Kent on the Interwar Development of American Economic Sanctions

Andrew Kent, Fordham University School of Law, has posted The Pre-History of Modern Economic Sanctions, which is forthcoming in Constitutional Commentary:

This review essay examines the historical emergence of modern economic sanctions through the lens of Professor Nicholas Mulder’s outstanding 2022 book, The Economic Weapon.  It then supplements Mulder’s account with a fuller treatment of developments in the United States between World War I and the start of World War II.  The emergence of modern sanctions depended on transformations in international and domestic law, international diplomacy, state administrative capacity, and moral and legal understandings of coercion against civilian populations.  Mulder shows that these changes took shape principally during and after World War I, and focuses his monograph on Britain, France, and the League of Nations, with some attention to the United States.  This essay supplements Mulder’s transnational history with a more detailed account of U.S. law and institutions in the first four decades of the twentieth century.  In the United States, developments during World War I and the interwar period—including the Trading with the Enemy Act, export-control measures, debates about Congress’s neutrality statutes and the merits of using American economic coercion against fascist and expansionist powers, and a growing acceptance of broad executive discretion in foreign affairs—worked together to help create a rudimentary but recognizably modern sanctions regime by the time the United States entered World War II.  The essay highlights the U.S. constitutional questions raised by these developments, including questions about the nondelegation principle, the scope of presidential power and Congress’s foreign and interstate commerce powers, and protections for individual constitutional rights. 

--Dan Ernst 

Dean's "Racial Capitalism and International Tax Law"

Steven A. Dean, Boston University School of Law, has posted Racial Capitalism and International Tax Law: The Story of Global Jim Crow (Oxford University Press):

Global tax policy has long determined which states can access the resources necessary to flourish. Today, even the wealthiest states struggle to tax rich individuals and multinationals. Anti-Black racism has enriched affluent states at the expense of marginalized ones and undermined the taxing power of all nations.

In a compelling narrative interwoven with personal storytelling, Racial Capitalism and International Tax Law: The Story of Global Jim Crow connects Dr. Martin Luther King Jr.'s metaphor of the "bad check"-representing unfulfilled promises of freedom and equality to Black Americans-to contemporary anti-Black global tax policies. The book uncovers lost connections, such as those between Edwin Seligman, an architect of our global tax system, and the Dunning School, which laid the foundation for Jim Crow laws, and between Stanley Surrey, a Harvard professor and advisor to President John F. Kennedy, and key moments of the Cold War.

Furthermore, it takes a global view and reveals how racial panic triggered by African decolonization allowed an exclusive club of white countries to deliver a second bad check to newly sovereign states like Kenya and Nigeria. By circumventing the inclusive one-country, one-vote system of the United Nations, the OECD and its double tax treaty dismantled the generous arrangements that helped Europe rebuild after both World Wars.

Racial Capitalism and International Tax Law exposes the surprising role anti-Black racism played in shaping an international tax system that benefits billionaires at the expense of billions of people. This eye-opening account challenges readers to rethink the global tax system and its profound impact on racial and economic justice.

--Dan Ernst 

CFP: Narrating Justice: Postwar Trials in Memory and Culture

[We have the following CFP.  DRE.]

On behalf of the organizers, the Polish Academy of Sciences – Scientific Centre in Vienna, the Faculty of History, University of Warsaw, and the Museum of the Second World War, we invite you to participate in the conference "Narrating Justice: Postwar Trials in Memory and Culture”, which will take place on June 11-12, 2026, in Vienna. 

The discussion on post-war reckoning provides an opportunity to reflect on contemporary responses to violence and human rights violations, as well as on the role of scholarly research in the face of current conflicts and growing political tensions in Europe and around the world. The conference seeks to examine post-war trials as a long-term historical, legal, social, and cultural phenomenon. Drawing on approaches from different fields of scholarship, it will address the immediate post-1945 tribunals and their aftermath, as well as later trials and broader processes of post-conflict justice in diverse contexts. Attention will be given to the historical, social, and media contexts of these trials, their forms of documentation and reception, as well as their representation in literature, film, theatre, music, and the visual arts. We also invite contributions focusing on non- European contexts, perspectives, and historical settings.

We invite abstracts covering topics that include, but are not limited to:

Historical and Legal Contexts: The Nuremberg Trials and their impact on the development of international criminal law; Trials in Germany, Austria, Poland, and other countries; Shifts in legal categories: from war crimes to crimes against humanity

Social and Political Dimensions: Reception of post-war trials in European societies; Public debates on guilt, responsibility, and retribution; The role of victims’ and witnesses’ testimonies

Trials in the Media: Press, radio, television, and digital coverage of trials, Documentary recordings as historical sources, Visual and rhetorical strategies in depicting perpetrators and victims

Cultural and Artistic Representations: Trials as motifs in literature, theatre, film, and the visual arts; Artistic reconstructions, reinterpretations, and revisitations; Documentary literature and nonfiction in the context of legal history

Memory Studies and Politics of Memory: Post-war trials in European cultural memory; Transnational and comparative perspectives; Institutionalization of the memory of trials
(museums, archives, education)

Contemporary Relevance: Continuities between post-war tribunals and modern international courts; Narratives of responsibility in the context of contemporary conflicts; Challenges for law, memory, and justice in the twenty-first century.

Timeline and Submissions:  Proposals must include, in a single PDF file: (1) paper abstract (max. 1,000 words); and 2) brief biography of the author(s).  All conference submissions must be in English, and all accepted works are to be presented in English.  Proposals for the conference should be submitted to office@vienna.pan.pl by March 22, 2026.

Accommodation and Travel.  The conference will take place over two days, on 11–12 June 2026, at the Polish Academy of Sciences – Scientific Centre in Vienna (Boerhaavegasse 25, 1030 Vienna).  The organisers encourage in-person participation by all speakers. However, depending on the circumstances, some presentations could be delivered online. Please note that invited speakers will be responsible for their transport to and from Vienna.

Participation in the conference is free of charge, and participants will be offered lunch and coffee during the breaks. Participants without institutional support may receive reimbursement of travel expenses up to €150 per person, as well as modest complimentary accommodation at the PAS Scientific Centre in Vienna. For those requesting support, a brief statement of purpose (500–650 words) should be submitted with the abstract and biography.

Inquiries can be made by e-mail to monika.gromala@vienna.pan.pl, milena.blahuta@vienna.pan.pl

Weekend Roundup

• Caitlin Tully, a Ph.D. candidate in History at Princeton University, has published an essay in The Atlantic: "The Court has an Easy Answer on the Fed."  

• From Time's "Made by History": Douglas Boin (Saint Louis University) on "How Patriarchy Undermined the Roman Republic."   

• Malick W. Ghachem, MIT, discusses his book The Company and the Colony: Haiti after the Mississippi Bubble with Gerald Horne on the “Freedom Now” program on KPFK radio.

• Jill Hasday, Minnesota Law, discussed her book We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality with Kate Shaw on the Strict Scrutiny podcast.

• Allen Boyer reviews Kathryn Schumaker's Tangled Fortunes (Mississippi Books Page).   

• We've spotted an advertisement for a predoc university assistantship with Prof. Dr. Lena Foljanty, Chair for Globalisation and Legal Pluralism, at the Department of Legal and Constitutional History at the University of Vienna. 

• Lawbook Exchange's November 2025 catalogue on Scholarly Law and Legal History (Part 1; Part 2).

• ICYMI:  A Very Short History of Freedom of Speech by Oliver Bramley (Constitution Society). How Germany's Nuremberg trial for Nazi crimes transformed international law (rfi).

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

Weekend Roundup

•  A Q&A with Jane Manners, who joined Fordham's law faculty this fall (Fordham Law News).

• The death of former Vice President Dick Cheney has prompted reflections on his significance for U.S. legal history, including this one at the Conversation and this one at the New York Times. 

• Marlene Trestman has updated her database of 817 women who have argued before the U.S. Supreme Court (through May 15, 2025).  It is now live on the Supreme Court Historical Society's website.

• The Law & Economics Center at the George Mason University Antonin Scalia Law School will host the symposium, The Un-Forgotten Founder: A Celebration of George Mason's Legacy on the Occasion of His 300th Birthday, on December 8, 2025.  The panelists include Akhil Reed Amar, Yale Law School; Michael S. Greve, George Mason University Antonin Scalia Law School; The Honorable Edith Hollan Jones, Judge, U.S. Court of Appeals for the Fifth Circuit; and The Honorable William C. Mims, Senior Justice, Supreme Court of Virginia.

• Mitchell Del Bianco, who graduated this year from UVA Law's famed JD-MA program, has won the Morris L. Cohen Student Essay Competition for his paper, “What Is a House? An Exhibit Investigating Common Law Origins of the Open Fields Doctrine.” He wrote it for Professor Paul Halliday’s legal history class. (UVA Law).    

• Speaking of UVA Law, new courses taught in the January term and Spring 2026 semester include "Citizenship: The Law, History and Politics of U.S. Citizenship," co-taught by Karsh fellow Anja Bossow and Professor Amanda Frost; "Constitutional Law and Jurisprudence," co-taught by Charles Barzun and David Plunkett, visiting from Dartmouth's philosophy department; and "Roman Law of Family, Property and Succession," taught by Michael Doran.

• Cultural Critique Online has published a roundtable on The Autocratic Academy: Reenvisioning Rule within America's Universities (Duke University Press, 2023), by Timothy Kaufman-Osborn (Whitman College). It features responses by Joshua Barkan (Georgia), Michael Banerjee (UC Berkeley), and Adam Sitze (Amherst), along with a reply by Kaufman-Osborn.  

• Julian Zelizer interviews John Fabian Witt on his book The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America.

• 
  Miloš Vec, University of Vienna, will deliver the lecture After 1919 and after 1945: How Two World Wars Shaped German Thinking on International Law, at Slovenia’s University of Ljubljana on November 14, 2025, at 3:00 pm.  More.  

• If you don't know who Sam Thorne was, consult this, which, for reasons known only to the algorithm, found its way to us this week.

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

• ICYMI: More Lepore (Harvard Crimson). Kenya's new judiciary museum (Eastleigh Voice).  An essay on Abortion, the 1966 book by the journalist Larry Nadler and the birth of the reproductive rights movement (Public Books).  The history of China's legal exam (World of Chinese).

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

Klaus on Lemkin and the Tokyo Tribunal

Julia Klaus, Friedrich-Alexander-Universität Erlangen-Nürnberg, has posted "The Right of Existence of Peoples as Independent Nations": Raphael Lemkin, the Tokyo Tribunal, and Aggression:

Raphael Lemkin (wiki)

The article uncovers a significant historical connection between Raphael Lemkin, known for his work on genocide, and the International Military Tribunal for the Far East in 1947. Archival discoveries reveal Lemkin's involvement in discussions on defining the legal concept of aggressive war, aiming to influence the proceedings of the Tokyo Tribunal. A transcript of a US War Department conference shows how Lemkin's legal philosophy, balancing natural law and practical pragmatism, guided his views on aggression. His preference for a common law approach to formulating legal norms also became evident. Linking the 1947 conference report to an earlier publication by Lemkin sheds light on his role in imagining a practicable legal concept of aggression during the pre-and post-World War II era. This historical connection and a survey of the epistemic communities around Lemkin foster a deeper understanding of his multifaceted contributions to international law and the prevention of mass atrocities. 

--Dan Ernst

ASLH Environment, Law, and History Global Workshop

[We have the following announcement.  DRE]

The next meeting of the ASLH Environment, Law, and History Global Workshop will take place on 3 October at 11am UTC. Eddie Kola will be presenting his draft paper "Lessons for the Upcoming Age of Climate Refugees":

Many of the people who enjoy the least freedom of mobility in the world today, are also those most susceptible to the deleterious effects of climate change. And yet, neither those who must flee their homes due to urgent environmental catastrophes, nor economic migrants whose livelihoods are destroyed by the climate crisis, enjoy any protection under the 1951 Convention relating to the Status of Refugees. The plight of these so-called climate refugees are only set to worsen as time goes on. Through a detailed contextualization of the development of international refugee law, and the impact refugees have had on the development of the modern passport system, this paper will use historical lessons to make normative arguments that existing legal instruments must be amended and new ones negotiated, to address what is undoubtedly going to soon become an age of climate refugees.

Ben Richardson will provide commentary.  If you would like to attend the session, please email Susan Bartie (susan.bartie[at]anu.edu.au) or David Schorr (dschorr[at]tauex.tau.ac.il) and they will send you the paper and a link.

Arlyck's "Nation at Sea"

My Georgetown Law colleague Kevin Arlyck has published The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825 (Cambridge University Press).  It appears in the series Studies in Legal History, sponsored by the American Society for Legal History.

The Nation at Sea tells a new story about the federal judiciary, and about the early United States itself.  Most accounts of the nation's transformation from infant republic to world power ignore the courts. Their importance, if any, was limited to domestic politics. But the truth is that, in the critical decades following the Constitution's ratification, federal judges decided thousands of maritime cases that profoundly shaped the United States' relations with foreign nations. Judges ruled on the legality of naval captures made by European powers, regulated the conduct of American merchants, and tried pirates and slave traders who sought profit amid the turmoil of transatlantic war. Kevin Arlyck's vivid reconstruction of this forgotten history reveals how, over time, the federal courts helped realize an increasingly bold conception of American sovereignty, one that vindicated the Declaration of Independence's claim to the United States' place 'among the powers of the earth.'

Here are some endorsements:

‘In The Nation at Sea, Kevin Arlyck expertly bridges two significant but often detached areas of scholarship: the early history of the federal courts, a topic typically treated as ‘domestic,’ and the international struggles of the United States in the early national period. The intersection of these topics is of pressing interest to lawyers, judges, legal scholars, and historians, especially given the current prominence of originalist methods of legal interpretation.’

Alison LaCroix - Robert Newton Reid Professor of Law, University of Chicago Law School and author of The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms

‘In the first 40 years after the Constitution was ratified, much of the business of the federal courts consisted of maritime disputes with international dimensions. These disputes made judges central to U.S. foreign relations in ways that are scarcely imaginable today. Arlyck’s compelling and important study is the first major treatment of how federal judges took up this international role and with what consequences.’

Nicholas R. Parrillo - Townsend Professor of Law, Yale Law School and author of Against the Profit Motive: The Salary Revolution in American Government, 1780–1940

  

‘A Nation at Sea argues persuasively that America’s high courts negotiated international conflicts at a crucial period after the founding when the United States needed to establish credibility and assert neutrality in the midst of dangerous conflicts between powerful empires. Arlyck also demonstrates that Supreme Court justices failed to uphold American restrictions on the slave trade after 1808, even though they could have done so through extension of legal doctrines of their own maritime decisions.’

Holly Brewer - Burke Chair of American Cultural and Intellectual History, University of Maryland and author of By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority

--Dan Ernst 

Bradley on Extradition in the Early Republic

Curtis Bradley, University of Chicago Law School, has posted Extradition in the Early Republic: International Law and Constitutional Authority:

This Article is the first comprehensive account of the constitutional foundations of U.S. extradition practice and its relationship to international law. Through detailed analysis of early American extradition controversies—including the Longchamps Affair and the Robbins case—the Article shows how political actors and courts constructed the modern constitutional law of extradition, resolving key issues concerning presidential power, the role of the states, and the scope of congressional authority. This regime, the Article argues, emerged not from appeals to the constitutional text or original understandings, but rather from structural intuitions, consequentialist considerations, and, as time went on, historical traditions. As the Article further documents, the constitutional law of extradition had a relational interaction with international law, in that the views of U.S. interpreters concerning the nation’s international law duties were relevant to their views of constitutional authority, and vice versa. The Article also complicates the dominant narrative of a unilateral “imperial presidency” in foreign affairs by showing that, because of the liberty interests involved, extradition authority evolved and remained as a shared power, requiring a treaty-based or statutory foundation as well as judicial involvement. In this respect, extradition parallels the development of certain other unenumerated foreign affairs powers, including most notably the authority over immigration. Finally, the Article situates extradition within the broader field of foreign relations law, illuminating its ties to doctrinal developments such as treaty non-self-execution, foreign affairs federalism, and sovereignty-based legislative power—developments that still resonate today.

--Dan Ernst 

Kent on the Alien Enemies Act of 1798

 Andrew Kent, Fordham University School of Law, has posted The Alien Enemies Act of 1798:

For the first time since World War II-and the first time ever outside a formally declared war-an American president has invoked the Alien Enemies Act to detain and deport noncitizens. In March 2025, President Donald Trump proclaimed that all members of the Venezuelan gang Tren de Aragua present in the United States are enemy aliens, asserting that their actions, supposedly coordinated with the Maduro government, constitute an "invasion" and "predatory incursion" under the statute's triggering language. Enacted during the Quasi-War with France in 1798, the Act's key terms remain unchanged. This Article is a comprehensive account of the statute's original meaning. 

Every method of statutory interpretation-carefully reading the full 1798 text and examining the Alien Enemies Act's purposes and its political, diplomatic, and military contexts; examining related statutes; understanding background rules of common law and international law (especially those governing alien enemies); and finding definitions of key words in dictionaries and from contemporaneous linguistic usage-confirms that the Trump administration's reading is irreconcilable with the statute's original meaning in 1798. "Alien enemy" status required a state of war or an imminent threat thereof. The Act was intentionally written to bar the president from declaring alien enemy status in other situations. The statute's triggers were understood to be met when a foreign nation's offensive military actions indisputably created a state of actual or imminent armed attack on U.S. territory, or when Congress acted to formally authorize a state of war, consistent with Congress's view that it, not the president, had power under the Constitution to declare war and authorize more limited hostilities. 

Furthermore, the historical record strongly suggests that individuals detained under the Act could seek judicial review of whether they were, in fact and law, alien enemies-contrary to claims of the Trump administration. Finally, this Article analyzes other provisions of the statute not implicated in 2025 and situates the Act within its broader context-fierce partisan battles between Federalists and Republicans over immigration, loyalty, national character, federal power, and foreign policy. 

--Dan Ernst 

ASLH's Virtual New Books Series

[Here's another reason to join the American Society for Legal History: Members can virtually participate in this series on great new books in the field.  DRE]

Making Connections: New Works in Legal History Series, 2025-2026 

All sessions will be on Zoom Wednesdays from 6:00-7:00 pm (Central Time).  We will send an email two weeks in advance of each event.  You must RSVP to receive the zoom link.  RSVP messages will be sent to membership approximately 1 week before the event.  ASLH Members can watch videos of previous events on our members page
 
September 17, 2025 – Esther Liberman Cuenca, The Making of Urban Customary Law in Medieval and Reformation England (Oxford University Press, 2025) with interlocutor Sara M. Butler
 
October 22, 2025 – Sonia Gomez, Picture Bride, War Bride: The Role of Marriage in Shaping Japanese America (NYU Press, 2024) & Kathryn Schumaker, Tangled Fortunes: The Hidden History of Interracial Marriage in the Segregated South (Basic Books, 2025)
 
December 10, 2025 – Marla A. Ramírez, Banished Citizens: A History of the Mexican American Women Who Endured Repatriation (Harvard University Press, 2025) with interlocutor Kevin R. Johnson
 
January 21, 2026 – Omar Youssef Cheta, How Commerce Became Legal: Merchants and Market Governance in Nineteenth-Century Egypt (Stanford University Press, 2025) with interlocutor Nurfadzilah Yahaya
 
February 25, 2026 – Tadashi Ishikawa, Geographies of Gender: Family and Law in Imperial Japan and Colonial Taiwan (Cambridge University Press, 2025) with interlocutor Jisoo M. Kim
 
March 25, 2026 – Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025) with interlocutor Margot Canaday
 
April 15, 2026 – Kevin Arlyck, The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825 (Cambridge University Press, 2025) with interlocutor Alison LaCroix

Weekend Roundup

• 
  Salutations to the participants in the J. Willard Hurst Summer Institute in Legal History of the American Society for Legal History, which continues into next week at the University of Wisconsin-Madison under the direction of chairs John Fabian Witt and Michelle McKinley!  For some other reasons to join the ASLH, consider its Early Career (Virtual) Legal History Workshop, its Early Career Global Legal History Research Fellowships, and its just-announced Themed (Virtual) Legal History Workshops.

• Over at the LPE Blog, the symposium on Sandeep Vaheesan’s Democracy in Power: A History of Electrification in the United States continues. The most recent post, by William Boyd, is here.  

• The Minnesota Supreme Court Historical Society is hosting a one-hour CLE panel, A Dive Into Unitary Executive Theory: Presidential Powers and Limitations, on June 24 from 3-4 CDT in person at the Minnesota Judicial Center.  The panelists are Christine Chabot, Marquette University Law School; Heidi Kitrosser, Northwestern University Pritzker School of Law; and Nick Bednar, University of Minnesota Law School. 

• We hear there might still be spaces at next months Rare Book School, devoted to Medieval Manuscript Fragments: Cataloging & Discoverability, with Lisa Fagin Davis.

• From Time's "Made by History": Tom Hanchett on "The History of the Low-Income Housing Tax Credit—And How it Could Improve Trump’s ‘Big Beautiful Bill.’"  

• Via ESCH and H-Law, we have a CFP for the junior colloquium Invisible Actors in the Making of International Law (1750-2000) at Sciences Po/Center for History in Paris on November 27-28, 2025. 

• UC Irvine School of Humanities on its alumna, Stanford Law's Bernadette Meyler 

• Modern Criminal Law Review had a symposium on Chloë Kennedy’s Inducing Intimacy: Deception, Consent and the Law (Cambridge University Press, 2024).  A podcast version is here.

• ICYMI:  How Much Money Do Historians Make From Their Writing? (Contingent Magazine).  Kate Hampton on a Montana antidiscrimination case from 1881 (Daily Montana).  Manisha Sinha on Lincoln and the abolitionists (Unpopulist). John Yoo on Putting the Executive in "Unitary Executive" (Law & Liberty).  St. Louis's Old Courthouse (Ladue News).

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

Rosenboim on Kelsen and the Chicago World Constitution Draft

Or Rosenboim, University of Bologna, has published, open access, Law, peace, and world order: Hans Kelsen’s global thought in the 1940s in the Journal of Global History:

In the mid-twentieth century, the jurist Hans Kelsen envisaged a new legal and political international order. His global thinking revolved around his idea of a ‘world state’ as a means to preserve peace. The article contends that Kelsen’s ideas on global legal and political order and a world state in the 1940s drew on his intellectual biography and on his earlier theoretical writings on order in the national scale. Another important source for understanding Kelsen’s global thinking is his critique of the Chicago World Constitution Draft, a mid-century project which proposed the establishment of a federal world state. As this study shows, Kelsen’s global thinking is characterised by a multi-scalar logic and an emphasis on positive law as the foundation of political and legal order. These elements render his ideas distinct in the historical trajectory of modern global thought, and deserve the attention of global historians today.

--Dan Ernst

Sellars on the UN Convention on the Law of the Sea

Kirsten Sellars has published A ‘Constitution for the Oceans': The Long Hard Road to the UN Convention on the Law of the Sea (Cambridge University Press):

The UN Convention on the Law of the Sea, signed in 1982, was the culmination of half a century of legal endeavour. Earlier attempts to create  a treaty regime governing the oceans – at League of Nations and United Nations conferences held in 1930, 1958 and 1960 – had all failed to settle the breadth of the territorial sea, and in two cases failed to settle anything at all.  During the negotiations, legal concepts were formulated and reformulated: straight baselines inspired archipelagic baselines; fishing conservation zones became exclusive economic zones; innocent passage through straits metamorphosed into transit passage through straits; and seabed common heritage was replaced by the parallel system of seabed exploitation. Many of the issues that animated the delegates during the negotiations – ocean pollution, overfishing, naval mobility, continental shelf claims and the impact of seabed mining – continue to exercise policymakers and lawyers to this day.

--Dan Ernst

Bradley on Curtiss-Wright

Curtis Bradley, University of Chicago Law School, has posted Sovereign Power Constitutionalism, which is forthcoming in the University of Chicago Law Review:

George Sutherland, J. (LC)

The constitutional text seems to be missing a host of governmental powers that we take for granted, including powers relating to immigration, Indian affairs, acquisition of territory and resources, and the regulation and protection of U.S. citizens abroad. The Supreme Court suggested an explanation for these and other missing powers in its famous 1936 decision, United States v. Curtiss-Wright Export Corporation. Upon becoming a nation, the Court contended, the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of nationality.” Although the Curtiss-Wright decision has been heavily criticized, this Article defends the Court’s suggestion that the federal government’s authority is informed by conceptions of nationhood. As will be shown, many areas of U.S. constitutional law rest on a presumption that the nation acquired the full complement of sovereign powers allocated to nations under international law, and this has been the case throughout much of U.S. history. This presumption has been manifested at times through broad interpretations of the constitutional text, but on other occasions it has been manifested through invocations of inherent authority. Importantly, and contrary to what many critics of Curtiss-Wright assume, the sovereign power presumption does not require either a rejection of constitutional constraints or a preference for presidential over congressional authority.

--Dan Ernst

Symposium: The Worlds of Pre-Modern Neutrality

[We have the following announcement.  H/t: H-Law.  DRE]

Symposium: The Worlds of Pre-Modern Neutrality (ca. 1400-1800): Norms, Institutions and Practices.  Antwerp, May 8, 2025 - May 9, 2025

To ensure their security in a world dominated by competing Great Powers, states have the choice between an alliance or a neutral position. If we consider the world as governed by brute force, neutrality (the choice not to participate in a conflict between two or more other polities) would merely be a factual condition, dependent on the big players’ goodwill. Even today the ongoing war in Ukraine and the geopolitical tensions between China and the US pose existential challenges to third countries and their positioning, demonstrating the persistent vitality of the concept of neutrality in the 21st century. This equally reverberates on third states’ nationals and other non-state actors. The articulation of the set of rights and duties associated with neutrality has a long pedigree in legal history. The rhetorical use of legal arguments is intertwined with the protection of one’s territory and population but also with the interdependence that fosters trade, especially at sea, connecting markets, spaces and peoples. Law and power are never disconnected in matters related to neutrality, a mutual and reciprocal influence of both tenets is usually present.

This symposium aims to contribute new insights to the long-term history of neutrality, focusing on its ‘pre modern’ dimension broadly understood (ca. 1400-1800). Indeed, the law of neutrality started to emerge in the Early Modern Age through the practices and beliefs of the European state system, but also from its interactions with non-European normative and cultural systems. Different but complementary angles of approach can be used to understand this phenomenon: e.g. diplomatic history, IR history, political history, economic history and legal history. Throughout history, polities as well as private actors have interpreted neutrality in flexible and divergent ways, e.g. proposing a proactive-assertive approach or a more passive and inward looking one.

Benefiting from multiple disciplinary perspectives, the symposium takes into consideration both the theory and the practice of neutrality, advancing our knowledge of the often-contested conceptualisation of legal regimes at sea as well as on land. Such a conceptualisation depended on the interaction between situations of peace and war, diverging across different temporal and spatial coordinates. The participants’ contributions will also unravel the recurrent misalignment between legal-dogmatic approaches and practical uses of knowledge, as well as its intellectual and bureaucratic production. As such, the symposium participates in a broader turn to bottom-up approaches in the history of international law, a booming field of interdisciplinary research.

[Complete schedule here.]

Sugarman on the "Hidden Histories" of the Pinochet Case

David Sugarman, Lancaster University Law School, has published “The Hidden Histories of the Pinochet Case” open access in the Journal of Law and Society   51: 4 (2024): 459–490:

Credit: LC

The world’s imagination was caught by the 1998 arrest in London of General Augusto Pinochet on charges of egregious human rights crimes and the 16-month battle to extradite him to Madrid. For the first time, a former head of state had, while travelling abroad, been arrested on such charges, with his claim to immunity being rejected by a national court. The case’s notoriety increased when Lord Hoffmann, a judge when it first came before the Law Lords, did not publicly disclose his links with Amnesty International, an intervenor in the proceedings. Pinochet’s release on health grounds compounded the controversy. This article reveals hidden histories behind the Pinochet case, advancing our understanding of its progression and wider significance. It illuminates the relationship between law and politics, the role of personal views and judicial creativity in the UK’s top court, the ways in which law operates in practice, and its promise and limitations.

--Dan Ernst

Mehrotra on Seligman and the International Tax Regime

Ajay K. Mehrotra, Northwestern Pritzker School of Law and the American Bar Foundation, has posted The Intellectual Origins of the Modern International Tax Regime: Edwin R. A. Seligman, Economic Allegiance, and the League of Nations' 1923 Report, which is forthcoming in the Journal of Law & Political Economy:

E.R.A. Seligman (NYPL)

In March 1923, a group of prominent political economists and tax law experts gathered in Geneva, Switzerland to discuss the post-World War I framework for a new international tax regime. Commissioned by the League of Nations, these experts produced a comprehensive report that gradually became the intellectual foundation of the modern international tax regime. Relying on archival materials and other primary sources, this article contends that the US expert Edwin R. A. Seligman played a vital role in revising the report. While scholars have noted Seligman's influence over US tax law and policy, his pivotal role in drafting the 1923 report has only recently been acknowledged. This article builds on this recent scholarship by investigating how Seligman's background, experiences, and ideas-particularly his analysis and advocacy of the concept of "ability to pay" and "economic allegiance"-shaped the 1923 Report, and hence the subsequent development of the modern international tax regime.

--Dan Ernst

Roberts on the Forced Labor Convention of 1926

Christopher M. Roberts, Chinese University of Hong Kong, has posted Re-Covering Forced Labour: Colonial Foreclosures and Forgotten Potentials, which is forthcoming in the Melbourne Journal of International Law:

This article aims to reopen the question of the meaning of forced labour. It undertakes this task through a detailed exploration of the history of the 1930 Convention concerning Forced or Compulsory Labour ('Forced Labour Convention') based on a careful reading of the archival record. The history of the Forced Labour Convention and its closely linked predecessor, the 1926 Convention to Suppress the Slave Trade and Slavery, reveals that while the processes leading to both were initially open-ended, colonial interests ultimately produced sharp limitations in both texts. Recognising the colonial foundations of contemporary international law in this area should enhance our openness to reconsidering how we think about coercive labour today. The development of the Forced Labour Convention did not only consist in limiting dynamics, however. While they were pushed to the margins, this article also highlights three areas-conditions of work, conditions of life and worker freedoms-in which the historical record helps to suggest a more expansive, progressive understanding of forced labour than that which has become commonplace. Reconstructing our approach to forced labour, with attention to these potentials, can revitalise the concept in the contemporary world, overcoming close to a century of foreclosure.

--Dan Ernst

Michigan Legal History Workshop

[Our friends at Michigan Law have sent us the lineup in its Legal History Workshop in the upcoming semester.  DRE]

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April 2. Session 10. Justene Hill Edwards, University of Virginia, Department of History

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April 9.  Session 11. Ivón Padilla-Rodriguez, University of Illinois, Chicago, Department of History

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April 16.  Session 12. Sara Mayeux, Vanderbilt University, Law School

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