Bainbridge on NY's Act to Encourage Privateering

Stephen M. Bainbridge, UCLA School of Law, has posted The Law and Economics of An Act to Encourage Privateering Associations:

New York Colonial Privateers (NYPL)

This article examines New York's 1814 Act to Encourage Privateering Associations, the second general incorporation statute in U.S. history and a unique example of early industrial policy designed to facilitate private maritime warfare. The article situates the 1814 Act within the broader context of the War of 1812, examining the costs, risks, and organizational challenges that made both the privateering business and incorporation of that business attractive to potential investors. This early experiment in using incorporation to advance public policy objectives through private initiative offers valuable insights into both the historical development of American corporate law and the relationship between legal innovation and economic development in the early Republic.

Through detailed analysis of the Act's provisions and historical context, this study advances three principal arguments. First, it demonstrates that early general incorporation statutes functioned as deliberate instruments of industrial policy rather than neutral procedural mechanisms, with the 1814 Act representing a novel state effort to harness private capital for national defense. Second, it provides insight into the contested evolution of essential corporate attributes by analyzing which features of the modern corporation the Act provided and which it omitted, contributing to ongoing scholarly debates about the truly indispensable characteristics of the corporate form. The statute's design reveals contemporary understanding of how corporate privileges could encourage high-risk entrepreneurial ventures by providing limited liability, centralized management, and rudimentary asset partitioning. Third, it offers a case study of how economic necessity can drive the functional development of corporate features—particularly asset partitioning and limited liability—even when formal legal architecture remains incomplete.

Professor Bainbridge discusses the paper in this blog post.

–Dan Ernst

ICS Seminar: Constitutional Controversies

[We are moving up this post, because the August 30 deadline is one month away.  DRE]

The Institute for Constitutional Studies is pleased to announce another seminar for advanced graduate students and junior faculty: Constitutional Controversies: A Historical Survey.  

This seven-session seminar looks at constitutional controversies from a historical perspective. Guided by legal historians, we will explore disputes and debates over “rights” driving modern-day politics. Americans frequently turn to the courts – and to the Constitution – to resolve their political, social, and ideological disagreements about issues like privacy, equality, abortion, gun control, property rights, religion, etc. Yet, this is hardly a new phenomenon. Disputes about the interpretation and applicability of the Constitution have been central throughout our nation’s history. Since the Philadelphia Convention, constitutional controversies have defined persons included (or not) among “We the People” and rights included (or not) among “the Blessings of Liberty.” This discussion-based reading group will proceed chronologically through a series of “constitutional moments.” Among the historical controversies to be covered are the origins of the Constitution and the Bill of Rights, judicial review, slavery, the Reconstruction Amendments, free speech, desegregation, affirmative action, and voting rights. We will also consider the role that “history” and “tradition” have played in recent judicial decisions involving abortion, gun rights, and presidential immunity.

 Instructors

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

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

Logistics

Monday evenings, 6-8 pm, September 8, 15, 29; October 6, 13, 20 and 27, 2025.  The seminar will meet at The George Washington University Law School, 2000 H Street NW, Washington, DC 20052. The classroom is Burns 415.

 Application Process

The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities. Space is limited, so applicants should send a copy of their curriculum vitae and a short statement on how this seminar will be useful to them in their research, teaching, or professional development. Materials will be accepted only by email at icsgw@law.gwu.edu until August 30, 2025. Successful applicants will be notified soon thereafter. For further information, please contact Maeva Marcus at maevamarcus@law.gwu.edu.

Additional Information

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

About ICS

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

Drake on Rerum Novarum

Janine Giordano Drake, Indiana University, has published What Rerum Novarum Did and Did Not Do for the American Labor Movement, 1891-1935 Revisiting Religion in the Struggle for Workplace Justice in the St. Louis University Law Journal:

Pope Leo XIII (LC)

The papal encyclical Rerum Novarum (1891), a statement which defended workers' human rights, has been celebrated by both leftwing and rightwing Christians as a central document in the history of the Church. To trade union leaders of the late nineteenth and twentieth centuries, it was a powerful tool for reminding workers that the Holy Father supported fair wages and healthy working conditions for all God's people. Just the same, for business leaders of the several Red Scares (especially 1917-1920 and 1945-1955), it became a powerful tool in discrediting socialist demands as both “materialistic” and “atheistic.” This piece illustrates that while Rerum Novarum has been very helpful in catalyzing the public recognition of trade unions in the United States, its rejection of “socialism” is also partially responsible for the challenges workers have faced in expanding the power of labor to set the terms of industrial justice outside the workplace.

--Dan Ernst 

Boes on Antivaccination and American Antistatism

Julia Bowes, University of Melbourne, has published “Another Human Sacrifice Thrown to the Pitiless Moloch of Police Power”: The Anti-Vaccination Movement, Parental Rights, and the Roots of American Anti-Statism, 1890–1917, in Law and History Review:

This article revisits the roots of anti-statism in the United States by analyzing opposition to the introduction of compulsory school vaccination and medical examinations at the local and state levels in the Progressive Era. It shows that the widespread use of compulsory schooling laws to promote vaccination in the late nineteenth century, which led to establishing compulsory school medical exams and school nurse programs in the early twentieth, precipitated intense conflicts over states’ police powers. Exploring the controversy over school vaccine requirements in Utah between 1899 and 1901, the article reveals that resistance to public health interventions in schools fused skepticism of science with a gendered defense of individual and parental rights to challenge states’ power over children. The article then traces how these conflicts filtered up to the federal level, framing arguments against a proposed federal department of health in the 1910s. Led by the National League for Medical Freedom, opponents directly linked the reach of the police powers via compulsory school health initiatives with the expansion of federal power, arguing they were connected in a plot to establish “state medicine” that imperiled the gendered freedom of the “individual”—i.e., the white male citizen—over the home.

--Dan Ernst 

Jarvis's "Neglected Amendments"

Robert M. Jarvis has published The Neglected Amendments of the U.S. Constitution: Text, History, and Interpretation (Carolina Academic Press):

Although the U.S. Constitution has twenty-seven amendments, most law students graduate having studied only the twelve "big" amendments: First (freedom of association, press, religion, and speech); Second (right to bear arms); Fourth (protection from unreasonable searches and seizures); Fifth (due process); Sixth (right to counsel); Seventh (trial by jury); Eighth (banning cruel and unusual punishments); Tenth (unenumerated powers); Eleventh (state immunity from federal lawsuits); and the Reconstruction Amendments (Thirteenth, Fourteenth, and Fifteenth), which were passed to protect the country's newly freed slaves.

This book is designed to fill the gap left by other constitutional law casebooks. It examines the following fifteen "neglected" amendments: Third (quartering of troops); Ninth (unenumerated rights); Twelfth (Electoral College); Sixteenth (income tax); Seventeenth (direct election of U.S. senators); Eighteenth (outlawing liquor); Nineteenth (giving women the vote); Twentieth (presidential and Congressional terms); Twenty-First (repealing the Eighteenth Amendment); Twenty-Second (limiting presidents to two terms); Twenty-Third (District of Columbia voting rights); Twenty-Fourth (poll taxes); Twenty-Fifth (presidential disability and succession); Twenty-Sixth (lowering the voting age to eighteen); and Twenty-Seventh (Congressional pay raises). It also discusses the six unratified amendments as well as the thousands of proposed amendments that, for one reason or another, have never made it out of Congress.

There is much to be gained from studying the neglected amendments. Far from merely occupying their own orbits in the Constitutional constellation, they often have been relied on by courts interpreting the big amendments. They also shine a light on our country's history; help chart its development from a small, agrarian society to a modern, industrial nation; and illustrate how much America's view of itself has changed since the Constitution's ratification in 1789.

--Dan Ernst.  TOC here.

Chalmers on Colonialism and the Law

Shane Chalmers, University of Hong Kong Faculty of Law, has posted Colonialism and Law, which appears in Elgar Encyclopedia of Comparative Law, ed. Jan Smits, Jaakko Husa, Madalena Narciso, and Catherine Valcke (Edward Elgar, 2023):

This entry offers an overview of the field of 'colonialism and law'. It begins with the field's origins in the 1980s, the emergence of anthropology and history scholarship exploring the role of law in European colonisation, along with a parallel set of political and literary studies foregrounding the violence of colonisation and the possibilities of decolonisation. The entry then outlines some of the major thematic movements of this dynamic field from the 1990s through to the 2020s, with an eye to the future. This includes studies of law as an instrument (of colonial and anti-colonial processes); of law as produced (by colonisation) and as productive (of colonial forms of authority, subjectivity and relations); of law as a site (for colonial struggles, transformations and movements) and as an imaginary (implicated in Orientalisms, old and new); of law as a gift (from Civilisation to Development) and as a measure (of such 'achievements'). 

--Dan Ernst 

Malka on Witness and Judging in Antiquity

New online from Law and History Review: Witnesses, Judges: A Revolution Untold, by Orit Malka, Hebrew University:

Witness testimony in a judicial setting is commonly viewed as a form of evidence—a means
to inform a judicial body of relevant facts in a given case. In this perspective, witnesses are merely instrumental to the process of adjudication. While this viewpoint provides a useful account of how we think of witness testimony in courts today, it is ill-suited to the way witnesses and their role were perceived in the ancient world. Drawing on a cross-cultural analysis of ancient and late antique texts, the article recovers a different perception of the role of witnesses that once prevailed in the societies that gave rise to Western civilization. According to this alternate view, witnesses were not seen as passive providers of information but rather as active agents with the power to adjudicate—a role that we would now associate with judges. The article offers a new conceptualization of this historical transformation, outlining two paradigms that can help us critically examine the implied assumptions about the role of witnesses in adjudication: “the instrumental paradigm,” which is dominant in contemporary thought, and “the authoritative paradigm,” emerging from ancient texts, wherein witnesses held a far more authoritative role than the contemporary understanding suggest. The study argues that the instrumental paradigm reflects a radical transformation in the meanings of testimony and witness as legal concepts—a shift that marks an unexamined revolution in the history of legal thought.

--Dan Ernst

Weekend Roundup

• The University of Wisconsin Law School’s State Democracy Research Initiative (SDRI) has put together an amazing resource on state constitutions, the 50 Constitutions project, which it continues to update. Of particular interest: the "Tracking Constitutional Change" feature. This feature "allow[s] users to see how [constitutions] have taken shape over time and to learn about important historical moments." Nine states so far "have full Tracking Constitutional Change capabilities," including the just-added Pennsylvania. SDRI reports that "[m]ore states will be added in the coming year."   

• Katrina Jagodinsky, University of Nebraska-Lincoln, will present in the Monday Seminar of the Department of History of Johns Hopkins University on September 22, from 3:00 pm – 4:30 pm. 

• 

  Children Gathering Wildflowers above Trondhjem (LC)

  Elin Hofverberg on "110 Years of the Norwegian Castbergian Child Laws" (In Custodia Legis).
  

• Zachary S. Price, UC San Francisco Law, on “Trumpian Impoundments in Historical Perspective” (SLR).

• "Durham Cathedral has unveiled a new exhibition featuring three versions of Magna Carta, the historical charter that first established the Rule of Law"  (Palatinate). 

• The historian of administrative state Joy Milligan has moved from Virginia Law to UC Berkeley Law (UC Berkeley Law). 

• Justice Stephen Breyer, Tomiko Brown-Nagin, and Michael Klarman on taking the bar--or not (Harvard Law Today). 

• Thanks to Liz Sepper (UT-Austin), the talk of law professor Bluesky is the painting "Supreme Court Beach." Jay Willis at "Balls & Strikes" did a deep dive on the painting's history -- including which former Justice owns the original. [KMT] 

• The latest "SCOTUS Scoop" from the Supreme Court Historical Society is Still at Work: How the Justices Spend Their Summer Months.  But we thought they were at the beach!

• For over 30 years, Daytonites "have put on a play every July using the trial transcript" form the Scope Monkey Trial.  "Destiny in Dayton" explains "the complexities of the town captured by history" (Akron Legal News).  Also, the ABAJ looks "back at the Scopes trial 100 years later." 

• Upcoming book talks in the America's Town Hall series of the National Constitution Center include Akhil Reed Amar on Born Equal: Remaking America’s Constitution, 1840–1920 (September 16) and Eric Foner on Our Fragile Freedoms (September 24).  

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

SHEAR Book Prize to LaCroix for "The Interbellum Constitution"

Via Bluesky, the Society for Historians of the Early American Republic (SHEAR) announced the prize winners from this year's annual meeting. 

The SHEAR Book Prize ("awarded to the book that makes the best primary scholarly contribution to the history of the early American republic") went to Alison L. LaCroix (University of Chicago) for The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press).

Congratulations to Professor LaCroix!  

-- Karen Tani 

 

SHEAR James H. Broussard Best First Book Prize to Gronningsater for "The Rising Generation"

Via Bluesky, the Society for Historians of the Early American Republic (SHEAR) announced the prize winners from this year's annual meeting. 

The James H. Broussard Best First Book Prize ("awarded annually to the best 'first book' by a new author published in the previous calendar year and dealing with any aspect of the history of the early American republic") went to Sarah L. H. Gronningsater (University of Pennsylvania) for The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom (Penn Press).

Congratulations to Prof. Gronningsater!

-- Karen Tani  

Herz's "God and the Bueaucrat"

Zachary Herz, University of Colorado, Boulder, has published The God and the Bureaucrat
Roman Law, Imperial Sovereignty, and Other Stories (Cambridge University Press):

Why is Roman law so boring? In this book, Zachary Herz argues that the bureaucratic, positivistic world of Roman law is not a distraction from the violent autocracy of the Roman empire, but an imagined escape. Lawyers, bureaucrats, and even emperors used legal writing to think about worlds that were safer or fairer than the one in which they lived. This archive of political imagination slowly became a law-code, and now guides readers through a legal system about which its authors could only dream. From Augustus to Justinian, this book shows how law symbolized order in chaotic times, and how that symbol eventually took on a life of its own. From the enlightened judgements of Hadrian to the great jurists and child rulers of Severan Rome, Herz reveals what Romans were really talking about when they talked about law.  

--Dan Ernst.  TOC after the jump.

Re on the Warren Court (and Today's)

Richard M. Re, Harvard Law School, has posted To a Conservative Warren Court, a draft of his Foreword to the HLR issue on the Supreme Court:

Ideological conflict has masked an underlying continuity in the American legal system. In recent years, the Supreme Court -- while obviously subject to fierce criticism -- has been doing its part to preserve the rule of law, as distinct from partisan politics. That was true in the Warren Court era and remains true today. 

--Dan Ernst 

At the Brennan Center: The Rise of the Imperial Presidency

[The Brennan Center for Justice has announced the virtual event, The Rise of the Imperial Presidency, to take place on August 5, from 3–4 p.m. ET.  DRE]

The executive branch has amassed tremendous power, challenging the constitutional balance among branches of government. This year alone, the president has ignored the laws passed by Congress to fire leaders of independent agencies without cause, freeze the spending of appropriated funds, and deploy the military as a domestic police force.

Supporters of vast presidential power have a name for this: the unitary executive. It’s the idea that the Constitution gives the president full personal control over the executive branch and wide latitude to act unilaterally. While legal scholars debate its scope, the theory in its most expansive form envisions a king-like president largely unconstrained by Congress or the courts. An embrace of this theory by the executive branch and Supreme Court could carry far-reaching consequences for American democracy. 

Join us for a virtual event on Tuesday, August 5, at 3 p.m. ET with historians and legal experts. They will examine the modern presidency, the origins of the unitary executive theory, and its implications for the future of checks and balances. 

Speakers:

Samuel Breidbart, Counsel, Brennan Center Democracy Program
Jane Manners, Associate Professor of Law, Fordham University School of Law
Julian Davis Mortenson, James G. Phillipp Professor of Law, University of Michigan Law School
Cristina Rodríguez, Deputy Dean and Leighton Homer Surbeck Professor of Law, Yale Law School
Moderator: Wilfred U. Codrington III, Walter Floersheimer Professor of Constitutional Law, Benjamin N. Cardozo School of Law

Note, "When Rational Basis Review Bit"

The Harvard Law Review has published a student Note of interest: "When Rational Basis Review Bit." Here's an excerpt from the introduction (footnotes omitted):

Like many widows, Sandy Meadows faced economic uncertainty after her husband passed away.  She, however, had a knack for arranging flowers and found a job in the floral department of her local Albertsons grocery store. Sandy excelled, earned a promotion, and effectively ran the entire department.³ But then the Louisiana Horticulture Commission came knocking.  The Commission informed the store that it had to hire a licensed florist or shut down the department.

Louisiana is the only state in the Union that imposes occupational licensing requirements on florists. Prior to reforms in 2024, getting licensed was no small task. Would-be florists were required to pass a notoriously difficult exam — fewer than fifty percent made the cut. Sandy failed this exam five times, but it wasn’t because her floral skills were lacking; her job performance was exemplary.  She failed because currently licensed florists decided who passed and who failed. Fox, meet henhouse.

Sandy’s story doesn’t have a happy ending. When she couldn’t get a license, Albertsons fired her and replaced her with a licensed florist. She couldn’t afford a phone or car, and the power company eventually shut off the electricity to her home. Shortly thereafter, Sandy died in poverty, alone.

Before her death, Sandy — along with a few other aspiring florists — challenged Louisiana’s licensing scheme with the help of attorney Clark Neily, who recounts Sandy’s story in his book Terms of Engagement. They lost, felled by a familiar foe in constitutional adjudication: rational basis review. No matter that the women had a constitutional right to pursue their chosen profession or that even a Supreme Court Justice has recognized that rational basis review is “tantamount to no review at all.”  Because Louisiana presented conceivable justifications for its licensing scheme, the court upheld the regulations. And Sandy’s livelihood vanished.

Rational basis review wasn’t always this farcical. For about twenty years, between the Court’s decisions in United States v. Carolene Products Co. — which established rational basis review — and Williamson v. Lee Optical of Oklahoma, Inc. — which redefined rational basis review as a hyper-deferential standard — the courts applied a meaningful means-end scrutiny to restrictions on economic activity that gave legislatures wide latitude to exercise their police power while protecting a baseline level of economic liberty. (This Note refers to that time period as the Carolene Products era.) That blend of interrogation and deference was the right approach. Many scholars have called on courts to give economic rights their due; this Note offers a proven mechanism for doing so: reviving the Carolene Products–era approach to rational basis review.

Read on here. (Hat tip: Melissa Murray, via Strict Scrutiny)

For more on the history of rational basis review, focusing on a different period, see Katie Eyer's Constitutional Crossroads and the Canon of Rational Basis Review, 48 U.C. Davis L. Rev. 527 (2014) (arguing that "the dominant modern understanding of the Court’s minimum tier (rational basis) review — as a shallow and empty form of review, devoid of meaningful scrutiny — is, to some extent, a byproduct of our loss of historical memory"). 

-- Karen Tani 

Concepcion on the First American Law Libraries

Cattleya M. Concepcion, Georgetown University Law Library, has posted The First American Law Libraries, which is forthcoming in the Green Bag Almanac and Reader:

A brief history and bibliography of the first American law libraries, including lawyers’ personal law libraries, bar association or membership law libraries, county law libraries, state law libraries, court law libraries, federal law libraries, law school libraries, law firm libraries, and prison law libraries. 

--Dan Ernst 

McKoski's "Lincoln's Favorite Judge"

Raymond J. McKoski, a retired Illinois Circuit Judge and adjunct professor at the University of Illinois Chicago School of Law, has published David Davis, Abraham Lincoln's Favorite Judge (University of Illinois Press):

One of Abraham Lincoln’s staunchest and most effective allies, Judge David Davis masterminded the floor fight that gave Lincoln the presidential nomination at the 1860 Republican National Convention. This history-changing event emerged from a long friendship between the two men. It also altered the course of Davis’s career, as Lincoln named him to the U.S. Supreme Court in 1862.

Raymond J. McKoski offers a biography of Davis’s public life, his impact on the presidency and judiciary, and his personal, professional, and political relationships with Lincoln. Davis lent his vast network of connections, organizational and leadership abilities, and personal persuasiveness to help Lincoln’s political rise. When Davis became a judge, he honed an ability to hear each case with complete impartiality, a practice that endeared him to Lincoln but one day put him at odds with the president over important Civil War–era rulings. McKoski details these cases while providing an in-depth account of Davis’s role in Lincoln’s two unsuccessful campaigns for U.S. Senate and the fateful run for the presidency.

The introduction and more are here.

--Dan Ernst 

Sachs and Baude on the Originalist Founders

To continue today's theme of response to Jonathan Gienapp's Against Constitutional Originalism: Stephen E. Sachs, Harvard Law School, and William Baude, University of Chicago Law School, have posted Yes, The Founders Were Originalists, which is forthcoming in the Yale Journal of Law & the Humanities:

Jonathan Gienapp's Against Constitutional Originalism accuses originalism of a kind of self-defeat, arguing that the Founders weren’t really originalists. But like Jefferson Powell’s similar argument forty years ago, which encouraged a shift from original intent to original meaning, Gienapp’s work may only help along a similar shift, this time from original meaning to our original law. 

Gienapp makes four main claims: that the Founders’ Constitution wasn’t conventional law; that the Founders couldn’t agree on how to read it; that much of their fundamental law was unwritten; and that no originalist theory can account for this. As we argue, the first claim is bunk; the second overstated; the third true, but no problem for originalism; and the fourth a theoretical claim that the book’s history utterly fails to defend. The Constitution was indeed law, understood as such by its contemporaries, and coexisting with other bodies of law in ways that originalists routinely respect. Far from proving the case against originalism, Against Constitutional Originalism only strengthens the case for originalism, done well. 

--Dan Ernst 

Lawson on Whether Originalism Needs History

Gary Lawson, University of Florida Levin College of Law, has posted Does Good Originalism Need Good History? which is forthcoming in the Florida Law Review.  (As we read the abstract, Betteridge's law of headlines yet prevails.)

One might think that originalism by definition is largely about history. After all, what does it mean to be "originalist" if not to be concerned primarily, if not exclusively, about the past? And if history is relevant, surely good history is better than bad history? 

That seemingly obvious conclusion is not actually obvious. The role of good history, as with the role of any discipline – be it linguistics, epistemology, economics, classical studies, or political theory – depends on what questions one asks. And at least some forms of originalism ask questions for which the role of good history, as historians might define good history, is limited. 

Originalism can be a theory of interpretation – of ascertaining meaning – or of adjudication – a means of resolving disputes. The questions posed, and thus the tools for answering the questions, are quite different in those two contexts.

For interpretative originalism, history (good or bad) can be an input, but because the ultimate inquiry focuses on the legally constructed intentions of a hypothetical author ("We the People"), facts about those intentions are legal facts rather than historical facts. History is surely important for ascertaining the appropriate constitutional ontology; one needs to know what one is interpreting in order to interpret it well. Jonathan Gienapp is right about that in Against Constitutional Originalism: A Historical Critique – an important book that I will address at length in a subsequent article. My modest point in this short essay is only that history's role in originalism, like the role of other disciplines, is limited by the nature of the originalist inquiry. 

For good adjudicative originalism, good history is likely to be less rather than more important than it is to good interpretative originalism. Adjudicative originalism must navigate a series of problems involving resource constraints, second-best concerns, and standards of proof, none of which are likely to be helped much by history. Again, the point is not that history is irrelevant to originalism but that its role is more constrained than many, including many originalists, sometimes seem to think.

--Dan Ernst

Weekend Roundup

• "From Red Lights to Legal Rights": a notice of a book on the recent history of sex work in New Zealand by  Cheryl Ware (University of Auckland). 

• The New York Historical's lecture series in Bryant Park include talks by Lindsay M. Chervinsky, Martha C. Jones, Marcus Rediker, and Victor Luckerson (on the Tulsa Race Massacre).  

• The American Historical Association will hold a Congressional briefing offering on the United States Senate on Thursday July 24, at 10:00 a.m. ET in Dirksen Senate Office Building Room G-11 with Joseph Crespino, Joanne Freeman, and Daniel Holt.  
   
• An issue of the AHA Perspectives takes up history in the US national parks, including the censorship of LGBTQ+ History and what the Scopes trial tells us about "school opt-outs" tday.  

• "There is No Original Public Meaning of Imprecise Constitutional Text": Eric Segall's tribute to the late Richard H. Fallon, Jr. (Dorf on Law). 

• 

  Robert M. La Follette (LC)

  Time's Made by History:  Anna O. Law on Birthright Citizenship. Nancy Unger on Fighting Bob La Follette's progressivism.  Antonio Ramirez on investigating Florida's convict labor in the 1920s.    

• ICYMI:  Daniel Tichenor on the long shadow of the McCarran-Walter Act (Conversation).  Bruce Dearstyne on John Jay’s Early Leadership in the Revolutionary Era (New York Almanack). Sharon L. Kennedy, Chief Justice of the Ohio Supreme Court, on the Northwest Ordinance and Its Legacy (Court News Ohio).

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

Dinkel on Transnational Inheritances from the US

Also new online from Law and History Review: “The Rich Uncle from America”: Transnational Inheritance Transfers between the United States, Germany, and Russia, 1840s–1980s, by Jürgen Norbert Dinkel, University of Leipzig:

This article examines cross-border inheritance transfers between the United States, Germany, and Russia between the 1840s and the late 1980s. These transfers were not only characterized by private considerations and kinship networks but were also strongly intertwined with national and international political developments. This article argues that the history of transnational inheritance transfers since the 19th century can be subdivided into three distinct periods. The first period, from the mid-19th century to 1914, witnessed the gradual development and expansion of professional networks and legal agreements designed to facilitate cross-border estate transfers. By contrast, the second period, from World War I and the October Revolution of 1917 through the late 1960s, was a time of unprecedented global disruption. Unlike the half-century before World War I, governments and probate courts complicated, delayed, and prevented inheritance transfers across state borders due to military and ideological conflicts. During the third period, beginning in the 1960s, governments, international organizations, lawyers, and families resumed efforts to create structures that would legally protect and enable cross-border estate transfers in an increasingly globalized world.

--Dan Ernst

Korostyshevsky on Drunkards and Guardianship in the US

LHR day continues here at LHB: David Korostyshevsky, Colorado State University, has published Incapable of Managing His Estate: Habitual Drunkards and the Expansion of Guardianship in the Nineteenth-Century United States online in Law and History Review:

During the first half of the nineteenth century, Mid-Atlantic States expanded guardianship to include habitual drunkards. Legislators in Pennsylvania, New York, and New Jersey empowered courts to put habitual drunkards under guardianship, a legal status that stripped them of their rights to own property, enter into contracts, make wills, and, in some states, even vote. Amid the dramatic nineteenth-century expansion of male suffrage, the habitual drunkard signified a masculine failure of self-government that disqualified propertied men from the privileges of full citizenship. The struggle to define habitual drunkenness, detect the habitual drunkard, and put him under guardianship transformed the courtroom into an arena for contesting the thresholds of compulsion, policing respectable manhood, and drawing the borders of full citizenship in the nineteenth-century United States.

--Dan Ernst 

O’Brassill-Kulfan on Rent Distraint in Early New York

New online in Law and History Review: “Distressing the Distressed”: Rent Distraint in Early Republic New York by Kristin O’Brassill-Kulfan, Rutgers University:

This article documents the legal and social history of “distress for rent” (also known as rent distraint) in early Republic New York, a legal tool that allowed landlords whose tenants were in arrears to seize tenants’ belongings and sell them to offset the cost of the unpaid rent. Rent distraint was a practice and topic around which New Yorkers contested ideological and practical conceptions of class, the rights of property, the role of law, and welfare. In 1811, New York City officials began tracking tenants in arrears of rent, creating a deep archive of documents that reveal the nuances of landlord-tenant relations and subsistence in this period. This article follows that paper trail, exploring distraint in this context as a legal remedy, as an experience with major impacts on individuals’ lives, and of efforts to reform the law and the lived experience of law. In the first decades of the nineteenth century, poor, middling, and wealthy New Yorkers were engaged in knowledge exchange around distraint and the social categories and experiences associated with it. Their stories document a materialist sensibility that crossed class lines and was attuned to the practical dimensions of working people’s living conditions.

--Dan Ernst 

CFP: Association of Law and Political Economy

[We have the following announcement, which not only invites the submission of papers and panels for a scholarly conference but heralds the founding of Law and Political Economy as a scholarly and professional association.  DRE.]

We’re excited to invite submissions for the first-ever Association of Law and Political Economy (ALPE) Conference, happening February 6–7, 2026, in downtown Richmond, Virginia, hosted by the University of Richmond School of Law.

This conference is more than an academic gathering—it’s the launch of a space for scholars, organizers, and practitioners who care deeply about how law shapes political and economic power, and how we might build alternatives. 

We welcome panel proposals, individual papers, and roundtables, from long-time law and political economy (LPE) contributors to those who are LPE-curious. Whether your work is theoretical, practical, or somewhere in between, we hope you’ll consider sharing it. And if you're not submitting a paper, you're still warmly invited to attend, connect, and help shape this new organization.

More information and the full call for papers is here. The submission window is August 15 to September 15, 2025.

To receive updates about the conference and ALPE more generally, please sign up for our listserv here.

Please pass this along to colleagues or anyone in your networks who may be interested. For any questions, you can contact us at lpeassociation01@gmail.com. We hope to see many of you in Richmond next February!

Warmly,

ALPE Planning Committee

Bradley and Siegel on the Supreme Court's Self-Defense

Curtis Bradley, University of Chicago Law School, and Neil Siegel, Texas A&M Law School, have posted The Supreme Court Under Threat: Early Lessons in Judicial Self-Protection:

This Essay explores how the U.S. Supreme Court, despite being vulnerable to defiance of its decisions and political retaliation, has developed tools of judicial self-protection to preserve its institutional authority as well as the Constitution and the rule of law. Arguing that the Court performs not only a legal role that requires interpretation of the law but also a political one that demands institutional preservation, the Essay examines how the Court has historically navigated political threats by using a range of tools—including avoidance, delay, narrow rulings, strategic dicta, and rhetorical appeals. The Essay focuses on three nineteenth-century episodes: the Jeffersonian backlash following the election of 1800, Georgia’s defiance in the Cherokee Cases in the 1830s, and controversies over military trials during Reconstruction. In each instance, the Court adjusted its behavior in response to political threats from the Executive, states, or Congress, and it used the tools of self-protection to avoid direct confrontation while maintaining or even enhancing its authority. The Essay acknowledges the risks and imperfections of such an approach including compromised legal reasoning and potential long-term concessions but it contends that the Court must be politically attentive to be effective. It also cautions against formalist critiques of such judicial behavior that overlook the political foundations of judicial power.

--Dan Ernst 

Bilder on Macaulay's "Free Constitution"

Mary Sarah Bilder, Boston College Law School, has published The Real Genius of the Constitution: The Free Constitution, which is forthcoming in the Yale Journal of Law and the Humanities:

Catharine Macaulay (wiki)

“To virtually all originalists, the Constitution’s defining feature is that it is a written text.” So points out historian Jonathan Gienapp in his thoughtful analysis of originalist arguments. Indeed, writtenness has become a, if not the, defining feature of the Constitution in fields beyond originalism. This perception stems from a historical account of the transformation of constitution in which writtenness was casually highlighted. But this account missed the critical transformation: a free constitution arose in place of the centuries old monarchical constitution.

Some years ago while reading the first volume of eighteenth-century historian Catharine Macaulay’s History of England, I noticed her repeated use of constitution. The appearance of the word was not surprising: Robert Acherly’s The Britannic Constitution: or the Fundamental Form of Government in Britain (reprinted 1759), Bolingbroke’s A Dissertation upon Parties (reprinted 1754), and David Hume’s History of the Stuarts (1754) were awash with the word. But Macaulay’s constitution was different. Sometimes she used it in conventional ways to refer to the body or existing political arrangements or an ancient Saxon establishment. But more often constitution was the standard which the Stuart monarchies violated. Its legitimacy lay in the people–not in an ancient constitution or Glorious Revolution settlement. It emphasized representation. It did not require a king or house of lords. It was, to use Macaulay’s term, democratical.

This constitution was the free constitution. Macaulay used that term, and I adopt it for this new conception of constitution that arose in the aftermath of George III’s accession. Macaulay’s popular four-volume History (1763-1769) was an influential early expositor. Between 1764 and 1768, James Otis and Samuel Adams developed a corollary contribution appearing in public letters, published as True Sentiments of America (1768). Writers and political actors on both sides of the Atlantic came to believe in the attainability of the free constitution. The revolutionary and 1787 constitutional instruments were efforts to work out the practical, structural, and conceptual problems of the free constitution, and writtenness the continuation of a familiar technology. The free constitution is the real genius of the Constitution. 

--Dan Ernst

A Publishing History of Grotius's De iure belli ac pacis

The Unseen History of International Law, a history of the publishing of Hugo Grotius' De iure belli ac pacis, edited by Mark Somos, Matthew Cleary, Pablo Dufour, Edward Jones Corredera, and Emanuele Salerno, has been published by the Oxford University Press:

The Unseen History of International Law locates and describes almost one thousand surviving copies of the first nine editions of Hugo Grotius' De iure belli ac pacis (IBP) published between 1625 and 1650. Meticulously reconstructing the publishing history of these first nine editions and cataloguing copies across hundreds of collections, The Unseen History provides fundamental data for reconstructing the impact of IBP across time and space. It also examines annotations that thousands of owners and readers have left in IBP copies over four centuries, offering original insights into the development of international law.

Grotius' De iure belli ac pacis has been commonly regarded as the foundation of modern international law since its first appearance in 1625. Most major international law scholars have engaged with IBP, often owning and richly annotating their own copies. At key moments - including the demise of the Holy Roman Empire, the fall of Napoleon, and the end of both world wars - IBP was reissued with new commentaries by multinational projects devoted to restarting the international order. Despite the enormous literature on IBP's reception and influence, we cannot fully understand its impact without uncovering the history of IBP as a physical object, with hundreds of thousands of unpublished annotations arguing or agreeing with the text, updating and adapting its contents.

Approaching Grotius' seminal work as a physical vehicle of the author's, the publishers', owners', and readers' engagement, The Unseen History radically expands and revises our understanding not only of IBP, but also of the academic discipline and lived practice of modern international law over the last four centuries. In addition to delving into the first nine editions' printing history, descriptive bibliography, and both Grotius' and the publishers' marketing and donation strategies, the book explores Grotius' subsequent impact on pro-slavery and abolitionist litigation as a case study of how the census' original findings can be applied to specific areas of reception.

--Dan Ernst

Barbas on the Absence of American Hate Speech Laws

Samantha Barbas, University of Iowa College of Law, has posted How American Civil Rights Groups Defeated Hate Speech Laws, which is forthcoming in the Journal of Free Speech Law:

In the United States, “hate speech” is generally protected by the First Amendment. Hate speech is considered to be “free speech” unless it provokes imminent violence or constitutes a “true threat” or “fighting words.” No other nation protects the right to express hate so vigorously.

This article explains one potential reason for the absence of hate speech laws in America –the historic opposition of minority civil rights groups to hate speech laws. Since the beginning of the twentieth century, civil rights groups such as the National Association for the Advancement of Colored People (NAACP) and the American Jewish Committee spoke out against hate speech laws and campaigned to defeat proposed hate speech laws on the theory that such laws were ineffective in curtailing hate speech, and that limitations on freedom of speech would hinder the efforts of minority groups to achieve racial and religious equality. These civil rights groups concluded that the most effective way to reduce racial and religious hatred was to combat hate speech through counter-speech and education. This article tells the story of how and why civil rights organizations opposed hate speech laws, and how that opposition changed American law and public policy.

--Dan Ernst

Weekend Roundup

• Penn Law's notice of Serena Mayeri's new book, Marital Privilege.  

• BC Law's notice of Aziz Rana's receipt of the annual book prize of the Society for US Intellectual History for The Constitutional Bind. 

• The Supreme Court Historical Society has a series of short videos, Breaking History, based on recent or forthcoming content in the Journal of Supreme Court History.   Helen J. Knowles-Gardner discusses "Without a Little Help from Your Friends: The Supreme Court's Rejection of the American Jewish Congress Amicus Brief in NAACP v. Alabama ex rel Patterson (1958)" and Jonathan Lurie discusses his forthcoming review of Robert C. Post’s new contribution to the Oliver Wendell Holmes Devise History. 

• Asheesh Kapur Siddique, University of Massachusetts-Amherst, on "the long history of governments attempting to restrict access to documents about their inner workings" (HNN).

• Katherine Gregory, Mississippi State University, on the threat funding cuts pose to political archives deposited in state universities (The Conversation).  

• Over at Balkinization: a symposium has begun on Richard Primus's The Oldest Constitutional Question: Enumeration and Federal Power. Look out for contributions from Will Baude (Chicago), William Ewald (Penn), Jonathan Gienapp (Stanford), Abbe Gluck (Yale), Sandy Levinson (Texas), John Mikhail (Georgetown), and Christina Ponsa-Kraus (Columbia). 

• "Tulane Law Students Explore the Origins of Maritime Law in Greece" (Tulane Law). 

• "Quentin Skinner responds to a wide range of questions centred primarily on the arguments of his Liberty as Independence: The Making and Unmaking of a Political Ideal (2025) (GIH). 

• Time's Made by History:  Crushing Dissent is as American as Protest Itself by Shira Lurie.   The Founders Knew Great Wealth Inequality Could Destroy Us by Daniel Mandell.  Why American Revolutionaries Fought to Protect Habeas Corpus by Zara Anishanslin.  Inherit the Wind and the Scopes Trial in Memory by Charlotte M. Canning. 

• The Jacksonville University College of Law is hosting “250 Years of Independence: Fortifying America’s Commitment to Democracy for All," a traveling exhibit curated by the American Bar Association's Standing Committee on the Law Library of Congress (Florida Bar). 

• At the American Prospect: Joseph A. McCartin (Georgetown University), "Requiem for the Wagner Act" (h/t: Bunk)

• ICYMI: The decline of postliberalism (Vox). Michael Kazin on the Scopes Trial at 100 (NYT). Dahlia Lithwick and Mark Joseph Stern ask, "Can Ketanji Brown Jackson’s Take on History Be a Corrective to Amy Coney Barrett’s?" (Slate).  Gerard N. Magliocca on Robert Jackson's Youngstown concurrence as "the Greatest 'No Kings' Essay in History" (Slate).  The Harvard law faculty's summer reads. John Yoo on Richard Epstein on the original understanding of the war powers (AEI).

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

Tijdschrift voor Rechtsgeschiedenis 93: 1-2

Tijdschrift voor Rechtsgeschiedenis/Revue d'histoire du droit/The Legal History Review 93:1-2 (2025) has been published.  H/t: ESCLH

Indefensio and procedural resistance within and without the edictum perpetuum by Adrian Häusler

Lenel’s alleged edicts ut oportet non defendit have significantly influenced our understanding of the consequences of indefensio. Yet, this paper challenges the reality of these edictal provisions. Addressing what might be considered as a legal gap, the praetor’s prerogatives on indefensio both within and beyond the edictum perpetuum are comprehensively reassessed. It is concluded that the praetor regulated indefensio in his edict opportunistically, primarily to resolve complex situations of indefensio. In cases not covered by the edict, the praetor relied on his powers derived from iurisdictio and imperium to impose appropriate measures against the indefensus.

Eusebius of Caesarea on Constantine the good shepherd: constructing the Christian basileus and lawgiver by Francesco Rotiroti

The present article is the second in a diptych looking at the pastoral characterisation of Constantine in the works of Eusebius of Caesarea through the lens of institutional theory. Through pastoral discourse, I argue, Eusebius systematises key elements of the policy and functions of the first Christian emperor, thus contributing to the institutional construction of the early Christian basileia. It is an early attempt to ask, and answer, what would become a central question of Christendom: what has a Christian prince to do with religion and the church? Established by God and an earthly image of the pastoral functions of Christ, Eusebius’ shepherd-basileus is in a privileged position to perform the traditional functions of the metaphorical shepherd, including that of procuring the salvation of the flock through moral instruction and the knowledge of God. Applied to a Roman emperor, this means the establishment of norms of conduct and the true religion through the law.

The emperor’s trees by Francesco Bono

The essay aims to subject two constitutions, C. 11,78,1 and 2, to a new analysis in order to fully understand their content and to verify their importance for the reconstruction of the use and exploitation of the forest areas under the jurisdiction of the emperor.

Laws in the making: the feudal and penal charters of Hainaut (28 July 1200) by Nicolas Ruffini-Ronzani

This article deals with two important legal texts commonly attributed to the hand of Gislebert of Mons, author of the Chronicon Hanoniense and key-player at the chancery of Hainaut at the end of the twelfth century. Commonly known as the ‘legal’ and ‘feudal’ charters of Hainaut, these two documents were enacted by Count Baldwin vi at the castle of Mons in July 1200 and formed the basis of the legislation in Hainaut in the following centuries. The article investigates the writing process of these documents from the perspectives of palaeography and diplomatics. It demonstrates that Gislebert was not the author of these charters. By studying the content of the laws, the article establishes then that they were promulgated in order to solve problems relating to the inheritance of the comital power. The enforcement of the laws is being questioned in the last part of the paper, which examines their numerous Latin and French copies.

Legal pluralism that wasn’t: State and the plurality of law in late medieval and early modern Europe by Marie Seong-Hak Kim

Legal pluralism has seemingly become a new orthodoxy. Its core proposition is that law has no privileged relationship with the state. Students of legal history have reason for paying attention, as legal pluralism, a corollary of colonialism, has come to project back onto European history its cultural and social-scientific paradigm and arrogate to itself the role of explaining the evolution of normative orders in the continent’s past. This article argues that applying to European history a theory premised on a contest between legal monism and pluralism brings more confusion than clarity. The difference between historically grounded legal pluralism and the contemporary theory of legal pluralism revolves around the question of whether multiple legal orders existed as part of state law or state law was merely one among many legal orders. In late medieval and early modern Europe, law was foremost equated with jurisdictional power, that is, authority to rule. Various kinds of laws, including custom, Roman law, church law, and legislation, operated in a plurality of practices within the state-centered hierarchy, and it was on this framework of state law pluralism that the European countries, while remaining under the doctrinal unity of the jus commune, each followed a discrete path of legal development shaped by political and institutional changes. The history of Europe provides little support for the theory that an imposed Romanitas or state sovereignty displaced and distorted good old customary law. Modern legal pluralist views may be in need of reconsideration not just in light of what was happening in late medieval and early modern Europe but also in terms of how Europe’s ideas of legal order spread to the colonies in the late nineteenth century. Recent debates on legal pluralism serve as a reminder that history is distinct from an anemic version of the more theoretical social sciences. Still, the binary of unity and plurality in law can offer an unaccustomed yet useful direction in approaching the legal past.

A new fragment of the 15th century Frisian Excerpta Legum tradition Edition, translation, and commentary by Hylkje de Jong - Han Nijdam - Marvin Wiegand 

This article contains an edition, translation and commentary of an Old Frisian text which forms part of a larger complex which was discovered last year in the National Library of Austria. It concerns a small collection of so-called Excerpta Legum material, dating from the 15th century. This tradition arose in the modern province of Fryslân shortly after 1400. It showed a massive reception of Canon and Roman law into Frisian indigenous law. The five paragraphs of the text edited here are compared to the larger tradition that has been handed down. This small collection yields some interesting insights into its development.

‘To the great advantage of skippers’: on compacten, or mutual marine insurances, in early modern Friesland by Delphine Sirks 

During the seventeenth and eighteenth centuries, mutual marine insurances between skippers, known as compacten, emerged throughout Friesland, both in villages and in cities. Outlining the legal settings of twelve compacten by discussing the organization of these compacten, the risks insured against, the financial set-ups and other noteworthy clauses, the overall view is that these mutual insurances offered Frisian skippers and shipowners a risk mitigation system that was able to support their specific, local needs.

Building the law: law-making and lobbying in Belgium’s construction sector (c. 1890 – c. 1940) by Simon De Nys-Ketels & Dave De ruysscher

This article zooms in on the legal activities of the Société Centrale d’Architecture en Belgique in the Belle Époque and Interbellum, analyzing the ways in which professional interest groups without a legal background could impact processes of law-making. scab developed publications for professionals and invested in strategic networking and in-house legal expertise. As a result, it not only became an important centre of information on construction legislation, but also effectively shaped areas of construction law, such as those concerning the arbitration of building conflicts, the architect’s fee, and the legal recognition of the title of architect.

Review Essay

On the nature of Roman imperial legislation and codifications: a reaction to a recent approach by A.J.B. Sirks

Roman legislation was generally a reaction to events, but that does not mean that if encapsulated in a codification, similar events had to have happened to justify its inclusion (it would be impossible for an entire code). A legal rule purports to cover future similar cases and only if these do not present themselves for a long period, the rule goes into abeyance. Further, such rules usually fit an existing legal framework and a codification continues this framework. Hence Justinian’s Code (but already Theodosius’) must be considered as a systematical body. Consequence of this is, that for an analysis of the imperial agrarian policy all texts regarding this must be taken into account, and in as far as gathered in a title, they should be considered as a systematical whole, which implies that the chronology in any title is of no importance. This goes also for the title on the coloni seu agricolis censitis, cj 11,48. Another point is the communicative function of laws. Indeed, notwithstanding that most of them are addressed to a high functionary, the ultimate addressees lie behind that functionary. But in order to know to whom and what was communicated, one best relies on the preambles. Where these are absent, the ultimate addressees can usually only be deduced from the contents of the rule.

Book Reviews

J.E. Lendon, That tyrant, persuasion: How rhetoric shaped the Roman world. Princeton University Press, Princeton 2022. xviii + 302 p.  by Tessa Leesen

W.J. Zwalve, Power and authority: A trial of two swords, A history of the Union of the Holy Roman Empire and the Kingdom of Sicily (1186–1250). Eleven, The Hague – Chicago 2023. 631 p. by Rosalba Sorice

Sara Menzinger, Finzioni del diritto medievale. [Ius Ricerche, 8]. Quotlibet, Macerata 2023. 345 S. by Matthias Schmoeckel

J. Althusius, La politique méthodiquement ordonnée et illustrée par des exemples sacrés et profanes, Traduction, introduction et lexique par Gaëlle Demelemestre. [Les Classiques de la pensée politique, 24]. Librairie Droz, Genève 2023. 824 p. by Alain Wijffels

F. Dorssemont, On the artistic representation of industrial disputes in the shadow of repression in European art, From 1870 to 1914 and beyond. [Law and visual jurisprudence, 15]. Springer, Cham (Switzerland) 2024. ix + 210 p. by Georges Martyn

H.-P. Haferkamp and V. Erkkilä (eds.), Socialism and legal history, The histories and historians of law in socialist East Central Europe. [Routledge research in legal history]. Routledge, London 2020. 204 p. by Tomasz Giaro

S. Meder, Savignys Weg in die juristische Moderne: Romantik, Gender, Religion, Wissenschaft. Schwab Verlag, [Berlin 2023]. 477 S. by Boudewijn Sirks

In Memoriam

In memoriam Hugo de Schepper, 1934–2024 by Gustaaf Janssens

A historian of legal thought, a master of legal philology: Kees Bezemer (1951–2024), in memoriam by Emanuele Conte

Judge Childs on the DC Circuit

Judge J. Michelle Childs, U.S. Court of Appeals for the D.C. Circuit, has published A Distinctive Court: A Glimpse into the History and Significance of the D.C. Circuit in the Fordham Law Review.  
Judge Childs visited Fordham University School of Law as the 2025 Distinguished Jurist in Residence and presented the article as a lecture on February 26, 2025.  From the introduction: 

In the first half of this Essay, I will begin by describing the distinct origins, structure, and docket of the D.C. Circuit. From its early years, the D.C. Circuit has considered issues involving the federal government. With the growth of the administrative state in the twentieth century, the D.C. Circuit became more involved in reviewing regulations. Today, the D.C. Circuit’s composition, jurisdiction, and docket reflect its role in examining issues of national importance, particularly around regulations. To resolve those questions, we often reflect on our nation’s history and our court’s responsibility for shaping the nation’s future. In the second half, I will turn to history and change. Cases before the D.C. Circuit may require that we engage with history, either because the record under review includes a historical archive, or because we turn to history to shed light on a question of law. At times, we must also reflect on the historical significance of our cases. Our decisions, ultimately, will face the court of history. And because our cases involve weighty national issues, their impact may extend well into the future. Our court, however, has proved resilient to change, adapting to new challenges.

For more on the history of all the courts in the District of Columbia Circuit, be sure to check out the website of the Historical Society of the District of Columbia Circuit.

--Dan Ernst 

Exploring the Foundations of Contract Law

Cause and Consideration: Exploring the Foundations of Contract Law, an anthology edited by Bruno Rodríguez-Rosado, Rocío Caro Gándara, and Antonio Legerén-Molina, has been published by Hart/Bloomsbury.  The publishers tell us that you may order it online here and use the code GLR BD8 to get 20 percent off.

This book provides a comprehensive study of two parallel notions of civil and common law: cause and consideration . . .  in three ways; with historical, comparative, and functional perspectives. Aspects of cause and consideration are hotly contested by contract lawyers and this book will bring clarity by looking at the English and Continental positions. Key areas of focus include: enforceability, questions of legality and morality, contractual justice, and the correction of unjustified property displacements.

Bringing together a team of experts, the book discusses (in some cases for the first time in English) complex questions of both academic and practical importance.

–Dan Ernst. TOC after the jump.

Mayeri, "Marital Privilege: Marriage, Inequality, and the Transformation of American Law"

Yale University Press has published Marital Privilege: Marriage, Inequality, and the Transformation of American Law, by Serena Mayeri (University of Pennsylvania). A description from the Press:

The United States is unusual among wealthy western nations in the degree to which the law channels public benefits and private economic resources through marriage. This remains so despite seismic changes in American family life in the last several decades of the twentieth century. During this period, marriage rates declined while divorce and nonmarital childbearing soared. Social movements—for racial and economic justice, women’s and gay rights and liberation, civil liberties, and reproductive freedom—transformed the legal landscape.
 
In Marital Privilege, Serena Mayeri tells the stories of parents and partners, activists and lawyers who challenged the legal primacy of marriage. They made innovative constitutional claims in courts and launched grassroots efforts to change laws and practices that penalized nonmarital relationships. But even though reforms eliminated the most visible discrimination against women, people of color, and children born to unmarried parents—and, eventually, against gay and lesbian Americans—marriage’s privileged status endured. Because marriage increasingly correlated with education and wealth, marital primacy intensified racial and economic inequality. Marital Privilege explains how, as American law selectively incorporated principles of liberty and equality, the benefits of marriage became increasingly unavailable to those who needed them most.  

Advance praise:

“Serena Mayeri’s hugely ambitious project is to map the changing legal status of marriage from the perspective of single women of color, gays and lesbians, feminists who wanted to reform (or even abolish) marriage, alternative family units, and unmarried fathers, among so many others. While the history of marriage looks different when considered from its edges, Mayeri ultimately demonstrates the resilience of an institution that so many labored to change over decades and decades.  This astonishingly comprehensive and organically intersectional book is a masterpiece that will be influential for years to come.” —Margot Canaday

“Mayeri masterfully shows how legal challenges to marriage over the past several decades made marriage itself more egalitarian but left intact marriage’s dominant legal status and preserved marital status as an engine of inequality.”—Douglas NeJaime

“‘Marriage is everywhere in American law.’ What often goes unnoticed by those who enjoy its manifold benefits and privileges is painfully written on the lives in its shadow. In this brilliant history, Serena Mayeri explains how despite a half century of challenges, marriage remains a key engine in the reproduction of inequality today.”—Barbara Young Welke

More information is available here.

-- Karen Tani 

JAEH: Special Issue on Immigration and Citizenship

The special issue (44:4) of the Journal of American Ethnic History devoted to Immigration and Citizenship, edited by Hardeep Dhillon and Maddalena Marinari, will be of interest to legal historians of the subject.

Networks of Power and Relationality: US Citizenship and Migration in the Twentieth Century 
Hardeep Dhillon and Maddalena Marinari

America's Foreign-Born “Citizens”: Disability and the Politics of Child Exclusion Available to Purchase
Yukako Otori

Indians Now Taxed: Citizenship and Taxation in Settler-Colonial South Dakota Available to Purchase
Lila Teeters Knolle

Citizen Aliens: American Xenophobia, Japanese American Migrants, and the Transpacific Borders of Belonging Available to Purchase
Michael R. Jin 

A Struggle Over Numbers: Legal Status in the Census, Hispanic Political Representation, and Federal Funding, 1970–1986 Available to Purchase
Benjamin Francis-Fallon

Comment
Mae Ngai

--Dan Ernst

Mass SCJ Records Transcribed

The Ames Foundation, with the financial support of the Colonial Society of Massachusetts, has been transcribing the twenty-two volumes of the records of the Massachusetts Superior Court of Judicature ca. 1690 – ca. 1780 (Mass SCJ), edited by Professor Sally Hadden of Western Michigan University.   The transcriptions of the first two volumes have just been published online.  The first transcribe the records of the Mass SCJ from 1760–1762; the second transcribes a volume of maritime cases dating from the period of the Revolutionary War.

--Dan Ernst