Saturday, March 30, 2024

Weekend Roundup

  • Kellen Funk, Columbia Law School, presents in the the Berkeley Legal History Workshop on Tuesday, April 9, 2024, from 3:35 pm - 5:25 pm, on "Bail at the Founding."  His abstract and a Zoom link for those wishing to attend virtually are here.
  • In conversation with Martha Minow, Randall Kennedy recently discussed his book, Say It Loud!: On Race, Law, History, & Culture.  Among other things, the book provides “a fresh perspective on historical topics such as the Nat Turner slave rebellion and the enforcement of the Fugitive Slave Act of 1854" (Harvard Law Today).
  • The Supreme Court Historical Society is hosting two upcoming events.  The second, at Noon EST on April 4, is The Legal Career of Future Justice Ruth Bader Ginsburg in the 1970s.  The participants are the plaintiff and her lawyer in Frontiero v. Richardson (1973), as well as Philippa Strum, Amanda Tyler, and the plaintiff in Weinberger v. Wiesenfeld (1975), who was represented by Ruth Bader Ginsburg.
  • Columbia University's "Incite" project reimagines oral hist with its Oral History of the Obama Presidency, undertaken in partnership with the Obama Foundation.  "The result of this collaboration is a comprehensive, enduring record of the decisions, actions and impacts of this historic presidency."
  • Thank you, Kurt X. Metzmeier, University of Louisville Louis D. Brandeis School of Law, for making the "case for the historical importance of early state administrative codes and urg[ing] that law libraries preserve them for future researchers of state administrative law and policy." 
  • Kevin Frazier, St. Thomas University Benjamin L. Crump College of Law, “Rediscovering and Realizing the Anti-Power-Concentrating Principle” (Notice & Comment).
  • ICYMI: Justice Sotomayer is "annoyed" by the role of history in the Supreme Court's constitutional decisions (Law 360).  Simon Lazarus on liberal originalism (New Republic). The Endgame in the Battle Over Abortion by Mary Ziegler (Politico).

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

Wednesday, March 27, 2024

Memon on Caste in British International Legal Thought

Ahmed Memon, Cardiff School of Law and Politics, Cardiff University, has published, open access, “English in taste, Indian in blood”: caste hegemony in the making of British international legal thought, in the London Review of International Law:

In this article, I argue that caste was a central factor in the development of British international legal thought in the subcontinent. Specifically, I contend that British international legal thought entrenched caste hegemony into the broader racial civilisation hierarchy of international law in the nineteenth century.

Dan Ernst

Tuesday, March 26, 2024

Labor's Roundtable on the Immigration Act of 1924

LABOR: Studies in Working-Class History 20:4 (December 2023) includes a roundtable on the 100th anniversary of the 1924 Immigration Act.

Eric Arnesen

“The Architecture of Immigration Restriction, 1924”
Mai Ngai

“Nativism and the Bottom Line: Contemporary Legacies of the Immigration Act of 1924”
Daniel Tichenor

“The Immigration Act of 1924 and Farm Labor”
John Weber

“Labor's Long Road to Immigrant Inclusion”
Ruth Milkman

“The Other Side of Immigration: The Post-1965 Transformation of American Society”
Nancy Foner

--Dan Ernst

Schwartz on Neo-Garrisonianism, Essententialism and the Constitution of 1787

David S. Schwartz, University of Wisconsin Law School, has posted Is the Constitution of 1787 a White Supremacist Document? Against Essentialism in Constitutional Interpretation, which is forthcoming in the William & Mary Bill of Rights Journal:

William Lloyd Garrison (wiki)
A curious convergence is emerging in legal academia around the conclusion that the 1787 Constitution is a white supremacist document. Although most originalists would deny that contention, their methodology strongly favors, if it does not compel, an agreement with progressive, "neo-Garrisonian" scholars that the Constitution of 1787 is indeed a white supremacist document. Both the neo-Garrisonian and originalist elements of this implicit convergence stem from their "essentialism" in Constitutional interpretation: the idea that the Constitution or its terms or provisions carry a uniquely and objectively correct meaning, invariant over time, and independent of our evolving normative commitments. This essay argues that essentialism is a mistaken approach to constitutional interpretation. Contrasting Chief Justice Roger Taney's lead opinion in Dred Scott, holding that Black people William Lloyd Garrison (wii)cannot be "citizens" of the United States, with Frederick Douglass's Glasgow Speech, arguing that the Constitution is not a pro-slavery document, this essay argues that these two texts embody not simply a clash of conclusions, but also a clash of approaches to understanding what the Constitution is. Taney's opinion is archetypally originalist and essentialist; Douglass's speech, widely misunderstood as an essentialist, textualist argument, is in fact a powerful anti-essentialist argument that the Constitution of 1787 was an invitation to struggle over the questions of slavery and white supremacy. The essay further disputes the widely accepted neo-Garrisonian claim that originalism and living constitutionalism both fail the Dred Scott "test." While living constitutionalism, with its embrace of evolving moral values, would today reject Dred Scott, Taney's originalist opinion adheres to the tenets of the intentionalist and public meaning strands of originalism and meets present-day professional standards of originalist scholarship. Thus, while living constitutionalism can, originalism cannot disown Dred Scott.
--Dan Ernst

Monday, March 25, 2024

Deadline extended (Mar. 31) for Law & Social Inquiry Graduate Student Paper Competition

The journal of Law & Social Inquiry seeks submission for the Graduate Student Paper Competition:

The editors of Law & Social Inquiry are pleased to announce our annual competition for the best journal-length paper in the field of law and social science written by a graduate or law student. Law & Social Inquiry publishes empirical and theoretical studies of sociolegal processes from a variety of disciplinary perspectives. Entries will be accepted from January 1, 2024 until March 31, 2024.

LSI invites direct submissions from graduate and law students and nominations of student work from faculty. The author must be a graduate student or law student at the time the paper was written and when submitted. Faculty nominations should include a short description along with the paper and contact details for the student. Submissions will be evaluated by our editors.  The winning submission will be sent to selected scholars for advisory reviews to aid with revisions prior to publication. All submissions (direct and faculty nominated) are weighted equally in the competition. The winning paper will be published in Law & Social Inquiry and the author(s) will receive a total cash prize of $500 (US).

Please send your article as a Microsoft Word document to Please indicate that (1) you intend to be considered in the competition, (2) you are currently a graduate student, and (3) you have not submitted your article to LSI or any other journals for publication. Submissions are limited to one paper per student.

Submissions must include a title page with a mailing address, email address, and phone number, and an abstract of no more than 200 words. The total length of submissions, including references and footnotes, must not exceed 15,000 words.

Questions regarding the competition can be directed to Mari Knudson:

-- Karen Tani

The Centenary of the Irish Free State Constitution

Palgrave Macmillan has published the essay collection, The Centenary of the Irish Free State Constitution: Constituting a Polity?  Its editors are Laura Cahillane, Senior Lecturer in the School of Law at the University of Limerick, and Donal K. Coffey, Assistant Professor in the School of Law and Criminology at the National University of Ireland, Maynooth.  It appears in the series Palgrave Modern Legal History.

This book deals with the role, development, and legacy of the first Constitution of independent Ireland within the wider context of the establishment of the State. After decades of relative neglect, the 1920s have been receiving increased attention from historians recently thanks to the centenary of the State’s foundation. This book continues this trend of re-examination of this period and looks at key themes, such as the establishment of institutions under the Irish Free State Constitution and the focus on the ideals of popular sovereignty and democracy. It does so from novel and cross-disciplinary perspectives, and it also looks at areas which have received little to no previous attention; from individual aspects like property rights, the Irish language and environmental rights to aspects such as opposition and partition.

 The TOC is here.

–Dan Ernst

Saturday, March 23, 2024

Weekend Roundup

  • Paula J. Giddings will discuss “The Prescient Life of Ida B. Wells,” “a crusading journalist and pioneer in the fights for women’s suffrage and against segregation and lynchings” in conversation with FDR Library Director William Harris, in the Library’s Henry A. Wallace Center at 6:00 p.m. ET on Tuesday, March 26, 2024, and streaming on YouTube and Facebook.  Register here.
  • Congratulations to John Cairns, University of Edinburgh, upon the announcement that he is to receive an honorary doctorate from the University of Glasgow.
  • Heikki Pihlajamäki, Professor of Comparative Legal History at the University of Helsinki, has “won the Gad Rausing Prize for Outstanding Humanities Research. Pihlajamäki was awarded the prize, worth 1.5 million Swedish krona.”  More.
  • Frances M. Clarke, University of Sydney, is the first Australian to win the Gilder Lehrman Lincoln Prize, which “rewards the finest scholarly work published in the prior year in English on Abraham Lincoln, the American Civil War soldier, or the American Civil War era.” She and her coauthor, Rebecca Jo Plant, University of California, San Diego, won the prize for Of Age: Boy Soldiers and Military Power in the Civil War Era (Oxford University Press).
  • ICYMI: "Maricopa County Honors Public Defenders and Landmark Legal Victories [such as Gideon v. Wainwright] During 'Public Defense Recognition Week'” (Hoodline).  "How Virginia Used Segregation Law to Erase Native Americans" (Time--the new home of Made by History).

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

Friday, March 22, 2024

The Long 1920s: A Book Conference on Post's "Taft Court"

[We have the following announcement.  DRE.]

The NYU School of Law and Yale Law School are delighted to invite you to a book conference in honor of the publication of Volume X of the Oliver Wendell Holmes Devise History of the Supreme Court, The Taft Court: Making Law for a Divided Nation, 1921-1930, by Robert C. Post, Sterling Professor of Law, Yale Law School, to be held on Saturday, April 20, from 1:30-6:00 PM, with reception to follow, at NYU Law, D’Agostino Hall, 108 West 3rd St, New York, NY.  RSVP here.

[Beverly Gage, Mark Tushnet, Dan Ernst, Rick Hills, Sophia Lee, Lisa McGirr, Laura Kalman and Noah Rosenblum, followed by a keynote conversation between Robert Post and John Fabian Witt.]

Tsai, "Demand the Impossible: One Lawyer's Pursuit of Equal Justice for All"

W.W. Norton has published Demand the Impossible: One Lawyer's Pursuit of Equal Justice for All (2024), by Robert L. Tsai (Boston University). A description from the Press:

Stephen Bright emerged on the scene as a cause lawyer in the early decades of mass incarceration, when inflammatory politics and harsh changes to criminal justice policy were crashing down on the most vulnerable members of society. He dedicated his career to unleashing social change by representing clients that society had long ago discarded, and advocated for all to receive a fair trial.

In Demand the Impossible, Robert L. Tsai traces Bright’s remarkable career to explore the legal ideas that were central to his relentless pursuit of equal justice. For nearly forty years, Bright led the Southern Center for Human Rights, a nonprofit that provided legal aid to incarcerated people and worked to improve conditions within the justice system. He argued four capital cases before the US Supreme Court—and won each one, despite facing an increasingly hostile bench. With each victory, he brought to light how the law itself had become corrupted by the country’s thirst for severe punishment, exposing prosecutorial misconduct, continuing racial inequality, inadequate safeguards for people with intellectual disabilities, and the shameful quality of legal representation for the poor.

Organized around these four major Supreme Court cases, each narrated in vivid and dramatic detail, Tsai’s essential account explores the racism built into the criminal justice system and the incredible advancements one lawyer and his committed allies made for equal rights. An electrifying work of legal history, Demand the Impossible reveals how change can be won in even the most challenging times and how seemingly small victories can go on to have outsized effects.

A sample of praise from reviewers:

As Tsai’s latest deeply moving and sobering book makes so clear, this nation’s moral arc can indeed bend toward justice, but only when we are unfailing in our conviction that it can, and are unflinching in our insistence that it does. -- Heather Ann Thompson

An inspiring account of one of our nation’s greatest lawyers, an advocate who has prioritized the poor, the vulnerable, and the condemned over money, fame, and the privileged. Stephen Bright is a rare legal champion for justice. This book reveals much about this extraordinary man and the critically important human rights he has passionately defended. -- Bryan Stevenson

More information is available here.

-- Karen Tani

BHC Prizes to Con Díaz and Canaday

Several prizes of interest to legal historians were awarded at the just-concluded Business History Conference.  One was the Anne Fleming Article Prize, awarded jointly ever other year jointly with the American Society for Legal History “to the author or authors of the best article published in the previous two years in either Law and History Review or Enterprise and Society on the relation of law and business/economy in any region or historical period.”  This year’s recipient is Gerardo Con Díaz, Yale University, for Patent Law and the Materiality of Inventions in the California Oil Industry: The Story of Halliburton v. Walker, 1935–1946, published in Enterprise and Society:

This article examines a patenting conflict between the Halliburton Oil Well and Cementing Company and an independent inventor named Cranford Walker. It argues that Halliburton’s effort to lower the barriers to entry into the oil well depth measurement industry facilitated the re-emergence of materiality as a pre-condition for the patent eligibility of inventive processes. In 1941, Walker sued Halliburton for infringement of three of his patents, and Halliburton responded with an aggressive defense aimed at invalidating them. Over the next five years, the courts handling this conflict adopted very narrow legal theories developed during the Second Industrial Revolution to assess the patent eligibility of inventions that involved mental steps—processes such as mathematical computations, which people can perform in their minds. The resulting legal precedent cleared the path for Halliburton’s short-term industrial goals and continued to shape patent law for the rest of the century.
The BHC’s Hagley Prize in Business History, "for the best book in business history, broadly defined," went to Margot Canaday, Princeton University, for Queer Career: Sexuality and Work in Modern America:

Workplaces have traditionally been viewed as “straight spaces” in which queer people passed. As a result, historians have directed limited attention to the experiences of queer people on the job. Queer Career rectifies this, offering an expansive historical look at sexual minorities in the modern American workforce. Arguing that queer workers were more visible than hidden and, against the backdrop of state aggression, vulnerable to employer exploitation, Margot Canaday positions employment and fear of job loss as central to gay life in postwar America.

Rather than finding that many midcentury employers tried to root out gay employees, Canaday sees an early version of “don’t ask / don’t tell”: in all kinds of work, as long as queer workers were discreet, they were valued for the lower wages they could be paid, their contingency, their perceived lack of familial ties, and the ease with which they could be pulled in and pushed out of the labor market. Across the socioeconomic spectrum, they were harbingers of post-Fordist employment regimes we now associate with precarity. While progress was not linear, by century’s end some gay workers rejected their former discretion, and some employers eventually offered them protection unattained through law. Pushed by activists at the corporate grass roots, business emerged at the forefront of employment rights for sexual minorities. It did so, at least in part, in response to the way that queer workers aligned with, and even prefigured, the labor system of late capitalism.

Queer Career shows how LGBT history helps us understand the recent history of capitalism and labor and rewrites our understanding of the queer past.
Other prize winners and honorable mentions, many for scholarship of interest to legal historians, are here.

--Dan Ernst.  H/t: SB

Thursday, March 21, 2024

Balkin, "Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity"

Jack Balkin (Yale Law School) has posted "Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity." The abstract:

Historian Jonathan Gienapp argues that the Founding generation held very different views about constitutions, law, rights, and judicial review than lawyers do today. His target is conservative originalism, but his arguments are important for originalists and non-originalists alike. How is faithful interpretation of the Constitution possible if we inhabit a very different world from the generation that produced it?

This essay answers that question by retelling a famous story in the Gemara about Moses and the Talmudic sage Rabbi Akiva, who lived a thousand years later. The story explains how the rabbis who compiled the Talmud in the sixth century C.E. dealt with the problem of interpreting religious texts that had been written hundreds of years earlier in a very different world. The rabbis argued that faithful interpretation of the law must recognize the distance between past and present and accept the need for creative adaptation in the face of transformations, upheavals, and ruptures. The same lessons hold true for constitutional interpretation today. 

The full article is available here, at SSRN. 

-- Karen Tani

Wednesday, March 20, 2024

Tani on the History of the Tort of "Wrongful LIfe"

Last year, I had the privilege of participating in the Clifford Symposium at DePaul College of Law -- an annual convening of torts scholars. The symposium theme in 2023 was "new torts." The published versions of the symposium papers are now available. My contribution is titled "When a Wrong Creates a Life: Tort Responses to Children Born From Institutional Sexual Violence." Much of the article draws on history, so I'm noting it here. Here's the abstract:

Today, the paradigm case of “wrongful life” involves a claim on behalf of a child—typically, a disabled child—who would not exist but for an act of negligent reproductive healthcare. Framed in this way, the tort of “wrongful life” is controversial, and rightfully so. This Article, part of a symposium on “new torts,” reminds readers that one of the nation’s earliest reported “wrongful life” cases arose from a very different set of facts: Williams v. State, filed in 1963 in New York City, stemmed from the alleged rape and impregnation of a patient at a large, state-run psychiatric hospital; through a guardian, the resulting child sought monetary compensation from the state for the disadvantages that flowed from these circumstances. Importantly, the lower court that initially considered this claim found it within the bounds of what tort law could and should provide. But a different interpretation prevailed at the appellate level, and, for historically contingent reasons, Williams v. State largely disappeared from view. Instead, cases from the medical negligence context came to dominate judicial discussions—and rejections—of the seemingly “new tort” of “wrongful life.” This Article urges a reconsideration of Williams v. State and the sub-set of “wrongful life” cases that it represents—namely, cases involving (1) nonconsensual intercourse and impregnation in an institutional setting, resulting in a child, and (2) an institutional defendant that arguably violated a duty of care by allowing this sequence of events to occur. Such reconsideration is warranted for several reasons, including evidence that such incidents continue to occur in institutional settings (nursing homes, residential treatment facilities, prisons, etc.); post-Dobbs changes to state-level abortion laws, which will increase the number of pregnancies that lead to live births; and theoretical and doctrinal developments within tort law itself. 

The full article is available here. Other legal-historical contributions to this symposium include Molly Brady on "cottages as public nuisances" (previously noted here) and Kenneth S. Abraham & G. Edward White on "How an Old Tort Became New: The Case of Offensive Battery."

-- Karen Tani

Kroncke on the Lost Era of US-China Constitutional Engagement

On March 29, 2024, from 12:20 pm - 1:20 pm, Jedidiah Kroncke, Associate Professor of Law, University of Hong Kong, will present the paper Thomas Jefferson, Carsun Chang and A Lost Era of U.S.-China Constitutional Engagement in 308 Morgan Meeting Room of Austin Hall, at the Harvard Law School.

Professor Kroncke’s study recovers a lost era of Sino-American constitutional imagination surrounding the drafting of the 1946 Republic of China Constitution. It examines the transnational dynamics that led the Constitution’s initial drafter, Carsun Chang, to travel to the U.S. in 1945 to ostensibly study the ideas of Thomas Jefferson then ascendant in New Deal constitutional rhetoric.

This study recontextualizes Chang’s life as one of China’s new generation of cosmopolitan intellectuals moving between its contentious post-dynastic politics and the institutions of the post-World War II international legal order. Chang’s invitation by the Roosevelt Administration involved many little known but determinative turns, including the role of a subset of Truman Administration officials actively enamored with Jefferson’s own study of Confucianism.

Transnationalizing our understanding of the 1946 Constitution helps reveal how the geopolitics of the Chinese Civil War intersected with the presumed projection of American constitutional values increasingly embedded in American internationalism. The fallout from the drafting process also illuminates the transition of America from a global symbol of constitutional revolution to a symbol of global racial empire. Recapturing this era has implications for originalist-styled constitutional arguments made in contemporary Taiwan, as well as evaluating the international dimensions of Jefferson’s deeply problematic domestic legacy.
A boxed lunch will be provided.  East Asian Legal Studies is sponsoring the event.

--Dan Ernst

Tuesday, March 19, 2024

Book Event: di Robilant's "Making of Modern Property Law"

[We have the following announcement.  DRE.]

Please Join us for a Book Symposium featuring Anna di Robilant to celebrate the publication of The Making of Modern Property: Reinventing Roman Law in Europe and its Peripheries 1789–1950 on Tuesday, March 26th, 2024.

In this original intellectual history, Anna di Robilant traces the history of one of the most influential legal, political, and intellectual projects of modernity: the appropriation of Roman property law by liberal nineteenth-century jurists to fit the purposes of modern Europe. Drawing from a wealth of primary sources, many of which have never been translated into English, di Robilant outlines how a broad network of European jurists reinvented the classical Roman concept of property to support the process of modernisation. By placing this intellectual project within its historical context, she shows how changing class relations, economic policies and developing ideologies converged to produce the basis of modern property law. Bringing these developments to the twentieth century, this book demonstrates how this largely fabricated version of Roman property law shaped and continues to shape debates concerning economic growth, sustainability, and democratic participation.
Panelists: Anna di Robilant, Boston University School of Law; K-Sue Park, UCLA School of Law; Lua Yuille, Northeastern University School of Law.  Moderated by Gary Lawson, Boston University School of Law.  Lunch available in Barristers Hall at 12:00pm.  Register here.

Learn more about The Making of Modern Property: Reinventing Roman Law in Europe and its Peripheries 1789–1950 with Anna di Robilant on BU Law’s The Record podcast.

Siegel & Ziegler on "Comstockery in the Court and on the Campaign"

Over at Balkinization, Reva Siegel (Yale Law School) and Mary Ziegler (UC Davis School of Law) report that they "have just posted Comstockery on SSRN, the first legal history of the Comstock Act since the antiabortion movement began arguing for reviving enforcement of the law in the wake of Dobbs v. Jackson Women’s Health Organization."

The posting is timely. They explain:

On March 26, Food and Drug Administration v. Alliance for Hippocratic Medicine will return to the Supreme Court. Representing the Alliance, the Alliance Defending Freedom (ADF), a leader of the Christian legal movement that has played key roles in 15 Supreme Court cases, including Dobbs and 303 Creative v. Elenis, has challenged the FDA’s authority to approve mifepristone, a drug used in more than half of all abortions, under the relevant laws and regulations. ADF has further sought to overturn several subsequent FDA decisions, including one in 2021 permitting the use of telehealth for medication abortion. In the case now before the Court, ADF argues that the removal of an in-person-visitation requirement was arbitrary and capricious under the APA. ADF also makes a Comstock claim against the 2021 modification, asserting that the plain meaning of the statute bars the mailing of any abortion-related article. This argument has received attention from conservative judges, including Judge James Ho of the Fifth Circuit; in the district court, Judge Matthew Kacsmaryk granted a motion for preliminary injunction in the spring of 2023 that would have withdrawn the approval of mifepristone, reasoning that the statute plainly declares “nonmailable” anything “advertised or described in a manner calculated to lead another to use it or apply it for producing abortion.

The authors' Balkinization post continues here. The full article is available here, at SSRN.

-- Karen Tani

Monday, March 18, 2024

JSCH 49:1

The Journal of Supreme Court History, 49:1, has been published.  Here is the TOC:

Timothy S. Huebner

“This Law, Though Dead, Did Speak”: The Civil Rights Cases and their Unforeseen Aftermath
Joseph A. Ranney

How to Avoid Dictatorship: The Public Debate Over Franklin D. Roosevelt’s Court-packing Plan and Its International Context
Leon Julius Biela

Caustic, Comical, Candid, and Insightful Commentary from Chief Justice William Howard Taft, 1921–1929: Excerpts
Jonathan Lurie

Drew Pearson’s “Predictions”: Assessing the Stone Court’s Press Leaks
Abby R. West

Two Views on Court-Packing
Melvin I. Urofsky

[Professor Urofksy reviews Laura Kalman’s FDR’s Gambit: The Courtpacking Fight and the Rise of Legal Liberalism (Oxford University Press, 2022) and Michael Nelson’s Vaulting Ambition: FDR’s Campaign to Pack the Supreme Court (University Press of Kansas, 2023).]

--Dan Ernst

Saturday, March 16, 2024

Weekend Roundup

  • We note the passing of the constitutional historian Herman Belz, Professor Emeritus in the Department of History at the University of Maryland
  • Eric Foner reviews Dylan C. Penningroth’s Before the Movement: The Hidden History of Black Civil Rights (NYRB). 
  • Melville Fuller (LC)
    "On April 11, 2024, at 6:15 pm, the [Supreme Court Historical] Society and Dacor-Bacon House Foundation will co-host a lecture on Chief Justice Melville Fuller with author Douglas Rooks, [who will speak on the Insular Cases.]  The event will be held at the historic Dacor-Bacon House in the Foggy Bottom neighborhood of Washington, DC. Tickets are $35 to attend in person and $10 to attend virtually."  Register here.
  • Congratulations to Gerard N. Magliocca, the Samuel R. Rosen Professor of Law at the Indiana University Robert H. McKinney School of Law, upon his naming as a Distinguished Professor at Indiana University. 
  • Brandon Terry, the John L. Loeb Associate Professor of the Social Sciences at Harvard University, delivered the inaugural Catharine Wells Memorial Lecture in Jurisprudence at the Boston College Law School on February 26.  Professor Terry drew upon his book, The Tragic Vision of the Civil Rights Movement: Political Theory and the Historical Imagination.
  • ICYMI: UC Berkeley student brings to light stories of LGBTQ+ Japanese Americans incarcerated during WWII  (Berkeley Library).  Library archives uncover long-lost history of Colorado women dying trying to get an abortion (CPR).  “Women’s Work” Powers the Economy—And Has Always Been Undervalued (Time).

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

Friday, March 15, 2024

CFP: Northwestern Law Review's Empirical Issue

[We have the following announcement.  DRE]

The Northwestern University Law Review (NULR) is proud to be opening submissions for the seventh annual empirical issue! NULR is exceptional among flagship law reviews in the United States in that it publishes an annual issue fully dedicated to empirical legal scholarship. We seek to bring cutting-edge, interdisciplinary, empirical work to our legal audience, and enrich our understanding of the law, legal actors, and legal doctrine through robust and reliable examination of qualitative, quantitative, and mixed-method data. Publication at our Journal is especially of interest to authors who would like to benefit from an expedited publication timeline, have their work peer-reviewed from specialists in the field, be supported by a dedicated team of editors who can assist in sharpening the piece’s contribution for the legal audience, and who seek to have their work make impact on legal policy and advocacy in the United States. To provide some examples, we have previously published work evaluating racial bias in police stops, an examination of duplicative proceedings in international litigation, and a field experiment assessing incidence of judicial recusals when potential conflicts of interest come to light. You can find our past empirical issues here.

The exclusive submission window for the Volume 119 Empirical Issue of the Northwestern University Law Review will open on March 18, 2024, and run until April 30, 2024. A subset of submissions will be selected to move forward to peer review. The Law Review will make every effort to notify authors of rejection or of advancement to peer review by mid-July 2024. Final publication decisions will be issued by mid-August 2024, with the publication date set in March 2025.

Submitted publications must be between 15,000 and 30,000, and conform generally to the style and formatting expectations that are common to law reviews. For more information, please visit our website: Empirical Issue or reach out to Alisher Juzgenbayev, Senior Empirical Editor for the Northwestern University Law Review at

[The editor tells us that “empirical” includes “methodologies employed in legal history, including archival and ethnographic work.”]

Thursday, March 14, 2024

Little on Law Libraries in Early Indiana

Lee R. Little, Research and Instructional Services Librarian, Ruth Lilly Law Library, Indiana University Robert H. McKinney School of Law has published Work Hard and Die Poor: The History of Law Libraries in Indiana in the Indiana Law Review 57 (2023): 97-138:

Isaac Blackford (wiki)
 Printed legal materials have been utilized by practitioners since the dawn of the Anglo-European legal system in what is now the United States. When Indiana was opened for settlement, attorneys and judges brought their private libraries to the state. These initial collections were much smaller than the robust and extensive law libraries that existed in the state prior to the advent of digital legal resources. This paper tracks the development of law libraries in Indiana from the territorial period through the present day, along with the social and economic trends that impacted library development.

--Dan Ernst

Wednesday, March 13, 2024

Smith on History as Precedent

Michael L. Smith, St. Mary's University School of Law, has posted History as Precedent: Common Law Reasoning in Historical Investigation, which is forthcoming in the University of Pennsylvania Journal of Constitutional Law:

The United States Supreme Court frequently looks to history when interpreting the Constitution. On some occasions, it does so to determine the original public meaning of the Constitution’s text. Other times, it looks to historical traditions recognizing or restricting rights. The Court emphasizes the objectivity of these historical methods, contrasting them with alternate approaches the Court casts as dangerously manipulable. But the Court’s resort to history is virtually identical to alternate methodology the Court purports to avoid—namely, reasoning and arguing from precedent. Skilled advocates craft favorable rules from precedent, and portray dubious precedent as controlling and unfavorable precedent as irrelevant. The Court does the same with historical evidence, framing inquiries to all but guarantee favored outcomes. Contrary evidence is minimized or deemed irrelevant under unspoken, malleable standards. In short, the Court treats history as precedent.

The Court’s manipulation of history raises profound concerns beyond those typically associated with the manipulation of case law. While precedent may be manipulated, its use is subject to an array of rules and norms, including rules of controlling and persuasive precedential value, recognition of the difference between holdings and dicta, and standards for when precedent may be overruled. Historical evidence lacks these norms. Additionally, most legal actors also lack the expertise, resources, and incentives necessary for rigorous historical analysis, increasing the probability of mistaken conclusions. In the face of these problems, I propose two ways forward. Courts can recognize that they are treating history as precedent and develop rules for the process, including rules for sufficiency of evidence, relevance, and persuasive value. Or courts can instead take history seriously and subject history to more rigorous analysis, using discovery mechanisms, expert testimony and cross-examination, and a recognition of complexity to engage seriously with the history.
--Dan Ernst

Tuesday, March 12, 2024

Reconstruction in Constitutional History, Law, and Politics

[We have the following announcement.  DRE]

In conjunction with the George and Ann Richards Civil War Era Center at Penn State and the Journal of American Constitutional History, Tulane Law School will host the conference “The Significance of Reconstruction in Constitutional History, Law, and Politics” [on Friday and Saturday, March 15 and 16]. It draws more than a dozen nationally-recognized constitutional law scholars and commentators, among them Mark Graber (Maryland), Randall Kennedy (Harvard), Jack Balkin (Yale), Reva Siegel (Yale), Sanford Levinson (Texas), Anne Twitty (Stanford), Farah Peterson (Chicago), and Jamelle Bouie (The New York Times). Tulane Law Professors Robert Westley and Evelyn Atkinson also will be participating.  View the conference schedule here.

The conference will feature an interdisciplinary group of the leading scholars on American constitutionalism during Reconstruction who will examine how the post-Civil War Amendments should be understood from historical, political science, and legal perspectives.  The purpose of the two-day, five-panel conference is to explore how Republican framers were trying to resolve what they perceived to be the most pressing constitutional problems of the 1860s with the conceptual and political tools available at the time, and what citizens in 2024 should make of their efforts.  The conference is occasioned by the publication of Professor Mark Graber’s book Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University Press of Kansas, 2023).  The papers from the conference will be published by the Journal of American Constitutional History.

The event will be held in Room 110 of Tulane Law School, John Giffen Weinmann Hall, 6329 Freret Street from 1 p.m. to 6 p.m. on Friday and 8:30 a.m. to 1 p.m. on Saturday.

Monday, March 11, 2024

CFP: Grotian Law and Modernity at the Dawn of a New Age

[We have the following CFP.  DRE]

Grotian Law and Modernity at the Dawn of a New Age: 400 Years of De jure belli ac pacis, 1625-2025
International Conference, 19-20 June 2025, Leiden University Wijnhaven Campus, The Hague

On the occasion of the 400th anniversary of the first publication of De jure belli ac pacis by Hugo Grotius in 1625, an international conference will be organized by the Grotiana Foundation, the Paul Scholten Centre for Jurisprudence at the University of Amsterdam, the Grotius Centre for International Legal Studies at the University of Leiden and the Department of Public Law and Governance at Tilburg University.

The major aim of the conference is to foster new narratives on the thought of Grotius, in general legal theory as well as in international law against a the backdrop of present-day rapid, fundamental changes that challenge the very foundations of the modernist paradigm, of which Grotius may be considered a key trailblazer. The core question of the academic conference is to what extent Grotian thought about general legal theory and international law is still relevant today, and what adaptations current foundational changes to our world make necessary. In this context, discussion of the many trajectories of reception, appropriation and reinterpretation of Grotius in different times and places, offers a valuable, additional perspective.    

The organizers invite twelve speakers for each of the three thematic parts of the conference.  Candidates are requested to send in an abstract of 250-400 words and short c.v. of max. 100 words to the general convener, Randall Lesaffer ( by 1 May 2024. Please mention your affiliation and indicate a preference for one of the three conference themes.

Part I ‘Lineages of Grotian Thought’
Convener: Mark Somos
Keynote speaker: Martine van Ittersum

Part II ‘Modernity and the dawn of a new age: general theory of law and
Convener: Marc de Wilde
Keynote speaker: Annabel Brett

Part III ‘Modernity and the dawn of a new age: international law and governance’
Convener: Eric De Brabandere
Keynote speaker: Hilary Charlesworth

Speakers are expected to turn in a draft paper before 1 June 2025. Papers will be distributed to the participants in advance of the conference. Those papers which pass peer review will be published in both the journal Grotiana (New Series) as well as collected in a separate book with Brill.  More information here.

Saturday, March 9, 2024

Weekend Roundup

  • A symposium on Natasha Wheatley’s The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty has been published in the journal History of European Ideas
  • On May 1, at the Supreme Court, the Supreme Court Historical Society and  George Washington’s Mount Vernon will sponsor a lecture by Gerard Magliocca on his book, Washington's Heir: The Life of Bushrod Washington.  (The second lecture in this series will occur on October 8 in Mount Vernon when Lindsay M. Chervinsky speaks on her book Making the Presidency: John Adams and the Precedents that Forged a Republic.  Register here.
  • The latest episode of the American Law Institute’s podcast is Exploring ALI's History and InfluenceAndrew Gold, an editor of the recently published centennial history of the ALI, joins Deborah A. DeMott (Reporter for Restatement of the Law Third, Agency), John C.P. Goldberg (Associate Reporter for Restatement the Law Fourth, Property), and Erin E. Murphy (Associate Reporter for Model Penal Code: Sexual Assault and Related Offenses).
  • From the New York Times: Mary Ziegler (UC Davis) appeared on the Ezra Klein Show.
  • Miami Law notes Kunal Parker’s appearance on a panel at on the Civil War and Immigration at HistoryMiami Museum and in a seminar of “Deported Americans” at the Massachusetts Historical Society.  
  • From In Custodia Legis: Federal Holidays and Observances, Part I and Part II.  
  • ICYMI: New York courts have a long progressive history, says Bruce W. Dearstyne (Times Union). Sumita Mukherje on Race, Empire and Women’s Suffrage (History Today).
Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Friday, March 8, 2024

AJLH: 63:4

The American Journal of Legal History 63:4 (December 2023) has now been published online.  Here's the TOC:

The Abolition of the Right to Trial by Jury in Civil Cases in England
Charles S Bullock

Brave New World? Care and Custody of Children at the Court for Divorce and Matrimonial Causes in Mid-Victorian England
Penelope Russell

Banking Law in Italian Legal Consulting between the Fourteenth and the Fifteenth Centuries
Mario Conetti

In forma pauperis: Indentured Servitude, the Right to Counsel, and White Citizenship in the Seventeenth-Century Chesapeake
Anna Suranyi

Justice Kennedy’s Jurisprudence of Dignity: From Sovereign Immunity to Gay Rights
Eric J Scarffe

Hoist by the Colonizer’s Own Device? Law Reporting in Mandatory Palestine
Yair Sagy and Eyal Katvan

International Legacies of a Century and a Half of the Case Method
Han-Ru Zhou

--Dan Ernst

Thursday, March 7, 2024

Del Mar on Character, Intellectual Historiography, and Neil MacCormick

Maksymilian Del Mar, Queen Mary University of London, will address the Helsinki Legal History Series on Monday 29 April 2024, 15-16:30 (UTC+2) in the Porthania Building, Room P545, University of Helsinki and on Zoom (Link to be published later).  His lecture is entitled, Beyond Belief and Deeper than Argument: Character and Intellectual Historiography:

This talk explores the value of character for writing intellectual history, and in particular the history of philosophy and politics. The talk first considers the long and rich history of character - especially character writing in the rhetorical tradition - before suggesting what we might take from that history for historicising philosophy and politics. Character, on the model developed here, is a relational phenomenon: it consists in the manner or style with which a person relates with others in certain circumstances and over time. The talk illustrates this character-based intellectual historiography by showing how it can illuminate the philosophical and political life of Neil MacCormick, but also how it allows us to convey the complexity, richness, and value of the activities of philosophy and politics.

--Dan Ernst

Wednesday, March 6, 2024

Schweber on Madison and Religious Liberty

Howard Schweber, University of Wisconsin-Madison, has posted "Pray Liberty of Conscience to Revive Us": James Madison's Understanding of Religious Liberty in the US Constitution:

Religious liberty was one of the centrally motivating concerns and one of the central models for Madison’s thinking about the Constitution. But opposing the imprisonment of Baptists in Virginia was the simplest possible starting point. What, in Madison's mind, should America’s Constitution say (and mean) about the relationship between religion/church and politics/the state writ large? Freedom to engage in worship might be a clear requirement, but how far should that freedom extend? To explore these questions, this paper is divided into four sections: (1) Madison’s view of religion generally; (2) Madison’s view of the Establishment Clause in relation to public support for religious actors and institutions; (3) Madison’s treatment of free exercise and the question of exemptions;; and (4) Madison’s view of the Establishment Clause with respect to what Justice O’Connor called the “endorsement” problem. Across all categories, the key driving concept in Madison's thought is that religion is a special case: specially precious and specially dangerous both, and therefore to be treated differently from other topics such as general principles of liberty of conscience. In the conclusion, I engage in speculating about what Madison would have thought of some recent developments in First Amendment religion clauses in light of his thinking on the subject.
-- Dan Ernst

Tuesday, March 5, 2024

Wurman on the Opinions Clause and Presidential Power

Ilan Wurman, Arizona State University Sandra Day O'Connor College of Law, has posted The Opinions Clause and Presidential Power:

The two predominant conceptions of executive power and supervision over the administrative state are inadequate. One maintains that all administrative discretion is the President’s, and that by virtue of the grant of executive power the President can both remove and control the discretion of all subordinate officers. That raises the specter of an imperial presidency, and a textual problem: it makes superfluous the Opinions Clause, which empowers the President to require principal officers to provide written opinions about their respective duties. The other maintains that the President is, at best, a “persuader-in-chief,” with no constitutional right to control administrative discretion or to remove officers tasked with implementing statutory duties. Although this view makes sense of the Opinions Clause, there is no historical evidence for it. The proponents of these two schools of thought have thus been locked in a decades-long stalemate, with competing and irreconcilable paradigms of total control or no control.

This paper recovers another, lost way of thinking about presidential power, one that is more modest than either of the two prevailing understandings and that has the potential to advance the debate. According to this conception, Congress can insulate inferior officers from removal because they must follow orders. As for principal officers, however, the President can remove but not control them, at least not directly. There is no constitutional obligation on the part of principal officers to obey; the only inducement is the threat of removal. The Opinions Clause, far from being superfluous, then assures the President the power to acquire information to intelligently exercise the power to remove. In addition to this account’s textual and structural virtues, it appears to have been the understanding of presidential power shared by George Washington, Thomas Jefferson, James Madison, William Wirt, Daniel Webster, William Howard Taft, and the First Congress.

This understanding of executive power may seem overly formalistic, but it allows for the existence of agencies whose heads are removable but nevertheless bound by law to exercise independently the discretion Congress has given them, and for the insulation of civil servants and adjudicators subject however to the ultimate control of the heads of department. In other words, it allows for an independent administrative apparatus but over which the President has an important check. It also suggests a modest resolution to SEC v. Jarkesy, the blockbuster case before the Supreme Court this term.
--Dan Ernst

Roberts on the Concept of Forced Labor

Christopher M. Roberts, Chinese University of Hong Kong Faculty of Law, has posted The Historical Development of the Concept of Forced Labor and the Open Boundaries of its Definition Today, which appears in the New Mexico Law Review:

This article considers the steps taken on the international level in the 1920s and 30s to define the terms through which freedom and unfreedom in the context of labor might be understood, the manner in which understandings of forced labor have subsequently evolved, and the parameters and potentials of the concept today. The first section explores the history of the 1926 Slavery Convention; the nature of coercive labor in colonized states in the inter-war period; the drafting processes and coverage of the 1930 Forced Labour Convention; the Convention’s accompanying recommendations; and subsequent developments in the legal definition of forced labor. The second section considers various different areas in which the boundaries of the concept of forced labor are open-ended today, with an eye to determining whether the concept is capable of addressing hitherto under-recognized forms of labor coercion, or whether it is fatally limited by the conditions of its formation. In particular, the section considers areas of explicit limitation; the potential contained within the terms of the Forced Labour (Indirect Compulsion) Recommendation; and what potential there is for forced labor to be deployed relative to an issue not intensively addressed in 1930, that of debt. This article concludes that, despite the limitations that have accompanied the idea of forced labor to date, the concept remains a useful one, the boundaries of which maintain extensive space for expansion.
--Dan Ernst

Monday, March 4, 2024

Kessler on Law and Historical Materialism

Jeremy Kessler, Columbia University Law School, has posted Law and Historical Materialism, which is forthcoming in the Duke Law Journal

Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From “law and political economy” to critical race theory to feminist legal studies to neo-Marxist legal theory, new perspectives have flourished and marginalized traditions have been revived. What they all share, however, is a point of intellectual origin in the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extra-legal social and economic forces. Some of those accounts, such as that of the law and society school, were associated with the political center. But others, most especially historical materialism, hailed from the political left. For CLS and its successors, the failure of historical materialism to account for the indeterminacy of law, the contingency of legal development, and the autonomous causal power of law and legal actors to shape society was (and remains) disqualifying. This Article argues that CLS erred, and that its successors continue to err, in sidelining historical materialism as a viable framework for left-leaning legal thought. The historical materialist account of law has the resources to make sense of the apparent indeterminacy, contingency, and autonomy of law and legal actors at least as well as CLS and its successors. It can also make better sense of three additional phenomena with which CLS and its successors have struggled: the tendency of legal development to reproduce existing social and economic hierarchies; the relationship between law and capitalism; and the relationship between law and the natural world.
--Dan Ernst

ASLH Early Career (Virtual) Legal History Workshop

We have the following announcement from the American Society for Legal History:

ASLH Early Career (Virtual) Legal History Workshop

Deadline for Applications:  June 30, 2024 

The American Society for Legal History (ASLH) is delighted to announce a new virtual initiative – the Early Career (Virtual) Legal History Workshop – designed to provide support and intellectual community to early career scholars working in legal history, broadly defined. 
Applications are invited from early career, pre-tenure scholars, publishing in English, who have completed PhDs or JDs (those working toward a JD/PhD must have completed the PhD).  Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are scholars who may not (yet) identify as legal historians. Though time zones present a challenge, one of the goals of the ASLH’s virtual initiatives is to increase opportunities for engagement between international and U. S. based scholars.  With this in mind, we encourage international scholars to apply.
The committee (the ASLH Working Group for Virtual Initiatives) will select seven (7) Fellows for the 2024-25 workshop. The workshop will be limited to the Fellows and Faculty Chairs and will meet once monthly via Zoom from September through April (no meeting in October because of the Annual Meeting) giving each fellow an opportunity to share work-in-progress with the group for discussion and feedback.  The 2024-25 Early Career LHW will be chaired by Bhavani Raman, Associate Professor of History, University of Toronto, and Dan Sharfstein, Dick and Martha Lansden Chair in Law and Professor of History, Vanderbilt University.  The date and time of the monthly workshops will be established by the Faculty Chairs. Fellows must commit to participate for the full academic year.
Elements of Application
(1) Cover Letter (1 page) (the cover letter should address the following points: briefly describe your research and path to the project, note the intended result (book/article/other) and the stage of the project, explain your interest in being part of the 2024-25 workshop, and note your time zone (UTC) and range of flexibility for meeting);
(2) Curriculum Vitae (2 pages) (including education and degree dates, current appointment, publications and conference papers, and professional society affiliations);
(3) Proposed Paper Title and Abstract (up to 100 words);
(4) 1 Letter of Recommendation (the letter should be from someone who knows you and your work well and who can comment on how you would benefit from and contribute to the workshop community).
Applicants should submit items 1-3 in a single pdf.  And arrange to have the letter of recommendation submitted directly. 
All application materials should be sent to Barbara Welke,
The deadline for applications is June 30, 2024.  Only complete applications will be considered.
Questions? Write to Barbara Welke

-- Karen Tani

Saturday, March 2, 2024

Weekend Roundup

  • Christian R. Burset discusses his book, An Empire of Laws: Legal Pluralism in British Colonial Policy in a New Books Network podcast. Taisu Zhang reviews Professor Burset's article, "Redefining the Rule of Law: An Eighteenth-Century Case Study," on Jotwell.
  • Colorado Law has published a profile of the legal historian Jonathon Booth (Colorado Law).
  • The result of the latest election of the Organization of American Historians is in.  Congratulations to President-Elect Annette Gordon-Reed and Vice President Marc Stein.
  • Ray Brescia, Albany Law School, discusses his new book, Lawyer Nation: The Past, Present, and Future of the American Legal Profession, on the ABA Journal’s Modern Law Library podcast.
  • Women’s Rights & Citizenship: A History of Women Jurors, by Helen Allen Nerska (New York Almanack). 
  • “The latest episode of the A Minute In New York History podcast tells the story of the 1839 La Amistad Rebellion” with the help of Marcus Rediker (New York Almanack).
  • Paola Zichi, British Academy Postdoctoral Research Fellow at the Warwick Law School, present on feminism and “the so-called ‘historical turn’ in international law” in the Law and Methods Seminar at SciencesPo Law School last Thursday.  More.
  • ICYMI: Black family history and Civil War pension records (NYT).  "Tradition" is "too amorphous and manipulable a criterion” for constitutional adjudication, a federal judge argues (NYT).  John A. Lupton, Illinois Supreme Court Historic Preservation Commission, on Myra Bradwell (Illinois Courts).

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

Friday, March 1, 2024

Boyer and Nicholls's "Rise and Fall of Treason in English History"

Allen Boyer, formerly senior appellate counsel at the New York Stock Exchange Enforcement Division and the author of Sir Edward Coke and the Elizabethan Age (Stanford University Press) and Mark Nicholls, a Fellow of St. John’s College, Cambridge, have published The Rise and Fall of Treason in English History (Routledge):

This book explores the development and application of the law of treason in England across more than a thousand years, placing this legal history within a broader historical context.

Describing many high-profile prosecutions and trials, the book focuses on the statutes, ordinances and customs that have at various times governed, limited and shaped this worst of crimes. It explores the reasons why treason coalesced around specific offences agreed by both the monarch and the wider political nation, why it became an essential instrument of enforcement in high politics, and why, over the past three hundred years, it has gradually fallen into disuse while remaining on the statute book. This book also considers why treason as both a word and a concept remains so potent in wider modern culture, investigating prevalent current misconceptions about what is and what is not treason. It concludes by suggesting that the abolition or 'death' of treason in the near future, while a logical next step, is by no means a foregone conclusion.

The Rise and Fall of Treason in English History is a thorough academic introduction for scholars and history students, as well as general readers with an interest in British political and legal history.
--Dan Ernst