Weekend Roundup

• Martha S. Jones and Kate Masur's amicus brief on birthright citizenship in a First Circuit immigration case.  They and others will participate in a Brennan Center event on the topic on June 12. 

• “Trust in the state: Negotiating legal and bureaucratic encounters," a special issue of the Journal of Legal Anthropology has published open access (H-Law).

• The Council of the ABA Section on Section of Legal Education and Admissions to the Bar has put out for notice and comment a proposal to double the the number of required credits of experiential education for JD graduates from 6 to 12.  One wonders what the move portends for enrollment in legal history courses and seminars.   

• Princeton University’s James Madison Program in American Ideals and Institutions has awarded graduating senior Ben Woodard the Stephen Whelan ‘68 Senior Thesis Prize for Excellence in Constitutional Law and Political Thought for “Nature National, Slavery Sectional: Southern Judges’ Choice for Freedom in Antebellum Legal and Political Culture.”  

• Lawbook Exchange's latest catalogue of Scholarly Law & Legal History, including some letters from Louis Brandeis to Max Lowenthal. 

• ICYMI: Ex parte Merryman and current immigration battles (Maryland Reporter).  Inside Kenya’s Judiciary Museum (Star).  A slideshow on the Scopes Trial (msn).  Harvard Relinquishes Photographs of Enslaved Individuals (Harvard Crimson).  A defense of Bruen's originalism (Volokh Conspiracy). 

• Update: William G. Ross on the centennial of Pierce v. Society of Sisters (JURIST).

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

Keyes on the Evolution of Legislative Drafting

John Mark Keyes, University of Ottawa, has posted Evolution of Legislative Drafting Style in English:

This paper reviews the evolution of legislative drafting style in English beginning in the Middle Ages in England through to modern reforms adopted by the national drafting offices of Canada, the UK, Australia and New Zealand. It concludes there is remarkable similarity in the styles adopted by these offices with the exception of some of the more debatable techniques proposed to enhance the readability of legislation.

--Dan Ernst

Costello on the Borough Origins of Judicial Review

Kevin Costello, Sutherland School of Law, University College Dublin, has posted Two Eighteenth Century Somerset Boroughs and the Origins of Modern Judicial Review:

The function of modern judicial review is to correct infringements of those elementary standards which must be observed by officials exercising public power. That framework of standards includes norms against exercising power for an improper or corrupt purpose, or when biased, or in disregard of the precepts of natural justice. Of course, for the high court to be able to judicially review jurisdictional , jurisdictional error must be proven: ‘it is axiomatic that a defect has to be proven for in order for certiorari to issue’. Since the late eighteenth century, it has been possible to prove a breach of those standards by written witness testimony in the form of an affidavits. But the power of the High Court to admit witness statements to prove official breaches of jurisdiction was not always recognised.

--Dan Ernst

Infanti's "Human Toll"

Anthony C. Infanti, University of Pittsburgh School of Law, has published The Human Toll: Taxation and Slavery in Colonial America (NYU Press)

The Human Toll documents how the American colonies used tax law to dehumanize enslaved persons, taxing them alongside valuable commodities upon their forced arrival and then as wealth-generating assets in the hands of slaveholders. Anthony C. Infanti examines how taxation also proved to be an important component for subjugating and controlling enslaved persons, both through its shaping of the composition of new arrivals to the colonies and through its funding of financial compensation to slaveholders for the destruction of their “property” to ensure their cooperation in the administration of capital punishment. The variety of tax mechanisms chosen to fund slaveholder compensation payments conveyed messages about who was thought to benefit from—and, therefore, who should shoulder the burden of—slaveholder compensation while opening a revealing window into these colonial societies.

While the story of colonial tax law is intrinsically linked to advancing slavery and racism, Infanti reveals how several colonies used the power of taxation as a means of curtailing the slave trade. Though often self-interested, these efforts show how taxation can be used not only in the service of evil but also to correct societal injustices. Providing a fascinating account of slavery’s economic entrenchment through the history of American tax law, The Human Toll urges us to consider the lessons that fiscal history holds for those working in the reparations movement today.

Professor Infanti discusses writing the book in this essay in Tax Notes State.

Birthright Citizenship at the Brennan Center

[We have the following announcement from the Brennan Center for Justice.  DRE]

The Guarantee of Birthright Citizenship – Thursday, June 12, 2025 // 12:30 – 1:30 P.M. EST

On the very first day of his second term in office, President Donald Trump issued an executive order purporting to strip U.S. citizenship from the children of undocumented immigrants. The order directly conflicts with the plain language of the Constitution’s 14th Amendment, which states that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” And it defies more than a century of case law.

The executive order met with immediate legal challenges and a wave of court rulings blocking its enforcement, and it is destined for a Supreme Court showdown. The history of the 14th Amendment will likely play a key role in the outcome of the case. What historical currents led to the ratification of the amendment’s Citizenship Clause? What did the framers intend? How did courts interpret its guarantees in the decades following? How do today’s attacks on birthright citizenship relate to historical attempts to deny citizenship to people born and living in the United States?

Join the Brennan Center virtually on Thursday, June 12, at 12:30 p.m. ET for a discussion with leading experts on the historical and legal dimensions of the attack on birthright citizenship.  Produced in partnership with the Organization of American Historian.  [Register here.]

Speakers
Kate Masur, Professor of History, Northwestern University
Martha Jones, Professor of History, Johns Hopkins University
Erika Lee, Bae Family Professor of History, Radcliffe Alumnae Professor, Harvard University
Moderator: Kareem Crayton, Vice President for Washington, DC, Brennan Center

Law & Society Dissertation Prize to Fei

At the recent meeting of the Law and Society Association, the winner of the annual Dissertation Prize was announced. The award went to Du Fei (University of Oklahoma), for a dissertation titled "Local Women, Global Histories? Gendering Economic Life, Law, and Islam in Early Modern Transregional India." The citation:

Du Fei, Assistant Professor at the University of Oklahoma, who earned his PhD from Cornell University, has been selected as the winner of this year’s Dissertation Prize. His dissertation, “Local Women, Global Histories? Gendering Economic Life, Law, and Islam in Early Modern Transregional India,” challenges gendered constructions of Islamic law and reveals how gender-insensitive narratives have shaped dominant histories of trade and travel in global Islam. 

Historians have long traced the movements of merchants, colonizers, and legal professionals across transregional India, often casting men as global actors and non-European women as local, domestic subjects. But what was it precisely that made some of these histories “global” and others “local”? What roles did women actually play in the economic life of the time, and how did they engage with legal systems, while navigating financial and social networks? Drawing on extraordinarily rich archival research and sharp theoretical analysis, Fei’s dissertation uncovers a fascinating inversion of mainstream assumptions about the histories of gender in Islam. 

While Muslim women in transregional India are often portrayed as passive or economically marginalized, Fei shows that some acted as strategic negotiators—engaging with jurists, judges, and male kin to assert claims through Islamic law on property and inheritance. Rather than being confined to the private sphere, these women regularly negotiated with male kin, jurists, judges, and officials in multiple courts. Taking readers across the lands and seas of South Asia, the Middle East, and Southeast Asia, Fei effectively constructs a new archive for the legal history of South Asia, drawing on sources in Persian, Arabic, English, and Dutch.  

By positioning the household as a critical site of economic activity, the dissertation also unsettles simplistic accounts of patriarchy and offers a major methodological and substantive contribution to the economic and legal history of global early modernity. It advances scholarship on legal pluralism by demonstrating how women navigated overlapping legal traditions as they engaged in debates among Muslim jurists, colonial officials, and Orientalists. In short, Fei’s dissertation represents the epitome of law and society scholarship. 

The committee unanimously praised the exceptional reach of the dissertation, spanning gender studies, legal history, and Islamic studies, and its potential to mark a leap forward in socio-legal scholarship that employs historical analysis. Beautifully written and meticulously researched, the dissertation lays the groundwork for an important interdisciplinary intervention. In a period marked by opportunistic originalism, it offers socio-legal scholars a compelling example of how careful archival rereading can serve as a powerful counterpoint in legal argumentation about global histories. 

Congratulations to Professor Fei!

Auerbach's "Overseer State"

Sascha Auerbach, University of Nottingham, has published The Overseer State: Slavery, Indenture and Governance in the British Empire, 1812–1916 (Cambridge University Press):   

In this compelling work, Sascha Auerbach offers a bold new historical interpretation of late-stage slavery, its long-term legacies, and its entanglement with the development of the modern state. In the wake of abolition, from the Caribbean to southern Africa to Southeast Asia, a fusion of government authority and private industry replaced the iron chains of slavery with equally powerful fetters of law and regulation. This 'overseer-state' helped move, often through deceptive and coercive methods, millions of Indian and Chinese indentured laborers across Britain's imperial possessions. With a perspective that ranges from Parliament to the plantation, the book brings to light the fascinating and terrifying history of the world's first truly global labor system, those who struggled under its heavy yoke, and the bitter legacies left in its wake.

--Dan Ernst

Law & Society John Hope Franklin Prize to Harris, Harawa

At the recent meeting of the Law and Society Association, the Association announced the winner of the John Hope Franklin Prize (recognizing "exceptional scholarship in the field of Race, Racism and the Law"). Legal historical scholarship made a strong showing. The winners, along with the citations, were as follows:

Jasmine E. Harris – University of Pennsylvania
The Political Economy of Conservatorship. UCLA Law Review, 71(5), 1364-1482

Jasmine E. Harris’s “The Political Economy of Conservatorship,” published in the UCLA Law Review, reinterprets conservatorship as a tool of racial and economic subordination. Harris weaves legal history, disability theory, and racial critique into an incisive analysis of how disability law has been used to extract labor and property from Black and Indigenous communities. By connecting conservatorship’s historical deployment to its contemporary operation, Harris exposes the system’s deep-seated structural harm. Her article exemplifies socio-legal scholarship at its finest and proposes an abolitionist framework with broad implications for race, disability, and legal reform.

Daniel S. Harawa – New York University
Coloring in the Fourth Amendment. Harvard Law Review, 137(6), 1533-1582

Daniel Harawa’s “Coloring in the Fourth Amendment,” published in the Harvard Law Review, delivers a powerful and incisive challenge to the colorblind assumptions embedded in Fourth Amendment jurisprudence. By exposing how race-neutral legal standards mask racial subordination in policing, Harawa articulates a doctrinal and normative argument for a race-conscious reasonable person standard. Grounded in constitutional theory and racial justice advocacy, this article exemplifies rigorous scholarship and has the potential to reshape legal understandings of policing, seizures, and race

An honorable mention went to legal historian Giuliana Perrone (University of California, Santa Barbara) for Rehearsals for Reparations, The Russell Sage Foundation Journal of the Social Sciences, 10(2), 132-150. The citation:

Giuliana Perrone’s “Rehearsals for Reparations,” published in the Russell Sage Foundation Journal of the Social Sciences, uncovers a neglected archive of postbellum litigation in which freed people sued to enforce testamentary bequests from former enslavers. Recasting these legal actions as early reparations claims, Perrone reveals the moral and legal logic through which formerly enslaved individuals asserted their rights to property, land, and justice. The article is an outstanding contribution to the history of race and the law and offers a new frame for understanding reparations in American legal history.

Congratulations to all!

-- Karen Tani

Law & Society James Willard Hurst Book Prize to Powers, "Arbitraring Empire"

At the recent meeting of the Law and Society Association, the winner of James Willard Hurst Book Prize was announced. The prize "is awarded annually . . . for the best work in socio-legal history published in the previous year." This year's winner was Arbitrating Empire: United States Expansion and the Transformation of International Law (Oxford University Press, 2024), by Allison Powers (University Wisconsin-Madison). The citation:

The Hurst Awards Committee has selected Allison Power’s book Arbitrating Empire: United States Expansion and the Transformation of International Law as the recipient of the 2025 prize.  The book is a tour de force, drawing extensively on archival research to provide a richly textured account of the United States role in transforming international law.  The committee was impressed by the book’s nuance and rigorous historical detail, tracing how the United States has wielded authority not only to shape outcomes in international disputes through formal law and the use of international tribunals, but also at local economic levels such as Cuban sugar plantations, the locks and stops of the Panama Canal, the Texas cotton fields, and Arizona copper mines.  

The book is an excellent achievement that never loses sight of the consequences of the U.S. government’s political and economic influence in international law, disputes, and economic violence.   It is a work that thoughtfully narrates how “ordinary people” from throughout the world have attempted to use international law to advance the search for justice.  The manuscript is compellingly written, and thoroughly researched.  It resituates how American law and power have been framed during the past two centuries and the communities rendered invisible.  It is an excellent contribution to law and society scholarship.

Congratulations to Professor Powers!

-- Karen Tani

Rosenboim on Kelsen and the Chicago World Constitution Draft

Or Rosenboim, University of Bologna, has published, open access, Law, peace, and world order: Hans Kelsen’s global thought in the 1940s in the Journal of Global History:

In the mid-twentieth century, the jurist Hans Kelsen envisaged a new legal and political international order. His global thinking revolved around his idea of a ‘world state’ as a means to preserve peace. The article contends that Kelsen’s ideas on global legal and political order and a world state in the 1940s drew on his intellectual biography and on his earlier theoretical writings on order in the national scale. Another important source for understanding Kelsen’s global thinking is his critique of the Chicago World Constitution Draft, a mid-century project which proposed the establishment of a federal world state. As this study shows, Kelsen’s global thinking is characterised by a multi-scalar logic and an emphasis on positive law as the foundation of political and legal order. These elements render his ideas distinct in the historical trajectory of modern global thought, and deserve the attention of global historians today.

--Dan Ernst

Lange on Nazi Lawyers and the Invasion of Poland

Felix Lange, University of Cologne, has published, open access, Claiming Legality: German Lawyers under the Swastika and the Aggression against Poland, in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 85:1 (2025) 17-42:

The article studies how German lawyers under the swastika justified the German aggression against Poland in 1939 and questioned the support of the United States for Poland and its Allies. It distinguishes three lines of argument: First, they claimed that the Kellogg-Briand Pact was devoid of normative content and thus could not bind the German Reich. This argument was coupled with a political critique of the League of Nations Covenant and the Kellogg-Briand Pact as instruments for maintaining the territorial status quo. Second, they put forward that the German Reich was acting in self-defence and that it was Poland, France, and Great Britain who had violated the Covenant and the Pact. Third, they rejected efforts to reconceptualise the existing rules of neutrality in light of the Covenant and the Pact. Reliance on a more traditional understanding of neutrality was intended to raise legal obstacles to siding with Poland, France, and Great Britain for third states such as the United States.

--Dan Ernst.  H/t ESCLH.

Zietlow on Fugitive Slaves, Free Blacks, and Birthright Citizenship

Rebecca E. Zietlow, University of Toledo College of Law, has posted Fugitives From Slavery, Free Black Activists, and the Origins of Birthright Citizenship, which is forthcoming in the Mississippi Law Journal:

In 1852, Martin Delany, a free Black doctor, journalist, and antislavery activist wrote an influential treatise on the rights of free Black people in which he claimed, “We are Americans having a birthright citizenship….”   Ten years later, during the Civil War, Delany backed his words with actions by volunteering for the Union Army and recruiting Black soldiers for an army regiment.   Delany’s theory of birthright citizenship was shared by thousands of antislavery and Black civil rights activists in the antebellum era, including William Yates, who wrote the first treatise on the rights of free Black people in 1838, and Frederick Douglass, a fugitive from slavery who became one of the most prominent abolitionist leaders.   Black activists used the language of citizenship to claim their status as rights-bearing people who belonged to the community in which they live and to the national polity.  Fugitives from slavery crossed state borders in search of freedom and human rights. Their free Black allies argued that they were citizens by virtue of being born in the United States and, as citizens, were entitled to human rights. Free Black people emphasized their loyalty to the national polity and their willingness to sacrifice to prove their loyalty.  During the Civil War, fugitives from slavery and free Black people volunteered to serve in the Union army, risking their lives in support of the polity and proving their loyalty and eligibility for citizenship rights.  This Essay explores the origins of birthright citizenship and describes the centrality of citizenship rights in the advocacy of people, like Delany, who participated in the Free Black Civil Rights Movement and Antislavery Movement. Birthright citizenship is a promise of equality for all people who are born in the United States, regardless of their race or the national origin of their parents. It is in our Constitution today because of the advocacy of people who were brought involuntarily into our country and claimed their right to citizenship with their actions and their activism.

--Dan Ernst

Weekend Roundup

• Over at Balkinization: a symposium on Dylan C. Penningroth's Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023), featuring contributors Evelyn Atkinson (Tulane), Ian Ayres (Yale), Mark Graber (Maryland), Steve Griffin (Tulane), Carol Rose (Yale), and Mark Tushnet (Harvard).
  

• Aditya Bamzai, University of Virginia School of Law, Johann Neem, Western Washington University, Farah Peterson, University of Chicago Law School, and Jack Rakove, Stanford University, on the Articles of Confederation at the National Constitution Center (YouTube). 
  

• Thomas J. McSweeney, William & Mary Law School, a recipient of the university's 2025 McGlothlin Award for Exceptional Teaching.

• On Tuesday, June 10, 2025, 12PM – 1PM (Pacific) the Oregon Historical Society will host, as part of its series, "Historians and the News," the virtual event Free Speech, Misinformation, and National Security, a conversation with Sam Lebovic and Christopher McKnight Nichols.  Register here.

•  Stephanie Hall Barclay, Georgetown University Law Center, responds to

  

  John Marshall Harlan (LC)

  Jud Campbell’s “Determining Rights” in the Harvard Law Review.

• ICYMI: Harvard's Magna Carta (The Crimson). Charles Barzun on the quiet radicalism of Justice Souter (SCOTUSblog).  Centre College's sculpture of John Marshall Harlan (Lane Report). Bruce Ackerman and Susan Rose-Ackerman on the APA and Postwar Fears of Executive Power (Slate). Wong Kim Ark's great grandson and birthright citizenship (Post Reports).

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

Shechter on the 1964 Constitutions of Egypt, Iraq and Syria

Relli Shechter, Ben-Gurion University, has published, open access, Legislating the Progressive Arab Society: State Authority and Social Rights in the 1964 Interim Constitutions of Egypt, Iraq, and Syria, in Law and History Review:

This article examines the 1964 interim constitutions of Egypt, Iraq, and Syria as markers of a two-decade-long shift in Arab constitutional design—moving from individual liberal rights toward a new regional social contract centered on social rights. The vision of a progressive society rested on two principles of collective welfare: solidarity—expressed through constitutional commitments to collective well-being—and social justice, which aimed to ensure equality and better living standards for all. Contrary to common interpretations, these documents were not simply authoritarian bargains or tools for consolidating power. Rather, the interim constitutions were social bargains that reflected legislative social engineering during decolonization and guided both citizens and the state in building a new society. Despite the intense regional rivalries, these constitutions reflected a shared commitment to socioeconomic transformation that transcended political divides. The analysis of these constitutions shows that the difficulties in their execution extended beyond future limitations of political will or economic resources. Rather, they contained inherent legal and ideological tensions about the structure and direction of the progressive society—particularly in their approach to fundamental questions of social organization. These tensions emerged in the complex relationship between family and individual rights, the delicate balance between private and collective ownership, and the role of state patriarchy in providing social welfare.

--Dan Ernst

Daniel on the Birth of Municipal Bankruptcy Law

Josiah M. Daniel III, Vinson & Elkins and UT Austin, has posted The Historiographical Problem of Municipal Bankruptcy Law:

This is the first archivally researched history of the genesis of municipal bankruptcy law, 1933-1938. It also compares the historical method with law and economics (L&E) for finding and telling the story.

Congressman Hatton Sumners, Judiciary Committee chair, was the key actor. The legislative process was a laboratory for new forms of relief under the Bankruptcy Clause of the Constitution, seeking to relieve the insolvency experienced during the Depression by irrigation districts in “the Valley” of Texas, new towns in Florida, and elsewhere across the nation that could not collect taxes and pay their municipal bonds. State governments were helpless; the Constitution’s Contract Clause forbade “impairing the Obligation of Contracts,” and voluntary, private restructuring agreements were frustrated by the “holdout problem.”

From a variety of models, it was composition with creditors that succeeded politically. Congress from 1933 to 1937 amended the Bankruptcy Act of 1898 by enacting the First and Second Municipal Bankruptcy Acts—known as Chapter IX—based on composition. L&E scholars credit this to freshman Florida congressman Mark Wilcox who worked in conjunction with a bondholders’ group. But it was Sumners who determined that the composition model was constitutional and politically most feasible. He navigated through opposition that insisted “bankruptcy” required turnover of the debtor’s assets in exchange for a discharge and that such legislation would destroy the municipal credit market. Municipal bankruptcy did leave all assets in the debtor’s hands and granted a discharge, and the credit market survived. And relevantly to a key issue in reorganizational bankruptcy today, Sumners crafted the first, and still the only, statutory injunctive relief applicable in the bankruptcy case of an artificial entity for the protection of nondebtor third parties—here, all officers and inhabitants of a municipal debtor—against creditors’ collection efforts.

Municipal bankruptcy became a New Deal agenda item, and Franklin Roosevelt helped push the legislation to enactment in the spring of 1934. The Supreme Court invalidated the first act in the 1936 Ashton case, but Justice Cardozo dissented and outlined small changes that Sumners and Congress utilized in enacting the second act in 1937. Then Sumners led the oral arguments in 1938’s Bekins case that sustained it.

Municipal bankruptcy law succeeded in effectuating municipal-bond restructuring agreements, and its essence lives in today’s Bankruptcy Code as Chapter 9, providing discharge of unpayable debt and more commonly furnishing the platform upon which towns and taxing districts negotiate such deals. Chapter IX worked in the past, and Chapter 9 works today. Sumners, not Wilcox, was primarily responsible for the legislation. Nothing was assured; the story demonstrates change over time, with Sumners the key actor. And the project of finding and interpreting the genesis of municipal bankruptcy is one for legal history, not for L&E, the author argues.

--Dan Ernst

Justice Browning Awarded Texas Legal History Fellowship

[Congratulations to Justice Browning on this fellowship!  DRE]

The Texas State Historical Association has selected Justice (ret.) John G. Browning (law professor and Distinguished Jurist in Residence at Faulkner Law School in Montgomery, Alabama) as the winner of the 2025 Larry McNeill Research Fellowship in Texas Legal History. This award, which includes a stipend, is presented annually " for the best research proposal on some aspect of Texas legal history." Established in 2019 in honor of Larry McNeill ( a past president of both the Texas State Historical Association and the Texas Supreme Court Historical Society), it " recognizes his commitment to fostering academic and grassroots research in legal history."  Justice Browning's winning proposal was for " Forgotten Firsts: Uncovering the Lives and Legacies of Texas' Early Black Lawyers." Justice Browning's work on America's early Black lawyers has appeared in multiple law reviews, bar journals, and the Journal of Supreme Court History.  The award and check were presented at a luncheon on February 28, 2025, during the TSHA's Annual Meeting in Houston.

Siegel on Democratizing Constitutional Memory

Reva Siegel, Yale Law School, has posted Foreword: Democratizing Constitutional Memory, which is forthcoming in the Michigan Law Review:

The Court regularly makes claims on the past—claims that have grown in prominence since conservatives on the Roberts Court invoked “history and tradition” to overrule longstanding case law on religious free exercise, the right to bear arms, and the right to abortion.  The Court claims its historically based approach constrains judges by focusing interpretation on objective and impersonal facts in the past.

To refute that account, this Foreword demonstrates that appeals to the past in constitutional law, whether true, false, or selective, are commonly elements of normative arguments about our identity and obligations as a people that I term “constitutional memory” claims. I examine gaps between constitutional memory and constitutional history to show how claims on the past in law can conceal, rather than constrain, the expression of judicial values—illustrating through a brief consideration of Dobbs v. Jackson Women’s Health Organization, the decision reversing the abortion right.

Analyzing gaps between constitutional memory and constitutional history refutes core premises of the judicial constraint claim. Importantly, it brings into view new interpretive possibilities for “democratizing memory,” which the Foreword concludes by exploring.

Many critics of conservative historicism would spurn historical-based argument altogether in favor of argument from principle. But there are good reasons to combine argument from principle and memory. The point is not to accommodate the powerful. To the contrary: As we appreciate the pervasive gaps between history and memory in constitutional law, we can ask whose voice, experience, and perspective does law represent? Whose is absent? And how might we democratize constitutional memory and represent in law the perspectives of those unjustly denied voice in the making of American law for much of the nation’s history?  In recalling efforts of the disfranchised to speak—whether by petitioning lawmakers or by resisting law—we can expand our accounts of constitutional lawmaking and identify new authorities to guide the application of constitutional principles.

Including these stories can reorient the law today. To take but one example: When we democratize constitutional memory—considering not only the views of lawmakers but of the people—we can see that American understandings of liberty include freedom from coercion in sex, reproduction, and family life.

--Dan Ernst

Masur Delivers Fulton Lecture on Abortion in New England

On April 28, Kate Masur, the John D. MacArthur Chair and Professor of History at Northwestern University, delivered the 2025 Fulton Lecture in Legal History at the University of Chicago Law School, “Of History and Traditions: Abortion, Patriarchy, and Law in Small Town New England ca. 1860.”  A full notice of Professor Masur's lecture is here.  We will update with the video when it becomes available.

--Dan Ernst

JACH: Spring 2025

The Spring 2025 issue of the Journal of American Constitutional History is now online.   

Dictatorship in the American Founding
Adam Lebovitz

Throughout the Revolutionary War, America experimented extensively with forms of emergency governance explicitly modeled on the Roman dictatorship, at both the national and the state levels. Surprisingly, America’s leading authors and statesmen rejected dictatorship in the Constitution, not primarily from fear of concentrated authority, but because they deemed this institution ill-suited to the rigors of modern statecraft.

Originalism and the Path to Partisan Jurisprudence: The Guidelines on Constitutional Litigation inside the Reagan Administration
Logan Everett Sawyer III+

Documents from the National Archives and elsewhere reveal why Reagan’s DOJ first adopted originalism, and then transformed it to serve a deeply contested, partisan legal-policy agenda.

Infringed
Daniel D. Slate

The legal concept of “infringement” at the time of ratification of the Second Amendment in 1791 meant that a right could be regulated—that is, given more definitive shape or partially curtailed or restricted—if the process by which the regulation came about was regulated through a duly elected legislature acting with the public good in mind.

Farm-Bloc Federalism: The Rise, Fall (and Rise Again?) of a Constitutional Coalition
Roderick M. Hills, Jr.+

Between 1832 and 1932, politicians from a “farm bloc” of states in the South, Midwest, Prairie, and Mountain West embraced and then rejected the idea that the Constitution limited the federal government’s power over a variously defined set of issues. This history of federalism’s ups and downs illustrates how political parties generally craft doctrine to achieve stability in the face of disagreement about values and interests.

--Dan Ernst

Bemmer on Early Irish Law in Helsinki Seminar

Jaqueline Bemmer, a Marie S. Curie Fellow with the Research Group Medieval History at Leuven, will present in the  Helsinki Legal History Series seminar on Thursday, May 22, from 3 pm - 4:30 pm in P673, Porthania, University of Helsinki.  You may attend via Zoom.  She will speak on "Rethinking the Margins: Early Irish Law and the Post-Roman Legal Landscape":

The early Irish laws, sometimes referred to as fénechas, constitute the largest extant body of vernacular legal writing in Europe outside the Graeco-Roman world – yet they remain largely unknown beyond a small specialist audience. Unlike the roughly contemporary Germanic edicts, these texts were not issued by kings but preserve the customary laws (or socio-legal customs) of the local population in early medieval Ireland. Committed to parchment in the 7th and 8th centuries by scholars trained in Irish and early Church law, grammar and poetry, this legal material reflects an oral tradition transmitted and transformed within monastic scriptoria. Notably, these jurists chose to write in Old Irish – a Goidelic Celtic language – rather than Latin, a decision paralleled only by the Anglo-Saxons who wrote in Old English.

The resulting legal texts are extraordinarily rich, and cover a wide array of social and legal topics. My current Marie Sklodowska-Curie project places these Irish laws in dialogue with contemporary post-Roman edicts from the Continent (often labeled ‘leges barbarorum’), to explore continuities and contrasts in legal thought across the early medieval West. In this talk, I will present aspects of this ongoing research and highlight the comparative potential of the Irish material in relation to developments in Francia, Lombardy, and beyond.

--Dan Ernst

A Conference for Charles Donahue

[Congratulations to Professor Donahue.  We wish we could be there!  DRE]

The Learned and Lived Law: A Celebration in Honor of Charles Donahue, May 19, 2025, Lewis 214, Harvard Law School.

Please join us for a celebration honoring Professor Charles Donahue and marking the publication of The Learned and Lived Law:  Essays in Honor of Charles Donahue.  We will have a day of presentations by chapter authors as well as a display of medieval manuscripts in the Harvard Law Library in the early afternoon.

Welcome
8:45 – 9:00 am
Interim Dean John C.P. Goldberg
Saskia Lettmaier and Elizabeth Papp Kamali

Panel 1: Roman Law
Chair: James Townshend
9:00 – 10:00 am

Charles Bartlett, Roman Property, Corporate Personhood, and the Politics of Natural Law in Medieval and Early Renaissance Italy: Venice, Baldus, and the res communes omnium

Wim Decock, “For the Sake of Mental Health and Mutual Peace”: The Transactio-Agreement in Early Modern Law and Theology

Panel 2: Medieval and Early Modern Law
Chair: Elizabeth Papp Kamali
10:15 – 12:15 pm

Samantha Kahn Herrick, Getting Ahead in a Twelfth-Century City: The Ambitious Monks of Saint-Clément, Metz

Ryan Rowberry, The Papal Constitution Execrabilis (1317) and Clerical Justices in the English Royal Courts

Elizabeth Mellyn, Suicide in Early Modern Italy

Carol Symes, The “Desire of Deeds”: On Cherishing Medieval English Charters

12:15 – 1:15 pm
Lunch available in Lewis 202

Medieval Manuscript Display
Harvard Law Library, 4th floor, Caspersen Room
1:15 – 2:15 pm
Arranged by Sarah Wharton, Historical & Special Collections
Co-Hosts: Carol Symes and Charles Bartlett

Panel 3: American Legal History
Chair: Ryan Rowberry
2:30 – 3:30 pm

Sally Hadden, Lawyers and Their Book Collections: Notes from the Eighteenth Century

Amalia Kessler, The American Importation of the Comparative Accusatorial/Inquisitorial Divide: Francis Lieber’s Failed Transplant and Its Early Twentieth-Century Resurgence

Panel 4: Literature and Legal Theory
Chair: Saskia Lettmaier
3:45-4:45 pm

Anton Chaevitch, Faust: Goethe’s Guide to Legal Progress

Bharath Palle, Wesley Hohfeld’s Modernist Imagination

Closing Reflection
Mary Elizabeth Basile Chopas, De Magistro eruditissimo et beneficentissimo

Unauthorized Migrations from Europe to the United States

New from the University of Illinois Press: Hidden Histories of Unauthorized Migrations from Europe to the United States, edited by Danielle Battisti and S. Deborah Kang:

Often depicted as the nation’s iconic legal immigrant, unauthorized European migrants are often overlooked by scholars, policymakers, and the media. This volume tells the stories of European migrants who adopted irregular migration strategies to enter and remain in the United States throughout the twentieth century. Contributors explore facets of this history with essays on migration patterns from Russia, Italy, Ireland, the Ottoman Empire, and Poland. They also offer important arguments about the treatment of unauthorized European migrants by states and societies on both sides of the Atlantic and how the reception of undocumented immigrants has been and continues to be impacted by the dynamics of racial, class, and gender constructions in the United States and abroad. As the contributors show, the reception accorded unauthorized European migrants frequently obscured and even normalized their irregular migration strategies, easing their access to American citizenship.

Revealing and insightful, Hidden Histories of Unauthorized Migrations from Europe to the United States sheds new light on our intertwined notions of race, legality, and immigration.

The contributors are Danielle Battisti, Ashley Johnson Bavery, Mary Patrice Erdmans, Polina Ermoshkina, Torsten Feys, Carly Goodman, S. Deborah Kang, E. Kyle Romero, Randa Tawil, and Joanna Wojdon.

--Dan Ernst

A New Look at Domesday Book

Stephen Baxter, Julia Crick, and C. P. Lewis have published Making Domesday: Intelligent Power in Conquered England (Oxford):

Making Domesday presents a fresh interpretation of William the Conqueror's survey of England, made possible by a major collaborative study and a new online edition of Exon Domesday, the earliest of the three original manuscripts to survive from the Domesday survey. The book addresses big questions about pre-modern government, written records, and the use of intelligence in both senses: the minds behind the planning and execution of Domesday, and the information about England that Domesday gathered. It characterizes Exon as the surviving part of the 'working papers' of one of the writing offices that over a period of ten weeks in summer 1086 dealt with all seven 'circuits' (regional groupings of shires) of the Domesday survey. The circuit offices had the task of recasting the manorial descriptions assembled in an earlier stage of the survey into an interim form intended for further redaction as Great Domesday Book by rearrangement, rewording, and abbreviation. A new deep understanding of the codicology and palaeography of Exon underpins every part of the analysis, and offers a model of documentary production for royal government at an exceptionally early period in western Europe. Part I describes and analyses each Exon text in unprecedented detail; Part II places Domesday in context and in broad comparative perspective, ranging across and beyond the Latin West. The dual approach provides a new interpretation of Domesday and a deeper understanding of both the Domesday survey and Domesday Book. It emerges that the survey was even more complex than we had dared to imagine, involving the production of different kinds of text intended to meet a range of fiscal and political needs. It is also clear that the survey was immediately effective, transforming the politics of land in a newly conquered society. Domesday has always been thought awesome, as its very name shows; Making Domesday contends that it was also a feat of intelligent government deployed by an aggressive and ambitious regime. As such it speaks to broader concerns with the colonial domination of conquered societies through the purposeful collection of systematic statistical information.

--Dan Ernst

Weekend Roundup

• Over at Nursing Clio, Kylie Smith (Emory University) brings history to bear on "RFK’s ideas about 'wellness farms' for young people." 
  

• The next online meeting of the Environment, Law, and History Global Workshop will take place on May 16 at 12 noon UTC.  Sara Limao Papa, a doctoral student at Goethe University Frankfurt, will present "The Pathways of the People: Access to Water in 18th-Century Maranhão and Bahia."  Tamar Herzog, Harvard University, will comment. (More and h/t: H-Law).

• 
   HLS's notice of A Perfect Turmoil: Walter E. Fernald and the Struggle to Care for America’s Disabled by Alex Green, a visiting fellow at the Harvard Law School Project on Disability (Harvard Law Today).

• Throughout this week, we've mentioned legal-historical works that won prizes at the recent meeting of the Organization of American Historians. Another legal history--Marie-Amélie George's Family Matters--won an Honorable Mention, for the prestigious Frederick Jackson Turner award.  For more on the book, check out the wonderful series of posts that Professor George wrote for the blog last fall. Congratulations, Professor George!
  

• Mary Ziegler, UC Davis, discusses her new book, Personhood, on the NPR show Here & Now.

• NYU Law's notice of its lateral hiring of Sarah Seo.  
  

• Linda Colley has received Princeton University's Howard T. Behrman Award for Distinguished Achievement in the Humanities.
  

• The Organization of American Historians hails its new president, Annette Gordon-Reed.

• Gerard N. Magliocca on Vice Presidential Inaugural Addresses (Green Bag).
  

• Seth Barrett Tillman's reflections on civility and the debate over Section 3 of the Fourteenth Amendment, forthcoming in the Mississippi Law Review.

• ICYMI:  Chief Justice Roberts, a Buffalo native, will help celebrate 125th anniversary of the Western District of New York.  Robert H. Jackson and John Lord O'Brian would be pleased!  (WGRZ). Originalism in a gun-control case in the Fourth Circuit (Bloomberg Law).

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

"Dangerous Democracy": Upcoming Workshop at Stanford Law School

Our legal historian friends at Stanford Law School have sent along the following announcement, about an upcoming workshop of interest:

Dangerous Democracy
May 16th, 2025
Stanford Law School Paul Brest Hall

The Dangerous Democracy workshop explores the historical tensions between law and democracy, examining how legal mechanisms have been used to undermine democratic institutions, and conversely, how political pursuits have eroded the rule of law. It challenges the conventional narrative that liberal democracy and the rule of law are inherently reinforcing, instead highlighting their more complex interconnections. Organized by the Stanford Center for Law and History (SCLH), the Sally B. and William H. Neukom Center for the Rule of Law at Stanford and EuroStorie-Centre of Excellence at the University of Helsinki, the workshop brings together scholars from multiple disciplines to better understand the contemporary crisis of liberal democracy through a historical and global lens.

For additional information and to register please visit here.

-- Karen Tani

Stern on Criminal Law, Literature, and History

Simon Stern, University of Toronto Faculty of Law, has posted Introduction: Crime and Literature, Narrative and Doctrine:

This Introduction to a special issue of the Modern Criminal Law Review+ discusses the history of criminal law as a focus within the field of Law and Literature, from the early 20th century to the present, including bibliographies anthologies, and critical studies. Work in this area once focused primarily on the depiction of crime, criminals, and criminal trials in literary narratives (“law in literature”). Over the last thirty years, scholars have moved far beyond this focus, asking more foundational and conceptual questions, such as how literature can help us understand the epistemology and analysis of evidence, the structure of the trial, the development of doctrines and concepts such as attempt and mens rea, the changing treatment of crimes such as treason and conspiracy, and the representation of intention in forensic advocacy and judicial writing. What these investigations share is a concern with literary form and modes of representation, on the one hand, and structures of legal analysis, on the other. Instead of asking how crime and criminals are portrayed in imaginative works, scholars have inquired into the conditions that make these portrayals possible. This more foundational approach has been far more productive and continues to open up new avenues for research. After reviewing these developments, the introduction turns to the contributions in this special issue by Elise Wang, Hannah Walser, Anna Schur, Abhinav Sekhri, and Daria Bayer, discussing them in relation to this recent line of scholarship. All the contributions may be found on the MCLR+ site.

--Dan Ernst

Bilder on Distinguishing Instrument and Constitution

Mary Sarah Bilder, Boston College Law School, The Character of the Constitution: Instrument and Constitution, which is forthcoming in the Yale Journal of Law and the Humanities:

What was the character of the Constitution in the framing period? Gordon Wood's Creation of the American Republic did more to interest people in that question that perhaps any other single twentieth-century book. And yet we still struggle to answer the question. In fact, we stumble over what we even mean by constitution. In this brief essay, I distinguish two words: instrument and constitution. These two words illuminate the character of the Constitution in the framing era. They were long used by the Supreme Court in interpreting the Constitution. The productive ambiguity produced by this disambiguation is a central aspect of the American system Wood praised as "political theory worthy of a prominent place" in the history of political thought.

--Dan Ernst

Dworniczak et al. on Legal Transplants

Dominik Dworniczak, Dorota Nowacka, Carolina Paulesu, Mathias Siems, and Onur Ucarer have posted The Notion of Legal Transplants Beyond the Anglosphere: Decentring the Debate:

Legal transplants are key to understanding the evolution of law in a global context. Current debates on this topic focus predominantly on publications in English. By contrast, this article explores how scholars in French, German, Italian, Polish, Spanish and Turkish language publications have discussed the idea of legal transplants. It identifies alternative terms used in these languages and examines how debates on legal transplants vary across different countries, considering historical, doctrinal, theoretical and critical perspectives. The analysis reveals that each country's legal history results in diverse approaches to legal transplants, in particular each country's role as a donor or recipient. While acknowledging some influence of Anglophone scholarship, this research thus emphasises home-grown discussions predating this literature and highlights the absence of a fully integrated transnational legal discourse. Moreover, the article advocates for a normative shift towards a more critical and cosmopolitan evaluation of legal transplants, also paying closer attention to their design ex-ante.

--Dan Ernst

Vlahoplus on Treason and the Natural Born Citizen

John Vlahoplus, a member of the bar as well as a holder of a D.Phil. from Oxford University and a J.D. from the Harvard Law School, has posted Allegiance, Treason, and the Natural Born:

Sir Edward Coke (NYPL)

This Article contributes to current debates over birthright nationality by utilizing previously overlooked authorities and showing the longstanding link between the common law rule of the natural born and the law of treason.  It demonstrates that the common law rule imposes nationality on children born in the king’s dominions regardless of whether their parents are lawfully present or have a right to remain, as Parliament confirmed more than forty years ago.  It applies the rule to the unusual cases of children born to spies, interned alien enemy civilians, prisoners of war, subjects and aliens caught in enemy occupied territory, and outlaws.  Finally, it explains the rule’s continuing application in U.S. constitutional law.  The Fourteenth Amendment does not occupy the field.

The Article sets out the two formulations of the common law rule found in Coke’s report of the 1608 English decision in Calvin’s Case.  The first involves the king’s relationship with the child:  any child born in the king’s dominions under his power and protection is natural born.  The second involves the king’s relationship with the child’s parents:  any child born in the dominions to parents owing ligeance to the king is natural born.  Although Coke’s report cites the filial version of the rule as the ground for the decision in Calvin’s Case, both reach the same result in the unusual cases—as they should, given that they appear together in Coke’s report.

The Article then shows the historic connection of the common law rule with the law of treason.  The same obligations of ligeance that make children natural born also make one liable for treason, including treason liability for transitory sojourning aliens and alien enemies other than invaders.  The Article documents parallels in U.S. constitutional law, including the constitutional law of treason, and critiques contemporary interpretations by James C. Ho, John C. Eastman, Randy E. Barnett, and Ilan Wurman.

The Article also examines the United Kingdom’s abrogation of the common law rule and its implications for U.S. nationality law.  Three hundred seventy-five years after Calvin’s Case, Parliament confirmed that the common law rule applies regardless of parents’ legal status and then radically changed the law, restricting citizenship by birth to children having either a citizen parent or a parent who is lawfully present and ordinarily resident without any legal restriction on how long they can remain.

Some assert that the use of the term “subject to the jurisdiction” in the Citizenship Clause of the Fourteenth Amendment abrogated the common law rule in the United States by imposing the very same restrictions that Parliament did more than one hundred years later.  That is shockingly anachronistic and unconvincing.  Absent a new amendment, the common law rule will continue to inform the constitutional law of U.S. nationality without regard to parents’ legal status.

--Dan Ernst

Dearborn on the Unitary Executive and Civil Rights during the Reagan Administration

John A. Dearborn, Vanderbilt University, has published, open access, Contesting the Reach of the Rights Revolution: The Reagan Administration and the Unitary Executive in Studies in American Political Development:

Today, two touchstones of the conservative legal movement are support for the unitary executive theory and skepticism of affirmative action policies. This article reveals a connection between these two positions, demonstrating how policy disputes over civil rights contributed to conservative efforts to increase and legitimize presidential control over the bureaucracy through the controversial claim that the president possesses the whole executive power under Article II. Specifically, I examine two intertwined controversies from 1983, which pit the Reagan White House and Department of Justice (DOJ) against the Equal Employment Opportunity Commission (EEOC) and U.S. Commission on Civil Rights (USCCR), two agencies that Reagan officials viewed as obstacles to pursuing its preferred civil rights agenda. Conflicts between the DOJ and EEOC led the administration to deploy the unitary executive theory to help centralize control over its civil rights litigation strategy, while clashes with the USCCR spurred the administration to assert the theory's tenets amid battles over that agency's reauthorization. While these episodes yielded mixed political and legal outcomes, the early articulations of the unitary executive theory that emerged helped to elaborate and advance a controversial constitutional doctrine about presidential power that has become increasingly consequential over time.

--Dan Ernst

OAH Binkley-Stephenson Award to Zipf

At its annual meeting in April, the Organization of American Historians awarded the Binkley-Stephenson Award (for "the best article that appeared in the Journal of American History during the preceding calendar year") to Karen L. Zipf (East Carolina University) for "Exposing the Masculinist Narrative in Federal Antislavery Law: A History of U.S. v. Tony Booker (1980)," Journal of American History, 110 (March 2024), 689–714. The citation:

“Exposing the Masculinist Narrative in Federal Antislavery Law: A History of US. V. Tony Booker (1980),” by Karen Zipf (East Carolina University), is a deeply researched and compelling contribution to modern slavery studies, showing that lawyers in the Civil Rights Division of the Department of Justice were trying to apply a gendered lens to U.S. antislavery law. Zipf highlights a missed opportunity to unite antislavery law and anti–sex trafficking law because judges could not overcome their “masculinist” reading of slavery as male, and sex trafficking as female. The lawyers in U.S. v. Tony Booker, the case at this heart of this article, worked hard to show that labor contractors tried to create a “climate of fear” by threatening sexual assault, debt bondage, violence, and death to keep farm workers in bondage. Despite the work of feminist theorists and legal analysts to apply gendered analysis to the language of the Thirteenth Amendment, it was not until the 1990s and later that courts began to recognize sexual violence as an essential component of involuntary labor. Well-grounded in Black feminist theory, legal history, and slavery history, Zipf’s essay will be foundational for scholars assessing slavery after emancipation.

Congratulations to Professor Zipf!

-- Karen Tani 

OAH John D’Emilio LGBTQ History Dissertation Award to Olmstead

At its annual meeting in April, the Organization of American Historians awarded the John D’Emilio LGBTQ History Dissertation Award ("given annually for the best PhD dissertation in U.S. LGBTQ
history") to Shay Olmstead (Rochester Institute of Technology) for "‘Refuse to Run Away’: Transsexual Workers Fight for Civil Rights, 1969–1992," University of Massachusetts Amherst, 2024. The citation:

In this timely, innovative, and thoughtfully structured dissertation, Shay Olmstead explores how trans workers harnessed both civil rights and disability law to confront antitrans employment discrimination in the United States from the late 1960s through the early 1990s. Olmstead spotlights the experiences of over thirty claimants who privileged narrow, individual legal action over collective, grassroots organizing and consciously worked to distinguish themselves from others in LGBTQ+ communities. These trans claimants petitioned elected officials, the courts, and various government agencies at the federal, state, and local levels to define amorphous legal concepts such as “sex” and “disability,” albeit in “trans-exclusionary ways” that also authorized “the mistreatment of some gay, intersex, and gender-nonconforming cissexual workers.” Olmstead’s dissertation therefore recasts both queer labor and legal history while also intervening in the fields of disability history and studies. The dissertation ultimately offers a cautionary tale with profound implications for our present moment of rampant (legal and extralegal) discrimination. 

Congratulations to Professor Olmstead!

-- Karen Tani

Erkkilä and Gries on Popularizing GDR's Lower Courts

Ville Erkkilä and Luisa Gries have published “The Problem Can Be Solved Only by Those Imbued with a Socialist Sense of Justice!”: Social Conflict and the Lower Courts in the German Democratic Republic open access in Law and History Review:

The article concentrates on the massive project of popularizing the court system and penal practice in the GDR in the 1960s. From then on, the GDR transferred a considerable amount of jurisdiction to collectives, which were further assigned the task of adjudicating “close to the people” within and alongside the existing legal system. We will analyze how the government with this project managed to translate the ideological task of sanctioning the inner-state enemy into existing legal concepts, and how it used law as a means to advance its political aims. By focusing on the judicialization of politics in the GDR, the article examines the legal history of the GDR as an important example in the broader and pressing phenomenon of the relationship between law and authoritarian politics.

--Dan Ernst

Gómez-Arostegui on the Universal Injunction and English Chancery Cases

Tomás Gómez-Arostegui, Lewis & Clark Law School, has posted Universal Injunctions and Attorney General v. Vernon (Ch. 1684-1685/6):

On May 15, 2025, the Supreme Court will hear oral argument in a trio of cases on the emergency docket. Although the cases all concern birthright citizenship, the United States has asked the Court to address a single issue: whether universal injunctions are lawful as a general matter. A universal injunction protects persons that a defendant will allegedly harm, but who are not plaintiffs in the suit.

English legal history could play a major role. Several Justices have recently signaled that they will adhere to a line of decisions from the Court in which it ruled that federal courts can only employ equitable remedies that were known to the English Court of Chancery in 1789. Thus, a central issue before the Court this month might be whether the English Court of Chancery in 1789 could issue something akin to a universal injunction.

In this essay, I first lament the lack of primary research in the briefing. Unfortunately, no one to my knowledge has dived deeply into the Chancery cases before 1789. Thus far, scholars have cited only a handful of printed reports from the period, and no one has explored the countless unpublished suits that survive in the records of the National Archives. Indeed, I do not believe any scholar has cited even a single actual order or decree from the Chancery's official records.

Second, I address a 17th-century Chancery case that some might believe supports non-party protective relief in equity. To show it does not, I review all the records in the case, including manuscripts from the Court of Chancery and elsewhere.

Lastly, I conclude with some thoughts on how the Court should proceed, particularly given how little 18th-century work has been done on universal injunctions thus far.

--Dan Ernst

OAH Nickliss Prize to Gomez, "Picture Bride, War Bride"

At its annual meeting in April, the Organization of American Historians awarded the Mary Nickliss Prize in U.S. Women’s and/or Gender History ("given annually for the most original book in U.S. women’s and/or gender history") to Sonia C. Gomez (Santa Clara University) for Picture Bride, War Bride: The Role of Marriage in Shaping Japanese America (New York University Press). The citation:

Picture Bride, War Bride is an understated yet powerful new take on the gendered politics of immigration, racial formation, and interethnic relationships. Looking at the immigration of Japanese brides, the book analyzes the role of marriage in producing a dialectic of exclusion and “differential inclusion” in federal immigration laws, from the Gentlemen’s Agreement of 1908 to the Hart-Cellar Act of 1965. Sonia Gomez persuasively argues that compulsory heterosexual marriage enabled Japanese wives to achieve degrees of inclusion in U.S. society.

This graceful and wide-ranging book spans periods, geographies, and gendered identities, deftly linking national and international governance, politics and war, to intimate details of Japanese and American lives. Impressively researched, this compassionately written account of Issei bachelors, Japanese wives, and wartime interracial relationships reveals the dynamic role that gender and family played in the deployment of cultural difference and attitudes toward assimilation. Finally, this boo realizes the long stated but rarely attained goal of using gender as a category of analysis: it tacks between women’s and men’s experiences and the intersecting impact of masculine and feminine ideations. 

To the literature on “war brides,” Gomez contributes three original narratives. First, marriages between Japanese women and U.S. servicemen transformed postwar immigration laws. Second, African American GIs who fought to marry Japanese women pushed civil rights organizations to challenge antimiscegenation laws. Finally, these marriages changed the postwar racial landscape by troubling, even eliding, the Black/white binary. “War brides” navigated layers of white supremacy, interethnic tensions within communities of color, and a legal regime structured to privilege heterosexual masculinity. Much more than a community study, Picture Bride, War Bride presents a fresh, multiethnic narrative of gender, race, sexuality, law, politics, and culture in the twentieth-century United States.

Congratulations to Professor Gomez!

-- Karen Tani

Stern on the English Roots of Notice-and-Comment Rulemaking

Just out in the Yale Law Journal: The Lost English Roots of Notice-and-Comment Rulemaking, by Rephael G. Stern, who currently is the Raoul Berger-Mark DeWolfe Howe Fellow in Legal History at the Harvard Law School and will be joining the Boston University law faculty this summer.  Here is the abstract:

Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking.

These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth and early twentieth

centuries. In the New Deal Era, influential American reformers tracked important developments in English rulemaking as they grappled with the rapidly changing American legal ecosystem. Yet, as this Article emphasizes, Americans only partially adopted the English procedural framework.

While they transplanted the “notice” and “comment” dimensions of English procedure, the Americans ultimately decided not to import a legislative veto, which was a critical part of rulemaking procedures in England.

By offering a revisionist account of the origins of notice-and-comment rulemaking, this Article makes two contributions. First, it takes an initial step toward recovering a largely forgotten world of Anglo-American administrative law. Second, it illuminates current debates about the legitimacy of notice-and-comment rulemaking. With many current critiques of notice-and-comment rulemaking centering on the procedure’s supposed lack of democratic accountability, the history this Article traces pushes us to ask whether belatedly transplanting an English-style legislative veto would legitimate the procedure.

--Dan Ernst

Bolden's "Soul of the Court"

Tonya Bolden has published Soul of the Court: The Trailblazing Life of Judge William Benson Bryant Sr., which appears in the Margaret Walker Alexander Series in African American Studies of the University Press of Mississippi:

Legal legend Judge Louis F. Oberdorfer once stated that there were “only two people in the world who really understood the Constitution” and its impact on American lives. One was Hugo Black, deceased Supreme Court justice. The other was William Benson Bryant Sr. (1911–2005), who in the early 1950s became the first Black assistant US attorney to try cases in Washington, DC’s federal court, and became that same court’s first Black chief judge in 1977. Written by award-winning author Tonya Bolden, Soul of the Court: The Trailblazing Life of Judge William Benson Bryant Sr. presents the story of Bryant’s remarkable, pioneering life in the law—one that began in a segregated DC and included many years as an extraordinary criminal defense attorney, most notably as the dogged defender of Andrew Mallory, a young poor Black man sentenced to the electric chair for the 1954 rape of a white woman. Bryant fought for Mallory’s life all the way to the US Supreme Court, chiefly on the grounds that Mallory’s confession—the most damning evidence against him—was the fruit of an illegal detention. The High Court overturned Mallory’s conviction. Mallory v. United States was among the cases that culminated in the landmark 1966 Miranda rule.

Appointed to federal judicial service by Lyndon B. Johnson in 1965, Bryant’s forty-year tenure included cases ranging from overturning a corrupted election of the United Mine Workers and unconstitutional conditions at the DC jail. The biography draws upon an array of documents, newspaper articles, and interviews with the judge’s friends, colleagues, and family members, as well as oral histories, including Judge Bryant’s. Bolden beautifully narrates the story of a life of compassion, unparalleled integrity, and unwavering belief in the dignity of every human being.

--Dan Ernst

OAH Award for Contributions to Public Policy to Kang

At its annual meeting in April, the Organization of American Historians awarded the Award for Contributions to Public Policy ("recognizing significant contributions to U.S. public policy through historical research") to S. Deborah Kang (University of Virginia). The citation:

S. Deborah Kang is a leading scholar of border enforcement whose work brings important
insights to both law and policy. Her book The INS on the Line: Making Immigration Law on the U.S.-Mexico Border, 1917-1954 (2017) has informed affidavits and amicus briefs that seek to illuminate how past immigration laws and policies have impacted the lives of countless individuals both in the past and present day. Her award-winning book, The INS on the Line, provides the starting point for her policy work. Her affidavits and amicus briefs are detailed and scholarly and deeply historical works that seek to show that “in the long term, the agency’s repeated exercise of its administrative discretion resulted in the creation of a broad and distinctive set of policies, pertaining to admissions, deportation, and enforcement, for the border region.” Kang’s extensive efforts to make immigration policy more humane and equitable are an exemplary example of the type of contributions to and ongoing obligations the historical profession has in helping to create public policy that is more firmly grounded in sound history.

Congratulations to Professor Kang!

-- Karen Tani 

ASLH Wallace Johnson First Book Program

 Via the American Society for Legal History, we have the following announcement: 

The biennial Wallace Johnson Program for First Book Authors provides advice and support to scholars working toward the publication of first books in legal history, broadly defined. In conversation with peers and with the advice of senior scholars, participants develop and revise book proposals and sample chapters, as well as meeting with guest editors to learn about approaching and working with publishers.

The Johnson Program is open to early career, pre-tenure scholars, publishing in English, who have completed PhDs, JDs, or equivalent degrees. Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are applicants who may not (yet) identify as legal historians. The Program provides substantial travel and accommodation funding to support attendance at Program meetings.

Admission to the Wallace Johnson program is biennial. The next cohort will be selected in summer 2025, and the call for applications for the program can be found below.

The program includes the following elements:

• Fall 2025 (November 13, 2025): in-person, one-day, pre-conference workshop at the ASLH Annual Meeting (Detroit, MI), introduction to book publishing and proposal writing;
• Spring 2026 (date TBD): remote meeting, feedback from program leader and peers on draft book proposal;
• Summer 2026 (date TBD): in-person, two-day workshop on draft chapters at the American Bar Foundation (Chicago, IL); and
• Fall 2026 (date TBD): in-person, half-day, pre-conference workshop at the ASLH Annual Meeting (Location TBD).

The 2025-26 Johnson Program will be led by Professor Christopher Schmidt, with the participation of other senior legal historians.

Up to 5 Fellows will be selected. Fellows must commit to participation in all elements of the program. Each will receive substantial funding for travel and accommodation related to the program, with a small supplement to participants who do not have institutional support for travel and research.

The application deadline is June 27, 2025. Applicants should submit items 1-3 as a single pdf document, Times New Roman, 12-point font, with your full name in a header on each page. All materials should be submitted to Sam Erman (samerman@umich.edu) by June 27, 2025.

Read on here.

-- Karen Tani