Weekend Roundup

• Berkeley Law's notice of its new legal historian, Aaron Hall (UC Berkeley Law).  

• Daniel F. Gosling, Principal Legal Records Specialist at UK's National Archives, has announced the completion of his searchable database of 

• Legal Histories of Empire has posted a "save the date" for its fifth conference, 13-15 July 2028, at NLSIU Bengaluru.   

• The University of Kansas's notice of Raj Bhala's article on the rule of law in “Measure for Measure" (KU News).

• The Library of Congress has a new research guide on the Legal Tender Act of 1862.

• Kevin Kruse on The Rise, Fall, and Possible Rebirth of the DOJ's Civil Rights Division (Talking Feds with Harry Litman). 

• Julia Rose Kraut, Sam Lebovic and Ellen Schrecker's amicus brief in an ideological deportation case, AAUP v. Rubio (1st Cir.) (Brennan Center).   

• The legal historian Patti Minter has been appointed to Kentucky’s Board of Education (College Heights Herald). 

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  Noticed in the New York Almanack: Carol Kammen's Smut: An 1883 Obscenity Trial and Its Echoes Today (Paul Dry Books, 2026), on an 1883 trial for “selling and exhibiting obscene pictures.” 

• Rosemarie Zagarri on The Grievances of the Declaration of Independence: a National Constitution Center podcast.  

• Danielle Allen and Mary Bilder on the Declaration of Independence on Preet Bharara's podcast. 

• Robert P. George, Princeton University, and Jonathan Gienapp, Stanford University, on the Declaration of Independence as the nation’s “promissory note” (SLS Podcasts).

• Did the Constitution Lay the Groundwork for Abolition? A Federalist Society webinar with Timothy Sandefur and Kenneth Williams.  The recording of the National Constitution Center's book even for Mr. Sandefur's new book Proclaiming Liberty: John Adams, Thomas Jefferson, and the Declaration of Independence is here.  
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• "Founding Friends, Founding Foes": Kurt Graham and Steve Light on John Adams and Thomas Jefferson, at the Harry S. Truman Library on September 23.   

• A notice of Gautham Rao's course, HIST-196 America at 250: Revolution (AU Magazine).

• Check out Drafting the Past: "a new home to celebrate nonfiction history books." 

• ICYMI: Hangings in Jefferson County, PA (ExploreJefferson).  What the Framers Were Really Thinking (Harvard Gazette).  Ohio in the oleomargarine wars (CNO) .

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

10 Sources I discovered while writing my (second) book

During the 12+ years I spent working on Fear of the False: Forensic Science and the Law of Crime in Colonial South Asia, I came across some truly incredible primary sources. In this 2^nd guest post for August, I’d like to share my top 10. These sources may be useful not just for legal historians working on South Asia or the British empire, but also for those working on criminal cases, forensic science, or related themes in other times or places who want to dip their toe into the comparative context. And as everyone dusts off their syllabi to get ready for the new semester, these sources could also be useful for teaching.

Here they are in no particular order (after the jump): 

Bellis-Phan on Distraint in Early Modern France

Nga Bellis-Phan has posted A Legal Remedy Against Rent Arrears: Landlords’ Privilege on Furniture in Sixteenth- and Seventeenth-Century France, which appeared in Early Modern Debts, 1550-1770 (Palgrave Macmillan, 2020):

The frequent default in rents payments was a real challenge in the rise of urban housing in Early Modern France. Unpaid landlords were protected by customary laws with a creditor's privilege which allowed them to pursue all movable furniture brought in by the tenants, including that which had been fraudulently removed to avoid seizure. This privilege was not necessary when tenants were eager to pay their debts but became useful to minimize economic loss when they disappeared without paying. Although the privilege was confirmed in legal litterature and case law, it faced challenges arising from the royal authority's struggles to organize an efficient procedure of execution on the disputed furniture and a clear hierarchy of privileged creditors.

--Dan Ernst 

Reparations and Restitution

[Via H-Law, we have word of the publication of a special issue (53:2) of istorical Reflections/Réflexions Historiques devoted to Reparation and Restitution.  DRE.]

Reparations and Restitution: Comparative Perspectives on Austria, France, Germany, and the United States 
Julia Roos 

Revisiting the 1825 Indemnity Law in France 
Elisabeth C. Macknight   

Reparations and the Reconstruction of Jewish Livelihoods in Postwar West Germany  
Anna Holian  

Compensation for Nazi Injustice as Administrative Practice: Baden-Württemberg Sinti and Roma Inside the “Contact Zone” 
Joey Rauschenberger 

Reparations as Learning Process?  West Germany and the Nazi-Era Sterilizations of Biracial Rhinelanders 
Julia Roos 

Europeanization through Repair? Austria's Belated Reparations to Holocaust Survivors and Their Descendants in the 1990s and 2000s 
Emily Marker 

The Case for Thinking Comparatively about Reparative Justice: Race and Reckoning in the United States and Germany 
Rita Chin

Moyn on John Fried, Hans Kelsen, and the Vietnam War

Samuel Moyn, Yale Law School, has posted A Letter to Hans Kelsen on the Use of Force:

In the last days of 1966, John Fried wrote a letter to Hans Kelsen. American by emigration, Austro-Hungarian in their origins, and international lawyers both, Fried and Kelsen were colleagues-and family. At the time, Fried, Kelsen's nephew, was the behind-the-scenes organizer of the ragtag band of international law experts contesting America's escalation of the Vietnam war. In the letter, Fried agonized over the authority that Kelsen, by far the most famous international lawyer of the twentieth century, had ostensibly furnished Lyndon Johnson's administration for what had become a gargantuan enterprise-and what had begun, Fried insisted, as a flagrantly illegal war, regardless of its consequences or scope. The letter is a fascinating and moving historical document that has to be deciphered in its context. It is likewise, I believe, a commentary on our own contemporary dilemmas about the uses of international law, or even law as such, and the spirit in which to think about both. After all, we have our wars, too, and our agonizing uncertainties about how and whether to turn to law to restrain them — indeed, about how best to think about law’s relation to morality and politics in the first place. If the rule of law Fried and Kelsen followed, in their different ways, brought them to this, of what use was the rule of law? 

--Dan Ernst 

Kastenberg on Historians and Expert Witnesses in the Ford Libel Case

Joshua E. Kastenberg, University of New Mexico School of Law, has published “Ford is an Anarchist” and “History is Bunk”: William Archibald Dunning and Jesse Siddall Reeves as Precedent for the First Professional Historians Testifying as Expert Witnesses in United States History in the Mississippi Law Journal.  From the introduction:

Automobile magnate Henry Ford infamously stated “[h]istory is . . . bunk,” evidencing his disdain for academic history or even the need to know something of the past. . . . Yet, from July 29 through July 31, 1919, he required the testimony of Columbia University professor William Archibald Dunning [and] one of Dunning’s former students, Ohio State University professor Francis W. Coker . . . to counter University of Michigan professor, Jesse Siddall Reeves, who gave powerful evidence in a Michigan state trial undermining Ford’s claim that the Chicago Tribune libeled him. . . . The Ford v. Chicago Tribune trial that lasted over the summer of 1919 is absent from judicial decisions and law review articles alike, but it marked the first time in history that professional historians testified as experts for adverse litigants in a jury trial.

--Dan Ernst

Cohen's "Gangster of New York"

Andrew Wender Cohen, Syracuse University, has published Gangster of New York: A Violent Life in Nineteenth Century America (Cambridge University Press, 2026).

 This is the story of Louis Bieral, a nineteenth-century gangster, politician, sportsman, and Civil War hero. Kidnapped from his birthplace in revolutionary South America, he doused fires in Jacksonian New York, battled Sumatran pirates with the US Navy, and panned for California gold. As a crime boss, he raced horses, boxed champions, and ran brothels. Yet Bieral's adventurous life was also steeped in the brutality of his time. He befriended rowdies like 'Butcher' Bill Poole, returned fugitives like Anthony Burns to slavery, and assaulted abolitionists such as Richard Henry Dana. As a Union officer, Bieral won fame in battle. He was a Gilded-age bodyguard for 'Boss' Tweed, William Seward, and Jim Fisk, becoming a suspect in that tycoon's murder. From the docks of Valparaíso to the dining room of Delmonico's to the cells of Auburn Prison, Bieral's remarkable journey illustrates the violence that bound nineteenth-century America together.

Professor Cohen is interviewed about the book here. 

--Dan Ernst

Francois and Hershkopff on Pennoyer and Redemption

Aderson Francois, Georgetown University Law Center, and Helen Hershkoff, New York University School of Law, have posted Pennoyer, Due Process, and the End of Reconstruction, which is forthcoming in the forthcoming in the New York University Law Review:

In 1877, the United States withdrew the last of its troops from the states of the former Confederacy and returned the rebel states to “home rule”—actions that are said to be a part of the “Compromise” by which the Electoral Commission of 1876 resolved that year’s contested presidential election and placed the Republican candidate, Rutherford B. Hayes, in the White House. Over the next generation, the country underwent a case of collective amnesia about the causes of the Civil War, in thrall to a “Lost Cause” myth that the South seceded to protect the heroic ideal of states’ rights and not to preserve racial chattel slavery. As is well known, during this period the national government stopped enforcing the civil rights of Black people; the Supreme Court gutted the emancipatory potential of the Thirteenth, Fourteenth, and Fifteenth Amendments; and by law and practice systems of racial subordination became entrenched, as the nation came to celebrate Confederate officials in monuments and institutions.

1877 also is the year the Court heard argument in Pennoyer v. Neff, shortly after those Justices who participated in the Electoral Commission returned to the bench. Pennoyer is of course a case about personal jurisdiction and is a staple of the first-year Procedure course. Scholars treat the decision as an exemplar of formal reasoning, and their analyses of the decision likewise are formal in approach, detached from the concerns of the Civil War and the end of Reconstruction.  By examining Pennoyer in the context of the social and political issues of this period, this Article aims to make sense of the decision’s “central mystery”: why the Court associated its territorial theory of personal jurisdiction with the Due Process Clause of the Fourteenth Amendment—a move that scholars remain unable to explain or justify.

In particular, we argue that Pennoyer’s invocation of the Fourteenth Amendment  helped to set a jurisprudential baseline about state sovereignty that became the conceptual starting point of arguments about national incapacity to enforce the rights of Black people, just as Lochner later set the baseline for arguments about state incapacity to regulate common law  property rights. Moreover, by enforcing rights under the Oregon Donation Act, a federal statute that explicitly excluded Black people from its benefits, Pennoyer rendered invisible for purposes of the Fourteenth Amendment the ways in which legal rules protected, enforced, and preserved property benefits for white people even in the face of de jure discrimination. And Pennoyer provided protection for landowners by making it more difficult for financiers to seize their land when debts came due. At a time when scholars and the Court currently are questioning whether to decouple personal jurisdiction from the due process foundation that is said to trace to Pennoyer, it seems worthwhile to ask how, when, and why they became intertwined in the first place, and what the Fourteenth Amendment gained and lost in the process. 

--Dan Ernst 

CFP: ASLH Projects and Proposals Committee

[Via H-Law, we have the following from the ASLH.  DRE]

The American Society for Legal History welcomes proposals for the funding of new initiatives in the study, presentation, and production of legal historical scholarship and in the communication of legal history to all its possible publics and audiences. The Projects and Proposals Funding Committee is accepting applications now through September 1, 2026. Funding may support conferences, publications, museum exhibits, pedagogical experiments, and other collective pursuits.  For more detail and to access the application form, please visit the ASLH website. 

For information, contact Elizabeth D. Katz, Chair, American Society for Legal History Projects and Proposals Committee, Professor, University of Florida Levin College of Law at 
proposals@aslh.net.

ICS Seminar: Presidential Power

[We're moving up this previously posted announcement, as the deadline for applying is fast approaching. DRE]

The White House (LC)

The Institute for Constitutional Studies at The George Washington University Law School is pleased to announce another seminar for advanced graduate students and junior faculty:

Constitutional Controversies: Presidential Power

Disputes about the breadth and limits of the president’s constitutional powers have been recurrent throughout our nation’s history. This discussion-based seminar will explore a series of “constitutional moments” that relate to presidential authority. After examining debates over the structure of the executive branch eventually adopted in Article II, we will consider a variety of constitutional disputes about presidential power, focusing particularly on events during the Washington, Jefferson, Jackson, Lincoln, FDR, Truman, Nixon, and Trump administrations.

Instructors.  Maeva Marcus, a past president of the American Society for Legal History, is Research Professor of Law and Director of the Institute for Constitutional Studies at the George Washington University Law School. She serves as the general editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. Author of Truman and the Steel Seizure Case: The Limits of Presidential Power, she also edited the eight-volume series The Documentary History of the Supreme Court of the United States, 1789-1800 and Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789.

Steven Steinbach, GWU Professorial Lecturer in Law, taught United States History and American Government courses and served as History Department Chair at Sidwell Friends School in Washington, DC. Previously he was a partner in the Washington, DC, law firm of Williams & Connolly LLP, where he specialized in criminal and civil litigation.

Meeting Time. Monday evenings, 6-8 pm

Dates.  August 31; September 14, and 28; and October 5, 12, 19, and 26, 2026.

Location. The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052. The classroom location will be communicated at a later date.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their curriculum vitae and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at icsgw@law.gwu.edu until August 23, 2026. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at maevamarcus@law.gwu.edu.

Additional Information.  There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

About ICS.  The Institute for Constitutional Studies (ICS) is the nation’s premier institute dedicated to ensuring that future generations of Americans understand the substance and historical development of the U.S. Constitution.  Begun with the assistance of a challenge grant from the National Endowment for the Humanities, the Institute is located at the George Washington University Law School.  To fulfill its mission, the Institute’s seminars explore the important role the Constitution has played in shaping American society.

Mattix's "National Parks and the Supreme Court"

It is publication day for National Parks and the Supreme Court: Groundbreaking Legal Battles (University of Nevada Press), by Carla Chung Mattix, who for over twenty-five years was an attorney for the National Park Service in the U.S. Department of the Interior’s Office of the Solicitor.

Many Americans revere their national parks as places of natural beauty and cultural significance—but few realize how often these landscapes have been shaped by the courtroom as much as by conservation policy. With more than 3,500 lawsuits involving the National Park Service, litigation has defined, defended, and sometimes even threatened the character of the parks. Without these legal fights, the Gettysburg battlefield might be covered with strip malls and the Grand Canyon reduced to a mining site.

This book examines five landmark Supreme Court cases involving national parks—Gettysburg, Yellowstone, Grand Canyon, Death Valley, and the National Mall. Each chapter blends legal analysis with historical context, tracing the origins of the parks and the disputes that brought them before the nation’s highest court. Spanning nearly a century, these cases reveal how the Court has shaped park policy, land use, Native American rights, water law, and free speech.

Through these pivotal decisions, National Parks and the Supreme Court offers a new lens on the contested terrain of the national parks, where legal, environmental, and cultural values collide. By exploring the courts’ influence on public lands, it deepens our understanding of the complexities of managing America’s most cherished landscapes.

Ms. Mattix discusses her "path to publication" here. 

--Dan Ernst 

Yeargain on State Constitutional Checks on McCarthy-Era Investigations

Quinn Yeargain, Michigan State University College of Law, has published “Anti-McCarthyism and the Right to ‘Fair and Just Treatment’ in State Constitutions” in the Kansas Law Review 74 (April 2026): 611-653.  From the introduction:

In two states . . . McCarthy-era concerns about abuses of power by executive branch agencies and legislative committees alike prompted constitutional responses. In Alaska's constitution, which was ratified in 1956 and came into effect in 1959, delegates adopted a Fourteenth Amendment-style due process guarantee, but added onto it another sentence: "The right of all persons to fair and just treatment in the course of legislative and executive investigations shall not be infringed."  . . .  Less than a decade later, at the 1961-62 Michigan constitutional convention, delegates proposed a new constitution with a nearly identical provision, which voters ratified. . . . 

In this Article, I situate these rights in the broader historical context of the Second Red Scare and state constitutional responses to it, lay out the processes by which the right to "fair and just treatment" were adopted, and argue that their reach has been improperly limited by cramped judicial interpretations. I begin in Section II by exploring the extent to which state constitutions incorporated the tactics and approaches used in the Second Red Scare, focusing specifically on the adoption of disqualification and loyalty oaths, as well as efforts to constitutionalize criminal prohibitions of "subversion."

Then, in Section III, I analyze the proposal and adoption of the right to "fair and just treatment." Relying on constitutional convention records from Alaska and Michigan, both of which include verbatim transcripts and detailed committee reports, I synthesize the debates surrounding these provisions. While the right was not successfully incorporated into any other state or territorial constitution, I discuss the efforts in Guam and Maryland to include such a right in their failed constitutions, as well as other (and more successful) efforts to constitutionalize more limited responses to McCarthy-esque abuses. Finally, in Section IV, I summarize the caselaw from Alaska and Michigan interpreting and applying these rights. While neither state has seen many published opinions from their supreme courts that lay out the right's ambit, the opinions that do exist--often unpublished, nonprecedential opinions from intermediate appellate courts--illustrate the conservative response by the judiciary to this protection. I then argue that these interpretations are unnecessarily limited, and cabin both the text and available historical evidence to avoid the potentially far-reaching implications of these rights.

--Dan Ernst 

Weekend Roundup

• Legal historian Tomiko Brown-Nagin has been appointed dean of the Stanford Graduate School of Education. Stanford's notice is here.
   
• Over at JOTWELL: Bethany Berger (Iowa College of Law) spotlights Lila Teeters Knolle's Indians Now Taxed: Citizenship and Taxation in Settler-Colonial South Dakota, 44 J. Am. Ethnic History 44 (2025); Lisa Owens (UMass Dartmouth) flags K-Sue Park's Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power, 133 Yale L.J. 1487 (2024). 

• From In Custodia Legis: "Murder, He Signed? The Unexpected Death of A Declaration of Independence Signer." 

• We have previously posted about Christina Kexel Chabot's "The Interstitial Executive: A View from the Founding," forthcoming in the BYU Law Review. She has now posted an updated version, which includes historical evidence that bears directly on the Supreme Court's recent decision in Trump v. Slaughter. 

• Nursing Clio is spotlighting undergraduate writing this summer. Here's a post on "Registration of Maternity Homes Act, 1934: Institutional inadequacy and indifference in Irish maternity homes," by Whitney Cowan (St. Olaf College). 

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

Walker on the Deed in Verse of a Lawyer who Knew Lincoln

Lance Walker, oil & gas title attorney in Oklahoma City, Oklahoma, has posted Forever and Aye: A Lawyer's Deed in Verse, further subtitled, "A Note on J. Henry Shaw’s Warranty Deed--and the Lawyer Who Once Stood Beside Lincoln":

In 1881, a Beardstown, Illinois lawyer named J. Henry Shaw executed a warranty deed written entirely in rhyme-granting language, legal description, and warranty covenant all in verse, with the notary's certificate of acknowledgment answering in matching couplets from a second hand. This note first tests the deed against Illinois's Conveyances Act, then in force largely unchanged since 1874, and confirms that the instrument satisfies each formal requirement for a valid conveyance despite its unusual form. The more substantial part of the note traces the life of the deed's author. Self-taught, admitted to the Illinois bar at twenty-five, and a lifelong writer of occasional verse under a local pen name, Shaw turns out to have a documented professional relationship with Abraham Lincoln predating the deed by over two decades-as co-counsel in one Cass County case and opposing counsel in another during the same 1857 court term. The following spring, Shaw was in Beardstown when Lincoln tried the case that would become known as the Almanac Trial. An 1866 letter from Shaw to Lincoln's law partner and biographer, William H. Herndon, preserved in the Herndon-Weik Collection, offers a firsthand account of that trial and records Lincoln's gift to Shaw, at its close, of the murder weapon itself. 

--Dan Ernst

Gallanis on Revolutions in Trust Law

Thomas P. Gallanis, George Mason University Antonin Scalia Law School, has published American Revolutions in the Law of Trusts, which appears in the ACTEC Law Journal:

American trust law is revolutionary. It departs in fundamental ways from the trust law of other major common-law jurisdictions, such as England, Australia, Canada, the Hong Kong Special Administrative Region, New Zealand, and Singapore. It also differs greatly from the trust law of the major civil-law countries that have adopted the trust, such as mainland China and Japan. This Article identifies five revolutions in American trust law. Each revolution is examined in its historical context and with regard to its lasting effects. Together, the five revolutions explain American trust law's distinctiveness.  

--Dan Ernst 

Revkin and Gramlick on Fiscal Policing in Civil War DC

Mara Revkin, Duke University School of Law, and Gage Gramlick, a JD candidate at Duke, have posted The Civil War Origins of Fiscal Policing: Evidence from the District of Columbia:

The rise of “fiscal policing” in the United States—the use of fines, fees, and forfeitures to extract revenue from civilian populations—is widely described in previous scholarship as a relatively recent development with roots in post-1970s municipal austerity policies. A smaller literature argues that the revenue-extracting function of American policing can be traced earlier to slave patrols before the Civil War and Reconstruction-era Black Codes in the South. But this Article is the first to show that fiscal policing in the North has roots a century deeper than the austerity account recognizes. We demonstrate this through a case study of the nation’s capital, drawing on an original dataset compiled from the annual reports of the Metropolitan Police of the District of Columbia from 1862 to 1877 to show that revenue extraction was not a subsequent corruption of the Metropolitan Police’s original crime-control purpose but a core feature of its institutional design from the outset. We supplement the quantitative data with contemporary newspaper accounts, congressional and city-council debates, and correspondence between the governing Board of the Metropolitan Police and the military and civilian authorities that shared jurisdiction over the city. Congress established the Metropolitan Police by statute in August 1861, less than four months after the Civil War began, in direct response to the population surge, jurisdictional uncertainty, and disorder that the war had already produced in the capital.

Our key finding is that the Metropolitan Police generated surplus revenue from its first full year of operation, and this fiscal logic not only continued but intensified after the war. Fine revenue nearly doubled from $32,532 in 1862 to $61,944 in 1865—the year the Board first declared the force a net revenue-producing institution, boasting to Congress that there was “probably no other community in our country whose police system produces a net revenue to its finances.” Revenue receded with wartime conditions but remained above the 1862 baseline in 1877, and fine cases rose from 31.9 percent of all arrests in 1862 to a peak of 45.5 percent in 1867, two years after the war ended. The force grew with its revenue: in 1866, Congress authorized a 33 percent increase in its size from 150 to 200 patrolmen. We explain this pattern through two mechanisms. The first is wartime state-building: extending Charles Tilly’s account of how war forges extractive institutions, we show that the Civil War simultaneously created the governance and security crisis that necessitated a new police force and—by exhausting congressional appropriations on military spending—ensured that the force was designed to generate the revenue its own survival required. The second is bureaucratic autonomy: like other nascent administrative agencies, the Metropolitan Police Board had an existential incentive to demonstrate its value to skeptical principals, and it quickly recognized that surplus revenue from fines, forfeitures, and licensing fees was the performance metric most legible and persuasive to Congress and the city councils that controlled its budget—more so than improvements in public safety, which were harder to achieve and measure. The enforcement burden also fell unevenly—across national origin, race, gender, and civil-military status—in ways that shifted during and after the war. Soldiers accounted for more than a quarter of arrests in 1862 but generated no revenue—they were turned over to military authorities rather than fined—and their share declined steadily as the Board came to see such arrests as labor-intensive, fiscally worthless, and a source of friction.

Among civilians, Irish- and German-born immigrants were overrepresented during the war years. We find no clear racial pattern in per-capita arrest rates during the war, but disparities emerge after its end: between 1870 and 1877, Black residents were arrested at 1.4 to 1.6 times the non-Black per-capita rate. Women’s share of arrests rose from 14.2 percent in 1862 to a wartime peak of 22.7 percent in 1865, driven by policing of sex work. These findings relocate the origins of American fiscal policing from the late twentieth century to the 1860s, reveal a Northern and federal pathway that is distinct from Southern institutions previously studied, and provide historical context for contemporary debates over the constitutional limits of fines. More broadly, the Article models what can be gained by studying the United States as a post-conflict society, bringing to American legal history the theories and methods that political scientists have long used to study civil wars and state-building in other countries. 

--Dan Ernst 

Edwards on the Minority Rights First Amendment

Jerry Edwards, West Virginia University College of Law, has posted The Birth of the Minority Rights First Amendment:

An incongruence exists in the literature on the nineteenth-century history of expressive freedom. Legal-tradition scholars have determined that the First Amendment was majoritarian, observing that outside of judicial enforcement of the rule against prior restraints, courts rarely involved themselves in disputes over expressive rights. Instead, the judiciary deferred to the judgments of legislatures and juries. Meanwhile, scholars examining the nineteenth-century popular tradition discovered a very different understanding of the First Amendment. They found that the antislavery conception of expressive freedom centered dissenters’ rights, arguing that Republicans embedded a libertarian understanding of free speech in the Fourteenth Amendment in 1868. This Article reexamines the nineteenth-century popular tradition and discovers new evidence that reconciles these seemingly incompatible traditions.

The popular-tradition scholars are correct that the antislavery movement oversaw a shift from the founding generation’s majoritarian understanding of expressive freedom to a minority rights conception. Slave states, emboldened by the majoritarian paradigm, suppressed antislavery advocacy and the fledgling Republican Party in the South. This prompted antislavery Republicans to advocate for protection of political dissenters, unpopular minority groups, and free discussion nationwide, birthing the minority rights First Amendment. However, Republicans did not intend for this to be a counter-majoritarian right. The judiciary had historically backed the Slave Power, so Republicans did not trust it to secure and preserve liberty. Instead, they sought to implement their minority rights vision through normative prescriptions and structural protections—namely, multiracial democracy in the South and congressional enforcement of civil rights. Accordingly, majoritarian legal doctrine was not a barrier to the Republican vision of expressive freedom. Unfortunately, this project failed when white majorities, aided by federal acquiescence, overthrew multiracial democracy in the South, taking down the minority rights First Amendment with it.

This Article’s findings provide further support for the view that the juricentric First Amendment is a twentieth-century invention. This means that the history the Supreme Court has used to justify its interventionist approach in First Amendment cases is misleading at best and mistaken at worst. Its reliance on these historical misrepresentations has proven detrimental to the development of speech doctrine, obscuring the contingent decisions it is making in the present. This Article suggests that the Court embrace transparency, eschew law-office history, and recommit to defending multiracial democracy.

--Dan Ernst 

10 Things I learned while writing my (second) book

 I am delighted to be back as a Legal History (guest) Blogger. My second scholarly monograph, Fear of the False: Forensic Science and the Law of Crime in Colonial South Asia, came out in April 2026 with Cornell University Press. This month, I'd like to share some insights, surprises, and challenges from the project, which occupied me for much of the past 12+ years. Today: 10 things I learned while working on the book:

1.      You can take publication-grade photos with your phone: Perhaps this is obvious to others, but I
assumed the only way I could get publication-quality versions of images for my book that I took at the British Library (pictured) would be to order images through the BL’s Imaging Services. Unfortunately, the BL was hit with a ransomware attack in 2023. BL leadership refused to pay the ransom, and their online catalogue was destroyed as promised. It took the BL several years to recover (they are still not back to how things were before), and their Imaging services were essentially shut down so they could concentrate all their efforts on reconstructing the catalogue. For about a year, I thought this meant I could not include about a third the images I planned to use for my book, which was devastating. But then my IT colleague showed me how to use my phone to re-take the images at the BL (I could still go there and order up the original items, fortunately). By putting the phone on a stack of books to avoid any tilt or handshaking, and by adding 1-2 light sources, I retook these images and they were good enough to publish. The BL gave me permission to reproduce these for free, happily.

More after the jump.

BU Law Review Symposium on "The University and Democracy"

Volume 106, no. 4 of the Boston University Law Review features the essays from the law review's Fall 2025 Symposium on The University and Democracy. The following may be of particular interest to readers of this blog:  

A Brief on Behalf of the Corporate University by Timothy V. Kaufman-Osborn 

A Tale of Two Strikes (And Dreams of More) by Nina Farnia

Using Citizens United by Michael Banerjee

-- Karen Tani 

 

Nelson's "Concise History of American Law"

We note the posthumous publication of the late William E. Nelson's Concise History of American Law (Oxford University Press):

A Concise History of American Law traces the development of the US legal order from the colonial era to the twenty-first century. Emphasizing the essential role of the common law--derived from judicial precedent, rather than legislation--eminent legal historian William E. Nelson examines the foundations of the American rule of law and its interactions over time with political, economic, and societal transformations. Synthesizing the broad structural, institutional, and ideological changes embedded within American legal history illuminates the significant role courts have played in structuring politics and society. Nelson's accessible chronological narrative details how the rule of law has both facilitated change, by protecting the rights of those who advocate for it, and inhibited change, by acting as a conservative bulwark protecting the rights and property of the rich and powerful. Weaving this fundamental tension between law and politics into his pithy account of how the law was made and practiced over three centuries of American history, Nelson has produced an invaluable guide to the intricate evolution of the modern US legal system.

--Dan Ernst 

Balkin on How Social Power Shapes Legal Reason

Jack M. Balkin, Yale Law School, has posted From Off the Wall to On the Wall: How Social Power Shapes Legal Reason:

Throughout the history of the Constitution legal arguments have moved from being "off the wall"-- crazy incompetent, and beyond the boundaries of professional reason, to "on the wall"-- plausible claims on which reasonable minds can differ. Some of these claims have eventually become part of the law, and a few have become orthodox, so that denying them would be off the wall.

This article explains how and why this happens. Arguments move along a spectrum of plausibility depending on who occupies important nodes of power and influence in society. These include political leaders, political parties, social movements, the media, elite lawyers, and legal intellectuals. When powerful actors invest in a fringe claim, they compel the legal profession to debate it. Arguments move on the wall not by general acceptance but by compelled engagement.

Several examples show how this dynamic works in practice. Arguments for same sex marriage only slowly gained traction because gays and lesbians had little social status and had to build support over decades. The constitutional challenge to Obamacare's individual mandate moved on the wall in only a few years because the Republican Party and conservative media were unified behind it. The equal protection argument in Bush v. Gore took only a month because control of the government was at stake. The Trump administration's recent challenge to birthright citizenship had the support of a sitting president, the MAGA social movement, the Republican Party, and the party's affiliated media and institutions. Conservative legal intellectuals quickly devised arguments designed to appeal to a Supreme Court six of whose members were conservatives appointed by Republican presidents.

Underlying this phenomenon is the dual nature of legal consciousness, which combines acceptance of shared professional norms with constitutional protestantism, the belief that individuals can interpret the Constitution for themselves. The phenomenon also exemplifies law's dual character as fixed in the short run and mutable in the long run. Legal education cultivates this duality, training lawyers both to treat existing law as authoritative and to creatively deconstruct it.

The theory recasts jurisprudential debates over legal indeterminacy from the nature of language to sociology and culture. Legal materials are flexible but not infinitely malleable; they are tilted towards entrenched interests until sustained social power changes them. Following these changes, constitutional culture frequently rewrites its own history. Formerly off-the-wall claims that win out are later heralded as always having been correct, while formerly accepted decisions, such as Plessy v. Ferguson, are denounced as “wrong the day they were decided.” This triumphalist narrative obscures the intense social and political labor required to shift the boundaries of professional reason. 

--Dan Ernst 

Weekend Roundup

• ASLH President (and former Legal History Blog co-moderator) Mitra Sharafi discusses her new book, Fear of the False: Forensic Science and the Law of Crime in Colonial South Asia (Cornell University Press) over at the New Books Network.  

• Penn Carey Law announces the awarding of its first Certificate of Study in History and Historical Research Methods, which provides students with "a structured pathway to build expertise in legal history without the multi-year commitment of Penn Carey Law’s JD/PhD Program in American Legal History." 

• Over at JOTWELL: Ilya Somin (Scalia Law) spotlights Anna O. Law's Migration and the Origins of American Citizenship: African Americans, Native Americans, and Immigrants (2026); Reuel Schiller (UC Law San Francisco) reviews Alma Steingart, One Person, One Vote? The Gap between Representative Equity and Mathematical Equality after Baker v. Carr, 112 J. Am. Hist. 702 (2026).

• Todd C. Peppers and Madison Mycoff  on how Chief Justice Warren Burger celebrated the Declaration of Independence in 1971 (SCHS).   

• From Nursing Clio's "undergraduate writing series": “Presumptive Testimony Only”: From Esther Davis to Patience Rousseau, Two Centuries of Criminalizing Pregnancy Loss, by Rachel Kuhn.

• "Cooley Law School Professor Joseline Jean-Louis Hardrick recently premiered, “If These Headlines Could Talk,” an original historical documentary musical that brings the landmark decisions of the Warren Court to life through storytelling, music, archival materials, and legal history" (Florida Bar News).

• Kali N. Murray, Marquette Law, on the haunting of American trademark law (by fugitive slave advertisements) (Marquette Today). 

• Over at Shugerblog, Jed Shugerman (Boston University School of Law) has been "fact-checking" the U.S. Supreme Court. The latest installment is here. 

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

WMQ Forum on the Dickinson-Barclay Documents

The William and Mary Quarterly has published a Forum on the "Dickinson-Barclay documents." From the introductory essay, by Jane E. Calvert (John Dickinson Writings Project) and Jonathan Gienapp (Stanford University):

This Forum introduces previously unknown documents written by John Dickinson, the leading American revolutionary statesman, in mid-1775 and explores their historical significance. The documents reveal one of the last attempts to prevent American independence and the secret diplomatic back channels used to carry it out. There are four documents: two lengthy letters from Dickinson to David Barclay Jr., a British merchant, and two nearly identical drafts of a legislative act for Parliament to adopt to resolve the imperial crisis and restore harmony in the empire. An introductory essay by Jane E. Calvert and Jonathan Gienapp places these documents in their original context. Five subsequent essays interpret their deeper significance: Calvert shows how Dickinson's letters undermine John Adams's later portrayal of the Second Continental Congress; Gienapp traces continuities between Dickinson's struggle to preserve the British Empire and similar attempts to hold together the new American federal union; David Como situates Dickinson's peace bid in the context of contemporary British politics and previous failed reconciliation attempts; William B. Ewald explores how Dickinson used ambiguous wording and punctuation in his draft act to navigate the irreconcilable principles of the two sides; finally, Jack N. Rakove argues that Dickinson occupied an increasingly idiosyncratic political position, but his bid for peace ultimately failed because Britain's leaders would not rethink their inflexible imperial policy. 

The full issue is available here. And according to Prof. Gienapp (via Bluesky), "the WMQ has generously made the issue open access for the next month." 

-- Karen Tani 

Welcome (Back), Mitra Sharafi!

We are thrilled to announce that former LHB blogger Mitra Sharafi will be re-joining us for the month of August as a guest blogger! 

Professor Sharafi is the Evjue-Bascom Professor of Law at the University of Wisconsin-Madison and a renowned legal historian of South Asia. She is also a dedicated servant of the field -- including in her current role as President of the American Society for Legal History. 

Cribbing now from her Wisconsin bio: 

Mitra Sharafi (UW History)

She holds law degrees from Cambridge and Oxford (the UK equivalent of a JD and LLM) and history degrees from McGill (BA) and Princeton (PhD). Her first book, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (Cambridge University Press, 2014) won the Law and Society Association’s Hurst Prize in 2015. Her second monograph, Fear of the False: Forensic Science and the Law of Crime in Colonial South Asia, came out with Cornell University Press (Open Access) in 2026. Her next major project will explore the world of non-European law students from across the British empire (and globe) who came to London's Inns of Court to become barristers, 1860s-1960s. 

A fuller description of Fear of the False, via the Press:

Fear of the False uncovers colonial South Asia's critical role in the development of forensic science. Around 1900, the government of British India created a web of institutions for the scientific detection of crime. Driven by anxieties about "native mendacity," newly minted forensic analysts focused on uncovering faked evidence planted by South Asians. These experts, joining toxicologists known as "chemical examiners," were supposed to extract objective, scientific truth in the service of British justice. But in trying to counteract the presumed tendency of colonized peoples to lie, the system enabled widespread misconduct by state experts, increasing the risk of wrongful convictions of South Asian defendants.

Through scrupulously documented legal cases, Mitra Sharafi reveals that colonial dynamics put special pressure on the relationship between truth and justice. Examining falsity on both sides of the law through the use of testing to (mis)identify poisons, blood, and spermatozoa, as well as debates over adversarialism and inquisitorialism in the colonial courtroom, Fear of the False explores advances in forensic science and shortcuts in criminal procedure against the backdrop of colonial mistrust.

Thanks to generous funding from the University of Wisconsin Law School, the ebook editions of this book are available as open access volumes through the Cornell Open initiative.

Welcome back, Professor Sharafi! 

-- Karen Tani  

Call for Applications: Assistant Prof. of Law, Politics & Public Discourse at UC Berkeley

We have the following call for applications: 

The Department of Rhetoric at the University of California, Berkeley, invites applications for a tenure-track assistant professor position in Law, Politics, and Public Discourse, with an expected start date of July 1, 2027.

The Department seeks applications from candidates with an active research agenda in the interdisciplinary study of law and/or politics. The position is open to applicants whose research and teaching critically engage with the rhetoric and traditions of politics and political thought, legal thought, legal history, law & humanities, and/or sociolegal studies. The position is open in terms of specialization, historical period, and geographical area. We especially welcome candidates whose research in law and/or politics contributes to the Department’s historical and existing strengths in aesthetics, gender and sexuality, religion, science and technology, and the environment. Applicants should demonstrate evidence of a strong humanistic and/or theoretical research agenda and excellent scholarly potential in areas that complement the interdisciplinary profile of the Department. Responsibilities include teaching graduate seminars and undergraduate courses in the Department's Public Discourse concentration, mentoring graduate students in the Ph.D. program, and participating in departmental and campus life. 

Rhetoric is a multidisciplinary and transdisciplinary department distinguished by its ongoing interrogation of existing and emerging fields of knowledge at their boundaries. While the Department is open to all disciplines in the humanities and the humanistic social sciences, it strongly values theoretical approaches that cross conventional disciplinary divisions. For more information about Rhetoric, visit Home | Rhetoric.

The department is committed to addressing the family needs of faculty, including dual career couples and single parents. We are also interested in candidates who have had non-traditional career paths or who have taken time off for family reasons, or who have achieved excellence in careers outside academia. For information about potential relocation to Berkeley, or career needs of accompanying partners and spouses, please visit the Office for Faculty Equity and Welfare

Click here to continue reading

-- Karen Tani 

Gordon on Church and State in Early New York

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

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

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

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

--Dan Ernst 

Robert M. Ireland (1937-2026)

Robert Michael Ireland has died.  For forty-one years after he obtain his Ph.D. in history at the University of Nebraska--he had earlier received a JD from Stanford--Professor Ireland taught in the Department of History at the University of Kentucky, where he taught introductory courses in U.S. history, American Legal History, United States Constitutional History, and a seminar on Famous American Criminal Trials.  He repeatedly won teaching awards at UK and was revered as a mentor to his students.  His publications included The County Courts in Antebellum Kentucky (1972), The County in Kentucky History (1976), and Little Kingdoms: The Counties of Kentucky (1977).  Mary K. Bonsteel Tachau once wrote that if "the traditional Kentucky trilogy [was] good bourbon, fast horses, and beautiful women," Ireland's studies of the work of the state's county courts "altered it to a new tetralogy of horses, whiskey, hemp, and lawlessness."  Professor Ireland discusses his career briefly here and at greater length here.

McGovern on Psychologists and Disparate Impact in the 70s

Michael F. McGovern, Knight Law and Media Fellow, Information Society Project, Yale Law School, has published Regulating bias: validity liberalism and the politics of civil rights in 1970s America, in the British Journal of the History of Science Themes:

The Civil Rights Act of 1964 made the validity of aptitude tests in employment screening and promotions a major legal and political issue in the United States. A 1971 Supreme Court decision relied on guidelines derived from the American Psychological Association’s test standards to establish liability under the disparate impact theory of discrimination, a major victory for civil rights organizations and allied personnel psychologists. These adherents to what I call ‘validity liberalism’ put faith in practices of technical evaluation as a wedge, both for enforcing the law and for decoupling ideas about ability and merit from evaluations of job performance. But not all testing experts saw these developments as salutary. After the federal government’s own merit examinations were challenged under the US Constitution, a competing contingent of psychologists lined up to defend them, helping confine disparate impact to statutory law. Historians have shown how white backlash against early civil rights victories gave form and substance to the politics of the 1970s. This article argues that scientific dissensus over validation standards became a key fulcrum in this shift, highlighting a previously unexplored episode: the older Civil Service Commission’s effort to promulgate a competing set of validation guidelines to undercut the newer Equal Employment Opportunity Commission.

--Dan Ernst 

Li's "Translating Weimar"

[We have the following announcement from our friends at the Max Planck Institute for Legal History and Legal Theory of a new open access publication in its series, Global Perspectives on Legal History.  DRE]

Fupeng Li, Translating Weimar: The Cultural Translation of the Weimar Constitution in China (1919-1949).  Global Perspectives on Legal History. Vol. 28

How can a constitution imagine social revolution? This book answers this question by placing social rights at the center of the Weimar Constitution's long journey to China. It tells a global legal history of how jurists and legislators used constitutional language to conceptualize 20th-century projects of social transformation.

Moving between Germany and China, the book follows the Weimarer Reichsverfassung as it was read, translated, and rewritten by Chinese actors. Rather than treating the Weimar Constitution's influence as a simple "reception" of foreign ideas, it reconstructs how Chinese jurists used debates on labor, welfare, and economic order to rethink what a social constitution could be - and what kind of social revolution it might legitimately guide.

At the core of the analysis lies a structural shift: from the Weimar Constitution's rights-based model of social order to the policy-oriented constitutionalism that came to characterize modern China. Drawing on multilingual archives and constitutional drafts, the study traces how the Weimar Constitution's catalog of fundamental social rights was progressively reframed as Fundamental National Policies, transforming social rights into state programs, planning targets, and ideological commitments.

Organized around the triad of space, time, and tradition, the book maps the routes by which German Staatsrechtslehre and the Weimar Constitution's concept of social rights entered Chinese debates, shows how they were positioned within changing temporal narratives of crisis and revolution, and examines how they were negotiated in the encounter with Confucian statecraft, revolutionary nationalism, and socialist planning. In doing so, it offers a new framework for understanding how constitutions mediate social revolution through the cultural translation of rights into policies.

The book will interest scholars and students of constitutional law, global legal history, and modern Chinese history who seek to understand how social rights traveled across borders - and how, in the process, they quietly remade the meaning of both "constitution" and "revolution" in the 20th century.

Weekend Roundup

• On Jeffrey Rosen's "Blessings of Liberty" podcast Jed Shugerman and Ilan Wurman discuss the historical arguments underlying Trump v. Barbara and Trump v. Slaughter. Also, Reva Siegel says that Trump v. Barbara "shows popular constitutionalism in action" (Slate).  

•  A report of the conferral by the University of Edinburgh conferred the degree of Doctor of Laws honoris causa upon Jean-Louis Halpérin, “Professor Emeritus at the École Normale Supérieure (rue d’Ulm, Paris) and a most distinguished legal historian of international reputation” (Edinburgh Legal History Blog). 

• 
  In the latest episode of Breaking History," the podcast of the Supreme Court Historical Society,  "Brad Snyder interviews New York Times reporter Clay Risen about his new book Red Scare: Blacklists, McCarthyism, and the Making of Modern America"  (SCHS).

• A CFP for an on-line workshop on for scholars of American Political Development.  

• Jane E. Calvert and Jonathan Gienapp on John Dickinson’s secret effort to prevent the American Revolution (Law & Liberty).

• ICYMI:  David Blight's congressional testimony in defense of the Smithsonian (YouTube).  W. Caleb McDaniel on Why Regional Branches of the National Archives Matter.  A display on the Master of the Rolls at the UK National Archives (CTJ).    Bruen’s history-and-tradition test after Wolford v. Lopez (SCOTUSblog).  Reactions to the Supreme Court of Ohio's "Story of America: This Day in History” (CNO).  More on that exhibit on Arkansas's constitutional history (KUAF).  The Delaware Supreme Court Turns 75 (DPM)

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

Tulane Law Job Announcement

[We have the following announcement.  Note the openness to candidates in all topics, despite the specific emphasis on corporate law and torts.  Tulane would be a terrific place for a legal historian of the civil law world and/or a comparative legal history.  DRE.]

Tulane University Law School invites applications from entry-level and lateral candidates for one or more tenure-track faculty positions. We welcome applications from candidates with teaching and research interests in all topics, but we are particularly interested in candidates who focus on (1) business and corporate law (at the Assistant, Associate, or Full Professor rank) and (2) tort law (at the Assistant Professor rank). To learn more about the law school, visit our website. 

Please apply at [here].  All inquiries about the positions should be directed to: Sally Richardson, A.D. Freeman, Professor of Civil Law, Tulane University Law School, richardson@tulane.edu.

About Tulane University.  Tulane University is an equal opportunity educator and employer committed to providing an education and employment environment free of unlawful discrimination, harassment, and retaliation. Legally protected demographic classifications (such as a person’s race, color, religion, age, sex, national origin, shared ancestry, disability, genetics, veteran status, or any other characteristic protected by federal, state, or local laws) are not relied upon as an eligibility, selection or participation criteria for Tulane’s employment or educational programs or activities.