Weekend Roundup

• From the Chronicle of Higher Education: Adam Sitze (Amherst College) on "The Strange History of University Autonomy — and Why We Need It More Than Ever."

• "Miscarriage is a Crime Again": over at Nursing Clio, Lara Freidenfelds draws connections between the contemporary U.S. and early modern England.   

• A recording of Kim Lane Schepple's really terrific Robert H. Jackson Lecturer on the Supreme Court of the United States.at the Chautauqua Institution is here.  "Professor Scheppele’s lecture focused on Robert H. Jackson and constitutional separation of powers": Court-packing, destroyers for basis, North American Aviation, Nuremberg, Youngstown, and Trump v. United States.  With an introduction by John Q. Barrett.

• 
  MIT's notice of Malick Ghachem’s new book, The Colony and the Company: Haiti after the Mississippi Bubble, which "examines the pre-revolutionary changes that set Haiti’s long-term economic structure in place." 

• Patrick S. O'Donnell on "The Haitian Revolution and Jacob Lawrence: Exemplifying Historical Narrative, Values and Purposes through Art."

• Check out A.B. Hart's Suggestions on the Study of History (1893).  H/t: MSB. 

• "The Supreme Court of Ohio is staying open late to the public on Sept. 9 with two evening tour offerings. ... See Ohio’s rich history on full display at the Thomas J. Moyer Ohio Judicial Center" (CNO).  

• "Three UMass Dartmouth School of Law 2L students, Patrick Wilson, Adyen Artica, and Nathan Gudas, helped North Shore government officials verify approximately 200 property deeds containing racist or discriminatory language, contributing to a broader effort to clean "dirty deeds" in southern Essex County, as part of their legal internships at the Essex Registry of Deeds" (UMass Law).

• "Patrick T. Conley has donated his 1,500-volume private collection on American legal and constitutional history to the Roger Williams University School of Law" (Warwick Beacon). 

• The Brennan Center Fellows Eric Ruben and Andrew Willinger's essay on the Supreme Court's reliance  on historical scholarship in Second Amendment case.  

• Patrick O'Donnell also has an essay on the criminal defense and cause lawyer Charles R. Garry (1909-1991).

• On September 21, 2025, 5:00 pm -6:00 pm, Jill Lepore will discuss her new book on the Constitution, We the People, at Politics and Prose, 5015 Connecticut Ave NW, Washington, DC PoPVille). 

• "Tulane University School of Law invites applications from entry-level and lateral candidates for one or more tenure-track faculty positions.  We welcome applications from candidates with teaching and research interests in all topics, but we are particularly interested in candidates who focus on torts, business organizations, and commercial law."  More. 

• ICYMI:  Thomas Edsall on the Mind-Boggling Intrusiveness of Donald J. Trump, with quotes from Terri Bimes, Matt Dallek, Bruce Miroff,, Jack Rakove, Rogers Smith, Jeremi Suri, Sean Wilentz et al. (NYT).

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

Whittington on Birthright Citizenship

Keith E. Whittington, Yale Law School, has posted By Birth Alone: The Original Meaning of Birthright Citizenship and Subject to the Jurisdiction of the United States:

The citizenship clause of the Fourteenth Amendment entrenched birthright citizenship into the Constitution. Building on a recent revisionist scholarly literature, President Trump's executive orders have asserted that the scope of birthright citizenship should be understood to exclude children born on American soil to parents who are unauthorized to be in the country or authorized to be in the country for only a limited purpose and period. This asserted limitation of birthright citizenship is at odds with the original meaning of the Fourteenth Amendment and the antecedent common-law rule of nativity that the language of the Fourteenth Amendment embodied and declared.

--Dan Ernst 

Palau-McDonald on Farrington v. Tokushige

MJ Palau-McDonald, University of Hawai’i at Manoa--William S. Richardson School of Law, has posted Farrington v. Tokushige: Language & Power in Hawai’i:

In Farrington v. Tokushige (1927), the U.S. Supreme Court struck down on Fifth Amendment grounds a series of laws enacted by the Territory of Hawai'i to control and ultimately eradicate private Japanese language schools. Legal commentary on Tokushige is sparse. The case is often characterized as a straightforward application of Pierce v. Society of Sisters (1925) and Meyer v. Nebraska (1923). Together, Tokushige, Pierce, and Meyer are often cast as the Court’s public education chapter of the Americanization period. However, viewing Tokushige as a simple extension of Meyer and Pierce alienates the case from its historical context of white elites’ attempts to maintain political and economic control in the Territory in the face of a growing population of Nisei (U.S.-born children of first-generation Japanese immigrants), who, unlike their parents, were U.S. citizens with the right to vote. In this way, the Territory’s anti-Japanese movement was distinct from concurrent Japanese exclusion initiatives in California and Washington, which revolved around attempts to prevent Japanese land ownership and economic ascension, though the fear of the “yellow peril” was the fulcrum around which these movements metastasized. Through an examination of the social and legal history behind Tokushige, this article reinserts the significant racial dynamics that undergirded the events, the cultural depictions, and the legal justifications for the Japanese school control legislation that was lost in the Court’s sterilized decision. It also resituates Tokushige within the context of U.S. colonization and the forces that justified control over Hawai’i’s politics, land, and culture. The case’s unique history is inextricably intertwined with the establishment and maintenance of U.S. hegemony in the Pacific. Recontextualized, Tokushige implicates core questions of power that are increasingly relevant today, including who has access to political and economic power and who creates the conditions for access to that power.

--Dan Ernst 

Dabhoiwala's "What Is Free Speech?"

Fara Dabhoiwala, Princeton University, has published What Is Free Speech? The History of a Dangerous Idea (Harvard University Press):

Every premodern society, from Sumeria to China to seventeenth–century Europe, knew that bad words could destroy lives, undermine social order, and create political unrest. Given the obvious dangers of outspokenness, regulating speech and print was universally accepted as a necessary and proper activity of government. Only in the early 1700s did this old way begin to break down. In a brief span of time, the freedom to use words as one pleased was reimagined as an ideal to be held and defended in common.

Fara Dabhoiwala explores the surprising paths free speech has taken across the globe since its invention three hundred years ago. Though free speech has become a central democratic principle, its origins and evolution have less to do with the high-minded pursuit of liberty and truth than with the self-interest of the wealthy, the greedy, and the powerful. Free speech, as we know it, is a product of the pursuit of profit, of technological disruption, of racial and imperial hypocrisy, and of the contradictions involved in maintaining openness while suppressing falsehood. For centuries, its shape has everywhere been influenced by international, not just national, events; nowhere has it ever been equally available to women, the colonized, or those stigmatized as racially inferior.

Rejecting platitudes about the First Amendment and its international equivalents, and leaving no ideological position undisturbed, What Is Free Speech? is the unsettling history of an ideal as cherished as it is misunderstood.

Here is a recording of Professor Dabhoiwala's recent book talk at Politics and Prose.

--Dan Ernst

Center for the Study of Law and Society Speaker Series Fall 2025

The Center for the Study of Law and Society at the University of California, Berkeley, has announced the lineup for its Fall 2025 speaker series. Of particular interest to readers of this blog:

• August 25: Stephanie Jones-Rogers (UC Berkeley), "Puer Sequitur Parentis and Coniugis Sequitur Coniugis?: British Laws of Slave Descent on the Eighteenth-Century Gold Coast" 

• November 3: Justin Simard (Michigan State University College of Law), “Agents of Commerce: Transactional Lawyering in the 19th Century United States”

The full line-up is available here.

If your institution runs a legal history workshop and you'd like us to post your schedule, please be in touch! 

-- Karen Tani 

CFP: American Political History Conference

[We have the following CFP.  DRE]

Call for Proposals: American Political History Conference, June 4-6, 2026, Johns Hopkins Bloomberg Center, Washington D.C.  Proposal Deadlines: December 31, 2025

“American Democracy as Political History: Challenges across the Past, Present, and Future"

 A strong understanding of the past is critical to strengthening American democracy and to navigating the seismic shifts happening in our nation today. This conference will explore the social, economic, and cultural pathways that created this current political moment and provide essential insights on how to address pressing issues of polarization, injustice, inequality and democratic erosion. This event will bring political historians and other historically minded scholars into conversation with one another and the broader public to grapple with the democratic challenges facing the vast “American project” at the nation’s semiquincentennial. It will challenge the traditional categories of political history — liberal and conservative, elite and populist, rural and urban — as well as subfield divisions that have produced disciplinary silos. It will create opportunities to build networks, share new research, debate ideas, think about the contemporary implications of this research, and discuss strategies for public engagement.

We invite panel and paper submissions that reflect the diversity of the field of American political history, from the colonial era to recent history. We especially encourage roundtable and workshop ideas that will foster dynamic conversations about how we write and understand political history across time periods, subfields, and disciplines. We welcome sessions that challenge traditional paradigms in political history and address broad historical time periods. We especially encourage conversations that include scholars working in the eighteenth and nineteenth century. We also welcome historians from different arenas—including academia, public history, public policy, journalism, documentary film, television, podcasting, and radio—to launch conversations about the contemporary meaning and uses of history. More than just sharing specific historical insights, this conference aims to bring together an intellectual community of historians within and beyond academia to inspire conversations about the uses of history, the public responsibilities of historians to engage broader audiences, and the skills needed to do this.

The program committee is deeply committed to inclusion and diversity. Successful session proposals will be attentive to gendered, racial, and career diversity among participants. In service of this goal, we have limited funds available to support graduate students and contingent faculty. The conference will be held in-person, with provisions made for international scholars concerned about entry into the U.S.

Submissions should be up to 500 words with proposals for individual papers or panel, roundtable, or workshop sessions. Each proposal should also include a biographical statement for each participant of up to 150 words that includes contact information. Please submit proposals in one Word or PDF document to brownell@purdue.edu by December 31, 2025.

Program Committee:

Kathryn Cramer Brownell, Purdue University (co-chair)
Nicole Hemmer, Vanderbilt University (co-chair)
Leah Wright, Johns Hopkins University (co-chair)
A.J. Bauer, University of Alabama
Kellie Carter Jackson, Wellesley College
Bobby Cervantes, Harvard University
Lindsay M. Chervinsky, George Washington Presidential Library at Mount Vernon
Elizabeth Hinton, Yale University
John S. Huntington, Houston Community College
Michael Koncewicz, New York University
Cecilia Márquez, Duke University
George Derek Musgrove, University of Maryland Baltimore County
Gautham Rao, American University
Rachel Shelden, Penn State University

This conference is made possible in part by funding from the Johns Hopkins Nexus Award grant.

Native Peoples, American Colonialism, and the US Constitution

[We have the following announcement from the Bonnie and Richard Reiss Graduate Institute for Constitutional History at the New York Historical, which is not to be confused with the  Institute for Constitutional Studies at the George Washington University Law School.  DRE.]

The Bonnie and Richard Reiss Graduate Institute for Constitutional History is pleased to announce its fall 2025 seminar for advanced graduate students and junior faculty, Native Peoples, American Colonialism, and the US Constitution. 

Description.  As the United States marks the 250th anniversary of the Declaration of Independence, this seminar invites a critical examination of a central paradox in American constitutional history: how can a nation celebrate a founding document and constitutional tradition built, in part, on the dispossession of Indigenous homelands? 

From the Founders’ long-standing relationships with Native nations to the grievances lodged regarding ‘merciless Indian savages’ into the Declaration, Indian affairs and westward expansion were foundational to the creation and evolution of the US Constitution.  The Northwest Ordinance laid the “blueprint for empire” for federal imperial expansion from thirteen states clinging to the Eastern seaboard to a nation that stretched “from sea to shining sea,” while the United States Constitution excluded “Indians not taxed” from American polity—in so doing, also codifying the specific subordination of a people by name within constitutional text. 

Despite this deep entanglement, Native history remains marginalized within the fields of constitutional history and mainstream constitutional scholarship.  This seminar explores emerging historical and legal literature that re-centers Native peoples and American colonialism in the narrative of US constitutional development.  Topics include the role of Native peoples and “Indian affairs” in the Constitution’s initial drafting and ratification and the legal architecture of colonial expansion.  The seminar will also explore how centering Native peoples allows for a rethinking of United States constitutional history and American public law more broadly.

Logistics.  The seminar meets at the New York Historical, 170 Central Park West, New York, NY 10024, and via Zoom,* on the following dates:

    Friday, November 7, 2025 | 11 am–2 pm ET
    Friday, November 21, 2025 | 11 am–2 pm ET
    Friday, December 5, 2025 | 11 am–2 pm ET
    Friday, December 12, 2025 | 11 am–2 pm ET

*Although we encourage students to attend the class in person, livestream participation will be offered to admitted students who do not live in the New York Metropolitan Area or who are unable to attend a class in person. If you are interested in attending some or all of the class sessions virtually, please indicate this in your application statement.

Accepted students will receive further instructions and the classroom location within The New York Historical.  There is no tuition or other charge for this seminar, though participants will be expected to acquire the assigned books on their own.

Instructors.  Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe) is a professor of law at NYU whose work explores the relationship between law and power, with a focus on how subordinated peoples leverage legal tools—often beyond rights and courts—to shift power to their communities.  Her scholarship appears in leading journals, including Harvard Law Review, Yale Law Journal, Supreme Court Review, American Historical Review, Journal of Politics, among others.  Her recent projects, including the Foreword The Constitution of American Colonialism, investigate how the American colonial project, including the resistance and advocacy of Native and other colonized peoples, shaped U.S. constitutional law and history.  She is currently at work on two book projects that examine American colonialism, the field of “colonial administration,” and its boomerang effects.

Ned Blackhawk (Te-Moak Band of Western Shoshone) is the Howard R. Lamar Professor of History at Yale University.  He is a historian of Native America and federal Indian law, as well as a scholar of violence and state formation, particularly in the American West.  He is the author of several books and/or co-edited works, including the recent Rediscovery of America: Native Peoples and the Unmaking of U.S. History, which took home the National Book Award, among numerous other prizes.  His recent writings can be found in The Boston Globe and The Atlantic (forthcoming), and draw upon his current research on the American Revolution and the many challenges that it brought to Native American communities in the 18th-century world.

Application Process.  The seminar is designed for graduate students and junior faculty in history, political science, law, and related disciplines. All participants will be expected to complete the assigned readings and participate in seminar discussions. Although the Institute cannot offer academic credit directly for the seminar, students may be able to earn graduate credit through their home departments by completing an independent research project in conjunction with the seminar. Please consult with your advisor and/or director of graduate studies about these possibilities.

Space is limited. To apply, please submit the following material to ich@nyhistory.org by October 10, 2025: (1) Your C.V.; and (2) a short statement on how this seminar will be useful to you in your research, teaching, or professional development.

Successful applicants will be notified soon thereafter. For further information, please email Andrew Fletcher at ich@nyhistory.org.

Su and Goravara on Slave Courts and the 7th Amendment

Wanling Su, Indiana University Bloomington, and Rahul Goravara, Georgetown University Law Center, have posted What is a Jury? which is forthcoming in the North Carolina Law Review:

The Supreme Court has held that the Seventh Amendment “preserves” the right to a civil jury as it existed when the Amendment was adopted in 1791. This “historical test” has become a hallmark of Seventh Amendment doctrine, but also, at times, a source of frustration. In one instance, the vexed Court has thrown up its hands and given up on the historical test entirely. Despite its best efforts, the Court has not been able to determine based on the historical record available whether the Framers intended to preserve the right to twelve jurors, or if a smaller number would suffice.

Although twelve was likely the usual number in 1791, its prevalence, in the Court’s words, could very well have been an “accidental feature of the jury.” The Court held that “forever codifying” the right to twelve jurors “would require considerably more evidence than we have been able to discover in the history and language of the Constitution.” This Article scours ratifying convention records, contemporaneous treatises, Founding-era legal dictionaries, early precedents, and archival records from the private libraries of the Seventh Amendment’s drafters in search of evidence that may shed light on their intentions and the Amendment’s public meaning at ratification.

Perhaps most informative, however, is what the Framers did not consider a jury. As this Article chronicles, Carolina slave courts denied enslaved people constitutional and common law rights, but nevertheless offered accused slaves as many as five jurors in what were described as “non-jury” trials. By offering a careful and comprehensive look at what the drafters did not consider a jury, as well as at the events, early precedents, and writings that inspired the Seventh Amendment, this Article corrects the Court’s misperception that the Founding-era practice of impaneling twelve jurors was mere happenstance. 

--Dan Ernst 

Bradley on Extradition in the Early Republic

Curtis Bradley, University of Chicago Law School, has posted Extradition in the Early Republic: International Law and Constitutional Authority:

This Article is the first comprehensive account of the constitutional foundations of U.S. extradition practice and its relationship to international law. Through detailed analysis of early American extradition controversies—including the Longchamps Affair and the Robbins case—the Article shows how political actors and courts constructed the modern constitutional law of extradition, resolving key issues concerning presidential power, the role of the states, and the scope of congressional authority. This regime, the Article argues, emerged not from appeals to the constitutional text or original understandings, but rather from structural intuitions, consequentialist considerations, and, as time went on, historical traditions. As the Article further documents, the constitutional law of extradition had a relational interaction with international law, in that the views of U.S. interpreters concerning the nation’s international law duties were relevant to their views of constitutional authority, and vice versa. The Article also complicates the dominant narrative of a unilateral “imperial presidency” in foreign affairs by showing that, because of the liberty interests involved, extradition authority evolved and remained as a shared power, requiring a treaty-based or statutory foundation as well as judicial involvement. In this respect, extradition parallels the development of certain other unenumerated foreign affairs powers, including most notably the authority over immigration. Finally, the Article situates extradition within the broader field of foreign relations law, illuminating its ties to doctrinal developments such as treaty non-self-execution, foreign affairs federalism, and sovereignty-based legislative power—developments that still resonate today.

--Dan Ernst 

Graham on the Forgotten History of Prison Law

Wynne Muscatine Graham, Lecturer in Law, UCLA, has published The Forgotten History of Prison Law: Judicial Oversight of Detention Facilities in the Nation's Early Years in the Harvard Law Review 138 (May 2025): 1716-1768:

Walnut Street Prison (wiki)

Prison law is characterized by judicial deference to penal administrators. Despite the well-documented horrors that occur behind prison walls, federal and state courts often decline to intervene, asserting, among other things, that prisoners’ rights are limited and that the judicial branch lacks the power and expertise to get involved in the inner workings of detention facilities. Moreover, jurists often assume that the nation’s first courts largely stayed out of prisons and jails, and contemporary judicial deference is therefore historically rooted.

This Article complicates that historical narrative. It shows that the nation’s Founding generation established an expansive system of judicial oversight over prisons and jails that lasted through much of the nineteenth century. During that period, state and local judges across the fledgling republic conducted regular inspections of detention facilities; set prison and jail rules and policies; appointed, removed, and occasionally served as penal administrators; managed the funding and building of jail facilities; and remedied abuses. On occasion, federal courts also interceded on behalf of prisoners.

Relying on neglected state statutes, case law, and reports, as well as the writings of prison theorists and observers, this Article explores the oft-ignored history of American prison law. In so doing, this Article shows how far modern courts have diverged from their early predecessors, especially at the state and local levels. For jurists - and particularly originalists - who use history to inform contemporary doctrine, this Article provides a fuller account of the early relationship between courts and prisons. Finally, this Article reveals a model of judicial oversight from which scholars and advocates can learn.

--Dan Ernst 

JACH (Summer 2025)

The Summer 2025 issue of the Journal of Supreme Court History is now available online.   

Gerard N. Magliocca, Right in Theory, Wrong in Practice”: Women’s Suffrage and the Reconstruction Amendments

The most remarkable constitutional argument ever forgotten is Representative William Loughridge’s dissent from an 1871 report by the House Judiciary Committee. That Report rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote. 

S. Deborah Kang, Creating a “Mass Production Technique”: Anti-Mexican Racism and the McCarran-Walter Act of 1952

New archival research shines a light on the anti-Mexican animus that motivated the authors and agents of the McCarran-Walter Act of 1952 and reveals that racism was a feature, rather than a bug, of the legislation that still impacts today’s immigration debates.

Sam Erman and Nathan Perl-Rosenthal, Jus Soli Nation to Jus Soli Evasion: International Lawyers for White Supremacy and the Road through Wong Kim Ark 

 In an effort to dismantle the Citizenship Clause and the U.S.’s traditional recognition of “jus soli,” racist opponents to the Fourteenth Amendment set out to establish a practice of “jus sanguinis” with a weaponization of international law. These attempts backfired, and “country by birth” prevailed and more solidly reaffirmed as the Citizenship Clause.

Katherine Shaw reviews David Pozen's The Constitution of the War on Abortion

 David Pozen’s The Constitution of the War on Drugs reveals how constitutional law and values have largely been absent from the arguments surrounding the war on drugs—in an interesting contrast to the constitution’s central place surrounding the debates on abortion and reproductive freedoms. 

--Dan Ernst 

Weekend Roundup

• On the Amicus podcast: Who Gets Left Out of Originalism? with Mark Joseph Stern, Maggie Blackhawk, and Greg Ablavksy.  A machine-generated, unedited transcript is here.  

• Carl Wilén, Lund University, will deliver The Haitian Revolution and the Concept of the Legal Form: Capitalism, Slavery and the Universality Paradigm in the Distinguished Speaker series of the Baldy Center for Law and Social Policy at the University at Buffalo Law School on October 3 from 12:30 to 2p.m with a noon reception.  Zoom registration here.

• 
  
  The Georgia Historical Society has announced its program for the 250 anniversary of the founding, Restoring Trust in American Institutions: History and the Foundations of American Democracy (Saporta Report).   
  

• First 125 Years of AALS: a "coffee table book" on the Association of American Law Schools (ABA Journal).

• Adam Cox, NYU Law, "contests the origins of 'immigration exceptionalism,' the doctrine holding that the political branches of government exercise extraordinary discretion over immigration policy, subject only to limited oversight from the courts" (Regulatory Review).

•  In United States ex rel Zafirov v. Florida Medical Associates, LLC, James Pfander, Diego Zambrano, and Jared Lucky submitted an amicus brief “to correct the district court’s misstatement of the historical record and mischaracterization of their work" on qui tam proceedings at the Founding (JD Supra).   

• "The American Constitution Society’s Chicago Lawyer Chapter has named Geoffrey R. Stone, '71, the Edward H. Levi Distinguished Service Professor of Law, as the inaugural recipient of the Geoffrey R. Stone Award, established in his honor" (Chicago Law). 

• Leah Litman speaks with Richard Primus about his book, The Oldest Constitutional Question: Enumeration and Federal Power (Strict Scrutiny). 

• Balkinization Symposiums--A Continuing List 

• 
  
  ICYMI: Jamelle Bouie asks, What if Dred Scott Had Been Decided Correctly? (NYT). LHB Founder Mary Dudziak on the Trump Administration's takeover of the DC National Guard and police (CSM).  A review of Jere Nash's Reconstruction in Mississippi, 1862-1877 (Clarion Ledger). 

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

Stenlund and Erkkilä on Memory, Law, and Politics

Karolina Stenlund and Ville Erkkilä, University of Helsinki, have published the introduction to a special issue of in Law and Critique on "Memory, Law, and Politics".

This introduction to the Law and Critique special issue explores the complex interplay between collective memory, law, and politics. It argues that “moral remembrance” — the strategic use of selected pasts — shapes political legitimacy, identity formation, and legal interpretation across liberal and illiberal regimes. Rejecting teleological views of legal progress, the authors highlight how both remembering and forgetting serve ideological purposes. Contributions examine diverse contexts, from authoritarian memory regulation in the GDR and contemporary Hungary to EU and international legal frameworks surrounding Holocaust remembrance, slavery memory laws, and museum-based memory practices. Together, these studies show that law not only regulates but also constructs collective memories, influencing which histories are legitimized or suppressed. By integrating perspectives from history, legal studies, and critical theory, the issue invites readers to critically assess the political stakes of legal memory-making and the selective mobilization of history in contemporary governance.

--Dan Ernst 

Vlahoplus and Rosin on an 1872 Birthright Citizenship Precedent

John Vlahoplus and Michael L. Rosin have published Birthright Citizenship of Child Born to Enemy Alien Visitors in the Washington University Law Review Online:

This is the story of Mogridge v. United States, in which the United States asserted, and a multinational commission held, that a child born in Pennsylvania to enemy alien visitors was a U.S. citizen even though he also acquired the nationality of his parents at birth and left the United States with them only a few weeks afterward. This compelling 1872 precedent undermines arguments for the narrow scope of birthright citizenship set out in President Trump’s Executive Order 14160, “Protecting the Meaning and Value of American Citizenship."

--Dan Ernst 

Leading Works in the History of the Constitution

Chris Monaghan, a Principal Lecturer in Law at the University of Worcester, has published the edited collection, Leading Works in the History of the Constitution (Routledge):

 This collection brings together academic analysis of leading contemporary accounts of the British Constitution with key constitutional documents and sources, while also offering analysis of the leading histories of the Constitution.

The works in question represent examples of the constitutionally most significant legislation, judicial decisions, and commentaries by scholars and key actors. Its scope is the seven hundred years of English, and then British, history from the Magna Carta to Britain as an imperial power grappling with the question of how to govern India.

The contributors, presenting a balance of established academics and early career researchers, present an original and succinct account of the significance of each leading work. They draw upon the context in which it was written, contemporary literature and more modern academic analysis of the work and its author(s).

--Dan Ernst.  TOC after the jump.

HLS Symposium: Brandeis on "the Jewish Problem"

Louis D. Brandeis (NYPL)

[We have the following announcement.  DRE] 

“The Jewish Problem, Then and Now: Rethinking Louis Brandeis’s Liberalism”

A Symposium sponsored by the Julis-Rabinowitz Program on Jewish and Israeli Law at the Harvard Law School.  September 16, 4:00 pm - 8:00 pm

2025 marks the 110th anniversary of Louis Brandeis’s famous essay, “The Jewish Problem – How to Solve It.” Taking as his point of departure the persistence of antisemitism in the twentieth-century world, Brandeis laid out a diagnosis of liberalism’s challenges and a positive vision for its future. His essay also marked a major statement on liberal Zionism and the rationale for American Jewish commitment to reconciling Jewish nationalism and American democracy. A century later, we revisit this text and the broader Brandeisian legacy to think about the contemporary questions of liberalism and Zionism, law and economics, and citizenship and group rights in American law. 

Symposium Chairs: Noah Feldman, Felix Frankfurter Professor of Law, Harvard Law School and James Loeffler, Felix Posen Professor of Modern Jewish History, Johns Hopkins University.  With William Forbath (Univ. of Texas, Austin), Amalia Kessler (Stanford), Linda Kinstler (Harvard), Shaul Magid (Harvard), Eric Nelson (Harvard), Simon Rabinovitch (Northeastern), and Laura Weinrib (Harvard)

4pm

Welcome from James Loeffler and Noah Feldman

4:15 – 5:30pm

William Forbath “Brandeis and his Jewish Socialist Critics & Collaborators on Zionism & Industrial Democracy” 

Amalia Kessler “Arbitration and the Jewish Question, 1900-1950” 

Simon Rabinovitch Moderator 

5:30-6:30pm

Shaul Magid “Jewish Nationality, Nationhood, and Diaspora Nationalism: Reading Mordecai Kaplan and Daniel Boyarin through Louis Brandeis”

Laura Weinrib “Free Speech, Group Rights, and Jewish Identity”

Linda Kinstler moderator

6:45-7:45pm

Keynote: “Brandeis’s Jewish Question(s): Global Liberalism Reconsidered”
James Loeffler
Response: Noah Feldman
Moderator: Eric Nelson

Handler on the Administrative Law of McCarthyism

Nicholas Handler, Texas A&M University School of Law, has posted The Administrative Law of McCarthyism, which is forthcoming in the Stanford Law Review:

Senator Joseph McCarthy (wiki)

This Article recovers the largely overlooked legal and administrative history of the federal loyalty-security program, and argues that it played a formative role in the development of modern civil service protections and administrative law. During the McCarthy era, the United States Civil Service Commission (CSC), under pressure from Congress, implemented a sweeping loyalty program aimed at rooting out purportedly disloyal federal employees. Though often remembered as a moment of political overreach and civil liberties violations, this Article shows that the loyalty program simultaneously catalyzed a surprising expansion in procedural rights for government workers—both through internal reforms initiated by the CSC and through judicial decisions that extended emerging administrative law doctrines into the domain of federal employment.

Drawing on original archival research, this Article reconstructs how the Loyalty Review Board, housed within the CSC, developed formalized standards for loyalty adjudications, including evidentiary thresholds, rights to notice and counsel, and appellate review. These procedures, while initially limited to loyalty hearings, came to inform broader doctrines governing the removal and discipline of civil servants. In particular, courts began to apply principles such as the Accardi doctrine and the Chenery rule—originally developed for public-facing regulatory action—to disputes between the federal government and its own employees. The result was a nascent body of administrative law that treated personnel decisions not as matters of unfettered executive discretion, but as legal acts subject to procedural constraint.

The Article makes two central claims. First, it argues that civil service law should be understood as a core component of administrative law—not merely a subspecialty of public employment law. Legal rules governing the hiring, discipline, and removal of civil servants serve the same functions as more familiar administrative law doctrines: they mediate interbranch conflict, preventing any one branch from dominating federal policy-making and thus serving deeper separation-of-powers and rule of law values. Second, it argues that the regulation of federal employment not only prevents the aggrandizement of the political branches, but also protects individual rights. In the postwar era, federal jobs functioned as a major form of state-administered benefit, and the procedures surrounding those jobs shaped broader public expectations about fairness, merit, and due process. Those expectations were deeply challenged during the unrest of the McCarthy period, but were ultimately vindicated by the creative adaption of administrative law principles.

These lessons are newly relevant today, as the second Trump administration embarks upon one of the most ambitious attempts to remake the federal civil service in generations, often explicitly seeking to replace merit systems with tests of personal and political loyalty.

--Dan Ernst

LHR 42:4

Volume 42:4 (November 2024) of Law and History Review, delayed by a malware attack on Cambridge University Press last summer, is now complete and available online.

Emergency by Design: The “Native Repressive Tribunals” and the Normalization of Exception in Colonial Algeria, 1858–1904
Sarah Ghabrial

Legacies and Legalities: Bequests of Land to Ecclesiastical Institutions in England c. 1180–1300
Sarah B. White

Rabbinic Evidence for the Spread of Roman Legal Education in the Provinces
Yair Furstenberg

The Isle of Man, Channel Islands and Statutes of the English Parliament, to 1640: Development and Change in Territorial Extent
Tim Thornton

Innovation in the Courts: Ellis and Jeffery Hart Bent in New South Wales—an Analysis of Minute Books
Paula Jane Byrne

“Lost in Translation”: Extraterritoriality, Subjecthood, and Subjectivity in the Anglo–Yemeni Treaty of 1821
Itamar Toussia Cohen

Constitutional Panic in British India: How the Ilbert Bill Controversy of 1883 Revealed the Constitutive Character of Racial Discrimination in the British Empire
Gwinyai Machona

“Another Human Sacrifice Thrown to the Pitiless Moloch of Police Power”: The Anti-Vaccination Movement, Parental Rights, and the Roots of American Anti-Statism, 1890–1917
Julia Bowes

Weber in Jerusalem: The Rabbinical Debate over the Establishment of the Rabbinical Court of Appeals, 1918–1921
Chagai Schlesinger

Conflicting Legal Perspectives on the Establishment of Kingdom of Serbs, Croats, and Slovenes
Igor Ivaškovic

Not Only Territorial Waters But Also Free Sea: Contested Coastal Jurisdiction in the Ravenna–Chishima Case (1892–1895)
Jiaying Shen

Book Reviews

Christian R. Burset, An Empire of Laws: Legal Pluralism in British Colonial Policy New Haven: Yale University Press, 2023. Pp. 272. $75.00 hardcover (ISBN 9780300253238). doi:10.2307/jj.5666741
Lisa Ford

Martti Koskenniemi, To the Uttermost Parts of the Earth: Legal Imagination and International Power, 1300–1870 Cambridge: Cambridge University Press, 2021. Pp. 1124. $99.99 paperback (ISBN 9781139019774). doi:10.1017/9781139019774
Aden Knaap

Alex Thompson, British Law and Governance in Treaty Port China 1842–1927: Consuls, Courts and Colonial Subjects Amsterdam: Amsterdam University Press, 2024. Pp. 180. €104,00 hardcover (ISBN 9789463720397). doi: 10.1515/9789048557097-004
Ivan Lee

Cushman on "the Erie Scoop"

Arthur Krock (LC)

Barry Cushman, Notre Dame Law School, has posted The Erie Scoop, which is forthcoming in the Green Bag 2d.:

When the Supreme Court decided the case of Erie Railroad Co. v. Tompkins on April 25, 1938, the entire Washington press corps missed the story. The universality of the oversight prompted at least two of the Justices to send word of the decision’s importance out through various channels. This article relates the tale. 

--Dan Ernst 

Bracke's "Reproductive Rights in Modern France"

Maud Anne Bracke has published Reproductive Rights in Modern France: Feminism, Contraception, and Abortion, 1950–1980 (Oxford University Press):

The introduction of the principle of women's reproductive liberty in France, tentatively by the family planning movement after 1960 and explicitly by the women's liberation movement after 1970, marked a deep shift, transforming public discourses. Yet this principle remained fiercely contested, and moderate and conservative actors responded by foregrounding notions of 'reproductive responsibility', or the expectation that individuals perform the 'right' sexual and family-making behaviour, benefiting not only themselves and their families, but the nation at large. Such responsibilisation underpinned the legal reforms of the 1960s-70s, framing a notion of reproductive citizenship based on a tension between individual rights and social norms.

This book breaks new ground by taking an intersectional approach to the defining moments of this period: the legalisation of contraception (the laws of 1967 and 1974) and the liberalisation of abortion (1975, 1979). Drawing on a wide range of sources and actors--including feminist and family planning movements, government actors, demographers, medical-professional organisations, disability rights groups, and key actors in the overseas departments--Maud Bracke demonstrates how the discourse of responsibilisation allowed actors to distinguish between citizens 'worthy' of reproductive rights and those seen as less worthy. Bracke analyses the distinct regulations regarding contraception in the overseas departments of Guadeloupe and Martinique, framed by racialised anti-natalism. The book also demonstrates that disability rights organisations contributed to the discrediting of the notion of 'eugenic abortion', used among experts and policy-makers until the early 1970s. Furthermore, Bracke goes on to highlight the silence in the feminist movement around both disability rights and race as part of its universalisation of women's conditions of oppression, and analyses the emergence of Black Feminism in late-1970s France. In so doing, the book offers a major contribution to the history of sex, gender, family life, healthcare, demography, and political debate in post-war France, and more generally.

--Dan Ernst 

Bilder on Constitutional Regicide

Mary Sarah Bilder, Boston College Law School, has posted Hater of Kings: Catharine Macaulay’s Constitutional Regicide and the Declaration of Independence, which is forthcoming in Americans in Revolution, ed. Tom Cutterham and Sara Georgini (University of Virginia Press, 2026):

Charles I (LC)

The American Revolution was a constitutional regicide. At first glance it does not much resemble a regicide. Charles I had been executed in 1649. George III went on to live nearly half a century beyond 1776. But read the Declaration of Independence carefully and notice how large the king looms. The “present King of Great Britain” aimed to establish “an absolute Tyranny.” The eighteen usurpations each began with He, the king. The king embodied two particular political typologies: Prince and Tyrant. As such, he was “unfit to be the ruler of a free people.” This constitutional justification for regicide had been developed by British historian Catharine Macaulay in the fourth volume of her History of England. Macaulay’s history from James I to the execution of Charles I provided a historical model, theoretical explanation, and blueprint for would-be patriots. Because of Macaulay, on the far side of the Atlantic, American revolutionaries renounced their allegiance to the king–and to any king–without the complications and consequences of executing one. 

--Dan Ernst 

Jansen on Alienage in the British Caribbean

Jan C. Jansen, University of Tübingen, has published Alien Acts in the Age of Emancipation: Mobility Control and Executive Power in the British Caribbean, 1820s–1830s online in Law and History Review:

In reaction to revolutionary upheaval in the 1790s and 1800s, the British parliament at home and colonial legislatures in the Americas passed their first statutory provisions to govern migration and aliens as such. As this paper argues, in their sustained and varied uses, these “alien acts” were much more than about border and migration controls. In a period of fundamental restructuring of imperial rule and of social statuses within the colonies, they increasingly turned into flexible tools of imperial governance. Taking the British Caribbean in the 1820s and 1830s as a case, the paper examines how alien legislation was reused, and reinvented, in two crucial arenas of imperial reconfiguration: the push for political equality by free people of color and the abolition of the slave trade. By their emphasis on sweeping executive power, various actors on the ground but also in the metropole regarded alien acts as an appropriate legal tool to respond to, to avert or subvert what they regarded as challenges or legal complexities of the age of emancipation. In this way, the alien acts also became a central factor in the reconfiguration of British subjecthood—with far-reaching consequences that their creators and users could never fully anticipate or control.

--Dan Ernst

Kent on the Alien Enemies Act of 1798

 Andrew Kent, Fordham University School of Law, has posted The Alien Enemies Act of 1798:

For the first time since World War II-and the first time ever outside a formally declared war-an American president has invoked the Alien Enemies Act to detain and deport noncitizens. In March 2025, President Donald Trump proclaimed that all members of the Venezuelan gang Tren de Aragua present in the United States are enemy aliens, asserting that their actions, supposedly coordinated with the Maduro government, constitute an "invasion" and "predatory incursion" under the statute's triggering language. Enacted during the Quasi-War with France in 1798, the Act's key terms remain unchanged. This Article is a comprehensive account of the statute's original meaning. 

Every method of statutory interpretation-carefully reading the full 1798 text and examining the Alien Enemies Act's purposes and its political, diplomatic, and military contexts; examining related statutes; understanding background rules of common law and international law (especially those governing alien enemies); and finding definitions of key words in dictionaries and from contemporaneous linguistic usage-confirms that the Trump administration's reading is irreconcilable with the statute's original meaning in 1798. "Alien enemy" status required a state of war or an imminent threat thereof. The Act was intentionally written to bar the president from declaring alien enemy status in other situations. The statute's triggers were understood to be met when a foreign nation's offensive military actions indisputably created a state of actual or imminent armed attack on U.S. territory, or when Congress acted to formally authorize a state of war, consistent with Congress's view that it, not the president, had power under the Constitution to declare war and authorize more limited hostilities. 

Furthermore, the historical record strongly suggests that individuals detained under the Act could seek judicial review of whether they were, in fact and law, alien enemies-contrary to claims of the Trump administration. Finally, this Article analyzes other provisions of the statute not implicated in 2025 and situates the Act within its broader context-fierce partisan battles between Federalists and Republicans over immigration, loyalty, national character, federal power, and foreign policy. 

--Dan Ernst 

Weekend Roundup

• Rachel Rothschild, University of Michigan Law School, has been chosen to receive the 2025–2026 Pace Haub Environmental Law Distinguished Junior Scholar Award for scholarship that “sits at the intersection of environmental law, history, and policy,” including Poisonous Skies: Acid Rain and the Globalization of Pollution (University of Chicago Press, 2019) and The Origins of the Major Questions Doctrine. 

• 

  Thurgood Marshall, assisted by Wife and Family (LC)

  “Becoming Thurgood: America’s Social Architect,” a documentary on the life and career of Thurgood Marshall, premiers Tuesday, September 9, 2025, on PBS.  The DuSable Black History Museum and Education Center in Chicago hosts and preview and discussion on August 21 (WTTW)

• "David Carrillo, executive director of UC Berkeley Law’s California Constitution Center, will become editor-in-chief of California Legal History in 2026" (UC Berkeley Law).

• From the online companion to the California Law Review: Michael Bannerjee (UC Berkeley) on "What Harvard’s Lawsuit Should Have Said." 

• Richard Primus, University of Michigan Law School, and John Harrison, University of Virginia School of Law discuss Professor Primus’s The Oldest Constitutional Question: Enumeration and Federal Power.  "Their conversation traces how this fundamental disagreement has shaped key moments in American constitutional history, from the Founding Era to the New Deal, and why the debate remains unsettled today" (National Constitution Center).  Also on YouTube.  

• Also: the first-rate Balkinization symposium on Professor Primus's Oldest Constitutional Question:  is now complete. 

• Stefan Kadelbach on the "Frankfurt Documents" and the birth of a new constitutional order for Germany in 1948 (Goethe-Universität).

• Have you browsed that online collection of legal history papers by YLS students lately?    

• Jill Lepore will discuss her forthcoming book, We the People: A History of the U.S. Constitution, at  Congregation Beth Israel in San Diego on Sunday, September 7, 2025 from 4 PM to 5:30 PM

• The district court opinion in that lawsuit over the cancellation of National Endowment for the Humanities grants. The American Historical Association's update.  An update on new awards (NYT).

• If you happen to be in Hyde Park, NY, on August 13, you can take in a showing of William Randolph Hearst's authoritarian fantasy from March 1933, Gabriel over the White House, at the FDR Library and Museum. 

• Lawbook Exchange 's August list of Scholarly Law and Legal History.  

• Time's Made by History:  The History of How the Car Seat Made American Kids Safer by Gary Scales.

• ICYMI: The Adam Liptak column behind all those skeets: As the Supreme Court Focuses on the Past, Historians Turn to Advocacy (NYT).  David Blight asks, What If History Died by Sanctioned Ignorance? (New Republic/Bunk). Eric Segall asks How the Hell To Teach Constitutional Law in 2025?  (Many of his questions involve history) (Dorf on Law).  NAACP LDF's historical timeline on the Voting Rights Act of 1965.

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

May on Jerome Frank on Law and Religion

Isaac Barnes May, Resident Fellow, Information Society Project, Yale Law School, has posted Legal Realism and the Separation of Religion and Judicial Reasoning, which is forthcoming in the Yale Journal of Law & the Humanities:

Jerome Frank (LC)

Jerome Frank’s Law and the Modern Mind was caricatured for a generation as a reductive work of psychology, distilling law into “what the judge had for breakfast.” This article argues that Frank’s 1930 book needs to be understood as intervening in a theological dispute about the nature of law. In the United States, the prevailing understanding had been that law came from God and that legal rules were, at some level of abstraction, simply absolute or natural legal principles to which human beings had selective access. Judges, from this perspective, were mere instruments for divine truth. This conception of law supported a legal system that gave a privileged place to Christianity and was often hostile to religious minorities. Frank and the legal realists drew on the insights of Oliver Wendell Holmes. They were deeply invested in the idea that the law was a human creation and therefore changeable by humans. Rather than “a government of laws, not of men,” they argued for the inverse: human beings ultimately created and could adjust legal rules. Many of the realists were religious outsiders—Jews, liberal Protestants, and skeptics—who understood their theoretical interventions as undermining a coercive Protestant legal order.

The article suggests that Frank’s efforts to separate U.S. law and religion were an admirable and necessary step in a pluralistic democracy. In the present, natural law theories as a legal foundation for U.S. law endanger the secular legal order and threaten religious minorities. Frank’s writings about the need for a law shorn of religious impulses, where judges know they are motivated by human factors, are valuable and offer a contrast to attempts to fuse law and Christianity.

For more on Frank's life and career until 1933, see my Making of a New Dealer.  As I show in forthcoming work, Frank could be quite scathing about the Reform Judaism of Chicago's German Jews.  The query I'd raise is that Frank's immediate target--the grit that irritated him into producing Law and the Modern Mind--was a quite secular "Bealism"--that is, Langdellian legal science personified by the founding dean of the University of Chicago.  Mr. May anticipates this query by noting homologies between legal science and theology and arguing, with quotes from Law and the Modern Mind, that Frank targeted the "theistic and Christian wing of classical legal thought" as well as the Bealists.

 --Dan Ernst 

ASLH's Virtual New Books Series

[Here's another reason to join the American Society for Legal History: Members can virtually participate in this series on great new books in the field.  DRE]

Making Connections: New Works in Legal History Series, 2025-2026 

All sessions will be on Zoom Wednesdays from 6:00-7:00 pm (Central Time).  We will send an email two weeks in advance of each event.  You must RSVP to receive the zoom link.  RSVP messages will be sent to membership approximately 1 week before the event.  ASLH Members can watch videos of previous events on our members page
 
September 17, 2025 – Esther Liberman Cuenca, The Making of Urban Customary Law in Medieval and Reformation England (Oxford University Press, 2025) with interlocutor Sara M. Butler
 
October 22, 2025 – Sonia Gomez, Picture Bride, War Bride: The Role of Marriage in Shaping Japanese America (NYU Press, 2024) & Kathryn Schumaker, Tangled Fortunes: The Hidden History of Interracial Marriage in the Segregated South (Basic Books, 2025)
 
December 10, 2025 – Marla A. Ramírez, Banished Citizens: A History of the Mexican American Women Who Endured Repatriation (Harvard University Press, 2025) with interlocutor Kevin R. Johnson
 
January 21, 2026 – Omar Youssef Cheta, How Commerce Became Legal: Merchants and Market Governance in Nineteenth-Century Egypt (Stanford University Press, 2025) with interlocutor Nurfadzilah Yahaya
 
February 25, 2026 – Tadashi Ishikawa, Geographies of Gender: Family and Law in Imperial Japan and Colonial Taiwan (Cambridge University Press, 2025) with interlocutor Jisoo M. Kim
 
March 25, 2026 – Serena Mayeri, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025) with interlocutor Margot Canaday
 
April 15, 2026 – Kevin Arlyck, The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825 (Cambridge University Press, 2025) with interlocutor Alison LaCroix

Law and History Review: A Call for an Editor

[We have the following announcement from the Publications Committee of the American Society for Legal History.  DRE] 

After eight years of exceptional service, Gautham Rao is stepping down as Editor-in-Chief of the Law & History Review, which is sponsored by the American Society for Legal History and published by Cambridge University Press.  Founded in 1983 and published quarterly, LHR is the top journal in the field of legal history.

The ASLH Publications Committee invites applications for the position. Applicants should be members of the American Society for Legal History who are accomplished legal historians, have the intellectual range to work with manuscripts from different historical periods and geographic regions, are conversant with both law and history, and welcome the opportunity to identify and promote the best scholarship in the field.  They should be prepared to request release time and other departmental or institutional support.

The editor’s responsibilities include soliciting manuscripts in all fields of legal history, shepherding submitted manuscripts through the peer review and editorial processes, working with the journal’s print and electronic publisher Cambridge University Press, and maintaining collaborative relationships with the journal’s Associate Editors, its Editorial Board and the ASLH Board of Directors. Production management is the responsibility of Cambridge University Press. Appointment is for an initial five-year term.  

Interested scholars should send an electronic version of their current c.v. and a statement of what they would like to accomplish as editor of the journal by September 15, 2025, to the Chairs of the Publications Committee: Daniel Ernst (ernst@georgetown.edu) and Catherine Fisk (cfisk@berkeley.edu).  Inquiries about the position should be directed to the same email addresses or by phone to Daniel Ernst at 240.506.2220.

Van Schaack's Annotated Bibliography on Crimes against Humanity

Beth Van Schaack, the Leah Kaplan Visiting Professor in Human Rights at Stanford Law School, has posted Crimes Against Humanity: An Annotated Bibliography:

This is an annotated bibliography of scholarship and jurisprudence involving crimes against humanity, an important element of the international criminal law canon. It elucidates the history of this offense (which traces its roots to the World War I period), elements of this offense, lingering areas of doctrinal indeterminacy, efforts at universal codification, and the most innovative scholarship grappling with the reach of this international offense. 

--Dan Ernst 

Saltonstall on Shaw and Race and Reasonable Doubt

Lemuel Shaw (NYPL)

Stephen Lee Saltonstall published Lemuel Shaw Reconsidered: Race and Reasonable Doubt in the Howard Law Journal 68 (2024) 103-138.  The author argues that "the magnitude of [the eminent nineteenth-century jurist Lemuel Shaw's] errors, particularly in the related areas of race discrimination and the burden of proof in criminal cases, requires removal of [him] from his pedestal in the pantheon of American law.

--Dan Ernst 

Whittington on Judicial Independence

Keith E. Whittington,Yale Law School, has posted Judicial Independence as a Constitutional Construction:

An independent judiciary, in the American context, might best be understood as a constitutional construction. That is, it is a politically constructed set of practices, institutions, and norms that extend but do not contradict the legal requirements of the formal constitution. As such, judicial independence has come to occupy a fundamental status within our inherited constitutional order. But importantly, it is mutable. Our inherited practice of judicial independence has been built up, and fought over, across time, and within the contours of the written constitution can be significantly reconstructed.

The example of judicial independence can serve as a useful illustration of the significance of unwritten practices to our constitutional order. This also provides an opportunity to examine how judicial independence was constructed, and contested, across American history. As current activists and politicians raise questions anew about the future of judicial independence in America, these current debates can be situated within a long history of debates about the proper role, composition, and structure of American courts. This Article reviews those debates regarding federal courts in the Jeffersonian era, state courts in the Jacksonian era, and the Supreme Court in the New Deal era. 

--Dan Ernst 

Kessler on Authoritarianism in Marxist Thought

Jeremy Kessler, Columbia Law School, has posted The Problem of Authoritarianism in Marxist Legal Thought, which is forthcoming in the Oxford Handbook on Law and Authoritarianism, edited by Cora Chan, Madhav Khosla, Benjamin Liebman, and Mark Tushnet:

The more that contemporary scholars of authoritarianism seek to distinguish between, on the one hand, competitive authoritarianism and authoritarian legality and, on the other, the liberal and democratic deficits of ostensibly liberal democratic regimes, the more they will be retracing the immensely creative if often tragic steps of Marxist legal thought. This chapter sets itself two tasks. First, to provide an overview of Marxist legal theorists’ relationship to authoritarianism, both in its liberal democratic and more avowedly illiberal, anti-democratic forms. Second, to make some sense of an intellectual tradition that began by criticizing authoritarianism, came to defend it, and then spent decades in the wilderness – if not the grave – trying to rectify its errors. 

The chapter is organized in a chronological series of vignettes, each of which aims to capture a stage in the Marxist encounter with authoritarianism: Karl Marx and Friedrich Engels on bourgeois legality and the dictatorship of the proletariat; Vladimir Lenin and Rosa Luxemburg on the relationship between democracy and proletarian dictatorship; Evgeny Pashukanis and Pyotr Stuchka’s debate about the practical possibility and political tendency of “proletarian law”; Franz Neumann and Ernst Bloch’s reconsiderations of the relationship between socialism and natural law; and Nicos Poulantzas and the Neue Marx-Lektüre’s return to Luxemburg and Pashukanis as means of making sense of authoritarian tendencies on both sides of the Iron Curtain. 

Taken as a whole, the chapter argues that Marxist legal thought was ahead of its time in emphasizing the authoritarian potential of liberal democratic institutions under conditions of capitalist hierarchy and atomization. Contemporary trends in the study of authoritarianism are rediscovering this basic Marxist insight. At the same time, when it came to confronting the authoritarian tendencies of anti-capitalist movements and regimes, Marxist legal thought oscillated between denial, denunciation of law and the state as such, and rediscovery of the virtues of capitalist and pre-capitalist legal and political forms. Whether that oscillation testifies to human society’s inability to transcend capitalism or its inability to transcend more fundamental facts about human nature is the question that continues to divide Marxist from liberal and conservative legal thought. However one answers that question, the problem of authoritarianism remains. Now more than ever, law appears capable of making that problem better or worse, depending on underlying social conditions. To that extent, at least, Marxist legal thought has often seen things more clearly than its liberal and conservative antagonists. 

Other contributions to the volume include essays by my Georgetown Law colleague Mark Jia and by YLS's Taisu Zhang.

--Dan Ernst

Draft Program for ASLH 2025 Released

The American Society for Legal History has released the draft program for its next annual meeting, to be held in Detroit, November 13-15.  register for the meeting here.  And join the Society or renew your membership here.

--Dan Ernst 

Penn's Certificate of Study in History and Historical Research Methods

[Penn Carey Law has posted the following announcement.  DRE] 

Beginning in the 2025-2026 academic year, the University of Pennsylvania Carey Law School will offer a new Certificate of Study in History and Historical Research Methods, granted by the History Department in the School of Arts and Sciences at Penn.

The Certificate, one of more than a dozen certificates of study offered at the Law School, is open to all Penn Carey Law students. Certificates of study provide opportunities for credentials in additional areas, allowing for more concentrated coursework en route to specialized or focused career paths.

“I was immediately excited by Professors Karen Tani and Serena Mayeri’s proposal to create this new Certificate, because the topics are increasingly important to the practice of law,” said Amanda Aronoff, Managing Director, Cross-Disciplinary Programs at the Law School and Director of Student Engagement for the Francis J. & William Polk Carey JD/MBA Program at the University of Pennsylvania Carey Law School and the Wharton School. “In addition, even though Penn Carey Law offers numerous and diverse cross-disciplinary offerings, there isn’t anything else like this Certificate.”

The Certificate arrives at a time of exciting growth for legal history at the Law School, which has seen the national recognition of multiple Penn legal historians in recent years as well as the continued expansion of the Legal History Consortium, uniting the Law School and Penn’s History Department to foster innovative research, scholarship, and education in law and history.

“Despite the strength of legal history at Penn, we didn’t previously offer students structured opportunities that join law and history, aside from our JD/PhD program,” said Seaman Family University Professor Karen Tani L’07, PhD’11. “That struck me as a big gap.”

Additionally, Tani believes that offering law students more opportunities to engage with history as part of their education and careers will better equip them for today’s legal landscapes.

“It’s clear that history has become increasingly important to Supreme Court rulings,” she said. “We see this in the Court’s deepening commitment to originalism to decide constitutional questions, as well as in its turn to ‘history and tradition’ to determine whether the Constitution protects various ‘unenumerated’ rights.”

Tani points to some of the most important decisions of the past five years as examples – regarding abortion, affirmative action, firearms regulation, nationwide injunctions, and more.

“We wanted to create a certificate that allows law students to be educated consumers of legal opinions that rely on history and to meaningfully engage with the methods and commitments of the discipline,” she said.

Students pursuing the Certificate must complete four courses in the general area of History and Historical Research Methods – one at the Law School and three in History – as well as attend four History-sponsored events, such as workshops, lectures, or pedagogy seminars.

“Penn has long been a leader in legal history, and our JD-PhD joint program in American legal history has been a proud success,” said Jared Farmer, Chair of the Department of History at Penn. “We are excited to deepen the relationship between the School of Arts and Sciences and Penn Carey Law with this certificate program.”