources of American Constitutional law and symbols of American national identity. These debates have taken shape in close connection with resurgent anti-Semitism, anti-Sharia protests and anti-Sharia legislation throughout the United States and other Western societies.

More information is available here.

-- Karen Tani

Weekend Roundup

• Jonathan Gienapp continues his engagement with "original public meaning" originalists.  "[O]riginalists assume that historians’ primary contribution is that they know that something happened or that a word had a certain meaning in the past," he writes. "Historians, meanwhile, tend to believe that their principal skill is in knowing how to decode historical utterances in all their guises. The knowing that is thus built on the knowing how, or, better put, the knowhow" (Process).

• 

  Raulston,J., charges the Scopes Trial jury (NYPL).

  On March 20-21, the Kislak Center at the University of Pennsylvania will host a hybrid event on "The Scopes Trial at 100: Secularism, Race, and Education." More information is available here. 
  

• Edward Larson will deliver the Palmer Hotz Endowed Lecture in the History of Science on the Scopes Trial at the University of Arkansas at 5:15 p.m. Thursday, March 6, in the Gearhart Auditorium.
  

• The Supreme Court Historical Society lecture, "The Life and Times of Chief Justice Oliver Ellsworth," by William R. Casto will be held at 12:00 PM (EST) on February 24, 2025, via Zoom.  The Society will subsequently post a recording on its YouTube channel.  Register here.
  

• At the next meeting of the Helsinki Legal History Series seminar, on February 25 and conducted over Zoom, Susanne K. Paas of the Max Planck Institute for Legal History and Legal Theory, will speak on “Josef Esser: A German Jurist in Four Systems.”  More.

• At the next online meeting of the Environment, Law, and History Global Workshop, Benjamin Richardson, University of Tasmania Faculty of Law, will present the previously circulated paper, “Conservation Covenants in Castlecrag, Sydney: Walter Burley and Marion Griffin’s Legal Innovation in the Interbellum.”  Carol Rose will comment.  The session will take place on March 27 at 9 pm UTC.  (Convert to your time zone, if necessary, here.)(H-Law).
  

• "Christian, Jewish, Islamic & Secular Law in American & International History," a Zoom panel, will take place on Thursday, February 27 at 3:30 EST. Panelists include Deina Abdelkader, David Novak, Peter N. Stearns, and R. Charles Weller.  Register here  (H-Law).
  

• Five top public law scholars have responded to the Barnett/Wurman NYT op-ed on birthright citizenship (Just Security).  And Jonathan Schaub, after reviewing the exchange, adds an argument based on expatriation (Lawfare).
  

• Mark Tushnet, Stephen Skowronek, and John A. Dearborn discuss “the destruction of the public service” on the Scholars’ Circle podcast.
  

• ICYMI, State Constitutional History Edition: The New Hampshire Department of Education has launched a series of digital resources on the New Hampshire Constitution (Discovery).  Also, "Iowa's unique civil rights history must be taught, not suppressed" (Des Moines Register).  The inalienable rights clause of the North Dakota Constitution figures in a reproductive rights brief files by the Constitutional Accountability Center (CRR).  Teaching Americanism in New York classrooms, 1919-1922 (New York Almanack).  
  

• Karin Wulf on "Abigail Kimball's law book...1785" in Princeton's Lapidus Collection (BlueSky).

• ICYMI: The Charter of the Forest of 1225, the Magna Carta of 1215, and the Forest Charter of 1217 are on display at Lincoln Castle until June 1, 2025 (Lincolnshire Today).  A new library at Adams State University will preserve "the water, land and cultural history of the Upper Rio Grande River Basin" (KRCC). Vittorio Bufacchi's short history of separation of powers (The Conversation).  The six sentences George Washington cut from his farewell address (Slate). 
  

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

Epps and Levy on the Supreme Court and Court Reform

Daniel Epps, Washington University in St. Louis School of Law, and Marin K. Levy, Duke University School of Law, have posted Judicial Reform from the Inside Out, which they prepared for the Notre Dame Law Review’s Spring 2025 Federal Courts Symposium on the 100th Anniversary of the Judiciary Act of 1925 and is forthcoming in the Notre Dame Law Review:

The Judiciary Act of 1925, the subject of this Symposium, is known as “The Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous; perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in judicial reform efforts—what we call judicial reform from the inside out.

We survey examples of judges participating in reform debates from across different historical eras and different levels of the federal judiciary. We then use our descriptive account as a platform for theoretical and normative analysis. We begin by drawing some general lessons from the historical narrative. We then identify the overarching costs and benefits of judicial participation in reform, as well as the many factors for which one must account in normatively assessing any one instance of inside-out judicial reform. Relying on that framework, we offer some tentative recommendations for how inside-out judicial reform can be appropriately channeled.

Studying judicial reform from the inside out can help us understand court administration, the judicial role, and the relationship between the judiciary and the political branches—as well as shedding light on the current debate over reform of the Supreme Court.

--Dan Ernst

Equality: Race and Constitutional History

“Equality: Race and Constitutional History,” a Harvard Law School Online course taught by Michael Klarman, treats “the Constitution’s deep entanglement with race” in “six self-paced modules and a one-hour discussion session with Klarman and fellow learners.”  The course “is designed to reach a broad audience, including educators and non-lawyers. Registration is open through Friday, February 21, 2025"--that is, tomorrow.

--Dan Ernst

ASLH/Notre Dame Graduate Legal History Colloquium: March 2025 Session

The ASLH/Notre Dame Graduate Legal History Colloquium will convene on March 8, 2025. Virtual participation remains an option for those who want to attend. Register here. The schedule: 

ASLH/Notre Dame Graduate Legal History Colloquium
March 8, 2025 | 10 AM - 3 PM (CST)
Notre Dame Law School | Chicago, IL

Registration/Welcome 09:45 - 10:05 AM 

 

Paper #1: Legal History of Science and Medicine 10:05 - 11:00 AM

“Visions of the Body and Citizenship in 19th Century U.S. Jurisprudence”

Author: Michael Ortiz-Castro, Bentley University

Respondent: Ijeoma Kola, Assistant Professor of History, University of Notre Dame


Paper #2: Gender & Criminal Law in the Progressive Era 11:05 - 12:00 PM

“‘For a Good Reason’: Surveillance of Prostitution in Progressive Era Chicago”

Author: Abbie Reese, Loyola University - Chicago

Respondent: Kate Masur, Board of Visitors Professor of History, Northwestern University


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


Paper #3: Regulation in the Nineteenth Century 01:05 - 2:00 PM

“The Long Shadow of Railroad Governmental Ownership”

Author: Alon Jasper, New York University

Respondent: Barry Cushman, John P. Murphy Foundation Professor of Law, University of Notre Dame


Paper #4: Medicine & Gender in Chinese Legal History 02:05 - 3:00 PM

“Gendered Citizenship in Republican China: Women’s Rights, Feminist Constitutionalism, and Eugenics”

Author: Yu Liu, University of California - Santa Barbara

Respondent: Michel Hockx, Professor of East Asian Languages and Cultures, University of Notre Dame 

-- Karen Tani

"On Legal Historical Study" at Bristol Law

[We have the following announcement.  DRE.]

Methods Exchange: On Legal Historical Study

February 16, 2025, 10.00 AM to 12.00 PM.   Lady Hale Moot Court Room, University of Bristol Law School,  8-10 Berkeley Square, Bristol BS8 1HH.

Do historians and lawyers approach legal historical study differently? Do their methods vary? Are the sources they look at distinct? Do their conclusions share a common essence? Or are the stories they tell disparate? What, then, can they learn from one another? Can an inter-disciplinary conversation throw light on unique or shared methodological leanings and challenges?

Join us for an engaging conversation on these themes amongst Professor Kate Skinner, Dr William Pooley and Dr Gonzalo Velasco Berenguer from the Department of History, and Professors Gwen Seabourne, Sally Sheldon and Lois Bibbings from the Law School.

Organised by the Centre for Law and History Research, in collaboration with the Department of History, the panel will look at a fascinating array of legal historical research across themes and contexts: from witches in France, wives in Ghana and marriage in the Philippines to medieval law, abortion law and insider/outsider perspectives within legal historical research. The focus will be on methods, more specifically methodological choices made, and challenges faced, with the aim of moving past disciplinary boundaries to co-create a space for interdisciplinary knowledge sharing.

If you are interested in attending this event, please register using [this] link.

Speakers:

Professor Kate Skinner, ‘Who, and what, is a wife? A political history of family law reform in postcolonial Ghana’

Dr Willaim Pooley, ‘Liberty, Equality… Sorcery? Law and Witchcraft after Decriminalisation in France, 1682-1940’

Dr Gonzalo Velasco Berenguer, ‘Mapping Marriage and Intimacies in the Spanish Philippines’

Professor Gwen Seabourne, ‘Medieval Law Today’

Professor Sally Sheldon, ‘Writing the biography of a statute’

Professor Lois Bibbings, ‘Insider/outsider perspectives and activism’

"Mastery & Drift": Essays on Liberal Professionals since the Sixties

The University of Chicago Press has just published Mastery and Drift: Professional Class Liberals Since the 1960s, edited by Brent Cebul and Lily Geismer.  Several contributions are of interest to legal historians, including “Creating ‘Initiatory Democracy’: Ralph Nader, the Center for the Study of Responsive Law, and the Shaping of Liberalism in the 1970s,” by Sarah Milov and Reuel Schiller.

Since the 1960s, American liberalism and the Democratic Party have been remade along professional class lines, widening liberalism’s impact but narrowing its social and political vision. In Mastery and Drift, historians Brent Cebul and Lily Geismer have assembled a group of scholars to address the formation of “professional-class liberalism” and its central role in remaking electoral politics and the practice of governance. Across subjects as varied as philanthropy, consulting, health care, welfare, race, immigration, economics, and foreign conflicts, the authors examine not only the gaps between liberals’ egalitarian aspirations and their approaches to policymaking but also how the intricacies of contemporary governance have tended to bolster professional-class liberals’ power.

The contributors to Mastery and Drift all came of age amid the development of professional-class liberalism, giving them distinctive and important perspectives in understanding its internal limitations and its relationship to neoliberalism and the Right. With never-ending disputes over the meaning of liberalism, the content of its governance, and its relationship to a resurgent Left, now is the time to consider modern liberalism’s place in contemporary American life.

--Dan Ernst

Kominers on a Landmark Judicial Removal Case

Paul Kominers, an associate at the law firm Anderson & Kreiger LLP, has published Judge Day’s Case: A Historical Account of Commonwealth v. Harriman in the December issue of the Massachusetts Law Review. Mr Kominers describes Harriman, decided in 1883, as “the leading case on removal of judges by address in Massachusetts.”  From the introduction:

In Harriman, the Supreme Judicial Court (SJC) decided it could not second-guess the removal of a judge from office “by address.” The opinion, a straightforward historical example of the “political question” doctrine, reads as an exercise in formal constitutional interpretation, but should be understood as a product of its particular historical context.

--Dan Ernst

Perl-Rosenthal and Erman on Birthright Citizenship

Nathan Perl-Rosenthal and Sam Erman have published, open access," Inventing Birthright: The Nineteenth-Century Fabrication of jus soli and jus sanguinis," in Law and History Review:

Formal membership in a state has been an essential political status for well over a century. It is typically gained at birth, either jus soli or jus sanguinis. Jus soli assigns nationality by birth in a nation's territory; jus sanguinis assigns children their parents’ nationality. This article provides an alternative intellectual history of the modern dominance of these principles for attributing nationality. Contrary to prior scholarship, soli and sanguinis were not restatements of existing principles. The soli/sanguinis binary was a nineteenth-century invention. Old-regime European empires attributed membership in the community under one or another single natural law principle. Parentage and birthplace were mostly evidence of conformity. In the early nineteenth century, officials in multiple jurisdictions began prioritizing positive law above natural law and transformed parentage and birthplace into competing principles for assigning nationality. This movement crystallized in 1860 when Charles Demolombe introduced jus soli and jus sanguinis to nationality law as competing, ostensibly ancient legal traditions. The framework spread quickly because it was a useful way to assign nationality despite states’ conflicting approaches to political membership. Yet, as its role in United States v. Wong Kim Ark (1898) helps illustrate, the invented tradition has also obscured our understanding of more complex historical dynamics.

--Dan Ernst

JACH (Winter 2025)

The Winter 2025 issue of Journal of American Constitutional History has been now published:

Evelyn Atkinson, “The Northern Man and His Corporations, the Southern Man and His Slaves”: Revisiting the Conspiracy Theory of the Fourteenth Amendment

Anna O. Law, The Civil War and Reconstruction Amendments’ Effects on Citizenship and Migration

Maeve Glass, In Search of a State

Book Review Symposium on David Pozen’s The Constitution of the War on Drugs (Oxford University Press, 2024)

    Aziz Rana, The “War on Drugs” and the Narrowing of Constitutional Imagination
    Louis Michael Seidman, Pozen and the Puzzle of Counterfactuals
    Kate Shaw, The Constitution of the War on Abortion

--Dan Ernst

Halberstam, "Trial Stories in Jewish Antiquity"

Oxford University Press has published Trial Stories in Jewish Antiquity: Counternarratives of Justice (2024), by Chaya T. Halberstam (King's University College, University of Western Ontario). A description from the Press:

What can early Jewish courtroom narratives tell us about the capacity and limits of human justice? By exploring how judges and the act of judging are depicted in these narratives, Trial Stories in Jewish Antiquity: Counternarratives of Justice challenges the prevailing notion, both then and now, of the ideal impartial judge. As a work of intellectual history, the book also contributes to contemporary debates about the role of legal decision-making in shaping a just society. Chaya T. Halberstam shows that instead of modelling a system in which lofty, inaccessible judges follow objective and rational rules, ancient Jewish trial narratives depict a legal practice dependent upon the individual judge's personal relationships, reactive emotions, and impulse to care.

Drawing from affect theory and feminist legal thought, Halberstam offers original readings of some of the most famous trials in ancient Jewish writings alongside minor case stories in Josephus and rabbinic literature. She shows both the consistency of a counter-tradition that sees legal practice as contingent upon relationship and emotion, and the specific ways in which that perspective was manifest in changing times and contexts.

More information is available here. An interview with the author is available here, at New Books in Law.

-- Karen Tani

Sunday Roundup

• 

  Robert H. Jackson (LC)

  Adam Liptak on the Sassoon Resignation and Robert Jackson's "The Federal Prosecutor," with a quote from John Q. Barrett (NYT). 
  

• Daniel Richman invokes Henry Stimson, Emory Buckner, Felix Frankfurter, and William Wirt in his op-ed on DJT's DOJ (NYT).

• Holly Brewer waits for word on her National Archives grant "to study the legal structures that governed slavery in the British Empire and early American society" (NYT).  
  

• Kenneth Mack's video explainer on birthright citizenship (HLS YouTube).
  

• More officials have resigned at the National Archives (WaPo).
  

--Dan Ernst

Weekend Roundup

• Over at JOTWELL, Josh Gupta-Kagan has posted an admiring review of Laura Briggs, Haaland v. Brackeen and Mancari: On History, Taking Children, and the Right-Wing Assault on Indigenous Sovereignty, 56 Conn. L. Rev. 1121 (2024).
  

• In a recent episode of Strict Scrutiny, Kate Shaw and Leah Litman speak with Jonathan Gienapp (Stanford University) "about what originalists get wrong about history and how the founders thought about the law."
  

• Another report of that “wide-ranging discussion” at Stanford Law between Jonathan Gienapp and Michael McConnell “on how history, law, and politics intersect in constitutional interpretation” (SLS).
  

• 
  Is it surprising that, in these times, so many of the new leaders of the Organization of American Historians are scholars of legal and constitutional history? Congratulations to Annette Gordon-Reed, President; Marc Stein, President Elect; and Donna Clare Schuele, a new member of the Executive Board. Margot Canaday is a continuing member of the Executive Board.

• Melissa Murray, NYU Law, will discuss History and the Courts with Christen Hammock Jones, doctoral student in American legal history at University of Pennsylvania; Christina D. Ponsa-Kraus, professor at Columbia Law, and Noah Rosenblum, NYU Law, at Brooklyn College on April 2 from 11:00 am to 12:15 pm.  Anna Law, Brooklyn College, will moderate.
  

• The recording of that terrific National Constitution Center town hall on Reconstruction and the Constitution: A Historical Perspective is now available online.

• John Q. Barrett on FDR's plans to resist a negative decision from the U.S. Supreme Court in the Gold Clause Cases (Jackson List). 
  

• Julie Novkov reviews Anthony Michael Kreis’s Rot and Revival: The History of Constitutional Law in American Political Development (S-USIH).
  

• Talbot Publishing has published an edition of Gottfried Wilhelm Leibniz’s Model of Certainty or Demonstrations in Law Expounded in the Doctrine of Conditions (1669), “a unique, unprecedented collection of Roman and canon law rules regarding the application of conditions in contract, inheritance and marriage law. “

• ICYMI: Jack Goldsmith on Departmentalism and DJT (Executive Functions).  Scott Bomboy on the History of the Constitution and Tariffs (NCC). 
  

• Update: A compilation of trackers of DJT's executive orders by the Pence Law Library at American University-Washington College of Law.  H/t: MD.

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

SCHS's Henry J. Abraham Early Career Research Grant

 [We have the following announcement.  H/t: H-Law.  DRE]

The Supreme Court Historical Society invites applicants for the Henry J. Abraham Early Career Research Grant for research on the history of the United States Supreme Court. The award is named for the distinguished University of Virginia scholar whose numerous works on constitutional law and the judicial process have had an enduring impact on the field of Supreme Court history.

Awarded on a competitive basis in June of each year, the $1,000 grant supports the research of those who are pursuing academic careers in legal history, including graduate students, law students, and those who are no more than five years from completion of either the Ph.D. or J.D. The award will be given on the basis of the applicant’s potential for producing publishable work in the field of Supreme Court history, and the grant recipient will be expected to produce an article for submission to the Journal of Supreme Court History.

A completed application consists of a c.v., the name and contact information of a faculty reference, and a 750-1,000-word proposal, which should include a general description of the project and a plan for research.

Applicants should submit all materials to Clare Cushman, Executive Editor of the Journal of Supreme Court History, by May 1, 2025. The award winner will be notified by June 3, 2025.

Call for Submissions: SCHS's Hughes-Gossett Award

 [We have the following announcement.  H/t: H-Law.  DRE.]

The Supreme Court Historical Society invites submissions for the Hughes-Gossett Award for the best student paper submitted to the Journal of Supreme Court History. The winner will be awarded a $500 cash prize and publication in the Journal.

The paper must be on some aspect of the Supreme Court’s history. Authors must have been enrolled as students at the time the paper was written. Past winners have been law school students or doctoral students in the departments of history, government, and political science.

Papers may be of any length and may be submitted on an ongoing basis to Helen Knowles-Gardner, Managing Editor, at: hknowles@supremecourthistory.org

Recent Past Winners

2023.  “FDR’s Court-packing and the Struggle for Civil Rights” by Zach Jonas

2021-22.  “Earl Warren’s Last Stand: Powell v. McCormack, Race, and the Political Question Doctrine” by Olivia O’Hea

2020.  “Rosenberger’s Unexplored History: Politics, the Press, and the University” by Rachael E. Jones

2018.  “Ralph Waldo Emerson and Oliver Wendell Holmes, Jr.: The Subtle Rapture of Postponed Power” by Adam H. Hines

The Julien Mezey Dissertation Award

[We have the following announcement.  H/t: H-Law.  DRE.]

The Association for the Study of Law, Culture, and the Humanities (LCH) is accepting submissions for the 2025 Julien Mezey Dissertation Award. This annual prize is awarded to the dissertation that most promises to enrich and advance interdisciplinary scholarship at the intersection of law, culture, and the humanities.

LCH seeks the submission of outstanding work from a wide variety of perspectives, including but not limited to law and cultural studies, law and critical race studies, law and gender and sexuality, legal theory and environmentalism, law and literature, law and psychoanalysis, law and visual studies, legal history, legal theory and jurisprudence. Scholars completing humanities-oriented dissertations in SJD and related programs, as well as those earning PhDs, are encouraged to submit their work. Applicants eligible for the 2025 award must have defended their dissertations successfully between March 2024 and March 2025.

The Association will cover the Mezey Prize winner’s travel and lodging costs to attend our annual meeting.  Nominations for the 2025 award must be received on or before March 15, 2025.  For submission instructions, please see our website.

Sellars on the UN Convention on the Law of the Sea

Kirsten Sellars has published A ‘Constitution for the Oceans': The Long Hard Road to the UN Convention on the Law of the Sea (Cambridge University Press):

The UN Convention on the Law of the Sea, signed in 1982, was the culmination of half a century of legal endeavour. Earlier attempts to create  a treaty regime governing the oceans – at League of Nations and United Nations conferences held in 1930, 1958 and 1960 – had all failed to settle the breadth of the territorial sea, and in two cases failed to settle anything at all.  During the negotiations, legal concepts were formulated and reformulated: straight baselines inspired archipelagic baselines; fishing conservation zones became exclusive economic zones; innocent passage through straits metamorphosed into transit passage through straits; and seabed common heritage was replaced by the parallel system of seabed exploitation. Many of the issues that animated the delegates during the negotiations – ocean pollution, overfishing, naval mobility, continental shelf claims and the impact of seabed mining – continue to exercise policymakers and lawyers to this day.

--Dan Ernst

Hasday's "We the Men"

Jill Elaine Hasday, University of Minnesota Law School, has published We the Men: How Forgetting Women's Struggles for Equality Perpetuates Inequality (Oxford University Press):

In a nation whose Constitution purports to speak for “We the People,” too many of the stories that powerful Americans tell about law and society include only We the Men. A long line of judges, politicians, and other influential voices have ignored women's struggles for equality or distorted them beyond recognition by wildly exaggerating American progress. Even as sexism continues to warp constitutional law, political decision making, and everyday life, prominent Americans have spent more than a century proclaiming that the United States has already left sex discrimination behind.

Jill Elaine Hasday's We the Men is the first book to explore how forgetting women's struggles for equality—and forgetting the work America still has to do—perpetuates injustice, promotes complacency, and denies how generations of women have had to come together to fight for reform and against regression. Hasday argues that remembering women's stories more often and more accurately can help the nation advance toward sex equality. These stories highlight the persistence of women's inequality and make clear that real progress has always required women to disrupt the status quo, demand change, and duel with determined opponents.

America needs more conflict over women's status rather than less. Conflict has the power to generate forward momentum. Patiently awaiting men's spontaneous enlightenment does not. Transforming America's dominant stories about itself can reorient our understanding of how women's progress takes place, focus our attention on the battles that are still unwon, and fortify our determination to push for a more equal future.

The introduction is here.  TOC after the jump.

–Dan Ernst

University of Minnesota Legal History Workshop

[We have the lineup for the Legal History Workshop at the University of Minnesota Law School for the Spring 2025 semester.  It meets Thursdays, 3:35-5:35 p.m.  For information contact Susanna Blumenthal (blume047@umn.edu).  DRE]

February 6
Samuel Fury Childs Daly, Associate Professor of History, University of Chicago
"I love a man in uniform": Military Roleplay and the American Uniform Association, 1968-2001

February 13
Alison LaCroix, Robert Newton Reid Professor of Law, University of Chicago
Arsenals, 1861

February 20
Adriana Chara, Associate Professor of Atlantic World History, Emory University
Beyond the Chattel Principle: Vulnerability, Intimacy, and the Laws of Slavery in Nineteenth-Century Cuba

February 27
Myisha S. Eatmon, Assistant Professor of African and African American Studies and of History
Kinfolk: Jim Crow and Tort Law Come of Age

March 6
Aaron Hall, Assistant Professor, Department of History and Affiliated Faculty, Law School, University of Minnesota
The Founding as Ideology

March 20
Justene Hill Edwards, Associate Professor, Department of History, University of Virginia
Savings and Trust: The Rise and Betrayal of the Freedman's Bank

March 27
Maggie Blackhawk, Professor of Law, NYU Law School
American Colonialism

April 3
Anna Lvovsky, Professor of Law, Harvard Law School
Undercover on the Western Frontier

April 10
Kara Swanson, Professor of Law and Affiliate Professor of History
Telling Stories of Native American Inventor-Patentees:  Invention and Sovereignty in Indian Country (draft chapter from book-in-progress, Inventing Citizens: A Surprising History of US Inventors, Patents, and Civil Rights)

April 17
Nurfadzilah Yahaya, Assistant Professor, Department of History, Yale University
The Baseless History of the Foreshore

Campbell on Founding-Era Notions of Constitutional Rights

 "Determining Rights," an article by Stanford Law's Jud Campbell, is now out in the Harvard Law Review:

This Article explores Founding-era views about the grounding of constitutional rights and how those rights obtained determinate legal content. Today, we typically view constitutional rights as textually grounded, gaining their force through ratification, and we treat the task of determining their content as a question of law — that is, a question for judges to decide using legal criteria. But the designers of the Bill of Rights did not share that vision. In the eighteenth century, fundamental rights were often grounded in natural or customary law rather than in enacted text, and enumerating them was usually declaratory, marking their existence without altering their meaning. Moreover, determining the content of underdeterminate rights was up to the people themselves, often through ordinary politics. To be sure, it was possible to determine rights textually, as exemplified by the amount-in-controversy threshold in the Seventh Amendment. By and large, however, members of the First Congress rejected this specificatory approach in favor of declaratory provisions, as exemplified by the First Amendment’s simple reference to “the freedom of speech, or of the press.” In so doing, the Bill of Rights mostly reaffirmed the existence of natural and customary rights, without determining their content. Recovering this history is especially timely, with so many features of rights jurisprudence now in flux. Seeking a historical anchor, some Justices have recently embraced a “text and history” approach that asserts fidelity to original meaning. This method, however, proceeds from mistaken historical assumptions and creates a distorted image of the original Bill of Rights. Yet a historically guided path forward is far from clear in a legal culture that rejects many of the conceptual premises of Founding-era constitutionalism. As a work of intellectual history, this Article cannot tell us where to go from here. But it reveals forgotten ways of thinking that merit consideration as the Supreme Court continues to determine our rights, whether it admits so or not.

--Dan Ernst