Saturday, April 29, 2023

Weekend Roundup

  • James Wilosn: (LC)
    John Mikhail, Georgetown Law, will speak on "James Wilson and 'We The People'" over Zoom as the Supreme Court Historical Society’s Law Day Lecture on Tuesday, May 2 at Noon, EDT.  Register here.
  • In A Model of Feminist Legal History, Rosemary Auchmuty reviews Sharon Thompson's Quiet Revolutionaries: The Married Women’s Association and Family Law (Frontiers of Socio-Legal Studies).
  • Benjamin C. Waterhouse reviews Scalia: Rise to Greatness, 1936 to 1986, Newsmax’s James Rosen’s “unapologetic ode to Antonin Scalia” (WaPo).
  • For the 60th anniversary of the promulgation of General Orders No. 100 to Union Army soldiers, Weekly War Books of the War Military Institute at West Point recommended five books, including John Fabian Witt’s Lincoln’s Code and Amanda L. Tyler’s Habeas Corpus in Wartime.
  • The history of the “true threats” doctrine under the First Amendment: Genevieve Lakier and Gabe Walters in conversation with Jeffrey Rosen on the National Constitution Center’s podcast.”
  • ICYMI: Ned Blackhawk discusses The Rediscovery of America: Native Peoples and the Unmaking of U.S. History in Mother Jones and, with Jonathan Capehart, in WaPo.  ICYMI: R v Penguin Books Ltd: When Lady Chatterley’s Lover was Put on Trial (The Collector).  An excerpt from Slandering the Sacred: Blasphemy Law and the Shaping of Indian Secularism, by J. Barton Scott (
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 28, 2023

Pre-Registration for ASLH 2023

[We have the following announcement from the American Society for Legal History.  DRE]

Pre-register for Philadelphia 2023!

The registration portal for the 2023 Annual Meeting is now open. We encourage early registration.

The 2023 ASLH Annual Meeting will be held at the Sheraton Philadelphia Downtown in Philadelphia, Pennsylvania, October 26-28. The conference room rate is $199.00. Reserve rooms here. Booking rooms in the conference hotel is important for the financial health of the Society.

Attendance at the annual luncheon is included in the price of the meeting.  If necessary, you can renew your membership here.  Only one registration at a time is permitted.  If you wish to register a guest, you will need to register your guest independently.

In registering for the conference you agree to conform to AHA standards for professional conduct adopted by the ASLH.

We look forward to seeing you in Philadelphia!

Thursday, April 27, 2023

ASLH Virtual Book Club

[We have the following announcement from the American Society for Legal History.  DRE.]

We are excited to announce a new virtual initiative: The ASLH Book Club, a monthly event series that will bring together ASLH members to engage virtually with authors about their recently published books.

The Book Club will provide ASLH members the opportunity to gather on a regular basis throughout the year and discuss recently published work.  In doing so, our hope is to sustain and enrich the existing legal history community as well as welcome new people, some of whom may be new to thinking of themselves as doing legal history.

Each Book Club will feature a conversation between an author and an interlocutor of their choosing, followed by Q&A.  We are happy to help in identifying interlocutors.  Book Club events will be 1 hour, on Zoom, hosted by the ASLH Digital Initiatives Working Group.  Events will be held monthly, typically on Wednesdays, 6-7 pm (central).

There is no expectation that audience members will have read the book; discussion will be structured accordingly.

Eligibility:  Books published since January 2021 (major articles will also be considered)

We encourage scholars at all career stages working in all geographic and chronological fields of legal history (or work expected to be of interest to legal historians) to apply. ASLH membership is not required to present at the Book Club. This call is for Book Club events from Sept. 2023-March 2024.  (There will be a second call for Book Club Events from April – Aug. 2024.)

Applications:  (max. 1 page)
·      Book Author, Title, Publisher and Publication date
·      Book Abstract (1 paragraph)
·      Author Bio (1 paragraph)
·      Interlocutor Bio (1 paragraph)

Please direct Questions & Submissions to:  Barbara Welke,  

Application Deadline:  July 1, 2023

Wednesday, April 26, 2023

Breaking History: An SCHS Interview Series

[We have the following announcement from the Supreme Court Historical Society.  DRE]

The [Supreme Court Historical] Society is pleased to announce that we have a new feature on our website and YouTube Channel highlighting the groundbreaking scholarship published in the Journal of Supreme Court History. On our website ... you will find New Scholarship: Breaking History, that includes short video interviews with scholars spotlighting new work in Supreme Court history. These video interviews will further amplify the written word by allowing scholars to discuss what is new and interesting about their articles. Interviews are conducted by the Editor of the Journal, Timothy S. Huebner, who is the Irma O. Sternberg Professor of History at Rhodes College.

[Already posted are interviews with Craig Alan Smith, Christopher Brooks, John G. Browning, James Feldman, and Rachel A. Shelden.]

Tuesday, April 25, 2023

Zhang on "Separation of Structures"

Alex Zhang, Emory University School of Law, has posted Separation of Structures, which is forthcoming in the Virginia Law Review:

In a series of decisions, Free Enterprise Fund, Seila Law, and Collins v. Yellen, the Supreme Court struck down for-cause removal restrictions over agency heads. These rulings fault structural elements of the respective agency—double-layer protections or single directorships—for violating separation of powers because they insulate the agency from presidential review and oversight. But while the Court increasingly relies on agency structures to adjudicate constitutionality, separation-of-powers scholarship has focused on the division of powers into legislative, executive, and judicial functions.

This Article supplies the missing account of separation of structures, in the process defending the legitimacy of the administrative state against its critics. It argues that institutional structure is integral to separation of powers and deeply rooted in the Founders’ reception of ancient Greek and Roman political philosophy. By introducing the link between institutional design and the Constitution, separation of structures sketches a doctrinal terrain of how judicial adjudications of agency structure could proceed beyond the formalist approach latent in the Court’s recent decisions. By shifting the doctrinal focus from the nature of political functions to the design of accountability mechanism in governance structures, this Article provides strong support for the constitutionality of congressional delegation of legislative powers to agencies. This more capacious understanding of structural separation of powers accords with constitutional design and better accommodates the dynamic needs of modern regulation.
--Dan Ernst

Monday, April 24, 2023

Canellos to Speak on Harlan

On April 27, at noon, the Supreme Court Historical Society will host Peter S. Canellos, author of The Great Dissenter: the Story of John Marshall Harlan, America’s Judicial Hero, for a discussion about his book with the Society’s Executive Director Jim Duff.  Register here.

--Dan Ernst

Pfander on Antislavery Suits as 18th-C Public Law Litigation

James E. Pfander, Northwestern University School of Law, has posted Public Law Litigation in Eighteenth Century America: Diffuse Law Enforcement for a Partisan World, which is forthcoming in the Fordham Law Review:

For some time, the Supreme Court has used standing doctrine to limit the authority of federal courts to entertain private suits aimed at enforcing public norms. In its most recent iteration, TransUnion LLC v. Ramirez, the Court invalidated a federal consumer protection statute on the theory that it wrongly empowered suit by individuals who lacked the requisite injury in fact. Shutting down private litigation was said to advance separation of powers values and to protect the enforcement discretion of a unitary executive branch. The Court characterized private enforcement as a novel feature of the 1970s, a time the Court viewed with evident suspicion as one that inaugurated interest group litigation.

In truth, the tradition of interest group enforcement of public norms extends to the earliest days of the Republic. During the 1790s, Quakers and other anti-slavery activists secured federal legislation prohibiting American involvement in the international trade in enslaved people. Like other legislation of that period, the 1794 statute empowered both the federal government and private informers to enforce the law. The ensuing litigation, brought by private informers associated with such groups as the Providence Abolition Society, led to the forfeiture and sale of the offending vessels in the admiralty courts of Rhode Island and elsewhere. Drawing on federal archives, this Article recounts a history in which all three branches of the federal government – Congress, courts, and executive branch officials – viewed private litigation through what were called “popular” actions as an uncontroversial tool for enforcing public norms. One finds no objections based on Article II or III of the Constitution.
--Dan Ernst

Saturday, April 22, 2023

Weekend Roundup

  • My Georgetown Law colleagues Brad Snyder and David Vladeck have filed a FOIA suit against the National Archives over access to the FBI’s records on Angelo Herndon (Atlanta Journal-Constitution).  DRE
  • Gregory Ablavsky and Tanner Allread discuss their recent article "We the (Native) People? How Indigenous Peoples Debated the U.S. Constitution," on SLS Blog.
  • We're ready with some primo material for exam-grading-season procrastination: Hearst Metrotone Newsreels, from 1929 through 1967.  Hugh Johnson denouncing the San Francisco General Strike of 1934!  H/t: DW/JHS.
  • Manisha Sinha, the James L. and Shirley A. Draper Chair in American History at the University of Connecticut, delivered "The Abolitionist Roots of the Reconstruction Constitution," as the biannual Ubbelohde Lecture at Case Western Reserve University last Thursday (The Daily).
  • "Radcliffe Fellow Omer Aziz, a lawyer and the former foreign policy adviser to Canadian Prime Minister Justin Trudeau, discussed fascism in America at a Radcliffe Institute for Advanced Studies presentation Wednesday” (Harvard Crimson).
  • The revelations concerning Supreme Court Justice Clarence Thomas have generated interest in the resignation of Abe Fortas from the Court in 1969.  John P. MacKenzie, The Supreme Court justice who resigned in disgrace over his finances, in WaPo.  Business Insider India quotes Laura Kalman's Abe Fortas: A Biography.
  • ICYMI: Cay Risen on the fuzzy border between journalism and history (AHA Perspectives on History).  The legal history of national security charges, from espionage to sedition to whistleblowers (GBH).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 21, 2023

The Anne Fleming Classroom

On Wednesday, I was very pleased to attend the ceremony naming a classroom at Georgetown Law in honor of Anne Fleming, whose untimely death is still deeply felt by many legal historians and especially the moderators of this blog.  The members of the last class to take Contracts with her, who graduate this year, proposed the honor, which Dean William Treanor took up.  He, Associate Dean Lily Faulhaber, Anne's student Alexander Lowe, and Anne's husband Paul Serritella spoke, movingly and well.  We were also honored to have Anne's mother, sisters, aunt, and friends with us.  The Anne Fleming Classroom is the site for faculty meetings, and so the Law Faculty will regularly have occasion to reflect on her and her legacy.

--Dan Ernst

Lettow Lerner's "Very Short Introduction" to the Jury

Renée Lettow Lerner, George Washington Law, has published The Jury: A Very Short Introduction (Oxford University Press):

From ancient Athens to modern Asia, cultures have wanted ordinary people involved in making legal decisions. This Very Short Introduction charts juries from antiquity through the English-speaking world and beyond to Europe, Latin America, Africa, and Asia. Today, juries have become a symbol of democracy and popular legitimacy.

But in English-speaking countries, jury trials are declining. Civil juries have been virtually abolished everywhere except the United States, and plea bargaining is taking the place of criminal jury trials. In this book, Renée Lettow Lerner describes the benefits and challenges of using juries, including jury nullification. She considers how innovations from non-English-speaking countries may be key to the survival of citizen participation in the legal system.

Along the way, the book tells how a small German state invented a way of using jurors that is now found around the world. And it reveals why some defendants preferred to be crushed to death by weights rather than convicted by a jury.

--Dan Ernst

Thursday, April 20, 2023

Argument in US v. Microsoft to be Reenacted

[We have the following announcement.  DRE.]

The Historical Society of the District of Columbia Circuit presents the second program in its series of Judge Patricia M. Wald Programs on Life and Law in the Courts of the D.C. Circuit, United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).

This program will reenact a portion of the argument in the Microsoft case, specifically whether the integration of Internet Explorer into the Windows operating system constituted anticompetitive conduct and whether a Section 2 violation can be established solely by proving anticompetitive conduct. Judges Ginsburg and Tatel, members of the en banc panel in 2001, will hear the reenacted arguments. A panel of experts will then discuss the Microsoft decision and its continuing impact on antitrust enforcement in today’s important and controversial technology markets.

Setting the Stage:
Douglas Melamed, Scholar in Residence at Stanford

Douglas H. Ginsburg, Judge, U.S. Court of Appeals for the D.C. Circuit
David S. Tatel, Judge, U.S. Court of Appeals for the D.C. Circuit

Kristen C. Limarzi, Gibson Dunn & Crutcher LLP
David I. Gelfand, Cleary Gottlieb Steen & Hamilton LLP

Panel Discussion:
Moderator: William Baer, Visiting Fellow, Brookings Institution
Panelists: Professor Melamed, Maureen K. Ohlhausen, Partner, Baker Botts LLP, David C. Frederick, Partner, Kellogg, Hansen, Todd, Figel & Frederick, PLLC will join Judges Ginsburg and Tatel.

Wednesday, June 7, 2023, 4:30 p.m. – 6:00 p.m., Ceremonial Courtroom, 6th Floor, E. Barrett Prettyman U.S. Courthouse, 3rd Street & Constitution Avenue, N.W., Washington, D.C.  Admission is free. Reservations are suggested, here.  A reception in the Courthouse Atrium with light refreshments will follow the program.

CFP: Massachusetts Historical Society Conrad E. Wright Research Conference on Citizenship

We have the following Call for Papers:

Call for Papers for the Massachusetts Historical Society’s 2024
Conrad E. Wright Research Conference on Citizenship
July 11-13, 2024
Massachusetts Historical Society

The centennial of both the Indian Citizenship Act of 1924 and Immigration Act of 1924 offers an opportunity to explore the intersection of two subjects that have not always been considered alongside each other. However, as both scholars of Native American and U.S. immigration history grapple with the legacies of settler colonialism in their respective fields, the links between the aforementioned pieces of legislation come into clearer focus. Recent scholarship points out that the “peopling” of the United States not only occurred through the forces of international migration, but also reflects the incorporation of Indigenous peoples, forced or enslaved migrants from Africa and elsewhere, and the movement of borders that turned people into newcomers regardless of whether or not they actually moved. The degree to which those groups were included or excluded from citizenship, cultural “membership,” or even the right to remain in the nation has however varied widely.

The conference committee invites proposals of papers and/or panels that explore themes associated with citizenship and other variations of national belonging reflected in both the pieces of landmark legislation featured here. Possible topics might include but are not limited to Native American engagement with or responses to the Indian Citizenship Act of 1924; immigrant and ethnic group responses to the Immigration Act of 1924, historical articulations of citizenship and their repercussions; examinations of “belonging” for various groups; changes to immigration, naturalization, and citizenship policies, investigations of Native sovereignty and tribal citizenship, explorations of removal and expulsion; transnational Native presences/movements/communities, and other related topics.

As an organization that operates within academia and the public history arena, the Massachusetts Historical Society both champions important scholarship and supports vital public history initiatives like professional development for K-12 instruction. This conference will serve both constituencies—scholars and K-12 educators—by providing a platform to consider how the classroom serves as a key site of historical representation. Teachers will be invited to attend the traditional academic sessions, and scholars in turn will be invited to participate in a concluding teacher workshop at the end of the conference. We encourage participation from scholars who are eager to engage with and learn from K-12 educators, as well as teachers who are looking to incorporate the latest scholarship into the classroom.

The conference and workshop will take place at the Massachusetts Historical Society and Suffolk University in Boston on 11-13 July 2024. The panels and presentations will take place on 11-12 July with the teacher workshop on 13 July. Note that all papers for presentation must be ready for pre-circulation to commenters and conference registrants four weeks prior to the conference

Interested parties are encouraged to submit either individual paper presentations or full panels (with or without commenters) by 15 June 2023. Application materials must include a paper description and CV for individual submissions and paper descriptions and individual CVs along with a panel proposal for full panels. Paper proposals should not exceed one page and accompanying CVs should not exceed three pages in length. Please submit application materials and questions to
-- Karen Tani

Nominations Sought for ASLH Prizes

[We have the following announcement from the American Society for Legal History.  DRE]  

The ASLH awards a number of annual prizes that celebrate legal history research published or defended in the previous calendar year. Please see the following award descriptions [here], and visit specific prize pages on our website for complete information. Note that each prize that requires nomination has a June 1, 2022 deadline.

Wednesday, April 19, 2023

Federal History 2023

The 2023 issue of Federal History has been published on-line.  Here’s the TOC:

Roger R. Trask Lecture: What Federal Historians Do
Edward C. Keefer

The Policy Which Put Down the War Shall Settle the Result”: Loyalty, Race, and the Reconstruction of Missouri
Jeremy Neely

The Budget Bureau’s Administrative Doctrine and the Creation of an Independent NASA, 1958
William F. Finan III

The HBCU Revolution:  Desegregation, Disintegration, Collaboration, and Jimmy Carter’s 1980 Decision to Give Black Colleges Their Own White House Office
Cheryl E. Mango

Robert Byrd and the Iraq War: A Case Study of Senatorial Power
Lori Maguire

An Interview with Michael A. Olivas
Benjamin Guterman

Roundtable: The Deportation Machine: America’s Long History of Expelling Immigrants
Introduction by Maddalena Marinari.  Reviews by Eladio B. Bobadilla, Amanda Frost, Deborah Kang, and Yael Schacher.  Author’s Response by Adam Goodman

Reviews in Legal History

--Dan Ernst

Tuesday, April 18, 2023

Eldridge on Law and the Medieval Village Community

On Monday, April 24, 17:00 - 18:30 (GMT), Lorren Eldridge, an Early Career Fellow in Legal History at the University of Edinburgh, will present, via Zoom, some of the findings from her forthcoming book, Law and the Medieval Village Community: Reinvigorating Historical Jurisprudence (Routledge 2023).  Register here.

Historical jurisprudence was initially developed into a methodology by late Victorian scholars who were particularly interested in medieval English law. This paper will consider some of the ways they used historical jurisprudence, in which they combined influences from the German Historical School, the Scottish Enlightenment, and English political preoccupations. The approach to the village community in the work of Sir Henry Maine, Frederick W Maitland, and Sir Paul Vinogradoff used this novel method to generate new questions in medieval English law, and in the theoretical understanding of legal personality, individualism, and communalism. This paper will explore some of the research questions they pursued which have enduring interest in modern scholarship. 
--Dan Ernst

Monday, April 17, 2023

Stella's "Libri Feudorum"

The Libri Feudorum (the ‘Books of Fiefs’): An Annotated English Translation of the Vulgata recension with Latin Text, by Attilio Stella, has been published, open access, with Brill:

The I (the ‘books of fiefs’) are the earliest written body of feudal customs in Europe, codified in northern Italy c.1100-1250, which gave rise to feudal law as a branch of civil law. Their role in shaping modern ideas of feudalism has aroused an intense debate among medievalists, leading to deep re-thinking of the ‘feudal’ vocabulary and categories.  This book offers an up-to-date English translation with a working Latin text introduced by a historical and historiographical overview of the Libri, thereby providing a valuable tool to understanding the long-standing importance of this collection over nine centuries of European history.

--Dan Ernst

Saturday, April 15, 2023

Robert Charles Palmer (1947-2023)

I'm saddened to learn of the passing of Robert C. Palmer, the Cullen Professor of History and Law Emeritus at the University of Houston Law Center.  The most learned of the medieval legal historians I've met over the years have also been the least pretentious.  That certainly was my experience with Professor Palmer.  I first saw him when he presented a paper at a workshop at the University of Chicago Law School when I was a student there in the early 1980s.  The paper developed the distinction between two-handed and three-handed writs.  (Or at least I think that's what it did--how would I have known?)  After he finished, there was an awkward pause as the attendees waited to see who would be first to reveal how far behind Professor Palmer had left us.  Finally, then-Professor Frank Easterbrook ventured a question, Professor Palmer answered, and Professor Easterbrook replied, "So the Coase theorem did not apply in medieval England?"  I don't recall that anyone else had anything better.

As Professor Liz Papp Kamali writes, Professor Palmer has “left an immeasurable legacy to the world of English legal history:  a website with about ten million images of materials from the 12th through 19th centuries in the British National Archives!" -- Anglo-American Legal Tradition (AALT).

--Dan Ernst

Weekend Roundup

  • In Indian constitutionalism, the rule of law, and Parsi legal culture, Indian Law Review, former LHB co-moderator Mitra Sharafi, Wisconsin Law, argues that Parsi legal culture did not just benefit Zoroastrians in the late colonial era; it “also played an underacknowledged role in the constitutional life of modern India, helping nationalists pivot from extra-legal resistance to the business of running a state."
  • "The Florida Supreme Court Historical Society is seeking judges, lawyers, law teachers, and other citizens to serve on its board of trustees" (Florida Bar News).
  • In honor of DC Emancipation Day, the Supreme Court Historical Society will host a virtual lecture with Manisha Sinha on the abolitionist origins of Civil War constitutionalism and emancipation on April 17, 2023, at Noon EDT.  Register here.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, April 14, 2023

Robbins on Citizen's Arrest and Race

Ira P. Robbins, American University Washington College of Law, has posted Citizen's Arrest and Race, which appears in the Ohio State Journal of Criminal Law:

I begin with a mea culpa. In 2016, I published an article about citizen’s arrest. The idea for the article arose in 2014, when a disgruntled Virginia citizen came in off the street and attempted to arrest a law school professor while class was in progress. I set out to research and write a “traditional” law review article. In it, I traced the origins of the doctrine of citizen’s arrest to medieval England, imposing a positive duty on citizens to assist the King in seeking out suspected offenders and detaining them. I observed that the need for citizen’s arrest lessened with the development of organized and widespread law-enforcement entities. I surveyed developments across the United States and highlighted numerous problems with the doctrine that led to confusion and abuse. I concluded by recommending abolition of the doctrine in most instances, and proposed a model statute to address appropriate applications of citizen’s arrest.

But I did not discuss race. Indeed, I did not even use that word in the entire forty-three page article. It is not that I had intentionally ignored the issue. Rather, my research stopped short and I failed to consider the bigger picture. Until three men killed Ahmaud Arbery in Brunswick, Georgia on February 23, 2020.

In this Article, I examine the history of citizen’s arrest laws through a racial lens, drawing a direct line from the slave patrol laws of the eighteenth and nineteenth centuries to the Fugitive Slave Acts, to emancipation, to the discriminatory use and disparate impact of citizen’s arrest laws today. I consider the background and context of Georgia’s codification of citizen’s arrest in 1863—the first state statute of its kind in the United States—enacted just thirteen years after the repeal of the Fugitive Slave Acts and the same year as the Emancipation Proclamation. The deeply rooted racism that permeated this enactment almost 160 years ago must inform the use of any law giving private individuals the right to arrest others. While in my earlier article I did not discuss the racial aspects of the citizen’s arrest doctrine, it is clear that citizen’s arrest in this country has been mostly about race. Coupled with the reality of systemic racism, the perpetuation of citizen’s arrest laws provides unwarranted justification for the vigilante justice—or, better said, the vigilante injustice—that killed Ahmaud Arbery and so many others. Under the pretext of citizen’s arrest, what happened to each of these individuals was nothing short of a modern-day lynching. This point is too obvious to ignore.
--Dan Ernst

Thursday, April 13, 2023

CFP: Doing Business in the Public Interest

[We have the following CFP for the next annual meeting of the Business History Conference.  DRE]

Doing Business in the Public Interest: Annual Meeting of the Business History Conference.  
Providence, Rhode Island.  March 14-16, 2024.  Proposals due November 1, 2023

The Nobel Prize-winning economist Milton Friedman famously stated that “There is one and only one social responsibility of business—to use its resources and engage in activities designed to increase its profits.” Yet the historical record is full of businesses acting consciously or unconsciously in a public interest.  

A public interest might include everything from labor practices, product safety, and environmental impact, to choosing sides on contentious social issues or weighing ties to questionable political regimes, to obligations in times of war or natural disasters. Some businesses consciously attempt to marry the embrace of a public interest with the profit motive, or feign a public interest to evade regulation. Others gamble that a short-term sacrifice in the name of public interest will result in long-term gain, while others sincerely believe that a business can do well by doing good. This calculus is further complicated by the fact that there is no single public interest either within or beyond the corporation.

Informed by the idea of doing business in the public interest, the BHC Program Committee invites sessions and papers that consider the relationship between businesses and public interest from a variety of different perspectives. We are especially interested in submissions that address diverse geographic locales and time periods; that analyze the different ways that business interactions with a public interest are shaped by questions of race, class, and gender; that investigate how entrepreneurs, firms, and communities have attempted to define and/or shape the public interest for their own benefit; that address the role of governments, politics, and power in affirming or denying the relationship between businesses and a public interest; that examine corporate practices within the context of corporate social responsibility, stakeholder theory, or a purpose-driven business model; that explore businesses that claim to set aside the public interest completely; and any number of similar subjects. The organizers also welcome proposals with innovative formats that promote discussion on the broader question of doing business in the public interest.

Proposals and Submissions.  While we encourage submissions to take up these themes, papers addressing all other topics will receive equal consideration by the program committee in accordance with BHC policy. Graduate students and emerging scholars in the field are particularly encouraged to attend. Graduate students and recent PhDs whose papers are accepted for the meeting may apply for funds to partially defray their travel costs; information will be sent out once the program has been set.

Proposals may be submitted for individual papers or entire sessions. Each presentation proposal should include a one-page (300 words) abstract and one-page curriculum vitae (CV) for each participant. Individual paper submissions will be combined into new sessions defined by themes chosen at the Program Committee’s discretion.

All session proposals should have a cover letter containing a title, a one-paragraph session description, and the names and affiliations of all presenters (to a maximum of four) and a recruited chair, as well as the contact information for the session organizer.

To submit a proposal, go [here.]

The deadline for receipt of all paper and session proposals is November 1, 2023. Notification of acceptance will be given by December 15, 2023. Information on registration and fees for participation and the provisional program will be announced at the beginning of February 2024. Everyone appearing on the program must register for the meeting.

Tuesday, April 11, 2023

Wertheimer's "Race and the Law in South Carolina"

John William Wertheimer, the William R. Kenan, Jr. Professor of History at Davidson College, has published Race and the Law in South Carolina: From Slavery to Jim Crow (Amherst College Press).  It is available open access:

This first title in the “Law, Literature & Culture” series uses six legal disputes from the South Carolina courts to illuminate the complex legal history of race in the U.S. South from slavery through Jim Crow. The first two cases—one criminal, one civil—both illuminate the extreme oppressiveness of slavery. The third explores labor relations between newly emancipated Black agricultural workers and white landowners during Reconstruction. The remaining cases investigate three prominent features of the Jim Crow system: segregated schools, racially biased juries, and lynching, respectively. Throughout the century under consideration, South Carolina’s legal system obsessively drew racial lines, always to the detriment of non-white people, but it occasionally provided a public forum within which racial oppression could be challenged. The book emphasizes how dramatically the degree of legal oppressiveness experienced by Black South Carolinians varied during the century under study, based largely on the degree of Black access to political and legal power.

As Professor Wertheimer writes in the Acknowledgements, “Each of this book’s six chapters began as a class-wide collaborative project in HIS 455: Law and Society in American History, an undergraduate research seminar that I teach in the History Department at Davidson College. In all, eighty students cowrote these pages.”

Here are some endorsements:

“Recent arguments in African American History have emphasized the theme of continuity... Race and Law in South Carolina recovers the theme of change over time by showing just how things have changed, and it does so through patient, thick description.” — H. Robert Baker, Georgia State University

“This book and its concomitant student project is an exciting endeavor...The cases are captivating and accessibly written, making this a possible college classroom read.” —Vanessa Blanck, Rowan University 

--Dan Ernst

AJLH 62:4

American Journal of Legal History 62:4 (December 2022) has been published online:

Those Things Which Are Written in Romance: Language and Law Teaching in Thirteenth-Century England    
Thomas J McSweeney

Charitable Trusts of Cemeteries and Places of Worship in Thailand: A Historical Anomaly
Surutchada Reekie
The Tragic Pragmatism of the Wagner Act    
Daniel Judt

O’Connor v Donaldson (1975): Legal Challenges, Psychiatric Authority, and the Dangerousness Problem in Deinstitutionalization    
Laura Hirshbein
Book Reviews

Kristin A. Olbertson, The Dreadful Word: Speech Crime and Polite Gentlemen in Massachusetts
Jessica Lowe
Mary Sarah Bilder, Female Genius: Eliza Harriot and George Washington at the Dawn of the Constitution 
Rosemarie Zagarri

Monday, April 10, 2023

ASLH Student Research Colloquium

[We have the following Call for Applications.  DRE]

The American Society for Legal History will host its tenth annual Student Research Colloquium (SRC) on Wednesday, October 25, and Thursday, October 26, 2023, in Philadelphia, Pennsylvania, USA.  Each year, the SRC brings eight graduate students to the site of the ASLH annual meeting to discuss their in-progress research projects with each other and with ASLH-affiliated scholars.

Target applicants include early-post-coursework Ph.D. students and historically minded law students.  All students whose research touches on legal-historical themes are encouraged to apply, whatever the chronological or geographical focus.  Applicants who have not yet had an opportunity to interact with the ASLH are welcome, as are those who have never received any formal training in legal history.  A student may present a paper at the annual meeting and participate in the SRC in the same year.

The ASLH will at least partially and, in many cases, fully reimburse students' travel, hotel, and conference-registration costs.   To apply, please submit the following three items to John Wertheimer at:

  • a cover letter that describes, among other things, how far along you are and approximately how many years remain in your present course of study;
  • a cover letter that describes, among other things, how far along you are and approximately how many years remain in your present course of study;
  • an up-to-date CV; and
  • a two-page, single-spaced research statement that contains a working title and describes the in-progress research project that you would like to present at the colloquium.

Application deadline: June 1, 2023.

Ernst Comments on Tushnet's "Hughes Court"

[For the occasion and setting of these remarks, see here.  DRE.]

Professor Ernst's Remarks:

Mark Tushnet is famously prolific.  Back in the 90s, when he was on the faculty here and I was still junior, I had occasion to allude to this trait in explaining why I was taking time before tenure to write a review essay.  Many leading American legal historians had worked out their own approaches to history in such writings, I explained.  Morton Horwitz wrote such a review essay, Dirk Hartog wrote one; Bob Gordon wrote one.  Mark wrote three.

So perhaps you can forgive me for thinking, as I unpacked the very large draft of Mark’s manuscript a few summers ago, “Of course: Ask Mark Tushnet to write a Holmes Devise history of the Hughes Court, and he’ll write two.  

And perhaps the thought was all the more understandable because I was aware of the conflicting challenges that confront authors of volumes in the Holmes Devise series.  The first is to tell a story of change over time, with sufficient narrative tension to keep readers reading.  The second is the expectation that its volumes will tell the whole story of the Supreme Court in the years covered. The author who puts too great a premium on a compelling narrative risks leaving too much out.  The author who puts too great a premium on comprehensiveness risks writing an encyclopedia, not a history. “Of course,” I again said to myself, “like Yogi Berra, when Mark came to a fork in the road, he took it.”  That is, the first of Mark’s two Holmes Devise histories of the Hughes Court, disguised as the 420-page Part I, is a narrative; the second, more comprehensive history is disguised as the 722-page Parts II and III.

But if my initial reaction, that Mark wrote two books on the Hughes Court, deceptively marketed within the same wine-and-green covers, was understandable, it was also unfair, because The Hughes Court: From Progressivism to Pluralism really is a single work, with a single point, albeit one requiring both approaches, the narrative and the comprehensive, to establish.

Let’s start with the narrative.  More than is true for that of any other Chief Justiceship, readers open a history of the Hughes Court anticipating its narrative arc and especially its climax, the Court-packing plan and the “Constitutional Revolution of 1937.”  Mark addresses that expectation right at the outset.  Borrowing from the historian of science Steven Shapin, who made an analogous point about the scientific revolution, he writes, “There was no Constitutional Revolution of 1937, and this is a book about it.”  Revolutions are abrupt fundamental changes, about faces or swappings out of one structure for another.  Mark acknowledges that a dichotomous interpretation of the Hughes Court has “something to back it up” and that “something like dichotomies can indeed be found in the Court’s work”; nonetheless, and to use his word, The Hughes Court “destabilizes” those dichotomies. Yes, as he shows in Part 3, by the end of Charles Evans Hughes’s chief justiceship a new approach legal approach, pluralism, was emerging and partially displacing the older, progressive one.  But in Part 2 he shows many doctrinal continuities across 1937.  Further, whether you attempt to distinguish them in political economic terms between conservatives and liberals or in jurisprudential terms between formalists and realists, “most of the justices moved fluidly across the divides when they thought doing so was appropriate.”

And that is because, with some arguable exceptions, the justices were not invested in developing or instantiating theory.  “It is a mistake to treat the justices' opinions as embodying deep theoretical commitments,” Mark writes.  “Rather, the theories of the administrative state, the public interest, and the judicial process were part of the general atmosphere of thought surrounding the justices.”  Aside from Holmes and possibly Cardozo, the “justices were more or less ordinary lawyers immersed in their daily work.  Some were smarter than others, some had more direct political experience than others, and all these influences shaped their decisions substantially more than their absorption of external theorizing.  Again: “What the justices brought to their decisions was the working–and rather untheorized–jurisprudence of the ordinary judge who learned law in the late nineteenth and early twentieth centuries.”

Well, what were they doing, then?  As Mark writes, borrowing language from one of Hughes’s addresses: they were reaching conclusions by consulting both “particular formulas” and “conceptions of basic needs,” constructs that “supplied the grammar of constitutional discourse rather than determin[ed] its content.” That is, Mark doesn’t deny that political economy or what legal process scholars would later call the principle of institutional settlement pointed the justices in the direction they wanted to go.  Still, the two constructs were the tools they had to get themselves there, and they had to be used in certain ways or else appear to pass–in Mark’s words–”from lawyerly deliberation to sheer willfulness” (to quote Mark’s rendering of Harlan Fiske Stone’s verdict on Colgate v. Harvey).

It did not take Mark that many pages to tell us this much, but showing it to us was another matter.  “Understanding how the tension [between "particular formulas” and “conceptions of basic needs”] played itself out in the Court’s cases,” he writes, “requires attention to rather dry cases far removed from the core constitutional controversies that are typically the focus of attention.” Again, from the preface: “[T]he work of the Supreme Court is, well, work.  The justices’ experience was shaped by everything they did, not only by the cases that got the headlines.  To capture the experience we must look at as much of the Court’s work as feasible.”  And, in case that warning didn’t take, Mark provides another, a description of his method that is somehow both wholly accurate and deceptively understated: “I discuss a rather large number of relatively small cases in some detail.”  (I’ll say.)

Those “core constitutional controversies” dominate the narrative in Part 1; the cases in Parts 2 and 3 are more likely to strike readers as “rather dry”–unless they happen to specialize in the law those cases made, in which case the reading is rather thrilling–and at times astonishing.  Long ago, Mark famously identified the “‘lawyer as astrophysicist’ assumption,” the belief that lawyers’ general training enables them to “read a text on astrophysics over the weekend and launch a rocket on Monday.”  Mark may not have launched any rockets, but he is utterly convincing as he moves across the many topics that found their way to the Court, combining lucid summaries of the often complex records of the cases with equally clear descriptions of the context in which they arose.  If you happen to know a topic pretty well and look down at Mark’s footnote, every time you discover that Mark has read just the right source.  And if you don’t know the topic well, you’re grateful to Mark for explaining it to you.  To take one example: many people have tried to explain to me how holding companies work, but Mark, at page 970, is the only person who has succeeded.  To sum up: if you find yourself needing help with an unfamiliar Supreme Court case, you are generally wise to start with the relevant volume of the Holmes Devise.  If the Hughes Court decided the unfamiliar case, you are a fool not to start with Mark’s.

That’s enough on the first of two questions one should ask every work of scholarship–“What’s new?”  What about the other question, “So what?”  To work toward an answer, I want to take up the irony that Laura has just identified, that Mark’s book would have wowed Felix Frankfurter and Paul Freund when one would have expected them to hate a history of the Court written by so important a figure in a movement that sought to destabilize the school of jurisprudence to which they subscribed.  You could almost imagine Freund opening the book, with his verdict on the judicial biographer Alpheus T. Mason at the ready (“what Mason touches he vulgarizes”) and then closing it deeply impressed how subtly and seriously Mark explained the justices’ decisionmaking.  

I’ve had a similar thought, that Mark has written the book Paul Freund couldn’t, but then I mistrusted it.  Although I have worked in Freund’s papers, I can't claim to know his scholarship well nor did I ever take a course from Freund, as Mark did, but I’m assuming that Freund invested the justices’ reasoned elaboration with a timeless normative significance that I doubt Mark shares.  That’s not to say that Mark’s book is purely descriptive or without normative implications; it’s just that the implications of an emphasis on craft may have been different near the conclusion of Mark’s career in the legal academy than they were near its beginning.  That’s the thing about writing of history being a dialogue between the past and the present: the present keeps changing.  Perhaps when the Legal Process pervaded the legal education of so many Supreme Court justices, the politics of law called for revealing the structures of thought obscured by their display of craft.  Now, when so many seem to be committed to theory in one form or another, the politics of law call for reminding them that, to use Holmes’s famous term, “jobbism” allowed their predecessors to resolve old challenges and meet new ones in calamitous times, notwithstanding their sometimes sharply conflicting political commitments.

At the end of his acknowledgments, Mark writes that he considers The Hughes Court “the capstone of a career in the legal academy that has now ended.”  I can’t disagree: a scholarly lifetime is evident in Mark’s conception of the purpose of his book, in the learning he brought to it, and in the mastery with which he executed his design.  I can imagine that it might leave some scholars discouraged, overwhelmed by the realization that they could never produce a similar work, but it heartens me.  After contributing vitally so many fields of legal scholarship, Mark has chosen to complete his career in the legal academy with a work of legal and constitutional history.  When I reflect on the fact that a scholar as great as Mark is has been so committed to the same enterprise I am I find myself enormously reassured of its value and eager to get back to work.

Kalman Comments on Tushnet's "Hughes Court"

[On Tuesday, April 4, Georgetown Law devoted a session of its faculty workshop to honoring the publication of The Hughes Court: From Progressivism to Pluralism, 1930-1941 (Cambridge University Press, 2022), a volume in the Oliver Wendell Holmes Devise History of the Supreme Court of the United States, by Mark V. Tushnet, the William Nelson Cromwell Professor of Law Emeritus at the Harvard Law School.  The HLS Library hosted a virtual symposium on the book last year, Georgetown Law wanted to celebrate its appearance as well, because Professor Tushnet was a former, longtime member of its faculty.  My colleague Brad Snyder organized the event, at which Laura Kalman, Distinguished Research Professor of History, University of California, Santa Barbara, and I gave remarks.  With her permission, Professor Kalman's appear below.  Mine follow in the next post.  We ask you to keep the setting in mind as you read them.  DRE.]

Professor Kalman's Remarks:

Like some of you, I bet, I have my own very particular vision of Heaven. It includes a fabulous library where those who've died can continue reading what authors have written about them.  When the authors themselves arrive, they sit down with their subjects in the library café and consume great amounts of pizza from Frank Pepe's and beer as authors and subjects chew over what the authors wrote.  Given the food, the library's beauty, and the fact that the mantra in my heaven is that reasonable people can disagree, these discussions are usually very cheerful.  

Now when it happens the lunch between Oliver Wendell Holmes, Felix Frankfurter, and Paul Freund after they've read the book, with Mark, who I hope doesn't arrive in Heaven until he's 120, may start out a tad tense.  Holmes is probably thrilled to see Mark.  He's got to be relieved someone has FINALLY finished this volume of the Devise. Frankfurter--not so much.  Frankfurter was obviously the moving force on the Court behind the Devise, having launched it "into high gear” (ha ha) in 1955--while Earl Warren was distracted by Brown II and calls to run for President after Ike's heart attack. Mark is no Frankfurter fan, and he's called Frankfurter "sloppy" about procedural matters dear to the justice's heart. And Frankfurter has got to be bothered by the fact that Mark said in 1976 that the "time has come to blow the whistle on the Holmes Devise History of the Supreme Court"-presumably because the volumes have been taking too long to get out, since Frankfurter and Freund assigned them to the wrong people.  And then there's Freund, general editor of the Devise before he was succeeded by Stan Katz, then Maeva Marcus.  Freund was also supposed to have written the Hughes Court volume, but he didn’t deliver. Frankfurter and Freund can't relish having Mark at Harvard, much less as an author of the sainted Holmes Devise that the justice promoted to provide proof that Harvard was superior in all things.
But if our luncheon guests put all these issues aside, as you're supposed to do in my heaven, I bet Frankfurter and Freund are absolutely wowed by Mark's spectacular book. It is a masterpiece right from the early sentence, "There was no Constitutional Revolution of 1937, and this is a book about it." Mark explodes tired old dualities like progressive-conservative, formalist-realist, internalist-externalist and shows how the justices navigated their way between formalism and social reality to shape progressivism into pluralism. And in my favorite sentences on page 1162 (Holmes Devises double as doorstops), Mark identifies a "constitutional revolution" "IN" 1937 in the precise location of Jones & Laughlin's "dismissal of Carter Coal as "not controlling."  Then Mark rightly adds, "And yet, because legal consciousness is never fully consolidated, it is also a mistake to describe a constitutional revolution OF 1937." Absolutely brilliant! To conclude, I revere this book, and Frankfurter and Freund should also!

Saturday, April 8, 2023

Weekend Roundup

  • Congratulations to Karl Shoemaker on his appointment as the Robert F. and Sylvia T. Wagner Distinguished Faculty Chair from the College of Letters and Science at UW-Madison!
  • And to Sally Hadden, Western Michigan University, on her selection as a National Humanities Center Fellow for 2023-24, for what she describes as a work in progress with Maeva Marcus on “a prehistory of the earliest Supreme Court"!
  • Carlos Fernandez Salas, a lawyer currently pursuing a doctorate at Harvard University, will present in the Legal History Roundtable at Boston College Law School on Thursday, April 20 from 4:30pm to 5:45pm.
  • Georgetown Law observes the centennial of United States v. Thind (1923) on Thursday, April 20, at 5:30 PM.  Tejinder Singh, Sparacino PLLC; Sherally Munshi, Georgetown Law; and Sim J. Singh, The Sikh Coalition will “examine the intersections between Thind and race, caste, colonialism, its implications for religion and activism, and what we can learn from this history today.” 
  • The latest Newsletter of the Historical Society of the District of Columbia Circuit is available here.
  • ICYMI: "The Declaration of Breda” is expected to “fetch up to £600,000 ($749,000)” when Sotheby’s auctions it off (CNN).  Penn names first female law school dean in 170-plus year history (Philadelphia Inquirer). 
  • Update: Over at The Jackson List, John Q Barrett notes the passing of Benjamin B. Ferencz.
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.