Gallanis on Revolutions in Trust Law

Thomas P. Gallanis, George Mason University Antonin Scalia Law School, has published American Revolutions in the Law of Trusts, which appears in the ACTEC Law Journal:

American trust law is revolutionary. It departs in fundamental ways from the trust law of other major common-law jurisdictions, such as England, Australia, Canada, the Hong Kong Special Administrative Region, New Zealand, and Singapore. It also differs greatly from the trust law of the major civil-law countries that have adopted the trust, such as mainland China and Japan. This Article identifies five revolutions in American trust law. Each revolution is examined in its historical context and with regard to its lasting effects. Together, the five revolutions explain American trust law's distinctiveness.  

--Dan Ernst 

Wolff on Legal History and Comparative Law

Lutz-Christian Wolff, Chinese University of Hong Kong, has published an article entitled Legal History and Comparative Law: Just the Flip Side of the Same Coin? in the Independent Law Journal:

The relationship between legal history and comparative law has always been subject to some debate. In recent years the topic has become even more controversial because comparatists have called for a broadening of the scope of comparative law to cover also legal history or even to regard legal history as a subset of comparative law. This article demonstrates that legal history and comparative law do indeed share many common features but also face the same identity crisis as it is difficult to pinpoint distinguishing features which make both areas separate disciplines. From a functional point of view legal history and comparative law are largely identical. The acknowledgement that legal history and comparative law are thus just the flip side of the same coin can eventually lead to the creation of significant synergies.

--Dan Ernst 

CLH 14:1

Comparative Legal History 14:1 (2026) has been published. 

Editorial
David Schorr & Agustín Parise

Comparative law today – tomes, themes, trends
Ralf Michaels

This essay surveys recent themes and trends in comparative law scholarship, with a particular eye towards the connections between comparative law and legal history. The author observes a significant movement towards encyclopaedisation, marked by a proliferation of handbooks and encyclopaedias that attempt to systematise knowledge, though these works often struggle with comprehensiveness and persistent Eurocentrism. While traditional treatises continue to show fealty to established functionalist models, there is an observable shift away from the historical dominance of private law towards holistic, post-doctrinal, and interdisciplinary approaches. A primary concern raised is the ‘turn to method’, where the discipline has become increasingly self-absorbed with methodological pluralism and theory, sometimes resulting in ‘method without comparison’. Furthermore, the survey highlights the vital emergence of decolonial and postcolonial scholarship originating from the Global South, facilitating South-South comparison and challenging the field's colonial and Eurocentric foundations. Finally, the author examines the uneasy relationship between comparative law and legal history, questioning whether the discipline can move beyond viewing legal systems as separate entities towards a more integrated world law approach.

Early conflict-of-laws rules: Vietnam’s Lê Code (1483) in East Asian and global contexts
Thào Anh Hoàng

This article examines one of the earliest codified conflict-of-laws rules in East Asia and its overlooked reception in Vietnam. While systematic codifications of conflict rules in Europe developed much later, the Tang Code of China (652 CE) had already incorporated a provision regulating disputes involving foreigners within its territory. This rule was subsequently received in the legal systems of several Sino-sphere countries, including Vietnam. Vietnam’s Lê Code, in force from the fifteenth to the eighteenth century, preserved this conflict rule even after its removal from later Chinese codes beginning in the thirteenth century. This renders the Lê Code the only known continuation of the Tang conflict-of-laws provision.

Long mistranslated as a criminal clause concerning ‘minority ethnic groups’, the relevant provision in the Lê Code is re-evaluated here as a conflict-of-laws rule applicable to both civil and criminal matters. This reinterpretation is situated within the context of East Asian legal culture with a functional equivalence approach. The study shows that Vietnamese law should not be viewed only as a marginal recipient of Chinese legal influence, but rather as a key site where an early conflict-of-laws rule was preserved, adapted, and given historical significance within the development of conflict-of-laws regulations across different jurisdictions. The paper also offers a comparative analysis with other legal traditions of the same period as Tang law, including those of early medieval Europe and the Islamic world.

Ius commune, Venetian governance, and Croatian Glagolitic culture: testaments from the countryside of Šibenik in the early modern period (1637–1713)
Henrik-Riko Held

In the article, I discuss the entanglement of ius commune and Croatian Glagolitic culture under the auspices of Venetian rule in the early modern period. I analyse 222 testaments written in the Croatian language and Glagolitic script between 1637 and 1713 by Glagolitic priests in the countryside of Šibenik, on the eastern Adriatic coast, then under Venetian rule. I address in particular the terminology employed, as well as the structure of the testaments. I compare them with models found elsewhere in Europe, as evidenced by relevant notarial formularies. Finally, I examine the issue of the validity of testaments composed by ostensibly unauthorised persons (parish priests).

The Polish Blackstone: an examination of nineteenth-century Polish scholars’ interpretations of Blackstone and his Commentaries
Lukasz Jan Korporowicz

The principal goal of this article is to address the reception of William Blackstone's legal thought and the awareness of his contributions within the context of nineteenth-century Polish legal scholarship. Despite the considerable differences between English and Polish legal traditions, the limited proficiency in the English language within Poland, and the relatively gradual evolution of Polish legal thought, Blackstone's works were acknowledged by academic circles in Poland in the nineteenth century. Over time, this awareness manifested in direct engagement with certain aspects of Blackstone's perspectives. Nonetheless, the temporal disparity between Blackstone's period of influence and the evolution of legal scholarship in partitioned Poland significantly limited the practical opportunities for the integration and application of Blackstonian jurisprudence.

Re-enacting the judicial philosophy of Oliver Wendell Holmes, Jr.: Saunders v Vautier and Claflin v Claflin compared
Ann Mumford

Oliver Wendell Holmes Jr. sat on the Supreme Judicial Court of Massachusetts in 1889, when, in the case of Claflin v Claflin, he joined the decision that a trust may not be modified if the intention of the testator would be undermined. Claflin rejected Lord Cottenham’s reasoning in Saunders v Vautier that, under certain circumstances, beneficiaries may compel the termination of the trust and transfer the property to them. Claflin v Claflin and Saunders v Vautier are perhaps the two most famous cases in Anglo-American Equity. Through a detailed examination of manuscripts, this article offers a comparative expansion of the US and English histories, and particularly considers the role played by Holmes. Re-enactment theory offers the possibility of creating, or reliving, the intellectual process that led to Claflin, thus revealing a significant moment in the history of US federalism.

--Dan Ernst.  Book Reviews after the jump.

Ancient Criminal Law: A Global Perspective

 [We have the following announcement.  DRE]

On June 24, 2026 (at 12pm Eastern), join us for an international workshop featuring contributors to a forthcoming Modern Criminal Law Review Special Issue on “Ancient Criminal Law: A Global Perspective,” guest edited by Clifford Ando (University of Chicago).

Recent years have witnessed several revolutions in the study of ancient law. These include new models for the study of ancient states, deriving in particular from comparative study; new interpretive emphasis on the limits of state infrastructural power; detailed study of the pluralist nature of legal authority in ancient empires in particular; and the extraordinary recovery of previously unknown documentary materials, especially in central Asian and East Asian contexts. This issue seeks to bring these new insights to bear on the study of criminal law in a global array of contexts:  the Ancient Near East, classical Athens, Qin and Han period China, the high Roman empire, and rabbinic Judaism.

Participants include: 

Clifford Ando, University of Chicago (moderator)
Beth Berkowitz, Columbia University
Ari Bryen, Vanderbilt University
Liang Cai, University of Notre Dame
Benjamin Gallant, Harvard University
Adriaan Lanni, Harvard University
Mark Letteney, University of Washington
Seth Richardson, University of Chicago
Andrew Wolpert, University of Florida

To join us for this free online event, please register here. Registration is encouraged, but not required; if you prefer to join the event directly, head over to the MCLR+ YouTube channel at the time of the event (please note the time zone). All attendees will have the opportunity to post questions and comments via YouTube live chat.

CFP: European Society for Comparative Legal History

[We have the following CFP.  DRE]

Comparative Legal History: Transition and Transfers 

Lund: Lund University, June 21-23, 2027.  Deadline: October 31, 2026.

The organisers and the Executive Council of the European Society for Comparative Legal History are pleased to call for papers and posters for the upcoming European Society for Comparative Legal History 9th Biennial Conference to be held from 21 to 23 June 2027 at Lund University, Sweden.

The conference series started in Valencia (2010), followed by Amsterdam (2012), Macerata (2014), Gdansk (2016), Paris (2018), Lisbon (2022), Augsburg (2023), andSzeged (2025). The 2027 conference is hosted by the Olin Foundation for Legal History and supported by the Faculty of Law at Lund University.

The theme of the conference is ”Transitions and Transfers.” We are living in a time of unpredictability and changes, and this gives reason to pay attention to periods of transition in history. How and why did changes occur, who were the proponents and opponents? Changes in legal history have often had elements of transfer. Sometimes, legal needs have been met through drawing inspiration from other legal systems. On other occasions, legal rules have been imposed on other systems.

The papers, panels, and posters offered should deal with either transitions or transfers, or both. They should engage in dialogue with aspects of law across time and/or space that are of interest for comparative legal historians.

To offer a paper, please submit an abstract of up to 400 words. The abstract should include the title of your proposed paper and your personal data (full name, email address, work affiliation). Please also send a short CV (no more than 400 words). Anyone at any stage in their research career can offer a paper.

Abstracts will be assessed against: (1) the aim to have a diverse conference; (2) the novelty of the work; and (3) a professionally grounded proposal including a description ofthe methodology and most important sources, and a concise description of the expected research results.

It is also possible to submit a proposal for a complete panel. Panels normally consist of three papers. A panel proposal should – in addition to the abstracts and CVs of those who wish to present a paper in that panel – include an abstract for the entire panel, as well as a CV of the panel organizer.

Further, it is possible to submit a proposal for a poster. To offer a proposal for a poster, please submit an abstract of up to 400 words. The abstract should include the title of your project and your personal data (full name, email address, work affiliation). Please also send a short CV (no more than 400 words). 

Anyone at any stage in their research career can propose a poster. Accepted participants will be asked to submit to the organisers a PDF file in size A0 with the poster design, and the posters will be printed in Lund.

One author may only propose to give one paper or present one poster at the conference in order to allow as many people as possible to present their work.

All submissions – for papers, panels, and posters – should be in English and be sent to ESCLH2027@jur.lu.se, no later than 31 October 2026.

The list of accepted papers, panels, and posters will be announced by December 2026.

A conference website will be launched with further details of the conference in the autumn of 2026. The conference website will also contain information on the attendance fee for those not members of the ESCLH, and transport to and from Lund. The conference website will allow registration for the conference, starting early in 2027. Finally, the conference will be preceded by a PhD-workshop on 21 June 2027. Further information about the workshop will also be published in the autumn of 2026.

Penna's "Byzantine Law" and Book Launch

Daphne Penna, University of Groningen and KU Leuven, has published Byzantine Law: The Law of the Eastern Roman Empire, in the "Elements in Rethinking Byzantium" series of the Cambridge University Press.  On May 28, she will speak about the book in the Law and Humanities Seminar Series of the Peking University School of Transnational Law.  Here is Cambridge's description of the book:

The purpose of this Element is to introduce the study of later Roman law (Byzantine law) to a wider academic audience. Currently a great deal of specialized knowledge is necessary to approach the field of Byzantine law. This Element works to break down the barriers to this fascinating subject by providing a brief, clear introduction to the topic. It makes a scholarly contribution by placing Byzantine law in a broader perspective and by reconsidering some of the aspects of the study of Byzantine law. The Element places Byzantine law outside of the box by comparing, for example, Byzantine law to the European legal tradition and highlighting the role that Byzantine law can have in unravelling the common legal past of Europe. It gives also information on the status of Byzantine legal studies and makes suggestions on how to study Byzantine law and why.

--Dan Ernst 

Stenlund on Sweden, Rule-of-Law Talk, and the US Right

On Tuesday, April 28, 15:00-16:30, Helsinki time, which is seven hours ahead of EDT, Karolina Stenlund, a lecturer at the Faculty of Law at the University of Helsinki, the holder of a doctoral degree in law, and a former visiting doctoral researcher at Harvard Law School, will present in the Helsinki Legal History Series seminar:

My presentation for HLHS will be on an article that examines the uneasy relationship between the rule of law and democratic backsliding through a legal-historical case study of Sweden. Challenging the conventional assumption that legality and the rule of law inherently safeguard democracy, the article traces how early rule-of-law discourse and rights-based litigation in Sweden emerged not from left-wing civil rights activism but from a right-libertarian legal movement inspired by U.S. public-interest law firms. Through an analysis of the landmark 2006 "Uppsala case" and the intellectual and strategic foundations behind it, the article shows how concepts such as equality and the rule of law were mobilized to expand judicial power and reshape the balance between courts and the political branches. By situating these developments within Sweden's unique political and constitutional history, the article highlights how legal strategies aimed at strengthening individual rights can simultaneously redistribute political power in ways that complicate dominant narratives of democratic resilience. The piece forms part of an ongoing research project and should be read as work in progress.

Online attendance (listen-only) here.

--Dan Ernst

Witte and Pin's "Legal Foundations of Religious Freedom"

John Witte, Jr., Emory University, and Andrea Pin, University of Padua, have published The Legal Foundations of Religious Freedom: Human Rights in the United States and Europe (Notre Dame Press):

In The Legal Foundations of Religious Freedom, authors John Witte Jr. and Andrea Pin explore the Christian and secular origins of rights in the Western legal tradition and the complex interplay between human rights and religious freedom norms in modern law, religion, and culture. They analyze historical documents and recent cases from the United States Supreme Court, the European Court of Human Rights, and the Court of Justice of the European Union to articulate the historical, theoretical, and legal tension of human rights and religious freedom on both sides of the Atlantic. The authors contrast the serious threats to new religious minorities and traditional religious accommodations with firm new protections of religious freedoms in both Europe and America.

Ultimately calling for robust protection of the fundamental rights and liberties of all people and faiths, Witte and Pin caution that religious freedom and other human rights claims can only do so much to bridge the widening cultural divides over law and religion in modern Western societies. It is our responsibility to embrace the fundamental goods of dignity, fraternity, and justice.

--Dan Ernst 

CLH News

[Via ESCLH Blog, we have the following announcement.  DRE]

The journal Comparative Legal History is pleased to announce that its website has been updated with the new composition of its Editorial Board.

Comparative Legal History is the scholarly journal of the European Society for Comparative Legal History, publishing innovative research in comparative, transnational, and global legal history. The journal welcomes contributions that examine and compare historical interactions between diverse forms of normativity, including legal, religious, customary, and social norms, as well as the agents, institutions, and jurisdictions through which they have operated.  Engaging with legal traditions from across the globe, the journal welcomes interdisciplinary approaches and publishes research articles, invited contributions, review essays, book reviews, and special issues.

The journal is committed to fast turn-around times for its evaluations and editing, and thanks to our publisher, Taylor & Francis, we will now be publishing contributions online as soon as they are ready for production, thus giving authors the ability to publish and disseminate their research without delay.

We would also like to note that the journal encourages authors to make use of visual material in their articles.

To discuss ideas for articles or special issues, please contact Articles Editors Paolo Astorri (paa@teol.ku.dk) and Emanuel van Dongen (E.G.D.vanDongen@uu.nl). To recommend a book (published in the last two years) for review, please contact Reviews Editors Gianmarco Palmieri (gianmarcopalmieri1@gmail.com) and Geetanjali Srikantan (gasrikantan@gmail.com). For any and all enquiries, please feel free to contact the Editor, David Schorr (dschorr@tau.ac.il).

Schonthal's "Courts, Constitutions and Karma"

Benjamin Schonthal, University of Otago, has published Courts, Constitutions and Karma
Buddhism, Law and the Practices of Legal Pluralism in Sri Lanka (Cambridge University Press).  It appears in Cambridge Studies in Law and Society, a series edited by Mark Fathi Massoud, University of California, Santa Cruz, and Jens Meierhenrich, London School of Economics and Political Science:

Although rarely acknowledged, Buddhist monastics are among the most active lawmakers and jurists in Asia, operating sophisticated networks of courts and constitutions while also navigating—and shaping—secular legal systems. This book provides the first in-depth study of Buddhist monastic law and its entanglements with state law in Sri Lanka from 1800 to the present. Rather than a top-down account of colliding legal orders, Schonthal draws on nearly a decade of archival, ethnographic and empirical research to document the ways that Buddhist monks, colonial officials and contemporary lawmakers reconcile the laws of the Buddha and the laws of the land using practices of legal pluralism. Comparative in outlook and accessible in style, this book not only offers a portrait of Buddhist monastic law in action, it also yields new insights into how societies manage multi-legality and why legal pluralism leads to conflict in some settings and to compromise in others.

--Dan Ernst 

Leshem on Ships as Legal Persons

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

(credit)

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

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

--Dan Ernst 

Siddali to Speak on 19th-Century US Constitutions in Comparative Perspective

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

Please join the State Constitutions Lab on Thursday February 26 @ 1:00 PM (Eastern US) for a Zoom seminar with Silvana R. Siddali, [St. Louis University, to discuss her paper "Fire Eaters, Revolutionaries, and the Rule of Law: Nineteenth Century State Constitutions in Comparative Perspective."

[Professor Siddali's] area of specialization includes constitutional, legal, and political history of the United States, in particular, the role of human rights in the development of democratic and judicial institutions.  Her current book, Transatlantic Constitution-making: Struggles over Democracy, the Rule of Law, and Human Rights, 1820-1870 is under contract at Johns Hopkins University Press and focuses on nineteenth-century transatlantic political communities that were connected through an exchange of ideas, trade, migrations, and technological innovations.

This meeting will be held on Zoom and a copy of the paper will be sent to all who RSVP here.

The Declaration of Independence in Global Context

This year's Harmsworth Conference of the Rothermere American Institute at the University of Oxford is The Meanings of Independence: The American Declaration in Global Context, 1776-1826.  It meets March, 19-20, 2026, and is convened by Eliga Gould, University of New Hampshire, and Patrick Griffin, Notre Dame University.

The Declaration of Independence, whose 250th anniversary Americans will observe in 2026, is the United States’ founding text, but it was also a transformational international text. Although Congress’s main purpose was to declare thirteen of Britain’s American colonies to be free and independent states, the Declaration’s words and example spoke to audiences well beyond the new union’s borders. Convened by Eliga Gould and Patrick Griffin, Harmsworth Professors, respectively, for 2025-26 and 2022-23, this conference will explore some of the implications of that wider message. In addition to the response to the Declaration in Britain, Ireland, and Europe, we anticipate presentations that focus on North America’s Indian country, Haiti and the Caribbean, Sierra Leone and West Africa, and China and British India. Participants will be encouraged to approach their topic from the broadest possible social and cultural contexts, paying particular attention to how categories of race and class, as well as gender and sexuality, mediated what independence meant. As the choice of 1826 as the conference’s endpoints, we hope to include presentations on the Spanish American Revolutions that extended the quest for independence throughout the Western Hemisphere. 1826 was also the year that two of the main architects of American independence, John Adams and Thomas Jefferson, died, both on July 4.

Annette Gordon-Reed, Harvard University, will deliver the keynote.

 --Dan Ernst 

Jeppeson on Attainder in Virginia and New South Wales

Jennie Jeppesen has published "Tried and Attainted": Comparisons of the Application and Reception of the Common Law of Attaint in Virginia and New South Wales in Law and History Review:

Common Law, the shining cornerstone of the English Justice system, becomes a muddy pool when trying to uncover the ways in which it arrived into the early Virginian, Maryland, and early Eastern Australian colonies. This is particularly true for the common law of felony attainder. Attaint—social and legal death without physical death—had lasting implications on the question of legal personhood for the convicts transported from England to these colonies between 1614 and 1840. This article revisits the work done by Bruce Kercher, adding new primary research from the American colonies to enrich and challenge Kercher’s arguments. Expanding the primary source material used in the analysis gives us a deeper and more nuanced understanding about how attainder was received and applied in the colonies—in particular, in the American colonies—and a deeper understanding of outside forces that influenced property rights beyond that of the question of attainder. This article provides nuance to how common law was understood and applied by those with and without formal legal training in early developing colonial societies.

--Dan Ernst

Ramdas et al. on the Diffusion of Constitutions

Tejas Ramdas, Cornell University; Patrick Chung-Chia Huang, National Taiwan University College of Law; Nuno Garoupa. George Mason University Antonin Scalia Law School; Martin T. Wells, Cornell Law School, Yun-chien Chang, Cornell Law School, and Tom Ginsburg, University of Chicago Law School, have posted The Genesis of Constitutions: A Natural Language Processing Approach:

The diffusion of constitutional ideas and models has been the subject of extensive scholarship. In this paper, we use natural language processing methods to examine the persistence of constitutional ideas and models, focusing on how 16 core and iconic constitutions influence 572 newer constitutions over a long period (1900-2020). Our findings indicate that "old" core constitutions (such as those of the U.S. of 1789, Spain of 1812, France of 1848, and to a lesser extent France of 1791) have maintained significant influence over those 121 years. Austria of 1920 and France of 1946 are the most influential among the 20th-century iconic constitutions. In line with previous research, these old "core" constitutions experienced a sustainable decline in their impact from the early 1900s to World War II. However, remarkably, their formal influence tended to stabilize after the 1950s. Notably, the influence of the U.S. Constitution of 1789 and the French Constitution of 1848 never fully disappeared. The persistent impact of these older constitutions indicates a certain institutional inertia that shapes legal orders to this day.

--Dan Ernst

Call for Comparative Legal History Board

[We note the following call from the ESCLH's blog.  DRE]

The European Society for Comparative Legal History (ESCLH) is seeking applications for positions on the editorial board of its flagship journal, Comparative Legal History, including at least an articles editor and a reviews editor.  These positions are not paid.

Evidence of scholarly ability, experience in editing or a willingness to learn quickly, willingness to contribute to journal projects beyond the narrow scope of the job title, and membership (or a commitment to become a member if appointed) of the ESCLH are requirements. Full training in the journal’s processes will be provided as needed.

You would contribute to the advancement of comparative legal history as part of a warm, supportive, and dedicated team.

The journal is an official academic forum of the ESCLH. It was first published in 2013 and aims to offer a space for the development of comparative legal history. The journal welcomes contributions that explore law in different times and jurisdictions from across the globe.

Applications, indicating to which position/s is being applied, with a brief cover letter and short CV (no more than 4 pages) should be sent to Luisa Brunori (Vice-President of the ESCLH), at luisa.brunori@ens.psl.eu, by 15 January 2026.

The ESCLH particularly welcomes applications from people underrepresented in academia generally, and in the ESCLH and the journal particularly.

Meyler and Setzer on the French Influence on Cardozo's Living Constitutionalism

Bernadette Meyler, Stanford Law School, and Elliot Setzer, Yale University, have posted Cardozo's Living Constitutionalism in Comparative Context, which appeared in the Yale Journal of Law and Humanities:

Benjamin N. Cardozo (NYPL)

Although he served as an Associate Justice on the United States Supreme Court from 1932-1938, the source of Benjamin Cardozo’s preeminence has generally been his contributions to common law jurisprudence and his theories of common law judging. This essay argues that several of Cardozo’s unpublished writings suggest he also developed a significant constitutional theory in dialogue with continental—and particularly French—legal thinkers. Despite not appearing prominently in Cardozo’s published constitutional opinions, this theory influenced Chief Justice Hughes’s majority opinion in the case of Home Building and Loan Association v. Blaisdell (1934), a case that not only stripped the Contract Clause of much of its adjudicatory power but also paved the way for the Supreme Court to undo the laissez-faire vision of the Lochner era.

Cardozo most clearly outlined his theory in an essay on “De Tocqueville and the Judicial Power,” written shortly before his nomination to the Supreme Court, and in a draft concurrence in the Blaisdell case—one that he abandoned after Chief Justice Hughes modified his own opinion to incorporate several of Cardozo’s paragraphs. “De Tocqueville and the Judicial Power” develops Cardozo’s views of judicial authority in America as refracted not only through Tocqueville’s account but also through that of contemporary French jurists, including the comparative law scholar Édouard Lambert. Reading his Blaisdell concurrence against that backdrop both highlights the transatlantic conversations about judicial review ongoing during the 1930s and the potential for a French influence on Cardozo’s understanding of rights.

--Dan Ernst 

CLH: Dialogues on Customary Law

 [We have the following announcement.  DRE]

Comparative Legal History: Dialogues on Customary Law.  5 November 2025 – 17:00-18:00hs (CET)

The journal Comparative Legal History is an official academic forum of the European Society for Comparative Legal History. Based in Europe, it welcomes contributions that explore law in different times and jurisdictions from across the globe. Submissions are currently welcome and are being assessed on a rolling basis. 

The journal will host a one-hour public session to discuss customary law in the context of comparative legal history. Editors (past and present) will present exploratory points, and all attendees will be invited to join in a general discussion. 

Customary laws were prevalent in Europe during the Middle Ages. In recent years there has been a resurgence in research projects concerning customary laws, and a number of questions need to be raised. To what extent are customary laws something that still needs to be studied? To what extent customary laws ought to be taught at universities to complement core modules such as family law, the laws of inheritance and property law to frame these topics in their historical context? To what extent is there merit in having journals and monograph series concentrate on comparative customary law? How should studies be undertaken? These, and other questions will be explored during this public session.

The event is free and open to the public, and it will take place via Teams. 

Registration is required by sending an email to clhdialogues@gmail.com.

Weekend Roundup

• 
  John W. Cairns, professor of Civil Law at the University of Edinburgh, will deliver this year’s Eason-Weinmann Lecture on International and Comparative Law at Tulane Law School on November 20, 2025, at 5 p.m. in the Wendell H. Gauthier Moot Court Room 110.  Professor Cairns’s lecture, "The Civil Code of the State of Louisiana: Context and Contents," will kick off a conference on the bicentennial of the Louisiana Civil Code.  

• Caleb Nelson, UVA Law, asks, Must Administrative Officers Serve at the President’s Pleasure?" and makes an originalist case for why the answer is no.
  

• A notice and recording of Richard Primus's discussion with Noah Feldman of Professor Primus's book, The Oldest Constitutional Question, at HLS on September 25 (Harvard Law Today). 

• UVA Law's notice of G. Edward White's Robert H. Jackson: A Life in Judgment (Oxford University Press). 

• Over at Nursing Clio: David Korostyshevsky on The Strange Case of Henrietta Wiley: A Habitual Drunkard’s Journey Through Guardianship and the Asylum (h/t: HNN).

• "Jamie Raskin (D-MD), former Federal Judge Michael Luttig, and Baltimore University Law Professor Kimberly Wehle discuss the history of the U.S. Constitution at an event hosted by George Washington's Mount Vernon" (C-SPAN).  

• My Georgetown Law colleague John Mikhail lectured on anti-slavery and the Constitution on September 17 as part of Ithaca College’s observance of Constitution Day (Ithacan).  DRE. 

• Last month, Nancy Cott, Harvard University, spoke on “Doctors, Lawyers, and Feminists on the Road to Roe v. Wade" at Vanderbilt Law (Vanderbilt)

• Kurt Lash discusses constitutional debates over slavery before the Civil War (NCC). 

• One of the Drinan Visiting Professors are at the Boston College Law School is Rebecca Horwitz-Willis, a recipient of the Kathryn T. Preyer Award from the American Society of Legal History (BC Law).

• In the series "Made by History" in Time Magazine: Samantha Barbas says that History Explains Why the U.S. Doesn’t Ban Hate Speech.  Bob Crawford on John Qunicy Adams and the "the Gag Rule." 

• 
  
  The Organization of American Historians is sponsoring two webinars on immigration in October.  The first, on denaturalization, will take place at 6pm ET on October 14.  Register here.  The second, on U.S. deportation policies from the Alien Friends Act of 1798 to today, will take place at 6pm ET on October 30.  Register here.  Both webinars are co-sponsored by the Immigration and Ethnic History Society.   

• The October 2025 issue of the newsletter of the Historical Society of the DC Circuit is now available.  

• We ought to have noticed sooner Time Immemorial, the podcast of the Osgoode Hall Society for Canadian Legal History. 

• ICYMI: (Before the government shutdown), visitors to the National Archives react to seeing the entire Constitution (WaPo).  Jillian Foley on America’s Privacy Policy (HNN).  Douglas M. Charles, Penn State, on history repeating itself at the FBI (The Conversation).

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

Keller on China, Legal Transplants, and Policy Irritants

Kevin Byrne Keller, a Visiting Fellow in East Asian Legal Studies at Harvard Law and PhD candidate in history at Yale, has published From Legal Transplants to Policy Irritants: Chinese Economic Expansion and Global Legal Change in the American Journal of Comparative Law:

Since the 1970s, comparative law scholars have studied “legal transplants”: legal institutions that emerged in one location and then were moved to (or forced upon) another. This research agenda offers little traction on one of today’s most pressing questions of global legal change. For several decades, Chinese leaders have encouraged Chinese enterprises to increase their international engagement. Those leaders insist that they have no desire to alter the legal systems of their economic partners, but China’s growing global economic presence does seem to affect legal systems elsewhere.

To make sense of this pattern, this Article draws on and extends Gunther Teubner’s concept of a “legal irritant.” It introduces the idea of a “policy irritant”: a policy that a country implements, inspired by policies elsewhere, that places pressure on and potentially reshapes the country’s legal regime. To demonstrate how the concept of a policy irritant improves our understanding of theoretical questions about legal change and concrete questions about current global conflicts, this Article offers a case study of the Madaraka Express, a China-funded railroad project in Kenya.

From a theoretical perspective, the Article makes two contributions to the literature on legal transplants. First, it reveals that policy emulation can catalyze legal change. Second, it observes that policy emulation can result in changes both to the recipient legal system and to the policy being emulated. At a more concrete level, the Article offers two insights into China’s engagement with the Global South. First, the introduction of China-inspired policies caused controversy in Kenya not because those policies were inherently insidious, but because they rubbed roughly against features of Kenya’s legal system that many Kenyans value highly. Second, Kenya’s legal system has shown strength in the face of pressures introduced by China-inspired policies, and has in some instances forced changes in those policies.

--Dan Ernst