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 

Bilder on Constitutional Regicide

Mary Sarah Bilder, Boston College Law School, has posted Hater of Kings: Catharine Macaulay’s Constitutional Regicide and the Declaration of Independence, which is forthcoming in Americans in Revolution, ed. Tom Cutterham and Sara Georgini (University of Virginia Press, 2026):

Charles I (LC)

The American Revolution was a constitutional regicide. At first glance it does not much resemble a regicide. Charles I had been executed in 1649. George III went on to live nearly half a century beyond 1776. But read the Declaration of Independence carefully and notice how large the king looms. The “present King of Great Britain” aimed to establish “an absolute Tyranny.” The eighteen usurpations each began with He, the king. The king embodied two particular political typologies: Prince and Tyrant. As such, he was “unfit to be the ruler of a free people.” This constitutional justification for regicide had been developed by British historian Catharine Macaulay in the fourth volume of her History of England. Macaulay’s history from James I to the execution of Charles I provided a historical model, theoretical explanation, and blueprint for would-be patriots. Because of Macaulay, on the far side of the Atlantic, American revolutionaries renounced their allegiance to the king–and to any king–without the complications and consequences of executing one. 

--Dan Ernst 

Jansen on Alienage in the British Caribbean

Jan C. Jansen, University of Tübingen, has published Alien Acts in the Age of Emancipation: Mobility Control and Executive Power in the British Caribbean, 1820s–1830s online in Law and History Review:

In reaction to revolutionary upheaval in the 1790s and 1800s, the British parliament at home and colonial legislatures in the Americas passed their first statutory provisions to govern migration and aliens as such. As this paper argues, in their sustained and varied uses, these “alien acts” were much more than about border and migration controls. In a period of fundamental restructuring of imperial rule and of social statuses within the colonies, they increasingly turned into flexible tools of imperial governance. Taking the British Caribbean in the 1820s and 1830s as a case, the paper examines how alien legislation was reused, and reinvented, in two crucial arenas of imperial reconfiguration: the push for political equality by free people of color and the abolition of the slave trade. By their emphasis on sweeping executive power, various actors on the ground but also in the metropole regarded alien acts as an appropriate legal tool to respond to, to avert or subvert what they regarded as challenges or legal complexities of the age of emancipation. In this way, the alien acts also became a central factor in the reconfiguration of British subjecthood—with far-reaching consequences that their creators and users could never fully anticipate or control.

--Dan Ernst

Kent on the Alien Enemies Act of 1798

 Andrew Kent, Fordham University School of Law, has posted The Alien Enemies Act of 1798:

For the first time since World War II-and the first time ever outside a formally declared war-an American president has invoked the Alien Enemies Act to detain and deport noncitizens. In March 2025, President Donald Trump proclaimed that all members of the Venezuelan gang Tren de Aragua present in the United States are enemy aliens, asserting that their actions, supposedly coordinated with the Maduro government, constitute an "invasion" and "predatory incursion" under the statute's triggering language. Enacted during the Quasi-War with France in 1798, the Act's key terms remain unchanged. This Article is a comprehensive account of the statute's original meaning. 

Every method of statutory interpretation-carefully reading the full 1798 text and examining the Alien Enemies Act's purposes and its political, diplomatic, and military contexts; examining related statutes; understanding background rules of common law and international law (especially those governing alien enemies); and finding definitions of key words in dictionaries and from contemporaneous linguistic usage-confirms that the Trump administration's reading is irreconcilable with the statute's original meaning in 1798. "Alien enemy" status required a state of war or an imminent threat thereof. The Act was intentionally written to bar the president from declaring alien enemy status in other situations. The statute's triggers were understood to be met when a foreign nation's offensive military actions indisputably created a state of actual or imminent armed attack on U.S. territory, or when Congress acted to formally authorize a state of war, consistent with Congress's view that it, not the president, had power under the Constitution to declare war and authorize more limited hostilities. 

Furthermore, the historical record strongly suggests that individuals detained under the Act could seek judicial review of whether they were, in fact and law, alien enemies-contrary to claims of the Trump administration. Finally, this Article analyzes other provisions of the statute not implicated in 2025 and situates the Act within its broader context-fierce partisan battles between Federalists and Republicans over immigration, loyalty, national character, federal power, and foreign policy. 

--Dan Ernst 

Weekend Roundup

• Rachel Rothschild, University of Michigan Law School, has been chosen to receive the 2025–2026 Pace Haub Environmental Law Distinguished Junior Scholar Award for scholarship that “sits at the intersection of environmental law, history, and policy,” including Poisonous Skies: Acid Rain and the Globalization of Pollution (University of Chicago Press, 2019) and The Origins of the Major Questions Doctrine. 

• 

  Thurgood Marshall, assisted by Wife and Family (LC)

  “Becoming Thurgood: America’s Social Architect,” a documentary on the life and career of Thurgood Marshall, premiers Tuesday, September 9, 2025, on PBS.  The DuSable Black History Museum and Education Center in Chicago hosts and preview and discussion on August 21 (WTTW)

• "David Carrillo, executive director of UC Berkeley Law’s California Constitution Center, will become editor-in-chief of California Legal History in 2026" (UC Berkeley Law).

• From the online companion to the California Law Review: Michael Bannerjee (UC Berkeley) on "What Harvard’s Lawsuit Should Have Said." 

• Richard Primus, University of Michigan Law School, and John Harrison, University of Virginia School of Law discuss Professor Primus’s The Oldest Constitutional Question: Enumeration and Federal Power.  "Their conversation traces how this fundamental disagreement has shaped key moments in American constitutional history, from the Founding Era to the New Deal, and why the debate remains unsettled today" (National Constitution Center).  Also on YouTube.  

• Also: the first-rate Balkinization symposium on Professor Primus's Oldest Constitutional Question:  is now complete. 

• Stefan Kadelbach on the "Frankfurt Documents" and the birth of a new constitutional order for Germany in 1948 (Goethe-Universität).

• Have you browsed that online collection of legal history papers by YLS students lately?    

• Jill Lepore will discuss her forthcoming book, We the People: A History of the U.S. Constitution, at  Congregation Beth Israel in San Diego on Sunday, September 7, 2025 from 4 PM to 5:30 PM

• The district court opinion in that lawsuit over the cancellation of National Endowment for the Humanities grants. The American Historical Association's update.  An update on new awards (NYT).

• If you happen to be in Hyde Park, NY, on August 13, you can take in a showing of William Randolph Hearst's authoritarian fantasy from March 1933, Gabriel over the White House, at the FDR Library and Museum. 

• Lawbook Exchange 's August list of Scholarly Law and Legal History.  

• Time's Made by History:  The History of How the Car Seat Made American Kids Safer by Gary Scales.

• ICYMI: The Adam Liptak column behind all those skeets: As the Supreme Court Focuses on the Past, Historians Turn to Advocacy (NYT).  David Blight asks, What If History Died by Sanctioned Ignorance? (New Republic/Bunk). Eric Segall asks How the Hell To Teach Constitutional Law in 2025?  (Many of his questions involve history) (Dorf on Law).  NAACP LDF's historical timeline on the Voting Rights Act of 1965.

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

May on Jerome Frank on Law and Religion

Isaac Barnes May, Resident Fellow, Information Society Project, Yale Law School, has posted Legal Realism and the Separation of Religion and Judicial Reasoning, which is forthcoming in the Yale Journal of Law & the Humanities:

Jerome Frank (LC)

Jerome Frank’s Law and the Modern Mind was caricatured for a generation as a reductive work of psychology, distilling law into “what the judge had for breakfast.” This article argues that Frank’s 1930 book needs to be understood as intervening in a theological dispute about the nature of law. In the United States, the prevailing understanding had been that law came from God and that legal rules were, at some level of abstraction, simply absolute or natural legal principles to which human beings had selective access. Judges, from this perspective, were mere instruments for divine truth. This conception of law supported a legal system that gave a privileged place to Christianity and was often hostile to religious minorities. Frank and the legal realists drew on the insights of Oliver Wendell Holmes. They were deeply invested in the idea that the law was a human creation and therefore changeable by humans. Rather than “a government of laws, not of men,” they argued for the inverse: human beings ultimately created and could adjust legal rules. Many of the realists were religious outsiders—Jews, liberal Protestants, and skeptics—who understood their theoretical interventions as undermining a coercive Protestant legal order.

The article suggests that Frank’s efforts to separate U.S. law and religion were an admirable and necessary step in a pluralistic democracy. In the present, natural law theories as a legal foundation for U.S. law endanger the secular legal order and threaten religious minorities. Frank’s writings about the need for a law shorn of religious impulses, where judges know they are motivated by human factors, are valuable and offer a contrast to attempts to fuse law and Christianity.

For more on Frank's life and career until 1933, see my Making of a New Dealer.  As I show in forthcoming work, Frank could be quite scathing about the Reform Judaism of Chicago's German Jews.  The query I'd raise is that Frank's immediate target--the grit that irritated him into producing Law and the Modern Mind--was a quite secular "Bealism"--that is, Langdellian legal science personified by the founding dean of the University of Chicago.  Mr. May anticipates this query by noting homologies between legal science and theology and arguing, with quotes from Law and the Modern Mind, that Frank targeted the "theistic and Christian wing of classical legal thought" as well as the Bealists.

 --Dan Ernst 

ASLH's Virtual New Books Series

[Here's another reason to join the American Society for Legal History: Members can virtually participate in this series on great new books in the field.  DRE]

Making Connections: New Works in Legal History Series, 2025-2026 

All sessions will be on Zoom Wednesdays from 6:00-7:00 pm (Central Time).  We will send an email two weeks in advance of each event.  You must RSVP to receive the zoom link.  RSVP messages will be sent to membership approximately 1 week before the event.  ASLH Members can watch videos of previous events on our members page
 
September 17, 2025 – Esther Liberman Cuenca, The Making of Urban Customary Law in Medieval and Reformation England (Oxford University Press, 2025) with interlocutor Sara M. Butler
 
October 22, 2025 – Sonia Gomez, Picture Bride, War Bride: The Role of Marriage in Shaping Japanese America (NYU Press, 2024) & Kathryn Schumaker, Tangled Fortunes: The Hidden History of Interracial Marriage in the Segregated South (Basic Books, 2025)
 
December 10, 2025 – Marla A. Ramírez, Banished Citizens: A History of the Mexican American Women Who Endured Repatriation (Harvard University Press, 2025) with interlocutor Kevin R. Johnson
 
January 21, 2026 – Omar Youssef Cheta, How Commerce Became Legal: Merchants and Market Governance in Nineteenth-Century Egypt (Stanford University Press, 2025) with interlocutor Nurfadzilah Yahaya
 
February 25, 2026 – Tadashi Ishikawa, Geographies of Gender: Family and Law in Imperial Japan and Colonial Taiwan (Cambridge University Press, 2025) with interlocutor Jisoo M. Kim
 
March 25, 2026 – Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025) with interlocutor Margot Canaday
 
April 15, 2026 – Kevin Arlyck, The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825 (Cambridge University Press, 2025) with interlocutor Alison LaCroix

Law and History Review: A Call for an Editor

[We have the following announcement from the Publications Committee of the American Society for Legal History.  DRE] 

After eight years of exceptional service, Gautham Rao is stepping down as Editor-in-Chief of the Law & History Review, which is sponsored by the American Society for Legal History and published by Cambridge University Press.  Founded in 1983 and published quarterly, LHR is the top journal in the field of legal history.

The ASLH Publications Committee invites applications for the position. Applicants should be members of the American Society for Legal History who are accomplished legal historians, have the intellectual range to work with manuscripts from different historical periods and geographic regions, are conversant with both law and history, and welcome the opportunity to identify and promote the best scholarship in the field.  They should be prepared to request release time and other departmental or institutional support.

The editor’s responsibilities include soliciting manuscripts in all fields of legal history, shepherding submitted manuscripts through the peer review and editorial processes, working with the journal’s print and electronic publisher Cambridge University Press, and maintaining collaborative relationships with the journal’s Associate Editors, its Editorial Board and the ASLH Board of Directors. Production management is the responsibility of Cambridge University Press. Appointment is for an initial five-year term.  

Interested scholars should send an electronic version of their current c.v. and a statement of what they would like to accomplish as editor of the journal by September 15, 2025, to the Chairs of the Publications Committee: Daniel Ernst (ernst@georgetown.edu) and Catherine Fisk (cfisk@berkeley.edu).  Inquiries about the position should be directed to the same email addresses or by phone to Daniel Ernst at 240.506.2220.

Van Schaack's Annotated Bibliography on Crimes against Humanity

Beth Van Schaack, the Leah Kaplan Visiting Professor in Human Rights at Stanford Law School, has posted Crimes Against Humanity: An Annotated Bibliography:

This is an annotated bibliography of scholarship and jurisprudence involving crimes against humanity, an important element of the international criminal law canon. It elucidates the history of this offense (which traces its roots to the World War I period), elements of this offense, lingering areas of doctrinal indeterminacy, efforts at universal codification, and the most innovative scholarship grappling with the reach of this international offense. 

--Dan Ernst 

Saltonstall on Shaw and Race and Reasonable Doubt

Lemuel Shaw (NYPL)

Stephen Lee Saltonstall published Lemuel Shaw Reconsidered: Race and Reasonable Doubt in the Howard Law Journal 68 (2024) 103-138.  The author argues that "the magnitude of [the eminent nineteenth-century jurist Lemuel Shaw's] errors, particularly in the related areas of race discrimination and the burden of proof in criminal cases, requires removal of [him] from his pedestal in the pantheon of American law.

--Dan Ernst 

Whittington on Judicial Independence

Keith E. Whittington,Yale Law School, has posted Judicial Independence as a Constitutional Construction:

An independent judiciary, in the American context, might best be understood as a constitutional construction. That is, it is a politically constructed set of practices, institutions, and norms that extend but do not contradict the legal requirements of the formal constitution. As such, judicial independence has come to occupy a fundamental status within our inherited constitutional order. But importantly, it is mutable. Our inherited practice of judicial independence has been built up, and fought over, across time, and within the contours of the written constitution can be significantly reconstructed.

The example of judicial independence can serve as a useful illustration of the significance of unwritten practices to our constitutional order. This also provides an opportunity to examine how judicial independence was constructed, and contested, across American history. As current activists and politicians raise questions anew about the future of judicial independence in America, these current debates can be situated within a long history of debates about the proper role, composition, and structure of American courts. This Article reviews those debates regarding federal courts in the Jeffersonian era, state courts in the Jacksonian era, and the Supreme Court in the New Deal era. 

--Dan Ernst 

Kessler on Authoritarianism in Marxist Thought

Jeremy Kessler, Columbia Law School, has posted The Problem of Authoritarianism in Marxist Legal Thought, which is forthcoming in the Oxford Handbook on Law and Authoritarianism, edited by Cora Chan, Madhav Khosla, Benjamin Liebman, and Mark Tushnet:

The more that contemporary scholars of authoritarianism seek to distinguish between, on the one hand, competitive authoritarianism and authoritarian legality and, on the other, the liberal and democratic deficits of ostensibly liberal democratic regimes, the more they will be retracing the immensely creative if often tragic steps of Marxist legal thought. This chapter sets itself two tasks. First, to provide an overview of Marxist legal theorists’ relationship to authoritarianism, both in its liberal democratic and more avowedly illiberal, anti-democratic forms. Second, to make some sense of an intellectual tradition that began by criticizing authoritarianism, came to defend it, and then spent decades in the wilderness – if not the grave – trying to rectify its errors. 

The chapter is organized in a chronological series of vignettes, each of which aims to capture a stage in the Marxist encounter with authoritarianism: Karl Marx and Friedrich Engels on bourgeois legality and the dictatorship of the proletariat; Vladimir Lenin and Rosa Luxemburg on the relationship between democracy and proletarian dictatorship; Evgeny Pashukanis and Pyotr Stuchka’s debate about the practical possibility and political tendency of “proletarian law”; Franz Neumann and Ernst Bloch’s reconsiderations of the relationship between socialism and natural law; and Nicos Poulantzas and the Neue Marx-Lektüre’s return to Luxemburg and Pashukanis as means of making sense of authoritarian tendencies on both sides of the Iron Curtain. 

Taken as a whole, the chapter argues that Marxist legal thought was ahead of its time in emphasizing the authoritarian potential of liberal democratic institutions under conditions of capitalist hierarchy and atomization. Contemporary trends in the study of authoritarianism are rediscovering this basic Marxist insight. At the same time, when it came to confronting the authoritarian tendencies of anti-capitalist movements and regimes, Marxist legal thought oscillated between denial, denunciation of law and the state as such, and rediscovery of the virtues of capitalist and pre-capitalist legal and political forms. Whether that oscillation testifies to human society’s inability to transcend capitalism or its inability to transcend more fundamental facts about human nature is the question that continues to divide Marxist from liberal and conservative legal thought. However one answers that question, the problem of authoritarianism remains. Now more than ever, law appears capable of making that problem better or worse, depending on underlying social conditions. To that extent, at least, Marxist legal thought has often seen things more clearly than its liberal and conservative antagonists. 

Other contributions to the volume include essays by my Georgetown Law colleague Mark Jia and by YLS's Taisu Zhang.

--Dan Ernst

Draft Program for ASLH 2025 Released

The American Society for Legal History has released the draft program for its next annual meeting, to be held in Detroit, November 13-15.  register for the meeting here.  And join the Society or renew your membership here.

--Dan Ernst 

Penn's Certificate of Study in History and Historical Research Methods

[Penn Carey Law has posted the following announcement.  DRE] 

Beginning in the 2025-2026 academic year, the University of Pennsylvania Carey Law School will offer a new Certificate of Study in History and Historical Research Methods, granted by the History Department in the School of Arts and Sciences at Penn.

The Certificate, one of more than a dozen certificates of study offered at the Law School, is open to all Penn Carey Law students. Certificates of study provide opportunities for credentials in additional areas, allowing for more concentrated coursework en route to specialized or focused career paths.

“I was immediately excited by Professors Karen Tani and Serena Mayeri’s proposal to create this new Certificate, because the topics are increasingly important to the practice of law,” said Amanda Aronoff, Managing Director, Cross-Disciplinary Programs at the Law School and Director of Student Engagement for the Francis J. & William Polk Carey JD/MBA Program at the University of Pennsylvania Carey Law School and the Wharton School. “In addition, even though Penn Carey Law offers numerous and diverse cross-disciplinary offerings, there isn’t anything else like this Certificate.”

The Certificate arrives at a time of exciting growth for legal history at the Law School, which has seen the national recognition of multiple Penn legal historians in recent years as well as the continued expansion of the Legal History Consortium, uniting the Law School and Penn’s History Department to foster innovative research, scholarship, and education in law and history.

“Despite the strength of legal history at Penn, we didn’t previously offer students structured opportunities that join law and history, aside from our JD/PhD program,” said Seaman Family University Professor Karen Tani L’07, PhD’11. “That struck me as a big gap.”

Additionally, Tani believes that offering law students more opportunities to engage with history as part of their education and careers will better equip them for today’s legal landscapes.

“It’s clear that history has become increasingly important to Supreme Court rulings,” she said. “We see this in the Court’s deepening commitment to originalism to decide constitutional questions, as well as in its turn to ‘history and tradition’ to determine whether the Constitution protects various ‘unenumerated’ rights.”

Tani points to some of the most important decisions of the past five years as examples – regarding abortion, affirmative action, firearms regulation, nationwide injunctions, and more.

“We wanted to create a certificate that allows law students to be educated consumers of legal opinions that rely on history and to meaningfully engage with the methods and commitments of the discipline,” she said.

Students pursuing the Certificate must complete four courses in the general area of History and Historical Research Methods – one at the Law School and three in History – as well as attend four History-sponsored events, such as workshops, lectures, or pedagogy seminars.

“Penn has long been a leader in legal history, and our JD-PhD joint program in American legal history has been a proud success,” said Jared Farmer, Chair of the Department of History at Penn. “We are excited to deepen the relationship between the School of Arts and Sciences and Penn Carey Law with this certificate program.” 

Weekend Roundup

• "History in Action: A Conversation with Professor Felicia Kornbluh"(UVM). 

• Richard Epstein on his career as a legal scholar (and other topics) in the "Capitalism and Freedom in the Twenty-First Century" podcast series of the Hoover Institution (Hoover).  

• Lindsay Chervinsky joins Saikrishna Prakash, Virginia Law, online to discuss her book, Making the Presidency: John Adams and the Precedents that Forged the Republic, and “how the Constitution and the presidency were shaped by the demands of the times and how both continue to evolve.”  Thursday, September 4, 2025, 11 a.m.-12 p.m.  Sponsored by the UVA Miller Center (UVA Law).

• The University of Chicago Law School's notice of Alison LaCroix's receipt of that SHEAR book prize for The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms.

• Mary Ziegler, UC Davis School of Law, and Stephen Gilles, Quinnipiac University School of Law discuss Professor Ziegler’s book Personhood: The New Civil War over Reproduction in a National Constitution Center podcast.   

• 
  "Gerard Magliocca is the winner of the Erwin N. Griswold Prize [of the Supreme Court Historical Society] for his book Washington’s Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022). The Griswold Prize is awarded on an occasional basis when a book about the history of the Supreme Court" (SCHS).

• Jonathan Gienapp's Against Constitutional Originalism has been longlisted for the 2025 Cundill History Prize.  

• This year, University of New Mexico School of Law is looking to hire in the fields criminal law, civil procedure, Law and Indigenous People, clinic and legal research and writing 

• ICYMI: Joyce Vance on Judge Frank Johnson on the Right to Protest (Substack).  Charles Apple on the history of the US Census (Spokane Spokesman-Review).  An interview with William Treanor (HIL Podcast)

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

The Docket 8:1-2

Volume 8, Issues 1-2 of The Docket, the companion to Law and History Review, is now online:

Sarah Gronningsater: The Rising Generation

A conversation with Sarah Gronningsater about her prize-winning book, The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom.

Marie-Amélie George: History as a Beacon of Hope

Simon Rabinovitch–Sovereignty and Religious Freedom: A Jewish History

A conversation with Simon Rabinovitch about his book, Sovereignty and Religious Freedom: A Jewish History.

Dennis Wieboldt III: Natural Law and the Study of “Conservative” Constitutionalism

Jonathan Connolly: Worthy of Freedom: Indenture and Free Labor in the Era of Emancipation

Lauren Davis Jarnach–Negotiating the Arizona Constitution: The Role of Parliamentary Procedure in Ensuring Democratic Textual Outcomes

--Dan Ernst 

Queen Mary Symposium on Wheatley's "Life and Death of States"

[We have word of the first event in a new collaboration between the Selden Society and the School of Law at Queen Mary University of London, an annual symposium on a “first book” of an author in the field of “historicising jurisprudence.’” A registration page for the event is still forthcoming.  DRE.]

Historicising Jurisprudence: First Book Symposium

2025 Selected Book: Natasha Wheatley, The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Princeton UP, 2023)

Co-Sponsored by the Selden Society and the School of Law, Queen Mary University of London.  Co-Hosted and Co-Organised by Maks Del Mar and Michael Lobban.  30 September 2025.  Room 313, Department of Law, Queen Mary University of London, Mile End Campus

2-3pm: Opening Conversation with Natasha Wheatley (Princeton), Michael Lobban (Oxford), and Maks Del Mar (QMUL)

3-3.15pm Break

3.15 - 4.45pm Panel 1 – Chaired by Isobel Roele (QMUL)
Thinking with the book: Roxana Banu (Oxford), Anat Rosenberg (IALS), and Gerry Simpson
(LSE)

4.45-5pm: Break

5pm - 6.30pm Panel 2 – Chaired by Georgios Varouxakis (QMUL)
Thinking with the book: Charlotte Johann (QMUL), Alvin Jackson (Edinburgh), and Angus
Nicholls (QMUL)

6.30pm: drinks / nibbles

Bainbridge on NY's Act to Encourage Privateering

Stephen M. Bainbridge, UCLA School of Law, has posted The Law and Economics of An Act to Encourage Privateering Associations:

New York Colonial Privateers (NYPL)

This article examines New York's 1814 Act to Encourage Privateering Associations, the second general incorporation statute in U.S. history and a unique example of early industrial policy designed to facilitate private maritime warfare. The article situates the 1814 Act within the broader context of the War of 1812, examining the costs, risks, and organizational challenges that made both the privateering business and incorporation of that business attractive to potential investors. This early experiment in using incorporation to advance public policy objectives through private initiative offers valuable insights into both the historical development of American corporate law and the relationship between legal innovation and economic development in the early Republic.

Through detailed analysis of the Act's provisions and historical context, this study advances three principal arguments. First, it demonstrates that early general incorporation statutes functioned as deliberate instruments of industrial policy rather than neutral procedural mechanisms, with the 1814 Act representing a novel state effort to harness private capital for national defense. Second, it provides insight into the contested evolution of essential corporate attributes by analyzing which features of the modern corporation the Act provided and which it omitted, contributing to ongoing scholarly debates about the truly indispensable characteristics of the corporate form. The statute's design reveals contemporary understanding of how corporate privileges could encourage high-risk entrepreneurial ventures by providing limited liability, centralized management, and rudimentary asset partitioning. Third, it offers a case study of how economic necessity can drive the functional development of corporate features—particularly asset partitioning and limited liability—even when formal legal architecture remains incomplete.

Professor Bainbridge discusses the paper in this blog post.

–Dan Ernst

ICS Seminar: Constitutional Controversies

[We are moving up this post, because the August 30 deadline is one month away.  DRE]

The Institute for Constitutional Studies is pleased to announce another seminar for advanced graduate students and junior faculty: Constitutional Controversies: A Historical Survey.  

This seven-session seminar looks at constitutional controversies from a historical perspective. Guided by legal historians, we will explore disputes and debates over “rights” driving modern-day politics. Americans frequently turn to the courts – and to the Constitution – to resolve their political, social, and ideological disagreements about issues like privacy, equality, abortion, gun control, property rights, religion, etc. Yet, this is hardly a new phenomenon. Disputes about the interpretation and applicability of the Constitution have been central throughout our nation’s history. Since the Philadelphia Convention, constitutional controversies have defined persons included (or not) among “We the People” and rights included (or not) among “the Blessings of Liberty.” This discussion-based reading group will proceed chronologically through a series of “constitutional moments.” Among the historical controversies to be covered are the origins of the Constitution and the Bill of Rights, judicial review, slavery, the Reconstruction Amendments, free speech, desegregation, affirmative action, and voting rights. We will also consider the role that “history” and “tradition” have played in recent judicial decisions involving abortion, gun rights, and presidential immunity.

 Instructors

Maeva Marcus, a past president of the American Society for Legal History, is Research Professor of Law and Director of the Institute for Constitutional Studies at the George Washington University Law School. She serves as the general editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. Author of Truman and the Steel Seizure Case: The Limits of Presidential Power, she also edited the eight-volume series The Documentary History of the Supreme Court of the United States, 1789-1800 and Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789.

Steven Steinbach, GWU Professorial Lecturer in Law, taught United States History and American Government courses and served as History Department Chair at Sidwell Friends School in Washington, DC. Previously he was a partner in the Washington, DC, law firm of Williams & Connolly LLP, where he specialized in criminal and civil litigation.

Logistics

Monday evenings, 6-8 pm, September 8, 15, 29; October 6, 13, 20 and 27, 2025.  The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052. The classroom is Burns 415.

 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, so applicants should send a copy of their curriculum vitae and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at icsgw@law.gwu.edu until August 30, 2025. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at maevamarcus@law.gwu.edu.

Additional Information

There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICS

The Institute for Constitutional Studies (ICS) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution.  Begun with the assistance of a challenge grant from the National Endowment for the Humanities, the Institute is located at the George Washington University Law School.  To fulfill its mission, the Institute’s seminars explore the important role the Constitution has played in shaping American society.

Drake on Rerum Novarum

Janine Giordano Drake, Indiana University, has published What Rerum Novarum Did and Did Not Do for the American Labor Movement, 1891-1935 Revisiting Religion in the Struggle for Workplace Justice in the St. Louis University Law Journal:

Pope Leo XIII (LC)

The papal encyclical Rerum Novarum (1891), a statement which defended workers' human rights, has been celebrated by both leftwing and rightwing Christians as a central document in the history of the Church. To trade union leaders of the late nineteenth and twentieth centuries, it was a powerful tool for reminding workers that the Holy Father supported fair wages and healthy working conditions for all God's people. Just the same, for business leaders of the several Red Scares (especially 1917-1920 and 1945-1955), it became a powerful tool in discrediting socialist demands as both “materialistic” and “atheistic.” This piece illustrates that while Rerum Novarum has been very helpful in catalyzing the public recognition of trade unions in the United States, its rejection of “socialism” is also partially responsible for the challenges workers have faced in expanding the power of labor to set the terms of industrial justice outside the workplace.

--Dan Ernst 

Boes on Antivaccination and American Antistatism

Julia Bowes, University of Melbourne, has published “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, in Law and History Review:

This article revisits the roots of anti-statism in the United States by analyzing opposition to the introduction of compulsory school vaccination and medical examinations at the local and state levels in the Progressive Era. It shows that the widespread use of compulsory schooling laws to promote vaccination in the late nineteenth century, which led to establishing compulsory school medical exams and school nurse programs in the early twentieth, precipitated intense conflicts over states’ police powers. Exploring the controversy over school vaccine requirements in Utah between 1899 and 1901, the article reveals that resistance to public health interventions in schools fused skepticism of science with a gendered defense of individual and parental rights to challenge states’ power over children. The article then traces how these conflicts filtered up to the federal level, framing arguments against a proposed federal department of health in the 1910s. Led by the National League for Medical Freedom, opponents directly linked the reach of the police powers via compulsory school health initiatives with the expansion of federal power, arguing they were connected in a plot to establish “state medicine” that imperiled the gendered freedom of the “individual”—i.e., the white male citizen—over the home.

--Dan Ernst 

Jarvis's "Neglected Amendments"

Robert M. Jarvis has published The Neglected Amendments of the U.S. Constitution: Text, History, and Interpretation (Carolina Academic Press):

Although the U.S. Constitution has twenty-seven amendments, most law students graduate having studied only the twelve "big" amendments: First (freedom of association, press, religion, and speech); Second (right to bear arms); Fourth (protection from unreasonable searches and seizures); Fifth (due process); Sixth (right to counsel); Seventh (trial by jury); Eighth (banning cruel and unusual punishments); Tenth (unenumerated powers); Eleventh (state immunity from federal lawsuits); and the Reconstruction Amendments (Thirteenth, Fourteenth, and Fifteenth), which were passed to protect the country's newly freed slaves.

This book is designed to fill the gap left by other constitutional law casebooks. It examines the following fifteen "neglected" amendments: Third (quartering of troops); Ninth (unenumerated rights); Twelfth (Electoral College); Sixteenth (income tax); Seventeenth (direct election of U.S. senators); Eighteenth (outlawing liquor); Nineteenth (giving women the vote); Twentieth (presidential and Congressional terms); Twenty-First (repealing the Eighteenth Amendment); Twenty-Second (limiting presidents to two terms); Twenty-Third (District of Columbia voting rights); Twenty-Fourth (poll taxes); Twenty-Fifth (presidential disability and succession); Twenty-Sixth (lowering the voting age to eighteen); and Twenty-Seventh (Congressional pay raises). It also discusses the six unratified amendments as well as the thousands of proposed amendments that, for one reason or another, have never made it out of Congress.

There is much to be gained from studying the neglected amendments. Far from merely occupying their own orbits in the Constitutional constellation, they often have been relied on by courts interpreting the big amendments. They also shine a light on our country's history; help chart its development from a small, agrarian society to a modern, industrial nation; and illustrate how much America's view of itself has changed since the Constitution's ratification in 1789.

--Dan Ernst.  TOC here.

Chalmers on Colonialism and the Law

Shane Chalmers, University of Hong Kong Faculty of Law, has posted Colonialism and Law, which appears in Elgar Encyclopedia of Comparative Law, ed. Jan Smits, Jaakko Husa, Madalena Narciso, and Catherine Valcke (Edward Elgar, 2023):

This entry offers an overview of the field of 'colonialism and law'. It begins with the field's origins in the 1980s, the emergence of anthropology and history scholarship exploring the role of law in European colonisation, along with a parallel set of political and literary studies foregrounding the violence of colonisation and the possibilities of decolonisation. The entry then outlines some of the major thematic movements of this dynamic field from the 1990s through to the 2020s, with an eye to the future. This includes studies of law as an instrument (of colonial and anti-colonial processes); of law as produced (by colonisation) and as productive (of colonial forms of authority, subjectivity and relations); of law as a site (for colonial struggles, transformations and movements) and as an imaginary (implicated in Orientalisms, old and new); of law as a gift (from Civilisation to Development) and as a measure (of such 'achievements'). 

--Dan Ernst 

Malka on Witness and Judging in Antiquity

New online from Law and History Review: Witnesses, Judges: A Revolution Untold, by Orit Malka, Hebrew University:

Witness testimony in a judicial setting is commonly viewed as a form of evidence—a means
to inform a judicial body of relevant facts in a given case. In this perspective, witnesses are merely instrumental to the process of adjudication. While this viewpoint provides a useful account of how we think of witness testimony in courts today, it is ill-suited to the way witnesses and their role were perceived in the ancient world. Drawing on a cross-cultural analysis of ancient and late antique texts, the article recovers a different perception of the role of witnesses that once prevailed in the societies that gave rise to Western civilization. According to this alternate view, witnesses were not seen as passive providers of information but rather as active agents with the power to adjudicate—a role that we would now associate with judges. The article offers a new conceptualization of this historical transformation, outlining two paradigms that can help us critically examine the implied assumptions about the role of witnesses in adjudication: “the instrumental paradigm,” which is dominant in contemporary thought, and “the authoritative paradigm,” emerging from ancient texts, wherein witnesses held a far more authoritative role than the contemporary understanding suggest. The study argues that the instrumental paradigm reflects a radical transformation in the meanings of testimony and witness as legal concepts—a shift that marks an unexamined revolution in the history of legal thought.

--Dan Ernst

Weekend Roundup

• The University of Wisconsin Law School’s State Democracy Research Initiative (SDRI) has put together an amazing resource on state constitutions, the 50 Constitutions project, which it continues to update. Of particular interest: the "Tracking Constitutional Change" feature. This feature "allow[s] users to see how [constitutions] have taken shape over time and to learn about important historical moments." Nine states so far "have full Tracking Constitutional Change capabilities," including the just-added Pennsylvania. SDRI reports that "[m]ore states will be added in the coming year."   

• Katrina Jagodinsky, University of Nebraska-Lincoln, will present in the Monday Seminar of the Department of History of Johns Hopkins University on September 22, from 3:00 pm – 4:30 pm. 

• 

  Children Gathering Wildflowers above Trondhjem (LC)

  Elin Hofverberg on "110 Years of the Norwegian Castbergian Child Laws" (In Custodia Legis).
  

• Zachary S. Price, UC San Francisco Law, on “Trumpian Impoundments in Historical Perspective” (SLR).

• "Durham Cathedral has unveiled a new exhibition featuring three versions of Magna Carta, the historical charter that first established the Rule of Law"  (Palatinate). 

• The historian of administrative state Joy Milligan has moved from Virginia Law to UC Berkeley Law (UC Berkeley Law). 

• Justice Stephen Breyer, Tomiko Brown-Nagin, and Michael Klarman on taking the bar--or not (Harvard Law Today). 

• Thanks to Liz Sepper (UT-Austin), the talk of law professor Bluesky is the painting "Supreme Court Beach." Jay Willis at "Balls & Strikes" did a deep dive on the painting's history -- including which former Justice owns the original. [KMT] 

• The latest "SCOTUS Scoop" from the Supreme Court Historical Society is Still at Work: How the Justices Spend Their Summer Months.  But we thought they were at the beach!

• For over 30 years, Daytonites "have put on a play every July using the trial transcript" form the Scope Monkey Trial.  "Destiny in Dayton" explains "the complexities of the town captured by history" (Akron Legal News).  Also, the ABAJ looks "back at the Scopes trial 100 years later." 

• Upcoming book talks in the America's Town Hall series of the National Constitution Center include Akhil Reed Amar on Born Equal: Remaking America’s Constitution, 1840–1920 (September 16) and Eric Foner on Our Fragile Freedoms (September 24).  

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

SHEAR Book Prize to LaCroix for "The Interbellum Constitution"

Via Bluesky, the Society for Historians of the Early American Republic (SHEAR) announced the prize winners from this year's annual meeting. 

The SHEAR Book Prize ("awarded to the book that makes the best primary scholarly contribution to the history of the early American republic") went to Alison L. LaCroix (University of Chicago) for The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press).

Congratulations to Professor LaCroix!  

-- Karen Tani 

 

SHEAR James H. Broussard Best First Book Prize to Gronningsater for "The Rising Generation"

Via Bluesky, the Society for Historians of the Early American Republic (SHEAR) announced the prize winners from this year's annual meeting. 

The James H. Broussard Best First Book Prize ("awarded annually to the best 'first book' by a new author published in the previous calendar year and dealing with any aspect of the history of the early American republic") went to Sarah L. H. Gronningsater (University of Pennsylvania) for The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom (Penn Press).

Congratulations to Prof. Gronningsater!

-- Karen Tani  

Herz's "God and the Bueaucrat"

Zachary Herz, University of Colorado, Boulder, has published The God and the Bureaucrat
Roman Law, Imperial Sovereignty, and Other Stories (Cambridge University Press):

Why is Roman law so boring? In this book, Zachary Herz argues that the bureaucratic, positivistic world of Roman law is not a distraction from the violent autocracy of the Roman empire, but an imagined escape. Lawyers, bureaucrats, and even emperors used legal writing to think about worlds that were safer or fairer than the one in which they lived. This archive of political imagination slowly became a law-code, and now guides readers through a legal system about which its authors could only dream. From Augustus to Justinian, this book shows how law symbolized order in chaotic times, and how that symbol eventually took on a life of its own. From the enlightened judgements of Hadrian to the great jurists and child rulers of Severan Rome, Herz reveals what Romans were really talking about when they talked about law.  

--Dan Ernst.  TOC after the jump.

Re on the Warren Court (and Today's)

Richard M. Re, Harvard Law School, has posted To a Conservative Warren Court, a draft of his Foreword to the HLR issue on the Supreme Court:

Ideological conflict has masked an underlying continuity in the American legal system. In recent years, the Supreme Court -- while obviously subject to fierce criticism -- has been doing its part to preserve the rule of law, as distinct from partisan politics. That was true in the Warren Court era and remains true today. 

--Dan Ernst 

At the Brennan Center: The Rise of the Imperial Presidency

[The Brennan Center for Justice has announced the virtual event, The Rise of the Imperial Presidency, to take place on August 5, from 3–4 p.m. ET.  DRE]

The executive branch has amassed tremendous power, challenging the constitutional balance among branches of government. This year alone, the president has ignored the laws passed by Congress to fire leaders of independent agencies without cause, freeze the spending of appropriated funds, and deploy the military as a domestic police force.

Supporters of vast presidential power have a name for this: the unitary executive. It’s the idea that the Constitution gives the president full personal control over the executive branch and wide latitude to act unilaterally. While legal scholars debate its scope, the theory in its most expansive form envisions a king-like president largely unconstrained by Congress or the courts. An embrace of this theory by the executive branch and Supreme Court could carry far-reaching consequences for American democracy. 

Join us for a virtual event on Tuesday, August 5, at 3 p.m. ET with historians and legal experts. They will examine the modern presidency, the origins of the unitary executive theory, and its implications for the future of checks and balances. 

Speakers:

Samuel Breidbart, Counsel, Brennan Center Democracy Program
Jane Manners, Associate Professor of Law, Fordham University School of Law
Julian Davis Mortenson, James G. Phillipp Professor of Law, University of Michigan Law School
Cristina Rodríguez, Deputy Dean and Leighton Homer Surbeck Professor of Law, Yale Law School
Moderator: Wilfred U. Codrington III, Walter Floersheimer Professor of Constitutional Law, Benjamin N. Cardozo School of Law

Note, "When Rational Basis Review Bit"

The Harvard Law Review has published a student Note of interest: "When Rational Basis Review Bit." Here's an excerpt from the introduction (footnotes omitted):

Like many widows, Sandy Meadows faced economic uncertainty after her husband passed away.  She, however, had a knack for arranging flowers and found a job in the floral department of her local Albertsons grocery store. Sandy excelled, earned a promotion, and effectively ran the entire department.³ But then the Louisiana Horticulture Commission came knocking.  The Commission informed the store that it had to hire a licensed florist or shut down the department.

Louisiana is the only state in the Union that imposes occupational licensing requirements on florists. Prior to reforms in 2024, getting licensed was no small task. Would-be florists were required to pass a notoriously difficult exam — fewer than fifty percent made the cut. Sandy failed this exam five times, but it wasn’t because her floral skills were lacking; her job performance was exemplary.  She failed because currently licensed florists decided who passed and who failed. Fox, meet henhouse.

Sandy’s story doesn’t have a happy ending. When she couldn’t get a license, Albertsons fired her and replaced her with a licensed florist. She couldn’t afford a phone or car, and the power company eventually shut off the electricity to her home. Shortly thereafter, Sandy died in poverty, alone.

Before her death, Sandy — along with a few other aspiring florists — challenged Louisiana’s licensing scheme with the help of attorney Clark Neily, who recounts Sandy’s story in his book Terms of Engagement. They lost, felled by a familiar foe in constitutional adjudication: rational basis review. No matter that the women had a constitutional right to pursue their chosen profession or that even a Supreme Court Justice has recognized that rational basis review is “tantamount to no review at all.”  Because Louisiana presented conceivable justifications for its licensing scheme, the court upheld the regulations. And Sandy’s livelihood vanished.

Rational basis review wasn’t always this farcical. For about twenty years, between the Court’s decisions in United States v. Carolene Products Co. — which established rational basis review — and Williamson v. Lee Optical of Oklahoma, Inc. — which redefined rational basis review as a hyper-deferential standard — the courts applied a meaningful means-end scrutiny to restrictions on economic activity that gave legislatures wide latitude to exercise their police power while protecting a baseline level of economic liberty. (This Note refers to that time period as the Carolene Products era.) That blend of interrogation and deference was the right approach. Many scholars have called on courts to give economic rights their due; this Note offers a proven mechanism for doing so: reviving the Carolene Products–era approach to rational basis review.

Read on here. (Hat tip: Melissa Murray, via Strict Scrutiny)

For more on the history of rational basis review, focusing on a different period, see Katie Eyer's Constitutional Crossroads and the Canon of Rational Basis Review, 48 U.C. Davis L. Rev. 527 (2014) (arguing that "the dominant modern understanding of the Court’s minimum tier (rational basis) review — as a shallow and empty form of review, devoid of meaningful scrutiny — is, to some extent, a byproduct of our loss of historical memory"). 

-- Karen Tani