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

Niedrist on Criminal Justice in Habsburg Austria

Franziska Niedrist has posted Crime and Criminal Justice: Habsburg's Supreme Court, Tyrol and Vorarlberg (1814-1844):

This paper examines criminal justice practices in Austria during the Vormärz period on the basis of a series of criminal case files from the Supreme Judicial Authority (Oberste Justizstelle) of the Habsburg Monarchy. The interdisciplinary study investigates a wide range of offenses prosecuted in Tyrol and Vorarlberg. At the same time, it provides a nuanced picture of Austrian criminal justice, offering insights into the decision-making practices of the supreme court as well as its interaction with lower judicial authorities. By combining traditional approaches in legal history with innovative methods drawn from the history of crime (historische Kriminalitätsforschung) and discourse analysis, the study adopts a novel perspective. Moreover, it offers valuable insights into the history of Austrian criminal law, crime and society, while also illuminating everyday life in the early 19th century. 

--Dan Ernst

Anna Moscowitz Kross (1891-1979)

[Long-time readers of LHB know that each year I research and write a biographical essay for my legal history exam.  If you'd like to read prior ones, start here.  This year's follows.  DRE]

Anna Moscowitz Kross (1891-1979) was born in what is now Belarus but at the time was part of Russia, to a tailor and his wife, Maier and Esther Moscowitz.  To avoid escalating violence and discrimination, the family emigrated to the United States in 1893.  Her two sisters died during the Atlantic crossing.  The family settled in a crowded neighborhood in the Lower East Side of New York City.  Every member of her family worked to supplement Maier’s meager wages.  After school,” a journalist later reported, “Anna came home and sewed on dresses or made buttons.”  In high school she tutored other immigrants in English and worked nights in a suspender factory, although she never worked on Saturday, the Jewish sabbath.  She enrolled in New York City’s leading teachers’ college but quit when the instruction bored her.  Instead, in 1907, at the age of 16, she enrolled in the NYU Law School, where, after her first year, she won a scholarship.  When she entered her first class, Ashe chose a seat near the door, so she would not have to pass through rows of men, who stared at her as if she were some strange being.”  She continued to teach English to immigrants by day but studied law by night.  AI was in a strange land, a foreigner,” she explained.  “I had to show Americans that Russian Jews have stuff in them worth developing.”

When Moscowitz received the second of two law degrees in 1912, she was still so young that she had to wait another six months to be admitted to the bar.  After she was, no law firm she approached would hire her, even though she advertised in a legal newspaper that she would accept any salary.  For two years, she clerked in the law office of a friend for no pay and then struck out on her own.  She also promptly joined the precursor to the National Association of Women Lawyers.

“She had worked and mingled with men all her life,” reported a journalist who profiled her in 1917, “so it was not a strange thing for her to be in the law profession with them.”  “Let woman go about her business, dress sensibly, and appear rational,” she once said, “and she will receive nothing but courtesy.”  Yet at the start of her career, lawyers and judges often exasperated her.  “You went into court with your mind full of your case.  You knew you had prepared it as carefully as would a man,” she explained.  “But the manner of the judge immediately became one of relaxed toleration.  You could almost hear him say, ‘Oh, a woman.  Well, we must bear with her as best we can.’”  Some lawyers were ostentatiously polite, calling her “my fair adversary” and “our feminine opponent,” but then discovered to their sorrow that they had underestimated her.  “I love to match my wits against men,” she told the journalist.  “It is great fun, and I just love to beat them.  You ought to see how foolish men feel when I win a case.”  In 1915, after a week-long trial, she won a verdict on behalf of a carpenter wrongfully excluded from his trade union—the first such judgment in twenty years.  Deeply impressed, several trade unions promptly retained her services. 

Her desire for a career, a journalist wrote, “did not prevent her from marrying.”  On April 5, 1917, she wed Isidor Kross, a surgeon two years her senior, the day before he sailed to Europe to serve in World War I.  Thereafter, she usually used “Anna M. Kross” as her professional name.  Kross considered herself fortunate to have married a professional who accepted her desire for a career.  “My husband says he is perfectly happy and does not feel neglected,” she said.  Presumably, the couple practiced family limitation, because they had only three children (one of whom died at age five).  Presumably, too they hired childcare: judging from a description of Isidor as “a prosperous physician,” they could afford it.  But a journalist went out of his way to report that Anna was “an excellent mother and guide to two young children” and that Isidor considered her “a mighty swell cook.”

While still a law student, Kross campaigned for woman suffrage.  After New York State gave women the vote in November 1917, she became head of the women's division of the speakers’ bureau of Tammany Hall, the nickname of the Democratic Party in New York City.  Alfred Smith, who serve four terms as governor of New York, adopted her as a protégé.  In 1919, she was appointed New York City’s first female Assistant Corporation Counsel.  Her caseload was before the city's Domestic Relations Court, which handled such matters as child support and paternity.  She thought her sex allowed her to make a distinctive contribution to the legal process.  “It is much easier for a woman to understand the psychology of another woman in distress,” she explained.  She also continued to pay due regard to the politicians who got her her job.  In one widely reported “women’s debate” in 1921, for example, she spoke on behalf of Tammany Hall’s candidate for mayor. 

In April 1920, John Patrick O’Brien, a graduate of Holy Cross and the Georgetown Law School and a loyal Tammany Hall member, became her boss as Corporation Counsel of New York City.  Journalists sometimes made fun of his “O’Brienisms,” but one revealed him to be a well-intentioned Catholic layman fumbling his way toward feminism.  “I'm a champion of women,” he declared.  “I’m a home man and a well-trained husband and have always been for anything women wanted.” 

Anna Moscowitz Kross (DRE)

In 1922, O’Brien was elected a judge of New York’s probate court on the Tammany ticket.  In that capacity, he chose lawyers to administer the estates of the deceased and named guardians for minors.  The appointment, in 1924, of a special guardian for the thirty under-aged descendants of J. Pierpont Morgan with interests under that financial titan’s will, was unusually important.  O’Brien chose Kross, who had returned to private practice in 1923.  The caption of the picture reproduced at right marveled that an impoverished immigrant child was now “responsible for the administration of the Morgan millions.”  At that time, Kross was already serving as general counsel to a body that helped the 70,000 members of New York City’s building trades file and pursue claims with the state worker’s compensation commission.  

A new phase in Kross’s career commenced in January 1934.  In 1933, the corrupt mayor of New York had been forced from office, and Tammany nominated O’Brien to compete in a special election to serve out the ousted mayor’s term.  After O’Brien won, Kross raised funds for his campaign for a full term with a “tea” for O’Brien’s wife attended by the spouses of various Democratic luminaries.  In November 1933, O’Brien lost to a progressive candidate, Fiorello La Guardia (who happened to have been Kross’s law school classmate), but on his last day as mayor, O’Brien named Kross to fill the unexpired term of a judge of the Magistrate’s Court.  Such judges occupied the lowest rung in the city’s judiciary, but collectively they processed a half million cases, mostly minor criminal offenses, annually.  Kross considered Magistrate’s Court “the greatest social force for the correcting of individual maladjustments.”  She was promptly assigned to a branch known as the Women’s Court.  

(Continued after the jump.) 

Bray and Bamzai on the Origins of Criminal Contempt

Samuel L. Bray, University of Chicago Law School, and Aditya Bamzai, University of Virginia School of Law, have posted Prosecuting Contempt:

Under Supreme Court precedent and the Federal Rules of Criminal Procedure, federal courts may appoint prosecutors for criminal contempt. In this way, and many others, contempt prosecutions depart from the ordinary, adversarial model associated with criminal cases. Because such prosecutions and appointments arguably involve judges seizing the executive power of prosecuting crime, they are controversial, and their lawfulness has been disputed. This Article explores the lawfulness of judicial appointment of prosecutors for criminal contempt. It surveys the historical development of the idea that judges have an “inherent power” of contempt, as well as the historical origins of “criminal contempt” as a distinctive category. It concludes that the power to punish contempts, whether civil or criminal, was historically understood as a judicial power. That conclusion has implications for a variety of questions, including the lawfulness of attorneys appointed to prosecute contempt, whether governmental or non-governmental attorneys. Such attorneys do not exercise executive power, but rather assist the court in the exercise of its inherently judicial power of punishing contempt. The judicial appointment of prosecutors for criminal contempt, which now happens in federal court pursuant to Federal Rule of Criminal Procedure 42, is therefore lawful.

--Dan Ernst 

Ritger's "Houses of Correction"

Matthew Ritger, Dartmouth College, has published Houses of Correction: Carceral Institutions and Humanist Culture in Early Modern England (University of Pennsylvania Press):

More than 250 years before the rise of the modern penitentiary, houses of correction pioneered the use of forced labor and individualized sentences within institutions of confinement, promoting reform and the “hope of amendment” for every individual. Yet these earlier carceral institutions faced many of the problems that remain familiar today: corruption scandals, recidivism, and abuses of power.

In Houses of Correction, Matthew Ritger turns to the archives of England’s first house of correction, Bridewell, to show how humanist reformers provided ideas, justifications, and administration for what came to be called bridewells, workhouses, and “Literary worke-houses,” even as repeated scandals made it clear that these coercive institutions would forever be at odds with the ideals of humanist culture. Examining how the work of writers including More, Shakespeare, and Milton dealt with humanism’s entanglements with these new prisons, Houses of Correction constructs the first book-length literary history of some of early modern Europe’s most influential carceral institutions. 

--Dan Ernst 

Weekend Roundup

• The Asian Legal History Association has hosted its official launch in Hong Kong (The Standard).  The speech of the Secretary for Justice, Paul Lam, at the launch is here. Update: Donal Coffey was there, too.

• Ian Mansfield's review of the exhibition, Londoners on Trial: Crime, Courts and the Public 1244-1924, at the London Archives until February 25, 2027.

• From the Conversation: "The deaf blacksmith who married in 1576 – and the history of sign as a legal language."

• Over at JOTWELL: Blake Emerson (UCLA Law) has posted an admiring review of Nathaniel Donahue's "Officers at Common Law," which is forthcoming in the Yale Law Journal.   

• Ashley Everson on Pauli Murray, the Brown Decision, and the Struggle for Equal Rights (Black Perspectives).

• A notice of Akhil Reed Amar's Giannella lecture at Villanova on Born Equal: Remaking America’s Constitution, 1840–1920 (Villanovan). 

• Five Takeaways from conference on Richard Primus’s The Oldest Constitutional Question  (Michigan Law). 

• Now online: the website of the 14th Amendment Center for Law and Democracy at Howard Law School, led by Sherrilyn Ifill.

• ICYMI: Birthright Citizenship Edition.  Dahlia Lithwick spoke to Anna O. Law about Law's book, Migration and the Origins of American Citizenship (Amicus). Ilya Somin on Slavery and Birthright Citizenship (Lawfare).  Smita Ghosh on Lynch v. Clarke (1844), the birthright citizenship case you never heard of (Slate). Akhil and Vikram Amar and Jason Mazzone on why the text, history, and structure of a landmark 1952 statute doom Trump’s executive order (SCOTUSblog). 

• ICYMI: Orin S. Kerr on How AI Tools Can Help With Legal History Research (Volokh Conspiracy). "The Trump administration’s campaign to remove National Park Service exhibits that 'inappropriately disparage' historical figures" has bogged down (Politico).

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

Strange on Penal Expertise and the Death Penalty in the 1950s

Carolyn Strange, Australian National University, has published, open access, The Contestation of Penal Expertise in the Age of the Expert: Thorsten Sellin and the Death Penalty in the 1950s, in Law and History Review:

Readings of the history of penal expertise trace its rise to the late nineteenth century and its decline to the late twentieth century, with the crumbling of the welfare state. Despite stark differences along Whiggish and Foucauldian lines in evaluations of that history, a consensus has emerged that the penal-welfare complex peaked around mid-century, dependent on correctional experts. Most studies of that phenomenon have focused on the institutionalization and “treatment” of “problem” populations while neglecting the role of penal expertise in critiques of capital punishment. When Britain and Canada undertook major inquiries into the death penalty in the 1950s, they turned to the world’s foremost expert on the subject: sociologist Thorsten Sellin. Yet, these government-appointed studies devalued his academic capital in favor of the lived expertise of police. By examining the contestation of Sellin’s sources, methods, and conclusions, this paper puts the chronology of penal welfarism and its experts into question. Not simply a case of ill-informed opinion prevailing over criminological evidence, the dismissive treatment of this penal expert highlights the need to apply a more capacious understanding of contending forms of expertise at numerous points in penal history, rather than setting the devaluation of penal expertise in the recent past.

--Dan Ernst 

Ancient Criminal Law: A Global Perspective

Modern Criminal Law Review has announced Ancient Criminal Law: A Global Perspective, an international workshop to be held at 12 PM ET on June 24, 2026, featuring contributors a special issue, guest edited by Clifford Ando, University of Chicago.  Other participants include Beth Berkowitz, Columbia University; Ari Bryen, Vanderbilt University; Ernest Caldwell, St. Mary’s, London; Benjamin Gallant, Harvard University; Adriaan Lanni, Harvard University; Mark Letteney, University of Washington; Seth Richardson, University of Chicago; and Andrew Wolpert, University of Florida.  The organizers add:

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.

--Dan Ernst

Sunday Roundup

• NYU Law's notice of Ashraf Ahmed, Lev Menand, and Noah Rosenblum's article, "The Making of Presidential Administration,” upon its naming as winner of the annual Award for Scholarship in Administrative Law from the American Bar Association Section of Administrative Law and Regulatory Practice. The notice also includes a Q&A with Rosenblum. 

• Historical research figured prominently in the decision of Judge Chad F. Kenney, Eastern District of Pennsylvania, turning aside a challenge to the qui tam provisions from the False Claims Act on unitary executive grounds (JDSupra). 

• A notice of UC Berkeley professor David Henkin's legal-history-laden course on love, sex and marriage. 

• In March, SWOP NSW will host walking tours of Sydney’s historic "red light district."  “With 8 speakers each evening, the tour will cover both the personal anecdotes of those involved in sex work and the legislation that has shaped their lives. Speakers will share their stories on various topics, including current, historical, and future laws that aim to protect sex workers, as well as the advocates who have been instrumental in achieving these legal advancements." 

• Vice President Mike Pence and former Deputy Assistant to the President Greg Jacob are teaching the course, The Character of the American Constitution, at George Mason’s Schar School of Policy and Government.  The first class “walked students through the origins of the Declaration of Independence, exploring what the Declaration meant and where the writers got the ideas.”  (GMU).

--Dan Ernst 

Weekend Roundup

• Via H-Net: a University of Chicago job posting for an "Instructional Professor in Law, Letters, and Society."  

• Daniel Kuehn discusses a paper W. E. B. Du Bois wrote when he was a Harvard graduate student that, Kuehn argues, anticipated important insights in marginalist wage theory (AEA).

• The National Constitution Center in Philadelphia has opened a new gallery, titled “America’s Founding.” Per local reporting, it "provides attendees with an interactive experience on the early conflicts leading up to the creation of the U.S. Constitution, including early protests, the American Revolution and the adoption of the Bill of Rights." 

• The National Constitution Center has announced the appointment of Jon Meacham as its Semiquincentennial Scholar, "a one-year appointment designed to anchor the Center’s intellectual and civic programming celebrating the nation’s 250th anniversary" (NCC).

• In related news, the ARC Justice Clinic at Penn Carey Law, representing the Avenging the Ancestors Coalition and The Black Journey, has filed an amicus brief in City of Philadelphia v. Burgum, et al. As the Clinic's website explains, "[t]he case concerns the removal of educational exhibits about slavery from the President’s House Site near Independence Hall, where President George Washington enslaved nine people in the late eighteenth century." Read the brief here. 

• From In Custodia Legis: an invitation to "watch a recording of a Kluge Center Event 'Testing for Witches in 16th Century Germany.'"  

• Rory Cox on Hittite Laws of War, summarizing a chapter in the fourth volume of Laws of Yesterday’s Wars (Brill), edited by Samuel White.   

• Alexandra Natapoff, Harvard Law School, has launched Rule of Law 101, a free, ten-part video series, which "features world-class legal experts from top law schools around the nation explaining and analyzing important decisions by the Supreme Court" (Harvard Law Today).  

• Jud Campbell, Jonathan Gienapp, and Orin Kerr discuss originalism before Stanford Law students in a recording appearing in the Institute for Justice's Short Circuit Podcast. 

•  On April 14, 2026 at 10:00am (EDT), the Modern Criminal Law Review will hold a book forum live on YouTube on  David Garland’s Law and Order Leviathan: America’s Extraordinary Regime of Policing and Punishment (Princeton 2025).  In addition to Professor Garland, the panelists include Amna Akbar, University of Minnesota, Law; Patricia Faraldo Cabana and José Ángel Brandariz García, University of A Coruña, Law; Katja Franko, University of Oslo, Criminology, Rocío Lorca, University of Chile, Law; and Sara Wakefield, Rutgers University, Criminal Justice.  Register here.

• ICYMI: Six Black Legal Trailblazers (Solove Law).  Trailblazing Black Ohio Lawyers (CNO).  The descendants of Plessy and of Ferguson at Tulane Law.   

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

Sacharoff on the Testimony of Criminal Defendants

Laurent Sacharoff, University of Denver Sturm College of Law, has posted The Accused Speaks, which is forthcoming in the University of Chicago Law Review:

In the founding era, criminal defendants were disqualified from testifying under oath at their own trials. But they were permitted to make an unsworn statement to the jury presenting their factual account. Throughout the 18th century in both England and its North American colonies, criminal defendants regularly told the jury their side of the story, unsworn and uncrossed. 

By the latter 18th century, this practice had become a common law right. It allowed defendants to present facts, address prosecution facts, cross-examine witnesses, and make legal arguments. More importantly, defendants who made an unsworn factual statement did not have to endure cross-examination. Nor, therefore, could they be impeached with prior bad acts, convictions, or arrests, as could other witnesses. 

With the advent of the Revolution in North America, the new states began to expressly protect this common law right to be heard in their constitutions. As this Article shows for the first time, Benjamin Franklin created the right in 1776 in his markup of the Pennsylvania Declaration of Rights: the accused "hath a right to be heard by himself." Numerous early states quickly followed. 

This Article is the first to trace the origins and ambit of "the right to be heard," from its common law origins to its creation as a constitutional right. It examines founding era historical sources in a new light, including thousands of trial transcripts from London and the colonies, letters, caselaw, and state constitutional drafting history. 

This early history forms the core of this Article. Nevertheless, it also sketches the subsequent and contradictory career of the right to be heard. On the one hand, it atrophied when defendants became competent to testify in the latter 19th century; on the other, even today the right remains on the books in 37 state constitutions. This Article therefore surveys how contemporary courts have wrestled with this vestigial constitutional right and briefly concludes that defendants should retain some version of it alongside the right to testify. 

--Dan Ernst 

Weekend Roundup

• Nathan Dorn, the Curator of Rare Books at the Law Library of Congress, on  Hippolytus de Marsiliis: The First Criminal Law Professor and His Books (In Custodia Legis).  

• Congratulations to legal historian Jennifer L. Mnookin upon her appointment as president of Columbia University! (Columbia News).

•  History, Tradition, and the Constitution (Claude's, that is) (Dorf on Law).  

•  "U.S. Territorial Expansion: The Constitutional Roles of Congress and the President," a Congressional Research Service Report.   

• Righting the Wrongful Conviction and Execution of Daniel Sampson in Halifax in 1935, an event at Dalhousie's Schulich Law School on February 5, 2026, at 07:00 PM.  The event will be recorded and posted to YouTube. 

• The Virginia Tourism Corporation has launched a new Virginia Civil Rights podcast (WRIC). 

• Lawbook Exchange's January 2026 catalogue of Scholarly Law & Legal History is here. 

• A conversation with Jill Lepore on We the People: A History of the U.S. Constitution (W.W. Norton, 2025) (BC Law).

• ICYMI: Tal Fortgang on whether Traditionalism can be Originalist (SCOTUSblog).  Molly Brady, HLS, on debates from 19th-century state conventions that reveal why some constitutions allow takings for “private use" (State Court Report). Madiba K. Dennie on how originalist law professors get birthright citizenship wrong (Balls & Strikes).  An Ohio Supreme Court landmark: Rogers v. Toni Home Permanent Hair Co. (1958) (CNO). 

• Update: UVA Law's notice of G. Edward White's selection as Editor of the Journal of Supreme Court History. 

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