Thursday, February 13, 2025

Bessler on the Forgotten Origins of "Cruel and Unusual Punishments"

John D. Bessler, University of Baltimore School of Law, has posted Lost and Found: The Forgotten Origins of the "Cruel and Unusual Punishments" Prohibition, which is already forthcoming in the British Journal of American Legal Studies:

The U.S. Supreme Court and legal scholars have long traced the origins of the Eighth Amendment's prohibition against "cruel and unusual punishments" to the English Declaration of Rights, codified as the English Bill of Rights (1689). The English Declaration of Rights recited that, in King James II's reign, "illegal and cruel punishments" had been "inflicted," with its tenth clause then declaring in hortatory fashion: "That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The prohibitions against excessive bail and excessive fines and the final phrase-"nor cruel and unusual punishments inflicted"-were later incorporated into the Virginia Declaration of Rights (1776), various state constitutions, and the U.S. Constitution's Eighth Amendment. One legal scholar, Anthony Granucci, once described the wording of the English bar on "cruel and unusual punishments" as the product of "chance and sloppy draftsmanship," concluding that American lawmakers, in adopting the Eighth Amendment, misinterpreted "the intent of the drafters of the English Bill of Rights." The Eighth Amendment famously reads: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Credit: Internet Archive
The U.S. Supreme Court and Eighth Amendment scholars have misidentified the English Declaration of Rights as the first appearance of the "cruel and unusual punishments" language, with Justice Thurgood Marshall, relying on Granucci's Eighth Amendment scholarship, observing that the use of "unusual" in the English Declaration of Rights "appears to be inadvertent." This Article demonstrates that the conventional account of the origins of the "cruel and unusual punishments" phraseology-spelled "cruell and unusuall punishments" in some early English sources-is woefully incomplete. The standard account of how that terminology first emerged during the Revolution of 1688-1689, popularly known as the "Glorious Revolution," fails to consider long-forgotten, far earlier uses of the cruel and unusual punishments terminology. Those usages stretch back as far as the early 1600s, during the reign of King James I, though they initially appear in non-legal contexts (i.e., in a history of Venice translated from French into English and published in 1612; in English courtier and poet George Wither's satire, Abuses Stript, and Whipt, first published in the early 1610s; and in 1642 Irish Catholic Remonstrances from Ulster following an Irish rising in 1641). Because of the terminology's prior appearances in those places, the use of the cruel and unusual punishments phraseology in the English Declaration of Rights was almost certainly neither inadvertent nor the product of sloppy drafting.

--Dan Ernst

Wednesday, February 12, 2025

Fernandez Interviewed on Pierson v. Post

The Long Island History Project has posted a recording of its interview of Angela Fernandez, University of Toronto, on Pierson v Post:

When Jessie Pierson and Lodowick Post argued over a fox in early 19th century Southampton, they probably didn’t think the resulting court case would echo down the ages. Yet here we are 220 years later talking with legal historian Angela Fernandez about the odd, improbable history of Pierson v Post.

A professor of law and history at the University of Toronto, Fernandez has delved deep into the case. Her “legal archaeology” uncovered important, presumed-lost information on the early phases of the proceedings. Her 2018 book Pierson v. Post, The Hunt for the Fox: Law and Professionalization in American Legal Culture, unpacks more of the impact and context around the decision.

On today’s episode we discuss the local history surrounding the case, more about the Piersons and the Posts, and the surprisingly whimsical inner life of the legal profession.
--Dan Ernst.  H/t: New York Almanack

Bradley on Curtiss-Wright

Curtis Bradley, University of Chicago Law School, has posted Sovereign Power Constitutionalism, which is forthcoming in the University of Chicago Law Review:

George Sutherland, J. (LC)
The constitutional text seems to be missing a host of governmental powers that we take for granted, including powers relating to immigration, Indian affairs, acquisition of territory and resources, and the regulation and protection of U.S. citizens abroad. The Supreme Court suggested an explanation for these and other missing powers in its famous 1936 decision, United States v. Curtiss-Wright Export Corporation. Upon becoming a nation, the Court contended, the United States automatically acquired powers “equal to the right and power of the other members of the international family”—powers that inhered in the government “as necessary concomitants of nationality.” Although the Curtiss-Wright decision has been heavily criticized, this Article defends the Court’s suggestion that the federal government’s authority is informed by conceptions of nationhood. As will be shown, many areas of U.S. constitutional law rest on a presumption that the nation acquired the full complement of sovereign powers allocated to nations under international law, and this has been the case throughout much of U.S. history. This presumption has been manifested at times through broad interpretations of the constitutional text, but on other occasions it has been manifested through invocations of inherent authority. Importantly, and contrary to what many critics of Curtiss-Wright assume, the sovereign power presumption does not require either a rejection of constitutional constraints or a preference for presidential over congressional authority.

--Dan Ernst

Tuesday, February 11, 2025

CSHC Review

[We have the following announcement.  DRE]

Professor Clark Kelso (University of the Pacific McGeorge School of Law) is the incoming editor-in-chief for a magazine-type publication called the Review published twice yearly by the California Supreme Court Historical Society. The Review warmly welcomes short articles that have a connection to California legal history, particularly involving the California Supreme Court and the state's lower courts, the bar, the profession, and the law in general. The Review publishes articles about people, places, events,  cases, and broader legal developments as they have affected our state, then and now. Our readership includes all justices and judges of California's courts plus prominent members of the bar and others who have an interest in California's rich legal history. Most of our articles are in the 2500- to 5000-word range (but we are flexible on length), include footnotes appropriate for a scholarly/historical publication, and are illustrated with photographs and/or archival material that we will find and add to your article. With the approval of a prior publisher, we are happy to accept what might best be described as a summary of a much longer piece of scholarship published elsewhere. Anyone interested in publishing should contact Professor Kelso at ckelso@pacific.edu.

Fox and Ziegler on the History of IVF and Abortion

Dov Fox, University of San Diego School of Law, and Mary Ziegler, University of California, Davis School of Law, have posted The New Abortion, which is forthcoming in the Columbia Law Review:

In vitro fertilization presents a neglected puzzle. IVF is used to create one in fifty babies born in the U.S. each year. Yet it remains deeply underregulated and has rarely been subject to political wrangling. Courts and commentators assume the regulatory vacuum around assisted reproduction owes to the singular polarization of abortion in the United States. But for half a century, the fate of these practices could not have been more different: contrast the state’s hands-off approach to IVF with vast constraints on abortion, marked by explosive partisan battles. Only since Roe’s fall has IVF become a culture war flashpoint—in roiling controversies over state restrictions, the Right to IVF Act in Congress, and the 2024 Alabama Supreme Court case treating embryos as persons. IVF’s sudden emergence as a site of intense contestation and social-movement struggle is what we call the new abortion.

This Article resolves the enduring mystery of IVF’s longstanding retreat from public discourse and its abrupt appearance on the national scene. It presents the first-ever legal history of the relationship between IVF and abortion. We chronicle and synthesize the political and regulatory dynamics they pose for family, faith, race, sex, gender, science, medicine, and technology, drawing on original archival research in three privately held collections, two historical societies, four universities, and the Library of Congress. This untold story reveals how IVF’s regulatory impasse collapsed in the aftermath of Roe’s reversal, exposing crumbling barriers to compromise and surprising patches of common ground in the wake of escalating conflicts around abortion. Our history also uncovers a historically informed path to meaningfully regulate IVF’s legality, access, licensing of clinics, and transparency about mishaps.
--Dan Ernst

Monday, February 10, 2025

Brooks on Stock Dividends and the Crash of 1929

John R. Brooks, Fordham University School of Law, has posted Stock Dividends, the Supreme Court, and the Great Crash of 1929:

"Stock dividends"—the distribution of a corporation's own stock to its shareholders—are a relatively minor and harmless feature of corporate finance today used almost exclusively to accomplish stock splits. But for a brief period in the 1920s, they were an important part of the corporate and investing world—and, as this Article shows, were also one of major tools used to create phantom income, inflate earnings, and maintain corporate pyramid schemes leading to the 1929 stock market bubble and subsequent Great Crash. This Article also argues that this abuse of stock dividends was a direct result of a notorious Supreme Court tax case in 1920, Eisner v. Macomber. By allowing stock dividends to be issued tax-free, the Supreme Court supercharged the use of stock dividends over the next decade, helping to drive up stock valuations and fuel the 1929 bubble. Macomber has faced substantial criticism for its destabilizing effects on the tax system, but its destabilizing effects on the larger financial system have not been noted before now. Using original archival research, this Article describes the example of Samuel Insull and his public utility holding company empire—one of the nation's largest in the 1920s, but which collapsed in scandal and bankruptcy in 1932, in large part due to its manufacture of phantom income using stock dividends.
Samuel Insull (William L. Koehne Studio)
In addition to providing a new account of one of the causes of the Great Crash, a new part of the story of Samuel Insull, and a new critique of Macomber, this Article also illustrates three larger themes. First, that seemingly technical matters—in this case, the tax and accounting treatments of a relatively obscure element of corporate finance—have the potential for massive real-world impact. Second, that because of that potential impact, legal conclusions about such technical matters ought to take account of social and economic realities, not merely legal formalisms. In Macomber, the Court departed from the social understanding and past tax treatment of stock dividends based on the narrow application of a particular phrasing for a definition of “income,” and that error led in part to the 1929 bubble. Finally, this Article also describes a period of confusion, contradiction, and flux around the tax and accounting treatment of stock dividends, and to a degree both Macomber and the Great Crash also flow out of that chaos. This episode is thus an illustration of the risk and unpredictability that exists in periods of legal and economic change, such as the coinciding emergence of large corporate capitalism and a new regime of income taxation in the early 20th century.
--Dan Ernst

Saturday, February 8, 2025

Weekend Roundup

  • There's still much of interest to legal historian at the ongoing conference of the Program in Early American Economy and Society of The Library Company of Philadelphia.  We missed Gautham Rao on a panel on "The History of Early American Economy and Society, 1999-2024," but today Claire Priest is “Looking at Capitalism through the Lens of Property Law” (PEAS).
  • The National Constitution Center and the Federal Judicial Center will convene historians, online and in person, for Reconstruction and the Constitution: A Historical Perspective on Monday, February 10, 9:45–11:45 a.m. ET. “Pamela Brandwein of the University of Michigan, Sherrilyn Ifill of Howard University School of Law, and Ilan Wurman of the University of Minnesota Law School will explore the 14th Amendment and the history of Reconstruction. Martha Jones of Johns Hopkins University, Kate Masur of Northwestern University, and Dylan Penningroth of the University of California, Berkeley, will delve into the broader legal and social effects of Reconstruction beyond the amendments." Jeffrey Rosen moderates.
  • A report of Jonathan Gienapp and Michael McConnell in conversation about Professor Gienapp's Against Constitutional Originalism: A Historical Critique at Stanford's Constitutional Law Center (Stanford Daily). 
  • The King's Court "visually reconstructs the long lost court of King’s Bench, using immersive digital technology and recorded sound to enable visitors to see and hear how it functioned during the Georgian period, between the late 1780s and early 1800s."  You are there for the argument of King v. Stockdale (1789).
  • Having a hard time keeping up with the litigation against the Trump administration?  Try Just Security's Litigation Tracker.  Also: who's in charge at the National Archives, and for how long? (Current).  And we're following efforts to recover and restore recently memory-holed federal websites onto publicly accessible servers and will post the most comprehensive portals when they are up. 
    • Update:  President Trump has just fired Colleen Joy Shogan, Archivist of the United States.
  • Here are the currently scheduled late-breaking session at the annual meeting of the Organization of American Historians in April.
  • A dedication ceremony for a historical marker for the civil rights attorney James R. Walker Jr., will be held at 1 p.m. on Saturday, February 22 at New Ahoskie Missionary Baptist Church at 401 West Hayes Street, in Chapel Hill, NC (rrspin).
  • The University of Colorado Law School reflects on its history of education Black students (Colorado Law).  
  • ICYMI: Amy Howe on the history of birthright citizenship at the Supreme Court (SCOTUSblog).  Amanda Frost on the same (PBS News).  Farrell Evans on how Dred Scott energized the anti‑slavery movement (History). Eric Segall on how the Roberts Court killed originalism (Dorf on Law).
  • Update: A notice of Dennis Wieboldt, a JD-PhD candidate at Notre Dame (Notre Dame Law).

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

Friday, February 7, 2025

Katz on Separation-of-Powers Lochnerism

Andrea Scoseria Katz, Washington University in St. Louis School of Law, has posted Separation-of-Powers Lochnerism:

One hundred and twenty years ago, the Supreme Court handed down one of the single most notorious opinions ever rendered, striking down a New York labor law for violating a right to contract found nowhere in the text of the Constitution. The era of Lochner v. NY (1905) is well past us, but not the judicial impulses that gave rise to the case. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the President, Congress, federal agencies, and the courts.

Bringing together two lines of case-law-on the President and the agencies-this Article shows how the Roberts Court is now doing for the separation of powers, what the Lochner Court did for rights. In the first, the Court identifies "core" presidential (super-)powers and bars Congress from regulating these by statute. In the second, it crafts unwritten principles that defeat agency action: the rule that Congress must give a "clear statement" when it delegates "major" authority, or that deference to agencies violates judicial independence, are two examples. Taken together, the two lines of cases make "the separation of powers" into a collection of judge-made rules no other branch can change, arrived at by judges who disregard "plain text" for "higher-law" values they alone can see and articulate. One particularly salient consequence has been the aggrandizement of the presidency, now put in full relief by the unprecedented barrage of executive orders issued by the second Trump presidency, many of questionable legal grounding.

During the '23-'24 term, the Court's landmark rulings on presidential immunity and the federal agencies each garnered significant attention. But viewing them through the lens of this new "separation-of-powers Lochnerism" reveals these to be part of the same judicial project, a judge-led revolution decades in the making. Our Constitution creates three branches of power and gives each tools to mutually check and balance the others. Separation-of-powers Lochnerism distorts this ideal into a judge-made constitutional order requiring interbranch isolation (except on the part of the judiciary), with the roles of Congress, the President, and the agencies increasingly being defined by the Supreme Court according to higher-law principles of its own making. This Article demonstrates that this scheme is both ahistorical and dangerous, threatening to upend our tripartite system of government.
--Dan Ernst

Schwartz on the Deceptive Federalist 37

David S. Schwartz, University of Wisconsin Law School, has posted a further contribution to anti-enumerationist constitutional history, The Rhetoric of Deception: Madison's Federalist 37 and the Structure of the Ratification Debates:

James Madison (wiki)
James Madison's Federalist 37 is widely regarded by scholars as a political philosophy ur-text or a theoretical exposition of the now-trendy concept of "liquidation." These accounts tend to obscure Madison's very specific purpose in writing the essay: to persuade moderate "swing" voters in the ratification campaign that the Constitution's enumeration of powers could safely be understood as a limitation on the proposed national government's powers. Pro-ratification Federalists were in a bind: the Constitution's text was so plainly ambiguous about whether the enumeration was exhaustive and limiting, or instead illustrative and open-ended, that this textual ambiguity could not be plausibly denied. Yet Federalists were compelled by the political and rhetorical structure of the ratification campaign to deny this ambiguity. Their solution was to make what modern public meaning originalists call a "contextual enrichment" argument, that a facial ambiguity can be resolved by reference to background interpretive principles. For this case, they concocted the now familiar argument that all "federal" constitutions"including both the proposed Constitution and the Articles of Confederation"presumptively limited the central government to its enumerated powers. The argument was dubious and widely disbelieved; worse, as Madison knew, the ambiguity was in fact the intentional product of a compromise at the Philadelphia Convention between nationalist advocates of broad legislative powers and "enumerationist" advocates of limited enumerated powers. Anyone looking to the Framers' intentions to resolve the ambiguity would confirm Anti-Federalist suspicions that the enumeration of powers was intended to allow a post-ratification Federalist government to exercise broad powers.

This article argues that Federalist 37 was written to address this specific problem. Madison realized the need to obscure the Framers' intentions and cover up the compromise over the enumeration of powers. He sought to do so in Federalist 37 by arguing that ambiguity about the "line of partition" between federal and state power resulted entirely from unintentional and innocent causes: the limits of language and human capacities, rather than an intentional, behind-closed-doors compromise. This argument, Madison hoped, would clear the way for him to elaborate the Federalists' "federal constitutions" argument in Federalist Nos. 39-45 that the enumerated powers were presumptively, and therefore unambiguously limited. In this light, the concept of "liquidation" briefly mentioned in a single sentence in Federalist 37 was of no value, since moderates concerned about excessive national powers would hardly be reassured by having this ambiguity "liquidated" by the Federalist-dominated governments that the ratifiers anticipated.
--Dan Ernst

Thursday, February 6, 2025

Brophy on the Jurisprudence of Antebellum Phi Beta Kappa Addresses

Alfred L. Brophy, University of North Carolina School of Law, has posted The Jurisprudence of Antebellum Phi Beta Kappa Addresses:

Ralph Waldo Emerson (NYPL)
Ralph Waldo Emerson spoke at Harvard University in 1837 in a Phi Beta Kappa address. That address known as American Scholar reaches for individual expression, not history and social hierarchy. There are many Phi Beta Kappa addresses, both before and after him. Many Transcendentalists orators at Harvard and a few anti-Transcendentalists orators as well. And many others who are optimists, technology, and utilitarians at many colleges. After the Fugitive Slave Act in 1850, three speakers of Harvard, Brown, and Yale advocated law, rather than conscience. All three of them were lawyers. There was a rich diversity of opinion: Transcendental oratory, anti-Transcendentalists, and optimist, technological, and utilitarian thought. 
--Dan Ernst

Wednesday, February 5, 2025

Snyder's "You Can't Kill a Man Because of the Books He Reads"

My Georgetown Law colleague Brad Snyder has published You Can't Kill a Man Because of the Books He Reads: Angelo Herndon's Fight for Free Speech  (W.W. Norton):

Decades before the impeachment of an American president for a similar offense, Angelo Herndon was charged under Georgia law with "attempting to incite insurrection"--a crime punishable by death. In 1932, the eighteen-year-old Black Communist Party organizer was arrested and had his room illegally searched and his radical literature seized. Charged under an old slave insurrection statute, Herndon was convicted by an all-white jury and sentenced to eighteen to twenty years on a chain gang. You Can't Kill a Man Because of the Books He Reads chronicles Herndon's five-year quest for freedom during a time when Blacks, white liberals, and the radical left joined forces to define the nation's commitment to civil rights and civil liberties.

Herndon's champions included the young, Black Harvard Law School-educated attorney Benjamin J. Davis Jr.; the future historian C. Vann Woodward, who joined the interracial Herndon defense committee; the white-shoe New York lawyer Whitney North Seymour, who argued Herndon's appeals; and literary friends Ralph Ellison, Langston Hughes, and Richard Wright. With their support, Herndon won his freedom and reinvented himself as a Harlem literary star until a dramatic fall from grace.

A legal odyssey of Herndon's narrow escape from certain death because of his unpopular political beliefs, You Can't Kill a Man Because of the Books He Reads explores Herndon's journey from Alabama coal miner to Communist Party organizer to Harlem hero and beyond. Brad Snyder tells the stories of the diverse coalition of people who rallied to his cause and who twice appealed his case to the U.S. Supreme Court. They forced the Court to recognize free speech and peaceable assembly as essential rights in a democracy--a landmark decision in 1930s America as well as today.

Here are some endorsements:

"Some works of history are top-down. Some bottom-up. You Can’t Kill a Man Because of the Books He Reads is both. Brad Snyder moves gracefully from the streets of 1930s Atlanta, where Angelo Herndon, a young Black radical, was charged with insurrection, all the way to the chambers of the U.S. Supreme Court. This is a hard and hopeful story. Snyder tells it with energy, economy, wide-ranging empathy, and quiet passion."

James Goodman, author of Stories of Scottsboro

"Angelo Herndon had been a Communist Party organizer for barely two years when the Atlanta police arrested him for attempting to incite an insurrection. In his careful, compelling new book, Brad Snyder recreates the extraordinary struggle to save Herndon from life on a Jim Crow chain gang for daring to promote ideas the authorities didn’t want to hear. A story of fundamental principles and unlikely heroes, expertly told."

Kevin Boyle, author of Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age

"A gripping story of how democracy triumphed under the most challenging circumstances. A timely book and a great read."

Patricia Sullivan, author of Justice Rising: Robert Kennedy’s America in Black and White

Kenneth W. Mack of the Harvard Law School will discuss the book with Professor Snyder over Zoom on Thursday at 7 p.m. EDT in an event sponsored by the Supreme Court Historical Society.  Washingtonians can hear Professor Snyder discuss the book in conversation with our Georgetown Law colleague Steven Vladeck at Politics & Prose on Connecticut Avenue, NW, on Friday, February 28 from 7 p.m. to 8p.m.  

--Dan Ernst

Tuesday, February 4, 2025

Kreis on the Anti-Coup Principle in US Constitutional Law

Anthony Michael Kreis, Georgia State University College of Law, has posted Coups and Punishment in the Constitutional Order, which is forthcoming in the Wisconsin Law Review:

This article examines the historical and constitutional foundations of an anti-coup principle in the United States, emphasizing how state-level prosecutions deter and can appropriately punish election subversion. Tracing its roots to English constitutional history and the Glorious Revolution, the anti-coup principle rejects arbitrary executive power. It underscores the need for accountability to sustain democratic norms against presidential self-coup conspiracies. Highlighting how presidential systems are vulnerable to autocoups, the article argues that the decentralized nature of American presidential elections and constitutional provisions, such as the Guarantee Clause, empower states to act as guardians against authoritarian threats. It further explores the historical evolution of voting rights through state constitutions. The article illustrates states' foundational role in protecting free and fair elections alongside the federal government, which supports using state prosecutorial power to punish wrongdoers who conspire to overturn lawful presidential elections. The article concludes that preserving democratic institutions requires cultural safeguards and the active enforcement of accountability mechanisms at the state level, ensuring that no individual or group undermines the rule of law and citizens' right to vote with impunity.

--Dan Ernst

Monday, February 3, 2025

Richotte's "Worst Trickster Story Ever Told"

Keith Richotte, Jr., has published The Worst Trickster Story Ever Told: Native America, the Supreme Court, and the U.S. Constitution (Stanford University Press):

When did the federal government's self-appointed, essentially limitless authority over Native America become constitutional?

The story they have chosen to tell is wrong. It is time to tell a better story. Thus begins Keith Richotte's playful, unconventional look at Native American and Supreme Court history. At the center of his account is the mystery of a massive federal authority called plenary power.

When the Supreme Court first embraced plenary power in the 1880s it did not bother to seek any legal justification for the decision – it was simply rooted in racist ideas about tribal nations. By the 21st century, however, the Supreme Court was telling a different story, with opinions crediting the U.S. Constitution as the explicit source of federal plenary power.

So, when did the Supreme Court change its story? Just as importantly, why did it change its story? And what does this change mean for Native America, the Supreme Court, and the rule of law? In a unique twist on legal and Native history, Richotte uses the genre of trickster stories to uncover the answers to these questions and offer an alternative understanding.

The Worst Trickster Story Ever Told provides an irreverent, entertaining synthesis of Native American legal history across more than 100 years, reflecting on race, power, and sovereignty along the way. By embracing the subtle, winking wisdom of trickster stories, and centering the Indigenous perspective, Richotte opens up new avenues for understanding this history. We are able, then, to imagine a future that is more just, equitable, and that better fulfills the text and the spirit of the Constitution.

--Dan Ernst

Saturday, February 1, 2025

Weekend Roundup

  • Dylan C. Penningroth will deliver Hidden Histories of Black Civil Rights, the 2025 Pro Lecture in Legal History at the William S. Boyd School of Law at the University of Nevada, Las Vegas, in conjunction with the UNLV Department of History, at 5:30 on February 11.  The program is free, but registration is required. 
  • John Fabian Witt will deliver "Antagonists and Enablers: A First Draft History of Biden and the Supremes," the Mitchell Lecture for Spring 2025, at 2 p.m. on March 14, at the Charles B. Sears Law Library, John Lord O’Brian Hall, University at Buffalo (North Campus).  Robert H. Jackson delivered the first Mitchell Lecture in 1951, titled “Wartime Security and Liberty Under Law.”  Other Mitchell Lecturers include Derrick Bell, Paul Freund, Lawrence Friedman, Carol Gilligan, Sheila Jasanoff, Duncan Kennedy, Karl Llewellyn, Stuart Macaulay, Catharine MacKinnon, and Richard Posner.  So, no pressure.  Register here to attend.
  • Former LHB blogger and president-elect of the American Society for Legal History Mitra Sharafi has won the Indian Law Review's article prize for 2023 for "Indian constitutionalism, the rule of law, and Parsi legal culture," which is available, open access, here
  • The organizing committee of the eighth European Society for Comparative Legal History’s biennial conference, "Back to the Past and Building the Future,” to be held at Szeged, Hungary, on July 2-3, 2025, “has launched a website containing information on accommodation, traveling, membership fee and registration fee.”  H/t: ESCHblog.  
  • The Sandra Day O’Connor Institute for American Democracy, the National Constitution Center and the Organization of American Historians are sponsoring a week-long, intensive summer workshop for “social studies educators who currently work in sixth–12th grade classrooms who have an interest in learning more about the history of the U.S. Constitution,” from Sunday, June 22-Friday, June 27.  It opens with a panel discussion including Jeffrey Rosen, David Blight, and Akhil Amar, which will be open to the general public and livestreamed.  More.
  • Congratulations to former LHB Blogger Emily Prifogle upon the Michigan Law faculty's vote to award her tenure.  H/T: WAKL
  • Former LHB Guest Blogger Marie-Amélie George reviews Margot Canaday’s Queer Career in LHR.
  • We did not know there was a Treasury Historical Association, much less that it awards a research prize, but we're glad we do now.  Let's get going on the history of this.
  • Here is the CFP for the annual meeting of the American Historical Association, to be held in Chicago, January 8-11, 2016. 
  • ICYMI: David Blight on birthright citizenship (The Atlantic).  Mark Thomas on originialism and impoundment (Notice & Comment). Howard University “Celebrates the Life of Alumnus Henry L. Marsh III" (Howard).

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

Friday, January 31, 2025

Erbsen on Presidential Power to Adjourn Congress

Allan Erbsen, University of Minnesota School of Law, has posted Constitutional Limits on the President's Authority to Adjourn Congress:

Can the President adjourn Congress, declare that the adjournment constitutes a recess, and appoint cabinet officers without the Senate’s consent? President-Elect Donald Trump has considered invoking this supposed power. Adjourning Congress would enable the President to appoint otherwise unconfirmable officials. Even if the President does not adjourn Congress, the looming threat of adjournment could chill the Senate’s review of nominees.

This Article concludes that the President cannot evade the Senate’s role in the appointments process by adjourning Congress. Three clauses in the Constitution inform the analysis: the Consent Clause, which requires each house to consent to the other’s adjournment; the Convening Clause, which authorizes the President to convene one or both houses in an “extraordinary” session; and the Disagreement Clause, which allows the President to adjourn Congress when the houses disagree about whether adjournment is appropriate. A plan that has percolated among some House members calls for manufacturing a disagreement with the Senate that the President would cite as a basis for adjourning Congress. I call this the “contrived adjournment plan.”

The contrived adjournment plan violates the Constitution for four independent reasons. First, the Constitution tethers the Disagreement Clause to the Convening Clause. The President may adjourn Congress only if the President convened at least one of the houses in an extraordinary session. If both houses convened on their own in a regular session, the President lacks power to adjourn them. Second, even if the Disagreement Clause applies to regular sessions, it does not enable the President to adjourn the Senate if the Senate allows the House to adjourn. The House and Senate each possess independent authority to continue meeting while the other adjourns. If the Senate permits the House to adjourn, then the Senate’s refusal to adjourn itself would not create a constitutionally significant disagreement that the President could resolve. Third, even if the President can force the Senate to adjourn, the Senate can reconvene to protect its role in the appointments process. The President can authorize the Senate to remain adjourned until a specified date, but cannot suppress the Senate’s inherent authority to reconvene on an earlier date. Fourth, even if the Senate could not reconvene, a forced adjournment of the Senate arguably would not create a “recess” that would permit the President to appoint officials without the Senate’s consent.

For the past 235 years, the Disagreement Clause has not been a cannon aimed at the Senate, waiting for a President to light the fuse. The Disagreement Clause has a narrow role that does not include empowering the President to evade Senate review of appointments. The Constitution’s separation of powers framework is more resilient than Machiavellian schemes assume.
--Dan Ernst

Schwartz on Dred Scott, Roe, and Enumerationism

David S. Schwartz, University of Wisconsin Law School, has posted An Ugly Common Ancestor: Dred Scott, Roe, and Enumerationism:

Roger Taney, CJ (LC)
The Dred Scott case holds a deserved place in the constitutional “anti-canon” of Supreme Court decisions that exemplify rejected constitutional views. But the complex history of the case, the convolution of the lead opinion by Chief Justice Roger Taney, and the complicated relationship between its two primary holdings have generated multiple, often conflicting arguments about its negative “lessons.” Such arguments—particularly that of Robert Bork arguing that Dred Scott is the “very ugly common ancestor” of Lochner v. New York and Roe v. Wade—have masked an important element of the Taney opinion: its central reliance on “enumerationism,” the doctrine of limited enumerated powers. This essay argues that the reasoning underlying Dred Scott’s holding striking down the Missouri Compromise—the holding that created the Republican backlash at the time—reflected, not a strong precedent for substantive due process, which was a mere makeweight argument, but instead turned on the core values of enumerationism. The opinion, whatever other lessons it supplies, demonstrates the close connection between enumerationism and slavery as well as the internal contradictions and incoherence of limited enumerated powers.
If you’ve been sleeping on the emergence of an anti-enumerationist, Madison-marginalizing revision of American constitutional history, Professor Schwartz’s paper is a good entrée.  See also his paper with my Georgetown Law colleague John Mikhail (The Other Madison Problem) and Professor Mikhail’s The Necessary and Proper Clauses and The Original Federalist Theory of Implied Powers, the latter of which would bring you up to speed quickly.

–Dan Ernst

Thursday, January 30, 2025

Blocher and Garrett on Applying History as Law

Joseph Blocher and Brandon L. Garrett, Duke University School of Law, have posted Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine:

The U.S. Supreme Court has long relied on historical evidence in constitutional cases, but recent years have seen a major change in how it does so: not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward. Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application. This transformation in the legal significance of history raises important questions for originalism as a practice of constitutional adjudication, not simply a theory of law. How are judges and litigants to implement the historical tests the Court has increasingly prescribed for them?

In the first Part of this Article, we show how lower courts have been tasked with assessing history and tradition in applying constitutional standards, often with little guidance regarding how to proceed or what quality and quantity of historical evidence suffices to satisfy those standards. We taxonomize the Court's standards, describing the different burdens and challenges that judges face in carrying out their obligation to apply these standards while developing a historical fact record.

In Part II, we show how lower courts and litigants have attempted to navigate this new doctrinal landscape. Their efforts have revealed serious complications and debates about fundamental matters like the fact/law distinction, record development, expert witnesses, and independent judicial factfinding. Less attention has been paid to the impact on litigants, who potentially face higher costs of research and briefing and legal standards that are more obscure and unpredictable. The result has been incomplete and sometimes deeply flawed decision-making, and-perversely-a growing disjunction between law and historical facts.

In Part III we provide some prescriptions. We argue that if constitutional cases are to turn on matters of historical fact, those factual determinations should be initially made with an opportunity for party development of historical facts, including with appropriate use of expert witnesses. If no such trial court record exists, appellate courts can and often should remand for one to be developed. Moreover, fixed standards of review must regulate review on appeal, accounting for the differences between questions of fact and law

If adequate rules and practices for finding and applying historical facts cannot be identified or soundly implemented, then originalist constitutional standards that call for the application of historical facts should be reconsidered—not necessarily because they fail in theory but because they fail in practice. Insufficient rules for fact-development and review on appeal result in ill-defined precedent and unworkable constitutional doctrine and will call into question the judicial enterprise of applying history as constitutional law.
--Dan Ernst

Wednesday, January 29, 2025

An Anthology on the "Origins of Company Law"

New from Hart/Bloomsbury: The Origins of Company Law: Methods and Approaches, edited by Victoria Barnes and Jonathan Hardman:

What were the origins of company law? How did it begin? Why did it change? There is no single answer to these questions. Each discipline, and sub-discipline, has a different approach and method that brings different facets of study to the fore. This multidisciplinary endeavour is immensely valuable for debates taking place now among policy-makers in the UK and US about returning to historic modes of company regulation.

The book brings together Anglo-American scholarship that will not only shed greater light on the history of company law but also influence contemporary debates about our ability to return to, or learn from, the past. Historical research has great value here because it not only generates new insights into the evolution of present legal rules, but also corrects misunderstandings and misapprehensions about them.

The book shows how this body of law developed to become the rules with which we are now familiar. It showcases antecedents of present debates, reveals regulatory lessons from previous legal regimes, identifies instances of path dependency, unpicks pivotal legal events, and explains drivers for legal change. The chapters re-evaluate the history of company law, and the knowledge gathered here will inform the law-making and policy-making agenda.

–Dan Ernst.  TOC after the jump.

Tuesday, January 28, 2025

Symposium: The Worlds of Pre-Modern Neutrality

[We have the following announcement.  H/t: H-Law.  DRE]

Symposium: The Worlds of Pre-Modern Neutrality (ca. 1400-1800): Norms, Institutions and Practices.  Antwerp, May 8, 2025 - May 9, 2025

To ensure their security in a world dominated by competing Great Powers, states have the choice between an alliance or a neutral position. If we consider the world as governed by brute force, neutrality (the choice not to participate in a conflict between two or more other polities) would merely be a factual condition, dependent on the big players’ goodwill. Even today the ongoing war in Ukraine and the geopolitical tensions between China and the US pose existential challenges to third countries and their positioning, demonstrating the persistent vitality of the concept of neutrality in the 21st century. This equally reverberates on third states’ nationals and other non-state actors. The articulation of the set of rights and duties associated with neutrality has a long pedigree in legal history. The rhetorical use of legal arguments is intertwined with the protection of one’s territory and population but also with the interdependence that fosters trade, especially at sea, connecting markets, spaces and peoples. Law and power are never disconnected in matters related to neutrality, a mutual and reciprocal influence of both tenets is usually present.

This symposium aims to contribute new insights to the long-term history of neutrality, focusing on its ‘pre modern’ dimension broadly understood (ca. 1400-1800). Indeed, the law of neutrality started to emerge in the Early Modern Age through the practices and beliefs of the European state system, but also from its interactions with non-European normative and cultural systems. Different but complementary angles of approach can be used to understand this phenomenon: e.g. diplomatic history, IR history, political history, economic history and legal history. Throughout history, polities as well as private actors have interpreted neutrality in flexible and divergent ways, e.g. proposing a proactive-assertive approach or a more passive and inward looking one.

Benefiting from multiple disciplinary perspectives, the symposium takes into consideration both the theory and the practice of neutrality, advancing our knowledge of the often-contested conceptualisation of legal regimes at sea as well as on land. Such a conceptualisation depended on the interaction between situations of peace and war, diverging across different temporal and spatial coordinates. The participants’ contributions will also unravel the recurrent misalignment between legal-dogmatic approaches and practical uses of knowledge, as well as its intellectual and bureaucratic production. As such, the symposium participates in a broader turn to bottom-up approaches in the history of international law, a booming field of interdisciplinary research.

[Complete schedule here.]

BU Spring 2025 History of International Law Speaker Series

[We have the following announcement.  DRE.]

The Frederick S. Pardee Center for the Study of the Longer-Range Future [at Boston University] is pleased to announce the International History Institute’s (IHI) Spring 2025 “History of International Law” speaker series. All three events will be held in the Pardee School of Global Studies’ Riverside Room at 121 Bay State Road. The series is open to the public. Please register to attend here.

Thursday, January 30 | 5:00-6:30 pm
Keynote Lecture: “The Law of International Society: Remarks on a Domesticated Notion”

Martti Koskenniemi, Professor Emeritus of International Law, University of Helsinki

Wednesday, February 26 | 4:00-5:30 pm
Book Talk: “Odious Debt: Bankruptcy, International Law & the Making of Latin America”

Edward Jones Corredera, Senior Research Fellow, Max Planck Institute for
Comparative Public Law and International Law

Discussant: Felipe Ford Cole, Assistant Professor, Boston College Law School

Wednesday, March 26 | 4:00-5:30 pm
Book Talk: “Arbitrating Empire: United States Expansion & the Transformation of International Law”

Allison Powers Useche, Assistant Professor of History, University of Wisconsin–Madison

Discussant: Andrei Mamolea, Assistant Professor of International Relations, Pardee School of Global Studies, Boston University

Berkeley Legal History Workshop

[We have the following announcement, which includes an abstract of Professor Weil's paper.  DRE]


Monday, January 27, 2025

Graduate Fellows Summer Research Institute in U.S. Law and Race

[We have the following announcement.  DRE]

Call for Applicants: Graduate Fellows Summer Research Institute in U.S. Law and Race, June 9-27, 2025.  Deadline: February 15, 2025

Funded by the Mellon Foundation, this three-week residential fellowship program supports four (4) graduate students in Summer 2025 at the University of Nebraska-Lincoln's U.S. Law and Race Initiative with the Digital Legal Research Lab. We seek proposals addressing race and racialization in U.S. law and history broadly, aiming to understand racialized people's use of the law to advance personhood, citizenship, rights, and sovereignty throughout American history.

The Fellowship: Fellows will workshop their research and writing, receive training in digital methods to support data structuring and analysis, contribute to an Open Educational Resource, and enjoy seminar-style discussion of shared readings. The 3-week program features tailored mentoring with U.S. Law & Race affiliate faculty and staff, along with opportunities to meet and network with UNL's History & Digital Humanities communities. Faculty mentors include William G. Thomas III (History), Katrina Jagodinsky (History and Women’s and Gender Studies), Jeannette Eileen Jones (History and Ethnic Studies), Donna Doan Anderson (History), Genesis Agosto (Law), Eric Berger (Law), Danielle Jefferis (Law), Laura Muñoz (History and Ethnic Studies), Jessica Shoemaker (Law), and Catherine Wilson (Law).

Benefits: $4,000 stipend; all housing and meals provided; and all travel costs are covered.

Eligibility: We seek Graduate Fellows researching topics broadly related to U.S. law and race. We are not able to accept proposals that are solely quantitative social science research. Fellows must be from Ph.D. programs in History or relevant humanities or humanistic social science disciplines, including joint J.D./Ph.D. programs. We are especially interested in applications from scholars who identify with traditionally underrepresented groups or attend Minority Serving Institutions.

How to Apply: To be considered for the Fellowship, you should send 1.) a letter of interest describing your research project, the writing you propose to workshop and how you would contribute to diversity, equity, and inclusion in the Initiative, 2.) a CV, and 3.) a list of two references the committee may contact. Please send materials to uslawandrace@unl.edu with the subject line "Mellon Graduate Fellows".

A PhD Studentship on Women Solicitors on England and Wales

[The Department of Law at Queen Mary University of London has announced the Lady Cruickshank PhD Studentship on Early women solicitors in England and Wales 1919-1939.  DRE.]

In 2016 Elizabeth Cruickshank published a paper entitled “'Follow the Money’: the first women who qualified as solicitors 1922-1930."  A central argument of “Follow the Money” was that women’s ability to practice law in the first two decades after the enactment of the Sex Disqualification (Removal) Act 1919 was primarily facilitated by family connections, in particular, by solicitor fathers seeking to replace their deceased soldier sons in the family law firm.

This studentship picks up the theme of “Follow the Money.”  Using previous research undertaken by Lady Cruickshank and the records of the Association of Women Solicitors, the studentship will facilitate the writing of a PhD thesis which explores Lady Cruickshank’s ideas.  The PhD awardee will work with supervisors to define the scope, research questions, and research methods for the doctoral project.

 It is envisaged that the research will include an examination of the following questions:

  1. To what extent and in what ways was the solicitors’ profession affected by World War One?
  2. What was the public and professional discourse surrounding the admission of women to the legal profession?
  3. What was the position of women who qualified as solicitors between 1922-1939?
  4. How many qualified? What can be said about them as individuals and as a group?
  5. Of those who qualified, how many were able to practice as lawyers? What were the obstacles facing aspiring women solicitors?
  6. How many trained and/or were employed in a firm to which they had family connections? Of those who trained and/or fund employment elsewhere?
  7.  How did this phenomenon affect the development of their careers and those of other women who did not or could not avail themselves of this pathway into the profession? For example, did      it curtail their professional development? Were they able to continue with feminist activism (where relevant)?  
  8. To what extent did women work as individuals or did they make use of informal or formal associations? To what extent did they make a difference to either the numbers or the experiences of early women solicitors?
  9. What barriers did women seeking to become lawyers during this period face?

[Applications close on March 3 for entry in September 2025.  The supervisors will be Caroline Morris and Judith Bourne.]

Sunday, January 26, 2025

ABF Chicago-area Legal History Workshop

[We have the following announcement from the American Bar Foundation (ABF).  DRE]

The ABF Chicago-area Legal History Workshop will be held periodically on Wednesday evenings at 4:00 pm (except where otherwise noted) at the 4th Floor Woods Conference Room of the ABF Offices (420 E. Superior St., Chicago, Illinois).

Wed. Jan. 29 (4:00pm start) – Christopher Schmidt (ABF, Chicago-Kent)

“The NAACP’s Campaign Against John Parker and the Making of the Modern Supreme Court”

Wed. Feb. 12 (4:00 pm start) –Josh Aiken (ABF/Yale)

Wed. Mar. 5 (4:00 pm start) – Dennis Wieboldt (Notre Dame)

Wed. Mar. 19 (4:00 pm start) – Rabia Belt (Stanford)

Wed. Apr. 2 (4:00 pm start) – Sally Hadden (W. Michigan)

Wed. Apr. 30 (4:00 pm start) – Yvonne Pitts (Purdue)

Saturday, January 25, 2025

Weekend Roundup

  • Congratulations to Rabiat Akande, University of Maryland Francis King Carey School of Law, upon being named the 2025 Wilson H. Elkins Professor by the University System of Maryland, which comes with “an award of $80,000 over two years to support a research project titled ‘Law and the Histories of Empire’” (The Elm). 
  • A nice notice by Ronald A. Brand of his University of Pittsburgh School of Law colleague and legal historian Bernard Hibbitts upon Professor Hibbitts's retirement.
  • The American Historical Association is hosting a congressional briefing on the history of the U.S. House of Representatives.  It will take place on Wednesday, January 29 at 9:00 a.m. ET in Rayburn House Office Building Room 2075.  The panelists are Kathryn Cramer Brownell (Purdue University), Matthew Green (Catholic University of America), and Rachel Shelden (Pennsylvania State University).
  • Pamela Brandwein reviews Mark Graber's Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform After the Civil War (Lawfare). 
  • Paul Moreno reviews Stuart Banner’s The Most Powerful Court in the World: A History of the Supreme Court of the United States (Law & Liberty).
  •  Talbot Publishing, an imprint of The Lawbook Exchange, Ltd., has published G. I. Tunkin: Selected Works, edited and translated by William E. Butler.
  • ICYMI: The Constitution disappears from the White House website (Newsweek).  Rockingham County (Virginia) Circuit Court is celebrating the restoration and digitization of “a Burnt Deed Book from 1815, a Land Book from 1878, and a Land Tax Book dating as far back as 1812" (WHSV).  "Harvard Outsources Program to Identify Descendants of Those Enslaved by University Affiliates" (Harvard Crimson).
  • Update: Mary Frances Berry on the Executive Order suspending civil rights enforcement (Yahoo/The Grio).  John Yoo on birthright citizenship (AEI).

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

Friday, January 24, 2025

Brennan Center's Polan Fellowship in Constitutional Law and History

 [We have the following announcement.  DRE.]

The Brennan Center [for Justice] is inviting applications for the 2025-26 class of the Steven M. Polan Fellowship in Constitutional Law and History, a fellowship program aimed at enhancing public understanding and appreciation of the meaning and promise of the United States Constitution. The Fellowship is open to outstanding individuals from an array of professional backgrounds – including historians and other experts in constitutional law and history – working on projects to spur urgently needed debate over the proper understanding of our Constitution at this crucial moment, when new approaches to constitutional interpretation including originalism, incubated by the conservative legal movement over the past half century, have gained traction in the courts. These projects may include conducting legal and historical research, publishing original writing, crafting amicus briefs, organizing symposia and public events, spearheading public education projects, and other activities as appropriate.

Proposals are due by February 15, 2025. These nonresident, part-time fellowships will be one year in duration. Fellows will be awarded compensation in the form of a $40,000 stipend. The Fellowship is open both to experienced individuals with a proven track record of achievement and expertise and to people at earlier stages of their careers who demonstrate the potential to develop into leaders in their field. We’re looking for visionaries who are animated by the challenge of reclaiming our Constitution as an enduring plan of government suited to the needs of a changing country.