Gordon on Church and State in Early New York

Sarah Barringer Gordon, University of Pennsylvania, has posted The Holy Cause: Church and State in Revolutionary and Early National New York:

This article explores a key outgrowth of the American revolution in the law of church and state. The careers of Presbyterian pastor John Rodgers of New York and his congregants bridged pre- and post-revolutionary debates on the law of religion. In early 1784, the inaugural New York State legislature passed a game-changing law, introduced by one of those congregants, which allowed all “religious societies” to incorporate.

The new law followed decades of controversy over whether non-Anglican religious organizations could incorporate in the colonies. Just months after the British evacuated, New York transformed an Anglican privilege into a general benefit. The law also mandated significant lay control, vesting elected trustees with authority over salaries, decisions to buy and sell, and more.

Other states followed New York’s lead. Lay trustees controlled church finances and property: they became partners with local governments in state-building infrastructure, as they founded universities, hospitals, publishing houses, libraries, etc. Some religious institutions grew faster than others in this expansive climate. Presbyterians’ conservative standards meant that more nimble groups, especially Methodists, could capitalize on the opportunities offered by new settlements in upstate New York and beyond, where revivals burned hot as American settler colonialism exploded in the early republic.

--Dan Ernst 

Smith on Catholic Constitutional Republicanism

Thomas A. Smith, emeritus at University of San Diego School of Law, has posted Catholic Constitutional Republicanism: Suárez, the School of Salamanca, and the American Law of Public Power:   

American constitutional theory traces its lineage to Hobbes, Locke, Montesquieu, and the common law; the political thought of the Spanish neo-scholastics rarely appears in the standard account. This Article recovers that tradition, with particular attention to Francisco Suárez, and argues that it supplies a constitutional theory of public power resisting both Hobbesian absolutism and a thin, individualist Lockeanism. Rulers hold jurisdiction rather than dominion, so a king does not own the realm he governs. Law is an ordinance of reason for the common good rather than the sovereign’s bare command. Office confers authority for another’s good; a ruler who converts public power into private advantage does not merely govern badly but corrupts the office itself. The recovery is offered with its costs stated rather than concealed. The same doctrine that limited the civil ruler served, in its original setting, a claim for the Church’s indirect power over him; the Article marks this cost wherever it bears on the argument. On most of the concepts recovered here, from the distinction between office and ownership to the corporate personality of the people, the tradition systematized a Roman and canonical inheritance more than it originated one. Two claims are stronger: Suárez’s theory of law as reasoned ordinance, and Vitoria’s contribution to the law of nations. The Article also distinguishes this recovery from Adrian Vermeule’s common good constitutionalism, which trusts the magistrate to specify the common good through determinatio; the tradition recovered here begins instead from the corruptibility of that discretion, and treats constitutional form as part of the common good rather than a constraint upon it. The tradition does not decide cases. It names the wrong that the American law of office exists to prevent: the conversion of a public trust into a private possession. 

--Dan Ernst 

Wieboldt on Catholic Legal Thought and First Amendment Originalism

Dennis J Wieboldt, III, a JD-PhD candidate at Notre Dame, has published ‘But the original intent of the Constitution would be restored’: Catholic legal thought and the emergence of First Amendment originalism, 1947-87, online and open access in the American Journal of Legal History:

Several scholars of twentieth-century American legal history have recently argued that originalism—a method of constitutional interpretation commonly associated with the conservative legal movement—first emerged as southern Republicans and conservative Democrats (many of whom were evangelical Protestants) reacted to the US Supreme Court’s 1954 decision in Brown v Board of Education. But southern opponents of Brown were not the only figures to have self-consciously introduced originalist ways of thinking about the Constitution into the nation’s legal vocabulary at mid-century. Indeed, this article reveals that, nearly a decade before Brown, Catholics hundreds of miles away from Selma and Little Rock similarly sought to convince their neighbours that the Constitution ought to be understood according to the intentions of its eighteenth-century drafters (or, when appropriate, its nineteenth-century amenders). And importantly, they did so not to undermine the Civil Rights Movement, but rather to ensure that the Court’s 1947 decision in Everson v Board of Education would not stymie the American Catholic Church’s efforts to obtain public financial assistance for parochial schools.

In encouraging jurists, scholars, and voters to understand the First Amendment’s Religion Clauses through the lens of founding-era history, post-Everson Catholics became as responsible as anyone outside of the Supreme Court for originalism’s decisive (re)shaping of the Religion Clauses during the next half-century. But this ultimately proved troubling to some as the conservative legal movement became ascendant in the 1980s. From the perspective of these critics of First Amendment originalism, God’s natural law, not Thomas Jefferson’s metaphorical ‘wall of separation’ between church and state, should determine the First Amendment’s meaning. In concluding, this article therefore suggests that Catholics initially turned to originalism pragmatically to vindicate their background philosophical and theological conceptions of religious liberty, but increasingly came to realize that originalism—to the extent that it relied on positivist assumptions about the nature of individual rights—was alone inadequate to do so.

--Dan Ernst 

Schonthal's "Courts, Constitutions and Karma"

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

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

--Dan Ernst 

The Witte Backlist

John Witte, Jr.,  Emory University School of Law, an eminent historian of law and religion, has posted a number of his papers, most (but not all) of which are brief:  Church, State, and Marriage: Three Reformation Models; The Tradition of Traditional Marriage; Religious Liberty (Foundations); the preface to To Have and to Hold: Marrying and its Documentation in Western Christendom, 400-1600, edited by Philip L. Reynolds and John Witte, Jr. (2007); Protestant Law; Christianity and Law in the Enlightenment; Josef Bohatec: The First Historian of the Calvinist Reformation of Rights; the introduction to Christianity and Democracy in Global Context, edited by John Witte, Jr. (1993); and Johannes Althusius and the Universal Rule of Natural Laws and Rights.

--Dan Ernst 

CFP: Religions and Freedom c. 1776

[We have the following CFP.  DRE]

Call for Papers: Deadline December 30, 2025

On the occasion of the 250th anniversary of the Declaration of Independence, the John Carter Brown Library and the John C. Danforth Center for Religion and Politics at Washington University invite proposals for participation in a major conference to be held in Providence, Rhode Island, June 4-6, 2026, on the broad topic of religions and freedom c. 1776.  

There are many productive ways to investigate the histories, historical relationship, and legacies of religions and freedom across the breadth of early America. And religious freedom in America has a deep and important history, in which the conference location of Rhode Island itself plays a significant part. The conference aims to engage fresh scholarship and public interests in critical issues of religious freedom. Focused sessions will highlight new perspectives on classic questions, innovative methods, and new sources. We will host public events, including two evening keynotes, sessions for k-12 teachers, and programs dedicated to teacher professional development, in addition to panels dedicated to historical scholarship. 

The program committee encourages proposals on historical topics that address religions and freedom in the Revolutionary era, as well as proposals for a more limited set of sessions to consider legacies and ramifications of the relationship of religions and freedom in contemporary life. Topics might include: teaching religions and freedom, k-16; Indigenous knowledge systems; Africana religious studies; the development of denominations and religious institutions; the interest of governments in marking boundaries of religious freedom; betrayal and conflict within and between religious communities; slavery and definitions of religious freedom and unfreedom; the First Amendment and its antecedents and legacies; churches and clergy; and sacralization and state-building in the early Republic. These are simply suggestive of the wide range of topics that might be fruitfully explored. Those submitting proposals are encouraged to be ambitious and creative as they consider the interplay of religions and freedom in the proximate period of the American Revolution.

The organizers invite proposals for individual papers or full panels (the committee reserves the right, given needs and coverage, to make adjustments to the latter). For full panel proposals, we encourage a diverse representation of career stages, institutions, and perspectives. For both individual paper and panel proposals, please type into the linked form: the panel title and all paper titles, abstract for the panel and each paper not to exceed 250 words, name, affiliation, email and phone contact information for each participant. Please also attach to the form a one page cv (as a PDF) for each participant. For panel proposals, please identify the organizer and suggest a panel moderator and chair.

The program committee will make decisions by mid-January so that the conference program can be settled and announced by early February. Questions may be directed to the conference organizers, Mark Valeri and Karin Wulf via jcb-director@brown.edu.

Cheta's "How Commerce Became Legal"

Omar Youssef Cheta, Syracuse University, has published How Commerce Became Legal: Merchants and Market Governance in Nineteenth-Century Egypt (Stanford University Press):

When Egypt's markets opened to private capital in the 1840s, a new infrastructure of commercial laws and institutions emerged. Egypt became the site of profound legal experimentation, and the resulting commercial sphere reflected the political contestations among the governors of Egypt, European consulates, Ottoman rulers, and a growing number of private entrepreneurs, both foreign and local. How Commerce Became Legal explores the legal and business practices that resulted from this fusion of Ottoman, French, and Islamic legal concepts and governed commerce in Egypt.

Focusing on the decades between the formalization of Cairo's practical autonomy within the Ottoman Empire in the 1840s and its incorporation into the British Empire in the 1880s, Omar Cheta considers how modern laws redefined the commercial sphere, shaping a mode of market governance that would persist for decades to come. He highlights the demarcation of a new law-defined commercial realm separate from the land regime and from civil or family-centered exchanges, and reconstructs these changes through both legal codes and state orders, as well as individual merchant voices preserved in court documents. As this book documents both individual experiences and structural explanations, it offers a rare perspective on the scope and reach of market governance over the mid nineteenth century, revealing changes simultaneously from within and without state institutions.

--Dan Ernst 

HLS Symposium: Brandeis on "the Jewish Problem"

Louis D. Brandeis (NYPL)

[We have the following announcement.  DRE] 

“The Jewish Problem, Then and Now: Rethinking Louis Brandeis’s Liberalism”

A Symposium sponsored by the Julis-Rabinowitz Program on Jewish and Israeli Law at the Harvard Law School.  September 16, 4:00 pm - 8:00 pm

2025 marks the 110th anniversary of Louis Brandeis’s famous essay, “The Jewish Problem – How to Solve It.” Taking as his point of departure the persistence of antisemitism in the twentieth-century world, Brandeis laid out a diagnosis of liberalism’s challenges and a positive vision for its future. His essay also marked a major statement on liberal Zionism and the rationale for American Jewish commitment to reconciling Jewish nationalism and American democracy. A century later, we revisit this text and the broader Brandeisian legacy to think about the contemporary questions of liberalism and Zionism, law and economics, and citizenship and group rights in American law. 

Symposium Chairs: Noah Feldman, Felix Frankfurter Professor of Law, Harvard Law School and James Loeffler, Felix Posen Professor of Modern Jewish History, Johns Hopkins University.  With William Forbath (Univ. of Texas, Austin), Amalia Kessler (Stanford), Linda Kinstler (Harvard), Shaul Magid (Harvard), Eric Nelson (Harvard), Simon Rabinovitch (Northeastern), and Laura Weinrib (Harvard)

4pm

Welcome from James Loeffler and Noah Feldman

4:15 – 5:30pm

William Forbath “Brandeis and his Jewish Socialist Critics & Collaborators on Zionism & Industrial Democracy” 

Amalia Kessler “Arbitration and the Jewish Question, 1900-1950” 

Simon Rabinovitch Moderator 

5:30-6:30pm

Shaul Magid “Jewish Nationality, Nationhood, and Diaspora Nationalism: Reading Mordecai Kaplan and Daniel Boyarin through Louis Brandeis”

Laura Weinrib “Free Speech, Group Rights, and Jewish Identity”

Linda Kinstler moderator

6:45-7:45pm

Keynote: “Brandeis’s Jewish Question(s): Global Liberalism Reconsidered”
James Loeffler
Response: Noah Feldman
Moderator: Eric Nelson

The Docket 8:1-2

Volume 8, Issues 1-2 of The Docket, the companion to Law and History Review, is now online:

Sarah Gronningsater: The Rising Generation

A conversation with Sarah Gronningsater about her prize-winning book, The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom.

Marie-Amélie George: History as a Beacon of Hope

Simon Rabinovitch–Sovereignty and Religious Freedom: A Jewish History

A conversation with Simon Rabinovitch about his book, Sovereignty and Religious Freedom: A Jewish History.

Dennis Wieboldt III: Natural Law and the Study of “Conservative” Constitutionalism

Jonathan Connolly: Worthy of Freedom: Indenture and Free Labor in the Era of Emancipation

Lauren Davis Jarnach–Negotiating the Arizona Constitution: The Role of Parliamentary Procedure in Ensuring Democratic Textual Outcomes

--Dan Ernst 

Bugaric on Fulgosius on Just War

Max Kuhelj Bugaric, a Ph.D. candidate in the Department of Government and a student in the Law School at Harvard University, has posted Raphael Fulgosius on Just War: Papal Adjudication of Conflicts and War as Judgment.  The paper was awarded the 2025 Irving Oberman Memorial Award in Legal History of the Harvard Law School. 

While Raphael Fulgosius (1367–1427) does advance a seemingly revolutionary notion—that in certain cases, the outcome of a war is itself a just verdict—it must be read in light of the overall framework he develops. But in what has been written on this topic, the emphasis rests almost entirely on his argument about the impossibility of judging the different sides’ claims to justice in a formal bellum. This paper attempts to correct the historical record and offer a more fully contextual interpretation of his claims. Fulgosius was willing to set aside the rigid theory of the just war framework and instead label conflicts between Christians “dissensions” (dissensiones) precisely in order to preserve the diplomatic power of the papacy. But the conclusion Fulgosius reaches in effect allows for an even stronger statement of the unilateral rights of war, as it is the pope himself who acts as judge in such disputes. There can be no appeal to his sentence, which also resolves the problem of potential ambiguity and doubt. Even if he thought papal adjudicative power should not be completely unconstrained in such scenarios, he likely would have wanted to preserve the general prerogative, motivated at least in part by the desire to rein in the constant warfare that characterized the Italian city-states in this period.

--Dan Ernst 

Booth on the Legal History of the Satanic Panic

Jonathon Booth, University of Colorado Law School, has posted A New Satanic Panic, which is forthcoming in the Yale Journal of Law and Feminism:

A broad backlash to LGBTQ visibility and equality has emerged in recent years. Its conservative proponents have asserted that queer people are Satanic, called gender affirming healthcare child abuse, and labeled adults who teach about gender and sexuality “groomers.” This rhetorical shift, combined with an explosion of anti-transgender legislation, may presage a revival of the 1980s Satanic Panic, when fears of brutal crimes allegedly committed by Satanic cults swept the nation. These accusations spurred the longest trial in American history, commanded tabloid news, and led dozens of people to be convicted of lurid crimes, nearly all of whom were later exonerated. Today we are at risk of a similar panic reoccurring, in which baseless criminal prosecutions may be brought against LGBTQ people and their allies, especially in conservative Christian areas.

This Article provides the first historical account of the original Satanic Panic in the legal literature, narrating two major criminal cases and examining the underlying causes of the Panic, including backlash to the feminist and gay liberation movements. It then analyzes the widespread discourse on the political right that connects “gender ideology” to Satanism and child abuse, and the broad adoption of legislation restricting and criminalizing access to gender affirming healthcare. Finally, it evaluates the likelihood of a reoccurrence of the Satanic Panic, weighing the growing animus against LGBTQ people against more encouraging changes, such as improved interrogation practices. It concludes that there is a significant risk that the current moral panic around transgender people could result in a new Satanic Panic. Finally, it proposes actions that lawyers and advocates could take to reduce the likelihood of unjust prosecutions.

--Dan Ernst

Redburn, "The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis"

The California Law Review has published "The Equal Right to Exclude: Religious Speech and the Road to 303 Creative LLC v. Elenis," by Kate Redburn (Columbia Law). The abstract: 

This Article explains how speech became the constitutional vehicle for the right to discriminate on religious grounds in places of public accommodation. It argues that cause lawyers for the New Christian Right cobbled together a right to exclude from a surprising doctrinal source: the egalitarian tendencies within the First Amendment. Using extensive original archival research, case materials, and little-known accounts of key figures, I reconstruct the New Christian Right’s legal strategy to obtain speech coverage for service denial. By strategically co-opting the progressive free speech legacy, innovative lawyers in the religious wing of the conservative legal movement convinced liberal jurists that they shared an approach to constitutional interpretation. The result was an argument that won the day in 303 Creative v. Elenis—that the government discriminates on the basis of speech content when it enforces public accommodations law in the sale of expressive products.

This research has important implications for our understanding of the conservative legal movement, the meaning of First Amendment equality, and the future of anti-discrimination law. First, by going to the origins of conservative Evangelical cause lawyering, this Article reveals compromises, tensions, and contingencies in the formation of today’s conservative legal movement. Second, this novel history helps illuminate key moves in expressive conduct doctrine that resurfaced in 303 Creative. Third, the story provides important resources for understanding the 303 Creative decision and where expressive association doctrine is likely to go next.

Read on here.

-- Karen Tani

Weekend Roundup

• The Irish Legal History Society will hold its annual general meeting on November 29.  Following the meeting John G. Gordon will lecture on “‘Where there’s a Will there’s a Contest’: The Will of the Very Rev Frank Henry PP: From Carrickfergus to Rome”  (Law Society Gazette).
  

• The Centre for Law and History Research (Law and History Network) at the University of Bristol will host a seminar by Graham Moore, an Eighteenth-Century Collections Researcher at The National Archives on Confederacy, treason, or robbery? Defining piracy in the seventeenth-century High Court of Admiralty.
  

• A notice of Deserted Wives and Economic Divorce in 19th Century England and Wales: For Wives Alone, on Section 21 of the Matrimonial Causes Act of 1857, which allowed deserted women to have their feme sole status. Professor Olive Anderson died in 2015 before completing the book. Northumbria University professor academic Dr. Jennifer Aston subsequently came across the manuscript and, with the support of Anderson's daughters, completed it.
  

• On November 8, David Wilkins, University of Richmond, delivered the address “Apart & Akin,” on “the shared histories and legal statuses of Native peoples and African Americans,” at  Appalachian State University (The Appalachian).
  

• The University of Chicago's notice of Samuel Fury Childs Daly's new book, Soldier's Paradise: Militarism in Africa after Empire. 
  

• Yale Law School's notice of Keith E. Whittington’s The Impeachment Power (Yale).
  

• Kate Masur discussed her graphic history Freedom Was In Sight: A Graphic History of Reconstruction the Washington D.C. Region at the Smithsonian National Museum of African American History and Culture (YouTube).
  

• Carl Rice, a visiting assistant professor of Greek and Roman studies at Vassar College, lectured on “Roman Religion and the Citizens of Empire, 200-450 CE,” at the Center for Medieval and Renaissance Studies at Binghamton University (Pipe Dream).
  

• Korematsu v. United States was re-argued on its 80th anniversary in an event sponsored by the Robert H. Jackson Center at George Washington University Law School (YouTube).
  

• Stephen Sachs summarizes his review of Jack Balkin's Memory and Authority (Volokh Conspiracy).
  

•  ICYMI: The 18th‑Century Origins of Recess Appointments (History).  Uncovering the Legal Records of France’s Once-Largest Jewish Community--an 18th-century pinkas, in Metz (Mosaic).

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

Legal History at Queen Mary University of London

The Department of Law, Queen Mary University of London, has announced three upcoming events of interest to legal historians.  All are free and everyone is welcomed.

16 October
Law, Labour, and Economy in the 19th Century
With Jonathan Connolly, Bronwen Everill, Erik Mathisen, and Miles Ogborn

23 October
The Devil in Medieval Legal Culture
With Karl Shoemaker

20 November
Law, Logic, Literature: A Symposium on "The Logical Renaissance"
With Katrin Ettenhuber, Kevin Killeen, Lorna Hutson, Julie Stone Peters, and Maksymilian Del Mar

--Dan Ernst

Bray and Keane on Ussher

Samuel L. Bray, Notre Dame Law School, and D. N. Keane, Georgia Southern University, have posted James Ussher (1581-1656):

James Ussher (wiki)

In the seventeenth century, James Ussher was the Archbishop of Armagh and Primate of the Church of Ireland. Now remembered for his risible dating of creation, in his lifetime he was widely regarded as one of the most learned persons in the British Isles if not in Europe. This chapter explores Archbishop Ussher's ideas that have significance for law. In particular, it considers his commitment to absolute monarchy, even as the tide was flowing toward a more assertive Parliament; his proposal for "reduced episcopacy," a form of conciliar ecclesiastical government; and his insistence that each national church have its own canon law. This chapter takes the measure of these contributions and also of their contributor. Ussher was a Janus-like figure of contradictions—staggering in how much he knew, and now remembered mostly for what he did not know; widely renowned in his time for his moderation, yet repressive to Irish Catholics; a royalist bishop who was deeply admired by both King Charles I and the rebels who beheaded him.

--Dan Ernst

Funk on Codification and Protestantism

Kellen R. Funk, Columbia Law School, has published Sect and Superstition: The Protestant Framework of American Codification open access in the American Journal of Legal History:

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to ‘superstition’ and ‘priestcraft’. Their opponents denounced the codifiers’ idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly ‘clear’ texts that divided the positivists into an ever-increasing number of sects.

Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today’s textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist ‘Republic of Statutes’, the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground.

--Dan Ernst

Residencies in Regimes of Normativity at Max Planck

[We are in receipt of a special edition of the newsletter of the Department of “Historical Regimes of Normativity” of the Max Planck Institute for Legal History and Legal Theory consisting of a call for scholarships and guest residencies for 2025/26.  DRE]

We are looking for outstanding PhD students, post-doctoral or senior researchers who are passionate about legal history and would like to join our department for three or six months.

What Are We Looking for?  Your project should relate to our department’s research agenda. We are especially interested in legal historical studies on:

• Key concepts of the School of Salamanca;
  

• Production of Knowledge of Normativity in the Iberian Worlds;
  

• The Papacy (and the Roman Curia) in the early modern and contemporary period.

When Can You Come? Start your research stay on 1 April 2025, 1 July 2025, 1 October 2025, or 5 January 2026.

When is the Deadline? Submit your application by 30 August 2024 via our online application system. We will let you know our decision in October.

What Do You Need to Apply? (1) Research Proposal: Up to 2,500 words explaining how your project fits with our research; (2) References: Contact details of two scholars who can provide references (if needed); and (3) Publications: PDFs of three relevant publications from the last five years.

Please note: Once you get the scholarship, you cannot change the start date or the month.

More information here.

Batlan on Antisemitism and the Displaced Persons Act

Felice Batlan, Chicago-Kent College of Law, has posted The 1948 Displaced Persons Act and Home-Grown Antisemitism:

This Article examines the 1948 Displaced Persons Act which provided for the ability of certain European refugees to immigrate to the United States following World War II. The 1948 Act discriminated against Jewish survivors of the Holocaust and imprinted Nazi racial laws and ideology upon U.S. law. Moreover, in debates over passage of such a law, a vast amount of overt antisemitism emerged, generated by politicians and ordinary citizens, which went well beyond the question of the admission of refugees to the United States. By examining the complex and transnational events leading up to the 1948 Displaced Persons Act, and drawing upon underutilized archival material, this Article helps to uncover and explain antisemitism in the immediate post-war period. This analysis has substantial implications for how we think about the history of antisemitism and its relationship to law in the United States.

--Dan Ernst

Ward's "Reformation of the Constitution"

Ian Ward, Newcastle University, has published The Reformation of the Constitution: Law, Culture and Conflict in Jacobean England (Hart/Bloomsbury):

This book revisits one of the defining judicial engagements in English legal history.

It provides a fresh account of the years 1606 to 1616 which witnessed a series of increasingly volatile confrontations between, on the one side, King James I and his Attorney-General, Sir Francis Bacon, and on the other, Sir Edward Coke, successively Chief Justice of Common Pleas and Lord Chief Justice.

At the heart of the dispute were differing opinions regarding the nature of kingship and the reach of prerogative in reformation England. Appreciating the longer context, in the summer of 1616 King James appealed for a reformation of law and constitution to complement the reformation of his Church.

Later historians would discern in these debates the seeding of a century of revolution, followed by another four centuries of reform. This book ventures the further thought that the arguments which echoed around Westminster Hall in the first years of the seventeenth century have lost little of their resonance half a millennium on. Breaks with Rome are little easier to "get done," the margins of executive governance little easier to draw.

If lawyers in common-law countries have an origin story for the Rule of Law, it is the very controversy Ward relates in the revealing context of the English Reformation.

–Dan Ernst

Hamilton, "A Widow's Vengeance after the Wars of Religion"

A belated notice that Oxford University Press has published A Widow's Vengeance after the Wars of Religion (2023), by Tom Hamilton (Durham University). A description from the Press:

Paris, 1599. At the end of the French Wars of Religion, the widow Renée Chevalier instigated the prosecution of the military captain Mathurin Delacanche, who had committed multiple acts of rape, homicide, and theft against the villagers who lived around her château near the cathedral city of Sens. But how could Chevalier win her case when King Henri IV's Edict of Nantes ordered that the recent troubles should be forgotten as 'things that had never been'?

A Widow's Vengeance after the Wars of Religion is a dramatic account of the impact of the troubles on daily life. Based on neglected archival sources and an exceptional criminal trial, it recovers the experiences of women, peasants, and foot soldiers, who are marginalized in most historical studies.

Tom Hamilton shows how this trial contributed to a wider struggle for justice and an end to violence in postwar France. People throughout the society of the Old Regime did not consider rape and pillage as inevitable consequences of war, and denounced soldiers' illicit violence when they were given the chance. As a result, the early modern laws of war need to be understood not only as the idealistic invention of great legal thinkers, but also as a practical framework that enabled magistrates to do justice for plaintiffs and witnesses, like Chevalier and the villagers who lived under her protection.

More information is available here. An interview with the author is available here, at New Books Network.

-- Karen Tani