Kelley's "Crimes Against Feeling"

Mark B. Kelley, an assistant professor of English at Florida International University, has published Crimes Against Feeling: Piracy, Sympathy, and Ocean Politics in Antebellum American Legal Culture (University of Massachusetts Press, 2026): 

Pirates have long occupied a central yet unstable place in American law and national identity. In the decades leading up to and including the U.S. Civil War, the charge of piracy was leveled against an unusually wide range of figures: foreign heads of state, imperial filibusters, transoceanic enslavers, enslaved mutineers, radical abolitionists, and others who challenged established forms of authority. Early American literature reflects this instability, portraying pirates who vary dramatically in politics, race, gender, and allegiance. As Mark B. Kelley shows, these characters are united less by ideology than by their challenge to landed social norms and fixed national belonging. The pirate, in both law and literature, emerges as an individual defined by multiplicity rather than political coherence. 

Crimes Against Feeling examines how Americans made sense of this ambiguous figure by turning to emotion. Drawing on legal materials including treaties, trial transcripts, congressional debates, and U.S. Supreme Court decisions, as well as popular sentimental fiction (often written by women), Kelley argues that piracy was codified as an offense against moral feeling rather than being a singular political position. Legal thinkers and writers such as John Quincy Adams, Abraham Lincoln, Jefferson Davis, Catharine Maria Sedgwick, Harriet Beecher Stowe, and Maria S. Cummins relied on shared affective frameworks—sympathy, sentiment, and domestic vulnerability—to render piracy legible and punishable. American pirate law, Kelley demonstrates, was shaped by the same emotional logics that structured the era’s popular fiction. 

By tracing piracy across debates over domestic sovereignty, global enslavement and abolition, imperial expansion, postbellum reparations, and international copyright, Crimes Against Feeling reveals the pirate as a key figure for understanding gender, home, family, and nation in early America. Reading law and literature together, the book shows how emotional judgment—not political consensus—became a foundational tool for managing oceanic violence and transnational disorder in the nineteenth-century United States. 

Professor Kelley will discuss the book at Marquette University on Tuesday, October 20. 

--Dan Ernst 

Sullivan and Tsoukalas on Watergate-Era DOJ Reform

Barry Sullivan and Arete Tsoukalas, Loyola University Chicago School of Law, have posted Watergate, the Roberts Court, and the Independence of the Department of Justice, which is forthcoming in the Journal of Criminal Law & Criminology.  It pairs well with this story in today's New York Times and with Devlin Barrett's The Department of Revenge: How Trump Took Control of American Justice (Simon & Schuster, 2026), which we're reading.

Main Justice (without the present banner) (LC)

After Watergate, the reputation of the Department of Justice was in tatters. Among the reforms that were considered, the most extreme may have been Senator Sam Ervin's proposal to transform the Department into an independent agency, beyond the direct control of the President. The legislation failed, but the legislative history is instructive. Among other things, there was a strong consensus that the totality of the Department's prosecutorial responsibilities could not constitutionally be transferred to an independent agency; but there was also a strong consensus that the Attorney General should not be the President's intimate or political operative, that the Department of Justice should have some degree of independence from presidential control, and that the President should not have any role in deciding which particular individuals or entities should be investigated or prosecuted. Under Attorney General Levi and his immediate successors, what Senator Ervin hoped to achieve through legislation was largely accomplished through administrative regulation and convention, and that settlement was mostly honored by succeeding administrations.  

The Supreme Court has now adopted the expansive view of presidential power reflected in Justice Scalia's lone dissent in Morrison v. Olson (1988). According to Trump v. United States (2024), the President has "exclusive authority over the investigative and prosecutorial functions of the Justice Department," even when the investigations are "shams" or undertaken for a clearly improper purpose. The Court's recent jurisprudence has converted a once overwhelmingly rejected minority position into a shield for direct presidential control of prosecutorial and administrative power, a shield that presidents may use to investigate and prosecute their political adversaries in ways the Watergate-era reformers thought they had foreclosed. At the same time, Congress has largely shunned its own oversight role. This paper revisits Watergate and its now-forgotten lessons about unbridled executive power in light of the Senator Ervin's proposed legislation and current constitutional developments. 

--Dan Ernst 

Yovel on the Dreyfus Affair in Law and Literature

Jonathan Yovel, University of Haifa Faculty of Law, has The Dreyfus Affair: A Law and Literature Account of a Law and Literature Affair, which appears in the Yale Journal of Law & the Humanities:

Alfred Dreyfus (NYPL)

 How does law become public? What happens to it when it does?

A note fished from a wastebasket, forged evidence, a secret court-martial, public humiliation and a republic stressed to its limits: in 1894–95 France convicted and degraded Captain Alfred Dreyfus for treason he did not commit. Within years the Dreyfus Affair had engulfed France, reshaping politics and giving rise to a new public sphere. It was fought in courts and offices as much as in newspapers, pamphlets, periodicals, open letters, and even real-time feature film. 

This article reads L'Affaire as a "law and literature event," a real-time contest over meaning and performance in which novelists and essayists pleaded, lawyers turned authors, and legal performances spilled into the streets and back into a series of courts. Treating law and literature as a phenomenon, not only a method, unsettles the divide between "law in" and "law as" literature.

Through discourse analysis drawing on Bakhtin, Perelman, and Barthes, it examines Labori's carnivalesque pleading, Zola's address casting the jurors as protagonists, Lazare's forensic pamphlets, Proust's studied distance, Méliès's 1899 docudrama, and the anti-Dreyfusard Barrès' emphatic report from Dreyfus' Rennes trial, whose rhetoric of names, race, and a fictive "everyone" is a rhetorical masterpiece expressing the later "friend-enemy" foundation of Schmittian political theory. It traces how material, technological, and legal conditions shaped the construction of a mass public sphere and the ways law and legal discourse interacted within it, constructing audienceship and modes of expression and participation. 

"L'Affaire" means different things to different people. It is a story of shame and of the nascent political culture that would ravage Europe, but also of courage, struggle and redemption. The paper follows L'Affaire past Dreyfus's 1906 rehabilitation into a darker, second-generation sequel: the son of his accuser, du Paty de Clam, became Vichy's Commissioner-General for Jewish Affairs, while Dreyfus's granddaughter, a Resistance member, perished in Auschwitz. Vichy and Dreyfus's 2025 posthumous promotion each offer a chapter in an ongoing legal story, or stories: the article argues that "L'Affaire" has become a plurality of stories told to and by fractured audiences to this very day.

--Dan Ernst

Maynooth's Research Centre for Legal History Launch

We have word of the launch of the newly established Research Centre for Legal History at the Maynooth University School of Law and Criminology at the National University of Ireland, 49 Merrion Square East, Dublin, on Wednesday, September 16, 10 AM - 4 PM.

10am  Registration

10:10 Introductory remarks by the Chief Justice of Ireland, Donal O’Donnell

10:30-11:50

David Doyle, Maynooth University, ‘Revolting that police officers and Irishmen have to be employed in detecting such crimes': Sexual Offences against Young Boys, 1923-35’

Lynsey Black, Maynooth University, ‘Constructing Evil – The Trial of Mamie Cadden’

12:00-13:20

Sarah Hamill, Trinity College Dublin, ‘Rent Control in the 1970s and the origins of Blake v Attorney General’

Niamh Howlin, University College Dublin, ‘Legal History as a Tool for Righting Historic Wrongs?’

12:30-14:15 Lunch

14:15-15:45

Norma Dawson, Queen’s University Belfast, ‘Lord Talbot de Malahide (1805-1883) and the first treasure trove bill in the common law world’

Heikki Pihlajamäki, University of Helsinki, ‘Writing national legal histories: why and how?’

15:45-16:00 Concluding remarks

Weekend Roundup

• A notice of Arnaud Fossier's research, while on a fellowship at Berkeley's Robbins Collection Research Center, on the "evolution of 'merit' in medieval canon law, from Gratian’s Decretum (circa 1140) to the Liber Sextus (1296)” (Berkeley Law). 

•  Sarah Wharton, Harvard Law Library, discusses here experiences this summer attending “Researching Medieval Manuscripts: From Cataloging to Cultural History” at Rare Book School at Oxford University (Amicus Libris).  

• "A discussion between Carolina Law Professor Michael Gerhardt and University of Virginia law professor Saikrishna Prakash on the powers the Constitution grants the president and what they mean today," Monday, September 14, 5:30–7 p.m, UNC Law.

• The legal historian Alan Rogers, emeritus professor of history, Boston College, is dead.   

• Andrew Wender Cohen discusses his book “Gangster of New York on the BBC HistoryExtra podcast. 

• A press release on the research of Andrew Torrance, University of Kansas Law, on the legal history of the kiss. 

• Daniel Immerwahr reviews Nikolas Bowie and Daphna Renan's Supremacy: How Rule by the Court Replaced Government by the People (New Yorker).  

• "Step back into Maine’s early legal history on Thursday, September 24, 2026, from 6:00 PM to 8:00 PM, for a special, free dress rehearsal performance of True Crime: 1815 – The Trial of Dr. Moses Adams. The main event will be held Friday, September 25, 2026 at the Ellsworth Public Library" (Bar Harbor Story).    

• 

  Bronx County Court House, 1933 (NYPL)

  The Historical Society of the New York Courts, the New York City Criminal Court, Bronx County, and the Bronx County Supreme Court, Criminal Term will hold the hybrid program America 250: The Bronx Perspective on Thursday, September 24, 2026, 1:15 - 2:15 PM.  It will trace “the history of Bronx County through legal landmarks from 1776 to today, addressing how the County has changed from an agrarian community to a diverse and bustling borough."

• "The Irish Legal History Society is to take part in the Dublin Festival of History hosting a panel discussion on, ‘courts, crime and hidden lives in Dublin’ on 29 September" (ILN). 

• Lawbook Exchange's September 2026 list on Scholarly Law and Legal History.   

• ICYMI: Richard Re on the sloughing off of originalism within the Marble Palace (SCOTUSblog).  Gautham Rao takes issue with Chief Justice Roberts's biographical sketch of William Howard Taft (Philadelphia Inquirer).  Jodi Kantor's article on Supreme Court justices' papers (NYT). Marcia Coyle on the Constitutional Fight to Preserve [Presidential] History (NCC).

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

Thank You to Guest Blogger Mitra Sharafi!

We are so grateful to Professor Mitra Sharafi (University of Wisconsin, Madison) for coming back to the blog this past month and posting a wonderful series of reflections. Here is a round-up of her contributions, all of which involved the process of writing Fear of the False: Forensic Science and the Law of Crime in Colonial South Asia (Cornell University Press):

•  10 Things I learned while writing my (second) book

•  10 Sources I discovered while writing my (second) book

• Teaching for Research (in which Sharafi highly recommends "designing a course to get yourself in shape for your next book project")

• Using Detective Fiction as a Source 

If you can't get enough of these posts, we know at least one place where you'll be able to find Prof. Sharafi this fall: in Banff, at the annual meeting of the American Society for Legal History. As ASLH President, she will preside over what looks to be a fantastic conference. (Register here.)   

Next up at the blog: guest blogger Gautham Rao.

-- Karen Tani

Using Detective Fiction as a Source

 A question hovered over my head as I worked on Fear of the False: Forensic Science and the Law of Crime in Colonial South Asia: how should I use detective fiction as a source? There was a rich and vibrant world of detective stories in colonial India—in Bengali, Urdu, Hindi, and English, for instance. But unlike my other primary sources, these were fiction... In this 4^th and final guest post for August, I’d like to share some of the ways I got past my initial (disciplinary?) resistance to using fiction as a source. I’m picking up the baton here from Rohit De in his 2020 guest blogposts. 

More after the jump.

Stern on Henry Fielding

Simon Stern, University of Toronto Faculty of Law, has posted Henry Fielding on Crime and Punishment:

Henry Fielding (NYPL)

In his own right as an author on crime, punishment, and questions of social reform and poor relief, and as a pioneering magistrate who organized the Bow Street Runners ("the first English detectives," as John Beattie has called them), Fielding is an important figure in legal history. This chapter discusses Fielding's career as a barrister and then turns to his practice as a magistrate, considering his methods of evidence-gathering and verification, particularly through his approach to cross-examination. The chapter examines the implications of these materials for Fielding's handling of crime and its detection. The discussion then turns to Fielding's doctrinal writings, including the surviving manuscript evidence concerning his ambitious but eventually abandoned treatise on criminal law, An Institute of the Pleas of the Crown, and his Treatise on the Office of Constable. These writings offer a valuable perspective not only on the subjects he addresses there but also on his understanding of a treatise's purpose. 

--Dan Ernst 

Croucher on an 1881 Australian Murder Trial

John Croucher, Macquarie University, has posted The Murder at Agnes Banks: Unravelling Truth, Lies, and 19th Century Justice:

The setting for a murder that took place in the early days of the New South Wales penal colony in Australia was the regional town of Agnes Banks. Beginning with an outline of the transported convicts William Williams from England in 1798 and Julia Leahy from Ireland, the paper follows the life of their daughter, Mary Ann, who married the unrelated Robert Williams in 1840, who had the distinction of having all four grandparents as convicts. Some forty years later, in 1881, the now mentally challenged Robert was charged with murdering a neighbour, William Freeman, and was committed to an insane asylum where he remained for the rest of his life. The research reflected in this paper shows that there were numerous flaws in the prosecution's case, which was treated as open and shut. Robert had pleaded not guilty, and there was every chance he was correct. This paper examines the lead-up to the trial and the questions that should have been asked to avoid a possible miscarriage of justice. 

 --Dan Ernst

Teaching for Research

When I started working on my second book, Fear of the False: Forensic Science and the Law of Crime in Colonial South Asia, I created a course to help my research. Specifically, I designed an undergraduate Legal Studies/History course called “History of Forensic Science” (HFS). I’d like to use this 3^rd guest post for August to reflect on how and why this was such a valuable experience.

More after the jump.

Cohen's "Gangster of New York"

Andrew Wender Cohen, Syracuse University, has published Gangster of New York: A Violent Life in Nineteenth Century America (Cambridge University Press, 2026).

 This is the story of Louis Bieral, a nineteenth-century gangster, politician, sportsman, and Civil War hero. Kidnapped from his birthplace in revolutionary South America, he doused fires in Jacksonian New York, battled Sumatran pirates with the US Navy, and panned for California gold. As a crime boss, he raced horses, boxed champions, and ran brothels. Yet Bieral's adventurous life was also steeped in the brutality of his time. He befriended rowdies like 'Butcher' Bill Poole, returned fugitives like Anthony Burns to slavery, and assaulted abolitionists such as Richard Henry Dana. As a Union officer, Bieral won fame in battle. He was a Gilded-age bodyguard for 'Boss' Tweed, William Seward, and Jim Fisk, becoming a suspect in that tycoon's murder. From the docks of Valparaíso to the dining room of Delmonico's to the cells of Auburn Prison, Bieral's remarkable journey illustrates the violence that bound nineteenth-century America together.

Professor Cohen is interviewed about the book here. 

--Dan Ernst

Revkin and Gramlick on Fiscal Policing in Civil War DC

Mara Revkin, Duke University School of Law, and Gage Gramlick, a JD candidate at Duke, have posted The Civil War Origins of Fiscal Policing: Evidence from the District of Columbia:

The rise of “fiscal policing” in the United States—the use of fines, fees, and forfeitures to extract revenue from civilian populations—is widely described in previous scholarship as a relatively recent development with roots in post-1970s municipal austerity policies. A smaller literature argues that the revenue-extracting function of American policing can be traced earlier to slave patrols before the Civil War and Reconstruction-era Black Codes in the South. But this Article is the first to show that fiscal policing in the North has roots a century deeper than the austerity account recognizes. We demonstrate this through a case study of the nation’s capital, drawing on an original dataset compiled from the annual reports of the Metropolitan Police of the District of Columbia from 1862 to 1877 to show that revenue extraction was not a subsequent corruption of the Metropolitan Police’s original crime-control purpose but a core feature of its institutional design from the outset. We supplement the quantitative data with contemporary newspaper accounts, congressional and city-council debates, and correspondence between the governing Board of the Metropolitan Police and the military and civilian authorities that shared jurisdiction over the city. Congress established the Metropolitan Police by statute in August 1861, less than four months after the Civil War began, in direct response to the population surge, jurisdictional uncertainty, and disorder that the war had already produced in the capital.

Our key finding is that the Metropolitan Police generated surplus revenue from its first full year of operation, and this fiscal logic not only continued but intensified after the war. Fine revenue nearly doubled from $32,532 in 1862 to $61,944 in 1865—the year the Board first declared the force a net revenue-producing institution, boasting to Congress that there was “probably no other community in our country whose police system produces a net revenue to its finances.” Revenue receded with wartime conditions but remained above the 1862 baseline in 1877, and fine cases rose from 31.9 percent of all arrests in 1862 to a peak of 45.5 percent in 1867, two years after the war ended. The force grew with its revenue: in 1866, Congress authorized a 33 percent increase in its size from 150 to 200 patrolmen. We explain this pattern through two mechanisms. The first is wartime state-building: extending Charles Tilly’s account of how war forges extractive institutions, we show that the Civil War simultaneously created the governance and security crisis that necessitated a new police force and—by exhausting congressional appropriations on military spending—ensured that the force was designed to generate the revenue its own survival required. The second is bureaucratic autonomy: like other nascent administrative agencies, the Metropolitan Police Board had an existential incentive to demonstrate its value to skeptical principals, and it quickly recognized that surplus revenue from fines, forfeitures, and licensing fees was the performance metric most legible and persuasive to Congress and the city councils that controlled its budget—more so than improvements in public safety, which were harder to achieve and measure. The enforcement burden also fell unevenly—across national origin, race, gender, and civil-military status—in ways that shifted during and after the war. Soldiers accounted for more than a quarter of arrests in 1862 but generated no revenue—they were turned over to military authorities rather than fined—and their share declined steadily as the Board came to see such arrests as labor-intensive, fiscally worthless, and a source of friction.

Among civilians, Irish- and German-born immigrants were overrepresented during the war years. We find no clear racial pattern in per-capita arrest rates during the war, but disparities emerge after its end: between 1870 and 1877, Black residents were arrested at 1.4 to 1.6 times the non-Black per-capita rate. Women’s share of arrests rose from 14.2 percent in 1862 to a wartime peak of 22.7 percent in 1865, driven by policing of sex work. These findings relocate the origins of American fiscal policing from the late twentieth century to the 1860s, reveal a Northern and federal pathway that is distinct from Southern institutions previously studied, and provide historical context for contemporary debates over the constitutional limits of fines. More broadly, the Article models what can be gained by studying the United States as a post-conflict society, bringing to American legal history the theories and methods that political scientists have long used to study civil wars and state-building in other countries. 

--Dan Ernst 

Smith and Chang on Stravinsky's "Star-Spangled Banner" and the Law

Michael L. Smith, University of Oklahoma College of Law, and Yoo Jung Chang, a cellist, have posted Stravinsky's National Anthem:

Igor Stravinsky (LC)

In January 1944, famed composer Igor Stravinsky was scheduled to conduct the Boston Symphony Orchestra in performing his controversial arrangement of “The Star-Spangled Banner.” Before the performance took place, the police arrived in Stravinsky’s dressing room and informed him that his arrangement violated a Massachusetts law against altering the national anthem. Faced with the prospect of a criminal violation, and with the police already removing the offending arrangement from the music stands, Stravinsky opted to conduct the traditional version of the anthem.

This Article takes a deep dive into Stravinsky’s distinctive anthem arrangement, surveying its development, performance, and reception. Along the way, we dig into Massachusetts’s anthem restriction—a 1917 law that remains on the books to this day. In doing so, we address the parallels between the law’s wartime development and its wartime enforcement against Stravinsky. We argue that Stravinsky’s run-in with the police was unwarranted, both because Stravinsky’s arrangement did not violate the statute, and because the statute itself ran afoul of the First Amendment. Our historical investigation and analysis shed light on modern issues, including the phenomenon of patriotic outrage, the role of moral panic in the development and enforcement of the law, and the dangers of leaving unconstitutional zombie laws on the books.

--Dan Ernst 

Weekend Roundup

• 

  William Howard Taft (LC)

  Andrea Scoseria Katz on "Taft at the Beach: What the Supreme Court Misses About a Key Unitary Executive Precedent" (Can We Still Govern?) 

• Michael Dreeben looks back at Humphrey's Executor (Just Security). 

• Martha Jones's illustrated story in the New York Times Magazine on Elizabeth Freeman, who sued for her own freedom, is here. 

• That Modern Criminal Law Review workshop, "Ancient Criminal Law: A Global Perspective," may be viewed here and just heard here.  

• A notice of the "Slavery and the Judiciary Collection" of the Law Library of Congress, which "provides digital access to more than one hundred books and manuscripts documenting issues related to slavery and the courts from 1740 to 1860." Also from the hardworking law librarians of Congress: "Code and Policy in Action: Shared Legislative Targets Between the Yurok and Other Sovereign Entities," and Nathan Dorn, Rare Books Curator, continues his series of posts on Anglo-American natural law theorists with "A Textbook for the Laws of Nature’s God: Thomas Rutherforth’s Institutes."

• On July 16, 2026 at 2:00 PM ET, the Foreign and Comparative Law Webinar Series of the Law Librart of Congress will host the webinar Colonialisation, i, and an Unwritten Constitution: Understanding Aotearoa/New Zealand’s Legal System, presented by visiting scholar, librarian, and American Association of Law Libraries Schaffer Grant recipient, Theresa Buller, who is the subject librarian for law and criminal justice at the University of Canterbury in Christchurch.

• A notice of "Myths and Misunderstandings in Modern Irish History," by Patrick Geoghegan, the 2026 Hardiman lecture at the Supreme Court (Law Society Gazette). 

• A Q&A with Hadar Aviram's Behind Ancient Bars: Narratives of Incarceration in the Hebrew Bible (University of California Press) (UC SF Law). 

• Michael Dorf asks What Weight, If Any, Should Be Given Racist Laws In A History-and-Tradition Test? (Dorf on Law.)

• Nineteenth-Century NY Law and Birthright Citizenship: New York v. Miln (1837) (New York Almanack).  

• A notice of Stacey Patton's Strung Up: How White America Learned to Lynch Black Children (Beacon Press, 2026) (New York Almanack).

• "Reflecting on America’s 250th anniversary: Revolution, the Constitution, and the founders" in the Princeton University Press's list (PUP).  And, while we're at it, Princeton University and the Revolution.  

• Lawbook Exchange's June 2026 list in Scholarly Law and Legal History.   

• State Constitution Roundup: What made Pennsylvania's first ever constitution so radical that it only lasted 14 years?  (WHYY).  1776 NC Constitution exhibit [is] part of ‘Capitol 250’ July 4 fest (Coastal Review).  Bayard v. Singleton: Judicial review’s NC origins (Carolina Journal).  The Hawaii Constitution (State Court Report). 

• ICYMI: HIAS's illustrated history of US immigration (HIAS).  Eugene V. Debs, Constitutional Voice (NCC).  An appreciation of Raphael Lemkin, "the author of the concept of genocide" (UJE).  Benjamin Perry and the fight against secession (Greenville Journal). 

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

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.

Probert's "Double Trouble" and "Double Lives"

Rebecca Probert, University of Exeter, has published two companion volumes with Hart/Bloomsbury.  The first is Double Trouble: Bigamy and the Law in England and Wales, 1604-2024:

Between 1604 and 2024, around 30,000 individuals were prosecuted for bigamy in England and Wales. A few were able to establish a defence to the charge, but most were convicted. How they were punished varied hugely across the centuries – from execution, branding, whipping, transportation, and imprisonment through to fines and community service.

Double Trouble details the legal framework that underpinned such prosecutions. As a companion volume to Double Lives: Stories of Bigamy in England and Wales, 1604–2024, it sets the offence in the context of the changing laws on marriage and divorce, and examines the consequences of bigamy for those involved, including the remedies that were available to the often-deceived second spouse.

Drawing on a wide array of sources from the 17th century to the present day, including formal law reports, legal treatises, newspapers, censuses, parish registers, divorce petitions and Parliamentary debates, this book shows how bigamy should be taken seriously as an offence that all too often involved deception, abandonment and heartbreak.

The second is Double Lives: Stories of Bigamy in England and Wales, 1604-2024:

A woman remarries after hearing that her husband has drowned, only for him to turn up alive and well. Is she now a criminal? A deserted husband, unable to afford a divorce, finds happiness in a new union. How many did the same? A conman advertises for a wife and then disappears with her life savings; he has already done the same to many other women. How was he brought to justice?

These are just a few of the hundreds of bigamous remarriages put under the microscope in Double Lives. As a companion volume to Double Trouble: Bigamy and the Law in England and Wales, 1604–2024, this book goes behind the law reports to reconstruct the stories of those involved. Drawing on archival sources, pamphlets, newspapers, census data, parish registers, divorce petitions and family histories, it shows the different forms that bigamy might take – accidental, consensual, deceptive or exploitative – and how bigamists' stories in turn helped to shape the law.

Double Lives shows how bigamy should not be dismissed as a comical or victimless crime. Every case had its own complex mix of desire and deception, and, all too often, heartbreak for someone.

--Dan Ernst 

De Bianco on Harry Anslinger and Timothy Leary

Mitchell A. Del Bianco, a recent graduate of the University of Virginia's J.D. and M.A. program in legal history, has posted A Bureaucrat Versus the Most Dangerous Man in America, which is forthcoming in the Virginia Journal of Criminal Law.  

Harry J. Anslinger (1930) (LC)

This Article recounts how the policy ntrepreneurship of Harry J. Anslinger made federal drug enforcement policy and how his shadow loomed large over one of the twentieth century’s most flamboyant and notorious defendants: Dr. Timothy Leary, the countercultural provocateur branded by President Richard Nixon as “the most dangerous man in America.” Even after Leary’s Supreme Court victory struck down provisions of the Marihuana Tax Act, Anslinger’s legacy ensured that Leary, like many others, remained ensnared in a system built for the punishment of drug offenses. 

Through the entwined stories of Anslinger and Leary, this Article reveals how individual bureaucrats can shape law and policy, harness administrative power, and outlast their own institutions. Far from being inevitable, America’s war on drugs emerged from the ambitions and idiosyncrasies of a bureaucrat who turned a small agency into a juggernaut.

--Dan Ernst 

Ablavsky on State Criminal Jurisdiction in Indian Country

Gregory Ablavsky, Stanford Law School, has posted State Criminal Jurisdiction in Indian Country: A History, which is forthcoming in the Virginia Law Review:

In Oklahoma v. Castro-Huerta (2022), the Supreme Court dismantled the long-standing black-letter principle that states lack criminal jurisdiction in Indian country absent congressional authorization by embracing a revisionist historical account emphasizing inherent state sovereignty. The consequences have been predictable: intense uncertainty and ongoing litigation. Oklahoma’s highest courts, for instance, have repeatedly endorsed inherent state jurisdiction over Native people within Indian country, employing Castro-Huerta to distinguish considerable contrary federal law and precedent.

The challenge, especially given the current history-minded judiciary, is that the claim that states have never asserted inherent criminal jurisdiction over Indian country is too simplistic and easily disproven, making it tempting to toss out the old rules. But the revisionist claim, advanced by some scholars and embraced by Justice Thomas, that states enjoyed expansive criminal jurisdiction, is also wrong. This Article attempts to offer a more rigorous legal history, moving beyond the handful of Supreme Court decisions to survey every identifiable state and federal case on inherent state criminal jurisdiction in Indian country. It depicts four distinct periods: an initial headlong assault on federal authority (1787–1834) ; an era of "great confusion" in which states pressed on the many uncertainties of federal Indian law (1835–1886) ; the jurisdictional chaos of the allotment era (1880s–1930s); and a period of relative statutory stability (1948–2022) that Castro-Huerta has now abruptly terminated. What this history shows above all is contestation—a cat-and-mouse game in which states seized on ambiguities to claim authority, only to be periodically rebuffed by the federal courts. But the mere existence of past conflict does not support broader state jurisdiction in Indian country. Rather, every conventional method of legal and constitutional interpretation undercuts the argument that such jurisdiction was ever meaningfully positive law. There are also strong normative reasons for skepticism, since state claims of authority were rarely motivated by public safety but were instead tools to facilitate Native dispossession and erode tribal self-governance. By recounting these complexities, the Article challenges the current legal instability that threatens the foundations of modern tribal sovereignty.

--Dan Ernst 

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.

Del Bianco on Prohibition and the Fourth Amendment

Mitchell A. Del Bianco, a recent graduate of the University of Virginia's J.D. and M.A. program in legal history has posted How Prohibition Rewrote the Fourth Amendment, which is forthcoming in the Washington University Jurisprudence Review.  Mr. Del Bianco's advisors in the JD-MA program were Thomas Frampton and Sarah Milov.  He received the Roger and Madeleine Traynor Prize for the paper; the prize is awarded to the best written work by a graduating student at the University of Virginia School of Law.

During Prohibition, legion defendants-armed with a liberal construction of the Fourth Amendment and the newly minted exclusionary rule-stormed the federal courts with challenges to the introduction of evidence obtained by the searches and seizures of federal officers. This was a period where, by all accounts, Prohibition was vastly altering American policing in lasting ways. Yet little study has been given to how federal courts facilitated that alteration. 

This Article surveys and examines decisions, briefings, and contemporary legal commentary and uncovers that much of the judiciary interpreted the Fourth Amendment during Prohibition as having a doctrinal association with the Eighteenth. Federal courts practically reconstrued the meanings of "reasonable," "persons, houses, papers, and effects," and "searches and seizures" to adjust to the realities wrought by the new constitutional mandate of the Eighteenth Amendment to prohibit "intoxicating liquors." At the same time, decisions frequently reflected a desire to enforce national prohibition within the particular statutory bounds of the National Prohibition Act. The result was not only a policing landscape that differed greatly from preceding American history but also a Fourth Amendment landscape that exalted the home while offering second-class protections for searches and seizures occurring outside its walls--a jurisprudential legacy that lives on in the present day. 

--Dan Ernst