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

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

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

Read on here.

Altschuler's "Before Disability"

Sari Altschuler, Northeastern University, has published Before Disability: A History of American Citizenship (University of Pennsylvania Press):

The history of disability rights is often told as a recent one, but it is not. In the wake of the American Revolution, many of the differences we now call disabilities could be accommodated into citizenship—and for some even exemplified its promises. By the antebellum period, however, disability was becoming a powerful, racialized tool of civic exclusion and, by the century’s end, a target for eugenic elimination. In Before Disability, Sari Altschuler tells the story of how this dramatic transformation occurred.

Before Disability is a literary, legal, and cultural history of the relationship between disability, race, and citizenship. It shows how disability helped to shape US citizenship and, in turn, how the formation of US citizenship shaped disability. There were two key drivers of the transformation from accommodation to exclusion and eugenics: the difficulty aligning the reality with the rhetoric of civic inclusion and the co-opting of mental and physical difference as evidence in debates about Black citizenship. The stigmatizing ways race came together with mental and physical difference to deny Americans rights were, however, not inevitable.

Before citizenship was federally defined in the late 1860s, Americans were still working out what it meant. They used the narrative forms available to them—from melodrama and the gothic to the slave narrative and the criminal confession—to do this work. While possibilities narrowed by the antebellum era, Americans continued to imagine, articulate, and enact broader definitions. As we seek to imagine the relationship between disability and citizenship more equitably and expansively for ourselves, we should begin by remembering that many disabled and nondisabled Americans before us did, too.

--Dan Ernst 

Disabilities and Women in Ancient Rome

The workshop Disabilities and Women in Ancient Rome: Legal, Social and Cultural Perspectives will be held at the University of Helsinki Main Building, Room U3039 (3rd floor). It will begin at 10.00 am (EEST) May 4 with the keynote. Remote participation is possible through this Zoom link.  Both in-person and remote participants should register.  For in-person participants, we would like to ask whether you are participating in the lunch (at the expense of participants) and the afternoon coffee.  Please register through this form.

10-11.15 Keynote

Prof. Christian Laes: Women and disabilities in Antiquity: between presentism and daily life 

11.30-13.00 session 1: Disabled Women in the Roman Narratives 

Sofia Vierula: The case of Harpaste: Lived experience of disability in Seneca’s letter to Lucilius 

Mathilde Chartrand: The Daily Life of a Furiosa: On the Gendered Consequences of Mental Illness

Fran Geldard: Enslavement and Disability in Eusebian Martyr Narrative

14.00-15.30 session 2: Women, Disability and Roman Law

Arnaud Paturet: Some Reflections on the Status of Deaf People by Roman Jurists 

Kaius Tuori: Infirmity and monstrosity: on the legal construction of female disability in law

Jana Mauri Marlborough: Against All Odds: The Legal Position of Wet Nurses in Roman Law 

16.00-17.30 session 3: Intersections of Gender and Disability in Late Antiquity 

Gaetana Balestra: Muta puella fuit: The Mute Woman between tutela mulierum and Justinian's Legislation.

Elena Pezzato Heck: Mental Illness as Grounds for Repudiation in Late Antiquity and the Justinian Era

Arttu Alaranta: Vulnerable Life-Cycle Moments and Disabilities in Women’s Asceticism during Late Antiquity

--Dan Ernst 

Berger-Howe Fellowship to Reiss

[We have the following announcement.  DRE]

The Raoul Berger-Mark DeWolf Howe Legal History Fellowship for 2026-2027 at Harvard Law School has been awarded to Jennifer Reiss.  A doctoral candidate in history at the University of Pennsylvania, she received her B.A. from Penn and her law degree from Harvard, as well as two master’s degrees in law and history from the University of Cambridge.  Before graduate school, she practiced law in New York and London.  During her fellowship year she will revise her dissertation, “Undone Bodies: Women and Disability in Early America,” for publication and work on a new project on disability and abolitionism in eighteenth- and early-nineteenth-century America. 

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. 

Notre Dame Graduate Legal History Colloquium

We have word that the Notre Dame Graduate Legal History Colloquium will reconvene on March 7, 2026, from 10 AM to 3 PM on the Notre Dame Law School campuses in South Bend, Indiana, and Chicago, Illinois. The organizers write that "All students and faculty, regardless of institutional affiliation, are welcome," that all "presenters and attendees will receive complimentary lunch and refreshments," and that virtual opportunities to participate will be available for those unable to attend in-person.  

Those wishing to attend should register here, a form that reproduces the schedule for March 7 at right.  More information about the Colloquium can be learned here or via email to Dennis Wieboldt at dwiebold@nd.edu. 

--Dan Ernst

JAH 112:3

There is much of interest to legal historians in the latest issue of the Journal of American History (112:3):

Presidential Address: Historians' Voices in Times of Peril

David W Blight

“Disabled by Law”: Ableism and Self Advocacy in Eighteenth-Century British America
Laurel Daen

Plenary Powers: Chinese Immigration, Sovereignty Challenges, and the Making of Federal Immigration Power in the U.S. West
Julian Lim

The Long War on Welfare: Taxpayer Activists and the Politics of Backlash in Depression-Era America
Brooke Depenbusch

--Dan Ernst.  H/t GR 

Law & Society John Hope Franklin Prize to Harris, Harawa

At the recent meeting of the Law and Society Association, the Association announced the winner of the John Hope Franklin Prize (recognizing "exceptional scholarship in the field of Race, Racism and the Law"). Legal historical scholarship made a strong showing. The winners, along with the citations, were as follows:

Jasmine E. Harris – University of Pennsylvania
The Political Economy of Conservatorship. UCLA Law Review, 71(5), 1364-1482

Jasmine E. Harris’s “The Political Economy of Conservatorship,” published in the UCLA Law Review, reinterprets conservatorship as a tool of racial and economic subordination. Harris weaves legal history, disability theory, and racial critique into an incisive analysis of how disability law has been used to extract labor and property from Black and Indigenous communities. By connecting conservatorship’s historical deployment to its contemporary operation, Harris exposes the system’s deep-seated structural harm. Her article exemplifies socio-legal scholarship at its finest and proposes an abolitionist framework with broad implications for race, disability, and legal reform.

Daniel S. Harawa – New York University
Coloring in the Fourth Amendment. Harvard Law Review, 137(6), 1533-1582

Daniel Harawa’s “Coloring in the Fourth Amendment,” published in the Harvard Law Review, delivers a powerful and incisive challenge to the colorblind assumptions embedded in Fourth Amendment jurisprudence. By exposing how race-neutral legal standards mask racial subordination in policing, Harawa articulates a doctrinal and normative argument for a race-conscious reasonable person standard. Grounded in constitutional theory and racial justice advocacy, this article exemplifies rigorous scholarship and has the potential to reshape legal understandings of policing, seizures, and race

An honorable mention went to legal historian Giuliana Perrone (University of California, Santa Barbara) for Rehearsals for Reparations, The Russell Sage Foundation Journal of the Social Sciences, 10(2), 132-150. The citation:

Giuliana Perrone’s “Rehearsals for Reparations,” published in the Russell Sage Foundation Journal of the Social Sciences, uncovers a neglected archive of postbellum litigation in which freed people sued to enforce testamentary bequests from former enslavers. Recasting these legal actions as early reparations claims, Perrone reveals the moral and legal logic through which formerly enslaved individuals asserted their rights to property, land, and justice. The article is an outstanding contribution to the history of race and the law and offers a new frame for understanding reparations in American legal history.

Congratulations to all!

-- Karen Tani

Weekend Roundup

• Penn Carey Law’s notice of Dean Sophia Lee's recent article on "the evolution of Fourth Amendment privacy from weak pre-Reconstruction protections through its development over the years, culminating in Boyd v. United States."
  

• A Q&A with Felicia Kornbluh and LHB Guest Blogger Jill Hasday on Professor Hasday’s new book We the Men in Ms. Magazine.  Her post on OUPblog is here.
  

• The League of Women Voters of Pullman and Whitman County will host the virtual event, “History of Disability Rights” on 7-8:30 p.m. March 31 over Zoom (Lewiston Tribune).
  

• James E Hurford reviews The Legal History of the Church of England: From the Reformation to the Present, by Norman Doe and Stephen Coleman (Law Society Gazette).

• Stephen B. Presser review Jonathan Gienapp's Against Constitutional Originalism for the Federalist Society.

• From In Custodia Legis: an announcement of a new collection release, "Pre-1901 Legal Documents of New Spain/Mexico." Also, a profile of "Bessie Margolin, Labor Lawyer."
  

• Zachary M. Schrag on the New Crisis in Urban History (AHA Perspectives).

• ICYMI: Black History, Birthright Citizenship & Civil Rights (New York Almanack).  Jim Crow Laws (Historian).  Confiscation in the American Revolution (New York Almanack). A pardon for Ruth Ellis?  (Legal Cheek).

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

CFP: Historical Perspectives on Lay Legal Education

[We have the following CFP.  DRE.]

Learning about the law: Historical perspectives on public legal education for laypersons and underprivileged groups.  20-21 May 2025, University of Helsinki

This conference focuses on public legal education in a historical perspective. It aims to discuss the various ways in which legal information has been disseminated to groups of laypersons or underprivileged people in order to enhance their legal literacy. Such groups can include e.g. women and children, workers, people with disabilities, immigrants and refugees.
 
In the wake of industrialisation and the growth of the working class, many countries implemented legislation regarding workers' protection in the late 19th and early 20th centuries. This in turn caused the need to educate workers on their rights. The early 20th century also witnessed the growth of women's rights regarding e.g. education, occupation, property and marriage - all of which women needed information on. Throughout history, there have been waves of immigration around the world for various reasons. Those leaving their homes and moving to another country have also needed knowledge on their rights and the laws they need to follow. Moreover, besides underprivileged groups, educating laypersons in general on legal matters has also been part of building liberal, democratic nation states in which citizens are aware of the legal system and know how to navigate it. This kind of public legal education can take various forms. Legal knowledge has been distributed e.g. through handbooks, magazine articles, popular lectures and courses.
 
The conference aims to bring together historical research on the topic from different countries or regions to form a comparative understanding on the reasons for such activities, the forms they take and the consequences these practices had for each group of people and even society as a whole.
 
Papers could discuss e.g.:

• the motives for distributing legal knowledge to laypersons and underprivileged groups
• the different actors involved (providers and recipients of public legal education)
• whether the activities are initiated from within the specific group or from the outside
• what kind of legal information was seen as relevant for each group
• the role of professional lawyers in these activities
• the role of various interest groups in promoting these activities (associations, political parties etc.)
• the role of the state in these activities
• the different media used to disseminate legal education (courses, lectures, handbooks, magazines, radio and tv programmes etc.)
• the role of publishers or media outlets
• public legal education as part of developing a civil society
• how has the increasing legal awareness impacted each group
• the topic from a broader comparative perspective
• a longue durée view on the phenomenon

Keynote presentations will be given by: Dr. Kate Bradley (University of Kent); Dr. Elsa Trolle Önnerfors (Lund University); and Prof. Felice Batlan (Chicago-Kent College of Law, Illinois Institute of Technology).
 
Deadline for paper proposals with abstracts (max. 400 words) and a short description of the presenter is 30 November 2024.  For further information, as well as sending paper proposals, please contact Marianne Vasara-Aaltonen (marianne.vasara-aaltonen@helsinki.fi), University Lecturer in Legal History at the University of Helsinki.

Weekend Roundup

• Virginia Law Weekly has published a report of “Originalism 101,” a conversation between Lawrence Solum and Charles Barzun on "the origins of originalism, its variations, its merits and flaws, and its impact on judicial decision-making."  
  

• The Harvard Crimson puts fifteen questions to former ASLH president Bruce Mann.

• Over at JOTWELL, Sara Mayeux (Vanderbilt Law) has posted an admiring review of Sean Vanatta's Plastic Capitalism: Banks, Credit Cards, and the End of Financial Control (2024).
  

• Deafness in the Divorce Court, a blog post from Northumbria University, is about the 1876 divorce case involving a "deaf and dumb" couple, the husband of which engaged in physical violence.
  

• Isabel Taylor, Head of Archival Core Functions at the University of Hamburg Archives, has a long post up on the blog of the UK Constitutional Law Association, entitled, Not So Arcane After All: Archives and the Battle for "Ancient Freedoms" in the Stuart Permanent State of Emergency.
  

• Harry F. Byrd's gift to America, Constitution Day, just keeps giving.  First up: Michael Waldman, President and CEO of the Brennan Center for Justice, will deliver The Supreme Court and American Democracy, the Constitution Day lecture in Room 101 of the Beverly Rogers Literature and Law Building at the University of Nevada, Las Vegas, on September 17 from 4:30 pm to 6 pm.
  

• On September 17, the Lower Manhattan Historical Association, cultureNOW, and the United States District Court for the District of New York  will host an event in the Ceremonial Courtroom at the Daniel Patrick Moynihan United States Courthouse from 5 p.m. to 7 p.m., with Kevin Arlyck, Georgetown Law; The Honorable Judge P. Kevin Castel, U.S. District Court for the Southern District of New York; Seth Kaller, Historical Documents & Legacy Collections; and James von Klemperer, FAIA, President Kohn Pedersen Fox Associates.  RSVP here. 

• The Supreme Court Historical Society's Constitution Day lecture is a virtual event: At 12:00 PM (EST) on September 17, 2024, via Zoom, Judge Jon O. Newman and Professor Marin K. Levy speak on their new book, Written and Unwritten: The Rules, Internal Procedures and Customs of the United States Courts of Appeals.  You may register here.  A recording will be posted to YouTube after the event.
  

• Securities law gets in on the act on at Case Western Law when Adam C. Pritchard and Robert B. Thompson discuss their book, A History of Securities Law in the Supreme Court, on September 17 from 4:30 to 5:30 p.m. in the School of Law’s Moot Courtroom (Room A59).
  
  
• Michael E. Woods, The Papers of Andrew Jackson at the University of Tennessee, and Reeve Huston, Duke University, will discuss “The Election of 1824 and the History of Contested Presidential Elections,” as a Constitution Day commemoration at the Virginia Military Institute on Thursday, September 19, at 8 p.m. in Marshall Hall’s Gillis Theater (News-Gazette).
  

• 
   On October 9, the Supreme Court Historical Society will hold a virtual lecture Visiting the Supreme Court Building: A Discussion with the Court’s Curator, Matthew Hofstedt, and Deputy Curator, Nikki Peronace.  Before the discussion, Clare Cushman will introduce viewers to the Society’s newest publication, An Illustrated Guide to the Supreme Court.
  

• The Organization of American Historians is circulating the amicus brief it joined in United States v.  Skrmetti.  In the brief, "well-recognized scholarly historical organizations and academic scholars and historians whose many decades of study and research focus on the history of gender, sexuality, and medicine . . .  aim to provide the Court with accurate historical perspective as it considers the question of whether Tennessee Senate Bill 1, prohibiting all medical treatments intended to allow 'a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex" or to treat 'purported discomfort or distress from a discordance between the minor’s sex and asserted identity.'” The amicus brief of William Eskridge, Jr., Steven Calabresi, Naomi Cahn, Alexander Volokh et al. is here; the "Yale philosopher’s" brief, here. 
  

• The Rise and Fall of Treason in English History, by Allen Boyer and Mark Nicholls, was the sbject of an interview in the summer 2024 issue of The Historian, Issue 162 (Summer 2024),  In addition, former BBC Wales newsman Phil Parry interviewed Boyer about the Welsh aspects of the English law of treason (History Boys).
  

• A notice of Alison LaCroix's Interbellum Constitution  in the Cook Country Record.
  

• Penn's Omnia magazine has published a nice write-up on Sarah Gronningsater's The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom (2024).
  

•  Michael Hayes, a Kansas City lawyer with a Ph,D. in philosophy, reviews Aziz Rana's Constitutional Bind on Public Discourse, the blog of the John Witherspoon Institute. 
  

• ICYMI: Queer Justice: 50 Years of Lambda Legal and LGBTQ+ Rights, a traveling exhibit debuted in Dallas at the Resource Center on September 6 (Dallas Observer).  The Robert H. Jackson Center has its first program director, Elizabeth Hosier (Post-Journal).  The Robert David Lion Gardiner Foundation recognizes the Honorable Peter Fox Cohalan for his contributions to the Historical Society of the New York Courts’ online County Legal History Project (TBR Newsmedia).
  

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

Tani on the History of the Tort of "Wrongful LIfe"

Last year, I had the privilege of participating in the Clifford Symposium at DePaul College of Law -- an annual convening of torts scholars. The symposium theme in 2023 was "new torts." The published versions of the symposium papers are now available. My contribution is titled "When a Wrong Creates a Life: Tort Responses to Children Born From Institutional Sexual Violence." Much of the article draws on history, so I'm noting it here. Here's the abstract:

Today, the paradigm case of “wrongful life” involves a claim on behalf of a child—typically, a disabled child—who would not exist but for an act of negligent reproductive healthcare. Framed in this way, the tort of “wrongful life” is controversial, and rightfully so. This Article, part of a symposium on “new torts,” reminds readers that one of the nation’s earliest reported “wrongful life” cases arose from a very different set of facts: Williams v. State, filed in 1963 in New York City, stemmed from the alleged rape and impregnation of a patient at a large, state-run psychiatric hospital; through a guardian, the resulting child sought monetary compensation from the state for the disadvantages that flowed from these circumstances. Importantly, the lower court that initially considered this claim found it within the bounds of what tort law could and should provide. But a different interpretation prevailed at the appellate level, and, for historically contingent reasons, Williams v. State largely disappeared from view. Instead, cases from the medical negligence context came to dominate judicial discussions—and rejections—of the seemingly “new tort” of “wrongful life.” This Article urges a reconsideration of Williams v. State and the sub-set of “wrongful life” cases that it represents—namely, cases involving (1) nonconsensual intercourse and impregnation in an institutional setting, resulting in a child, and (2) an institutional defendant that arguably violated a duty of care by allowing this sequence of events to occur. Such reconsideration is warranted for several reasons, including evidence that such incidents continue to occur in institutional settings (nursing homes, residential treatment facilities, prisons, etc.); post-Dobbs changes to state-level abortion laws, which will increase the number of pregnancies that lead to live births; and theoretical and doctrinal developments within tort law itself. 

The full article is available here. Other legal-historical contributions to this symposium include Molly Brady on "cottages as public nuisances" (previously noted here) and Kenneth S. Abraham & G. Edward White on "How an Old Tort Became New: The Case of Offensive Battery."

-- Karen Tani

Eyer and Tani on the Role of Disability Cases in the Supreme Court's Federalism Revolution

I'm excited to announce the publication of an article that I've been working on for some time, along with co-author Katie Eyer (Rutgers Law). It is titled "Disability and the Ongoing Federalism Revolution," and has just been published in the Yale Law Journal (Volume 133, Issue 3). The article is largely legal history, but it also includes observations and predictions about the current Supreme Court. Here's abstract:

The Supreme Court’s “new federalism” revolution remains one of the most important developments in recent U.S. legal history. The Court revitalized “states’ rights” doctrines under the Tenth and Eleventh Amendments, rendering states partially or wholly immune from many types of federal litigation. Simultaneously, the Court retrenched the authority of national legislators—and aggrandized its own authority—by limiting what Congress may do under its Commerce Clause, Spending Clause, and Fourteenth Amendment powers.

But one important facet of this “new federalism” revolution has gone unappreciated: the load-bearing role of earlier disability-related cases. In the 1970s and 1980s, this Feature shows, the Court used disability-related cases to revive the all-but-moribund Eleventh Amendment, even as it declined to embrace Eleventh Amendment arguments in cases involving school desegregation and sex discrimination. So, too, it was disability cases that established and entrenched federalism-grounded “clear statement” rules of statutory interpretation in the 1980s and early 1990s. Likewise, a disability case in the early 1990s previewed the Court’s later diminution of Congress’s authority under Section 5 of the Fourteenth Amendment.

In crucial ways, we show, these disability precedents enabled the “new federalism” revolution of the late 1990s and early 2000s. Cases such as Seminole Tribe of Florida v. Florida (1996) could not have been reasoned as they were without earlier disability precedents. The real-world consequences have been striking: the disability-related cases we discuss—and the better-known “new federalism” cases that built on them—have reduced the enforceability of federal civil rights guarantees, threatened wide swaths of social welfare legislation, and diminished Congress’s ability to respond to pressing problems.

Moving forward, disability-related federalism precedents will remain important. Doctrines and language from these cases offer some of the best tools that state and local defendants have for extending the more dangerous facets of the “new federalism”—as evidenced by recent litigation in the lower courts involving voting rights and LGBTQ discrimination, among other high-stakes issues. Moreover, at the Supreme Court, disability cases have continued to provide the site for new retrenchments in Congress’s spending power, alongside robust assertions of the Court’s own authority. Thus, while conventional wisdom treats the “new federalism” revolution as a historical artifact, this Feature reveals such an assessment to be both perilous and premature.

The full article is available here.

-- Karen Tani

The Docket 6:3-4

Issues 3-4 of Volume 6 of The Docket, the online companion of Law & History Review, published by the American Society for Legal History, is now online:

Ryan Reft, Library of Congress Sources on PGA Tour v. Martin

Professor Rabiat Akande discusses Entangled Domains: Empire, Law and Religion in Northern Nigeria

The Docket interviews Ziv Bohrer and Danny Orbach

Allen Boyer reviews Sir John Baker, Reports from the Notebooks of Edward Coke (2022-23)

Grace Mallon reviews Fritz, Monitoring American Federalism

Saru Arifin on Coolie Ordinance 1880 in Colonial Indonesia: The Refinement of Slavery for Indigenous Laborers

--Dan Ernst

Weekend Roundup

• 

  Dorothea Heron (ILN)
  

  "The Law Society of Northern Ireland has unveiled a portrait of Dorothea Heron, who made legal history as the first woman to qualify as a solicitor anywhere on the island of Ireland" (Irish Legal News).  
  

• The Supreme Court of Pennsylvania has opened a center on its history within the Pennsylvania Judicial Center, in the Capitol Complex (Penn Live).
  

• Noah Rosenblum, NYU Law, weighed in on the legal and historical issues in SEC v. Jarkesy, which was argued before the US Supreme Court this week, in "The Case That Could Destroy the Government" (The Atlantic).  "Many conservative judges don’t even bother to make substantial originalist arguments anymore," Professor Rosenblum writes.  "A lazy hand-waving suffices instead. They sprinkle in a few historical quotations, refuse to engage seriously with historians’ findings, and then declare that their right-wing policy preferences are dictated by the authority of history."  He and Ilan Wurman discussed the case and scholarship on the delegation of Congressional power and the Unitary Executive at the Founding in a National Constitution Center podcast moderated by Jeffrey Rosen.  

• The 43-minute documentary My Native Air: Charles Evans Hughes and the Adirondacks is now available on YouTube.  M/t: JQB. 
  

• From In Custodia Legis (the blog of the Law Librarians of Congress): "Supernatural Ordeals and the Law of the Jungle in the Works of Friedrich Majer";
  

• “On December 9, at 1 p.m. Paul Ellis Graham will lecture on “Henry Lawrence Burnett: Prosecuting the Lincoln Conspirators” in the lower level of Monroe Town Hall (1465 Orange Turnpike, Monroe, [New York]) (The Chronicle).
  

• New online from in the American Journal of Legal History: Justice Kennedy’s Jurisprudence of Dignity: From Sovereign Immunity to Gay Rights, by Eric J Scarffe.
  

• The Program Committee of the Organization of American Historicans, whose co-chairs include Kate Masur, Northwestern University, has issued a call for proposals for its in-person Conference on American History to be held in Chicago, April 3-6, 2025.

• Over at Active History: Harrison Dressler on Thinking Historically About Disability at the Ontario School for the Blind, 1903-1917.
  

•  Lawbook Exchange has posted its latest catalogue.

• ICYMI: Mark Graber on  Donald Trump and the Jefferson Davis Problem (NYT).
  

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

Weekend Roundup

• 
  Kathleen M. Brown’s Undoing Slavery: Bodies, Race and Rights in the Age of Abolition is the topic of the first episode of a new podcast series from the McNeil Center for Early American Studies at the University of Pennsylvania (Penn Today). 
  

• New on Talking Legal History, the podcast hosted by Siobhan M. M. Barco: Kate Masur, Northwestern University, discusses her Reid-prize-wining book, Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction. 

• Grace Mallon on federalism in the early American republic on the podcast of the University of Cambridge American History Seminar.

• Historians appear prominently in the Supreme Court's decision in Haaland v. Brackeen. We spotted the Brief for American Historical Association et al. as Amici Curiae cited on page 4 (h/t Gautham Rao, Maggie Blackhawk). Other historians are cited throughout the various opinions.

• Kaius Tuori on pacta sunt servanda and the role of tradition and history in the making and legitimizing legal rules.

• Via the Volokh Conspiracy: Will Baude (University of Chicago Law School), on "Codifers' Errors and 42 U.S.C. 1983."

• From NPR: "Slave cases are still cited as good law across the U.S. This team aims to change that." The article cites the work of Justin Simard (Michigan State University College of Law) and the "Citing Slavery" project that he leads. 

• There is still time to register for the Supreme Court Historical Society's commemoration of Juneteenth, a conversation with Judge Curtis Collier and the Society’s Executive Director, Jim Duff, on the lynching of Ed Johnson in 1906 and the resulting US Supreme Court decisions, United States v. Shipp.  It will take place on June 21, 2023 at Noon (ET)
  

• Steven Mintz analogizes between how Morton Horwitz and William Nelson transformed the legal history of the early nineteenth century United States by treating it as a response to "the market revolution—the rise of modern financial markets, wage labor and labor unions" and the need for a comparable legal history for recent "transformations in medicine, psychological treatment, disabilities and teaching and learning "(IHE). 
  

• From the Washington Post's "Made by History" section: Catherine S. Ramírez (University of California, Santa Cruz), "The 1943 riot that spotlights how drag show bans can fuel violence"; Scott W. Stern, "Did Montana violate its residents’ right to a clean environment?"; Say Burgin (Dickinson College) and Jeanne Theoharis (Brooklyn College of CUN), "Targeting bail funds and Stop Cop City activists is an old tactic"; and more.
  

• Lawbook Exchange has issued a new catalogue, Scholarly Law and Legal History.
  

• ICYMI: Gautham Rao thinks DJT is "thumbing his nose at our system of government and at the rule of law itself" (CNN).  H. W. Brands finds lessons from the prosecution of Aaron Burr (Messenger).  Omotoyosi Adisa on Nigeria's first lawyer, Christopher Alexander Sapara Williams (RNN).  History wars within the Texas State Historical Association (Brownwood News).  More on Comstock and his laws (Smithsonian).  How Lauren Davila, a Grad Student at the College of Charleston, Uncovered the Largest Known Slave Auction in the U.S. (ProPublica).
  

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

Legal Historians on "The Disability Frame"

Last February, we noted that several legal historians would be participating in a University of Pennsylvania Law Review symposium on "The Disability Frame." The published volume is now available online at the Law Review's website. Contributions of interest for readers of this blog include:

Nate Holdren (Drake University), Capitalism Disables: The Case of Workers' Compensation Laws. Abstract:

This article presents an account of disability as social and thus variable, connected to an account of capitalism as an inherently disabling type of society, such that different capitalist societies may disable in different ways, but all of them will disable. The article then takes the early history of workers’ compensation laws in the United States as a case study for the theoretical account of disability and capitalism, arguing that those laws created new incentives for discrimination against disabled people and thus re-organized the process of disabling. The article concludes with brief speculation about what these points imply for the prospects of achieving justice for disabled people through law.

Karen Tani (University of Pennsylvania), Disability Benefits as Poverty Law: Revisiting the "Disabled State". Abstract:

This essay, a contribution to "The Disability Frame" symposium, uses the history of a famous and influential disability benefits case to revisit political scientist Deborah Stone’s argument in THE DISABLED STATE (1984). Observing that “[m]edical certification” of disability had “become one of the major paths to public aid in the modern welfare state,” Stone wondered whether policymakers were asking the “concept of disability” to do too much and whether they were sufficiently alert to the concept’s tendency to expand over time.

Filed in 1983 and decided by the Supreme Court in 1990, Sullivan v. Zebley is an example of those expansionary pressures and their significant results. When the Social Security Administration stopped making Supplemental Security Income payments to 5-year-old Brian Zebley, despite his continuing and severe disabilities, lawyers at the legal aid organization Community Legal Services filed a class action. Operating from a foundational belief that the welfare state should be more robust, Zebley's lawyers contended that not only had the Social Security Administration erred in Zebley’s case, but also that the Agency’s overall eligibility determination process for child disability benefit claimants was too restrictive. The plaintiffs’ ultimate victory before the Supreme Court, and the surprising allies it amassed along the way, illustrate how readily many actors and institutions connected disability to deservingness and embraced disability as a distributional device in the late twentieth century. The post-Zebley backlash against child claimants, however, illustrates how closely the public continued to associate disability with deviance and fraud, especially when they observed take-up among Black citizens. Negative perceptions contributed to the program’s reform in 1996. Congress preserved the new path to eligibility that Zebley created, but also narrowed it. Decisional power, meanwhile, remained in the hands of medical gatekeepers.

This essay casts the Zebley story as one of triumph and tragedy. It was a triumph for poverty lawyers and their clients, who, under hostile circumstances, pressed for a more generous and life-affirming social welfare system. They saw that the boundaries of disability were malleable and they pushed on them. But it remains a tragedy that the best route to subsistence for so many children has further entangled disability with medicalization, suspicion, and surveillance. 

Also of interest: Britney Wilson (New York Law School), Making Me Ill: Environmental Racism and Justice as Disability. Although not a historian, Wilson drew on historical research to explore the intersection of disability, race, civil rights, and environmental justice: Abstract:

Civil rights legal scholars and practitioners have lamented the constraints of the largely intent-based legal framework required to challenge racial discrimination and injustice. As a result, they have sought alternative methods that seemingly require less overt proof of discrimination and are more equipped to address structural harm. One of these proposed solutions involves the use of the Americans with Disabilities Act (ADA)—due to its affirmative mandate to address discrimination by reasonable modification or accommodation—and the framing of issues of racial injustice in terms of disability or the deprivation of medical rights. Environmental justice, an area in which issues of both race and disability are salient and affect one another, is one such context in which advocates have tried to use the ADA to challenge broader structural harm. This Article analyzes cases in which practitioners have used the ADA to challenge issues of environmental injustice to examine the purported utility of the ADA, and disability and medicalization framing, more generally, in addressing structural racism and injustice. Specifically, I discuss the attempted use of the ADA to stop the construction of a petrochemical plant in “Cancer Alley,” Louisiana and to challenge mold on behalf of public housing residents in New York City.

The use of the ADA to challenge environmental injustice has clear legal and social justice narrative benefits that explain its appeal, including the required inclusion of people with disabilities in environmental justice campaigns that disproportionately impact them, but from which they are often left out—except for as examples of the negative consequences of harm. However, the promise of these legal theories has not been adequately tested to proffer the ADA as a true alternative to race-based civil rights laws, and there are many suggestions that it is not. Furthermore, the use of disability as both narrative harm and legal strategy in environmental justice campaigns raises important considerations for racism and ableism as interrelated institutional harms. Therefore, any attempt to expand the disability frame in this direction requires an understanding of racism that does not exclude or otherwise undervalue ableism and vice versa. Otherwise, we risk perpetuating the same problems.

The symposium event featured many other scholars. Rabia Belt's remarks may be of particular interest to readers of this blog. A YouTube recording of her panel is available here.

-- Karen Tani

Guido Calabresi and the “Economic Style,” Part 4 (Conclusion): A “Mixed System”

This post, by Karen Tani (University of Pennsylvania), is the fifth in a series of posts in which legal historians reflect on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber.

In three earlier posts in this series (here, here, and here), I suggested the fruitfulness of placing Guido Calabresi’s life alongside the rise of what sociologist Elizabeth Popp Berman has called “the economic style of reasoning”—an approach to governance that flourished in the later decades of the twentieth century and has now become embedded in institutions (e.g., the Congressional Budget Office) and in law (e.g., the consumer welfare standard in antitrust law, executive orders mandating cost-benefit analysis of proposed regulations). [All the Berman quotes in what follows are from Thinking Like an Economist: How Efficiency Replaced Equality in U.S. Public Policy (Princeton University Press, 2022) (“TLE”).] This rise to prominence merits our attention, Berman argues, because, over time, it narrowed the boundaries of what is politically possible, in domains ranging from environmental policy, to social welfare provision, to the governance of regulated industries. It did so by de-legitimizing or crowding out political claims that conflicted with those of the “economic style,” including “claims grounded in values of rights, universalism, equity, and limiting corporate power” (TLE 4). The result, in Berman's assessment, was to reinforce a “conservative turn” in American politics--even though “the most important advocates for the economic style in governance consistently came from the center-left” (TLE 13, 19). (For the fullest and most careful explanation of the argument, please read the book!)
 
In my previous posts, I argued that Calabresi’s scholarship has resonances with “the economic style,” but also sits outside of it. The insider/outsider character of Calabresi's work was a natural outgrowth of his unique path into Law & Economics. It also reflects his real-time reactions to the success of Law & Economics. As he helped that field expand and thrive, he also felt compelled to point out the limitations of economic theory and methodology. The question I ended my last post with was: Did Calabresi’s nuanced approach to Law & Economics help legitimize and spread the less nuanced “economic style” of Berman’s concern? Or (and?) did his work plant seeds of skepticism and resistance?
 
A historian cannot answer this question with any certainty (especially not in a short blog post!), but I will surface some evidence that seems relevant to me. In doing so, I must also acknowledge my affection for the subject of this post (I was one of Calabresi’s law clerks in 2007-08 and cherish that experience). That relationship colors my views, but also, I hope, gives me insight. In what follows, I’ll discuss (1) scholarship (which I’ll bundle with teaching), (2) judicial decisions, and (3) network.

"Guido Calabresi Lauded at His Final Torts Class"

I’ve already discussed some of Calabresi’s most important scholarly writings, so I won’t repeat myself here. I’ll simply add this brief assessment. His writings—which informed six decades(!) of teaching at Yale Law School—undoubtedly did give some people their first exposure to the use of economic thinking in law and governance. That matters. Among the consumers of Calabresi’s ideas were powerful people in politics, policymaking, legal practice, and academia, as well as people who would become powerful in those domains later in life.  Moreover, I suspect that Calabresi’s stature, reputation, and charisma gave weight to his ideas. In The Rise of the Conservative Legal Movement, Steve Teles also credits Calabresi with giving Law & Economics respectability, by rebutting the notion “that it was an entirely conservative, University of Chicago project” (Teles 99).

Weekend Roundup

• The Federal Judicial Center is seeking applications for Assistant Division Director for Judicial and Legal Education.
  

• Samantha Barbas, University at Buffalo School of Law, is interviewed about Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (University of California Press, 2023) (Current).
  

• We received a CFP for “Legal Infrastructures of Democracy. Legal Fields, Public Spheres, and the Twin Challenges of State and Market.”  The workshop will take place in Frankfurt on September 7-8.

• From the Washington Post's "Made by History" section: Carly Goodman, "We’ve erased Black immigrants from our story, obscuring a racist system"; John Gleb (University of Texas at Austin), "Anti-Asian bigotry is behind a Texas land bill"; and more.

• From Environment, Law, and History: David Schorr's series of posts on "Nature and the Common Law" continues, here and here.

• At Balkinization, Mary Dudziak (Emory Law) has posted part one of what looks like a series of posts on the "Forever War Chronicles": "How, exactly, did Truman decide not to seek a war declaration for the Korean War?"
  

• Also at Balkinization: posts have started going up for the symposium on Joanna Schwartz's new book Shielded: How the Police Became Untouchable (Viking, 2023).

• New online from the American Journal of Legal History and Oxford Academic: O’Connor v Donaldson (1975): Legal Challenges, Psychiatric Authority, and the Dangerousness Problem in Deinstitutionalization, by Laura Hirshbein.
  

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

Tani, "After 504: Training the Citizen-Enforcers of Disability Rights"

UPDATE: The final published version of this article is now available here.

I'm excited to share the almost-finalized version of an article I've been working on for some years, on government-funded disability rights trainings in the late 1970s and early 1980s. The title of the article is "After 504: Training the Citizen-Enforcers of Disability Rights."

This article was scheduled to be published last year in the Disability Studies Quarterly, but because of an editorial transition, there has been a delay. With permission from the journal, I've posted an un-finalized draft version (i.e., one that has not gone through the final stages of the editorial process). I especially wanted to put this out in the world because this year marks the 50th anniversary of statutory provision that generated these trainings: Section 504 of the Rehabilitation Act of 1973. 

Here's the abstract:

This draft article, forthcoming in the Disability Studies Quarterly, chronicles and analyzes an underexplored episode in the history of civil rights law and the disability rights movement: a series of government-funded citizen trainings that followed the enactment and administrative interpretation of Section 504 of the Rehabilitation Act of 1973. The first major U.S. civil rights law to address disability-based discrimination, Section 504 is now relatively well known, as are the dramatic protests that helped convince the federal government to finally release implementing regulations. But much less is known about how Section 504’s imagined beneficiaries learned about the content of this new law, or how they gave it meaning in their own lives and communities in the law’s crucial early years. The history of the “Section 504 trainings” provides rich and important insights. Drawing on archival research, recorded oral histories, and original interviews, this article reconstructs those trainings.

The article demonstrates that over the course of three years (1979-82), disability rights groups such as the Berkeley-based Center for Independent Living taught thousands of disabled trainees from around the country to think about Section 504 in a capacious, affirmative way and, further, to think of themselves as rights-bearings citizens, entitled to access and participation. The trainings, which were often disability-led, also taught trainees realistic techniques for identifying and addressing rights violations at the local level, laying the groundwork for the “private enforcement” on which Section 504 and related laws depend.

This article also analyzes the legacies of the Section 504 trainings. First, there was a legacy of political and legal engagement, at both the local and national levels. The individual and collective power of trainees helped initiate change and and prevent backsliding, while also infusing the disability rights movement with energy. Second, the trainings affected how at least some participants thought about themselves — as individuals, as members of communities, and in relation to government. This effect is hard to show, and was not part of every trainee’s experience, but appears too frequently in the sources to discount. The article concludes on a less sanguine note: although there is much to celebrate in this history, these trainings are implicated in a larger architecture of disability rights enforcement that too often claims the labor of disabled individuals only to perpetuate their exclusion and subordination. 

The full article is available here. For a summary of some of the article's main points, check out this Twitter thread.

-- Karen Tani