CFP: Firearms Law Works-in-Progress Conference

 [We have the following CFP.  DRE]

Firearms Law Works-in-Progress Conference 2025, June 5-6, 2025, Laramie, WY

The University of Wyoming Firearms Research Center and the Duke Center for Firearms Law invite applications to participate in the seventh annual Firearms Law Works-in-Progress Conference. The conference will be held at the University of Wyoming College of Law in Laramie, Wyoming, on June 5 & 6, 2025. We ask all those interested in presenting a paper at the conference to submit an abstract by February 17, 2025.

At the Firearms WIP Conference, scholars and practitioners present and discuss works-in-progress related to firearms law and policy broadly defined, including Second Amendment history and doctrine, federal and state gun regulation, and the intersection between firearms law and other areas of law. The Firearms WIP Conference is the only legal works-in-progress event specifically focused on firearms law and policy. Summaries of past conferences, including paper titles and attendees, are available here: 2019, 2020, 2021, 2022, 2023, and 2024.

Conference sessions are lively discussions among authors, discussants, and participants. Each accepted paper is assigned to a panel of three to four scholars with a moderator who will summarize the papers and then lead a discussion. Sessions run from Thursday afternoon through Friday afternoon. There will be a casual dinner and social event Thursday evening following the afternoon session. All conference participants are expected to read the papers in advance and to attend the entire conference.

We accept papers on a wide array of topics related to firearms, including from scholars who are new to the field and interested in exploring the interaction between firearms law and other disciplines. Although participation at the conference is by invitation only, we welcome paper proposals from scholars and practitioners all over the world. Please feel free to share this call for submissions widely.

Titles and abstracts of papers should be submitted electronically to frc@uwyo.edu no later than February 17, 2025. Abstracts should be no longer than one page, and should be submitted as a PDF file saved under the file name “[last name, first name] – [paper title].” Please use the subject line “WIP Paper Submission” in your email.
Authors will be informed whether their paper has been accepted no later than March 10, 2025.

Workshop versions of accepted papers will be due in mid-May, so that they can be circulated to moderators and other conference participants in advance of the conference.

We expect that participants’ home institutions will cover travel expenses to the extent possible. However, the Wyoming FRC and Duke CFL are able to cover some costs of lodging and travel expenses for authors who would not otherwise be able to attend. This support is intended to encourage submissions from junior faculty, especially those who are new to the field.

Kexel Chabot on Originialism and Trump v. United States

Christine Kexel Chabot, Marquette University Law School, has posted Trump v. United States and the Half-Originalist Presidency, which is forthcoming in the University of Michigan Journal of Law Reform:

The Court's recent decision in Trump v. United States has been criticized for its ahistorical approach to presidential immunity. This essay offers the first account of the historical mismatch between the Trump Court's decision to immunize presidential removal power and Founding-era conceptions of the Presidency. Unlike the presumptive immunity that the Court recognized for most other official presidential acts, the immunity afforded for presidential removal power is absolute. The Court ruled that the President's "unrestricted power of removal" can never be regulated by Congress or considered as evidence of wrongdoing, even when the President threatens removal in order to effectuate blatantly unlawful ends. The Court's approach creates a far more powerful Presidency than was ever recognized by the Founding generation. The text of Article II authorized the President "to execute" the law, not to violate it, and it required Presidents to "take care" that the law be faithfully executed. The Court's decision to immunize removal also conflicts with Founding era understandings and laws in which Congress restricted the President's removal power.

--Dan Ernst

Glickman on the Memory of Reconstruction in the Civil Rights Era

Lawrence B. Glickman, Cornell University, has published, open-access, “The Dark and Sad Days of Reconstruction”: The Politics of Memory in the Civil Rights Era in Modern American History:

This article examines how and why many prominent white supporters of the civil rights movement either ignored or condemned the model of the Reconstruction era. Presidents Kennedy and Johnson, for example, did not publicly mention Reconstruction as part of their efforts to promote civil rights, and in 1957, Hubert Humphrey, the pro–civil rights senator from Minnesota, spoke of “the dark and sad days of Reconstruction.” In contrast, as the article shows, most Black civil rights activists embraced the memory of Reconstruction. At the same time, segregationists frequently referred to and commemorated, albeit negatively, Reconstruction. Indeed, they popularized the idea that the modern civil rights movement was a “Second Reconstruction.” Through an examination of political statements, government documents, opinion columnists, historians, letters to the editor, and other sources, the article traces both the silence and condemnation of Reconstruction on the part of many civil rights supporters.

--Dan Ernst

CLH 12:2

Comparative Legal History 12:2 (2024) has been published.  Here are the principal articles:

Why the rule of law? A historical perspective, by Fernanda Pirie (Open access).

Why do we expect law to bring about better and more just societies? Around the world, systems of accountability are weak and dictators find ways to avoid the constraints of both national and international laws. Yet we continue to call for better laws and for aggressors to be tried for war crimes. This article brings a historical approach to this puzzle, considering some of the earliest known laws, from Mesopotamia, Rome, the Hindu and Islamic worlds and China. Drawing analogies with anthropological analysis of ritual, I suggest that such laws may portray an imagined world, one that people feel it worth invoking in the face of threats to the social order, uncontrolled aggression and the abuse of power. The paradox is that we believe in the rule of law and that we insist it should constrain power in practical and effective ways to be worth creating at all.

Revisiting the history of colonialism and international law in Indonesia: the legacies of G. J. Resink, by Eka An Aqimuddin

Power is exercised through truth claims, as seen in the case of Dutch colonialism in Indonesia. Gertrudes Johan Resink, a scholar of international law, successfully exposed the history of Dutch colonialism in Indonesia and demonstrated the pre-existence of international law before European expansion by considering the role of international law in Indonesia’s history. This article examines Resink’s legacy and the potential for elaborating further on his ideas in Indonesia’s history of international law. Although this article deals with a specific context, the Indonesian experience can contribute to the history and development of international law in the region more generally.

Moral rights and the protection of classics: A study of §51 in the Swedish Copyright Act of 1960, by Martin Fredriksson (Open access.)

This article examines §51 of the Swedish Copyright Act 1960, generally known as ‘the protection of classics’ in relation to international discourses on copyright in the mid-twentieth century. The provision in §51 protects works of cultural significance by deceased authors and artists against reproductions that are considered offensive, even if the works are in the public domain. This article analyses the arguments and motives that led Swedish legislators to draft §51 and contextualises them internationally. The origin of the protection of classics is rooted in the notion of a paying public domain, a provision which existed in various countries in the twentieth century that allowed the state to collect royalties for works in the public domain. In Swedish copyright law this economic right was reinterpreted as a moral right to protect classical works. Unlike conventional moral rights, this right aimed at protecting the interests of the public rather than the integrity of the author. The protection of classics, and to an extent the notion of a paying public domain, can be seen not so much as a regulation of intellectual property but more as a statement about cultural heritage. By showing how the protection of classics operated within the international discourse on copyright law of the twentieth century, this article explores the relation between moral rights, a paying public domain and cultural heritage.

Book reviews

--Dan Ernst.  H/t: ESCLH

Helsinki Legal History Series

The lineup in the Helsinki Legal History Series for Spring 2025 has been announced.  “Hosted by the University of Helsinki and organized by the Eurostorie and Cocolaw research units, the seminars are open to everyone. You can join us in person or online via zoom.”

21.1. | 15:00–16:30.  José Carlos Fernández, Harvard University, “One Lima or Many? Associativity, Mutual Aid, and Legal Practices in Andean, Asian, and Afrodescendant Neighborhoods of Lima, Peru (1880s–1930s)”

25.2. | 15:00–16:30. Susanne Paas, Max Planck Institute

25.3. | 15:00–16:30.  Claire Priest, Yale Law School

29.4. | 15:00–16:30.  Bernadette Atuahene, USC Gould School of Law

22.5. | 15:00–16:30.  Felice Batlan, Chicago-Kent College of Law

--Dan Ernst

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

The Docket 7:3-4

A double issue (7:3-4) of The Docket, the on-line companion to Law and History Review, has been posted:   

Gautham Rao: Dispatches from a Challenging Year

Tim Thornton: The Isle of Man, Channel Islands and Statutes of the English Parliament to 1640

Lawrence Goldstone: Arms and the Common Man: Standing Army, Militia, and the Second Amendment in the United States.

Ryan Reft: United States v. Nixon

Allen Boyer reviews Tate, Power and Justice in Medieval England and Eldridge, Law and the Medieval Village Community

Jerry Edwards reviews Barbas, Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan

--Dan Ernst

Reconstruction and the Constitution

The National Constitution Center and the Federal Judicial Center have announced a stellar Town Hall, to be held in person and online, Reconstruction and the Constitution: A Historical Perspective, Monday, February 10, 9:45–11:45 a.m. ET.  “Pamela Brandwein of the University of Michigan, Sherrilyn Ifill of Howard University School of Law, and Ilan Wurman of the University of Minnesota Law School will explore the 14th Amendment and the history of Reconstruction. Martha Jones of Johns Hopkins University, Kate Masur of Northwestern University, and Dylan Penningroth of the University of California, Berkeley, will delve into the broader legal and social effects of Reconstruction beyond the amendments. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.” 

--Dan Ernst

Carol Weiss King (1895-1952)

[The second of the two essays in the exam for my legal history course is biographical.  (If you'd like to read prior ones, start here.)  This year, Carol Weiss King seemed like the obvious choice.  DRE]

Carol Weiss King (CWK) was born on August 24, 1895, the youngest child of a well-to-do Jewish lawyer and his wealthy wife in New York City.  Her father, Samuel William Weiss (b. 1852) was the son of William Weiss (b. 1819), who had been born in Austria in 1819, emigrated to the United States in 1848, and become a grocer in a small town in northeastern Pennsylvania.  Two of CWK’s brothers graduated from the Columbia Law School.  One, Louis, was Editor in Chief of the Columbia Law Review and worked at a corporate “law factory” before joining a successor to his father’s law firm.  After World War II, he reorganized it as the firm now known as Paul, Weiss.

CWK’s father died in 1910, but his family had sufficient wealth to support a comfortable lifestyle.  Carol attended Barnard College, Columbia’s “sister school,” graduating in 1916.  She volunteered with a nonprofit that drafted progressive labor legislation and, after the United States’ entry into World War I, with a precursor to the American Civil Liberties Union that defended draft resistors and other antiwar radicals.  Because the Columbia Law School, like Harvard and Yale, did not yet admit women, she enrolled in the NYU Law School in the fall of 1917, when it was a night school largely attended by immigrants and their children.  

That same fall, she married Gordon King, a tall, slim, fashionably attired Harvard College graduate who traced his lineage back to the American Revolution.  “Seldom had more opposites mated,” an acquaintance said.  Gordon lunched at the Harvard Club; Carol joined picket lines.  Gordon dressed in black tie and dinner jacket every evening; Carol only experimented with short, “flapper” skirts before settling on being “inconspicuously badly dressed.”  Journalists described her as “a short, stocky woman of great energy,” with thick, horn-rimmed glasses and “unruly dark hair.”

The couple lived in a row house in Manhattan that Carol’s mother bought for them as Gordon pursued a somewhat indifferent career as a writer.  The Weiss family’s housekeeper also lived with and worked for them.  Gordon remained a brilliant conversationalist, but, as his brother recalled, he grew restless, depressed, and embarrassed at not earning his keep.  To lift his spirits, he traveled to France without Carol; CWK’s biographer, who personally knew her subject, hinted that he had affairs.  “Carol learned to keep her life with Gordon in a separate compartment,” the biographer wrote.   If something he did hurt her, “she put it into that compartment and then moved back into other parts of her life.”  Presumably the couple practiced birth control, as a policeman once admonished them for a public display of affection on a park bench, but their only child, a son, was not born until New Year’s Eve, 1925.  The housekeeper and Gordon looked after him during the day.  The child was spending the summer with his Weiss relations in Maine when Gordon died suddenly in July 1930.  CWK never remarried, and she gave her honorific as “Mrs.” when testifying before Congress.

CWK graduated from NYU Law in 1920 and, thanks to her brother, got the temporary clerkship she needed to satisfy a requirement of the New York bar by working for Max Lowenthal.  Lowenthal was a Harvard Law graduate in Felix Frankfurter’s orbit who became independently wealthy in the corporate reorganization practice.  Lowenthal was close to the great progressive federal trial judge Julian Mack, and he appointed her receiver in several bankruptcies of small businesses.  

But CWK had no desire to develop a commercial practice.  She had always been something of a rebel: in August 1917, she telegrammed Gordon, “Hurray for the Russian Revolution.  I will marry you.”  The Palmer Raids of 1919-20, a roundup and deportation of leftist aliens directed by the Department of Justice, radicalized her.  She asked three lawyers noted for their civil liberties cases and loosely associated in an expense-sharing arrangement, to hire her.  They declined.  “We’re not making a living for ourselves, so we couldn’t possibly afford to hire you,” one explained, but he suggested that she rent a room in their suite and open her own office.  CWK did and took on the clients that even her suitemates neglected, the foreign born facing deportation.  Immigration, her biographer noted, was an underdeveloped field of law, waiting for “a young ambitious lawyer with a creative turn of mind and a need to be needed.”

At first, CWK appeared only in deportation hearings presided over by immigration officials on Ellis Island, with occasional detours to federal district court to file writs of habeas corpus.  Then a client came to her with a civil case to be tried before a jury.  She prepared painstakingly but lost.  Devastated, she did not return to her office for a week.  For years thereafter, she limited her role on nonimmigration matters to preparing cases, writing briefs, and plotting legal strategy.  She left courtroom argument to others, whom she thought would better serve her clients.

CWK took over from one of her suitemates the editing of a newsletter to which like-minded lawyers contributed articles on their unpublished cases and developments in immigration, labor, and civil liberties law.  From 1924 through 1945, the newsletter helped lawyers on the left learn of each other and their activities.

Some of the best-known cases were brought by the International Labor Defense (ILD), the legal arm of the Communist Party (CP).  These included two that reached the Supreme Court: Powell v. Alabama (1932), the first appeal involving the rape convictions of a group of young African American men known as the Scottsboro Boys; and Herndon v. Lowry (1937), in which Angelo Herndon, a Black CP organizer, was sentenced to 18 to 20 years on a chain gang for distributing Communist pamphlets in Atlanta.  Asked at the last minute to prepare Herndon’s appeal to the state supreme court, CWK learned that an ILD lawyer had taken the only copy of the record with him on a vacation to Atlantic City.  She immediately found someone to drive her there (as she had never learned to drive), checked the “Jewish” hotels until she found where the lawyer was staying, returned to Manhattan, wrote the brief, and mailed it off by 4:30 the next morning.  

For the ILD, as well, she testified in 1935 against a bill to deport Fascists and Communists, that was intended, as a sponsor put it, to “develop the homogeneity” and save the jobs “of our people.”  CWK protested that Americans were part of “a race of aliens,” because the ancestors of all of them had come from abroad.  She urged Congress not to “attempt to solve the economic problem by attacking the aliens,” and she warned that the bill was “the opening wedge” of an attack on American citizens.

In 1937, as a representative of another CP affiliate, the American Committee for the Protection of the Foreign Born (ACPFB), CWK testified against a bill that would forbid the naturalization of any alien who “believes in any form of government other than that of the United States.”  For the ACPFB, as well, in 1938 she successfully defended Harry Bridges, the leader of the West Coast longshoremen union, in a deportation proceeding over his alleged membership in the CP. Ten years later, Attorney General Tom Clark would add the ACPFB to his list of subversive organizations.

During World War II, the deportation of Communists largely halted, because the Atlantic Ocean was unsafe and the Soviet Union was an American ally, but it started up again with the Cold War.  The passage of the Administrative Procedure Act (APA) raised the possibility of a dramatic overhaul of deportation hearings.  At the Immigration and Naturalization Service (INS), located in the Department of Justice since 1940, an official might be a “presiding inspector,” overseeing a hearing, one day and an “examining inspector,” prosecuting the government’s case, the next.  The APA required that an agency organize its trial examiners into a separate division and protect their tenure and salaries.  Attorney General Clark contended that the APA did not apply to deportation proceedings, however, a position CWK identified as part of his pattern of “illegal, improper and inhuman conduct . . . in dealing with the problems of the foreign born” when she opposed Clark’s nomination to the U.S. Supreme Court in 1949.  In February 1950, the Court, in a case brought by other lawyers on behalf of a Chinese seafarer who had overstayed his shore leave, ruled that the APA did apply to deportation hearings and required the INS to segregate “the duties of prosecutor and judge.”  CWK exulted: 14,000 hearings would have to be retried, and pending deportations were suspended.  Seven months later, however, Congress reversed the decision with a rider to an appropriations bill, and the old practice continued.

CWK helped found the National Lawyers Guild (NLG) in 1936, testified before Congress on behalf of its immigration committee, and remained a member long after prominent liberals, including Thurman Arnold, Jerome Frank, and Robert H. Jackson, resigned.  She always denied being a member of the CP, and her brother-in-law believed her: “For whatever she may have thought of the economic ideals of the Marxists, one can say with certainty that she hated governmental tyranny wherever it occurred, whether in Russia or any other country, including her own.”  Even so, a lawyer who was a CP member claimed that she “knew everything that went on in the Party because people totally trusted her and needed her.”  

In February 1951, the Saturday Evening Post profiled CWK under the headline, “The Communist’s Dearest Friend.”  Because the CP was staffed by hundreds of the foreign born who entered the country illegally or could never become citizens because of their Communist activities, it needed a network of lawyers to keep it in business, the profile claimed.  Not only did CWK have “a major hand” in setting up that network; she was “the core around which it revolves.”  The stigma resulting from this and similar mentions in the press took an emotional toll.  When a liberal law professor who had worked with her on the Herndon case ran into her in a dingy cafeteria, she greeted him with the question, “Well, have you become a bastard, too?”

In the summer of 1951, CWK told a judge she was too ill to serve as court-appointed counsel in a criminal prosecution of CP leaders.  In fact, after years of heavy smoking, she was dying of cancer.  Hospitalized for ten days in October 1951, she argued before the U.S. Supreme Court on November 26 in a dispute over the eligibility for bail of aliens awaiting deportation.  She seemed exhausted in what was her first appearance before the Court; even her friends thought she was shrill and dwelt too much on her client rather than the law.  Concerned that the walk from the Court to Union Station might be too much for her, the INS lawyers, who considered one of the nation’s great experts on immigration law, gave her a ride.  In December she twice underwent surgery.  On January 22, 1952, she died.  She never knew the outcome of her lone Supreme Court case, a 5-4 defeat for her side.

The New York Times numbered her immigration cases in the thousands.  “Sailors from Pakistan, longshoremen from Yugoslavia, day laborers from Italy, students from Africa, waiters, bakers, furriers” came to her, said her brother-in-law.  The red-baiting columnist Westbrook Pegler sneered that she was “as red as Stalin himself,” but the progressive journalist I. F. Stone was more thoughtful: “An ailing woman, she fought almost hopeless battles in the musty obscurity of law courts with lovably cynical good cheer and incredible stamina.”  “She did what she wanted to do,” her brother-in-law concluded.  “She never lowered her colors.  She was true to herself.”  

--Dan Ernst.  Sources after the jump.

CFP: Harvard/Yale/Stanford Junior Faculty Forum

[We have the following CFP.  DRE.]

Harvard/Stanford/Yale Junior Faculty Forum, June 2-3, 2025, Harvard Law School

Harvard, Stanford, and Yale Law Schools are soliciting submissions for the 2025 Harvard/Stanford/Yale Junior Faculty Forum, to be held at Harvard Law School on June 2-3, 2025. Twelve to twenty junior scholars (with one to seven years in teaching) will be chosen, through a double-blind selection process, to present their work at the Forum. A senior scholar will comment on each paper. The audience will include the participating junior faculty, senior faculty from the host institutions, and invited guests. The goal of the Forum is to promote in-depth discussion about particular papers and more general reflections on broader methodological issues, as well as to foster a stronger sense of community among American legal scholars, particularly by strengthening ties between new and veteran professors.

Topics: Each year the Forum invites submissions on selected topics in public and private law, legal theory, and law and humanities topics, alternating loosely between public law and humanities subjects in one year, and private law and dispute resolution in the next. For the upcoming 2025 meeting, the topics will cover these areas of the law: Administrative Law; Antidiscrimination Law and Theory; Constitutional Law—theoretical foundations; Constitutional Law—historical foundations; Criminal Law; Critical Legal Studies; Environmental Law; Family Law; Jurisprudence and Philosophy; Law and Humanities; Legislation and Statutory Interpretation; Public International Law; Workplace Law and Social Welfare Policy.

A jury of accomplished scholars will choose the papers to be presented. There is no publication commitment. Harvard Law School will pay presenters’ travel expenses, though international flights may be only partially reimbursed.

Qualifications: Authors who teach law in the U.S. in a tenured or tenure-track position as of the submission deadline (February 28, 2025) and have not been teaching at either of those ranks for a total of more than seven years are eligible to submit their work. American citizens or permanent residents teaching abroad are also eligible provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years and that they earned their last degree after 2015. We accept jointly authored submissions, but each of the coauthors must be individually eligible to participate in the Forum. Papers that will be published prior to the Forum are not eligible. There is no limit on the number of submissions by any individual author. Faculty from Harvard, Stanford, and Yale Law Schools are not eligible.

Paper Submission Procedure: Electronic submissions should be sent to Rebecca Tushnet at rtushnet@law.harvard.edu with the subject line “Junior Faculty Forum.” The deadline for submissions is February 28, 2025. Remove all references to the author(s) in the paper. Please include in the text of the email your name, the title of your paper, your contact email and address through June 2025, and under which topic your paper falls. Each paper may only be considered under one topic. Any questions about the submission procedure should be directed to Rebecca Tushnet.

Further Information: Inquiries concerning the Forum should be sent to Christine Jolls (christine.jolls@yale.edu) or Yair Listokin (yair.listokin@yale.edu) at Yale Law School, Rebecca Tushnet (rtushnet@law.harvard.edu) at Harvard Law School, or Norman Spaulding (nspaulding@stanford.law.edu) at Stanford Law School.

Law and Politics at the Bureau of Chemistry

[For the exam in my legal history class, I write an essay about some administrative regime that we did not cover but that developed in ways analogous to those that we did.  (I think of it as the historical equivalent of an “issue-spotter” hypothetical in a doctrinal law course.)  This year I chose the Bureau of Chemistry in the U.S. Department of Agriculture, the precursor to the Food and Drug Administration.  I was surprised and pleased to see how closely intradepartmental strife between Secretary James Wilson and Bureau Chief James Wiley mirrored the roughly contemporaneous conflict between Secretary Charles Nagel and Bureau of Immigration Chief Daniel Keefe at the Department of Commerce and Labor and anticipated that between Agriculture Secretary Henry A. Wallace and George Peek, the first head of the Agricultural Adjustment Administration, during the New Deal.  Parallels to today also surprised me.  Wilson's use of his solicitor to discipline Wiley provides a not unambiguously comforting perspective on recent calls for government lawyers to serve as guardrails in the second Trump administration.  Wiley's blast at the “minions of the food-dopers” might have come from Robert F. Kennedy, Jr., had he been around at the time.  Congressional insistence on criminal prosecution in the federal courts anticipates Jarkesy.  DRE]

Harvey W. Wiley (LC)

Until the Pure Food and Drug Act (PFDA) passed in June 1906, some 200 bills were introduced in Congress without success.  The force that broke the stalemate emanated from deep within the U.S. Department of Agriculture (USDA).  At its founding in 1862, the USDA acquired the Chemical Division of the U.S. Patent Office.  Since 1883, the division, later renamed the Bureau of Chemistry, had been headed by Harvey Washington Wiley.  Born in a log house in southern Indiana, Wiley graduated from the state’s first liberal arts college, earned a medical degree, studied chemistry in Germany, and started the first chemical laboratory at Purdue University.  He probably shocked staid USDA officials when he turned up in Washington. “Tall and massive of statute, with a big, firm head poised above a pair of titanic shoulders,” a coworker wrote, Wiley’s hair was always out of place, giving him “a somewhat uncouth appearance.”  His favorite attire was an ill-fitting, rarely laundered suit.  Many found him charming, gregarious, and lovably eccentric, but he was also “a man with an overwhelming sense of mission,” “a lion among fighters.”  

Wiley turned the Bureau of Chemistry into an efficient experimental research laboratory and published its findings in a series of reports.  Bulletin 13, published over sixteen years in ten parts and amounting to over 1400 pages, covered adulteration in a wide range of food products.  Other reports publicized Wiley’s “Poison Squad,” twelve USDA employees who volunteered to imbibe food preservatives to test their effect on health.  He lectured across the country and, in the process, assembled the nation’s first pure food coalition, including state boards of chemistry, doctors, women’s groups, muckraking journalists, large food processors (which expected a pure food law to end the competitive advantage of adulterating rivals), and Members of Congress.  “Doctor Wiley’s name was a household word, and he definitely enjoyed his fame,” a coworker recalled.  “His arrival in any city was always the occasion of newspaper items, including quotable and usually humorous remarks by the doctor.”

Two publications–Upton Sinclair’s novel, The Jungle, on the horrifying conditions of Chicago’s stockyards, and a magazine series devoted to patent medicine–provided the final push for both the PFDA and the Meat Inspection Act of 1906.  President Theodore Roosevelt (TR) claimed credit, but it was Wiley who became known as the “Father of the Pure Food Law.”  Congress continued to favor Wiley: between 1906 and 1912, the Bureau of Chemistry’s appropriations jumped from $155,000 to $963,780, and it acquired its own building.

Yet the Bureau and its Chief were always formally subordinated to the Secretary of Agriculture, who, under the PFDA, alone approved prosecutions for adulterating or misbranding goods.  Since 1897 the Secretary had been James Wilson, who had been born in Scotland but ended up in Iowa, where he was a farmer, agriculture professor and politician.  Journalists often referred to him as a “canny Scot” for managing to retain the Secretaryship under three Republicans presidents, but he was seventy-one years old when the PDFA passed.  A historian thought that Wilson governed most of USDA’s nine bureaus “with a soft hand,” convinced that their chiefs were “practical men, assisting him in helping farmers increase production, discovering new markets, and expanding old ones.”

He felt otherwise about the Bureau of Chemistry and its famous, headstrong Chief Chemist.  Growers who used sulfur dioxide in drying fruits, canners who sweetened corn with saccharin, and millers who used chemicals to bleach flour complained to Wilson that Wiley’s war on additives hurt American agriculture, but when Wilson asked Wiley to relent, the chemist adamantly refused.  Wilson came to regard the chemist as “a mischief-making, low-bred fellow” and “a consummate hypocrite.”  Wiley decided that Wilson “had the greatest capacity of any person I ever knew to take the wrong side of public questions, especially those relating to health.”

To rein in Wiley, Wilson turned to his solicitor, George P. McCabe.  McCabe had been a high-school principal in Utah before landing a clerical position in Washington at USDA.  “Young, capable, ambitious and aggressive,” he rose through the civil service ranks while studying law at night at what is now the George Washington University Law School.  After he graduated from GW, Wilson appointed him to the newly created post of Solicitor and relied on his advice on nonlegal as well as legal matters.  A coworker recalled that McCabe “was eager to exercise all the power the Secretary would confer upon him” and used it in “what he believed was the best interest of the Secretary.”  

The intradepartmental campaign to contain Wiley commenced in January 1907, when Wilson summoned Wiley to his office for a conference with McCabe and others on whether “rectified” whiskey--that is, newly made whiskey flavored to taste as if it had been aged in barrels--could be labeled “whiskey.”  McCabe called Wiley’s position that it could not “absurd.”  To be misbranded under the PDFA, McCabe argued, a product’s label must contain a statement that was “false or misleading in any particular.”  According to “the prevailing custom of the trade,” McCabe said, “whiskey” was “any alcoholic beverage made from grain, properly colored and flavored,” and that included rectified whiskey.  After Wilson sided with McCabe, Wiley left, at once asked TR’s secretary to lunch, and told him what had happened.  TR promptly invited Wiley to the White House.  The chemist arrived with the equipment needed to rectify whiskey and spent the next two hours doing so for the president.  At last, TR said, “Dr. Wiley, I have heard nothing but whiskey for the last three weeks, and you are the first person who has ever given me a single idea I can comprehend.”  TR referred the matter to his Attorney General, who on April 1907 backed Wiley.  When a manufacturer complained, TR replied, “You don’t understand, Sir, that Dr. Wiley has the grandest political machine in the country.”

Two weeks after the Attorney General’s ruling, Wilson created a three-person Board of Food and Drug Inspection (BFDI).  Wiley was its chair, but McCabe was its second member, and the third was Frederick Dunlap, a young Harvard- and Yale-educated chemist hired from the University of Michigan (and immediately ostracized by Wiley’s loyal staff).  The BFDI was unanimous in about a third of its cases, but in the rest, McCabe and Dunlap outvoted Wiley.  McCabe rejected some prosecutions as beyond the PFDA, others for lack of an adequate evidentiary record, and still others because he thought the violations trivial and would make USDA look ridiculous.  Wiley dismissed McCabe’s legal objections as so much red tape.  When told that a prosecution would be beyond the statute, Wiley replied, “We must read it into the law.”

Meanwhile, two other groups of manufacturers took their cases to TR, who convened a White House meeting.  The first speaker represented the manufacturers of ketchup (or, if you prefer, catsup) who mixed a preservative called benzoate of soda in with tomatoes.  TR asked Wiley for his opinion, and the chemist unhesitatingly declared benzoate hazardous to health.  TR then pounded the table and forbid the ketchup makers from using it.  Next up was a Republican congressman representing canners who used saccharin to sweetened their corn.  After his presentation, Wiley made a serious mistake.  Without waiting for TR to speak, he declared saccharin extremely injurious to health.  At once an enraged TR turned on him.  His doctor gave him saccharin every day, the president declared.  “Anybody who says saccharin is injurious to health is an idiot.”

Seizing this opportunity, the congressman suggested the appointment of a board to reconsider the issue.  TR directed Wilson to do so, and the “Remsen Board” was created in February 1908.  Named after its chair, a distinguished chemist at Johns Hopkins University, the board’s five members were all distinguished professors of chemistry, with far more impressive credentials than Wiley’s.  Formally, the Remsen Board’s job was “merely to give the Secretary the benefit of the disinterested and unbiased advice of eminent and expert chemists when a serious conflict of opinion should arise as to the deleteriousness of any particular article or substance added to food.”  In practice, Wilson followed the Board’s recommendation, including one approving the use of benzoate in ketchup, which Wiley denounced to his dying day.  

In 1910, McCabe got Congress to add the following provision to an appropriations act: “Hereafter the legal work of the Department of Agriculture will be performed under the supervision and direction of the Solicitor.”  Days later, Wilson issued General Order No. 140.  It directed Wiley’s chemists to send their findings directly to the Solicitor.  Only after the Solicitor determined that they constituted “a prima facie case” would he advise the Secretary to order BFDI to hold a hearing.  After the hearing ended, the BFDI’s report again went to McCabe, who made his recommendation to the Secretary.

Wiley howled that “the minions of the food-dopers were in control.”  McCabe scoffed that no prosecution Wiley sought would hold up in court.  At last, McCabe found what he thought was a way to oust the chemist.  It seems that Wiley had attempted to circumvent a civil service rule limiting pay to expert witnesses by hiring a chemist at an annual salary for only part of the year.  McCabe’s gambit backfired, however, when one of Wiley’s congressional allies called a hearing, and Wiley attacked “the whole damnable conspiracy” against him.  When letters backing Wiley deluged the White House, President William Howard Taft decided he could not remove the chemist and even hinted that he might give him a freer hand.  Little changed, however.  Wiley left USDA in February 1912 for a better paying job at Good Housekeeping magazine.  He outlasted McCabe, who had left a month earlier to try his luck as a lawyer out West.  Wilson remained Secretary until the Taft administration ended in March 1913.  

During this period the domestic enforcement of the PFDA took two forms, criminal prosecutions and condemnations.  We will consider only the former.  Those proceedings began when one of the Bureau of Chemistry’s inspectors collected a sample and sent it to one of its thirty-nine laboratories located across the country.  If its chemists concluded that the sample was adulterated or misbranded, their chief sent the results to Washington, where the sample might undergo another analysis.  If the BFDI and the Solicitor agreed that the sample violated the PFDA, the Secretary then notified the concerned parties that a hearing would be held at some convenient location.  According to a treatise writer, “The hearings are presided over by laymen, usually having no knowledge of orderly legal procedure, who are primarily interested in upholding the result of the examination already made by the Bureau of Chemistry.”  Only “questions of fact” were considered.  Respondents could appear in person or by attorney, or they could simply submit a brief.  Statements were not under oath, and the rules of evidence were not followed.  Although respondents could submit questions for the presiding officer to ask the Bureau’s chemists, cross-examination was not allowed.  A record was compiled for the Secretary, but, as the Supreme Court stated in United States v. Morgan (1911), an adverse finding did not bind a respondent.  The hearing was just the statutorily required precondition for the Secretary’s certification to the proper U.S. District Attorney that the respondent had violated the PFDA.  Upon receiving the certification and a copy of the chemists’ analysis, the district attorney had to seek an indictment without conducting his own examination.  The case then proceeded like any other federal criminal trial.  Defendants had a right to a jury, and the Bureau’s chemists usually appeared as witnesses.

In a paper written for Felix Frankfurter’s graduate seminar on administrative law and published in 1933, two lawyers claimed that the requirement that the Food and Drug Administration–as the enforcement staff of the Bureau of Chemistry was by then called–had to go to court had “undoubtedly hampered enforcement” and considered whether a commission taking “quasi-judicial action in the first instance, subject only to judicial review” might be preferable.  Yet, the draft of a new PFDA prepared that year at the request of Rexford Tugwell, FDR’s Assistant Secretary of Agriculture, retained the old procedure.  One of its drafters later explained that “a system of licensing controls, vested in an administration with broad quasi-judicial and quasi-legislative powers” was not “politically possible” because of the breadth of the discretion the new bill would confer on the FDA.  When the bill, which did not pass during the Hundred Days, was reintroduced in 1936, a congressman charged that its false advertising provision would give Tugwell “a whip lash not only over business, but over the press of this country.”  Rather than give Tugwell that power, another congressman said, Congress should entrust the regulation of advertising to the Federal Trade Commission, “with such men as Judge [Ewin] Davis.”

--Dan Ernst

Sources after the jump.

DLI Remembered and the Required Legal History Course

As an heir, through John Langbein when he taught at the University of Chicago, to the "Development of Legal Institutions" tradition in American Legal History, I was thrilled--really thrilled--by the publication of The Tradition of History at Harvard Law School, a note in the Harvard Law Review.  I may have some thoughts later, but I want to note its appearance now.  From the introduction:

This Note examines the available archival documents to recount the evolution of the DLI course and reflect on the issues that law schools would have to consider in adding a similar legal history requirement today. HLS’s experience with DLI demonstrates that schools may face two major challenges: unpopularity among students and difficulties in optimizing a required history class syllabus for law schools — especially if the goal of such a class is to help budding lawyers apply tests like Bruen’s. Furthermore, fundamental tensions between historical practice and a legal test like “history and tradition” would make it difficult for even a perfectly designed course to meet the goal of training students to apply the test.

--Dan Ernst

Weekend Roundup

• Binghamton University's notice of Nathanael Andrade's forthcoming Killing the Messiah: The Trial and Crucifixion of Jesus of Nazareth (Oxford University Press).
  

• The National Constitution Center will hold a Town Hall on the Evolution of the Presidential Pardon from Jefferson to Trump on Thursday, March 27, from 7:00 pm - 8:00 pm with Brian Kalt, Michigan State College of Law, and Jeffrey Toobin.  Jeffrey Rosen will moderate.
  

• 
  Lawbook Exchange's January 2025 catalogue of Scholarly Law & Legal History books, including the one pictured below right. 
  

• Two book events will be live at and streamed from the FDR Library: Roosevelt Sweeps Nation: FDR's 1936 Landslide and the Triumph of the Liberal Ideal with David Pietrusza on January 15, 2025, at  2pm ET, and Dear Miss Perkins: A Story of Frances Perkins's Efforts to Aid Refugees from Nazi Germany with Rebecca Brenner Graham on January 27, 2025, at 2pm ET.   
  

• CFP: "The Yale Whitney Humanities Center Working Group 'Cultural Foundations of Law and Public Administration' plans on publishing an edited volume on Cultures of Good Legislation/Good Administration that will address different cultural contexts (West/Global South/Asia). A hybrid symposium at Yale is also intended to foster the dialogue between the contributors."  H-Law.

• ICYMI, American Expansionist Edition: Why Thomas Jefferson Faced Opposition to the Louisiana Purchase (History Channel).  How the U.S. could in fact make Canada an American territory (The Conversation).

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

Zhang on Fair Notice

Alexander Zhang, the Legal History Fellow at the Yale Law School, has posted Fair Notice as a Sociopolitical Choice, which is forthcoming in the Duke Law Journal.

This Article reframes deadlocked debate about “fair notice” as a justification for statutory interpretation methods by developing a historical account of a crucial, overlooked dimension: legislatures’ and laypeople’s value judgments about notice. On one side of the debate are idealists who contend, on due process grounds, that judges should embrace interpretive methods and theories based on how well they promote fair notice. On the other side are realists who counter, on empirical grounds, that perfect notice is impossible. Each side continues to talk past the other because we lack a fleshed-out framework for evaluating when the fair-notice basis of a given interpretive method or theory is sufficient or superior to that of others. In the vast terrain of this debate beyond the contexts of the rule of lenity and the void-for-vagueness doctrine, the stalemate has left critical questions undertheorized: Given notice’s real-world costs and limits, how much notice is “enough” for judges to promote through statutory interpretation, and why should judges promote more than enough, less than enough, or just enough notice?
 
The Article uncovers two features of notice with the goal of developing a vocabulary that can be used to resolve the impasse on normative grounds. First, legislatures and laypeople are always in the background making choices about what constitutes “good” or “fair” notice, and, most importantly, they influence how different forms and costs of notice are distributed across different segments of society. Second, these choices have produced deep societal inequalities of notice. Two major transformations in the history of fair notice illuminate these features. First, legislatures made notice fictional by prioritizing a distribution of notice that was “efficient” rather than audience neutral, redistributive, or notice maximizing. Second, and in tension with the conventional idea that laypeople are inherently notice-phobic, laypeople once developed a mass political culture—eventually abandoned by the early twentieth century—that involved reading not just statutes but also legislative history.
 
From this history, the Article ultimately argues that because nonjudicial choices pertaining to notice are always in the backdrop of judicial invocations of fair notice in statutory interpretation, judges who want to embrace fair notice need to have a theory of whether and how to account for these choices—especially choices influencing the distribution of notice across society. While this Article leaves for another time the task of resolving how exactly judges should account for these choices, it preliminarily sketches two potential approaches. It first traces out a hands off approach that is guided by judicial restraint and that reflects the choices of legislatures (and the choices of the people vis-à-vis legislatures). Second, and in the alternative, it traces out a law-and-political-economy approach to imagining a world of “enough” notice.
 
Finally, the Article explains how the history of notice offers two interventions for the methodology of evaluating fair notice. First, the history can help scholars better determine what constitutes “good” or “fair” notice by revealing the range of possibilities—and limits—of notice. Second, the history demonstrates how fair notice has been contingent on changing historical circumstances, which calls into question the long-term stability of fair notice in statutory interpretation theory.

--Dan Ernst

2025-2026 Berger-Howe Fellowship

[We are moving up this previously posted announcement because the deadline of January 24 will soon be upon us. DRE.]

Harvard Law School invites applications for the Raoul Berger-Mark De Wolfe Howe Legal History Fellowship for the academic year 2025-2026.  Eligible applicants include those who have a first law degree, who have completed the required coursework for a doctorate, or who have recently been awarded a doctoral degree.  A J.D. degree is preferred, but not required.

The purpose of the fellowship, which is awarded annually, is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined, as the fellow seeks to begin or establish an academic career in legal history.  There are no limitations as to geographical area or time period. Previous fellows have gone on to pursue faculty appointments or other fellowships in American universities, primarily on law faculties.

The fellow is expected to spend the majority of their time on their own research. The fellow will also help coordinate the Harvard Law School Legal History Workshop.  The term of the fellowship is July 1 through June 30, and the fellow will be required to be in residence at the law school during the academic year (September through May).

Applicants for the fellowship for 2025-2026 should submit their applications and supporting  materials electronically to Professor Bruce H. Mann.

Each interested applicant should submit:

• a detailed (five pages maximum) description of a proposed project,
  

• a writing sample,
  

• a comprehensive résumé or curriculum vitae that gives the applicant’s educational background, publications, works in progress, and other relevant experience,
  

• two academic letters of reference, which may be submitted electronically by the recommenders to Professor Mann at the above email address, and
  

• copies of official transcripts of all academic work done at the graduate level, which may be sent electronically or by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138.

The deadline for applications is January 24, 2025, and announcement of the award will be made by February 28, 2025.

The fellow selected will receive a stipend of $60,000.  [Former Berger-Howe Fellows here.]

Baldy Center Mid-Career and Senior Fellowships in Legal Studies

[We have the following announcement.  DRE]

The Baldy Center for Law and Social Policy at the University at Buffalo School of Law plans to award Senior or Mid-career fellowships to scholars pursuing important topics in law, legal institutions, and social policy. Post-Doctoral fellowships are not currently available for 2025-2026 but should that change the application portal below will be updated. Applications for mid-career or senior fellowships are invited from mid-career and senior scholars from law, the humanities, and the social and natural sciences.

For more information and to apply, please visit our website here. Fully completed and submitted applications are due on or before February 24, 2025.

Mid-career and Senior Fellowships are available for established scholars who wish to work at The Baldy Center, typically during a funded sabbatical or research leave. Awardees will receive a living expense allowance of $2,000 per month during the period of their residence as well as limited relocation assistance. Senior and Mid-career Fellows typically spend one semester in residence, but other terms are possible.

Shugerman on Bamzai and Prakash on the Unitary Executive

Jed H. Shugerman, Boston University School of Law, has posted The Misuse of Ratification-Era Documents by Unitary Executive Theorists, which is forthcoming in the Michigan Journal of Law Reform:

The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis, a methodological crisis, and perhaps an academic crisis. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.

The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for the unitary executive theorists, because The Federalist Papers are solid contrary evidence. The Ratification debates were silent about whether the president had a general power of removal -- even in the voluminous Anti-Federalist speeches and writings, where one would most expect to see such warnings if they existed.

Aditya Bamzai and Saikrishna Prakash, attempting to rescue their theory, claim to have identified four passages from the Ratification debates. Unfortunately, none of these four passages withstand scrutiny. These misuses are part of a serious pattern of misuses of historical materials. They have not only misinterpreted historical records from the 1780s and 1790s, but also how they have repeatedly misinterpreted other scholars’ work in 2020s.

Taking these examples together with the many errors and misinterpretations identified by historians and legal scholars over the past few years, there are at least three big-picture questions:

1.     If these sources were the only examples that the unitary executive theorists have identified from the Ratification debates, is it reasonable to conclude that the Ratification debates offered no support for the unitary executive theory of presidential removal, while the Federalist Papers plus Anti-Federalist silence are overwhelming evidence against it?

2.     If so, is the originalist case for the unitary executive theory dead?

3.     If “originalism” is a serious academic enterprise, are there consequences for originalist scholarship that repeatedly misused, misrepresented, or made false claims about the historical record?

--Dan Ernst

ASLH/Notre Dame Graduate Legal History Colloquium: February 2025 Session

The ASLH/Notre Dame Graduate Legal History Colloquium will convene on February 8, 2025. Virtual participation remains an option for those who wish to attend. Register here. 

The schedule:

ASLH/Notre Dame Graduate Legal History Colloquium

February 8, 2025 | 10 AM - 3 PM (EST)

Notre Dame Law School | South Bend, IN

Registration/Welcome    09:45 - 10:05 AM

    Coffee & Morning Refreshments

Paper #1: Legal History of Church & State    10:05 - 11:00 AM

“The French Origins of Americanism: Brownson, French Liberalism, and the Separation of Church and State”

Author: Michael Gioia, Columbia University

Respondent: Sarah Shortall, Associate Professor of History, University of Notre Dame

Paper #2: International Law in the 20th Century    11:05 - 12:00 PM

“Aggression in International Law: A Conundrum for Anticolonial Thought?”

Author: Ibrahim Khan, University of Chicago

Respondent: Samuel Moyn, Chancellor Kent Professor of Law and History, Yale University

Afternoon Break (Lunch)    12:05 - 1:00 PM

Paper #3: Chinese Legal History    01:05 - 2:00 PM

“Confrontational Activities in Linxiang County & Administrative Structure in the Eastern Han Dynasty”

Author: Qiziwei Wu, Hunan University

Respondent: Liang Cai, Associate Professor of History, University of Notre Dame

Paper #4: Law and the Second World War    02:05 - 3:00 PM

"A Defender of Nazis: Robert Servatius, the State of Israel and the Eichmann Trial"

Author: Shachar Gannot, Princeton University

Respondent: Devin Pendas, Professor of History, Boston College

-- Karen Tani

Stanford Center for Law and History Graduate Student Annual Conference Paper Prize

We have a second announcement from our friends at the Stanford Center for Law and History, regarding the Graduate Student Annual Conference Paper Prize. Deadline: January 31st, 2025. 

The Stanford Center for Law and History will invite paper submissions from graduate students for its seventh annual conference, “Native Legal Histories: Methods, Sovereignties, and Identities.” The Native nations forcibly included within the United States have had complex and nuanced legal histories. This conference will explore histories of both Indigenous law and Native encounters with U.S. law to better understand Indigenous communities’ legal experiences and understandings.It will bring together scholars of law and history to examine Indigenous legal histories across a range of venues and themes. Focusing, in particular, on questions of methods, sovereignties, and identities, the conference seeks to consider how the growing and robust field of Native legal history might help us to reconsider familiar narratives of law and its past. This one-day conference will be held on Friday, April 11th, 2025, at Stanford Law School. It will include four panels and a graduate student lighting round with breakfast and lunch provided.

Application Requirements: CV and Paper abstract (500 words or less)

To see more details and submit your application, click here.

-- Karen Tani

Bamzai and Prakash Respond to Critics on the Removal Power

Is it surprising that the scholarly debate on the removal power is back on the front burner?  Aditya Bamzai and Saikrishna Prakash, University of Virginia School of Law, have posted How to Think About the Removal Power, which appears on Virginia Law Review Online:

In an earlier article titled The Executive Power of Removal, we contended that Article II gives the President a constitutional power to remove executive officers, at least those who are presidentially appointed. In this Essay, we expand on, and reply to a critique of, that article. We discuss the meaning of the clause vesting “executive Power” in the President and the clause author    izing Congress to make laws “necessary and proper for carrying into Execution” the powers of the federal government. We contend that the former vests authority to remove in the President and the latter does not allow Congress to treat that allocation of authority as a default. We discuss how constitutional developments in the Commonwealth of Pennsylvania—specifically, a 1784 report authored by the Council of Censors—support our understanding of the federal Constitution’s text and structure. We also discuss early practice under the federal Constitution—specifically, high-profile instances where presidents removed executive subordinates without Senate participation. These sources and episodes, along with those we discussed in our previous article, support the conclusion that the Constitution confers on the President the authority to remove presidentially appointed executive officers.

--Dan Ernst

Stanford Center for Law and History Fellowship

[We have the following announcement of the Stanford Center for Law and History Fellowship.  DRE]

The Stanford Center for Law and History is a residential fellowship that provides an opportunity to
conduct research in the dynamic environment of Stanford University. The fellowship term is for two years. We expect that fellows will dedicate most of their time to pursuing their proposed research projects, and the fellowship is designed to ensure meaningful mentorship from faculty within both the Law School and the History Department. Fellows will also devote some time to organizing and implementing other Center activities, including an ongoing workshop series and an annual conference. The fellowship provides a significant opportunity to become part of a lively law-school-wide community of individuals with an interest in academia through attending weekly faculty lunch seminars and by participating in activities with the other fellows at Stanford Law School to learn more about one another’s scholarship and about academic life more generally. Fellows are also encouraged to attend and participate in the broad range of lectures and workshops available within the broader university, including inter alia, the History Department and the Stanford Humanities Center.

For the 2025-2026 fellowship, we will provide a workspace, a competitive salary, and a generous benefits package. Applicants who have completed (or are soon to complete) both a J.D. and a Ph.D in history are strongly preferred.  The fellowship is expected to start around August 1, 2025, but there is some flexibility as concerns the exact start date.  More.

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

Casto to Speak on CJ Ellsworth

William R. Casto, Paul Whitfield Horn Distinguished Professor at Texas Tech University, will speak via Zoom on “The Life and Times of Chief Justice Oliver Ellsworth” before the Supreme Court Historical Society on February 24, 2025 at 12:00 PM (EST).  Register here.

Oliver Ellsworth (LC)

Chief Justice Ellsworth, born in 1745, played a pivotal role in the founding of our nation. From his work as a delegate to the Constitutional Convention in 1787 to his leadership in crafting the Judiciary Act of 1789, Ellsworth’s impact on the formation of the federal judiciary is profound. His tenure as Chief Justice, though brief from 1796 to 1800, was crucial in shaping the early years of the Supreme Court.

Ellsworth’s legacy extends far beyond his time on the Court, as he was instrumental in creating the "Connecticut Compromise," resolving the contentious debate over congressional representation. His legal and political career reflects the complex challenges and transformative moments of the American Revolution and early national government.

--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

Weekend Roundup

• My fellow LHBlogger Karen Tani discusses her recent foreword to the Harvard Law Review's issue on the Supreme Court on David Schleicher and Samuel Moyn's Digging a Hole podcast.  DRE
  

• The latest in the "In Black America" series is a tribute to the late John Hope Franklin (KUT 90.5).
  

• The Loudoun County, Virginia courthouse has been renamed to honor Charles Hamilton Houston and been designated as a national historical landmark (WaPo).
  

• Orin Kerr on English common-law on emergency entry into a home and the Fourth Amendment (Volokh Conspiracy). 
  

• The Newsletter of the Historical Society of the District of Columbia Circuit for January 2025 is here.
  

• Michelle Adams, will discuss her book, The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North, at the Literati Bookstore in Ann Arbor, Michigan on January 16 from 6:30 pm - 8:00 pm EST (ACS).
  

• President Biden awarded the Presidential Citizens Medal to the son of Mitsuye Endo Tsutsumi in honor of his mother, the litigant in Ex parte Endo (Pacific Citizen). H/t Eric Muller.
  

• "The John Carter Brown Library invites applications for a 2 year postdoctoral position helping to coordinate the library’s programs and events to commemorate the 250th anniversary of the independence of the United States."  More.
  

• A review, in Swedish, of Allen D. Boyer and Mark Nicholls's The Rise and Fall of Treason in English History" by Boris Benulic in The Epoch Times.  English translation after the jump.

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

Michigan Legal History Workshop

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

February 5.  Session 3. Naomi Lamoreaux & Rebecca Eisenberg, University of Michigan Law School

What Administrative Agencies Can Do that Courts Cannot: Lessons from the Patent Office’s Handling of Interferences, 1836-1940

February 12.  Session 4. Heather Menefee, Northwestern University, Department of History

From “Loyal” to “Legitimate”: Racial Definitions of Political Identity during Dakota Tribal Reorganization, 1886-1999

February 19.  Session 5. Sanne Ravensbergen, University of Michigan, Department of History

The Hybrid Uniform of the Jaksa: Prosecutors in Nineteenth-Century Colonial Indonesia

February 26. Session 6. Aaron Hall, University of Minnesota, Department of History

The First Constitutional Lesson: Learning to Follow the Founding in Antebellum America

March 12.  Session 7. Beth Lew-Williams, Princeton University, Department of History

“John Doe Chinaman:” Law and Race in the American West

March 19.  Session 8. Nathan Perl-Rosenthal, University of Southern California, Department of History

Maritime Prize Law and the Making and Unmaking of Empires, ca. 1689-1916

March 26.  Session 9. Megan Ming Francis, University of Washington, Department of Political Science

The Price of Civil Rights: Philanthropy and Legal Mobilization

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

Finances of the Freedmen: The Expansion and Plunder of the Freedman’s Bank, 1866-1867

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

"In Consideration of Humanity:" Policing Mexican Child Refugees in the Early Twentieth Century United States

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

“Drug Money” in Legal, Political, and Cultural History

CFP: 5th Asian Legal History Conference

We have the following call for papers, for the 5th Asian Legal History Conference:

Doshisha University, with the support of the Centre for Comparative and Transnational Law’s Transnational Legal History Group at CUHK LAW and the Asian Legal History Association, is organizing the Fifth Asian Legal History Conference at Doshisha University in Kyoto, Japan on 31 July and 1 August 2025. Previous Asian Legal History Conferences have been hosted, organized and supported by the University of Law at Hue University, the Faculty of Law at Thammasat University, the Centre for Asian Legal Studies at the National University of Singapore and the Faculty of Law at The Chinese University of Hong Kong.

The conference aims to bring together a diverse, interdisciplinary group of scholars, researchers and graduate students to share their research findings on topics relating to legal history in Asia. The conference is open to both scholars anywhere in the world working on Asian legal history, broadly understood, and scholars based in Asia working on any legal history-related subjects.

Click here for the call for papers. The deadline for paper and panel proposals is 15 March 2025.

-- Karen Tani

Stone Peters's "Staging Witchcraft Before the Law"

Julie Stone Peters, Columbia University, has published Staging Witchcraft Before the Law: Skepticism, Performance as Proof, and Law as Magic in Early Modern Witch Trials (Cambridge University Press) in print and open access online via Cambridge Core.

While the judicial machinery of early modern witch-hunting could work with terrifying swiftness, skepticism and evidentiary barriers often made conviction difficult. Seeking proof strong enough to overcome skepticism, judges and accusers turned to performance, staging 'acts of Sorcery and Witch-craft manifest to sense.' Looking at an array of demonological treatises, pamphlets, documents, and images, this Element shows that such staging answered to specific doctrines of proof: catching the criminal 'in the acte'; establishing 'notoriety of the fact'; producing 'violent presumptions' of guilt. But performance sometimes overflowed the demands of doctrine, behaving in unpredictable ways. A detailed examination of two cases – the 1591 case of the French witch-demoniac Françoise Fontaine and the 1593 case of John Samuel of Warboys –suggests the manifold, multilayered ways that evidentiary staging could signify – as it can still in that conjuring practice we call law.

--Dan Ernst.  Update: Link fixed.  H/t CEP

Morag-Levine on American and European Air Pollution Law

Noga Morag-Levine, Michigan State University College of Law, has posted Uniform and Locally Tailored Emissions Standards in American and European Air Pollution Law: The Impact of Historical Regulatory Traditions, which also appears in the Columbia Law Review Forum:

This Piece operates at the intersection of comparative environmental law and legal history. It introduces a novel distinction between two paradigms of technology-based pollution standards: the first, uniform across all places and environmental conditions, and the second, tailored to local environmental and economic circumstances. It then compares the air pollution regimes of the United States and the European Union with an eye to the relative place of the two types of standards within each regime. This Piece finds that, in general, uniform standards characterize European regulation, whereas American regulation favors tailored standards. This Piece argues that longstanding historical differences between Continental and Anglo-American approaches to regulating pollution are at the root of this transatlantic difference. Uniform technology standards accord with the permitting practices of France, Germany, and other European countries going back to the early Industrial Era. By contrast, tailored standards fit with the localist sensibilities of English common law-based environmental regulation going back centuries. This Piece seeks to illuminate the historical origins of transnational differences in environmental policy and how this history continues to shape contemporary environmental choices and debates.

--Dan Ernst