Schwartz on Compact Theory and the US Constitution

David S. Schwartz, University of Wisconsin Law School, has posted The Birth of Compact Theory, which is forthcoming in the Journal of American Constitutional History:

"Compact theory" is the idea that the U.S. Constitution is a compact of the states: the act of sovereign states rather than that of "We the people of the United States." Compact theory interprets the Constitution as a confederative treaty according to international law principles of treaty interpretation: construing its grants of power narrowly, disfavoring implied powers and implied waivers of sovereign rights, and affording to each party to the compact the right to judge for itself whether the compact has been infringed. When was it first deemed plausible to interpret the Constitution according to these "confederationst" principles, as a compact of the states? This question is worth asking, not only for its intrinsic historical interest, but also for its implications for constitutional interpretation at a time when originalism has become so prominent. Historians have either ignored this question or simply assumed that compact theory began with the Virginia and Kentucky Resolutions of 1798, ghost-written for those two state legislatures by James Madison and Thomas Jefferson to protest the Alien and Sedition Acts of that year. But none have inquired into the provenance of compact theory ("its history before 1798") except for a handful of revisionists, who challenge the conventional assumption by arguing that a compact-theory interpretation of the Constitution was present throughout the founding. This article provides the first detailed account of the emergence of compact theory. Confirming the previously unsupported conventional belief, I argue that compact theory was pushed into the range of plausible constitutional discourse (the "Overton window" of constitutional interpretation) by the Virginia and Kentucky Resolutions. Although hints of a confederationist interpretation of the Constitution were offered as part of Federalist propaganda during the ratification campaign, strict constructionists did not deem such an interpretation plausible for the next decade. Compact theory was not argued in any of the salient constitutional debates of 1788-1798"such as the debate over the First Bank of the United States"where strict constructionists or "enumerationists," had a strong incentive to develop compact theory. Only when the crisis of the 1798 Alien and Sedition Acts motivated Jefferson and Madison to assert that the Constitution was a compact of the states, did compact theory first emerge. 

--Dan Ernst 

"Who Owns Civil Rights History?" by Chang and Lovelace; response by Gross

Volume 106 of the Boston University Law Review includes the article "Who Owns Civil Rights History?" by Robert S. Chang (UC Irvine School of Law) and H. Tim Lovelace, Jr. (Duke Law School). The abstract:

In this Article, Professors Chang and Lovelace argue that affirmative action litigation is not simply about college admissions but about putting America’s racial history—and future—on trial. They highlight the critical role that the Supreme Court plays in constructing our nation’s collective memory in which it operates, functionally, as a court of history. At stake is historical memory, which is used to produce the instant outcome but which then contains and constrains future possibilities. The litigation results in an “opinion of the Court” written by the victors. The word “opinion” belies the power that the victors have in
narrating the official history, which becomes authoritative in our precedent- based system. As a result, racial justice is being written out of the official civil rights history narrated in the “opinion of the Court." 

In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Court’s opinion does not use the word “affirmative action,” which allows Chief Justice Roberts to ignore how affirmative action was a critical part of the civil rights movement. This erasure allows him to characterize the civil rights movement and Brown v. Board of Education as if they were only ever animated by fealty to colorblindness. Part of constructing this revisionist civil rights history includes a repudiation of Korematsu v. United States. The Court, in essence, retroactively applies strict scrutiny to arrive at the conclusion that
Korematsu had been wrongly decided at the very moment that it applies strict scrutiny to Harvard’s and the University of North Carolina’s admissions policies to wipe out what it perceives to be the stain of race-conscious affirmative action. It asserts that this is precisely what Brown called for and requires. This parallelism in the application of strict scrutiny to the very disparate circumstances of Japanese American incarceration during World War II and affirmative action in selective college admissions becomes a central feature in the new challenges to race-conscious affirmative action at our nation’s military academies. This Article explores the invocation of Korematsu and Brown by litigants and the Court. It offers a corrective history of affirmative action to counter the Court’s erasure of that history.

The article is followed by a response by Ariela Gross (UCLA Law), titled "Erasing, Remembering Colorblindness." The response "expand[s] on" the article's "observations regarding the constitutional memory-work of SFFA, placing Chief Justice Roberts’ story in the broader context of the conservative movement’s memory of Brown and a colorblind Constitution." It "conclude[s] with a few thoughts regarding the alternative civil rights history Chang and Lovelace sketch that places affirmative action at its center." 

-- Karen Tani  

Goldstein on Constitutional Facts, Jurisdictional Facts, and the APA

Ari Goldstein, a 2025 graduate of the University of Pennsylvania Law School, has published The Lost World of Jurisdictional and Constitutional Facts in the Administrative Law Review:

According to the standard historical account, courts have deferred to agencies on questions
of fact since the early twentieth century. But that account is incomplete. In the world before
the APA, courts generally deferred to agencies only with respect to “ordinary” facts. With
respect to two particularly important types of facts—jurisdictional facts (facts on which an
agency’s jurisdiction over a dispute depended) and constitutional facts (facts on which an
individual litigant’s constitutional rights depended)—courts applied independent judgment
in a similar manner as they did to questions of law. There is strong evidence to suggest that
the APA was intended to incorporate this distinction between ordinary, jurisdictional, and
constitutional facts. This Article recovers the origins of the distinction and its status at the
dawn of the APA; considers its merits; and traces its evolution and diminishment in the
eight decades since then.

Dan Ernst 

Corcos on Tocqueville in Canadian Judicial Opinions

Christine A. Corcos, Louisiana State University Paul M. Hebert Law Center, has posted The Uses of Alexis de Tocqueville's Writings in Canadian Judicial Opinions, which appears in Moréteau on Law, Language and Heritage, edited by Agustín Parise, Mariano Vitetta and Michel Séjean (Praxis Jurídica Ediciones, 2026) 1:365-386 

At least one scholar, Nancy McCormack, has examined the reasons for which Canadian judges cite to philosophers in their writings. She notes that John Stuart Mill leads the list, but Confucius, Plato, Aristotle, Machiavelli, Thomas More, Hobbes, Locke, Descartes, and Kant are some of the other choices. Interestingly, she does not discuss Tocqueville. However, a number of Canadian judges have mentioned or discussed Tocqueville and his writings in their opinions, or cited passages from secondary sources that cite him. The most popular Tocquevillian writing for such jurists, whether in the majority or the dissent is Democracy in America, to support various views as they interpret the Charter and various statutes. Because he analyzed government in the areas of separation of powers, elections, judicial review, and human rights, these are the areas that judges find of great interest, and that they mine for quotations or support in cases in these issues come to the fore.

--Dan Ernst 

Weekend Roundup

• In Law & Liberty, Dennis Weiboldt (J.D., Ph.D. candidate, Notre Dame) writes about "Bob Jones's Warning." "By recalling the circumstances under which Bob Jones University v. United States reached the Court, both conservatives and progressives will find lessons about the perils that accompany the aggressive use of executive power to reform American colleges and universities." 

• 
  Rohit De and Ornit Shani have received the 2026 ICON-S Book Prize to historians for Assembling India’s Constitution: A New Democratic History (American Bazaar). 

• The Docket's interview of Anna O. Law about her book, Migration and the Origins of American Citizenship (Oxford University Press, 2026) Ilya Somin's Jotwell review of the book. 

•  An update on and review of the Constitutional History Project of the American Historical Association (AHA).    

• Regnat Populus: Digitizing 190 Years of Arkansas Constitutional History opened at the Mullins Library on the University of Arkansas campus (KUAF). 

•  The Morris/Sussex Vicinage of New Jersey Courts recently opened a self-guided exhibit on more than 270 years of Morris County's legal and civic history.

• On September 10 and 11, Lafayette College will host Democracy: Past, Present, and Future, a symposium featuring plenary talks by Hélène Landemore, political science at Yale, and Akhil Reed Amar, YLS, with a series of panel discussions, including more than twenty members of the Lafayette faculty.  

• The June 2026 issue of the Journal of American History has two articles of special interest to legal historians: The Empire of Military Necessity: General Orders No. 100, Atrocity, and the Law of Occupation between the Civil and Philippine Wars, by Justin F. Jackson and H. R. Haldeman, Dynastic Politics in California, and the Dismissal of University of California President Clark Kerr by Nick Fischer. 

• A series of satirical paintings of legal professionals by "the contemporary artist and fabulist Cassou."

• Lawbook Exchange's July catalog of Scholarly Law & Legal History. 

• ICYMI: David Blight on DJT and the Smithsonian (NYT).  Michael Dorf on Historical Analogies in Second and Seventh Amendment Cases (Dorf on Law).  Noah Feldman says that the Supreme Court’s originalism is dead, dead, dead (Seattle Times).  Lawyers Should Spend More Time Studying Legal History (Above the Law).  White House Defends 1882 Immigration Law Excluding Chinese Immigrants (Forbes).  A history of justices testifying before Congress (SCOTUSblog). What the American Founders Did Was a Reluctant Revolution: An Interview with Lee J Strang (Hungarian Conservative).

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

Clifford et al. on OCR Error Rates

Jim Clifford, Jacob Polay, and Jessica Jack, University of Saskatchewan, and Mark Humphries and Lianne C. Leddy, Wilfrid Laurier University, have posted Reading the Archive by Machine: An OCR Benchmark for Historians, 1612–1921, in Working Papers in Critical Search: 

A benchmark of six OCR systems (Tesseract, olmOCR 2, Chandra 2, Infinity Parser 2, GLM-OCR, and Gemini 3.5 Flash) on human-transcribed archival documents spanning 1612–1921: early-modern print, nineteenth-century newspapers, full multi-column pages, and handwriting. The free, open models a historian can run on their own hardware have caught up with the paid commercial service on printed sources — level on clean newspaper print, ahead on complex multi-column pages — leaving the commercial model a real lead only on difficult handwriting. Because accuracy has converged, the choice between tools is now practical rather than qualitative: it turns on layout fidelity and on speed and cost. We report per-content-type results, characterise each tool’s failure profile (olmOCR silently modernizes archaic spelling and collapses on multi-column pages; Gemini refuses some pages outright), and argue for a tiered workflow that transcribes a collection with a fast open tool and spends the paid model only on the pages that reward it. Every number is produced by the harness in the paper’s repository, and the expandable transcription panels are generated from the same result files, so the prose and the evidence cannot drift apart. This is Version 1.0 of a paper we intend to keep current as new models are released.

--Dan Ernst

Commons on Migrants and the Common Law in Early Modern Engalnd

Kathleen Commons has published, open access, Discovering ‘Immigration Control’ in England, c. 1540 – c. 1640 in The Historical Journal:

Migration history is a growing field – yet the legal status of migrants in early modern England has not yet been investigated in detail. Reconstructing the legal system that governed migrants in early modern England does not just add significant depth and nuance to histories of migration and migrants, but also provides fresh insight into the status of English subjects. Furthermore, it enables historians to trace longer histories of the exclusion of migrants from rights in England and Britain. This article reconstructs the common law governance of migrants between c. 1540 and c. 1640, showing how common law principles and practices excluded migrants from the rights-bearing status of English subjects. Rather than being governed by the law, migrants were substantively governed under prerogative, a form of governance repeatedly resisted by English subjects. Although some migrants could access (unstable) liberties granted under prerogative, for the most part migrants were also subject to discriminatory local bylaws and licences and commissions granted by the crown for their exploitation. The repeated ‘molestation’ of migrants by informers for working contrary to statute, and petitions against this harassment from migrants suggest this early modern system of immigration control was relatively well understood by both subjects and migrants.

--Dan Ernst 

Smith and Chang on Stravinsky's "Star-Spangled Banner" and the Law

Michael L. Smith, University of Oklahoma College of Law, and Yoo Jung Chang, a cellist, have posted Stravinsky's National Anthem:

Igor Stravinsky (LC)

In January 1944, famed composer Igor Stravinsky was scheduled to conduct the Boston Symphony Orchestra in performing his controversial arrangement of “The Star-Spangled Banner.” Before the performance took place, the police arrived in Stravinsky’s dressing room and informed him that his arrangement violated a Massachusetts law against altering the national anthem. Faced with the prospect of a criminal violation, and with the police already removing the offending arrangement from the music stands, Stravinsky opted to conduct the traditional version of the anthem.

This Article takes a deep dive into Stravinsky’s distinctive anthem arrangement, surveying its development, performance, and reception. Along the way, we dig into Massachusetts’s anthem restriction—a 1917 law that remains on the books to this day. In doing so, we address the parallels between the law’s wartime development and its wartime enforcement against Stravinsky. We argue that Stravinsky’s run-in with the police was unwarranted, both because Stravinsky’s arrangement did not violate the statute, and because the statute itself ran afoul of the First Amendment. Our historical investigation and analysis shed light on modern issues, including the phenomenon of patriotic outrage, the role of moral panic in the development and enforcement of the law, and the dangers of leaving unconstitutional zombie laws on the books.

--Dan Ernst 

Kastenberg on Historians in the Frick Libel Case

Joshua E. Kastenberg, University of New Mexico, has published, in the St. Louis University Law Journal, The Past May Be Uncomfortable: Frick v. Stevens, the Protection of Scholarly Inquiry, Knowledge, and a Free Society as a Retrospective and Salient Study for Our Time.  It is the first in a series of articles on historians as expert witnesses.  We will note the others as they appear.

The past may be “uncomfortable,” the Washington Post pointed out on July 1, 1966, before adding a far more serious observation: “[t]he suppression of history—which is to say the judgment of historians—is an incongruity of a free society.” A year earlier, Helen C. Frick sued Professor Sylvester K. Stevens in Pennsylvania’s Cumberland County Court of Common Pleas to prevent the publication of his recent history book, Pennsylvania: Birthplace of a Nation. She claimed that the book libeled her deceased father and caused her a loss of standing in the public’s estimation and emotional distress. Judge Clinton R. Weidner indicated his intention to decide the case on the state’s libel laws rather than to dismiss the suit on a First Amendment basis. Equally troubling, Weidner sided with Frick’s attorneys on their evidentiary objection to preclude Stevens from having distinguished historians testify as experts as to the merits of his book. In issuing his ruling, Weidner determined that the historian experts would simply provide otherwise inadmissible hearsay. Professional historians had, on at least eight occasions, testified as experts in state and federal trials as well as before Congress on critical issues such as arms reductions and neutrality legislation. Ironically, if not hypocritically, in 1935 Frick employed a professional historian, Frank Jewett Mather Jr. of Princeton University, when her curator sued her for libel. Perhaps from the vantage of the present, Frick’s lawsuit appears bizarre but in 1965 Pennsylvania’s libel laws included the phrase “tending to blacken the memory of the dead,” as did several other states, and in theory, these laws made her lawsuit feasible.

--Dan Ernst 

CFP: Notre Dame Legal History Colloquium

 [We have the following announcement.  DRE] 

Notre Dame Legal History Colloquium to Begin Third Year of Meetings, Now Accepting Presenter Applications

The Notre Dame Legal History Colloquium will again convene a series of workshops during the 2026-2027 academic year for emerging legal historians. Now in its third consecutive year of meetings, the initiative is financially supported by Notre Dame Law School and The Graduate School.

Formerly known as the ASLH/Notre Dame Graduate Legal History Colloquium, the forum provides early career legal scholars and practitioners with feedback on works-in-progress—an important step in fine-tuning research to a point where it can be submitted for publication. This year, the Colloquium has been restyled to ensure that law, master’s, and doctoral students, as well as faculty members in visiting or other term-limited positions (e.g., postdocs) are eligible to present their work.

The Colloquium was established in 2024 with the support of the American Society for Legal History. It was organized at that time by Dennis Wieboldt, who graduated from Notre Dame Law School in 2026. Over the last two years, the Colloquium has enabled more than 40 students from across the country to present their research. Articles workshopped at the Colloquium have already begun (or will soon appear) in leading journals, including the Yale Law Journal, University of Pennsylvania Journal of Constitutional Law, and Fordham Law Review Online.

Although the Colloquium has been restyled, its format will remain the same. Each presenter will be paired with a designated respondent, who is typically a senior scholar in the field. Previous respondents have included faculty from Notre Dame Law School, Harvard Law School, Yale Law School, the University of Chicago Law School, and the Northwestern University Pritzker School of Law. All works-in-progress will continue to be pre-circulated to prospective attendees to facilitate a robust discussion.

Now that Wieboldt has concluded his studies at Notre Dame Law School, the Colloquium will be co-convened by 3L Mintae Cha and history Ph.D. student Sophie Rizzieri. Cha, who formerly earned his Ph.D. from Princeton University, received the American Society for Legal History’s 2024 William Nelson Cromwell Dissertation Prize. The Prize is awarded annually to the best dissertation in any area of American legal history by the Society. Rizzieri’s research focuses on early American intellectual, social, and legal history.

During the 2026-2027 academic year, meetings of the Colloquium will be held at the Notre Dame Law School campus in Chicago on September 26, October 17, February 6, and March 6. An additional meeting will be held at the Law School’s South Bend campus on January 16.

Those interested in presenting at and/or attending meeting(s) of the Colloquium should indicate their interest here.

Hanna on Colvin's Bus Protest

Mark Hanna has published From Claudette Colvin’s expectation to bus desegregation in Browder v Gayle in the American Journal of Legal History:

In March 1955, 15-year-old Claudette Colvin refused to move from her seat on a Montgomery bus, setting in motion a chain of proceedings that culminated in the Supreme Court’s summary affirmance in Gayle v Browder. This article reconstructs a legal history of rights formation that begins from Colvin’s persistent expectation of equal treatment under the law and traces how that expectation moved through a dense procedural field and complex socialmovement infrastructure before stabilizing as a Fourteenth Amendment right in the desegregation judgment. The article situates this account within rights-consciousness scholarship, treating rights as historically situated, bottom-up constructions, but specifies normative expectations—expectations that resist adaptation to disappointment and are legible in contemporaneous records—as its core unit of analysis. Using arrest records, trial papers, pleadings, hearing transcripts, judicial orders, organizational minutes, correspondence, interviews, and contemporary media reports, it tracks how Colvin’s expectation moved through juvenile proceedings, movement strategy, and federal procedure into a ruling that dismantled Montgomery’s bus-segregation regime and helped shape the constitutional law of public transport, while analysing the legal and procedural mechanics deployed to obstruct desegregation and the strategic choices that overcame them. It concludes by sketching a legal-history method for studying rights formation that keeps grassroots expectations and their procedural trajectories in view, and uses that vantage to clarify how movement strategy, judicial practice, and the emergence of constitutional rights are linked in struggles against racial discrimination in public space. While consistent with accounts that emphasize the interaction of litigation and protest, the article’s central focus is on how grassroots expectations of constitutional right at the ‘bottom’ of a legal order can, in rare but illuminating cases, come to be stabilized at its apex.

--Dan Ernst 

Weekend Roundup

• Harvard Law's notice of Tanner Allread, newly appointed to the faculty.

• Andrea Scoseria Katz and Jane Manners have posted “Lost to History”: Uses and Abuses of the Past in Slaughter and Cook" (Just Security).  And see Lev Menand's  "The Federal Reserve Exception to the Slaughter Rule" (SSRN). 

• Yale's notice of Mark Peterson's The Making and Breaking of the American Constitution: A Thousand-Year History” (YaleNews). 

•  Aslı Ü. Bâli's review of Aziz Rana’s The Constitutional Bind (LPE). 

• Over at Balkinization: Alec Ewald (University of Vermont) on why you should put Frederick Douglass in your syllabus.

•  ICYMI: An exhibit on the judicial history of Broward County, Florida (FBN).

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

Bridges on Originalism without History

Khiara M. Bridges, UC Berkeley School of Law, has published the review essay Originalism Without History in the Yale Law Journal:

Originalism, the Supreme Court’s ascendant theory of constitutional interpretation, claims to dive deep into the historical archives to divine the meaning of the Constitution. However, one of the greatest ironies of originalism is that while it claims to be intensely interested in history, it eschews much of the past in practice. Originalists often rely on the assumption that only a thin slice of history matters. The archives before and after a particular moment—namely the Founding and the few years surrounding the ratification of the Reconstruction Amendments—are, as a matter of constitutional interpretation, regarded as irrelevant. Moreover, even during the narrow band of years germane to originalist analyses, the histories created by the vast majority of historical actors—that is, nonelites—are typically treated as immaterial to the interpretive endeavor. In this way, originalism suppresses much of history through its veneration of history.

Fascinatingly, there is a similarity between originalism and the assault on history currently taking place in the United States more broadly—an assault that was first framed as a struggle against “Critical Race Theory,” or “CRT,” but has since evolved into a struggle against diversity, equity, and inclusion, or DEI. Like originalism, the fight against “CRT” and DEI suppresses history—particularly, marginalized people’s histories—through its veneration of a mythologized version of this country’s past. This Review excavates the twin processes of historical suppression and veneration occurring in the judicial sphere and the larger political sphere in which the judiciary is embedded, and it situates the histories of constitutional transformation provided in Jill Lepore’s We the People and Akhil Reed Amar’s Born Equal within the contemporary war on history.

 --Dan Ernst

Wolf on Property Law as History

Michael Allan Wolf, University of Florida Levin College of Law, has posted Property Law as History, which is forthcoming in The Urban Lawyer:

Because property law and history are so inextricably intertwined, it has become even more important for law professors to share with students and colleagues the ways in which knowledge of history unlocks difficult concepts, suggests workable solutions to contemporary puzzles, and makes very dry concepts—destructible contingent remainders, running covenants, privity, and the Rule in Dumpor’s Case—much easier to digest.

Sampling from the doctrinal menu of a typical first-year property course--adverse possession, present estates and future interests, landlord-tenant, concurrent interests, servitudes, land transactions, eminent domain, regulatory takings, and zoning--this article identifies two aspects of the law of property as history, using two sets of property cases and doctrines. The first set of cases illustrates how history helps us to understand property law. The second set contains examples of how property law has actually made history. Because this article is presented to honor David Callies, many of the cases discussed share provenance in the Aloha State. 

--Dan Ernst 

Wolff on Legal History and Comparative Law

Lutz-Christian Wolff, Chinese University of Hong Kong, has published an article entitled Legal History and Comparative Law: Just the Flip Side of the Same Coin? in the Independent Law Journal:

The relationship between legal history and comparative law has always been subject to some debate. In recent years the topic has become even more controversial because comparatists have called for a broadening of the scope of comparative law to cover also legal history or even to regard legal history as a subset of comparative law. This article demonstrates that legal history and comparative law do indeed share many common features but also face the same identity crisis as it is difficult to pinpoint distinguishing features which make both areas separate disciplines. From a functional point of view legal history and comparative law are largely identical. The acknowledgement that legal history and comparative law are thus just the flip side of the same coin can eventually lead to the creation of significant synergies.

--Dan Ernst 

Coffey on Double Jeopardy

Ger Coffey, University of Limerick, has posted A History of the Common Law Double Jeopardy Principle: From Classical Antiquity to Modern Era:

The double jeopardy principle is a guarantee of individual liberty that has ancient origins. The development of the principle has been incremental, and its meaning has varied through the ages. The research question and attending analyses presented in this article advances an examination of the evolution of the double jeopardy principle in historical context. Through doctrinal analysis the hypothesis advances the supposition that the common law principle was firmly established by the post-medieval period. Through an examination of landmarks in the development of the principle the article examines theoretical underpinnings and considers the extent to which the criminal justice system developed a public prosecution model of criminal justice. The incremental development of this fundamental principle of criminal justice can be explained in terms of the deficiencies in medieval criminal procedure, prejudices and practices of medieval trial procedure and punishments imposed on convicted offenders. Jurisprudence on the application of the principle indicates significant developments following the Restoration. 

--Dan Ernst 

Smith on Erie

Thomas A. Smith, University of San Diego School of Law, has posted a reconsideration of Eire Railroad Co. v. Tompkins, entitled, Overruled from the Chair: A Study in Umbesetzung

This Article reads Erie Railroad Co. v. Tompkins (1938) not as the correction of a century-old error but as a conquest, and it borrows from Hans Blumenberg the concept of Umbesetzung, or reoccupation, to describe how the conquest was carried out. The classical order that Swift v. Tyson had restated, in which courts were understood to find a general law they had not made rather than to enact the law of a sovereign, was not moribund in 1938. It was alive, with a pedigree older than the Republic, and it would outlive its own obituary by the better part of a century. Erie did not refute that order; it redescribed it, adopting the delegitimating premise Holmes had pressed across three failed dissents, that law must be traceable to an identifiable sovereign author, and treating that premise as though the Constitution had supplied it. The Court then reached, sua sponte and past a narrower statutory ground a concurring Justice had shown to be sufficient, for a constitutional holding whose operative language it borrowed verbatim from Holmes’s own dissent. The result was a killing performed with the grammar of an autopsy, an overruling conducted from a chair its occupant had not vacated. The Article traces the emptying of the classical position across Holmes’s dissents and its formal occupation in Brandeis’s opinion and then turns to the modern general-law revival, which recovers the found-law form while leaving the classical substance where the conquest left it. It closes on the irony that the man who completed positivism’s victory was not a positivist but a moralist, evidence that a method has truly won when even its opponents must speak its idiom.

--Dan Ernst 

Wilson, "The Disability History of Brown v. Board of Education"

An article of interest from Britney Wilson (New York Law School): "The Disability History of Brown v. Board of Education," Washington and Lee Journal of Civil Rights and Social Justice 32, no. 1 (2026).  The abstract:

In 1952, two years before the Supreme Court of the United States decided Brown v. Board of Education, Black deaf students in Washington, D.C., who had been prohibited from attending the local school for white deaf students and forced to go to school in Maryland, won the right to be educated in their hometowns in Miller v. Board of Education of District of Columbia. Brown is heralded as one of the most important racial justice cases of all time. It overturned Plessy v. Ferguson's longstanding "separate but equal" mandate and ruled that the segregation of students based on race violates the equal protection clause of the Fourteenth Amendment. However, less is known about Brown's connection to disability history. Beyond the obvious similarities between Miller and Brown, the attorneys who represented the plaintiffs in Miller also represented the plaintiffs in Bolling v. Sharpe, one of the five companion cases that ultimately comprised Brown v. Board of Education. Additionally, one of the named plaintiffs in Gebhart v. Belton, another one of the Brown companion cases, challenged the segregation of Delaware schools so that her daughter, who had a heart condition, would not have to travel several miles to attend the only high school in the state for Black students. Yet, when most civil rights legal scholars discuss the history of Brown, its disability history is not part of the story. Additionally, when disability legal scholars discuss Brown, the primary conversation concerns Brown as a precedent for the right of students with disabilities to be educated in integrated settings with nondisabled students, not the role of disability in Brown itself. This Article uses Miller and Gebhart to challenge what I call the Black civil rights-disability rights binary-the traditional characterization of "Black civil rights" and "disability rights" as separate and chronological movements-found in legal scholarship and advocacy. It situates Miller within the context of other key cases whose incremental precedents set the stage for the victory in Brown. Using case filings and other primary sources, it also examines civil rights attorneys' advocacy for racial equality on behalf of Black disabled students considering the attitudes towards race at the time, let alone the attitudes towards other marginalized identities like disability. This Article concludes that the recognition of the disability history of a prominent civil rights case like Brown adds important nuance to the story of desegregation. Its absence helps explain the often-critiqued challenges to intersectional organizing and reveals important lessons for the improved inclusion of disability in civil rights advocacy more broadly.

Read on here.

Weekend Roundup

• Rosa Goluboff and G. Edward White reflect on the enduring legacy of the Declaration of Independence (Virginia Law). 

• William Novak reflects on Polan Fellowship and the Future of Democracy (Michigan Law).  

• Legal historian Jennifer Mnookin is now president of Columbia University (NYT). 

•  For Most of Its History, the Supreme Court Didn’t Pretend to Be Apolitical: a preview of Rachel Shelden's forthcoming The Political Supreme Court: A Forgotten History (TPM).

• The Max Planck Institute for Legal History and Legal Theory is expanding its collaboration with India through the launch of the Centre for Legal History of India, in cooperation with the National Law School of India University in Bangalore and the NALSAR University of Law in Hyderabad. 

• 
  
  The July newsletter of the Historical Society of the District of Columbia Circuit is here.  It includes a report of the Society's recent panel on U.S. v. Lewis “Scooter” Libby.

• A new exhibit at the Law Library of Congress: The US Code at 100.

• From the Touro Law Review: a podcast episode featuring David S. Reynolds, interviewed by Rodger Citron, on Reynolds's recent book The Two Ships That Shaped America: The Mayflower, the White Lion, and the History of the Nation.  

• ICYMI: Sarah Trott on the five time the U.S. Constitution has come under threat (Conversation).   Anna Snyder asks, Why do historians complicate things? (Contingent).   Guénaël Mettraux on the history of war crimes (Articles of War).  The history of fireworks in Ohio (CNO). An interview with Jill Lepore on the Constitution (Jacobin).  Herbert Hovenkamp on the history of the rule of reason in antitrust law.  

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

Shanks-Dumont on Godzilla and the Imaginal Legal History of Ecocide

Daimeon Shanks-Dumont, a Ph.D. Candidate in the Jurisprudence and Social Policy Program at the 
University of California, Berkeley, School of Law, has published Godzilla Cinema and the Imaginal Legal History of Ecocide in the Yale Journal of Law & the Humanities:

This Article develops a theory of imaginal legal history in the service of recovering aspects of social phenomena that are habitually suppressed in contemporary modes of legal history. It offers a retrospective account of the emerging international crime of ecocide through the use of unlikely source material: Godzilla cinema. Through the use of moving images, this history surfaces latent meaning within the concept of ecocide that has been concealed in traditional narratives, namely an anthropocentric grounding that is at odds with its self-professed environmentalism.

The Article is divided into two main Parts. The first lays out a speculative theory of imaginal history. It begins by critiquing the dominate modality of professional historiography, contextualism, and the reduction of narrative that is a result of the hegemony of the written word. It then considers how images operate in and through legal practices and materials as a general matter of symbolic ordering, before moving on to discuss what the concept of the imaginal offers legal-historical study. It then outlines a novel methodological paradigm—imaginal legal history—that promises a way out of the obsession with radical contingency that has arrested legal history since its encounter with Critical Legal Studies in the 1980s.

The second Part is an attempt to operationalize imaginal legal history with film—to create what Walter Benjamin called a “critical constellation”—to better appreciate current efforts to leverage international law to address the climate crisis. It begins by explaining why Godzilla cinema is an apt repository of moving images with which to engage the histories of international law, arguing that the genre’s global scope, international scale, and deep inventories of symbolic imagery and fantasy recommend it as a tool of imaginal legal history. It then analyzes a foundational moment of international environmental law’s history in the 1960s and 1970s—the invention of the concept of ecocide, the beginning of the modern environmental movement, and the articulation of environmental consciousness in American jurisprudence. Finally, the Article “reads” the 1971 film, Godzilla vs. Hedorah, and what its imagery, symbolism, and structure reveals of contemporaneous and current environmental and legal consciousness.

The dénouement comes in the Conclusion, which takes the montage of images brought forward in the Article, dissolved of their contexts, and through a critical interpretation integrates them in ecocide’s horizons of meaning. A short Coda to the text follows, meditating on a materialist reading of Godzilla vs. Hedorah, and the traces of the Real that survive in the interstices of the film.

--Dan Ernst 

Bayefsky on Tradition and Feminism in Constitutional Adjudication

Rachel Bayefsky, UVA Law, has published Tradition and Feminism in Constitutional Rights Adjudication in the Virginia Law Review:

In recent years, “tradition” has been influentially invoked in constitutional rights adjudication and legal scholarship. The Supreme Court, in contexts ranging from abortion to the Second Amendment to freedom of speech, has looked to tradition to illuminate the contours of constitutional rights and the boundaries of permissible government regulation. Some legal theorists have defended “traditionalism” as a way to tether constitutional rulings to the people’s customs instead of judges’ moral views.

From a feminist perspective, the rise of tradition may be cause for concern, if not alarm. Why integrate into constitutional rights adjudication the practices and understandings of eras in which women were subject to severe political, economic, and social subordination? Yet the relationship between feminism and traditionalism depends on the form that traditionalism takes: what it is, how it is justified, and how it responds to moral critique.

This Article unpacks the idea of tradition, and it investigates the interaction between tradition and women’s rights in constitutional law. I argue that a concern for tradition, properly understood, contains resources to guide an approach toward constitutional adjudication that can be conducive to, rather than hostile to, women’s rights. For example, traditionalists often seek to glean insight from concrete experience rather than relying on abstract principles; they should therefore examine a range of experiences, including those of women. And the traditionalist interest in continuity supports acceptance of the last century’s advancements in women’s rights rather than attempts to “roll back the clock.”

Thus, values integral to traditionalism can support positions favorable to women’s rights. I apply this view of tradition to several constitutional questions, including the right to contraception, the permissibility of public single-sex education, pregnancy discrimination, and the scope of the Equal Protection Clause. I also engage in broader reflection about the determinacy of traditionalist analysis and the relationship between traditionalist reasoning and moral evaluation.

--Dan Ernst 

Anderson on the Trinity Church Property Dispute

Jerry L. Anderson, Drake University Law School, has posted The Battle for Lower Manhattan: Trinity Church versus the Bogardus Heirs:

Trinity Church (NYPL)

The descendants of Dutch colonists fought for over two centuries to reclaim title to sixty-twoacres in lower Manhattan, granted by England to Trinity Church in 1705. The battles, both physical and legal, reached a climax in the mid-1800s, when New York's highest court ruled for Trinity in a series of cases. The rulings relied on Trinity's lengthy possession of the tract, illustrating how adverse possession in early American history helped create the certainty of title necessary for economic development. 

--Dan Ernst 

Grewel, Reddy and Shah on Administrative Law and the Making of the CPI

David Singh Grewal, Sanjay G. Reddy, and Sarang A. Shah have published The Hidden Politics of ‘Affordability’: Administrative Law and the Making of the Consumer Price Index in the Stanford Law & Policy Review:

Perhaps no issue has greater political salience in the United States today than “affordability.” Yet the task of constructing official measures of the cost of living is widely understood to be a neutral, technocratic endeavor. The choices involved—which goods to include and how to weight them, how to account for regional variation, which administrative and business data to use—are seen as difficult yet tractable operational questions. For much of the twentieth century, however, cost-of-living measures were the subject of ongoing conflicts between capital and labor and were understood to require contestable normative judgments. By examining the historical development of the most widely used price index, the Consumer Price Index (CPI), we show how this older understanding shifted under the pressure of new kinds of economic expertise as well as changes in administrative law and procedures. Cost-of-living measures were claimed increasingly to be constructed according to neutral or objective standards, with professional economists playing a key role in devising and legitimating them. This new, more sophisticated approach, which was favored by big business, obscured the unavoidably discretionary aspects of price-index construction, and in particular the need for a price index to be underpinned by appropriate normative judgments. As a result, most recent revisions to the CPI have failed to realize its original aim: to capture changes in the requirements for living in “decency and health.” Identifying this shift in the construction of price indexes sheds light on several historical and contemporary controversies concerning inflation, wages, and changing living standards, as well as how changes in administrative law and the judicial review of agency decision-making pushed officials toward these more ostensibly neutral measures, thus laying the groundwork for this historical transformation in the CPI. This diagnosis thus suggests a better way forward: policy changes to restore a proper normative grounding to the CPI to redress its current limitations in capturing “affordability.”

--Dan Ernst