Welcome, Tracy Thomas

Tracy Thomas, the Seiberling Chair of Constitutional Law at the University of Akron School of Law, joins the blog this month to discuss her new book,  The First Woman Judge: The Life and Legacy of Florence Allen (University of California Press).  She is also the author of Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016) and the editor (with Tracey Jean Boisseau) of Feminist Legal History: Essays on Women and Law (NYU Press 2011).  She also directs Akron Law's Center for Constitutional Law.  From the press's website:

Florence Allen was the first woman judge many times over—first federal appellate court judge, first elected to a state supreme court, and first shortlisted for the U.S. Supreme Court. During Allen’s forty years on the bench, the country swung between progressivism and conservatism, with passage of a constitutional amendment for women’s voting rights, two world wars, the Red and Lavender Scares, and the New Deal.

Amid these changes, women used their new political standing to transform the courts, first by becoming active agents in the justice system, and then by developing theories of public law, social justice, and fair process. Exploring Allen’s fascinating legal life, Tracy Thomas recounts the larger history of how women infiltrated the legal system as judges, lawyers, jurors, and legislators to demand a more representative system of justice for the welfare of all. 

Welcome, Professor Thomas!

--Dan Ernst 

Sunday Roundup

• A notice of Felicia Kornbluh's investiture as the Mark A. Stoler Green and Gold Professor at the University of Vermont. 

• 
  The State Bar of New Mexico has received the Luminary Award for Excellence in Special Projects of the National Association of Bar Professionals for its Bar Bulletin: Commemorative Edition , which "explores more than 250 years of New Mexico’s legal history through original articles, archival photography, artwork and dual timelines" (Daily Post). 

• "On November 12, The LA Local and the Japanese American National Museum will host a live staged reading of a historic Supreme Court decision, Korematsu v. United States, in Little Tokyo, using a script by the Asian American Bar Association of New York. George Takei will play Fred Korematsu (LA Local).
  
  
• "A brief history of spoiler candidates and the unsuccessful legal challenges to them" (Conversation).

--Dan Ernst 

Weekend Roundup

• Alison LaCroix, University of Chicago Law School, "reflects on the perpetual struggle for a 'well-constructed union'"  (UC Magazine).  

• Tomiko Brown-Nagin is interviewed as she leaves the deanship of Harvard Radcliffe Institute for the James Quillen Dean of its Graduate School of Education at Stanford University.

• The Journal for the History of Ideas Blog is publishing a forum on The Conceptual History of Technology.  The legal historian Haris Durrani has contributed The Idea of Invention in the Law, which is based on his forthcoming article, “Before Invention,” which charts the history of the legal doctrine of conception. 

• A recording of Jud Campbell's Scalia Lecture at Harvard Law, entitled "The Federalist Bill of Rights" (YouTube). 

• Carlton F.W. Larson, UC Davis School of Law, has posted an interview on treason during the American Revolution (AAR).

• From In Custodia Legis: posts on "The Story Behind Latin America's Civil Codes: Shared Roots, National Traditions," "America's First Murder Trial," and Anti-Literacy Laws: The Legacy of Slave Codes.

• A recent episode of the podcast Strict Scrutiny features Rachel Shelden (Penn State) in conversation with co-host Kate Shaw, Shelden discusses her new book The Political Supreme Court: A Forgotten History. She was also at Politics and Prose, where her interlocutory was Stephen Vladeck.  And Penn State's notice of her book.

• Pennsylvania's now-closed Pennhurst State School and Asylum has a fascinating and troubling history, including a rich legal history. A new film captures some of that history, alongside footage of the current commercial uses of the space (a haunted asylum attraction, ghost hunting tours). Information about the film (The Haunting of Pennhurst) is here. I also recommended David Korostyshevsky's review, posted at the blog Nursing Clio. [KMT]  

• Here is the Call for Proposals for the annual meeting of the Association of Law and Political Economy to be held in Boston on June 9-10, 2027.

• ICYMI: A notice of A Concise History of American Law by the late William E. Nelson in the Law Society Gazette, and a review of Born Equal by Akhil Reed Amar in the Washington Independent Review of Books.
  

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

Greenlee and Mocsary on Game Laws, Black Codes, and Bruen

Joseph G.S. Greenlee and George A. Mocsary have published the essay From Royal Decrees to Black Codes: Wolford v. Lopez and the Limits of Post-Bruen Evasion in the Yale Law Journal:

Historical practices can illuminate the scope of constitutional rights, but they can also embody the abuses those rights were intended to prevent. Hawai‘i’s reliance on a Reconstruction Era Black Code to justify restrictions on public carry brought this distinction into focus. This Essay argues that New York State Rifle & Pistol Ass’n v. Bruen’s history-and-tradition inquiry is constitutional, not merely descriptive: a historical law does not become an authoritative measure of constitutional meaning simply because it was enacted. Examining English game laws, Hawaiian monarchical restrictions, and Reconstruction Era Black Codes, the Essay distinguishes historical practices that exemplify the American constitutional order from practices that order rejected, most notably through the Reconstruction settlement’s repudiation of laws intended to disarm and subordinate newly freed citizens. Such enactments cannot be erased from history, but neither should they become affirmative precedents for modern restrictions merely because they existed. Instead, they should serve as “anti-analogues”—counterexamples illustrating the abuses that constitutional guarantees were intended to prevent. This approach accounts for the entire constitutional episode, including subsequent repudiation, and supplies a principled method for evaluating historical evidence without allowing discredited governmental practices to diminish constitutional rights.

--Dan Ernst 

Insiders and Outsiders in the History of Law

It is publication day for the essay collection, Insiders and Outsiders in the History of Law, edited by Joanna McCunn and Gwen Seabourne (University of London Press):

Writing the history of law involves choices: whose stories are to be told, and how?  Traditionally, legal history has focused on influential ‘insiders’ like judges, lawyers and legislators, and on studying the records they produced. Today, increasing attention is being paid to the lives of ‘outsiders’, drawing on new sources and methods to understand their experiences of the law.

This book brings together new research that examines dividing lines drawn in the history of law and the experiences of those who have fallen inside and outside them. From prominent judges and law reformers to women, colonial subjects and gender nonconforming people, and from medieval Crusader states to twentieth-century England, this book examines the legal encounters of a wide range of individuals and communities. The authors explore how people became legal insiders or outsiders, how the law treated them, and how they sought to wield legal processes to their advantage. They demonstrate the malleability and contingency of any insider/outsider binary. From the Tudor queens of England to mixed-race people in colonial Jamaica, legal actors have transcended boundaries and interacted with law in potent and unexpected ways.

At this pivotal moment for legal history, this book prompts conversation between those engaged in legal and historical studies and legal practice, and demonstrates the potential for a reinvigorated and representative legal history to improve our understandings of law’s past.

--Dan Ernst.  TOC after the jump

Law and Diversity: Europe and Latin America

[We have the following announcement.  DRE]

Collin/Bastias Saavedra (eds.), Law and Diversity: European and Latin American Experiences from a Legal Historical Perspective. Vol. 2: Public Law.  [Global Perspectives on Legal History. Vol. 29] (A Max Planck Institute for Legal History and Legal Theory Open Access Publication)

The principle of equality is one of the cornerstones of modern legal systems. Modern law is based on  equality, and therefore assumed to stand in sharp contrast to the law of pre-modern, estate-based societies characterised by special legal regimes for particular groups or individuals. However, it is worth asking if this dichotomy can perhaps only be maintained if one looks solely at the fundamental postulates and the major codifications with their equality-orientated system formations. ‘Modernity’, too, is highly socially differentiated and continues or transforms ‘pre-modern’ distinctions to a not inconsiderable extent. All of this is often reflected in special rules created by the state or by the groups themselves – even if, in the latter case, they are often not recognised as law.

In this volume, the term ‘diversity’ denotes constellations of social difference that are relevant to normativity. This understanding of diversity only partially overlaps with the categories of postmodern diversity discourses. Rather, this volume’s central questions ask what social differences are relevant to normativity, to what extent and in what respect. Or, to relate it more specifically to the relationship between law and diversity: which social differences also make a difference to the law?

A comparative look at European and non-European developments provides a broader perspective on these issues. In this context, Latin America is a particularly fruitful field of investigation. On the one hand, a translation of European legal traditions already took place during the colonial period and, after independence, Latin American states striving for modernity often took recourse to European legal ideas and regulatory models. On the other hand, the legacy of the colonial past continued to have a formative influence, and the social differentiation to which the law had to respond was largely different from that in European societies.

To ensure that bringing together European and Latin American perspectives did not result in a series of mere juxtapositions, the contributions on the development of a specific national legal system are accompanied by comments written by experts on other national legal systems. These comments, firstly, outline the comparative development in a different state and, secondly, highlight differences and similarities. European and Latin American authors alternate. The period under discussion is the last 200 years.    

These questions are addressed in the multi-volume publication “Law and Diversity: European and Latin American Experiences from a Legal-Historical Perspective”.  In volume 1, the authors dealt with fundamental questions of law and diversity. The present volume, the second in the series, focuses on public law. Further volumes on private law and criminal law will follow.

Shelden, "The Political Supreme Court: A Forgotten History"

Out today from the W. Hodding Carter III Books imprint of the University of North Carolina Press: The Political Supreme Court: A Forgotten History, by Rachel A. Shelden (Penn State University). A description from the Press:

Today’s Supreme Court justices bristle at the label “politicians in robes,” insisting that they operate above the fray of partisan politics. But for the first century of the nation’s history, the Court was unmistakably a political institution, both by design and in practice. Justices were fully expected to engage in partisan politics—there was no concern that such engagement would lead to corruption or undue bias—and they remained deeply involved in civic debate and the electoral process while on the bench. In addition to hearing cases in the capital, each justice spent much of his time “riding circuit” and presiding over federal trial courts. On circuit and in Washington, nineteenth-century justices wrote for partisan newspapers, drafted legislation, advised partisan allies, campaigned for colleagues, and even ran for political offices from the bench. Through these political interactions, members of the Court helped shape debates about the Constitution’s meaning at a time when most Americans did not believe in judicial supremacy.

In this sweeping history, Rachel A. Shelden, one of America’s leading voices on the history of the Court, brings readers inside the social and political world of its justices, recovering their essential role in the era’s turbulent politics. She also charts shifts at the turn of the twentieth century, when members of the Court and the legal community refashioned the judiciary as an apolitical institution, setting the stage for an increasingly more powerful—and more isolated—modern Court. The Political Supreme Court is required reading for anyone interested in the legal and political underpinnings of today’s judicial power.  

A sample of praise from reviewers: 

“A deeply researched and highly enjoyable study of how politics kept the early Supreme Court accountable—and the most important historical assessment of the nineteenth-century Court in a very long time.”—Stephen Vladeck

“Rachel Shelden compellingly describes the lively political world that nineteenth-century justices inhabited, one that contrasts sharply with the purported neutrality and isolation that our Supreme Court falsely claims to possess.”—Jack N. Rakove

“This is the single best book I have read on the history of the US Supreme Court. A remarkable achievement.”—Gautham Rao

More information is available here.

-- Karen Tani

A Symposium on Dubber's "New Legal Science"

In 2025, Markus D. Dubber published the essay “New Legal Science in the Dual Penal State: Critical Analysis of Law and the Legitimacy of State Power” in the Bergen Journal of Criminal Law & Criminal Justice.  From its introduction:

New Legal Science is an approach to the study of law that aims to push legal discourse beyond its traditional parochialism by bridging the divide between common law and civil law systems, marked by the abandonment of the project of ‘legal science’ in the former and its persistence in the latter. Thus reconceived, the study of law would allow us to frame and face fundamental issues confronting all modern legal systems as such, most importantly the legitimacy of state power through ‘law.’

The journal has now published a symposium issue (14:1) on Professor Dubber's article.  Here is the TOC:

Introduction
Íñigo Ortiz de Urbina

The Coexistence of Parallel Worlds of Criminal Law Studies in the Face of the Development of the Dual Penal State
Anna Blachnio-Parzych

On Markus Dubber’s New Legal Science: Promises and Limits from a Feminist Perspective
Julieta Di Corleto

What is Left of Legal Science?
Aya Gruber

New Legal Science or International Legal Science?
Eric Hilgendorf

Can the New Legal Science Be Truly Universal?
Stefano Manacorda

A New Legal Science?
Martin Mindestrømmen

Towards a New Legal Science
Kimmo Nuotio

New Legal Science in the Post-Colony
Abhinav Sekhri

A New Legal Science Instead of an Old Parochial and Uncritical Criminal Law Science?
Adriano Teixeira

The Future of Criminal Law as a Global Discipline: The Liberal Project, the Persistence of the Penal Paradox, and the Role of Legal Scientists
Markus D. Dubber 

--Dan Ernst 

LHB on X

Some of you who learn of LHB posts via X have noted that the links in postings on X no longer click through to the blog.  To explain: X now charges for such links.  The service we've hired to convert blog posts into social media posts has responded with non-clickable links to the original blog post.  To get there, X readers have to cut-and-paste the link into their browsers.  That's less than ideal, we know.  

We continue to have clickable links on Blue Sky and, last time we looked, Facebook.  In addition, you may subscribe to an email of our posts on the blog's website, and of course the website is always there for you to consult.

Policy History Conference 2027

[We have the following announcement.  DRE]

The Institute for Political History, the Journal of Policy History and the Arizona State University Center for American Institutions are hosting the Policy History Conference in Tempe, Arizona June 2-5, 2027.Since 2002, the Policy History Conference has provided an interdisciplinary forum for presentations and roundtable discussions on policy history topics and recent policy history research. The conferences bring together academy scholars, independent scholars and graduate students to share their research. Many of the papers presented eventually appear in academic journals and other publications.

The 2027 Policy History Conference will be the last conference co-sponsored by the Institute for Political History and the Center for American Institutions. The conference will continue in future years under new leadership.

We are currently accepting panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s), and individual paper proposals are welcome. Participants may only appear once as a presenter in the program.  The deadline for submission is January 15, 2027.

Proposals for panels and papers must be submitted online at the links below, and must include the following:

1. Name(s)
2. Institutional Affiliation(s)
3. Status (i.e. ABD, Doctoral Student, Assistant/Associate/Full Professor)
4. Email address(es)
5. Panel and paper title(s)
6. One (1) 150 word abstract of panel and papers in Microsoft Word or PDF format.
7. A description of each presenter or panel participant including educational background, major publications, awards or fellowships, also in Microsoft Word or PDF format.

 Submit paper proposals here.  Submit panel proposals here.

We look forward to learning from you next year in Arizona.

Donald Critchlow
ASU Katzin Family Professor of History
Director, ASU Center for American Institutions

Weekend Roundup

• Sarah White, an assistant professor at the University of Nottingham School of Law, has been awarded a prestigious £100,000 Philip Leverhulme Prize for her research into “legal reasoning, disputes and wills in 12th- and 13th-century England. Drawing on extensive archival research, she has examined how medieval lawyers and litigants constructed arguments, interpreted procedural rules and navigated uncertainty when resolving disputes.”  More. 

• Legal historians of the future: "Department of Justice news releases and court filings from the January 6 prosecutions" are (or at least, at this writing, were) preserved at the January 6 Memory Project "after most were removed from justice.gov."

• 
  Nico Perrino, the executive vice president of the Foundation for Individual Rights and Expression, has published Free Speech Generation: The Civil Libertarians Who Saved the First Amendment and Transformed America (Simon & Schuster). 

• Caleb Nelson, University of Virginia School of Law, and Jack Goldsmith discuss Nelson's working paper, “Against the Dictatorial Presidency.”  Topics include "the modern history of unitary executive theory, Nelson’s criticisms of the theory in Slaughter, the relevance of the Necessary and Proper Clause, and the dangers of Slaughter, with special focus on the civil service" (Executive Function). 

• Andrew Wender Cohen, Syracuse University, discusses his new book, Gangster of New York: A Violent Life in Nineteenth Century America, on The Gilded Age and Progressive Era podcast. 

• Duke University’s Office of the Provost and the Provost’s Initiative on Pluralism, Free Inquiry, and Belonging convened the roundtable “Justice and the Rule of Law: The Case of Constitutional Rights and Judicial Interpretation.”  It was moderated by Kerry Abrams, Duke Law, and included Benjamin F. Chavis, Jr., Duke Divinity School; Jeanette Doran, John Locke Foundation, Thavolia Glymph, Duke History Department, and John Hood, John William Pope Foundation.  The transcript is here. 

• Michael Vorenberg, Brown University, will present "Lincoln's Peace: Struggling to Find the End of a War" at 7 p.m. November 9 in the Benes Rooms of Ohio Wesleyan's Hamilton-Williams Campus Center, 40 Rowland Ave., Delaware, Ohio (OWU).

• From Commonplace: "Bad Maps, Courtroom Clashes, and Agrarian Life in 17th-Century New England," by Nathan Braccio (Clark University).  

• ICYMI: Where the 1215 Magna Carta Originals Are Kept and How Rare Editions Still Emerge (Colin Rugg News).

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

Heniford and Tucker on History, Tradition, and the 2d Amendment

Kellen Heniford and Jennifer Tucker, Wesleyan University, have posted Artificial Silence: Historians on the Selective Construction of 'History and Tradition' in Second Amendment Jurisprudence, which is forthcoming in the Stanford Law Review:

Since the Supreme Court issued its landmark decision in New York State Rifle & Pistol Association v. Bruen in 2022, courts in the United States have heard more than 3,000 challenges to local, state, and federal weapons regulations. Bruen radically reshaped the landscape of Second Amendment jurisprudence by replacing means-end scrutiny with a two-step “history and tradition” test. Historians who have written about these developments have largely agreed that the methodology is difficult to square with what might be called the “best practices” of their profession. Especially after the 2026 decisions in both United States v. Hemani and Wolford v. Lopez, it has become increasingly clear that the Court is not only making massive demands on litigators and lower courts with respect to the marshaling of historical evidence, but that it is also uninterested in doing good or even consistent historical analysis with the evidence presented to it. The majority in these cases—and especially in Bruen and Wolford—have repeatedly telegraphed their willingness to write off entire swaths of American history as irrelevant to an understanding of the country’s “tradition” of regulation. The more restrictive the Court is as to what counts as acceptable history, the narrower the scope of acceptable analogy, and the less likely any given gun violence prevention law is to survive constitutional scrutiny.

In this Essay, we explore the concept of “artificial silence”—which we define as the selective rejection of relevant historical evidence in the adjudication of Second Amendment claims. To demonstrate the ways this artificial silence has been constructed, we trace the evolving and often contradictory demands that Bruen and its successors have placed on litigators and, secondarily, on historians. Using examples from an ongoing project at the Center for the Study of Guns & Society at Wesleyan University, we argue that American weapons regulation was neither static nor monolithic, but instead deeply shaped by local circumstances, cultural norms, and political structures that varied across time and space. This diversity underscores that only a broader method that integrates legal, social, technological, and cultural history can meet the evidentiary and analytic requirements required in the post-Bruen era, even as the Supreme Court narrows the range of historical analogies it is willing to entertain.

--Dan Ernst 

Mitchell, "Unsettling Sovereignty: International Law, Nuclear Weapons, and US Extraterritorial Power in Postwar Oceania"

New from the University of Chicago Press: Unsettling Sovereignty: International Law, Nuclear Weapons, and US Extraterritorial Power in Postwar Oceania (2026), by M.X. Mitchell (New Jersey Institute of Technology and Rutgers University, Newark). A description from the Press:

In the years following World War II, the United States conducted sixty-seven devastating nuclear blasts in the Marshall Islands—yet the archipelago was never a US territory. Working through the United Nations, US diplomats engineered a new, one-of-a-kind extraterritorial status, called strategic trusteeship, to control the Native lands, waters, and peoples of the Marshall, Caroline, and Northern Mariana Islands. Strategic trusteeship permitted the US to militarize a vast expanse of Western Oceania. This novel and racialized legal form of international dependency was integral to US nuclear weapons detonations and damage in the region.

In Unsettling Sovereignty, M. X. Mitchell recounts this untold legal history, exploring how nuclear weapons changed claims and practices of sovereignty from the 1940s to the present. US nuclear blasting in the Marshall Islands troubled conventional renderings of state sovereignty under international law. The explosions, disastrous for Marshallese communities and their ancestral atolls, also caused hazardous nuclear fallout, which spread around the globe. Islanders and their allies turned to law, using legal wrangling over blasting and fallout to raise new questions about the location, time, and subjects of state violence in a period of decolonization; the intersections between race, Indigeneity, and wide-scale technogenic harm; and the pitfalls and unfulfilled promises of international law. Mitchell shows that the Marshallese people and their lands and waters were, and remain, central to redefining sovereignty in an era of boundless pollution and climate change. 

Praise from reviewers:

“Unsettling Sovereignty is a magisterial account of the struggles over US military colonialism in Micronesia after World War II, as the Marshall Islands became a so-called proving ground for nuclear test detonations. Mitchell traces the political and material consequences of US jurisdiction and ongoing nuclear blasting, as well as the legal conflicts these events set off. Ultimately, Marshall Islanders used US environmental law to win recognition of their rights, negotiate sovereignty, and forge the Marshallese state. This is essential reading for scholars and students in history of American science, legal history, and environmental studies.” -- Angela N. H. Creager

“US nuclear explosions in the Marshall Islands during the Cold War were not only catastrophically destructive, but also an occasion for the creation of law as Pacific Islanders fought to retain sovereignty over their homelands, Mitchell shows in this brilliant and original book. Unsettling Sovereignty puts the Islanders at the center of US nuclear history. A powerful and important contribution.” -- Mary L. Dudziak

More information is available here. And we're told that if you purchase from the Press, a 30 percent discount is available (use code UCPNEW).  

-- Karen Tani

FedSoc Webinar on Criminal Justice and the Declaration

The Federalist Society will livestream a webinar on October 28, 2026, at 1:00 p.m. EDT, entitled The Founders’ Indictment: Our Criminal Justice System Through the Lens of the Declaration:

As Americans mark the 250th anniversary of the Declaration of Independence, this Federalist Society America 250 program examines a foundational, yet often overlooked, aspect of our national charter: the colonists’ complaints about the Crown’s administration of justice. The Declaration charged the Crown with “depriving us in many cases, of the benefits of Trial by Jury,” “transporting us beyond Seas to be tried for pretended offences,” and sending officers to “harrass our people, and eat out their substance.” Those grievances helped shape constitutional protections for the accused, including the jury-trial and venue guarantees of Article III and the Sixth Amendment, as well as the Eighth Amendment’s protection against excessive fines.

How well does the modern criminal justice system reflect those founding-era commitments? Criminal jury trials have become increasingly rare as plea bargaining has come to resolve the overwhelming majority of cases, prompting debate over whether the so-called “trial penalty” places undue pressure on defendants to surrender their right to trial. At the same time, civil asset forfeiture and other fines and fees raise questions about when legitimate law-enforcement tools become excessive or create improper financial incentives.

Join us as our panel considers what the Declaration’s grievances can teach us today about our criminal justice system.

The panelists are Mike Fox, Legal Fellow, Cato Institute; Prof. John F. Stinneford, Edward Rood Eminent Scholar Chair, Professor of Law, and Senior Fellow, Hamilton Center for Classical and Civic Education, University of Florida Levin College of Law; Prof. Renée Lettow Lerner, Donald Phillip Rothschild Research Professor, George Washington University Law School; and Sarah Field, Chief Counsel, Legal Policy, Koch Capabilities, LLC (moderator).  Register here.

2027-2028 Berger-Howe Fellowship

[We have the following announcement.  DRE]

Harvard Law School invites applications for the Raoul Berger-Mark De Wolfe Howe Legal History Fellowship for the academic year 2027-2028.  Eligible applicants include those who have made substantial progress on their doctoral dissertations or who have recently been awarded a doctoral degree. A first law 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 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 projects. The fellow will also participate in the Harvard Law School Legal History Workshop, a for-credit semester-long seminar, and assist with occasional other legal history sessions, both under the direction of Harvard faculty affiliated with the Program in Law and History.  The term of the fellowship is July 1 through June 30.  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 2027-2028 should submit their applications and supporting  materials electronically to Professor Bruce H. Mann (mann@law.harvard.edu).

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 14, 2027, and announcement of the award will be made by February 26, 2027.  The fellow selected will receive a stipend of $60,000.

Michigan Law's Junior Scholar's Conference

[We have the following announcement.  DRE]  

The University of Michigan Law School is pleased to invite scholars to submit their abstracts for the 13th Annual Junior Scholars Conference, which will take place in Ann Arbor, Michigan, on March 26-27, 2027.

The conference provides junior scholars, from institutions around the globe, with a platform to present and discuss their work with peers and receive feedback from faculty of the University of Michigan Law School, one of the premier law schools in the world. It aims to promote fruitful collaboration between participants and encourage their integration into a community of international legal scholars. 

Please direct any questions to law-doconf@umich.edu.

Law and Morality in the Soviet Estonian Judiciary

[We have the following announcement.  DRE]

The next Helsinki Legal History Series seminar [will be held] on October 27th! We are delighted to welcome Dr. Minna-Kerttu Kekki (University of Helsinki) to give a lecture titled: “Law and Morality in Soviet Estonian Judiciary: A philosophical analysis of a case from 1960.”  Time: 3 pm – 4.30 pm.  Location: Athena Sali 167.  Link for online participation [here].  

In this paper, I will look at a collective property embezzlement case in Soviet Estonia in the 1950s. Interesting factors in this case include the enormous amount of money allegedly embezzled by one individual, the social sympathies revealed by some of the witness statements, and the two-part court process, where the case was sent back to the same court (Tartu lower court, Rahvakohus) but to a different judge, after the state prosecutor found the (first) sentence too mild. Based on the multiple perspectives included in the case – the accused, the two judges, and many witnesses from the kolkhoz and elsewhere in the community – I will analyze the complex relation between law and morality visible in this case.

Minna-Kerttu Kekki (PhD, DSocSci) is a postdoctoral researcher at the Centre for European Studies, University of Helsinki. She is a political philosopher with a multidisciplinary background in philosophy, education, and history. Her current research topics include the political phenomenology of Edith Stein, theory (phenomenology) of collective memory, and the Soviet histories and memories of Estonians and Ingrians. In the project The Experience of Injustice: Property, Legality and Identity in Rural Eastern Europe from 1945 to 1995 (EastJustice), she focuses on Estonia, especially the area of Tartu.

Likhovski's "Legal Theory in the Colonies"

 New from Cambridge University Press and the ASLH’s book series, Studies in Legal History: Legal Theory in the Colonies: Hindu and Jewish Scholars under British Rule by Assaf Likhovski, Tel-Aviv University.  It is available open access on Cambridge Core.

In colonial India and Mandatory Palestine, early-twentieth-century legal scholars made important contributions to the study of the nature of law, particularly by analyzing Hindu and Jewish law - their ancient religious systems. This book reconstructs the lives and ideas of these scholars, revealing a forgotten global wave of jurisprudential innovation that appeared across many territories in the non-Western world. The book challenges the view that non-Western legal scholars working in the colonies were passive recipients of Western ideas. It argues that Indian and Jewish thinkers used Western historical and sociological approaches to law to reimagine Hindu and Jewish law, and to assert their relevance to modern legal and constitutional debates. Though historical in scope, the story this book tells is also relevant to contemporary tensions between Western liberal law and non-Western religious legal traditions. 

--Dan Ernst 

“Presidentialism and the Escalation of Executive Power"

The Annual Boston University Law Review Conference will take place this week on the topic “Presidentialism and the Escalation of Executive Power.”  It commences with a "pre-note" keynote at lunchtime on Wednesday, October 21: Cass Sunstein (Harvard Law), “History and Tribalism in Constitutional Law.”   Of the many panels, the following are of special interest to legal historians:

Thursday, October 22: 4:20-6:20pm Big-Picture on the Rise of Presidentialism
Ashraf Ahmed (Columbia), “Justifying the Presidency?”
Joshua Macey (Yale) and Brian Richardson (Cornell), “Separation-of-powers Formalisms”
Bijal Shah (Boston College), “The Deeper State”
Diego Zambrano (Stanford) & Mila Versteeg (Virginia),“Great Expectations: How to Restore the Rule of Law”
Guy-Uriel Charles (Harvard), commentator
Steve Koh (BU), chair

Saturday, Oct. 24: 11:20-12:40  Democracy and Rule of Law
Aziz Huq (Chicago) (paper w/ Tom Ginsburg), “Exhuming the Impetuous Vortex”
Robert Tsai (BU) “The Judge’s Dilemma in a Populist Age”
Matthew Segal & Nellie Conover-Crockett (ACLU),“Is the Westfall Act unconstitutional? Rethinking state sovereignty and converse-1983 statutes.”
Jim Fleming (BU), chair and commentator

1:00-2:20 pm 20th Century Rise of Presidentialism
Jane Manners (Fordham),“The Anti-Unitary Roots of Nondelegation: Schechter/Humphrey’s”
Rafi Stern (BU), “Was the APA a Grand Compromise?”
Andrea Scoseria Katz (Washington U.),”How to Build a President: Executive Branch Lawyering, Social Movements, and the Constitutional Construction of the Unitary Executive, from Nixon to Roberts.”
Andrew Kent (Fordham), “The Expansive Executive Power Clause”
Noah Rosenblum (NYU), commentator
Nicholas Parrillo (Yale), commentator

--Dan Ernst 

Berman, "Who Is American? Belonging and the Question of Jewish Citizenship"

Princeton University Press has published Who Is American? Belonging and the Question of Jewish Citizenship (2026), by Lila Corwin Berman (New York University). A description from the Press: 

The history of Jews in the United States is often told as if they immigrated, gained citizenship, and almost immediately achieved full legal rights. Yet this story fundamentally misses how citizenship rights worked for Jews and countless others who arrived on American shores. In Who Is American? Lila Corwin Berman draws on case law, statutes, and debates to argue that both the laws of American citizenship and Jews’ position in them changed repeatedly across the twentieth century. Courts, policymakers, and the public persistently asked what it meant to be Jewish under the law. Were Jews a race, a nationality, a religion—or some combination of each? The answer carried profound legal consequences. Not only did it determine Jews’ citizenship status, but it also affected the rights they could exercise. Just as significantly, the meaning of the categories under law changed over time, affecting Jews’ self-understanding, their political ideals, and their relationships to other groups of Americans.

Who Is American? tells a history that resonates powerfully with today’s high-stakes battles over citizenship and rights. As Berman concludes, citizenship law has always been better at posing questions about the terms of belonging than at providing any ultimate resolution. The tangled story of Jewish citizenship demonstrates the limits of law and explains why the United States continues to fall into new and, often, unsettling debates about who is American. 

A sample of praise from reviewers: 

“This provocative book definitively explodes the longstanding and misleading myth of ‘American Jewish exceptionalism,’ namely, that American Jews gained citizenship automatically, uncontroversially, and irrevocably—unlike their brethren in Europe and elsewhere. Berman demonstrates that the granting of citizenship was always contingent and disputed. This book will be required reading for everyone concerned with the past, present, and future of Jews in America.”—David Sorkin

“A timely, accessible, and fascinating contribution to American Jewish history and to the history of citizenship in the United States more broadly.”—Jessica M. Marglin

More information is available here. An interview with Professor Berman is available here,  via New Books in Law.

-- Karen Tani

Weekend Roundup

• A few recent posts of interest from over at JOTWELL: Eliot Tracz (New England Law) shines a spotlight on Jill Elaine Hasday's We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality (2025); Sara Mayeux (Vanderbilt Law) admiringly reviews Julia Rudolph's "William Blackstone, Family Man: New Contexts in Gender, Jurisprudence, and Jamaica," which recently appeared in the Law & History Review.  

• Job alert: "The Department of History, Politics, and Law at Nazareth University of Rochester invites applications for a full-time, 9-month tenure-track faculty position in Legal Studies." More. (HT: H-Net.)  

• Via the Nation: John Fabian Witt (Yale Law School) reviews Niko Bowie and Daphne Renan's Supremacy: How Rule by the Court Replaced Government by the People.  Professor Witt concludes, "Our political crisis would be much simpler if Bowie and Renan were right and the court had disabled our democratic politics.  The harder truth is that our democratic politics have built and enabled the court."

• Sara McDougall, John Jay College of Criminal Justice, discusses her new book, Justice for Jehanne: The Tale of Medieval Survivor (PUP).

• 
  Over at Opinio Juris, a symposium is under way on Gregory S. Gordon’s Nuremberg’s Citizen Prosecutor: Benjamin Ferencz and the Birth of International Justice (University of Virginia Press, 2025). 

• A notice of Mary Mitchell's new book, Unsettling Sovereignty: International Law, Nuclear Weapons, and US Extraterritorial Power in Postwar Oceania (University of Chicago Press) (NJIT). 

• The New York State Archives will host a symposium at the Cultural Education Center in Albany, on April 20, 2027 to commemorate the 250th anniversary of the New York State Constitution of 1777 (New York Almanack).

• In the first episode of the New York Review of Books podcast, Endgame with Fintan O’Toole, the host interviews Annette Gordon-Reed (NYRB). 

• Jack Rakove discusses "constitutional failure" in on the Ballpark, a podcast of LSE's Phelan United States Centre

• A brief notice of Beth Lew-Williams's Stulman Lecture, “John Doe Chinaman: Chinese Life Under American Racial Law" (JHU History). 

• The ACLU has launched The People’s Archive, "a dynamic digital museum that combines photography, audio, print, and video chronicling the organization’s key civil rights and civil liberties milestones throughout its over 100-year history" (ACLU).

• On Saturday, October 24, 2026, "Illness and Influence: The Battle over Joseph Crosby's Estate," a reenactment of a Washington, Arkansas, court case from 1856 will take place at 1836 Hempstead County Courthouse (TXK Today).  

• "Visitors had the chance to experience a piece of Kansas history [last] Saturday as Constitution Hall Topeka hosted an event commemorating the 1855 Topeka Constitutional Convention" (KSNT).

• The American Historical Association has endorsed "the Smithsonian Integrity and Historical Independence Act of 2026, introduced by Reps. Melanie Stansbury (NM-01), Jonathan Jackson (IL-01), and Kweisi Mfume (MD-07) in response to ongoing attacks on the Smithsonian by the Trump administration (AHA).

• China’s Ministry of Education has recognized Michael Ng, Hong Kong University, with a Popular Science Publication Award for Political Censorship in British Hong Kong: Freedom of Expression and the Law (1842–1997) (Cambridge University Press).  It argues that "the territory’s celebrated freedom of speech and judicial independence are not inherited British legal traditions but products of specific historical circumstances shaped by British policies towards China" (HKU Lead). 

• ICYMI: "At Harvard Law School’s VthePeople conference, Jill Lepore recounted the lost history of constitutional and political conventions in the U.S." (Harvard Law Today).  Mark David Hall asks What Does "History and Tradition" Require? in Establishment Clause cases (Law & Liberty). Jury Trial, Legal Tradition, and Unexpected Lessons from the History of the Mongol Empire (Middle Templar).  The 1946 Law That Put America’s Atomic Bombs Under Civilian Control (History).

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

Arcadi, "Concrete Leviathan: The Interstate Highway System and State Building in Modern America"

New from the University of Chicago Press: Concrete Leviathan: The Interstate Highway System and State Building in Modern America (2026), by Teal Arcadi. A description from the Press:

In Concrete Leviathan, historian Teal Arcadi denaturalizes the interstate highway system, interrogating the ideologies, fiscal mechanisms, and legal tools that led to the construction of a vast and permanent physical infrastructure—and then made it all but impossible to change course. Arcadi argues that the US interstate highway system was built by an unaccountable regime of law and political economy that systematically created and insulated structures of governance. The power of these administrative and physical structures has been such that even when people have mobilized to oppose or try to change them, their protests have tended only to reveal the extent and power of the infrastructural state. 

At the same time, Concrete Leviathan shows how resistance to this infrastructure’s inequities generated new democratic ideas and practices, pointing toward more participatory structures of government and more equitable models of state building.  

Praise from reviewers:

"Scholars of infrastructure and urban planning have shown how the physical structure of our roads encodes patterns of movement and development in ways that make racial and economic disparities durable. In this revealing and timely new book, Arcadi deepens these arguments by showing further how the way we have built our infrastructure has shaped the nature of political power and governing institutions themselves in ways that challenge long-term values of democracy, participation, and effective governance. At a time where the question of reimagining governing institutions and capacity is front and center, and essential for the prospects for American democracy, Arcadi's accounts of history, institutional development--and the commitment to a more effective yet democratic mode of future governance-- are essential reading for policymakers, scholars, and advocates alike." — K. Sabeel Rahman

“Concrete Leviathan makes a significant contribution to the field, combining deep historical research with a critical analysis of infrastructure, race, and state power. It challenges conventional narratives about public works projects and brings new insights into how state building, more generally, can reflect and reinforce societal inequalities. The book stands as an essential addition to the historiography of American political economy and the history of infrastructure.” — Jason Scott Smith

More information is available here. See also the book-related posts on Arcadi's substack, Gridworks. 

-- Karen Tani

Osterkamp's "Federal History of the Habsburg Empire"

Jana Osterkamp has published A Federal History of the Habsburg Empire, 1815-1918 (Oxford University Press):

The Habsburg Monarchy was a Europe in miniature. In the nineteenth and twentieth centuries, it served as one of the world's most innovative laboratories for federal concepts, navigating an immense multiplicity of peoples, languages, and cultures. Based on extensive archival material and new sources, A Federal History of the Habsburg Empire, 1815-1918 provides a groundbreaking and new political history, exploring federalism not just as an abstract idea, but as a living practice of multi-level governance.

From the executive federalism of Metternich to the fin-de-siècle 'cooperative empire', the study examines how power was distributed across the Habsburg empire, its imperial halves Austria and Hungary, and its historic crown lands such as Bohemia, Austria, Tyrol, and Galicia. It illuminates a system where elites collaborated on new tasks-from education and public health to social security and infrastructure-bridging the gap between pre-modern traditions of governance and the challenges of modern times.

By analyzing unique federal models like 'non-territorial personal autonomy', which was implemented in diverse regions ranging from Moravia to the Bucovina and Bosnia-Herzegovina, Jana Osterkamp provides new answers to what held this complex polity together and why it ultimately fell apart. Habsburg federalism was always in tension, balancing imperial integration with claims for national self-determination. Serving as a prequel to modern Europe, this work reveals how federalism sought to secure a balance where diversity is not absorbed into unity.

--Dan Ernst 

Kelly on Liberian Legal History

Ezekiel Kelly, a Lecturer at Censil University, has posted two papers on the legal history of Liberia.  The first is Sovereignty on Trial: Liberian Law, Forced Labour and the League of Nations Commission of Inquiry, 1929–1930: 

I examine how Liberia used law and sovereignty to answer the forced-labour accusations of 1929–1930, and what the inquiry revealed about government in the interior. I read the commission’s report against the government’s replies, the legal provisions reproduced in the report and American diplomatic correspondence. I argue that Liberia’s defence depended on its claim to control both the investigation and the reforms that followed. The government authorised the inquiry, disputed parts of the evidence and accepted recommendations without accepting every finding. The report exposed a different relationship between government and the people required to work. Officials could demand labour through commissioners, chiefs and soldiers, while those subjected to these demands had limited access to officials who might protect them. The legal problem concerned the enforcement of freedom as much as its formal recognition. I also examine the unequal terms of international scrutiny. The commission investigated Firestone but qualified its findings by reference to corporate knowledge, and it recommended foreign officials as a remedy for Liberian misgovernment. I conclude that Liberia’s defence of independence must be considered alongside its failure to make constitutional protection accessible in the interior.

The second is Two Laws, One State: Customary Courts and the Legal Governance of Liberia's Hinterland, 1912-1956:

 I examine how Liberia's government incorporated customary authority into the administration of its hinterland and how the Supreme Court contested the resulting exercise of judicial power. Two judgments, Jedah and others v Horace (1916) and Karmo and another v Morris and another (1919), expose a disagreement within the state over the constitutional position of the interior. In Karmo, the government argued that constitutional restrictions did not govern executive action beyond the coastal counties. The Court answered that Liberia's claim to sovereignty carried constitutional obligations throughout its territory. Yet its reasoning also justified the incorporation of indigenous communities without their consent. Reading these decisions alongside the 1930 international inquiry and the 1956 Aborigines Law, I argue that constitutional review and administrative domination developed within the same legal order. The 1956 legislation made complaints, records and official supervision part of interior government while retaining courts closely connected to the executive. Legal plurality therefore requires an account of who controlled jurisdiction and access to review. The dates in the title define the proposed historical span; the precise statutory basis for the opening date remains to be established. 

--Dan Ernst 

Dannies, "Conscripting Breadwinner Soldiers in the Late Ottoman Empire: Family, Law and War"

Edinburgh University Press has published Conscripting Breadwinner Soldiers in the Late Ottoman Empire: Family, Law and War (Edinburgh Studies on the Ottoman Empire, 2026), by Kate Dannies (Miami University). A description from the Press:

This book examines the gender and family dimensions of mobilisation for the First World War in the Ottoman Empire, situating the war in a long-nineteenth-century social history of Ottoman military reform for the first time. It focuses on the military legal concept of muinsizlik (sole breadwinning) and how this concept shaped Ottoman military policy - namely, how militarisation and mobilisation were supported by the exploitation of women's care and social reproductive labour, as well as the extraction of material and physical resources from Ottoman families.

In exploring how war worked at the level of the body, the individual and the family, this book demonstrates how Ottoman society and war became imbricated through processes of militarisation that led to significant consequences during the First World War and its aftermath. Based on a gendered reading of Ottoman military and bureaucratic archives, it addresses a pivotal moment in the modern history of the Middle East that has long awaited further study from a bottom-up perspective.

For an interview with the author, follow the link to the New Books in Law podcast.

-- Karen Tani 

Kelley's "Crimes Against Feeling"

Mark B. Kelley, an assistant professor of English at Florida International University, has published Crimes Against Feeling: Piracy, Sympathy, and Ocean Politics in Antebellum American Legal Culture (University of Massachusetts Press, 2026): 

Pirates have long occupied a central yet unstable place in American law and national identity. In the decades leading up to and including the U.S. Civil War, the charge of piracy was leveled against an unusually wide range of figures: foreign heads of state, imperial filibusters, transoceanic enslavers, enslaved mutineers, radical abolitionists, and others who challenged established forms of authority. Early American literature reflects this instability, portraying pirates who vary dramatically in politics, race, gender, and allegiance. As Mark B. Kelley shows, these characters are united less by ideology than by their challenge to landed social norms and fixed national belonging. The pirate, in both law and literature, emerges as an individual defined by multiplicity rather than political coherence. 

Crimes Against Feeling examines how Americans made sense of this ambiguous figure by turning to emotion. Drawing on legal materials including treaties, trial transcripts, congressional debates, and U.S. Supreme Court decisions, as well as popular sentimental fiction (often written by women), Kelley argues that piracy was codified as an offense against moral feeling rather than being a singular political position. Legal thinkers and writers such as John Quincy Adams, Abraham Lincoln, Jefferson Davis, Catharine Maria Sedgwick, Harriet Beecher Stowe, and Maria S. Cummins relied on shared affective frameworks—sympathy, sentiment, and domestic vulnerability—to render piracy legible and punishable. American pirate law, Kelley demonstrates, was shaped by the same emotional logics that structured the era’s popular fiction. 

By tracing piracy across debates over domestic sovereignty, global enslavement and abolition, imperial expansion, postbellum reparations, and international copyright, Crimes Against Feeling reveals the pirate as a key figure for understanding gender, home, family, and nation in early America. Reading law and literature together, the book shows how emotional judgment—not political consensus—became a foundational tool for managing oceanic violence and transnational disorder in the nineteenth-century United States. 

Professor Kelley will discuss the book at Marquette University on Tuesday, October 20. 

--Dan Ernst 

New from the FJC: Case Management, Prohibition, and More!

Perhaps like us you have overlooked recent online essays by the historians of the Federal Judicial Center.  The very latest is Jake Kobrick's Civil Case Management in the Federal Courts, which, among other things, provides a useful periodization of the subject.  Other recent essays include The Judiciary Act of 1801, Prohibition in the Federal Courts: A Timeline, Penhallow v. Doane's Administrators, Early Radio in the Federal Courts, Supreme Court Meeting Places and more.

--Dan Ernst

Barrett to Lecture on Hughes

Hughes on the Stump (NYPL)

On Thursday, October 15, 2026, at 6:00 p.m., John Q. Barrett, St. John’s Law, will deliver the 59th Charles Evans Hughes Memorial Lecture, which is co-sponsored by New York Court Lawyers Association and by Hughes Hubbard & Reed, which will host the event.  Professor Barrett’s topic will be “‘Presidential Material’ Should Be ‘Supreme Court Material,’ and Vice Versa: The Charles Evans Hughes Model.”  Register here.

--Dan Ernst

CFP: Doing History in Law

[We have the following CFP.  DRE.]

Doing History in Law.  Friday, February 26, 2027, 9am to 5pm EST (virtual online)

The Center for Constitutional Law at Akron seeks submission of abstracts to present and publish at the 2027 Virtual Symposium, Doing History in Law. The Akron Center for Con Law is one of four national centers established by Congress on the bicentennial of the U.S. Constitution to support legal research on constitutional matters.

The 2027 symposium explores the contours of the U.S. Supreme Court's emerging legal standard of "history and tradition" for constitutional analysis. Keynote speaker Prof. Jonathan Gienapp contributes thoughts from his new book, Against Constitutional Originalism, using historical analysis to critique the Court's own analysis of history. For the Court's law-office history presents methodological pitfalls in analyzing individual rights. But might it also offer opportunities?

Commentators at the symposium might engage with the topic of history and law by critiquing and discussing the "history and tradition" standard, including its origins, application, and problems. Topics for papers might also delve into methodology, the meaning of "history" including its fixity and fluidity, how lawyers and judges can or should conduct historical research, what counts as history, or who gets left out of history. They might address jurisprudential concerns distinguishing historical analysis from originalism, textualism, or pragmatism. Presenters might also discuss specific historical projects, case applications of the history and tradition test, or how lawyers should be using history in advocacy. The topic is intended to be a broad umbrella to explore the many aspects and consequences related to doing history in law.   

Abstracts for the 2027 Con Law Virtual Symposium, Doing History in Law, should be submitted by January 25, 2027. Please submit abstracts to Professor Tracy Thomas, Director of the Center for Constitutional Law at Akron, at thomast@uakron.edu.

Papers will then be published in the Center's journal, ConLawNOW, a faculty edited, open-access, online journal. Final papers should be submitted a few weeks after the symposium on March 20, 2027, for publication in a spring symposium edition. Papers for this online journal are typically short essays between 5,000 to 10,000 words in length, but there is flexibility in the length, tone, and format of published papers.  

Weekend Roundup

• UC Law SF has posted a lovely interview of an excellent and exemplary legal historian, Reuel Schiller. 

• A really interesting post by Nathan Dorn, Rare Books Curator at the Law Library of Congress, on Thomas Nugent, the translator of many of the European works that influenced American revolutionaries (In Custodia Legis).  

•  A notice of an event at Vanderbilt Law for Camellia Burris and Emily Siner’s "The Debt: What Tennessee Owes Its HBCU," a podcast devoted to Geier v. Tennessee (1968) and Tennessee State University’s fight for fair funding.  Its origins run to Ms. Burris’s auditing of Daniel Sharfstein’s course on the legal history of race.

• Oh, John R. McCarl, were you with us in such times!  "Appointing the Comptroller General: Law and History" (CRS).

• The October 2026 issue of the newsletter of the Historical Society of the DC Circuit is now online.  It includes a story on Laffey v. Northwest Airlines, which held that Northwest paid its female flight attendants less than male pursers performing equivalent work. 

• In the first episode of "Law Office History," the podcast of the Institute for Justice, William Baude, University of Chicago Law School, discusses his coauthored article arguing that the drafters of the Fourteenth Amendment wrote with the “general law” in mind. 

• The ACLU's new history podcast kicks off with Marbury v. Madison, "The Messy Drama That Gave the Modern Supreme Court Its Power." 

• ICYMI: Benjamin Victor Cohen, the New Deal's master legislative drafter, gets a historical marker in Indiana (collive).   How the length of tenure of Supreme Court justices has changed over time (Brennan Center).  Ryan Cooper's essay on Nikolas Bowie and Daphna Renan's Supremacy in The American Prospect.

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

King on the Supreme Court's "History-and-Tradition" Approach

Elliott A. King, Cornell Law School (J.D. 2027), has published his Whose History, Which Tradition? An Examination of Historical Sources in the Supreme Court’s History-and-Tradition Jurisprudence in the Cornell Law Review:

 The Supreme Court’s modern reliance on history and tradition has reshaped constitutional adjudication across multiple doctrinal areas, including Substantive Due Process, the Second Amendment, and the Religion Clauses. The Court has justified this methodology as a means of constraining judicial discretion by anchoring constitutional meaning in the past. Yet persistent disagreement within the Court reveals a threshold methodological problem largely left unexplained: which historical sources are eligible to define constitutional meaning.

This Note examines numerous Supreme Court decisions and identifies three recurring categories of historical sources used by the Court in its history-and-tradition jurisprudence: American, English, and non-Anglo-American Sources. It shows that the Court alternates among these source categories without articulating consistent criteria governing their eligibility, producing doctrinal inconsistency and complicating application by lower courts. In response, this Note proposes a modest framework for historical source eligibility that emphasizes source hierarchy and temporal baselines through principled explanation. Clarifying these threshold methodological judgments would preserve history’s constraining function while improving coherence and predictability in constitutional interpretation.

--Dan Ernst 

Chen on Rethinking the Chinese Legal Tradition

Li Chen, University of Toronto, has posted Rethinking the Chinese Legal Tradition: Ideological Formations and Their Disputed Legacy:

After reviewing prior scholarship and recent debates on the Chinese legal tradition, this paper suggests an interdisciplinary, alternative framework for reexamining the judicial practice, juridical field, and legal culture in late imperial China. 

--Dan Ernst 

Sullivan and Tsoukalas on Watergate-Era DOJ Reform

Barry Sullivan and Arete Tsoukalas, Loyola University Chicago School of Law, have posted Watergate, the Roberts Court, and the Independence of the Department of Justice, which is forthcoming in the Journal of Criminal Law & Criminology.  It pairs well with this story in today's New York Times and with Devlin Barrett's The Department of Revenge: How Trump Took Control of American Justice (Simon & Schuster, 2026), which we're reading.

Main Justice (without the present banner) (LC)

After Watergate, the reputation of the Department of Justice was in tatters. Among the reforms that were considered, the most extreme may have been Senator Sam Ervin's proposal to transform the Department into an independent agency, beyond the direct control of the President. The legislation failed, but the legislative history is instructive. Among other things, there was a strong consensus that the totality of the Department's prosecutorial responsibilities could not constitutionally be transferred to an independent agency; but there was also a strong consensus that the Attorney General should not be the President's intimate or political operative, that the Department of Justice should have some degree of independence from presidential control, and that the President should not have any role in deciding which particular individuals or entities should be investigated or prosecuted. Under Attorney General Levi and his immediate successors, what Senator Ervin hoped to achieve through legislation was largely accomplished through administrative regulation and convention, and that settlement was mostly honored by succeeding administrations.  

The Supreme Court has now adopted the expansive view of presidential power reflected in Justice Scalia's lone dissent in Morrison v. Olson (1988). According to Trump v. United States (2024), the President has "exclusive authority over the investigative and prosecutorial functions of the Justice Department," even when the investigations are "shams" or undertaken for a clearly improper purpose. The Court's recent jurisprudence has converted a once overwhelmingly rejected minority position into a shield for direct presidential control of prosecutorial and administrative power, a shield that presidents may use to investigate and prosecute their political adversaries in ways the Watergate-era reformers thought they had foreclosed. At the same time, Congress has largely shunned its own oversight role. This paper revisits Watergate and its now-forgotten lessons about unbridled executive power in light of the Senator Ervin's proposed legislation and current constitutional developments. 

--Dan Ernst