ASLH "In Memoriam" for William E. Nelson

The American Society for Legal History has posted a memorial for William E. Nelson, whose passing we noted in December. The "In Memoriam," by Hendrik Hartog (Princeton University), begins:

Bill Nelson, who died three months ago, was a pivotal and transformative figure in the growth of the field of American legal history.  His scholarship included several monuments and field defining works.  His mentorship was unmatched. Because of him, the Golieb Seminar at NYU Law School became a necessary way station for two generations of budding legal historians.  And his generosity of spirit was legendary.  He changed many lives, all for the better.

Bill was both an intense and serious historian and an even more intense and serious lawyer.  But he also engaged with both law and history with an incredible sense of fun and joy.  His work was always marked by an amazing work-ethic and what can only be called sitzfleisch.  He read cases and cases and cases.  He believed in reading everything, all the primary documents.  When he covered a subject, he did so in ways that no else one ever did.  Selectivity and sampling were not his ways.   Coverage was.   And the results could be immensely revealing.  He worked hard, and he worked fast.  And he left an extraordinary body of scholarship.

Read on here.

-- Karen Tani 

  

Whittington and Heilpern on "Subject to the Jurisdiction of"

Keith E. Whittington, Yale Law School, and James Heilpern, who is Counsel at Schaerr Jaffe, LLP, where he specializes in complex litigation and corpus linguistics, and also a Research Fellow at the Georgetown Center for the Constitution, has posted "Subject To The Jurisdiction" as Legal Text:

The Citizenship Clause of the Fourteenth Amendment guarantees citizenship to all persons born in the United States and "subject to the jurisdiction thereof." This Article challenges the allegiance-based model by applying an original public meaning framework to the Citizenship Clause. Drawing on mid-nineteenth-century legal and legislative sources, the Article demonstrates that "subject to the jurisdiction" was a conventional legal term of art signifying that an individual was within the governing authority and protection of the sovereign. The Article concludes that the original meaning of the Fourteenth Amendment reinforces a broad, territorial rule of birthright citizenship that is independent of parental allegiance or immigration status. 

--Dan Ernst

Witte and Pin's "Legal Foundations of Religious Freedom"

John Witte, Jr., Emory University, and Andrea Pin, University of Padua, have published The Legal Foundations of Religious Freedom: Human Rights in the United States and Europe (Notre Dame Press):

In The Legal Foundations of Religious Freedom, authors John Witte Jr. and Andrea Pin explore the Christian and secular origins of rights in the Western legal tradition and the complex interplay between human rights and religious freedom norms in modern law, religion, and culture. They analyze historical documents and recent cases from the United States Supreme Court, the European Court of Human Rights, and the Court of Justice of the European Union to articulate the historical, theoretical, and legal tension of human rights and religious freedom on both sides of the Atlantic. The authors contrast the serious threats to new religious minorities and traditional religious accommodations with firm new protections of religious freedoms in both Europe and America.

Ultimately calling for robust protection of the fundamental rights and liberties of all people and faiths, Witte and Pin caution that religious freedom and other human rights claims can only do so much to bridge the widening cultural divides over law and religion in modern Western societies. It is our responsibility to embrace the fundamental goods of dignity, fraternity, and justice.

--Dan Ernst 

Birthright Citizenship Roundup

• From the op-ed pages of the New York Times: "Trump Says Birthright Citizenship Was Only for the Children of Slaves. He’s Wrong" -- by Martha S. Jones (Johns Hopkins) and Kate Masur (Northwestern). 

• Over in the Washington Post: "Trump officials cite white supremacists in bid to end birthright citizenship" --with quotes from legal historians Lucy Salyer (University of New Hampshire) and Sam Erman (University of Michigan).  

• Over in The Economist: What the Supreme Court will make of birthright citizenship--with quotes from Anthony Michael Kreis (Georgia State University) and Anna Law (Brooklyn College).

• Over in the Wall Street Journal: Randy E. Barnett believes that Trump Is Right on Birthright Citizenship: The 14th Amendment's authors would exclude illegal and visiting aliens from U.S. “jurisdiction.

• The NYT reports that Trump’s Birthright Citizenship Order at Supreme Court Splits Conservative Scholars.

• And many legal historians make or criticize what Mother Jones calls The Nonsense Case Against Birthright Citizenship. 

• Update: Jamelle Bouie on The Birthright Con (NYT).

This Roundup has been compiled by all the Legal History bloggers. 

Eilbert on 20th-Century Public Administration

Casey Eilbert, Johns Hopkins University, has published Architects of the Administrative State: Public Administration in the Twentieth Century, open access in Modern American History:

This article shows how public administration experts theorized and enacted changes to the American administrative state over the twentieth century. In the prewar period, they advanced a strict politics-administration binary that legitimated an expanding administrative state on the premise that it was a politically neutral vehicle for the execution of the public good. But during the Second World War, mounting scrutiny of the administrative state exposed the fragility of the politics-administration binary and undermined confidence in prewar administrative principles and the statebuilding they had sustained. In response to escalating dissatisfaction with existing administrative forms, public administration experts rejected administrative neutrality and turned to new theories and practices of administration emphasizing political responsiveness, managerial efficiency, and individual discretion and choice. In the late twentieth century, these shifts culminated in reforms that cut and contracted out the administrative state, recasting administration as an arbiter of private interests rather than a neutral instrument for realizing a unified public will.

--Dan Ernst 

CLH News

[Via ESCLH Blog, we have the following announcement.  DRE]

The journal Comparative Legal History is pleased to announce that its website has been updated with the new composition of its Editorial Board.

Comparative Legal History is the scholarly journal of the European Society for Comparative Legal History, publishing innovative research in comparative, transnational, and global legal history. The journal welcomes contributions that examine and compare historical interactions between diverse forms of normativity, including legal, religious, customary, and social norms, as well as the agents, institutions, and jurisdictions through which they have operated.  Engaging with legal traditions from across the globe, the journal welcomes interdisciplinary approaches and publishes research articles, invited contributions, review essays, book reviews, and special issues.

The journal is committed to fast turn-around times for its evaluations and editing, and thanks to our publisher, Taylor & Francis, we will now be publishing contributions online as soon as they are ready for production, thus giving authors the ability to publish and disseminate their research without delay.

We would also like to note that the journal encourages authors to make use of visual material in their articles.

To discuss ideas for articles or special issues, please contact Articles Editors Paolo Astorri (paa@teol.ku.dk) and Emanuel van Dongen (E.G.D.vanDongen@uu.nl). To recommend a book (published in the last two years) for review, please contact Reviews Editors Gianmarco Palmieri (gianmarcopalmieri1@gmail.com) and Geetanjali Srikantan (gasrikantan@gmail.com). For any and all enquiries, please feel free to contact the Editor, David Schorr (dschorr@tau.ac.il).

Weekend Roundup

• 
  "The Selden Society regularly funds a Milsom Studentship for a person undertaking research in English legal history leading to the degree of PhD (or equivalent) at a university in the United Kingdom." 

• A review of Geoffrey Samuel's Principia Iuris: A Historical and Comparative Introduction to the English Law (Edward Elgar Publishing) (Law Society Gazette). 

• A review of James Hart's The U.S. Supreme Court in American Society: Historical Perspectives (Edward Elgar Publishing) (Law Society Gazette).

• Washington University-St. Louis Law invited UCLA's Stuart Banner back to lecture on his history of the US Supreme Court (Student Life).   

• On Tuesday, April 28, from  6:00 - 8:00 PM, the Supreme Court of the State of New York, Appellate Division, First Department with support from the Historical Society of the New York Courts, will sponsor a talk on The Constitution’s Framers: What They Teach us about Making America Better, by John D. Feerick, Norris Professor of Law, Fordham Law School Dean Emeritus, and a panel discussion with William M. Treanor, Dean Emeritus, Georgetown University Law Center and Fordham Law School and John Rogan, Senior Fellow, Fordham Law School.  Register here. 

• Jill Hasday, Minnesota Law, discusses We the Men on the Infinite Women podcast. 

• A fully funded four-year Collaborative Doctoral Studentship at the University of Leeds on The Making of the National Archive: The First Century of the Public Record Office.  

• Over at Balkinization, a symposium is underway of Stephen Skowronek's The Adaptability Paradox.   Several legal historians are slate to contribute.

• The National Constitution Center has posted the recording of its Town Hall on Women and the American Revolution with Mary Beth Norton, the Mary Donlon Alger Professor Emerita of American History at Cornell University, and Rosemarie Zagarri, distinguished university professor of history at George Mason University. 

• ICYMI: Back to the archives to defend reproductive rights (Ms. Magazine).  A dispatch from the new "civic education" (University of Colorado-Boulder).  New York's woman lawyers (NYSBA).  Michael R. Dreeben revisits Robert Jackson’s "The Federal Prosecutor" (HLR). 

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

Lee on Birthright Citizenship and Residence

Thomas H. Lee, Fordham University School of Law, has posted The Citizenship Clause's Residence Requirement:

The debate about President Trump’s January 20, 2025 Executive Order denying automatic American citizenship to children born in the United States to unlawfully or temporarily present foreign parents is divided into two polar-opposite camps asserting that it’s wholly constitutional or wholly unconstitutional.  In a new academic paper, I make the case that the 1868 original meaning of the Fourteenth Amendment's Citizenship Clause supports a middle position: a child born in the United States to alien parents is automatically a citizen if the parents reside in the United States even if they entered unlawfully, but the child is not a citizen if the alien parents are in the United States as temporary sojourners, like tourists. This original, revisionist interpretation of the Citizenship Clause is faithful to the Clause’s text and original meaning and also consistent with the Constitution’s other citizenship-related provisions, relevant Supreme Court decisions, and the larger, evolving context of domestic and international citizenship controversies the Clause was ratified to address, while recovering an original meaning that sensibly speaks to modern realities.

--Dan Ernst

Lash Responds to Ramsey on Birthright Citizenship and Allegiance

Kurt Lash, University of Richmond School of Law, has posted The Allegiance Reading of the Citizenship Clause and Its Critics: A Response:

John A. Bingham (LC)

The Fourteenth Amendment establishes two requirements for natural born citizenship: First, one must be born in the United States. Second, one also must be born “subject to the jurisdiction” of the United States. In a prior article, I explained how the framers and ratifiers understood the latter text as requiring that one be born subject to the sovereign people of the United States in the sense of owing a primary allegiance to the United States. In a recent essay, Professor Michael Ramsey critiques the allegiance theory and argues that the text should be read to include any person born in the United States subject to its lawful or “sovereign authority.” 

Professor Ramsey’s reading is thoughtful but cannot be correct. Ramsey substitutes the phrase “under sovereign authority” for the actual text “subject to the jurisdiction” of the United States, and he invests it with a meaning based on common law instead of the actual understanding of the framers and ratifiers. The result is an interpretation held by congressional Democrats but expressly rejected by the Republican framers. Nor can Ramsey’s “subject to sovereign authority” theory account for the exclusion of the one category everyone involved insisted be excluded: children born to Native American parents. 

Most of all, Ramsey cannot explain away the abundant historical evidence supporting an 1866 allegiance-based understanding of natural born citizenship. In one of the most widely published speeches of the Thirty-Ninth Congress, and one that Ramsey does not mention, John Bingham explained that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen.” Both the 1866 Civil Rights Act and the Fourteenth Amendment communicated this same Republican theory of natural born citizenship.

--Dan Ernst 

AJLH 64:4

We're a bit late in noticing it, but the American Journal of Legal History 64:4 has been published: 

Mr Locke’s enclosure: the uncommon law of property in the Second Treatise
Hannah Carrese

John Locke, famously, told a property origin story. This article tells a property theory origin story, asking how Locke’s property theory, which omits common rights, emerged from a common law of property that centred them—and showing how this omission influenced the colonial American law that Locke drafted. Locke was silent on or rejected the common law of property, which recognized common rights and defences against privatization of commons through enclosure. Instead, Locke adopted law reform arguments lauding enclosure because it improved waste land. Locke’s property theory therefore attempts to improve the common law of property by orienting it around private rather than common property. He asks a question about the origin of property absent from common law: how do we create private rights to common land? He takes ‘waste’ to have purely negative connotations, avoiding the neutral meanings of that word at common law. And he stipulates that enclosure of English commons requires only tacit consent of commoners, excluding common law defences against enclosure. Locke’s is an equal opportunity enclosure. His spoilage principle and plan to reform Virginia’s land laws sought to benefit the poor by preventing vast enclosures and rural depopulation. However, he theorized a clean chain of title, absent in common law, which could prevent messy disputes over wealthy estates. This article shows the common law background from which Locke departed, thus deepening understanding of both our private property regime, often justified by Locke’s property theory, and a sometimes-overlooked alternative to it, the common law of property.

The laws of ‘an old and settled society’? The law of contract in New South Wales 1815–1850
Warren Swain

The history of contract law in New South Wales in the decades after the closure of the Court of Civil Jurisdiction in 1814 has not received much attention from legal historians. This is an important omission. At the heart of this story is a simple but critical inquiry: the way in which the law of contract in the colony mirrored or diverged from the law of contract that applied back in London. This was rarely a matter that judges addressed explicitly. Piecing together the relationship is an exercise in reconstruction. This can only be done by examining the body of case law. The creation of the Australasian Colonial Legal History Library, combined with readily searchable newspaper reports, has made this easier. The evidence in the mid-nineteenth century is still sometimes sketchy. Context is relevant. The colony moved from a quasi-military penal colony to a significant hub of commercial activity. The period also saw a shift in the legal system as the old informal systems evolved into a much more legalistic one. For the most part, New South Wales contract law was aligned with that in England. Some issues, like the desertion of sailors demanded local solutions. There are other examples in which well-established English contract doctrine did not necessarily fit very well with the conditions of the colony.

Who is a central bank for? The founding and legal design of the Bank of Canada
Dan Rohde

The Bank of Canada is an independent Crown corporation that sees its primary responsibility to be promoting Canada’s economic welfare by maintaining low and stable inflation. When it was first created in 1934, however, the Bank was a radically different institution—a privately owned corporation primarily meant to anchor Canada’s economy globally and manage foreign exchange. Not only was the Bank not tasked with managing inflation, but key policymakers behind its founding thought doing so would be a severe mistake. This article offers the first legal history of the Bank’s founding. It maps the enormous public debate that accompanied the creation of the Bank and the various, often contradictory visions expressed for it. The article labels these five visions: a Bankers’ Bank, a Government Bank, an Imperial Bank, an Economists’ Bank, and a Bank of the People. The article then looks at the original legal design of the Bank and argues that it largely fit the Imperial Bank model. Charting this history helps us better understand this vital organ of Canadian government, and has the potential to upset many of our accepted, contemporary notions of central banking.

--Dan Ernst 

Global Dissertation Prize

[We have the following announcement from the ASLH.  DRE.]

The American Society for Legal History (ASLH) is delighted to announce a new dissertation prize: the Global Dissertation Prize for the best dissertation in global legal history. The [prize] recognizes the best dissertation from the previous calendar year on topics centered outside the United States. Eligible dissertations must be written in English and submitted for a PhD, JSD, or equivalent doctoral degree, excluding the JD, awarded in the previous calendar year (for example, a dissertation for a PhD awarded in 2025 would be eligible in 2026). Dissertations should not be predominantly focused on the US and may examine contexts, processes, or institutions that are local, regional, imperial, comparative, global, or otherwise. 

Submissions should be made by the author including only (1) the dissertation as submitted to the university for the degree, and (2) a curriculum vitae. 

To be considered for the year’s prize, the author should e-mail a PDF electronic copy of the dissertation and author’s curriculum vitae to the prize committee chair (globaldissertationprize@aslh.net) with the subject heading: GLOBAL DISSERTATION PRIZE SUBMISSION. Please title the PDF as “author last name” and “short title” .pdf (for example, Adewoye Lawyers Southern Nigeria.pdf).  

Deadline for Submissions: June 1, 2026.  Award Amount: $500.

LHR 44:1

Law and History Review 44: 1 (February 2026) has been published, open access, online.  It is a joint special issue with The William and Mary Quarterly, entitled "New Legal Histories of the American Revolution."  LHR editor Gautham Rao writes on social media that the issue "offer[s] a new methodological challenge to well-trod historiographical terrain."

Bringing the Law and the Local Back In to the Revolution
Sarah Barringer Gordon

The Tension between Religious Liberty and Religious Establishment in Revolutionary New England
Mark Valeri

“They Are Their Citizens and Must Submit to Their Government”: Citizenship and the Creation of the Federal Government, 1776–1787
Jessica Choppin Roney

Popular Government and the Limits of the Law at the Outset of the American Revolution
Donald F. Johnson

Legislation, Regulation, and Administration in the American Revolution
William J. Novak

Review Essay
Something Else: History, Legal Imagination, and the American Revolution
Matthew Crow

Newman's "Law and Justice in Song"

Daniel Newman, Cardiff University, has published Law and Justice in Song Murder Ballads and Popular Music (Routledge):

This book examines the murder ballad form, songs about death and killing, from a legal history perspective. It is held that taking on the long history of the murder ballad is a way that we can understand how death and killing in song has a function in dealing with the world around us. The book integrates law and humanities scholarship with diverse musical case studies to construct a typology of murder ballads and thus conceptualise the central messages of how murder ballads have treated death and killing. Drawing on a cultural form in which assessment and consideration of death and killing are so vigorously and richly enacted gives lawyers a guide to how those who do not see these matters through a primarily legal lens might understand this part of their world. The study will be of interest to academics and researchers working in the areas of Criminal Law, Legal History, Socio-Legal Studies, Criminology, and Musicology.

Professor Newman discuisses his book on JLS Blog. 

--Dan Ernst

Ackerman on the Democratic Basis of Humphrey's Executor

Bruce Ackerman, Yale Law School, has posted Barrett’s Red Flag: Why the Court Should Order Re-argument in Trump v. Slaughter:

William E. Humphrey (LC)

While there are a host of essays dealing with the Slaughter and Cox cases presently under consideration by the Supreme Court, this is the first one exploring a fundamental point about Humphrey’s Executor that was advanced by Justice Amy Coney Barrett in her remarkable interventions during December’s oral argument in Slaughter. She emphasized that, in gaining unanimous support for Humphrey’s Executor in 1935, Justice Sutherland was building on the successful construction of a series of independent agencies by both Democratic and Republican Administrations over the preceding half-century -- beginning with Grover Cleveland’s breakthrough success in gaining Congressional approval for the nation’s first independent agency: the Interstate Commerce Commission in 1887. As Justice Barrett pointed out, Cleveland’s presidential successors built on his landmark precedent to gain repeated Congressional support for a wide range for agencies that continue to play a crucial role in today’s America – including the Pure Food and Drug Administration (Theodore Roosevelt), the Federal Trade Commission (Woodrow Wilson), and the Federal Communications Commission (Calvin Coolidge). Since Democratic and Republican Administrations profoundly disagreed on a host of other fundamental issues, their repeated and bipartisan affirmation of expert agencies as a “fourth branch of government” was even more remarkable.

As a consequence, Justice Barrett suggested that this bipartisan consensus provided a distinctively democratic foundation for Justice Sutherland’s unanimous opinion in Humphrey’s Executor.      After all, it was announced in March of 1935 when Sutherland was refusing leading his six Lochnerians in an escalating constitutional assault on the activist regulatory state – despite the eloquent dissents of Brandeis, Cardozo and Stone. Nevertheless, these bitter disagreements did not lead the Lochnerians to challenge the legitimacy of wide-ranging regulation of the market-economy by independent agencies – since American voters had repeatedly vindicated a bipartisan effort to create independent agencies with the requisite expertise required to confront the scientific and industrial revolutions in a responsibly democratic fashion.

Justice Barrett made these points during the give-and-take of oral argument in the Slaughter case. Unfortunately, however, the lawyers for Rebecca Slaughter and Donald Trump were not prepared to respond with sophisticated analysis of the constitutional significance of the half-century of history that she was emphasizing.

It happens, however, that I have spent a great deal of time exploring these issues in preparation for my multivolume series, We the People – and believe that it powerfully supports Justice Barrett’s interpretation of its constitutional significance. To be sure, I expect this essay to provoke serious critiques, as well as significant elaborations, of the themes I present. Indeed, this is precisely why I believe that the Court should defer its final decision in Slaughter and Cox so as to give it the opportunity to make a genuinely thoughtful decision on an issue which will profoundly shape the course of American government for generations.

--Dan Ernst

Camacho and Daniels's "Lessons for a Warming Planet"

Alejandro E. Camacho and Brigham Daniels have published Lessons for a Warming Planet:
A Vital History of US Environmental Law (NYU Press): 

The relationship between humans and the environment in the United States reflects tales of countless contrasting and overlapping trends, movements, and tensions. Law has cultivated both the planet’s biggest environmental threats and its most creative innovations for protecting human and ecological health. U.S. laws have driven both exploitation and temperance; destruction and restoration; and resistance and adaptation.

Lessons for a Warming Planet showcases the fundamental role the law has served in reckoning with environmental harm in the United States. Authors Alejandro E. Camacho and Brigham Daniels explore the full arc of U.S. environmental legal history across five major periods in the United States, reaching as far back as North America’s colonization and ending with the present. Through this rich history, the book considers the ways leadership, social movements, political coalitions, information, and technologies have both been catalyzed by the law and have advanced environmental change.

Camacho and Daniels provide a fascinating and insightful history of environmental law. They ask readers to consider: What lessons can we draw from environmental legal history for contemporary challenges like climate change, AI, and emerging biotechnologies? In looking to the past, Lessons for a Warming Planet illustrates how prior generations each used legal imagination to navigate seemingly insurmountable environmental threats.

--Dan Ernst 

Wells on the Origins of the Limited Liability Partnership

Harwell Wells, Temple University James E. Beasley School of Law, has posted The Unexpected Origins of the US Limited Liability Partnershi:

This paper tells the origins of the Limited Liability Partnership (LLP) in the United States. Its origins are seemingly well-known; the LLP was created as a response to staggering malpractice claims arising in the 1980s that pushed partners in large American law firms, almost all organised as general partnerships, to seek a shield from personal liability for their firms' or fellow partners' debts. But that account is incomplete. The LLP's origins lie at the end of a much longer story, that of American lawyers' stiff resistance to corporations practicing law. Since the beginning of the twentieth century the legal profession had labored to protect lawyers' self-image and fend off competition by (among other things) forbidding corporations from offering legal services; the LLP appeared when lawyers decided that, despite this longstanding opposition, they needed one of the advantages of incorporation: limited liability. The LLP was thus the product not only of economic demands, but of the peculiarities of the American legal profession and its conflicted relationship with the corporate form and the modern corporation. 

--Dan Ernst 

Weekend Roundup

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

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

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

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

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

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

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

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

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

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

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

Engstrom et al. on Managerial Courts

David Freeman Engstrom, David Marcus and Elliot Setzer have published Managerial Courts in the Yale Law Journal:

In recent decades, American courts have undergone a quiet but far-reaching revolution in their function and role. Particularly in state courts facing a crush of cases in high-volume dockets for debt, eviction, and family-law matters, case-by-case judging has gradually given way to court-devised systems that govern adjudication through centralized, routinized, and often digital and data-driven practices. Cases are triaged into differentiated procedural pathways; docket calendars are engineered to shape litigant behavior; decisional aids, digital dashboards, and order templates channel the discretion exercised by judges and staff; teams of quasi-judicial officers, staff attorneys, case-management professionals, and clerks absorb tasks once thought quintessentially judicial in order to ration scarce “judicial attention”; and internal and, increasingly, digitized and even AI-based tools perform quality-control tasks once left exclusively to appellate review. The upshot is that courts pervasively mix adjudication and bureaucracy, with profound but largely unexamined implications for fair and accurate adjudication, access to justice, due process, and the production of law.

This Feature surveys the managerial turn transforming American courts, tracing its roots, forms, and normative implications. An opening historical narrative situates the rise of court managerialism within a century-long arc from the New Deal to the digital age, highlighting its shifting causes and its consequences for American justice. Turning to the present, we offer a novel taxonomy of current managerial techniques that identifies the operational components of the managerial turn and synthesizes their many commonalities and interconnections. Finally, our normative and doctrinal analysis develops principles for reconciling court managerialism with classical conceptions of American courts and judges as passive, neutral adjudicators of whatever the adversarial process serves up. Can courts adopt bureaucratic tools without losing their distinctive institutional identity? Given twenty-first-century litigation realities, including the bracing fact that the majority of cases in the American civil-justice system now pit represented parties against unrepresented ones, managerial approaches will often outperform an unmediated adversary process on metrics of accuracy and efficiency. A constitutional reckoning awaits: while some parts of the new managerialism may run afoul of due process, others may be constitutionally required.

--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 

Law's "Migration and the Origins of American Citizenship"

The official date is still about a week hence, but because the book is already getting noticed in social media, we’ll note now the imminent publication of Anna O. Law’s Migration and the Origins of American Citizenship: African Americans, Native Americans, and Immigrants (Oxford University Press):

Since the late nineteenth century, the US federal government has enjoyed exclusive authority to decide whether someone has the ability to enter and stay in US territory. But freedom of movement was not guaranteed in the British colonies or early US. By contrast, voluntary migrants were met with strict laws and policies created by colonies and states, which denied free mobility and settlement in their territories to unwanted populations.

Migration and the Origins of American Citizenship presents a story of constitutional development that traces the confluence of the logics of slavery and settler colonialism in early legal rulings and public policy about migration and citizenship. The book examines the division of labor between the national and state governments that endured for over a century, reasons why that arrangement changed in the late nineteenth century, and what the transformation meant for people subject to those regimes of control. Drawing into one study the migration policy histories of groups of people that are usually studied separately, and combining the methodologies of political science, history, and law, Anna O. Law reveals the unmistakable effects of slavery and Native American dispossession in modern US immigration policy.

--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 

Mark on Emergencies and Civil Disobelience in Israel, 1948-1954

Maya Mark has published Civil Disobedience in Defense of Democracy: Menachem Begin's Struggle Against Emergency Laws in Israel, 1948–1954 in Law and History Review:

This study uncovers a previously overlooked chapter in the historiography of civil disobedience: Menachem Begin’s resistance to Israeli emergency legislation between 1948 and 1954, which he argued undermined foundational democratic principles. It presents the first scholarly analysis of Begin’s resistance, contending that it constitutes a clear instance of civil disobedience, embodying its core tenets. At the heart of this historical case study lies a paradigmatic question: how can laws that erode foundational—yet abstract—democratic principles, such as the separation of powers, be effectively resisted, and can such resistance be accommodated within traditional frameworks of civil disobedience? Begin’s struggle brings these questions into sharp relief, illuminating longstanding critiques of the framework’s overly restrictive boundaries and underscoring the tension between theoretical frameworks and political reality. More broadly, the article engages central debates at the intersection of law, politics, and democratic thought. By examining the democratic convictions of a prominent right-wing leader, it contributes to historical scholarship on the role of conservative and right-wing movements in shaping democratic ideologies, while also providing a historical reference point for subsequent ideological transformations and radicalization processes within these movements. Finally, by illuminating the complexities inherent in opposing laws that erode core-yet abstract-democratic principles, this study resonates with contemporary debates on democratic backsliding, offering a historical lens through which civil disobedience has served as a principled response to such challenges.

--Dan Ernst 

Birnhack on Patents in Mandate Palestine

Michael Birnhack, Tel Aviv University Buchmann Faculty of Law, has posted Colonial Patents: Industrial Property Law and Nationality in Mandate Palestine, which is forthcoming in the Journal of Legal History:

This Article offers the first historical analysis of patent law in British Mandate Palestine (1917-1948), examining 4,395 patent applications through a reconstructed registry and archival sources. It develops Colonial Patents as a framework for analysing legal transplantation in colonial contexts. 

The analysis reveals Britain's hybrid imperial patent policy: rejecting empire-wide unification while creating preferential procedures for British patents. Palestine's 1924 Patent Ordinance emerged from London-Jerusalem negotiations, including London's rejected proposal to abolish local patents. The registry shows profound participation asymmetries: while foreign and local inventors each filed approximately half of applications, Jewish inventors comprised nearly all local applicants, with scant Arab Palestinians filings. Archival sources confirm British engagement with Jewish patent agents but no Arab involvement. This disparity reflects patent law's ideological foundations in Enlightenment progress and industrial capitalism, which resonated with European-educated Jewish immigrants but remained peripheral to Arab Palestinian society, demonstrating how nominally neutral colonial institutions operated differentially. 

--Dan Ernst 

Weekend Roundup

• 
  
  A head's up to those thinking about submitting proposals for the annual meeting of the American Society for Legal History in Banff, November 12-14: the deadline is March 24.   

• This year's Bancroft Prizes have gone to two works of legal history: Emilie Connolly’s Vested Interests: Trusteeship and Native Dispossession in the United States and Beth Lew-Williams’s John Doe Chinaman: A Forgotten History of Chinese Life Under American Racial Law (NYT).

• Legal history bulks large among the finalists for the book division of the American Bar Association’s Silver Gavel Awards for Media and the Arts: The Zorg: A Tale of Greed and Murder that Inspired the Abolition of Slavery, by Siddharth Kara; The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, by John Fabian Witt; We The People: A History of the U.S. Constitution, by Jill Lepore; You Can't Kill a Man Because of the Books He Reads: Angelo Herndon's Fight for Free Speech, by Brad Snyder; American Scare: Florida's Cold War on Black and Queer Lives, by Robert Fieseler; and The Containment: Detroit, the Supreme Court, and the Battle for Racial Justice in the North, by Michelle Adams.  

• The Irish Legal History Society has announced its 2026 essay prize.  "Submissions are invited by 31 May on any topic within Irish legal history, broadly conceived, from both undergraduates and postgraduates."

• 
  The latest two volumes in the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, The Taft Court: Making Law for a Divided Nation, 1921–1930, by Robert C. Post, Yale Law School, and The Hughes Court: From Progressivism to Pluralism, 1930 to 1941, by Mark V. Tushnet, Harvard Law School, are now available as paperbacks from Cambridge University Press.

• The U.S. Department of Justice has announced that a museum devoted to its past will open in July 2026. 

• Anna Snyder on the "odd omission" of lawyers in commemorations of the 250th anniversary of independence (AHA Perspectives). 

• A notice of Maria Fletcher, Charlie Peevers, and Seonaid Stevenson-McCabe's chapter on "Madge Easton Anderson, the first woman in Scotland and the UK to become a professional lawyer," in Celebrating Women in Legal History: Making and Shaping a Discipline (Scottish Legal News). 

• "The 1957 executive order signed by President Dwight Eisenhower to enforce the desegregation of Little Rock Central High School is one of the documents on display at the Clinton Presidential Center at a new exhibit chronicling the history of the 27 amendments to the Constitution" (Arkansas Advocate).    

• Michele Goodwin’s Presidential Address to the Law & Society Association prompted June Carbone to reflect on teaching Johnson v. McIntosh and Dred Scott in the comment Claiming History.

• A Harvard Law Review note: Making the Rules of the Rules of the Game: The Use, Misuse, and Disuse of the Rulemaking Grant in the Act of 1842.

• Robert L. Tsai reviews Cliff Sloan's The Court at War (Washington Monthly). 

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

• ICYMI:  Phillip W. Magness on Justice Thomas's dissent in the IEEPA decision (Law & Liberty). A notice of Vernon Burton's talk, “The First Amendment and Lincoln’s Constitutional Legacy" at Clemson's "week of celebrating First Amendment rights and history" (Clemson News). Tarun Choudhury on Sir Garfield Barwick (Legal Service India).  Ernie Walton thinks that Originalists Need the Classical Legal Tradition (Public Discourse).

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

Borwegen and Mehrotra on the OBBBA's Tax Provisions in Historical Perspective

Amanda Borwegen and Ajay K. Mehrotra, Northwestern University Pritzker School of Law, have posted The Beginnings of the One Big Beautiful Bill Act: Placing the 2017 Tax Cuts and Jobs Act in Historical Perspective, which appears in the Cornell Law Review Online:

On July 4, 2025, President Donald J. Trump signed into law the One Big Beautiful Bill Act (OBBBA). This new law was built on the foundations of its immediate predecessor, the 2017 Tax Cuts and Jobs Act (TCJA). This Essay examines the historical roots and contemporary implications of these two laws. It argues that both acts reflect continuities and ruptures in the recent history of U.S. tax law and fiscal policymaking. On the one hand, the two laws are a continuation of decades long trends in American tax policy—trends marked by persistent tax cutting, increasing partisan polarization, and a growing disregard for fiscal responsibility. Yet these two laws also depart from earlier episodes marked by bipartisan efforts to address fiscal challenges through compromise and revenue-conscious reform.

To highlight the continuities and ruptures, the Essay further analyzes three key historical analogs: (1) the Bush tax cuts of 2001 and 2003, (2) the 1990s Omnibus Budget Reconciliation Acts, and (3) the 1983 Greenspan Commission on Social Security Reform. While earlier tax laws established the partisan use of reconciliation and temporary tax relief, the TCJA and OBBBA expanded this model into permanent, deficit financed legislation. In contrast, the Omnibus Acts and Greenspan Commission exemplified bipartisan efforts to address fiscal challenges through compromise and revenue conscious reform.

The goal of this Essay is not to explicate the detailed provisions of the two new laws. Rather, our objective is to provide a broad retrospective look at how we have arrived at this historic and extraordinary moment. The historical trends explored in this Essay suggest that we may be entering a new era of tax law and fiscal policymaking—one defined by ideological entrenchment and legislative expediency rather than bipartisan cooperation and fiscal responsibility. By placing the TCJA in historical perspective, we identify and analyze some of the early beginnings of the OBBBA and other historical analogs, with the hope of better understanding the new law and perhaps future tax and spending legislation. 

--Dan Ernst 

Siegel on the Originalist Case for Prenatal Personhood

Reva Siegel, Yale Law School, has posted It's Alive! When the Original Meaning of "Person" Protected by the Fourteenth Amendment Is Not a Fixed, But Living Word:

This Article examines an originalist argument for prenatal personhood—that life from conception is included within the original public meaning of the “person” the Fourteenth Amendment protects—advanced by Josh Craddock, the most prominent proponent of the originalist-personhood claim in the years before and after Dobbs. Under the original public meaning of the Fourteenth Amendment, Craddock claims, the “preborn” are persons entitled to due process and equal protection of the laws so that homicide statutes should apply to “preborn” as well as born persons.

The Article begins by evaluating Craddock’s argument for the original public meaning of person on its own terms, and identifies fundamental flaws in the way Craddock uses dictionary evidence and addresses the textual and historical context in which the Fourteenth Amendment employs the term “person.”  It then shows that Craddock is reasoning about abortion inside contemporary frameworks and not as nineteenth-century Americans did. (Craddock’s argument employs a language of personhood that opponents of abortion only began using as they entered into struggles over the Constitution in the era of Roe; Craddock draws on “substantive” originalist methods and advances equal-protection arguments about homicide law that opponents of abortion did not advocate until the twenty-first century, in the era of Dobbs

In concluding, the Article situates Craddock among abortion “abolitionists” who support legislation that provides equal protection to unborn persons by applying homicide law to women who obtain abortions and those who assist them. Abolitionists defend their carceral equal-protection arguments by appeal to constitutional memory (e.g. “person,” Lincoln; Frederick Douglass’s North Star) and in openly religious terms.

--Dan Ernst 

Schmidt and Funk on the Supreme Court's "Equity Docket"

Thomas P. Schmidt and Kellen Funk, Columbia Law School, have posted The Equity Docket, which is forthcoming in the NYU Law review:

The Supreme Court has two sides. On its ordinary docket, the Court answers questions of law after briefing and oral argument. On its extraordinary docket, the Court fields applications from litigants asking it to equitably set the status of a new law or executive action while a lawsuit is pending. Only a decade ago, the equity side was an obscure backwater of Supreme Court practice; today it is where the Court confronts some of the most contested and consequential public law disputes. This aspect of the Court’s work has taken on various labels—the shadow docket, emergency docket, interim docket, to name a few. This Article proposes the “equity docket.” That term best captures what is distinctive about this growing part of the Court’s business, and helps us to get a normative handle on where the Court has gone right—and wrong.

Any judicial practice grounded in equity will be vulnerable to the charges of arbitrariness and lack of transparency; those critiques are as old as John Selden’s rebuke about the chancellor’s foot. And variants of those critiques have been ubiquitous in discussions of the equity docket. Historically, though, equity was able to reform itself successfully in response to these charges. Our basic contention is that the Court has assumed a far-reaching new form of equitable jurisdiction without also accepting the historical guardrails that both limited and legitimated equity.

The Article makes three contributions. First, it links the emergence of the equity docket to the Court’s broader engagement with the history of federal equity in recent years—what some have called the “new equity.” Second, it argues that the Court has lost sight of important constraints that kept equity in an adjectival position. And finally, it suggests that the Court has impoverished the inputs of equitable decisionmaking by relying almost exclusively on hastily formed predictions about the merits. In place of the Court’s current approach, we propose a model of a more objective, “filtered” conscience, drawn from the history of equity, that would give proper weight to precedent and keep the equity docket from engulfing the Court.

--Dan Ernst 

Sobkowski on Trump and Youngstown

Patrick J. Sobkowski, Marquette University, has posted Presidentialism at the Highest Ebb: Executive Power in the Age of Trump, which is forthcoming in the University of Dayton Law Review:

On July 1, 2024, the Supreme Court decided Trump v. United States. In a 6-3 decision, the Court held that presidents are absolutely immune from criminal prosecution for official acts taken pursuant to his “conclusive and preclusive” constitutional powers. Trump represents a watershed moment in the Supreme Court’s separation of powers jurisprudence. Critics worried that the Court’s decision put the president above the law. Because Trump creates a constitutional rule that places the president’s powers above those of Congress, the decision presents an interesting opportunity to contrast it to another famous separation of powers decision.

Youngstown Sheet & Tube Co. v. Sawyer is perhaps the most important separation of powers case the Supreme Court has ever decided. After President Harry Truman decided to seize the nation’s steel mills to avert a labor strike, the Court struck down his executive order as beyond the powers of the president. The Court’s decision in Youngstown stands for the propositions that (1) the president is not above the law, even in national emergencies; and (2) much of the president’s power flows not from implied or inherent constitutional authority, but from statutory authorizations from Congress.

This Article presents the first comprehensive comparative analysis of Trump and Youngstown. A close reading and attention to the historical and political context surrounding both cases reveal both striking similarities and differences. I employ archival evidence to shed light on the arguments presented by the Truman administration in defense of the seizure, as well as public reaction to the decision. The Court’s shift from functionalism to formalism in the period between the two cases also carries important implications for the separation of powers going forward. 

--Dan Ernst 

The Decline of Congress: An ICH Seminar

US Capitol (NYPL)

The New York Historical’s Bonnie and Richard Reiss Graduate Institute for Constitutional History has announced its spring seminar, “The Decline of Congress in American Politics and Law.”  The instructors are K.C. Johnson, professor of history at Brooklyn College and the CUNY Graduate Center, and Kevin J. McMahon, the John R. Reitemeyer Professor of Political Science at Trinity College. The seminar be conducted in person at The New York Historical, 170 Central Park West, New York, NY 10024, on Fridays, May 1, 8, 15, and 29, 2026, from 2 to 5 pm ET.  Although in-person attendance is encouraged, “livestream participation will be offered to admitted students who do not live in the New York Metropolitan Area or who are unable to attend a class in person.”  The deadline for applying is April 10, 2026.  

The ICH seminar is convened twice yearly and is designed for “graduate students, junior faculty, and other educators, in history, political science, law, and related disciplines.” There is no tuition. More information about the seminar and how to apply is here.

[A disambiguation note: The Institute for Constitutional History at the New York Historical ought not to be confused with the Institute for Constitutional Studies at GW Law, directed by Maeva Marcus.]

--Dan Ernst

The YJLH Symposium on Gienapp's "Against Constitutional Originalism"

We have previously noted some contributions to the symposium on Jonathan Gienapp’s Against Constitutional Originalism in the Yale Journal of Law and the Humanities.  The complete symposium is now available open-access online:

Can Originalism Survive Jonathan Gienapp?
Thomas B. Colby

Gienapp’s Big Book: Conceptual Rupture, Modernism, and the End of Originalism
Logan Sawyer

Birthright Citizenship, Unwritten Constitutionalism, and the Nature of the Union
John Mikhail

Against Against Constitutional Originalism: A Critique of a Critique
Mark Peterson

Essential Fidelities
Lawrence Lessig 

The Free Constitution: The Real Genius of the Constitution
Mary Sarah Bilder

The Obsolescence of the Originalism Battles
John Witt

History or Memory?: Claims on the Past in Constitutional Argument Over Originalism, Civil War/Reconstruction, and MAGA
Reva B. Siegel

In the Beginning There Was Positive Law: Section 25, Calder v. Bull, and Constitutional Continuity
Kevin C. Walsh

Historians and Originalists
Cass R. Sunstein

Yes, The Founders Were Originalists
William Baude and Stephen E. Sachs

The Constitution and Historical Rupture
Jonathan Gienapp

An Essay Collection on Work, Capitalism and Democracy Since the New Deal

Work, Capitalism, and Democracy: The United States Since the New Deal, edited by Elizabeth Tandy Shermer, has just been published by the University of Pennsylvania Press:

Changes to the meaning and nature of work, capitalism, and democracy during and after the New Deal have been contested from the mid-twentieth century to the present day. Rather than rehashing the familiar, tidy story of a Democratic coalition coming together in the 1930s only to be felled by conservative movements in the 1970s, this volume instead emphasizes that the prosperity many white American families enjoyed did not stop the fights over whose work would be recognized, how corporations would be regulated, and whose democratic rights would be protected, both on and off the job. Cultural representations of the ideal worker, legal battles over workplace rights, political standoffs over inflation policies, dire warnings against too much regulation, and abuses of the tax code indicate there never really was a consensus on how democratic the country, its economic system, and its workplaces would be.

As the collected essays suggest, backlash does not seem the right word to describe the challenges left-leaning politicians, environmental activists, and immigrants faced in the late twentieth century, when managing supply chains became far more lucrative than manufacturing the goods being shipped around the world. Using the broad categories of work, capitalism, and democracy to reinterrogate the past, contributors contend, is the only way to understand today’s conflicts over the future of how Americans will work, how capitalism will function, and how the country will be governed.

Essays of interest to legal historians include Jean-Christian Vanel, “‘The Nine Judges Have Gone Home’: Liberals, the 1949 “Closed Shop Cases,” and the Undermining of Union Democracy; and Reuel Schiller, “‘The Magnanimity of Disorder’: Counterculture Intellectuals and the Rise of Anti-Statist Thought in Late Twentieth-Century America.” 

--Dan Ernst 

Bauer to Lecture on Reparations for Victims of Brazil's Dictatorship

 [We have the following announcement.  DRE.]

Nos complace informaros de la celebración del próximo Coloquio de Historia del Derecho de la UAM. En esta ocasión contaremos con la presencia de la profesora Caroline Silveira Bauer, Universidade Federal do Rio Grande do Sul, que nos hablará de “Las posibilidades de reparación de crímenes cometidos por empresas y particulares durante la dictadura de 1964 en Brasil.”  [“The possibilities of reparation for crimes committed by companies and individuals during the 1964 dictatorship in Brazil.”]  Adjunto a este correo se puede encontrar un resumen de su propuesta, junto con la programación prevista para este ciclo de Coloquios.

El encuentro se celebrará el próximo viernes 13 de marzo, a las 11:30 h, en el seminario VI de la cuarta planta de la Facultad de Derecho. Asimismo, también se podrá seguir a través del siguiente enlace: Coloquios HD | UAM | Reunión-Unirse | Microsoft Teams.  

Tycko's "Captured Consent"

Sonia Tycko, Lecturer in History in the School of History, Classics and Archaeology at the University of Edinburgh, has published Captured Consent: Contract Labor in English Charity, Colonization, and War, 1600–1700 (Cambridge University Press).  It appears in the series Studies in Legal History, sponsored by the American Society for Legal History:

Consent has been celebrated as a guarantor of liberty and self-determination; however, its history suggests a different meaning. In this book, Sonia Tycko reconstructs the coercive role of contracts in early modern English labor. The long-term, long-distance, and high-risk nature of pauper apprenticeships, transatlantic indentured servitude, military conscription, and prisoner of war labor drove some English people to develop consent into a tool of labor coercion. Coercion could constitute valid consent for people whose social position, age, and gender fit the profile of natural laborers. Many subordinates experienced consenting – or the presumption of their consent – as a form of acceptance of, or even submission to, their position. This book reveals that early modern labor was one of the fields in which ideas of freedom of contract, voluntariness, and enticement developed.

--Dan Ernst

Kessler on Separation of Powers and the Draft

Jeremy Kessler, Columbia  Law School, has posted Selective Service and the Separation of Powers, which is forthcoming in the Boston University Law Review:

This Response argues that the secularization of conscientious objection during the Vietnam War is part of a larger and longer-running story. That story is about pacifists and draft resisters, but it is also about how the military draft destabilized the separation of powers, leading the federal judiciary to encroach upon congressional and administrative authority while fracturing the executive branch. The primary legal weapon deployed in these inter- and intra-branch conflicts was creative statutory interpretation. Congress rarely codified winning interpretations because congressional majorities usually opposed them. Accordingly, the statutory text itself -- whether in 1948, 1956, 1967, or today -- tells us little about how the federal justice system regulated the draft in light of that system's “underlying concepts of procedural regularity and basic fair play.” 

If a future Congress heeds Professor William Aceves’s call to codify judicial recognition of secular conscientious objection, it should thus take the opportunity to confront a more basic question: whether the Military Selective Service Act as written is consistent with contemporary concepts of “procedural regularity and basic fair play.” The answer to this question is likely "no," precisely because those concepts are consistent with -- and at times directly indebted to -- the norms elaborated by judicial and executive critics of draft administration. Yet to amend the draft law to reflect those critics' favored norms might frustrate any future war fought with drafted soldiers. As this Response shows, the legal preferences of federal judges and Justice Department officials played a significant, and perhaps determinative, role in the erosion of the draft’s capacity and legitimacy between WWII and Vietnam. 

Today, appalling casualty rates in Ukraine have led some factions of the military and national security bureaucracy to conclude that the outcome of any prolonged military conflict with Russia, China, or even, perhaps, Iran will depend on drafted soldiers. Whether such a conflict – or the interpretive methods used to adjudicate resistance to it – would break the historical pattern of official draft resistance is an open question. But the fate of both secular conscientious objectors and the Selective Service System as a whole will depend on the answer.

--Dan Ernst 

Murray on Judicial Review for Error of Fact

On March 17, 2026, from 18:00-19:30, Philip Murray, Robinson College, Cambridge, will deliver the lecture Ducks or Rabbits? The History of Judicial Review for Error of Fact.  The event will take place in the Keeton Room, Bentham House, Endsleigh Gardens, London.  It is sponsored by the UCL Law's Legal History Research Group and is open to all who register here.  

Contemporary English administrative law has got itself in a mess over the distinction between
errors of law (generally reviewable) and errors of fact (generally not renewable). Perhaps the low point came in R (Jones) v First-tier Tribunal [2013] 2 AC 48, where the Supreme Court suggested the distinction between the two types of error can be manipulated by the courts to control the availability of judicial review. As such, a factual finding made by an administrator has become a version of the famous duck-rabbit illusion: whether a court sees an error of law or error of fact depends on its psychological predisposition to review.

Looking back over the early history of English administrative law, the courts seemed to have less  of a problem in review for error of fact. Whether an error made by an administrator was of law or of fact didn’t really matter that much. The key issue was what the significance of that error was to the decision-maker’s power to act.

At a time when legal historians and contemporary public law scholars are increasingly turning to the history of administrative law as a site for productive study, this paper seeks to review the history of error of fact review from the middle of 17th century through to the early part of the 20th century. It will chart developments in the jurisprudence of the Court of King’s Bench when reviewing factual errors under the prerogative writs, especially certiorari and prohibition, and try to identify what really led to modern law’s confusion over error of fact review.

--Dan Ernst 

Davies on Pollock's Humor

Ross E. Davies, George Mason University Antonin Scalia Law School, has posted A Wig Without a Home: The Comedic Wisdom of Sir Frederick Pollock, which appeared in the Green Bag 2d:

Frederick Pollock (1845-1937) was the Green Bag’s kind of scholar. The first half of this paper consists of a sketch of his career and character, followed by a closer look at his sense of humor and the roles it played in his work. The second half of the paper is in two sections. First, there is a full republication of the text of a tiny book — a short story by Pollock titled “Queen Titania’s Chancellor”— that for nearly a century sat unnoticed on a bookshelf in the library of the Queen’s Dolls’ at Windsor Castle, until Elizabeth Clark Ashby (Curator of Books and Manuscripts in the Royal Library at Windsor Castle) gave Pollock’s miniature masterpiece some long-overdue and well-deserved attention in her 2024 book (full-sized), “The Miniature Library of Queen Mary’s Dolls’ House.” Second, there is a close (but incomplete) reading and analysis of that tiny text. If there are any lessons to be drawn from this paper, perhaps they are that greatness need not always be cloaked in dignity, and that Jack Point was not the only wit who could “teach you with a quip, if I’ve a mind” or “trick you into learning with a laugh.”

--Dan Ernst