Weekend Roundup

•  A Q&A with Jane Manners, who joined Fordham's law faculty this fall (Fordham Law News).

• The death of former Vice President Dick Cheney has prompted reflections on his significance for U.S. legal history, including this one at the Conversation and this one at the New York Times. 

• Marlene Trestman has updated her database of 817 women who have argued before the U.S. Supreme Court (through May 15, 2025).  It is now live on the Supreme Court Historical Society's website.

• The Law & Economics Center at the George Mason University Antonin Scalia Law School will host the symposium, The Un-Forgotten Founder: A Celebration of George Mason's Legacy on the Occasion of His 300th Birthday, on December 8, 2025.  The panelists include Akhil Reed Amar, Yale Law School; Michael S. Greve, George Mason University Antonin Scalia Law School; The Honorable Edith Hollan Jones, Judge, U.S. Court of Appeals for the Fifth Circuit; and The Honorable William C. Mims, Senior Justice, Supreme Court of Virginia.

• Mitchell Del Bianco, who graduated this year from UVA Law's famed JD-MA program, has won the Morris L. Cohen Student Essay Competition for his paper, “What Is a House? An Exhibit Investigating Common Law Origins of the Open Fields Doctrine.” He wrote it for Professor Paul Halliday’s legal history class. (UVA Law).    

• Speaking of UVA Law, new courses taught in the January term and Spring 2026 semester include "Citizenship: The Law, History and Politics of U.S. Citizenship," co-taught by Karsh fellow Anja Bossow and Professor Amanda Frost; "Constitutional Law and Jurisprudence," co-taught by Charles Barzun and David Plunkett, visiting from Dartmouth's philosophy department; and "Roman Law of Family, Property and Succession," taught by Michael Doran.

• Cultural Critique Online has published a roundtable on The Autocratic Academy: Reenvisioning Rule within America's Universities (Duke University Press, 2023), by Timothy Kaufman-Osborn (Whitman College). It features responses by Joshua Barkan (Georgia), Michael Banerjee (UC Berkeley), and Adam Sitze (Amherst), along with a reply by Kaufman-Osborn.  

• Julian Zelizer interviews John Fabian Witt on his book The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America.

• 
  Miloš Vec, University of Vienna, will deliver the lecture After 1919 and after 1945: How Two World Wars Shaped German Thinking on International Law, at Slovenia’s University of Ljubljana on November 14, 2025, at 3:00 pm.  More.  

• If you don't know who Sam Thorne was, consult this, which, for reasons known only to the algorithm, found its way to us this week.

• Lawbook Exchange's November catalogue of Scholarly Law and Legal History. 

• ICYMI: More Lepore (Harvard Crimson). Kenya's new judiciary museum (Eastleigh Voice).  An essay on Abortion, the 1966 book by the journalist Larry Nadler and the birth of the reproductive rights movement (Public Books).  The history of China's legal exam (World of Chinese).

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

LHR 43:1

Law and History Review 43:1 is now available online.  Here is the TOC:

Articles

Context Matters: Understanding Why Medieval Legislators Chose to Regulate Women's Pregnant Bodies
Sara M. Butler

Kenya's Emergency Powers: Legal Continuities in the Post-Colonial State, 1959–1969
Kyle J. Melles

Properties of Empire: Contests over the Commons on Newfoundland's French Shore, 1763–83
Arianne Sedef Urus

Absence of Talion and Tort Law in Early Imperial China (221BCE-9 CE): How Body Politic Cancelled Corrective Justice
Liang Cai

From the Poor Law to the Adoption of Children Act 1926: Another Punishment for Being Poor
Rachel Elizabeth Pimm-Smith

Carsun Chang's Jefferson: A Lost Era of Transnational Sino-American Constitutional Imagination
Jedidiah Joseph Kroncke and Haimo Li

“Up with the Brave”: Gender, Transgression and Judges’ Use of Catholic Convents in England and Ireland, 1930–1959
Máiréad Enright

Forum: Willrich’s American Anarchy

Saboteurs as State Builders
Sarah E. Igo

The Politics of Political Economy in the Industrial Age
Kyle G. Volk

Reading American Anarchy as a Legal History of Immigrants
Daniel J. Sharfstein

Response
Michael Willrich

Book Reviews

Ada Maria Kuskowski, Vernacular Law: Writing and the Reinvention of Customary Law in Medieval France Cambridge: Cambridge University Press, 2022. Pp. xviii, 412. $125 hardcover (ISBN 978-1-009-21789-7).
Anne E. Lester

Philip Stern, Empire, Incorporated: The Corporations that Built British Colonialism Cambridge, MA and London, England: The Belknap Press of Harvard University Press, 2023. Pp. 408. $35 hardcover (ISBN 9780674988125).
Mircea Raianu

Margot Canaday, Queer Career: Sexuality and Work in Modern America Princeton, NJ: Princeton University Press, 2023. Pp. 312. $35.00 hardcover (ISBN 9780691205953). 
Marie-Amélie George

Call for Applications: Constitutional Accountability Center Scholar-in-Residence Program

The Constitutional Accountability Center (CAC) has issued the following call for applications:

CAC invites applications for its 2026-2027 Scholar-in-Residence program.  CAC’s Scholar-in-Residence will work independently on research and writing on a topic of mutual interest, for one year, while participating in the life of CAC’s ongoing work in joint scholarship, litigation, communications, and collaboration with progressive movement partners.  During this year, the Scholar-in-Residence may work remotely, but would also be expected to come to CAC’s office in Washington, DC monthly  throughout the residency. 

Constitutional scholarship is the foundation of CAC’s work.  Our scholarship shows that across a broad range of key issues, the Constitution’s text and history command progressive results.  CAC’s scholarly work provides the deep historical support that makes our legal arguments stand out, and builds a comprehensive narrative of the Constitution that is necessary to achieve lasting victories.

This scholar-in-residence program will provide the selected candidate an unprecedented opportunity to work on a project in an area that is congruent with the focus of CAC’s mission, including (but not limited to) Constitutional and Legal Studies, History, Political Science, African-American Studies, and the humanities more generally.  Potential projects could focus on such subjects as lifting up often neglected voices in the constitutional story (for example, Black, Native American, and immigrant activists who helped shape the Constitution); the ways that structural reforms might better align our institutions toward democratic values and genuine inclusion; or the exploration of broader Constitutional understandings in conjunction with the commemoration of the 250^th anniversary of the United States, among others.

Responsibilities will include, but not be limited to, the following:

• Conduct research and scholarship in a field of inquiry that intersects with CAC’s mission;
• Produce written products that could include, but are not limited to, law review articles or other scholarly essays, and articles in popular media such as The New York Times and The Atlantic;
• Brief CAC staff on research progress, and help inform the direction of CAC’s existing scholarship;
• Give two public presentations at (in person or virtual) events to educate the public and organizational partners about research progress and findings.

The Scholar-in-Residence will work in collaboration with CAC’s Director of Human Rights, Civil Rights, and Citizenship, within the CAC Think Tank.   

Read on here.

-- Karen Tani  

Saunders on a 1941 Decision of the Treaty of Waitangi

Katherine Sanders, University of Auckland Faculty of Law, has posted “The King in all his cabinets”: Crown and Empire in Te Heuheu Tukino v Aotea District Maori Land Board:

The report of the Judicial Committee of the Privy Council in Te Heuheu Tukino v Aotea District Maori Land Board [1941] NZLR 590 is today well-known for the finding that rights under the Treaty of Waitangi have no effect in New Zealand law, save where they are incorporated by legislation. This article asks what Te Heuheu and his supporters hoped to achieve in the litigation, and considers ideas of Crown and empire underpinning that strategy. It argues that debates about the legal and constitutional status of the Treaty were framed by the politics of the 1940 centennial of its signing. The article concludes by characterising “The Memorial of the Maori People of New Zealand to the Privy Council”, He Pukapuka Whakamaharatanga, as a means of marking the history of the Treaty and its breach at the Centennial. It argues that the Memorial served both to highlight injustice, and to reassert a vision of a political order in which the promises of the Treaty would be fulfilled.

--Dan Ernst 

Kexel Chabot's "Interstitial Executive"

Christine Kexel Chabot, Marquette University Law School, has posted the The Interstitial Executive: A View from the Founding:

The Supreme Court appears poised to recognize a unitary executive President with power to override statutory removal restrictions for almost all principal officers in the executive branch. The core unitary claim is that Article II vests “the executive power in a President of the United States,” and that the President therefore has exclusive control over all exercises of executive power by subordinate officers. The Court and unitary scholars have further grounded their claims in originalism and contended that the unitary executive’s primary mechanism of control is an indefeasible power to remove all subordinate officers at will. This Article debunks originalist unitary claims by introducing new historical evidence to show that the Washington, Adams, and Jefferson Administrations failed to practice what unitary scholars preach. It introduces a critical body of previously unexamined archival evidence of the terms of office and removal specified in over 200 commissions that Presidents issued to their appointees. These records recover a representative and more comprehensive view of the distinct terms of office that Presidents specified for all of their appointees including officers who exercised executive power both with and without statutory tenure protections. Unlike the Supreme Court, early Presidents recognized removal during pleasure only for officers whose tenures were not specified by statute and respected statutory and constitutional removal restrictions for other officers. 

While unitary scholars claim that Article II empowered early Presidents to remove officers notwithstanding statutory restrictions, the officer commissions introduced by this Article show that executive practice instead turned on congressional discretion under Article I’s Necessary and Proper Clause. The Washington, Adams, and Jefferson Administrations asserted service “during pleasure” for officers ranging from the Secretary of State to the Librarian of Congress, but only when governing statutes left terms of office unaddressed. Presidents departed from this practice when they issued commissions to officers who enjoyed statutory or constitutional tenure protections, such as independent commissioners to settle accounts between the United States and individual states, Chief Justices who served on the Sinking Fund Commission, and Justices of the Peace who served for five-year terms set by statute. Commissions which the Presidents and Secretaries of State prepared for these officers repeatedly omitted references to removal “during pleasure” and indicated that these tenure-protected officials served during “good behavior” or for fixed terms. Early Presidents therefore asserted a power of removal during pleasure when Congress left terms of office unregulated but abided by statutory restrictions on removal applicable to other offices. The extended historical record shows that Presidents’ exercise of removal power operated within the law, not above it, and that Presidents respected the statutory terms of office which Congress established pursuant to the Necessary and Proper Clause.

--Dan Ernst.  Professor Kexel Chabot's appendices are here

Studies in the History of Tax Law

New from Hart/Bloomsbury: Studies in the History of Tax Law, Volume 12, edited by Peter Harris and Dominic de Cogan, University of Cambridge:

Collecting papers from the biennial Cambridge Tax Law History Conference, the book is a key resource for those interested in tax law and legal history [and continues a] prestigious series investigating current tax policy debates in an historical context.  The authors are a mix of senior tax professionals from academia, the judiciary, and practice, with representatives from 9 countries. The chapters fall within 3 basic categories:

1. UK tax, looking at a variety of topics ranging from income tax (introduction and deduction at source), tax administration (Scotland), cases and judges (Lord Wilberforce), to the Peasants' Revolt, indirect taxation (tonnage tax and excise), and tax concepts (beneficial ownership).

2. International taxation, with chapters on the origins of the international income tax order, the UN (1950s and 60s), and VAT (origins and procedure).

3. Non-UK tax systems, including chapters on income tax in Singapore and early developments in Japan, South Africa (GAAR), an influential Canadian report (Carter Commission), taxation in classical Athens, and in the medieval Italian city-states.

--Dan Ernst.  TOC after the jump 

Epidemics and the Law

New from Hart/Bloomsbury: Epidemics and the Law from Plague to the Present, edited by Emily Gordon, Charles Mitchell and Ian Williams (University College London):

Building on previous studies of infectious diseases undertaken by social historians of medicine, this collection explores the histories of epidemics and disease by looking at the legal measures deployed against them.

Whilst previous works have considered the mechanisms by which legal change occurs, the social and political assumptions on which new laws and new legal structures are premised and the social changes which follow, this book focuses on the way in which historical actors understood law to be a complex means of responding to disease and the way in which that law shaped (and limited) the responses which could be made to disease.

Taking an interdisciplinary approach, it features contributions from scholars across a range of academic disciplines who consider the wider implications of epidemics and disease beyond the obvious health effects. The collection focuses first on regulatory responses such as the quarantine laws and border policies in the eighteenth century, the framing of 'disease' in the Colonial Immigration Acts in the nineteenth century and the ethics of public health in the twentieth century in Great Britain. It then goes on to consider developments in broader legal doctrine which themselves resulted from social and/or legal responses to disease, including the centralisation of labour regulation in the wake of the black death, property disputes about leper houses, pest houses and fever hospitals, and the prosecution of medical professionals for disease transmission in 19th century England.

Methodologically all the chapters are historical, but a range of approaches has been taken, from quite traditional doctrinal legal history through socio-legal history to traditional political and social history, to bring the history of epidemics and the legal measures deployed against them in to sharp focus.

--Dan Ersnt.  TOC after the jump. 

ABF Seeks Executive Director

[We have the following announcement from the search firm Isaacson, Miller.  DRE]

The American Bar Foundation (ABF), a cornerstone and wellspring of the global socio-legal research community, seeks a committed, curious, and strategic leader to propel this historic institution forward as its next Executive Director (ED). As the nation’s premier independent, non-partisan research institute operating at the intersection of law and society, the ABF produces deeply resourced, inquiry-driven scholarship of the highest quality to inform and guide the legal profession, the academy, and the public conversation on matters of law and its influence in the United States and internationally. The ABF’s next ED will eagerly invest in the ABF’s dedicated community of researchers, staff, and partners and will champion the institution’s commitment to expanding knowledge and advancing justice.

The ABF’s commitment to academic freedom and staunchly independent and interdisciplinary approach yields scholarly and actionable research that individuals and institutions use to shape laws, inform policy, and influence society. The ABF’s intellectual community is robust and comprises full- and part-time research professors, visiting scholars, and affiliated researchers who explore legal education, access to justice, legal practice, and the design, implementation, and impact of laws. The institution also benefits from a 16,000-plus-member honors society of licensed attorneys – the Fellows of the American Bar Foundation – who gain valuable insights from the ABF’s scholarly findings, provide material support to the ABF, and generously donate their time and expertise as renowned practitioners and scholars.

The ABF is governed by a 25-member board of directors. Its FY2025 operating budget totaled $9.1 million, most of which was derived from support from the American Bar Endowment (ABE) and the ABF Fellows. It also benefits from an institutional endowment of $35.5 million. The ABF maintains a faculty of 19 full-time and jointly appointed researchers and 39 full-time and part-time staff members.

Reporting to the board, the Executive Director ensures that the ABF’s research, operations, communications, and development strategies work harmoniously to sustain and grow its impact and visibility. The next ED will embrace their role as an intellectual leader, facilitating research and mentoring junior research faculty, and will be an effective external representative, enriching the ABF’s scholarly community, expanding its resources, and bolstering its operations and capacities. They will uphold the highest standards of integrity, independence, and scholarly rigor while articulating and championing the practical applications and outcomes of the ABF’s research with the ABE, the ABF Fellows, donors, and others. The ED will be an attentive administrative leader and an effective liaison among ABF faculty, staff, and the board, and will promote a culture of inclusivity, teamwork, and respect.

Salary and Benefits.  The anticipated salary range for this position is $290,000-$320,000. Full-time benefits currently include medical, dental, and vision insurance; paid sick leave; paid vacation; paid holidays (including a week-long winter holiday recess); paid family/medical leave after one year of employment; FSA or HSA; 403(b) retirement plan with employer match and nonelective contribution; transit and parking benefits, including discounted parking; employee assistance program; and more.

Location and Commitment.  The ED must reside within a daily commutable distance of the ABF’s offices in Chicago, IL. This role requires a consistent presence in the office, as well as regular travel.

All applications, inquiries, and nominations should be submitted electronically and in confidence below. Screening of applications will begin immediately and continue until the search process is completed.  Vijay Saraswat and Gale Merseth are leading this search with Tatiana Oberkoetter and Elizabeth Arvanitis.

The ABF is firmly committed to providing equal employment opportunities to all qualified persons. All decisions regarding the terms, privileges, and/or conditions of employment, including but not limited to hiring, classification, grading, recruitment, discharge, discipline, compensation, selection for training or apprenticeship, placement, promotion, transfer, renewal of employment, tenure or terms, and benefits, will be made without unlawful discrimination on the basis of race, color, religion, sex, national origin, citizenship, ancestry, age, order of protection status, marital status, disability, military status, unfavorable discharge from the military, sexual orientation, pregnancy, gender, gender identity, housing status, parental status, source of income, certain arrest or criminal history records, genetic information, protected activity (such as opposition to or reporting of prohibited discrimination or harassment), or any other status or classification protected by applicable federal, state, and/or local laws. The ABF prohibits discrimination, retaliation, and harassment of individuals on any of the bases listed above and any other basis protected by applicable federal, state, and/or local law.

Forsyth on Excommunication and the Elizabethan Campaign against Ecclesiastical Courts

Adam B. Forsyth, a doctoral candidate in history at the University of Cambridge, has published England’s Erastus? Or, James Morice and the Law of Excommunication in The Historical Journal:

The Elizabethan reign has lately emerged as a formative period for English ideas about the liberties of the subject and the ‘ancient constitution’ of the realm. Recent work has described the development of such ideas as having been driven by an organized campaign against the English ecclesiastical courts: a legal and intellectual effort that had emerged from the misgivings of certain ‘puritan’ lawyers about the powers claimed by new prerogative jurisdictions. The primary grievance of the campaign has been identified as having been the church courts’ use of the oath ex officio, and the campaign’s primary defensive tool has been identified as having been the twenty-ninth chapter of Magna Carta. But overlooked manuscripts reveal a more complex story. This article shows that the law of excommunication was as important to the campaign in question as Magna Carta. In addition, a re-examination of the life and work of James Morice, one of the principal lawyers responsible for the campaign, demonstrates that the law of excommunication deeply structured his understanding of the royal supremacy, and of the legal relationship between England’s secular and ecclesiastical polities – particularly as they had existed in the distant medieval past.

--Dan Ernst 

Weekend Roundup

• A notice of Doris Morgan Rueda (Appalachian). 

• A notice of the 2025 Conference on the Civil War, devoted to “New Directions in the Legal History of the Civil War Era" (Daily Mississippian). 

• A lecture by Marcus Gadson, UNC Law, on the Reconstruction-era campaign to overthrow the government of South Carolina (YouTube).

• John Fabian Witt discusses The Radical Fund with David Schleicher and Samuel Moyn on the Digging a Hole podcast.  And a symposium on the book is underway at HistPhil blog.

• ICYMI: Five books that take you inside the Nuremberg Trials (History).  Another "civics" center created at a state university, this time, in West Virginia (WDTU).  A profile of Pauli Murray (Shine My Crown). Due process in Massachusetts, from the Salem Witch trials to today (mass.gov).  Witch trials explored in US and UK museums link (BBC).

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

den Hollander's "Court, Credit, and Capital"

Maurits den Hollander, Tilburg University, has published Court, Credit, and Capital: Amsterdam's Insolvency Legislation in the Dutch Golden Age (Cambridge University Press).  It appears in Studies in Legal History, a book series sponsored by the American Society for Legal History.

Seventeenth-century Amsterdam was a city of innovations. Explosive economic growth, the expansion of overseas trade, and a high level of religious tolerance sparked great institutional, socioeconomic and legal changes, a period generally known as "the Dutch Golden Age." In this book, Maurits den Hollander discusses how insolvency legislation contributed to the rise of a modern commercial order in seventeenth-century Amsterdam. He analyzes the procedure and principles behind Amsterdam's specialized insolvency court (the Desolate Boedelskamer, 1643) from a theoretical perspective as well as through the eyes of citizens whose businesses failed. The Amsterdam authorities created a regulatory environment which solved insolvency more leniently, and thus economically more efficiently, than in previous times or places. Moving beyond the traditional view of insolvency as a moral failure and the debtor as a criminal, the Amsterdam court recognized that business failure was often beyond the insolvent's personal control, and helped restore trust and credit among creditors and debtors.

Here are some encomia:

"Amsterdam's ‘golden age' has long fascinated economic historians. They have undertaken close studies of its unique organizations, e.g., the Wisselbank and the Vereenigde Oostindische Compagnie, in an attempt to explain the tremendous growth and vitality of the city and its surrounding region. Maurits den Hollander's important study of Amsterdam's Desolate Boedelskamer makes a significant contribution to this literature. By documenting how a specialized legal organization could alter the resolution of insolvency cases, promoting composition rather than dissolution and therewith engendering trust rather than conflict, it raises profound questions about the function of economic institutions. This book should be required reading for scholars in the field."

Thomas Max Safley, Professor Emeritus of History, University of Pennsylvania

"This book is simply superb. Den Hollander offers a study of insolvency in the booming Dutch economy of the seventeenth century that is both a first-rate piece of socio-economic analysis and a consummate exercise in social history."

James Q. Whitman, Yale Law School

Prakash and Sunstein on Radical Constitutional Change

Saikrishna Bangalore Prakash and Cass R. Sunstein have published Radical Constitutional Change in the Virginia Law Review:

At defining points in American history, there have been radical constitutional changes, defined as massive shifts in constitutional understandings, doctrines, and practices. Apparently settled principles and widely accepted frameworks are discarded as erroneous, even illegitimate, in favor of new principles and frameworks. Less momentously, views that were once considered unthinkable do not quite become the law on the ground but instead come to be seen as plausible and part of the mainstream. Relatedly, Americans transform how they talk and think about their Constitution—its core commitments and underlying narratives. These radical, dizzying changes often trigger a sense of “constitutional vertigo,” particularly in those wedded to the old order. Our goal is to provide a conceptual map and to describe how and why radical constitutional change occurs and the vertigo that it precipitates. First, we ask whether theories of interpretation trigger radical change, or whether desires for fundamental change impel people to generate new (or modify old) theories of interpretation. Second, we explore why so many people experience a form of vertigo. Third, we investigate the drivers of radical constitutional change, both the familiar bottom-up pressures from “We the People” (sometimes authorizing or leading to radical change driven by the president or Congress) and the less familiar top-down approaches, where legal elites push for and then impose a new constitutional regime.

--Dan Ernst 

Samuel's "Principia Iuris"

Geoffrey Samuel, Professor Emeritus, Kent Law School, has published Principia Iuris: A Historical and Comparative Introduction to the English Common Law (Edward Elgar):

This book provides a strong introduction to the principal domains of legal knowledge by examining a structured list of legal maxims, many originating in medieval Roman and canon law. Oriented by historical and methodological approaches, it explores legal thought and reasoning through a comparative lens.

Geoffrey Samuel explains the differences between common law and civil continental traditions, outlining preceding works on regulae iuris across the centuries. With an emphasis on English law, the book analyses basic principles and addresses the law of obligations, the law of actions and the law of property and public law. Delving into fundamental legal remedies, substantive law and legal institutions, Samuel questions whether some maxims are more memorable or indisposable than others and shows the impact they have had on legal theory. Exploring historical developments, the book also maps the original sources of key theories, utilising a civil law taxonomical plan to classify them.

Principia Iuris is an invaluable resource for students and academics in law, legal theory and legal history. Its unique insights into common law mentalities will also greatly benefit legal educators and practising lawyers. 

--Dan Ernst.  H/t: ESCLHblog

Junior Scholars Conference at Michigan Law

[We have the following announcement.  DRE.]

We are writing on behalf of the Center for International and Comparative Law at the University of Michigan to invite you to help spread the word about our upcoming Junior Scholars Conference, which will be held on April 17-18, 2026, in Ann Arbor, MI, USA. The deadline for abstract submissions is January 5, 2026.

We are accepting abstract submissions from pre-tenure track faculty, as well as Ph.D. and S.J.D. candidates, in law and related fields. This conference offers a valuable opportunity for junior scholars to present their research, engage with peers, and receive feedback from senior faculty. Thematic panels will be organized, and each presenter will benefit from the insights of faculty commentators.

For more information on the submission process and conference details, please refer to the Junior Scholars Conference website.

Junior Scholars Conference Organizing Committee
University of Michigan Law School
Center for International and Comparative Law

Basile on the Splintering of American Public Law

Marco Basile, Boston College Law School, has published The Splintering of American Public Law in the University of Chicago Law Review:

Constitutional tradition has never mattered more for arguing about what the Constitution means. Yet the very idea of a constitutional tradition presents a shape-shifting target. Rather than an entirely distinct body of law, early U.S. constitutional law mixed and blurred with the law of nations in a broader category of “public law” that, unlike other forms of law, sought to govern the sovereign state itself through not only legal institutions but also political structures and actors outside courts.

This Article argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently against the state as the United States consolidated a continental nation-state. On the one hand, the Supreme Court came to assert authority over constitutional law more aggressively in the context of gutting Reconstruction in the South. On the other, the Court stepped back from international law in deference to Congress as the United States conquered territories and peoples in the West. The simultaneous rise of judicial supremacy as to constitutional law and of judicial deference as to international law recast constitutional law as more legal than political and international law as more political than legal. As their modes of implementation diverged, their shared features became obscured.

By recovering the earlier understanding of public law, this Article challenges how we construct constitutional traditions from a past that did not categorize public law in the precise ways we do today. By integrating the legal histories of western expansion and the gutting of Reconstruction, it shows that regressive policies after the Civil War were enabled not only by judicial supremacy, as new scholarship emphasizes, but also by judicial deference--underscoring that the causes transcended the role of courts. And by showing that the earlier understanding of public law retreated for contingent reasons that obscured, rather than erased, constitutional and international laws’ shared features, the Article ultimately invites readers to reimagine public law in a more integrated way today.

--Dan Ernst

Magliocca's "Actual Art of Governing"

Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law, has published The Actual Art of Governing: Justice Robert H. Jackson’s Concurring Opinion in the Steel Seizure Case (Oxford University Press):  

Since the adoption of the US constitution, there has been ongoing calibration of the power balance between the three branches of government, often in the face of rapidly changing social and political contexts. In 1952, US Supreme Court Justice Robert H. Jackson took up this debate in Youngstown Sheet & Tube Company v. Sawyer, a watershed case that barred President Harry S. Truman from seizing privately operated steel mills during the Korean War. Concurring with the majority decision, Jackson penned an opinion that would become the authoritative source on the constitutional boundary between congressional and executive authority.

In The Actual Art of Governing, eminent legal historian Gerard N. Magliocca takes a close look at this landmark opinion, providing a deep reading of the decision and the context surrounding it, and explaining its lasting influence. Magliocca skillfully shows how Justice Jackson's opinion broke free of the rules for judicial writing, taking a pragmatic approach to constitutional interpretation that drew on personal experience and historical examples, rather than sticking strictly to the text, judicial doctrine, and original public meaning. The framework that Jackson proposed took on crucial significance during the fallout of Richard Nixon's Watergate abuses and has continued to be relied upon in controversies involving the reach of the US President's power, including actions taken by Donald Trump. Magliocca concludes by arguing that a proper reading of Jackson's Youngstown concurrence would lead to significant curbs on emergency powers, the discretion of the federal courts, and presidential authority.  

--Dan Ernst.  Update: Professor Magliocca is commenting on his book over at Balkinization.

Tulane's Ashton Phelps Chair in Constitutional Law

[We have the following announcement.  DRE.]

Ashton Phelps Chair in Constitutional Law

Tulane University Law School invites nominations and applications for the Ashton Phelps Chair in Constitutional Law. We seek an academic leader with a record of distinguished scholarship, excellence in teaching, and the demonstrated capacity to direct a well-established program in their respective fields. The appointment will be made at the level of tenured, full professor. 

The responsibilities of the chair holder include scholarly research and publication; classroom teaching; and participation in faculty governance. The chair holder is also expected to be actively engaged with faculty both within the Law School and throughout the University, providing leadership for integrative research activities and significant engagement with academic institutions and professional organizations in their respective fields. The chair holder is expected to provide leadership in terms of research, curriculum, and public engagement. Tulane Law School, with world-leading strength in environmental, energy, maritime, as well as international and comparative law, provides the chair holder with the unique opportunity and support to lead and expand an already prominent program in these areas. Competitive salary commensurate with experience.

Qualifications.  The qualifications required for the chair are:

• Juris Doctor (J.D.) and/or Ph.D. (or equivalent doctoral degree) in Law
• Broad recognition for scholarly distinction
• Established publication record
• Clearly developed long term research agenda
• Extensive teaching experience 
• Demonstrated capacity for programmatic leadership 

Application Instructions.  Please apply using this Interfolio link and be prepared to submit your C.V., writing sample, teaching evaluations, and a transcript as part of your application. 

All inquiries about the positions should be directed to:
Stephen M. Griffin
W.R. Irby Chair in Law
Tulane University Law School
sgriffin@tulane.edu

Evolution on the Stand: Revisiting the Scopes Trial at 100

[From Ryan Greenwood, Curator of Rare Books and Special Collections, we have word of a new digital exhibit at the University of Minnesota Law Library.  DRE]

“Evolution on the Stand: Revisiting the Scopes Trial at 100” 

The new digital exhibit commemorates the centennial anniversary of one of America’s most storied courtroom dramas, The State of Tennessee v. John Thomas Scopes. The 1925 trial of John Scopes, accused of violating a Tennessee law prohibiting the teaching of evolution, became a national sensation and the focal point of a public debate over the roles of science and religion in public education. The digital exhibit highlights the Library’s preeminent collection of famed defense attorney Clarence Darrow’s letters, publications, photographs, and trial materials, preserving and building on a physical exhibit open in the Riesenfeld Rare Books Center throughout 2025. The new digital site adds to and expands the digital research sites and exhibits available as part of the Library's digital special collections. 

The Scopes Trial digital exhibit features a trove of material drawn from the Riesenfeld Center's collections, including letters, original trial documents, witness statements, inscribed books, speeches, and debates. The exhibit includes daily trial summaries and transcripts, and sets the trial within a longer history of evolutionary thought and debate on the roles of science and religion in American public education.

Weekend Roundup

• The Heart of Suffolk: Witch Trials, "a new pop-up exhibition . . . exploring the stories of the women and men who faced execution after being accused of witchcraft in Suffolk, will be displayed at Sudbury Arts Centre until the end of October, before taking over The Bull pub in Long Melford and then Elmswell Library" (BBC). 

• The Balkinization symposium on John Fabian Witt's The Radical Fund continues with new contributions by Aziz Rana, Laura Weinrib, Larry Kramer, LHB Founder Mary L. Dudziak, David Pozen, Benjamin Sachs, David M. Schizer, Jamal Greene, and David E. Bernstein. 

• On Thursday, October 9, UVA Law hosted a panel on G. Edward White’s Robert H. Jackson: A Life in Judgement, consisting of Sarah A. Seo, Lucas A. Powe Jr., and Ross E. Davies. Dean Leslie Kendrick introduced the panel and Risa Goluboff moderated.  More.

• Samantha Barbas, University of Iowa College of Law, will speak on New York Times v. Sullivan in Marshall University’s lecture series on constitutional democracy at 7 p.m. Tuesday, October 28. 

• Jill Lepore will join National Public Radio’s Steve Inskeep to discuss We the People at 8 p.m. (doors open at 7 p.m.) Nov. 6 at the Morrison Center for the Performing Arts on Boise State University’s campus (ICS).  

• Noah Rosenblum, NYU Law, is excellent on the history of the removal power in this episode of the Reconstruction Agenda podcast.  

• The records of President Harry Truman's Commission on the Renovation of the Executive Mansion (1949-1952) have been digitized.  H/t Adam Rothman.   

• Time's Made By History: Revoking passports can backfire, by Denise Lynn. 

• ICYMI: David Noonan on Jackson at Nuremberg (Smithsonian). Jessica T. Mathews reviews Akhil Reed Amar’s Born Equal (Foreign Affairs). Time immemorial (ianVisits).  Failed Kansas constitutional amendments (KSNT 27 News). 

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

Johnson on the History of Vacatur

Ben Johnson, University of Florida Levin College of Law, has posted A History of Vacatur:

Vacatur, a seemingly routine appellate tool, has evolved into one of the Supreme Court's most potent instruments for declaring law. This article offers the first comprehensive historical account of vacatur, tracing its roots from English and early American practice through its twentieth-century transformations to its contemporary uses. Historically, courts used vacatur to manage dockets, correct procedural irregularities, or enforce reversals on the merits. Modern usage has departed markedly from these roots. The Court now frequently employs vacatur to declare binding legal rules without issuing judgments, effectively circumventing traditional limits on judicial power. Taking seriously the Court's own insistence on history as a guide to judicial authority, this article illuminates the growing tension between the Court's practice and its constitutional and statutory limits. 

--Dan Ernst 

Lettow Lerner on the Civil Jury Trial and Re-examination Clauses

Renee Lettow Lerner, George Washington University Law School, has posted two of her entries in The Heritage Guide to the Constitution, edited by Josh Blackman and John G. Malcolm (2025).  The first is The Civil Jury Trial Clause of the Seventh Amendment:

This essay discusses the Civil Jury Trial Clause—also known as the Preservation Clause—of the Seventh Amendment to the U.S. Constitution. I provide background on English civil jury practice in common-law courts in the late eighteenth century and distinguish it from equity practice in the Court of Chancery. The essay describes Blackstone’s praise for the civil jury as well as the role the civil jury played in the events leading up to the American Revolution. The question of a federal constitutional right to civil jury trial provoked heated disputes in the Philadelphia Convention and the ratification debates. The ratification debates featured arguments between prominent Anti-Federalists and Federalists, including Patrick Henry and James Madison in Virginia, and Brutus and Alexander Hamilton in New York. Hamilton made his strongest case against a federal constitutional right to a civil jury in The Federalist No. 83.

The essay gives a detailed account of the drafting of the Seventh Amendment in the First Congress and the development of the historical test following opinions by Justice Joseph Story. Under the historical test, federal courts decide whether a civil jury trial is required by the Seventh Amendment based on the practices of English courts in 1791, the year the Amendment was ratified. The essay examines the difficulties in applying the historical test. These problems became especially acute after the merger of law and equity in the Federal Rules of Civil Procedure in 1938, when pretrial discovery facilitated party settlement before trial, and more complicated cases could be sent to civil juries. Courts have also struggled with applying the Seventh Amendment after the advent of adjudication by administrative agencies. The “public rights” doctrine addresses this issue, but the U.S. Supreme Court’s decision in SEC v. Jarkesy (2024) has called that doctrine’s scope into question. 

The second is The Re-examination Clause of the Seventh Amendment:

This essay discusses the origins, history, and current interpretation of the Re-examination Clause of the Seventh Amendment to the U.S. Constitution. As Justice Joseph Story declared, the Re-examination Clause is separate from the right to civil jury trial in the Amendment’s Preservation Clause. The Re-examination Clause states that no fact tried by a jury shall be “re-examined” in federal court except by the rules of “the common law.” This provision had no counterpart in the state constitutions. The essay explains the methods of review of jury verdicts in English common-law courts in the late eighteenth century, focusing on the remedy of a new trial. Technically, these methods were not called appeals, although they functioned as such. The delegates to the Philadelphia Convention of 1787 assigned broad appellate review of federal and state courts to the U.S. Supreme Court, “both as to law and fact.” Many of the delegates believed such broad appellate jurisdiction was necessary to ensure uniform interpretation of federal laws and to prevent state courts, and state juries, from subverting federal law. James Madison was especially concerned about the latter problem.

The Anti-Federalists, especially Brutus, were alarmed at this grant of far-reaching appellate review to the U.S. Supreme Court.  They believed such appellate review would undermine civil jury trial.  The essay describes in detail James Madison’s effort to mollify the Anti-Federalists by drafting what became the Re-examination Clause, together with the modifications made in the First Congress.  It explains the origins of the historical test for the Seventh Amendment in a case involving the Re-examination Clause.  The historical test requires the federal courts to adhere to the practices of re-examining jury verdicts according to the common law of England in 1791, the year the Seventh Amendment was ratified.  The Supreme Court had maintained a fairly strict interpretation of the historical test.  Judgment notwithstanding the verdict, now known as judgment as a matter of law, was eventually permitted because of the English common-law practice of receiving a verdict subject to the judge’s opinion on law.  Federal courts permit remittitur, requiring a plaintiff to agree to reduced damages or face a new trial, but not additur, requiring a defendant to agree to additional damages or face a new trial.  The Supreme Court moved away from the traditional strict historical test in Gasperini v. Center for Humanities (1996), a decision that drew a strong dissent from Justice Antonin Scalia. 

--Dan Ernst 

Murray on "Marks, Meaning and the Haunting of American Trademark Law"

 The Texas Law Review (Volume 103, issue 9) recently published an essay of interest: Kali Murray (Marquette University Law School), "Seeing the Dead: Marks, Meaning and the Haunting of American Trademark Law." The essay draws on history to discuss "trademark’s fraught relationship with social identities of race and caste in the United States." An excerpt from the Introduction (footnotes omitted):

Slave labor was central to the making of the modern world. It gave Europeans the means to occupy and develop the Americas. The trade in slaves helped merchants accumulate capital that was reinvested in agriculture, industry, and infrastructure. Slave plantations produced the sugar, cotton, and coffee that propelled the industrial revolution in the North Atlantic countries.

Trademark law is an ideal place to consider the relationship of intellectual property to the political, social, and economic system of enslavement. Trademarks, which protect the commercial signs associated with the goods and services of its users, seem to be intimately connected to the economic practices of enslavement, either because a slave market would advertise its services in selling enslaved individuals using trade names or because goods like sugar or cotton produced by enslaved persons would be trademarked.

I use fugitive slave advertisements—advertisements placed in colonial and antebellum newspapers that sought the return of an enslaved person to their enslaver—to explore the relationship of trademark law and the construction of race and caste in the United States. . . .  

Read on here.

-- Karen Tani  

AHA Congressional Briefings on AI and Vaccines

[We have the following announcement of the American Historical Association.  DRE.]

The American Historical Association invites you to attend two Congressional Briefings that will be held in the coming weeks. The first will offer historical perspectives on artificial intelligence, and the second on vaccines. 

The briefing on the history of artificial intelligence will take place on Wednesday, October 29, at 9:00 a.m. ET in Rayburn House Office Building Room 2044. Panelists Sarah Igo (Vanderbilt Univ.), Aaron Mendon-Plasek (Purdue Univ.), and Rebecca Slayton (Cornell Univ.) will discuss the historical context of privacy and national security issues that are being transformed by AI. Kathryn Cramer Brownell (Purdue Univ.) will serve as moderator.

The briefing on the history of vaccines will take place on Wednesday, November 5, at 3:00 p.m. ET in Rayburn House Office Building Room 2075. Panelists Elena Conis (Univ. of California, Berkeley), David M. Oshinsky (New York Univ.), and Michael Willrich (Brandeis Univ.) will discuss the history of vaccines against diseases including smallpox, polio, and measles. The briefing will also explore the public’s perception of vaccines and how the role of the federal government in vaccine development and distribution has changed over time. Sarah Weicksel, AHA executive director, will serve as moderator. 

Both events are open to the public; no registration is required. A breakfast spread and coffee will be served. If you have any questions, please email brosenbaum@historians.org.

We are monitoring the government shutdown and will announce any changes in the days before the event.

The AHA’s Congressional Briefings series seeks to provide Congressional staff members, journalists, and other members of the policy community with the historical context essential to understanding contemporary issues. The sessions are strictly nonpartisan and avoid advancing particular policy prescriptions or legislative agendas. Recordings of our recent briefings providing historical perspectives on are available on the AHA’s website.

Smith and McLay on Indigenous Law in NZ Courts

Antonia Smith and Geoff McLay, Victoria University of Wellington/Te Herenga Waka Faculty of Law, have posted Hiding in Plain Sight: The Lost Tikanga Authorities, which appears in the Victoria University of Wellington Law Review (2025)

The role of tikanga Maori within the law of Aotearoa New Zealand is the central issue facing the contemporary legal system. However, there are few historical authorities on the interaction between common law and tikanga currently in circulation. The aim of this article is to report the existence of a large body of historical cases in which tikanga-based arguments were pleaded before the courts. In many of these cases, tikanga was rejected. In some, the very existence of Maori law was denied. However, in a multitude of cases, over a wide array of legal areas, "native custom" was accepted as relevant and integrated in various ways into judgments and rulings. This article considers Reynolds v Tuangau, recently discussed in a Supreme Court judgment, as well as three other examples of such cases, picked from a pool collected as part of wider historical study. None of the cases discussed, nor any others found so far, provide an easy answer to the tikanga project. Instead, together they present New Zealand's early legal system as complex and shifting, featuring a variety of approaches to tikanga. The large majority of these cases, some of which were included in official law reports, have gone unnoticed since their adjudication. In this way they have been "hiding in plain sight". Uncovering and studying these historical authorities is an important task in terms both the history and law of Aotearoa New Zealand. 

--Dan Ernst

Environmental Legal History Job at Texas A&M

[Via H-Law, we have the following job announcement.  But see this.  DRE]

The Department of History in the College of Arts and Sciences at Texas A&M University invites applications for a full-time tenured Associate Professor of Environmental History, with an emphasis on questions of law, justice, or governance, to begin in the fall of 2026. We encourage applications from scholars whose work addresses any time period or place, but successful applicants will extend and expand department strengths in multiple research areas and be willing to engage in intellectual exchange connected to borderlands studies. For more on the department’s exceptional research, see our faculty listing. The successful candidate will maintain an ambitious, productive research agenda, teach two courses per semester, recruit and train outstanding students, and participate in university and professional affairs.

This position is part of a cluster hire made possible by the generous support of the Mellon Foundation. Hired faculty are appointed, and undergo review and promotion, in their home departments. Hired faculty are also expected to contribute to the interdisciplinary environmental undergraduate program, which is advancing environmental humanities curriculum. Hired faculty will be affiliated with the College of Arts and Sciences’ Environmental and Sustainability Initiative and the Race and Ethnic Studies Institute (RESI). In addition to the title of Associate Professor with tenure, for their first three years hired faculty will be identified as “Mellon-RESI Scholar,” leveraging their expertise to engage with, and contribute to, the scope of the Mellon-funded LatinTX  environmental humanities initiative. This initiative seeks to build a collaborative community of scholars from across the humanities converging to advance transformative conversations toward better responses to everyday environmental issues in borderland communities in Texas and beyond. Additional resources are earmarked to support the cluster hire faculty both individually and in their collaborative efforts.

Texas A&M University is a Top 20 public research institution and among the largest universities in the United States. It is a land, sea, and space grant institution that holds the distinction of classification as an R1 Doctoral University (Highest Research Activity), and faculty benefit from the resources and support associated with this designation. Texas A&M is also federally designated as a Hispanic-serving Institution.

Our department is committed to broadening participation in higher education and has a policy of being responsive to the needs of dual-career couples. The department is interested in candidates who, through their research, teaching, and/or service, will contribute to the breadth and excellence of the academic community, as well as the educational needs of the population of Texas and the global community.

Located in College Station, the university is 90 miles from Houston, 100 miles from Austin, and 165 miles from Dallas. The Bryan-College Station metropolitan area has over 160,000 residents and is experiencing rapid job growth.

Qualifications.  The successful candidate must have a PhD in history or a related field.

Contact Information. For queries about the position please contact historydept@tamu.edu. All application materials must be submitted through or uploaded to Interfolio https://apply.interfolio.com/173967. To apply please submit a cover letter, curriculum vitae, personal statement to include philosophy and plans for research, teaching, and service, and names and contact information of three references. 

Review of applications will begin on October 31, 2025.  Closing Date: November 1, 2025.

Bracke's "Reproductive Rights in Modern France"

Maud Anne Bracke, University of Glasgow, 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

Witt in New York Area Legal History Consortium

[We have the following announcement from Jeremy K. Kessler, Columbia Law School.  DRE]

I'm pleased to announce the inaugural meeting of the New York Area Legal History Consortium, a new collaboration between Columbia Law School, Fordham School of Law, NYU Law, and more area law schools to come. The goal of the Consortium is to celebrate and interrogate exemplary works of recently published legal history. The first meeting will feature John Witt in conversation with Sarah Seo (NYU, Law) and me. We'll be discussing John's just-published The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America. For John's recent NYT essay on the book, see here. 

The meeting will take place on Thursday, Oct. 30, at  NYU Law, Vanderbilt Hall, 40 Washington Sq. South, in the Faculty Library on the 3rd Floor. Doors at 5PM; talk to begin promptly at 5:30PM. Reception to follow. 

Subsequent, semi-annual events will be held at the Consortium's various participating law schools on a rotating basis. 

You can RSVP at [this] link.  Please feel free to share this invitation with interested colleagues and students, and to email me (jk3486@columbia.edu) with any questions.  I hope you can make it.

Weekend Roundup

• Congratulations to Alison LaCroix, University of Chicago Law School, upon the awarding to her of the American Historical Association’s Littleton-Griswold Prize in American Law and Society for The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms!

• Laura F. Edwards, Class of 1921 Bicentennial Professor in the History of American Law and Liberty at Princeton University, will deliver three lectures on the theme “The Legal Geography of the Civil War Era and Its Lasting Legacy,” as the 2025 Steven and Janice Brose Distinguished Lecture Series at Penn State University on October 23-25. 

• A notice of Emma Brush, a legal historian recently appointed Assistant Professor of Law, Jurisprudence and Social Thought at Amherst College (Amherst Student).  

• A symposium on John Fabian Witt's Radical Fund is underway over at Balkinization.  So far the contributors have been Michelle Adams, Risa Goluboff, and Willy Forbath.

• Evan D. Bernick, Northern Illinois University College of Law, has posted his review of Born Equal by Akhil Amar, Yale Law School.

• Jane Manners's historian's amicus brief for the Brennan Center in Grundmann v. Trump (D.C. Cir.), involving the Trump administration’s motion to dismiss Susan Tsui Grundmann's challenge to her removal from the Federal Labor Relations Authority.   

• “The Origins of the Major Questions Doctrine,” which Rachel Rothschild, Michigan Law, presented at last year's annual meeting of the ASLH, has been selected "one of the top 10 environmental law papers published in 2024" (Michigan Law). 

• In Time's "Made by History" series: If the Supreme Court Forgets the Past; When the Government was Re-Segregated. 

• ICYMI: Still more Lepore: Arts Fuse.  Justice Amy Coney Barrett on originalism (and more) (C-SPAN).  Marcus Rediker reviews The Zorg by Siddharth Kara (NYT).

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

Magliocca on Gypsies and Birthright Citizenship

Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law, has posted “Without Domicile or Allegiance: Gypsies and Birthright Citizenship,” which is forthcoming in Harvard Journal of Law and Public Policy:

This Essay argues that the invocations of gypsies (or Roma) during the debates on the Civil Rights Act of 1866 and the Citizenship Clause of the Fourteenth Amendment drew on Blackstone's discussion of them in his Commentaries and means that legal immigration status, domicile, and allegiance are not requirements for birth citizenship in the United States. The Roma were barred from entering Britain for centuries, but their native-born children were still considered subjects of the Crown. In 1866, Senator Edgar Cowan argued in Congress that birth citizenship should not apply to gypsies because, among other things, they "have no homes" and "no allegiance." He lost, even though they did paradigmatically lack homes or allegiance to any government. The Roma precedents from common law and from the original public meaning cut sharply against the legality of any effort to restrict birth citizenship. 

--Dan Ernst 

Remembering Willowbrook

[We have the following announcement from the Historical Society of the New York Courts.  DRE.]

Remembering Willowbrook: Ensuring Justice, Dignity and Inclusion for Individuals with Intellectual & Developmental Disabilities

Monday, October 27, 2025 • 6:00-7:30 PM

A panel of experts discuss the legacy of Willowbrook State School and its closure as well as its impact on people with developmental disabilities:

Henry Kennedy, Willkie Farr & Gallagher LLP, Ret. Managing Attorney, Moderator
Marco Damiani, Chief Executive Officer, AHRC, New York City
Beth Haroules, Director of Disability Justice Litigation, New York Civil Liberties Union
Jose J. Rivera, Jr., Director of Quality Assurance, Compliance Officer, Cerebral Palsy Association of Nassau County, Inc.: Gouverneur Parents Association, Inc. Advocate
Joshua Schneps, CEO and Co-Publisher, Schneps Media
Victoria Schneps, Founder, President and Co-Publisher, Schneps Media; Founder, Life’s WORC
Leonard Simmons, Principal Attorney, Mental Hygiene Legal Service, Appellate Division, First Judicial Department

Free and Open to the Public • In-Person Only • At Appellate Division, First Department Courtroom (27 Madison Ave. New York, NY 10010).  Presented by the Supreme Court of the State of New York Appellate Division, First Department and the Historical Society of the New York Courts.  Free CLE Credit.  Reception to Follow.

Ramseyer on the Ainu as Case Study of Economic Performance and the Colonized

J. Mark Ramseyer, Harvard Law School, has posted When Economic Performance Turns on the Colonized Rather than the Colonist:

Acemoglu, Johnson & Robinson posit that colonizing countries promoted growth in places where their citizens planned to live by introducing rational economic and legal institutions. By contrast, where they faced high mortality rates, they introduced only "extractive" institutions. They took what they could and left. The former places thrived; the latter failed. Disproportionately, Acemoglu, et al.'s countries with high settler mortality rates were places that had only recently made the transition from hunter-gatherer economies to settled agriculture, if they had made it at all. Unlike agriculturalists, hunter-gatherers generally lack any sense of private ownership over the most obvious capital asset-land. Not owning that capital asset, they have little reason to defer gratification and invest in it. And for the most part, they relentlessly fight each other over resources and women. With no tradition of capital ownership or long-term investments but with chronic and lethal violence, most hunter-gatherers would not have been able effectively to exploit rational legal institutions anyway. I illustrate (only illustrate; I do not claim to prove) this intuition with the example of the Japanese Ainu. As of the mid-19th century, most Japanese lived either in settled agricultural communities or in booming commercial cities. The hunter-gatherer Ainu, however, lived in the northern-most island of Hokkaido. When the Japanese government introduced western legal institutions at the turn of the century, it applied the new rules both to the agricultural and commercial regions outside of Hokkaido and to the hunter-gatherer communities within Hokkaido. Over most of Japan, men and women quickly learned to exploit the opportunities presented by the new legal system. In Hokkaido, the Ainu failed to do any of that. In time, they simply intermarried with the other Japanese and disappeared. The innovation and investment that would eventually transform Hokkaido came instead with immigrants from the rest of Japan. 

--Dan Ernst

Rubinelli on British Debates on Referenda and Social Democracy

Lucia Rubinelli, Yale University, has published The Shortest Way to Democracy: Debates about the Referendum and Socialist Democratic Theory in the Late Nineteenth Century in Law and History Review:

This article explores how late nineteenth-century British socialists theorized the relationship between socialism and democracy through debates about the referendum. At the 1896 London Congress of the Second International, Fabians such as Sidney and Beatrice Webb and George Bernard Shaw defended parliamentary representation, expertise, and leadership as essential to socialist politics. In contrast, radicals in the Social Democratic Federation, and the Independent Labour Party advanced a theory of “real democracy” centered on direct popular legislation. Rejecting parliamentarism as corrupt, they envisioned referenda, mandates, and recall as tools to secure individual sovereignty and to dissolve the dominance of permanent majorities. This model redefined majority rule as transient, issue-specific, and plural, challenging both plebiscitary leadership and technocratic elitism. Although the International ultimately adopted the referendum only for strategic purposes, these debates reveal an original, if forgotten, socialist account of democracy as a form of pluralist, non-electoral majoritarianism.

--Dan Ernst

Newman on the End of Slavery in Britain

Simon P. Newman, University of Glasgow, has published Taken Not Given: The End of Slavery in Britain in Law and History Review:

Between the mid-seventeenth and the late-eighteenth centuries thousands of enslaved people were brought to the British Isles. Many were enslaved, and they were publicly bought and sold, marked by brands, collars and manacles, and some were sent from Britain into plantation slavery. Slavery did not, hoverer, flourish in Britain. By the time of Somerset v Stewart (1772) and Knight v Wedderburn (1778) the large majority of people of color in Britain were free, many of them self-liberated. Despite the best efforts of enslavers to maintain their property rights in people, the enslaved regularly escaped. Newspaper “runaway advertisements” were invented in London during the second half of the seventeenth century, and between the 1650s and 1770s they reveal the development of the freedom seeker in the public sphere. The Somerset and Knight decisions did little to change slavery in the British Isles but rather confirmed a change that was all but complete. The most significant impact of the decisions was in the colonies, where planters interpreted the courts’ actions as evidence of a growing imperial threat to the institution of slavery.

--Dan Ernst