McGovern on Psychologists and Disparate Impact in the 70s

Michael F. McGovern, Knight Law and Media Fellow, Information Society Project, Yale Law School, has published Regulating bias: validity liberalism and the politics of civil rights in 1970s America, in the British Journal of the History of Science Themes:

The Civil Rights Act of 1964 made the validity of aptitude tests in employment screening and promotions a major legal and political issue in the United States. A 1971 Supreme Court decision relied on guidelines derived from the American Psychological Association’s test standards to establish liability under the disparate impact theory of discrimination, a major victory for civil rights organizations and allied personnel psychologists. These adherents to what I call ‘validity liberalism’ put faith in practices of technical evaluation as a wedge, both for enforcing the law and for decoupling ideas about ability and merit from evaluations of job performance. But not all testing experts saw these developments as salutary. After the federal government’s own merit examinations were challenged under the US Constitution, a competing contingent of psychologists lined up to defend them, helping confine disparate impact to statutory law. Historians have shown how white backlash against early civil rights victories gave form and substance to the politics of the 1970s. This article argues that scientific dissensus over validation standards became a key fulcrum in this shift, highlighting a previously unexplored episode: the older Civil Service Commission’s effort to promulgate a competing set of validation guidelines to undercut the newer Equal Employment Opportunity Commission.

--Dan Ernst 

"Who Owns Civil Rights History?" by Chang and Lovelace; response by Gross

Volume 106 of the Boston University Law Review includes the article "Who Owns Civil Rights History?" by Robert S. Chang (UC Irvine School of Law) and H. Tim Lovelace, Jr. (Duke Law School). The abstract:

In this Article, Professors Chang and Lovelace argue that affirmative action litigation is not simply about college admissions but about putting America’s racial history—and future—on trial. They highlight the critical role that the Supreme Court plays in constructing our nation’s collective memory in which it operates, functionally, as a court of history. At stake is historical memory, which is used to produce the instant outcome but which then contains and constrains future possibilities. The litigation results in an “opinion of the Court” written by the victors. The word “opinion” belies the power that the victors have in
narrating the official history, which becomes authoritative in our precedent- based system. As a result, racial justice is being written out of the official civil rights history narrated in the “opinion of the Court." 

In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Court’s opinion does not use the word “affirmative action,” which allows Chief Justice Roberts to ignore how affirmative action was a critical part of the civil rights movement. This erasure allows him to characterize the civil rights movement and Brown v. Board of Education as if they were only ever animated by fealty to colorblindness. Part of constructing this revisionist civil rights history includes a repudiation of Korematsu v. United States. The Court, in essence, retroactively applies strict scrutiny to arrive at the conclusion that
Korematsu had been wrongly decided at the very moment that it applies strict scrutiny to Harvard’s and the University of North Carolina’s admissions policies to wipe out what it perceives to be the stain of race-conscious affirmative action. It asserts that this is precisely what Brown called for and requires. This parallelism in the application of strict scrutiny to the very disparate circumstances of Japanese American incarceration during World War II and affirmative action in selective college admissions becomes a central feature in the new challenges to race-conscious affirmative action at our nation’s military academies. This Article explores the invocation of Korematsu and Brown by litigants and the Court. It offers a corrective history of affirmative action to counter the Court’s erasure of that history.

The article is followed by a response by Ariela Gross (UCLA Law), titled "Erasing, Remembering Colorblindness." The response "expand[s] on" the article's "observations regarding the constitutional memory-work of SFFA, placing Chief Justice Roberts’ story in the broader context of the conservative movement’s memory of Brown and a colorblind Constitution." It "conclude[s] with a few thoughts regarding the alternative civil rights history Chang and Lovelace sketch that places affirmative action at its center." 

-- Karen Tani  

Hanna on Colvin's Bus Protest

Mark Hanna has published From Claudette Colvin’s expectation to bus desegregation in Browder v Gayle in the American Journal of Legal History:

In March 1955, 15-year-old Claudette Colvin refused to move from her seat on a Montgomery bus, setting in motion a chain of proceedings that culminated in the Supreme Court’s summary affirmance in Gayle v Browder. This article reconstructs a legal history of rights formation that begins from Colvin’s persistent expectation of equal treatment under the law and traces how that expectation moved through a dense procedural field and complex socialmovement infrastructure before stabilizing as a Fourteenth Amendment right in the desegregation judgment. The article situates this account within rights-consciousness scholarship, treating rights as historically situated, bottom-up constructions, but specifies normative expectations—expectations that resist adaptation to disappointment and are legible in contemporaneous records—as its core unit of analysis. Using arrest records, trial papers, pleadings, hearing transcripts, judicial orders, organizational minutes, correspondence, interviews, and contemporary media reports, it tracks how Colvin’s expectation moved through juvenile proceedings, movement strategy, and federal procedure into a ruling that dismantled Montgomery’s bus-segregation regime and helped shape the constitutional law of public transport, while analysing the legal and procedural mechanics deployed to obstruct desegregation and the strategic choices that overcame them. It concludes by sketching a legal-history method for studying rights formation that keeps grassroots expectations and their procedural trajectories in view, and uses that vantage to clarify how movement strategy, judicial practice, and the emergence of constitutional rights are linked in struggles against racial discrimination in public space. While consistent with accounts that emphasize the interaction of litigation and protest, the article’s central focus is on how grassroots expectations of constitutional right at the ‘bottom’ of a legal order can, in rare but illuminating cases, come to be stabilized at its apex.

--Dan Ernst 

Wilson, "The Disability History of Brown v. Board of Education"

An article of interest from Britney Wilson (New York Law School): "The Disability History of Brown v. Board of Education," Washington and Lee Journal of Civil Rights and Social Justice 32, no. 1 (2026).  The abstract:

In 1952, two years before the Supreme Court of the United States decided Brown v. Board of Education, Black deaf students in Washington, D.C., who had been prohibited from attending the local school for white deaf students and forced to go to school in Maryland, won the right to be educated in their hometowns in Miller v. Board of Education of District of Columbia. Brown is heralded as one of the most important racial justice cases of all time. It overturned Plessy v. Ferguson's longstanding "separate but equal" mandate and ruled that the segregation of students based on race violates the equal protection clause of the Fourteenth Amendment. However, less is known about Brown's connection to disability history. Beyond the obvious similarities between Miller and Brown, the attorneys who represented the plaintiffs in Miller also represented the plaintiffs in Bolling v. Sharpe, one of the five companion cases that ultimately comprised Brown v. Board of Education. Additionally, one of the named plaintiffs in Gebhart v. Belton, another one of the Brown companion cases, challenged the segregation of Delaware schools so that her daughter, who had a heart condition, would not have to travel several miles to attend the only high school in the state for Black students. Yet, when most civil rights legal scholars discuss the history of Brown, its disability history is not part of the story. Additionally, when disability legal scholars discuss Brown, the primary conversation concerns Brown as a precedent for the right of students with disabilities to be educated in integrated settings with nondisabled students, not the role of disability in Brown itself. This Article uses Miller and Gebhart to challenge what I call the Black civil rights-disability rights binary-the traditional characterization of "Black civil rights" and "disability rights" as separate and chronological movements-found in legal scholarship and advocacy. It situates Miller within the context of other key cases whose incremental precedents set the stage for the victory in Brown. Using case filings and other primary sources, it also examines civil rights attorneys' advocacy for racial equality on behalf of Black disabled students considering the attitudes towards race at the time, let alone the attitudes towards other marginalized identities like disability. This Article concludes that the recognition of the disability history of a prominent civil rights case like Brown adds important nuance to the story of desegregation. Its absence helps explain the often-critiqued challenges to intersectional organizing and reveals important lessons for the improved inclusion of disability in civil rights advocacy more broadly.

Read on here.

Weekend Roundup

• ASLH President Mitra Sharafi's alternative to assigning undergraduate research papers in an age of AI (South Asian Legal History Resources).

• The recording of the National Constitution Center's session on the Constitution and the Courts, held in conjunction with the Federal Judicial Center, is now available.  It consists of a panel on the Constitution in the Founding Era with Akhil Reed Amar, Christopher Bonner, and Gerald F. Leonard, moderated by Thomas Donnelly, and a discussion on the Constitution and the federal judiciary with Kevin Arlyck, moderated by Julie Silverbrook.  

• Alison L. LaCroix's speech to the University of Chicago's graduates is here.  H/t: JDM. 

• From In Custodia Legis: "A Deep Dive into Library Resources on Phillips v. Martin Marietta Corp." -- Part 1 and Part 2.   

• Saul Cornell appears in "The American Experiment," a five-part documentary on the nation’s founding that starts streaming on Netflix on June 24 (Fordham Law).

• Margaret Burnham and Brenda E. Stevenson on opening the federal archives on Civil Rights Cold Cases (AHA Perspectives). 

• "The Brennan Center for Justice at NYU Law is pleased to announce the 2026–2027 recipients of the Steven M. Polan Fellowship in Constitutional Law and History: Kate Andrias, Olatunde Johnson, William Novak, Alice O’Brien, and Julie Suk."   

• 
  
  "Is the United States on the Road to a New Civil War?" David Blight's lecture to the American Academy in Berlin. 

• Edmarverson A. Santos on Doctrine of Discovery and Colonial Legal Order and Robert J. Miller on The International Law of Colonialism: The Doctrine of Discovery.

• ICYMI: More Gordon Wood tributes (LOA).  250 Years of State Constitutions (SCR). The NJ State Library's exhibit on the state's first constitution (tapinto).  Jesse Wegman discusses James Wilson (Fresh Air).  The University of Pennsylvania Almanac notes Serena Mayeri's receipt of the 2026 James Willard Hurst Book Prize From Law & Society Association.  The lessons of the Harry Raymond car bombing of 1938 for police accountability today (DJ).  When Robert E. Lee's daughter was arrested in a Jim Crow streetcar dispute (Alexandria Brief).

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

Milligan on the Affirmative Duty of Racial Repair

Joy Milligan, University of California, Berkeley Law School, has posted The Constitution of Racial Repair: A Reconstructed History, which is forthcoming in the Iowa Law Review:

If affirmative action is dead, we should remember it accurately.

Dominant narratives claim that bureaucrats invented affirmative action in the 1970s as a policy of voluntary racial preferences in jobs and university admissions, undermining merit and provoking long-running conflict with the Constitution. That account is misleading, distorting our grasp of the nation’s racial history and the Constitution itself.

This Article offers a new, more complete constitutional history. Affirmative action was once constitutionally required, consisted of far more than preferences, and represented the Supreme Court’s own best interpretation of Brown v. Board of Education. The “positive theory” of Equal Protection required government to repair the past century’s worth of constitutional violations under Jim Crow, using a broad range of race-conscious and race-neutral measures. Lower courts and agencies applied the mandate beyond schools, to the many public institutions throughout the North and South in which government had imposed segregation. However, an opposing “negative theory” of Equal Protection persisted, which required only government inaction and claimed that any remedial steps violated white people’s freedoms or material interests. Over time, the Court increasingly sided with the negative theory, diluting the Constitution’s remedial requirements and fragmenting Equal Protection jurisprudence. The very concept of an affirmative duty to remedy the nation’s unconstitutional past dissipated.

Forgetting affirmative action’s true history biases our judgments of the nation’s present, its past, and the Constitution. As the modern proponents of the “negative theory” of Equal Protection attempt to halt all efforts at racial equality, it is crucial to recover the Constitution’s prior meanings—and imagine alternative futures.

--Dan Ernst 

LSA James Willard Hurst Book Prize to Mayeri for "Marital Privilege"

The Law & Society Association has announced its 2026 awards, including the winner of the James Willard Hurst Book Prize ("awarded annually (biennially prior to 2002) for the best work in socio-legal history published in the previous year").

This year's Hurst award went to Serena Mayeri (Penn Carey Law), for Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Oxford University Press, 2025). The citation:

Serena Mayeri’s Marital Privilege shows how, beginning in the 1960s, marriage was dislodged from its supreme position across a range of legal domains and replaced with a regime of “marital privilege.” With poignant, empathetic detail drawn from archives and legal documents, Mayeri brings to life both well-known and not-so-famous cases, revealing the theories and evolving strategies animating a wide range of challengers to the regime of marital supremacy—from litigants to advocacy organizations to legal academics. Yet, even as their victories advanced the values of nondiscrimination and individual autonomy, Mayeri shows how the assumptions of the new regime of “marital privilege” obscured and deepened inequalities of wealth, power, and privilege in American law and society. Combining sweeping ambition, doctrinal acumen, and a keen sense of historical contingency, Marital Privilege provides a magisterial account of a crucial transformation of American law. 

Congratulations to Professor Mayeri!

-- Karen Tani 

Siegel & Ziegler, "Dismantling Equality Rights Through 'Biological-Sex' Talk"

Reva B. Siegel (Yale Law School) and Mary Ziegler (University of California, Davis) have posted Dismantling Equality Rights Through "Biological-Sex" Talk, which is forthcoming in Volume 105 of the Texas Law Review. The abstract:

In rejecting the sex-discrimination claims of transgender claimants in United States v. Skrmetti (2025), the Supreme Court introduced a new term for sex into equal protection law: “biological sex.” The Court made clear its view that laws recognizing biological-sex differences warrant judicial deference. Claims on biological sex also appear in the legislation and briefing of West Virginia v. B.P.J. and Little v. Hecox, cases challenging bans on transgender athletes’ participation in girls’ teams under the Constitution and Title IX this Term.

Biological sex is a movement signature—the fingerprint of advocates who are supplying the Supreme Court with resources for the stealth overruling of United States v. Virginia (1996), Justice Ginsburg’s opinion for the Court explaining the Constitution’s guarantees against sex discrimination (which judges apply in cases of discrimination on the basis of sexual orientation and gender identity, as well). We trace the usage of biological sex to the declarations, bills, and briefs of faith-identified social conservatives who mobilized against LGBT victories in Obergefell v. Hodges and Bostock v. Clayton County and under Title IX. Represented by advocates such as Alliance Defending Freedom (ADF) and Heritage Foundation, these Americans are now seeking reversal of constitutional and civil rights of other Americans as contrary to nature and divine command.

Conflict over transgender rights is tied to conflict over sexual orientation and gender roles in overt and subterranean ways, as this Article shows. The idiom of biological sex draws upon physiological naturalism—traditions of reasoning from the body—that courts long employed when deferring to laws enforcing gender roles before the rise of sex equality law. 

By following talk of biological sex in state statutes and lower-court cases, we show that the movement is providing resources for the stealth overruling of Virginia as the decision reaches its thirtieth anniversary. Biological sex directs judges to defer to the judgments of the political branches rather than to scrutinize sex-based state action for sex-role stereotyping—a code associating sex difference and judicial deference that revives in contemporary idiom the very traditions of reasoning from the body that United States v. Virginia rejected. 

Read on here.

-- Karen Tani 

Tolson's "In Congress We Trust?"

Forthcoming from the Cambridge University Press: In Congress We Trust? Enforcing Voting Rights from the Founding to the Jim Crow Era by Franita Tolson, Dean of the University of Southern California Gould School of Law.  It will appear in the series Cambridge Studies on Civil Rights and Civil Liberties:

This book reveals how Congress quietly shaped American elections across more than a century of constitutional development. Far from a passive observer, Congress used its authority to influence key controversies – from the expansion of slavery in new territories to the reconstruction of the post-Civil War electorate. Congress exercised power under the Elections Clause, the Guarantee Clause, and later, the Fourteenth and Fifteenth Amendments, to combat voter suppression, reimagine representation, and determine who could (and could not) participate in American democracy. Even as Jim Crow laws disenfranchised millions, Congress continued to review and sometimes overturn the elections of its own members, refusing to cede complete control to the states. In doing so, Congress routinely subordinated federalism to politics. In Congress We Trust? provides a new perspective on who truly governs our system of elections by showing that federal authority has been broad, lasting, and decisive.

--Dan Ernst

Weekend Roundup

• Over at JOTWELL, we've noticed several reviews of interest: Maya Manian (American University Washington College of Law) wrote about Aziza Ahmed's Risk and Resistance: How Feminists Transformed the Law and Science of AIDS (2025); Martha Ertman (University of Maryland Francis King Carey School of Law) reviewed Dorothy Brown, Getting to Reparations: How Building a Different America Requires a Reckoning with Our Past (2026); Jedidiah Kroncke (University of Hong Kong) spotlighted María E. Montoya's A Workplace of Their Own: Rockefeller, Roche, and Labor's Battle Over Industrial Democracy (2026). 

• The California Law Review's podcast has posted an episode on Michael Banerjee's "What Harvard’s Lawsuit Should Have Said" (published in the journal's online companion in August 2025).

• On the history-of-higher-ed theme, Banerjee also alerted us to this interesting Portland Press Herald article, on "How Maine’s elite private colleges sold Wabanaki land to bankroll early construction."  

• Vicki Jackson, HLS, delivered the  2026 Malyi Lecture at the University of Chicago Law School on “Knowledge Institutions and Constitutional Democracy.”   

• Jack Rakove will speak on Theory of Constitutional Failure: The American Case at Notre Dame Law on Friday, April 24, 2026, from 2:00 pm - 3:00 pm.

• Congratulations to Kunal Parker, Miami Law, on his selection as Beatrice Webb Visiting Professor at the London School of Economics! 

• And congratulations to Edward J. Balleisen, the new Provost of George Washington University! (GW Today)

• Nathan Dorn on Lodovico Carerio: Heresy, Lawbooks, and the Inquisition in the Kingdom of Naples (In Custodia Legis).   

• Haris A. Durrani, a Prize Fellow in Economics, History, and Politics at Harvard University, has published Engineering the Law: The Complicated Legal History of a Satellite in the American Historical Association's Perspectives on History.

• "The 1874 Arkansas Constitution and records from the convention that produced it are now available online through a collaboration between the University of Arkansas Libraries and the Quill Project at the University of Oxford" (Arkansas News) 

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

• The National Constitution Center has announced the opening on May 15 of "Governing the Nation, a new permanent gallery exploring the Constitution’s system of separated powers."  Its development was guided by "a distinguished scholarly advisory board representing leading universities and research institutions, ensuring a rigorous and balanced exploration of the separation of powers and federalism," including H. W. Brands, Cristina Rodríguez, Yuval Levin, Michael Klarman, Gail Heriot, and Ilan Wurman.

• Deborah Rosen reviews Andrew Fede's A Degraded Caste of Society in the Journal of Southern History.

• That E.O. on the PRA:  The American Historical Association and American Oversight file suit (CBS News).  The Trump Administration Is Trying to Erase Its Own History (Atlantic Daily).  Joyce Vance with the court filing (Civil Discourse).  The AHA's notice of the lawsuit.

• More on Birthright Citizenship: Steve Vladeck, Georgetown Law, on the "pitched battle within the legal academy over the fairly transparent efforts of a small cohort of right-wing law professors to provide a fig leaf of historical support for the Trump administration’s legally and morally odious position in the birthright citizenship case" (One First). Philip Hamburger, Columbia Law, on Allegiance, Birthright, and Citizenship (Law & Liberty).  For a brief time only, you may read, open access, the introduction to Anna O. Law's Migration and the Origins of American Citizenship, here.

• ICYMI:  In the National Constitution Center's series, "Constitutional Voices": W.E.B Du Bois and Elizabeth Cady Stanton.  Kevin Kruse rethinks the Civil Rights Movement (Campaign Trails).

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

Lash Responds to Ramsey on Birthright Citizenship and Allegiance

Kurt Lash, University of Richmond School of Law, has posted The Allegiance Reading of the Citizenship Clause and Its Critics: A Response:

John A. Bingham (LC)

The Fourteenth Amendment establishes two requirements for natural born citizenship: First, one must be born in the United States. Second, one also must be born “subject to the jurisdiction” of the United States. In a prior article, I explained how the framers and ratifiers understood the latter text as requiring that one be born subject to the sovereign people of the United States in the sense of owing a primary allegiance to the United States. In a recent essay, Professor Michael Ramsey critiques the allegiance theory and argues that the text should be read to include any person born in the United States subject to its lawful or “sovereign authority.” 

Professor Ramsey’s reading is thoughtful but cannot be correct. Ramsey substitutes the phrase “under sovereign authority” for the actual text “subject to the jurisdiction” of the United States, and he invests it with a meaning based on common law instead of the actual understanding of the framers and ratifiers. The result is an interpretation held by congressional Democrats but expressly rejected by the Republican framers. Nor can Ramsey’s “subject to sovereign authority” theory account for the exclusion of the one category everyone involved insisted be excluded: children born to Native American parents. 

Most of all, Ramsey cannot explain away the abundant historical evidence supporting an 1866 allegiance-based understanding of natural born citizenship. In one of the most widely published speeches of the Thirty-Ninth Congress, and one that Ramsey does not mention, John Bingham explained that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen.” Both the 1866 Civil Rights Act and the Fourteenth Amendment communicated this same Republican theory of natural born citizenship.

--Dan Ernst 

Weekend Roundup

• Elizabeth Brand Monroe (1947-2026), a legal and public historian who received the Supreme Court Historical Society's Gossett Award for her article on the Dartmouth College Case (IndyStar). 

• Over at the LPE Blog: Serena Mayeri (Penn Carey Law) on "writing a history of marital privilege in an age of retrenchment." 

• In the Brigham Young University Law Review: a symposium reflecting on the 20th anniversary of David Skeel's Debt's Dominion: A History of Bankruptcy Law in America.   

• Robert Post, Yale Law School, and Daniel Holt,  Historical Office of the U.S. Senate, discuss the passage of the Judiciary Act of 1925 in this recording of a lecture sponsored by the Supreme Court Historical Society. 

• The American Historical Association hosts a Congressional Briefing on the history of vaccines on Wednesday, February 11, at 9:00 a.m. ET in Rayburn House Office Building Room 2044.  Panelists Elena Conis (Univ. of California, Berkeley), David M. Oshinsky (New York Univ.), and Michael Willrich (Brandeis Univ.) will discuss the history of vaccines against diseases including smallpox, polio, and measles.

• Via H-Disability: a CFP for a workshop on "Disabilities and Women in Ancient Rome: Legal, social and cultural perspectives" (University of Helsinki, Finland, May 4, 2026). 

• The Federalist Society has announced the establishment the Meese Prize for Excellence in Originalist Scholarship.  The winner gets  $10,000.  H/t: Originalism Blog.    

• Madiba Dennie will discuss her book The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take it Back at UVA Law. 

• The latest Part of the Philip C. Jessup papers is open at the Library of Congress.  Here's Rachel McNellis's account.  (Unfolding History.)

• A notice of Scott Sandage's teaching on the Constitution in the Special Collections Department at Carnegie Mellon University.

• Now online from the National Constitution Center: "Lucas Morel and Melvin Rogers join to discuss how African American leaders and citizens, such as Prince Hall, Frederick Douglass, Ida B. Wells, and Rev. Martin Luther King, Jr. have invoked the ideas and principles of the Declaration of Independence throughout American history to push for a more free and equal America." 

• Although the event for which it was produced was last year, the American Historical Association has just circulated this very useful handout on the history of the tariff. 

• ICYMI: A GWB-appointed judge blasts the removal of the mention of George Washington's slaves  from his Philadelphia home (ATL).  Relatedly, SHEAR has a tracker of this and similar purging of public history (Panorama).  Jack Rakove on Playing the Grinch at America’s 250th Birthday Party (Washington Monthly). George Liebmann provides Historical Perspective on the Unitary Executive (Law & Liberty).  Adolpho Birch, the first Black judge appointed in Nashville (Fox17). Noah Shusterman says there's still historical work to be done on the Second Amendment (DCFL).  The criminalizing of protest and dissent has a long history in America (Guardian).  Yearlong project restores lost videos of civil rights foot soldiers (Tuscaloosa News).

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

Gonzales's "Breaking Down the Walls of Segregation"

David-James Gonzales, Brigham Young University, has published Breaking Down the Walls of Segregation: Mexican American Grassroots Politics and Civil Rights in Orange County, California (Oxford University Press):

On March 2, 1945, five Mexican American families and their Jewish American lawyer filed a class-action lawsuit against four school districts in Orange County, California, to end the segregation of ethnic Mexican children. In a shocking decision, the court ruled in favor of plaintiffs, setting a legal and historical precedent in Mendez, et al. v. Westminster School District of Orange County that shook the foundations of Jim Crow America and led to the end of de jure school segregation across the nation.

Breaking Down the Walls of Segregation tells the story of how ethnic Mexicans in a relatively unknown agricultural backwater built the unprecedented movement that led to this decision. Beginning in the 1880s, David-James Gonzales details the social and economic history of Orange County, explaining how citrus capitalists, seeking increased market share and profitability, established the walls of segregation to manage ethnic Mexican family labor. By the early 1930s, ethnic Mexicans were segregated into over fifty underserved colonias and barrios. Without training or support from national civil rights organizations, they mobilized against segregation and inequality beginning in the late 1920s. Ethnic Mexican grassroots organizations proliferated throughout the county, intent on engaging in civic affairs and ending anti-Mexican discrimination and segregation. This movement, comprised of immigrants, citizens, parents, children, emerging activists, and their non-Mexican allies, paved the way for the growth of LULAC and nationwide organizing. As an essential part of the "long civil rights movement," the ethnic Mexican struggle against segregation in Orange County illustrates how minoritized groups have historically pushed US social, economic, and political institutions to live up to the nation's founding ideals.

--Dan Ernst

Hamm's Biography of Arthur Garfield Hays

Richard F Hamm has published Confronting Racism: Arthur Garfield Hays and the Fight for Equality, 1925-1954 (SUNY Press):

Beginning in 1925 the corporate lawyer and civil libertarian Arthur Garfield Hays began battling segregation. This book details Hays's work on the Mayor's Commission that investigated the1935 Harlem riot; his role in a 1937 restrictive covenant case in Westchester, County; his representing a challenger to the segregated draft in World War II; his part in ending the exclusion of African Americans from the American Bar Association; and his opposition to strong fair employment legislation. Motivated by his conception of a good society that valued civil liberties, democracy, and individualism, Hays fought for African Americans' legal rights under the Constitution. His activism was limited by his conservative economic views and his fear of an active state that intervened in private matters. His career illuminates the potential and perils of interracial co-operation during the long civil rights movement. Because the issues he confronted continue today-police mistreatment of African Americans, housing discrimination, limits on African Americans in the professions, racial discrimination in the military, and how to build government structures to limit discrimination-this book speaks to our time as well as his.

 --Dan Ernst 

Classroom Materials on the Supreme Court, 1874-1921

[We have the following announcement from the Supreme Court Historical Society.  DRE]

Rights, Commerce, and Reform: A New Era of Supreme Court History Classroom Resources

Discover Supreme Court History from 1874-1921 with a new era of resources from Beyond the Bench, our civics education website. The new era, Rights, Commerce, and Reform, includes over 20 new case summaries, resources, and life stories from the Waite, Fuller, and White Courts ready for classroom use.

Featured resources include:

• Justice Oliver Wendell Holmes: The Boston native, Civil War soldier, and Associate Justice whose legal theories revolutionized modern understanding of the law; 

• Belva Lockwood: The educator, activist, and attorney who became both the first woman to argue before the Supreme Court and to run for President of the United States;  

• Civil Rights Cases (1883): The Supreme Court decision that held the Civil Rights Act of 1875 to be unconstitutional and paved the way for Plessy v. Ferguson (1896) and Jim Crow segregation; 

• Muller v. Oregon (1908): The Supreme Court decision that upheld a gender-based state labor law and created a clear legal distinction between men and women in the workplace;  

• Standard Oil Co. v. United States (1911): The Supreme Court decision that established the “rule of reason” in antitrust law and demonstrated the government’s power to regulate monopolies and increase competition; and  

• The Judiciary Act of 1891: The law that created the United States Courts of Appeals and helped shape the modern Judiciary.

Black on Education and State Constitutions in Reconstruction

Griffin Black has recently published Reconstruction State Constitutional Conventions and the Rebirth of American Schooling as a student note in the Yale Law Journal:

A rebirth of American education occurred in the state constitutional conventions of the Reconstruction South. At a moment of national constitutional reformation, biracial coalitions of delegates constitutionalized universal public-school systems, viewing them as a core component of remaking their states in the image of the U.S. Constitution. These delegates succeeded in keeping their constitutions free from the language of segregated schooling. This ill-understood history severely troubles the Supreme Court’s jurisprudence of the schoolhouse. This Note fills gaps in the ongoing conversation emanating from the Court about the relationship between our nation’s history and its current educational landscape.

--Dan Ernst 

Weekend Roundup

• Congratulations to Alison LaCroix, University of Chicago Law School, upon the awarding to her of the American Historical Association’s Littleton-Griswold Prize in American Law and Society for The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms!

• Laura F. Edwards, Class of 1921 Bicentennial Professor in the History of American Law and Liberty at Princeton University, will deliver three lectures on the theme “The Legal Geography of the Civil War Era and Its Lasting Legacy,” as the 2025 Steven and Janice Brose Distinguished Lecture Series at Penn State University on October 23-25. 

• A notice of Emma Brush, a legal historian recently appointed Assistant Professor of Law, Jurisprudence and Social Thought at Amherst College (Amherst Student).  

• A symposium on John Fabian Witt's Radical Fund is underway over at Balkinization.  So far the contributors have been Michelle Adams, Risa Goluboff, and Willy Forbath.

• Evan D. Bernick, Northern Illinois University College of Law, has posted his review of Born Equal by Akhil Amar, Yale Law School.

• Jane Manners's historian's amicus brief for the Brennan Center in Grundmann v. Trump (D.C. Cir.), involving the Trump administration’s motion to dismiss Susan Tsui Grundmann's challenge to her removal from the Federal Labor Relations Authority.   

• “The Origins of the Major Questions Doctrine,” which Rachel Rothschild, Michigan Law, presented at last year's annual meeting of the ASLH, has been selected "one of the top 10 environmental law papers published in 2024" (Michigan Law). 

• In Time's "Made by History" series: If the Supreme Court Forgets the Past; When the Government was Re-Segregated. 

• ICYMI: Still more Lepore: Arts Fuse.  Justice Amy Coney Barrett on originalism (and more) (C-SPAN).  Marcus Rediker reviews The Zorg by Siddharth Kara (NYT).

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

Witt's "Radical Fund"

John Fabian Witt, Yale Law School, has published The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon & Schuster):

In 1922, a young idealist named Charles Garland rejected a million-dollar inheritance. In a world of shocking wealth disparities, shameless racism, and political repression, Garland opted instead to invest in a future where radical ideas—like working-class power, free speech, and equality—might flourish. Over the next two decades, the Garland Fund would nurture a new generation of wildly ambi­tious progressive projects.

The men and women around the Fund were rich and poor, white and Black. They cooperated and bickered; they formed rivalries, fell in and out of love, and made mistakes. Yet shared beliefs linked them throughout. They believed that Amer­ican capitalism was broken. They believed that American democracy (if it had ever existed) stole from those who had the least. And they believed that American institutions needed to be radically remade for the modern age.

By the time they spent the last of the Fund’s resources, their outsider ideas had become mass movements battling to transform a nation.

A luminous testament to the power of visionary organizations and a meditation on the vexed role of money in American life, The Radical Fund is a hopeful book for our anxious, angry age—an empowering road map for how people with heretical ideas can bring about audacious change.

Several book events, including the New York Historical today and Politics & Prose in Washington, DC, on Thursday, are listed on the publisher's website.  In addition, the Supreme Court Historical Society will host an event by Zoom at Noon ET on October 23, and Professor Witt has already discussed the book on the Strict Scrutiny podcast.

--Dan Ernst

Weekend Roundup

• JOTWELL has recently published a few reviews of interest. A post by Natsu Taylor Saito (Georgia State University) encourages readers to check out Angi Porter, POISON! An Africana Legal Studies Investigation into Enslaved Africans and Their Deadly Roots, 43 Law & Ineq. 1 (2025). Sara Mayeux (Vanderbilt Law) spotlights Joseph Blocher & Brandon L. Garrett, "Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine," 104 Tex. L. Rev. __ (forthcoming 2026) (available at SSRN).

• At Balkinization: Dylan Penningroth (University of California, Berkeley) closes out the symposium on Before the Movement with two-part response (Part I, Part II). The symposium on Marital Privilege, by Serena Mayeri (Penn Carey Law), has also now concluded. All the posts, including Mayeri's response, are available here.    

• YLS's notice of Akhil Reed Amar's Born Equal: Remaking America’s Constitution, 1840–1920, which was the subject of the Rosenkranz Originalism Conference at Yale Law School (Yale Daily News).

• Selden's Sister has announced an undergraduate essay competition on women and legal history.

• Over at the LPEblog: Genevieve Lakier (University of Chicago Law) on "Title VI Turned Upside Down."    

• The Brennan Center for Justice has listed its Historians’ Friend-of-the-Court Briefs from the Supreme Court’s 2024 Term.

• "The Australia Studies Institute is hosting Associate Professor Alecia Simmonds to deliver the 2025 Reese Memorial Lecture on her book Courting: An Intimate History of Love and the Law" at King's College London on November 3, 2025 from 18:00 to 20:00.  More.  

• On November 19, at 6:00 p.m. EST, the Supreme Court Historical Society, in partnership with the Irish American Judicial Institute, invites you to a special lecture at the Supreme Court of the United States. Sean Meehan discusses The Emerald Bench: The History of the Irish American Justices on the Supreme Court on November 19, at 6:00 p.m. at the Supreme Court of the United States.

• Vermont Chief Justice Jeffrey Amestoy discusses his book on most notorious crime, "the 1926 murder of Cecelia Gullivan, treasurer of the Cone Automatic Machine company, in her home in Windsor" (VTDigger). 

• More Jill Lepore: PBS News Hour; WYPR; Katie Couric.

• The lectures in America at 250: A History, co-taught by Joanne Freeman, David Blight, and Beverly Gage on the YaleCourses YouTube channel. 

• The DC Circuit Historical Society has recently noted the exhibits in the Great Hall of the Barrett Prettyman U.S. Courthouse. 

• Brendan Shanahan discussed Disparate Regimes: Nativist Politics, Alienage Law, and Citizenship Rights in the United States 1865–1965 at Yale (Yale Daily News).

• ICYMI: Akhil Reed Amar on Lincoln's Lesson on Trump's Birthright Citizenship (Time). A Rare Draft of the Constitution Shows It as a Work in Progress (NYT).  The Vermont Constitution (State Court Report). Bowdoin's Role in the Massachusetts Constitution of 1780 and the U.S. Constitution of 1787 (mass.gov).  The Supreme Court Has Always Been This Bad (Nation).

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

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.