Thursday, August 31, 2023

Papp Kamali on Fact Finding in Medieval English Law

Elizabeth Papp Kamali, Harvard Law School, has published open access Finding Facts in Medieval English Law, in the Journal of Legal Analysis 15 (2023): 158-182:

Accounts of the post-Lateran IV period tend to emphasize the different procedural paths taken by English courts, which adopted jury trial for felony cases, and continental European courts, which turned toward inquisitorial methods and a greater reliance on confession. This article argues that the fact-finding strategies of the two systems had more in common than may appear at first glance due, in part, to a shared cultural reservoir exemplified by the strategy of circumstantial inquiry employed by confessors. Rather than focusing on the point of greatest difference, the trial jury, this article examines pre-trial investigative processes to emphasize shared jurisprudential priorities.

--Dan Ernst

Wednesday, August 30, 2023

ASLH Book Club

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

Dear ASLH Community,

This academic year we launch an exciting new initiative: the ASLH (Virtual) Book Club. The response to our initial call showed the incredible vibrancy of the field of legal history and we are excited to have the opportunity to have a conversation with authors about their books. Events will be held via Zoom on Wednesday evenings, from 6:00-7:00 Central, once a month. All events require an RSVP: we will send emails to the community two weeks in advance of the event with links allowing you to register, and those who are registered will receive an email with a Zoom link 24 hours before the event. Events will be open to the entire community this fall; starting in January, events will only be open to members. (So remember to renew your membership!)

Book Club events are structured as conversations.  Authors will briefly introduce their book, then talk about it in conversation with an interlocutor (or another author in dual book sessions), before opening up the conversation to the audience. There is no expectation that audience members will have read the book. We will welcome interaction with the authors and their interlocutors via questions in the chat.


Sept. 20  Rowan Dorin, No Return: Jews, Christian Usurers and the Spread of Mass Expulsion in Medieval Europe (Princeton Univ. Press 2023) with Karl Shoemaker
October  No Book Club. Annual Meeting in Philadelphia, Oct. 26-28
Nov. 15  Margot Canaday, Queer Career: Sexuality and Work in Modern America (Princeton Univ. Press 2023) with Karen Tani
Dec. 13  Christian R. Burset, An Empire of Laws: Legal Pluralism in British Colonial Policy (Yale Univ. Press 2023) and Lisa Ford, The King’s Peace: Law and Order in the British Empire (Harvard Univ. Press 2021)
Jan. 17  Lyndsay Campbell, Truth and Privilege: Libel Law in Massachusetts and Nova Scotia, 1820-1840 (Cambridge Univ. Press 2022) and Kristin A. Olbertson, The Dreadful Word: Speech Crime and Polite Gentlemen in Massachusetts, 1690-1776 (Cambridge Univ. Press 2022)
Feb. 21  Saumya Saxena, Divorce and Democracy: A History of Personal Law in Post-Independence India (Cambridge Univ. Press 2022) with Alastair McClure
Mar. 13  John Wertheimer, Race and Law in South Carolina: From Slavery to Jim Crow (Amherst College Press 2023) with Myisha S. Eatmon
Mark your calendars and we look forward to seeing you there!  Questions?  Email Barbara Welke at  A call for the Book Club events for April-Sept. 2024 will be posted in December.

Steinberg's "Law and Mimesis in Boccaccio's Decameron"

Justin Steinberg, University of Chicago, has published Law and Mimesis in Boccaccio's Decameron: Realism on Trial (Cambridge University Press):

In Boccaccio's time, the Italian city-state began to take on a much more proactive role in prosecuting crime – one which superseded a largely communitarian, private approach. The emergence of the state-sponsored inquisitorial trial indeed haunts the legal proceedings staged in the Decameron. How, Justin Steinberg asks, does this significant juridical shift alter our perspective on Boccaccio's much-touted realism and literary self-consciousness? What can it tell us about how he views his predecessor, Dante: perhaps the world's most powerful inquisitorial judge? And to what extent does the Decameron shed light on the enduring role of verisimilitude and truth-seeming in our current legal system? The author explores these and other literary, philosophical, and ethical questions that Boccaccio raises in the Decameron's numerous trials. The book will appeal to scholars and students of medieval and early modern studies, literary theory and legal history.

--Dan Ernst

Tuesday, August 29, 2023

NJIT/Rutgers-Newark Job in History and Legal Studies

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

The Federated Department of History at New Jersey Institute of Technology and Rutgers University, Newark invites applications for a tenure-track historian, based at NJIT, to begin September 2024. This faculty member will principally support NJIT's undergraduate program in Law, Technology and Culture (LTC) and may contribute to the federated department's graduate course offerings in the History of Technology, Environment & Medicine/Health.

Preference will be given to historians whose scholarship is law-related, and some preference may also be given to applicants whose law-related research also aligns with the Department's strengths in one or more of the following fields: environmental history, history of science, history of medicine, history of public health, history of technology, or media history.  Applicants who use digital humanities methods in their research or teaching are especially welcome. Chronological/geographical area(s) of expertise are open.
Applicants should have evidence of scholarly accomplishment and effective teaching, with Ph.D. in hand by July 2024.

Bernstein's "Hamilton"

We note, sadly, the posthumous publication of R. B. Bernstein's Hamilton: The Energetic Founder (Oxford University Press): 

Hamilton: The Energetic Founder is a brief introduction to the life, thought, work, and legacy of Alexander Hamilton (1755-1804), but it is not a traditional biography. Public curiosity about Hamilton, his life, and his work has swelled, particularly among those intrigued by popular-culture portrayals in the Broadway musical Hamilton: An American Musical. This book presents a summary of Hamilton's life and explores his role in revolution, constitutionalism, economics, diplomacy, and war, as well as his relationship to honor culture and duelling. The epilogue considers Hamilton's legacies.

The book considers Hamilton as a key founding father, focusing on his work as a politician, a constitutional thinker, and the nation's first secretary of the treasury. In that role, Hamilton was perhaps the leading American domestic policy-maker and nationalist. He led the effort to write the brilliant defense and exposition of the Constitution, The Federalist, and later, as treasury secretary, he pioneered efforts to interpret the Constitution broadly, as a generous grant of national power to the government of the United States. As part of that effort, he also pioneered expositions of the Constitution as a source of executive and judicial power. In addition, as a leading figure in the American world of honor culture, Hamilton was also a principal exponent of political combat in defense of personal and political honor. As such, he was a tragic victim of the honor culture he did so much to establish as a component of national politics, dying as the result of a mortal wound he suffered in his 1804 duel with Aaron Burr, his longtime antagonist and Vice President of the United States.

Though not often an admired political figure in his own time, Hamilton was perhaps the leading and most enthusiastic exponent of American constitutional nationalism. In the more than two centuries since his death in 1804, Hamilton has continued to be the principal advocate of a nationalist reading of US constitutionalism.
--Dan Ernst

Monday, August 28, 2023

Sloan to Speak on "The Court at War"

The FDR Library and Museum announces a conversation with author Cliff Sloan and FDR Library director William Harris about Sloan’s book, The Court at War: FDR, his Justices, and the World They Made, on Sunday, September 17, 2pm ET, at the Henry A. Wallace Center.  This is a free public event, but registration is required.  You may register to attend in person or view the livestream on the official FDR Library pages on YouTube and Facebook.

--Dan Ernst

ASLH Elections Begin

Members of the American Society for Legal History should receive their ballot via email sometime today.  The candidates' biographical statements are here.  Voting concludes on September 18.  If you did not receive one but thought you should, please contact ASLH Secretary Ari Bryen at

--Dan Ernst

Saturday, August 26, 2023

Weekend Roundup

  • "Surviving members of the Little Rock Nine, a group of students who faced extreme harassment and threats of violence for integrating Little Rock Central High School in 1957, have spoken out against Arkansas education officials who decided last week not to recognize an Advanced Placement (AP) course on Black history" (Truthout).  Governor Sarah Sanders met with "members of the Arkansas Legislature, including leadership of the Legislative Black Caucus," to discuss the controversy  (TB&P).
  • The University of Arkansas has noted the retirement of the constitutional historian Mark Kellenbeck after thirty-five years as a member of the faculty of its law school.  In May 2012, he delivered "A Prudent Regard to Our Own Good? The Commerce Clause, in Nation and States,” at the U.S. Supreme Court as part of the Leon Silverman Lecture Series of the Supreme Court Historical Society (U Ark News).
  •  The Jurisprudence and Social Policy Program at Berkeley Law "invites entry-level and lateral applicants for a full-time, tenured or tenure-track faculty position in the field of race and law." View the ad here
  • The Federal Judicial Center has posted a "user guide' to its website on the history of the federal judiciary. 
  • Matthew Waxman, Columbia Law School, on Daniel Webster and the Guano Islands near-war (Lawfare).
  • A notice of this summer’s projects by undergraduates in the Digital Legal Research Lab under the mentorship of Katrina Jagodinsky and William Thomas at the University of Nebraska, Lincoln.
  •  At noon on November 3, in the Claire Priest, Yale Law School, is to speak on “From Invasion to Formalization: The Peruvian Origins of the Property Titling Movement” at the Baldy Center for Law and Social Policy at the University at Buffalo School of Law.  (Yesterday, Samantha Barbas present her book, Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan.)  More.
  • The Supreme Court Historical Society announces the world premiere of “Holmes” on October 30, 2023, at Arena Stage, Washington, DC.  “Veteran actor Kevin Reese will bring the Justice from Beacon Hill to life, showcasing his humor and wisdom."  One night only.
  • In person and streamed on line: Texas Gulf Sulphur at 55, Friday, September 29, 2023, 9 a.m. to 4 p.m. EST.  Sponsored by the SEC Historical Society and Quinnipiac School of Law.

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

Friday, August 25, 2023

Research Assistant Professorship in US Law and Race

 [We have the following announcement.  DRE]

The Department of History at the University of Nebraska-Lincoln (UNL) seeks a specialist in U.S. Law and Race to be appointed as the Mellon Research Assistant Professor, a 12-month position beginning August 15, 2024. The appointment is for two years with the potential, based on performance, for conversion into a tenure-leading appointment.

A Ph.D. in History or a relevant humanities or humanistic social science discipline related to U.S. Law and Race is required. The Ph.D. must be completed by August 14, 2024. Candidates must demonstrate a record of scholarship and training in U.S. History and a teaching record supporting the ability to offer courses in U.S. History at the graduate and undergraduate levels.

Preference will be given to candidates with experience in research, teaching, and curricular development in U.S. Law and Race. Candidates with expertise in digital history, and/or community-engaged partnerships are especially welcome to apply.

Candidates should review the background on the initiative here and can review a full description of responsibilities in the job posting. Salary will be commensurate with experience. The salary range for this position is $60,000-$70,000 with benefits.

The Mellon Research Assistant Professor will 1) conduct independent research in U.S Law and Race in support of UNL’s “U.S. Law and Race Initiative;” 2) teach one course in the proposed curriculum each year; 3) participate actively in the initiative’s core faculty governing group; 4) coordinate and advance research with community partners; 5) support the development of an open educational resource (OER) in partnership with faculty and the Center for Digital Research in the Humanities; and 6) help coordinate the U.S. Law and Race graduate fellows program.

Review of applications will begin November 15, 2024, and will continue until the position is filled. To be considered for the position, applicants must complete the Faculty/Administrative Information form at, requisition F_230141. You will need to attach your letter of interest and your CV. We are requesting three (3) reference letters to be sent to the chair of the search committee, William G. Thomas III at with the subject line “MellonRAP.”

The University of Nebraska-Lincoln seeks to achieve a working and learning environment that is open to all people. Diversity is the hallmark of great institutions of learning and has long been one of the strengths of our society. Dignity and respect for all in the UNL community are the responsibility of each individual member of the community. The realization of that responsibility across the campus is critical to UNL’s success.

As an EO/AA employer, the University of Nebraska considers qualified applicants for employment without regard to race, color, ethnicity, national origin, sex, pregnancy, sexual orientation, gender identity, religion, disability, age, genetic information, veteran status, marital status, and/or political affiliation. See


  • Ph.D. in History or a relevant humanities or humanistic social science discipline related to U.S. Law and Race. The Ph.D. must be completed by August 14, 2024
  • Demonstrated record of scholarship and training in U.S. History
  • Teaching record supporting the ability to offer courses in U.S. History at the graduate and undergraduate levels

The Cambridge Constitutional History of the United Kingdom

The Cambridge Constitutional History of the United Kingdom, a two-volume work edited by Peter Cane, Christ's College, Cambridge, and Australian National University, and H. Kumarasingham, University of Edinburgh, has been published.  Here is a composite of the press’s descriptions of the two volumes:

Featuring contributions from leading scholars of history, law and politics, this path-breaking two-volume work traces the development of the United Kingdom's constitution from Anglo-Saxon times and explores its role in the creation, exercise and control of public power. Chapters in Volume One, entitled "Exploring the Constitution," approach the constitution and its history from various scholarly perspectives, and provide historically sensitive discussions of constitutional actors and institutions, and of political traditions and transformations of the constitution. Essays in Volume Two, entitled "The Changing Constitution," examine the development of the constitution from the departure of the Romans up to the present day and beyond. Together, the two volumes form the first, wide-ranging history of the constitution to be published for more than 50 years. By its cross-disciplinary approach, taking account of the latest legal, political and historical scholarship on the constitution, it fills a large gap in the literature of the constitution, and in political thought and British history.

The TOC for the first, thematic volume, is here; the one for the second, more chronologically organized volume, is here.

--Dan Ernst.  H/t: DC

Thursday, August 24, 2023

Michigan Journal of Law and Society

 [We have the following CFP.  DRE]

The Michigan Journal of Law and Society (MJLS) is pleased to announce our call for submissions for articles, book reviews, and student scholarship for Volume III of MJLS. In Volume III, we are focusing on MJLS's interdisciplinary mission and therefore will accept submissions on any legal topic of importance, so long as the topic piece is written within the intersection of multiple academic disciplines. Such intersections include, but are not limited to, Law and Sociology, Law and History, Law and Anthropology, and Law and Political Science.

The call date for articles and book reviews for MJLS Volume III is November 27th, and ends at 11:59 pm eastern. For Student Submissions, the call date is February 5, 2024. Please visit our website for more information on submission guidelines and do not hesitate to reach out to if you have any questions.

MJLS is the nation’s first law-school journal to focus on the intersections of law, history, and the social sciences. MJLS is also the nation’s first law-school journal to incorporate law students, PhD students, and a faculty editorial board into its review and editorial processes.

Legal History in the "The Oxford Handbook of Feminism and Law in the United States"

Oxford University Press has published The Oxford Handbook of Feminism and Law in the United States, edited by Deborah Brake (University of Pittsburgh School of Law), Martha Chamallas (Moritz College of Law - the Ohio State University), and Verna Williams (University of Cincinnati College of Law). A number of the chapters may interest readers of the blog. Here's an overview from the Press:

Combining analyses of feminist legal theory, legal doctrine, and feminist social movements, The Oxford Handbook of Feminism and Law in the United States offers a comprehensive overview of U.S. legal feminism. Contributions by leading feminist thinkers trace the impacts of legal feminism on legal claims and defenses and demonstrate how feminism has altered and transformed understandings of basic legal concepts, from sexual harassment and gender equity in sports to new conceptions of consent and motherhood. Its chapters connect legal feminism to adjacent intellectual discourses, such as masculinities theory and queer theory, and scrutinize criticisms and backlash to feminism from all sides of the political spectrum. Its examination of the prominent brands of feminist legal theory shows the links and divergences among feminist scholars, highlighting the continued relevance of established theories (liberal, dominance, and relational feminism) and the increased importance of new intersectional, sex-positive, and postmodern approaches. Unique in its triple focus on theory, doctrine, and social movements, the Handbook recounts the history of activist struggles to pass the Equal Right Amendment, the Anti-Rape and Battered Movements of the 1970s, the contemporary movements for reproductive justice and against campus sexual assault, as well as the #MeToo movement. The emphasis on theory and feminist practice animates discussions of feminist legal pedagogy and feminist influences on judges and judicial decision making. Chapters on emerging areas of law ripe for feminist analysis explore foundational subjects such as contracts, tax, and tort law, and imagine feminist and social justice approaches to digital privacy and intellectual property law, environmental law, and immigration law. The Handbook provides a broad picture of the intellectual landscape and allows both new and established scholars to gain an in-depth understanding of the full range of feminist influence on U.S. law.

A selection of chapters of possible interest:

Tracy A Thomas, "The Long History of Feminist Legal Theory"

Julie Suk, "The Equal Rights Amendment, Then and Now

Leigh Goodmark, "The Anti-Rape and Battered Women’s Movements of the 1970s and 1980s"

Mary Ziegler, "From Reproductive Rights to Reproductive Justice: Abortion in Constitutional Law and Politics

Deborah Widiss, "Pregnancy and Work: 50 Years of Legal Theory, Litigation, and Legislation"

Melissa Murray and Hilarie Meyers, "Constitutionalizing Reproductive Rights (and Justice)

h/t Legal Theory Blog

-- Karen Tani

Wednesday, August 23, 2023

Jia on China, International Conflict, and American Law

My Georgetown Law colleague Mark Jia has posted American Law in the New Global Conflict, which is forthcoming in the New York University Law Review:

International conflict has profoundly influenced American law. It has shaped the scope of our civil rights and civil liberties, transformed the balance of our constitutional institutions, and fostered shifts in our legal culture. This Article is the first to comprehensively assess how today’s principal conflict, a growing rivalry between the United States and China, is shaping the American legal system. It contends that the new global conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of our history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed connections to a geopolitical adversary. But there has also been a modest expansion in rights where affected constituencies have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times fostered executive overreach and increased interbranch and interparty consensus. Legal-culturally, it has evinced a decline in legal rationality resulting from the return of familiar ideological and nationalistic frames. Although these developments do not rival in magnitude the excesses of America’s wartime past, they evoke that past and may, over time, replay it. The Article provides a framework for understanding legal developments in this new era, contributes to our understanding of rights and structure in periods of conflict, and offers some tentative reflections on what comes next in the new global conflict, and how best to shape it. 
--Dan Ernst

Ramnath's "Boats in a Storm"

Kalyani Ramnath, University of Georgia, has published Boats in a Storm: Law, Migration, and Decolonization in South and Southeast Asia, 1942–1962 (Stanford University Press):

For more than century before World War II, traders, merchants, financiers, and laborers steadily moved between places on the Indian Ocean, trading goods, supplying credit, and seeking work. This all changed with the war and as India, Burma, Ceylon, and Malaya wrested independence from the British empire. Set against the tumult of the postwar period, Boats in a Storm centers on the legal struggles of migrants to retain their traditional rhythms and patterns of life, illustrating how they experienced citizenship and decolonization. Even as nascent citizenship regimes and divergent political trajectories of decolonization papered over migrations between South and Southeast Asia, migrants continued to recount cross-border histories in encounters with the law. These accounts, often obscured by national and international political developments, unsettle the notion that static national identities and loyalties had emerged, fully formed and unblemished by migrant pasts, in the aftermath of empires.

Drawing on archival materials from India, Sri Lanka, Myanmar, London, and Singapore, Kalyani Ramnath narrates how former migrants battled legal requirements to revive prewar circulations of credit, capital, and labor, in a postwar context of rising ethno-nationalisms that accused migrants of stealing jobs and hoarding land. Ultimately, Ramnath shows how decolonization was marked not only by shipwrecked empires and nation-states assembled and ordered from the debris of imperial collapse, but also by these forgotten stories of wartime displacements, their unintended consequences, and long afterlives.
--Dan Ernst

Tuesday, August 22, 2023

Crowdsourcing a Census of Grotius's de Jure Belli ac Pacis

Legal historians at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany, researching a census bibliography of the first nine editions of De iure belli ac pacis (1625-1650), hope to publish their results in 2025, the 400th anniversary of the book’s first appearance.   Although they have located and examined hundreds of copies to date, they ask the help of LHB readers to identify even more.  

Below is a series of links corresponding to the publication year (and, for the two 1632 editions,  publishers) of the nine editions. They ask any LHB who owns or knows of one these copies of De iure belli ac pacis to complete the corresponding questionnaire. 

--Dan Ernst


Questionnaire 1625 IBP:

Questionnaire 1626 IBP: 

Questionnaire 1631 IBP:

Questionnaire 1632 Janssonius IBP:

Questionnaire 1632 Blaeu IBP: 

Questionnaire 1642 IBP:

Questionnaire 1646 IBP:

Questionnaire 1647 IBP:

Questionnaire 1650 IBP:

Gibbs's "Lordship, State Formation, and Authority"

Spike Gibbs, Universität Mannheim, has published Lordship, State Formation and Local Authority in Late Medieval and Early Modern England (Cambridge University Press):

Providing a new narrative of how local authority and social structures adapted in response to the decline of lordship and the process of state formation, Spike Gibbs uses manorial officeholding – where officials were chosen from among tenants to help run the lord's manorial estate – as a prism through which to examine political and social change in the late medieval and early modern English village. Drawing on micro-studies of previously untapped archival records, the book spans the medieval/early modern divide to examine changes between 1300 and 1650. In doing so, Gibbs demonstrates the vitality of manorial structures across the medieval and early modern era, the active and willing participation of tenants in these frameworks, and the way this created inequalities within communities.
--Dan Ernst

Monday, August 21, 2023

Peter Rodino, "Lawyer-Hero"

Paula A. Franzese, Seton Hall Law School, Eugene D. Mazo, Duquesne University School of Law, and Lawrence Spinelli, Overseas Private Investment Corporation, have posted The Lawyer-Hero: Lessons in Leadership from Watergate to the Present Day, which is published as 54 University of Toledo Law Review 359 (2023):

Peter W. Rodino, Jr. (January 1974) (LC)
In recent years, a growing body of literature has turned to examine the critical role played by lawyers in the tasks of civic reinvention and restoring public trust in the United States. Some of this literature focuses on the importance of developing leadership skills in law students and young lawyers. Other literature looks to recognize the relevance of historical exemplars in helping lawyers to meet the tests of contemporary practice and engagement. Whether serving as public officials, politicians, general counsel, law enforcement agents, or members of law firms or public interest organizations, there is no question that lawyers today are asked to display leadership skills amidst increasing volatility, uncertainty, complexity, and ambiguity. Rising tides of public distrust, cynicism, and weariness compound the challenges that contemporary lawyers face.

As the nation marks the fiftieth anniversary of Watergate, this Article seeks to offer lessons for today’s turbulent times from the leadership of Congressman Peter W. Rodino. In 1972, several aides associated with President Richard M. Nixon's re-election campaign broke into the offices of the Democratic National Committee in the Watergate building in Washington, D.C. The trespassers were caught wiretapping phones and stealing documents. Nixon endeavored to cover up their crimes, and his role in the conspiracy eventually led to articles of impeachment being drafted against him. On August 9, 1974, he resigned from office in disgrace. Peter W. Rodino of New Jersey, who was then the chair of the House Judiciary Committee, presided over the House’s impeachment proceedings and met the resultant national crisis with a steadiness and dignity seldom witnessed in the public sphere. This Article examines Rodino's approach to leadership during this time of social and political discord and explains why Rodino should be viewed as an effective model to lawyer-leaders in all spheres of professional and civic life today.

Part I sets forth the principles of effective leadership for lawyers, particularly in times of unrest and malaise. Part II looks at the making of a transformational leader by examining Rodino's life, early career, and the forces that shaped his time in practice and public service. Rodino's tenure in office reached its pinnacle during Watergate, when he was called to conduct the impeachment hearings against Nixon. To this day, many believe Rodino’s stewardship yielded "the gold standard for what Congress is capable of doing" during a national crisis. Part III looks beyond Watergate at the impeachments of Bill Clinton and Donald Trump, when the presidency was again in crisis and when lawyers were again responsible for the wrong-doing. Part IV returns to Rodino's leadership acuities, extracting object lessons for integrity-led management in uncertain times. The Article concludes by examining how Peter Rodino's legacy can help to inform successive generations of lawyer-leaders in the tasks of restoring civic engagement and vindicating the public’s trust.
--Dan Ernst

Saturday, August 19, 2023

Weekend Roundup

  • Steven A. Steinbach, once a litigation partner Williams & Connolly LLP and latterly a teacher of United States History and American Government courses at the Sidwell Friends School in Washington, DC, on how United States history can also be taught and understood by focusing on constitutional history (YouTube).

  • of his article on the compulsory arbitration decision, Epic Systems Corp. v. Lewis (U.S. 2018).
  • Justin Driver’s Robert H. Jackson Lecture at the Chautauqua Institution, on the constitutionality of racial diversity-seeking affirmative action in college admissions, is here.
  • ICYMI: Rice University mourns Harold Hyman (Rice).  

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

Friday, August 18, 2023

Ohnesorge on Regulating the Chinese Legal Profession

John K.M. Ohnesorge, University of Wisconsin Law School, has posted Regulation of the Legal Profession in China: An Historical Overview, which is forthcoming in China Law & Society Review:

This essay begins with an exploration of the role of law and “proto lawyers” in imperial China, followed by a survey of the legal profession and its regulation in Republican China before 1949 (Section II). Section III addresses lawyer regulation during the high tide of Soviet and the Maoist influence (III.A.), and in the post-1978 reform period (III.B. and III.C.), including the regulation of foreign lawyers and law firms in the China market. Section III.D. turns to developments since Xi Jinping took power in 2012, and Section IV offers concluding observations.
--Dan Ernst

Steilen on Genteel Legal Culture in Early National Virginia

Matthew J. Steilen, State University of New York at Buffalo, Law School, has posted Genteel Culture, Legal Education, and Constitutional Controversy in Early National Virginia, which appears in Law and History Review:

The Wythe's House, Williamsburg (Highsmith/LC)
This article focuses on the movement to reform legal education in early national Virginia, offering a fresh perspective by examining the connection between legal education and society and culture. It challenges the notion that constitutional ideas were the primary driving force behind reforms and argues that social status and “manners” played a more significant role. Wealthy elites in Virginia associated manners with education, sending their sons to college to become gentlemen, as it secured their aspirations to gentility and their influence over society and politics. Reformers sought to capitalize on this connection by educating a generation of university-trained, genteel lawyers who could lead the state’s legislature and its courts. In this sense, educational reform was genteel rather than democratic in its basic assumptions. The article examines the central figure of George Wythe and explores his influence on Virginia’s leading men, including Thomas Jefferson and St. George Tucker. It delves into the student experience in Wythe’s law office and at the College of William and Mary, the success of educational reforms in the central courts, and the effects on Virginia’s constitutional development. The college-educated lawyers who came to dominate the legislature in the early nineteenth century used their training for politics. As these lawyers sought to strengthen the institutions their party controlled, they drove the development of constitutional doctrines like federalism and separation of powers.

--Dan Ernst

Blocher and Garrett on Originalism and Historical Fact-Finding

Joseph Blocher and Brandon L. Garrett, Duke University School of Law, have posted Originalism and Historical Fact-Finding, which is forthcoming in the Georgetown Law Journal:

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on its being simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.

In the absence of the usual fact-finding protocols, many recent Supreme Court rulings have based the scope of constitutional rights on claims of historical fact—with those claims drawn primarily from amicus briefs, and involving some serious factual errors. This is significant in two broad sets of cases: those that rely on history to apply a constitutional rule (as lower courts are doing with the historical-analogical test prescribed by New York State Rifle & Pistol Association v. Bruen) and those that rely on history to set the content of a constitutional rule (for example in Dobbs v. Jackson Women’s Health Organization’s rejection of a constitutional right to abortion). The latter—which we call “declarative historical fact”—have become especially prominent in recent years.

In this Article, we explore the promise and peril of treating historical fact-finding like other kinds of fact-finding in our legal system. Doing so calls into doubt originalism’s near-exclusive focus on historical fact-finding at the appellate level, informed by amicus briefs and judges’ or Justices’ own historical research. Our legal system gives trial courts primary authority over fact-finding, and many trial judges attempting to implement the Supreme Court’s originalist decisions have turned to historians as experts, holding hearings and calling for briefing at trial level. Such trial-level historical fact-finding imposes serious burdens and faces important limitations, but also has important institutional and constitutional advantages over appellate findings of historical fact.

In addition to emphasizing the proper role of trial courts, our analysis suggests a more important role for Congress both in finding historical facts and in regulating appellate review of historical facts. Courts arguably owe deference—perhaps substantial deference—to congressional fact-finding, and it is not immediately apparent why historical fact-finding should be any different. Congress might also legislate standards of review for judicial fact-finding, including for historical facts used in constitutional litigation. This type of “fact-stripping,” a form of jurisdiction stripping, is consistent with congressional power over Article III courts, as we have developed in prior work.

If originalism is to maintain its claim on being fact-based, it must grapple with these fundamental issues regarding the litigation of facts in our legal system. If it is not practically possible for judges develop a sound record of historical facts, then any approach to interpretation relying on such facts will not produce convincing, legitimate, or lasting interpretations of the Constitution.
--Dan Ernst

Thursday, August 17, 2023

Ford on Preambles before the Preamble

Stuart Ford, University of Illinois at Chicago School of Law, has posted Preambles Before the Preamble: Rediscovering the Preamble's Role in Constitutional Interpretation:

Penn's Charter of Privileges, 1701 (HSP)
This Article explores how the Preamble to the Constitution would have been viewed when it was drafted by looking at how preambles were viewed in America in the seventeenth and eighteenth centuries. It offers the first comprehensive look at how preambles were used by lawyers, judges, politicians, and the public in the years before the Constitution was ratified. It demonstrates that courts’ modern treatment of the Preamble is at odds with its original meaning. Eighteenth-century Americans viewed the Preamble as an important tool for understanding and interpreting the Constitution. They would have expected courts to interpret the Constitution’s terms to be consistent with the purposes expressed in the Preamble. Moreover, there is evidence from both judicial decisions and public discourse that members of the public would have expected the Preamble to be used to limit or expand the scope of specific terms of the Constitution if that was necessary to achieve the purposes set out in the Preamble. This means that the way that courts use the Preamble today is at odds with its original meaning. To give the Constitution its original meaning, we must interpret the Constitution’s provisions in light of the purposes identified in the Preamble. For those judges and scholars who are originalists, this may require a shift in how they interpret the Constitution.

--Dan Ernst

JDLH 1:1

Last summer we published the call for submissions for a new legal historical periodical, the Journal for Digital Legal History.  It has since published its first issue.  Here is the journal's self-description:

Legal history is traditional in its methods and techniques of research. This is not necessarily a problem, but researchers applying digital tools to legal sources need a place to go. The Journal for Digital Legal History ("DLH") wants to showcase both new methods and the application thereof, by including elaborate graphics, datasets, links, Jupyter Notebooks, metadata and tutorials. As such, the DLH does not limit itself to traditional formats and offers a platform for innovative research, to reach out to colleagues interested in novel approaches and methodologies.

And here is the TOC for the first issue:

Book reviews

Max Kemman, Trading Zones of Digital History
Femke Gordijn

Jennifer Guiliano, A primer for Teaching Digital History. Ten Design Principles (Duke 2022)
Christel Annemieke Romein

Short notices

To commemorate shared pasts. Legislation related to enslavement and multicultural relations in the Dutch West Indies colonies, c. 1670 – c. 1870
Marijcke Schillings and Henk-Jan van Dapperen

A Database of Early Modern Police Ordinances.
Karl Härter

Collateral Councils – Collaterale Raden - Conseils collatéraux of the Low Countries (1531-2031)
Hans Cools, Vincenzo De Meulenaere, Marie-Charlotte le Bailly, Christel Annemieke Romein, Nicolas Ruys, René Vermeir and Monique Weis

Roman Law MOOC
Jean-François Gerkens

--Dan Ernst

Wednesday, August 16, 2023

ASLH 2023: Program Announced

The preliminary program for the annual meeting of the American Society for Legal History, to be held in Philadelphia, October 25-28, 2023, is here.


Constitutional Controversies: An ICS Seminar

[Back in April, our friends at the Institute for Constitutional Studies announced another in its series of seminars for advanced graduate students and junior faculty.  We are moving that post up, because the deadline is a month hence, and a few seats remain.  DRE.

[Update: Steven Steinbach, one of the instructors, on teaching American history as constitutional history.  (OUP Side Comment)]

Constitutional Controversies

Disputes and debates over “rights” drive modern-day politics. Americans often turned to the courts – and to the Constitution – to resolve their political, social, and ideological disagreements about issues like privacy, equality, abortion, gun control, property rights, religion, etc. Disputes about the interpretation and applicability of the Constitution have been central throughout our nation’s history. Since the Philadelphia Convention, constitutional controversies defined persons included (or not) among “We the People” and rights included (or not) among “the Blessings of Liberty.” This seminar will proceed chronologically through a series of “constitutional moments.” Among the historical controversies to be covered are the origins of the Constitution and the Bill of Rights, judicial review, slavery, the Reconstruction amendments, voting and other rights for women, free speech, desegregation, affirmative action, and privacy.


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 teaches United States History and American Government courses and has served as History Department Chair at Sidwell Friends School in Washington, D.C. Previously he was a partner in the Washington, D.C., law firm of Williams & Connolly LLP, where he specialized in criminal and civil litigation.

Logistics.  Monday evenings, 6-8 p.m., October 2, 9, 16, 23, 30, and November 6, and 13, 2023. The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052.

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 c.v. 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 until September 15, 2023. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at

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. Located at the George Washington University Law School, the Institute is co-sponsored by the American Historical Association, the Organization of American Historians, and the American Political Science Association. The Association of American Law Schools is a cooperating entity. ICS prepares junior scholars and college instructors to convey to their readers and students the important role the Constitution has played in shaping American society. ICS also provides a national forum for the preparation and dissemination of humanistic, interdisciplinary scholarship on American constitutional history.

JACH (Summer 2023)

The Summer 2023 issue of the Journal of American Constitutional History is now online.

Constructing a Modern Canon for The Federalist by Sanford Levinson

To what extent do legal academics, historians, political scientists, and high school teachers actually assign any of the The Federalist?

The Executive Branch and the Origins of Judicial Independence, by Kevin Arlyck 

Most accounts of the federal judiciary’s rise to independence tell a story in which the courts consolidated their authority—especially the power of judicial review—by tacitly agreeing to withdraw from partisan politics. But as this article shows, the most insistent assertions of judicial inviolability came not from courts, but instead from the executive branch officials.

Strategic Ambiguity and Article VII: Why the Framers Decided Not to Decide, by Roderick M. Hills, Jr.

By reducing the power of the Federalist agenda-setters to force through specific constitutional language with a reversion threat, the presumption of ambiguity respects contemporary norms of fair dealing, thereby advancing the goal of popular sovereignty with which Federalists defended the Constitution’s legitimacy.

Interpreting Ratification
, by Andrew Coan and David S. Schwartz 

A proper interpretation of the ratification debates undermines any principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases.

--Dan Ernst

Tuesday, August 15, 2023

Harold M. Hyman (1924-2023)

Harold M. Hyman and A More Perfect Union (Rice)
[Harold M. Hyman, a great American constitutional historian, has died.  Here is his family’s obituary.  DRE.  H/t: LK]

Harold M. Hyman died on August 6, 2023, at age 99. He lived a long and rich life, filled with love for the family he raised, for the university and college students he taught, and for the country he studied and served.

Harold was born on July 24, 1924, in Brooklyn, New York, the son of Beatrice and Abraham Hyman. He grew up in the Depression, the youngest of four children. He left school at 15 and, after a series of odd jobs, left home at 17 to join the Marine Corps. (He was not exactly precise about his age when he enlisted).  He was at Pearl Harbor on December 7, 1941, and he served in the Pacific theatre during the war. He was always proud of his time in the Marines, although he did not talk much about what he saw until late in his life. During his service, he took correspondence courses and received his high school diploma by mail delivered to somewhere in the Pacific.

During a shore leave in Los Angeles, California, Harold and a fellow Marine were invited to a USO dance.  Harold did not want to go; his friend persuaded him.  At the dance, both men met the women they married.  Harold met  Ferne Handelsman, a warm and studious young woman.  On the way home, Harold left a camera in the taxi, and called Ferne for assistance in retrieving it.  They continued to meet in the home of Lillian Handelsman and her husband, William, who spent the war cooking meals for Jewish servicemen who fetched up in their city.  Ferne and Harold married when the war ended.  Lillian and William Handelsman were delighted; they loved Harold dearly, and he them.  Harold and Ferne’s marriage lasted 65 years, until Ferne’s death in 2011.

The GI Bill let Harold get a bachelor’s degree at the University of California at Los Angeles.  The combination of his war experience and his courses ignited a passion to study; he wanted to know why. He went to Columbia University, where he received his Ph.D. in history. His dissertation won the highest prize in the field and was published, the first of twelve books and many articles he would publish during his long academic career.  His area of focus was the Civil War and Reconstruction; his greatest heroes were Abraham Lincoln and his Secretary of War, Edwin M. Stanton. He believed that they saved this nation, and he was grateful.

The newly minted Professor Harold Hyman began his teaching career at Earlham College in Richmond, Indiana. He remembered the time he and Ferne spent there with great fondness, in part because their first child was born there. His love of teaching took him and his growing family back to UCLA, then to the University of Illinois at Champaign-Urbana, then to Rice University, with numerous visiting stints around the country, including at Harvard, Johns Hopkins, and Arizona State.

Harold’s longest academic home was at Rice University. He spent 35 years in the history department, which he chaired and where he held the William P. Hobby Professor of History Chair.  Harold taught undergraduates and graduate students and published throughout his years at Rice. As a teacher, he was demanding and sometimes feared, but he did not expect more of his students than he did of himself.

Harold’s academic immersion in the Civil War and Reconstruction led to his and Ferne’s involvement in the Civil Rights Movement.  In 1965, he and other American Historians joined the march from Selma to Montgomery, led by Dr. Martin Luther King.  He never forgot it.   

During their time at Rice, Ferne served as the Chief Reference Librarian at the Fondren Library. Ferne and Harold went to campus together every day; met for lunch in the Cohen House every day; and at the end of the day, hand in hand, went back home.

As much as Harold loved his work and his country, he loved his family more. He and Ferne never ran out of conversation. They were fiercely proud of their three children and their success in their chosen careers of law, teaching, and medicine.    Harold adored and was equally proud of his nine grandchildren and four great grandchildren.  His love for them all sustained him when Ferne died eleven years ago.

Harold and Ferne spent the last decade of their lives together at the Brookwood Community, where their oldest granddaughter lives and where they served as the resident grandma and grandpa. Harold presided over reading groups that he tailored to each audience, and he greeted every citizen by name.

Harold spent his last year in Austin, Texas, close to one of his daughters and her husband, two of his grandsons and, most important, two of his great grandchildren. Two weeks before he died, the extended family gathered to celebrate his 99th birthday and watch him happily lose chess games to his 7 year old great grandson. We are all grateful that we had that time together.

Harold is survived by his children, Judge Lee Rosenthal and her husband, Gary; Ann Root and her husband, Dr. Jim Root; and Dr. Bill Hyman and his wife, Sherry. He also leaves his grandchildren, Rebecca, Hannah, Rachel, and Jessica Rosenthal, Joshua and Brittany Root, Eric Root, Andrea and Jose Peña, Sarah Hyman, Daniel Hyman, Dr. Jay Dew and Sara Leader and Carrie and Sean Brannon; his great grandchildren, Claire and Harrison Root, Madelyn and Violet Peña, and Will and Kate Brannon; his nieces, Frankie Gottlieb and her husband, Ed, their children Adam and Lucie, and Wendy Wintrob and her partner, Dave Wolman.  Harold is survived as well by his books and his students.

The family extends its gratitude to the nurses at the Brookwood Community and the staff at the Belmont Village, who cared for him with kindness and dedication.

A memorial service at the Brookwood Community is planned for the future. Donations in Harold’s memory may be made to the Brookwood Community, 1752 Farm to Market Road, Brookshire, Texas, 77423.

Public Workers in Service of America

Public Workers in Service of America: A Reader, edited by Frederick W. Gooding Jr. and Eric S. Yellin, has been published in The Working Class in American History series of the University of Illinois Press:
From white-collar executives to mail carriers, public workers meet the needs of the entire nation. Frederick W. Gooding Jr. and Eric S. Yellin edit a collection of new research on this understudied workforce. Part One begins in the late nineteenth- and the early twentieth century to explore how questions of race, class, and gender shaped public workers, their workplaces, and their place in American democracy. In Part Two, essayists examine race and gender discrimination while revealing the subtle contemporary forms of marginalization that keep Black men and Black and white women underpaid and overlooked for promotion. The historic labor actions detailed in Part Three illuminate how city employees organized not only for better pay and working conditions but to seek recognition from city officials, the public, and the national labor movement. Part Four focuses on nurses and teachers to address the thorny question of whether certain groups deserve premium pay for their irreplaceable work and sacrifices or if serving the greater good is a reward unto itself.

The contributors are Eileen Boris, Cathleen D. Cahill, Frederick W. Gooding Jr., William P. Jones, Francis Ryan, Jon Shelton, Joseph E. Slater, Katherine Turk, Eric S. Yellin, and Amy Zanoni.

--Dan Ernst

CFP: Historicising Jurisprudence: Person, Community, Form

[We have the following CFP.  DRE]

WG Hart Workshop 2024

Historicising Jurisprudence: Person, Community, Form 

Institute for Advanced Legal Studies, London, 26-27 June 2024

We invite abstracts (of 300-500 words) for the 2024 Hart Conference on Historicising Jurisprudence: Person, Community, Formf. Abstracts should be emailed to by Monday 4 December 2023. Further details on the theme are included below. Please note that bursaries are available for PhD and Early Career Scholars as well as scholars from the Global South. There will also be a prize for the best paper from a PhD / Early Career Scholar.

Academic Directors. 
Maksymilian Del Mar (Queen Mary University of London); and Michael Lobban (All Souls College, Oxford)

Conference Keynotes. 
Professor David Armitage, Harvard University; Professor Paul Halliday, University of Virginia; Professor Lorna Hutson, University of Oxford; Professor Lena Salaymeh, Ecole pratique des hautes etudes, Paris, and University of Oxford    

PhD and Early Career Paper Prize. 
A prize will be offered to the best paper submitted by a PhD or Early Career Scholar. To be eligible for the prize, please first submit your abstract in the usual way. When you submit the abstract, please indicate clearly that you are a PhD or Early Career Scholar (within 5 years of your PhD). Once your abstract has been accepted, a further date will be set for the submission of a paper (approx. 6,000-8,000 words, all inclusive). Please note that the requirement to submit a written draft of the paper is only a requirement for those entering the prize (not for presenting at the conference). The prize will be judged by the Academic Directors.

Travel and Accommodation Bursaries.  A limited number of bursaries, contributing to travel and accommodation costs for the conference, is available for two categories of scholars: 1) those who are PhD students and Early Career Scholars (within 5 years of their PhD); and 2) those who live and work in the Global South. To be eligible for these, please indicate clearly you are applying for a bursary when you submit your abstract, and please confirm (e.g., by a statement on letterhead from your Head of School) that you either do not have access to other sources of funding or any funding you have is likely to be insufficient.

General Summary of the Theme.  Jurisprudence, or the philosophy of law, often appears as an abstract and impersonal domain of intellectual practice, and one divorced from the politics and culture of its time. Jurisprudential questions are often treated as timeless, with each jurisprudential text approached as articulating its own autonomous vision of a universal theory of law. The substance of jurisprudential ideas is also typically seen to be independent of the means via which these ideas are expressed, and thus separate from the history of aesthetics and the humanities, including literature and the arts. While recognizing the universal and impersonal aspirations of jurisprudence, this conference seeks to explore its historicization in particular times and places. The conference thus invites participants to take an alternative view of jurisprudence: as a human, all too human, practice, which is deeply personal while also being deeply social, and one that is shot through with historically-situated politics and culture. By digging deeply into its situated ethics, politics, and aesthetics, this conference will explore different ways of historicising jurisprudence. The conference will foreground and pursue the following kinds of questions:

  • How is the production of jurisprudential thought related to the personal, felt, experience of individuals who produce it, as well as to the role those individuals play in the power struggles of their time and place?
  • In what ways is jurisprudential thought a communal enterprise, and thus the result of many hands working together in irreducibly social contexts?
  • What are the forms and genres of jurisprudence, and how are those forms and genres related to the very substance of jurisprudential views?

More after the jump.