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 

Kesselring on Star Chamber and Conspiracy

K. J. Kesselring, Dalhousie University, has published Conspiracy, Crime, and Conflict in the Court of Star Chamber in Law and History Review:

To those living through them, the Elizabethan and early Stuart years of England’s history seemed unusually riven by plots and conspiracies. Protestants feared the public effects of the private machinations of the Scottish queen and her supporters, of Jesuits, and of perfidious “papists” more generally. Catholic polemicists countered with narratives of dark deeds done by men who subverted rather than served the Crown: “secret histories” circulated that warned of William and Robert Cecil, the earl of Leicester, and others undermining the public state of the realm. Very real conspiracies by men such as the Earl of Essex and Guy Fawkes fostered fears of others. From the hard and hungry 1590s, protests against enclosures and lack of food became so common and concerning that the authorities contrived to brand some such riots as the products of treasonous conspiracies that threatened not just particular landlords or grain merchants but the public at large. Over the early seventeenth century, fears of covert machinations by both the poor and the powerful only increased, culminating in the fear that King Charles himself had become a pawn in a Catholic conspiracy that endangered the lives and liberties of his subjects. Talk of plots and conspiracies—real and imagined—abounded in an increasingly divided and discordant political culture, seen as threatening a “public” they arguably helped to create.

--Dan Ernst

AHA Webinar: Shutdown History

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

History Behind the Headlines: Government Shutdowns and the Federal Budget

Thursday, October 16, 1:30 p.m. ET

Threats of a US government shutdown have become a staple of the federal budget process during the past few decades. Join moderator Kathryn Cramer Brownell (Purdue Univ.) and panelists Lily Geismer (Claremont McKenna Coll.), John Lawrence (Univ. of California Washington Center), and Jeremi Suri (Univ. of Texas at Austin) for a discussion of the history of federal appropriations, why shutdowns have become so common, and their broader historical implications.

The event is free to attend and open to all; registration is required. The webinar will be recorded and made available on our YouTube channel after the event. Events in the History Behind the Headlines series are generously sponsored by AHA member Jared Brubaker.

JSCH: Call for an Editor

[We have the following call from the Supreme Court Historical Society for an Editor and Chair of Board of Editors for the Journal of Supreme Court History.  DRE]

The Supreme Court Historical Society invites applications for an Editor to Chair the Board of Editors of its flagship publication:  Journal of Supreme Court History. The Journal, published three times a year in print by Johns Hopkins University Press, is celebrating its 50th anniversary. Previous Editors were Melvin I. Urofsky, Timothy S. Huebner and Ross E. Davies. The Journal’s readership includes scholars in a variety of fields, as well as judges, practicing attorneys, and students. Because it seeks to engage and inform scholars and non-scholars alike, the Journal of Supreme Court History values clear narrative prose and original historical research. The Journal uses photographs, cartoons, documents, engravings, and oil portraits to compellingly illustrate articles. 

The Editor will work under the guidance of the Executive Editor, Clare Cushman of the Supreme Court Historical Society (SCHS), which funds the publication. Helen Knowles-Gardner is the Managing Editor responsible for the daily management of the publication and its editing and production. The SCHS is a non-profit membership organization dedicated to preserving, collecting, and disseminating the history of the Supreme Court of the United States.

While this is a non-paid position, travel expenses to attend relevant conferences, such as the American Society for Legal History, will be subsidized.  Interested scholars should send an electronic version of their current c.v. and a statement of why they are interested in the position by November 19, 2025, to Clare Cushman: ccushman@supremecourthistory.org. 

The Chair of the Board of Editors of the Journal of Supreme Court History carries out the following duties:

• Recruits authors to write for the Journal.  Recruiting articles involves reaching out to potential authors via email or phone, attending the American Society for Legal History annual meeting and other relevant conferences, and consulting with Board members about possible submissions.  Frequent follow up messages to potential authors ensures that the Journal continues to receive a steady stream of potential articles. 

• Reviews articles in consultation with the Associate Editor and the Managing Editor of the Journal.  This is the most frequent duty—keeping up with articles as they come in.  Normally, both the Editor and Associate Editor send written comments on each article to the Managing Editor, who edits and synthesizes them before sending them to the author.  The Journal prides itself on its quick turnaround—notifying authors of a decision within six weeks of submission.

• Writes an Introduction (approximately 1,000 words) for each issue of the Journal.  The Introduction usually offers some remarks on the content of the Journal, including all articles and book reviews, and must be written by the deadline given by the Managing Editor. 

• Engages in final review of articles and book review(s) prior to publication.  While writing the Introduction, the Editor should engage in a final review of the articles and any book reviews and notify the Managing Editor of any mistakes. 

• Schedules, presides over, and sends out summaries of regular meetings of the Board of Editors.  Regular Board meetings are critical to the smooth operation of the Journal and are held in summer and winter, every six months.  The Editor and the Executive Editor usually work on an agenda together, which typically includes any updates from the Supreme Court Historical Society and any matters pertinent to the publication of the Journal.  

• Oversees the issuing of the three awards given by the Journal.  These include the Hughes Gossett Award (given annually for the best article published in the Journal), and the Hughes Gossett Student Award (given for the best student article submitted).  The Editor notifies the Board in the spring of each year which articles are eligible for the Hughes Gossett Award, and all Board members (including the Editor) communicate their votes to the Managing Editor.  The Editor and the previous year’s winner of the Hughes Gossett Award decide the winner of the Hughes Gossett Student Award.   

• Interviews an article author from each issue of the Journal, to be posted on the Supreme Court Historical Society’s YouTube Channel.  This series is called “Breaking History” and is posted three times a year, just after the publication of each issue.  Interviews are 20 minutes in length. 

Witt's "Radical Fund"

John Fabian Witt, Yale Law School, has published The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon & Schuster):

In 1922, a young idealist named Charles Garland rejected a million-dollar inheritance. In a world of shocking wealth disparities, shameless racism, and political repression, Garland opted instead to invest in a future where radical ideas—like working-class power, free speech, and equality—might flourish. Over the next two decades, the Garland Fund would nurture a new generation of wildly ambi­tious progressive projects.

The men and women around the Fund were rich and poor, white and Black. They cooperated and bickered; they formed rivalries, fell in and out of love, and made mistakes. Yet shared beliefs linked them throughout. They believed that Amer­ican capitalism was broken. They believed that American democracy (if it had ever existed) stole from those who had the least. And they believed that American institutions needed to be radically remade for the modern age.

By the time they spent the last of the Fund’s resources, their outsider ideas had become mass movements battling to transform a nation.

A luminous testament to the power of visionary organizations and a meditation on the vexed role of money in American life, The Radical Fund is a hopeful book for our anxious, angry age—an empowering road map for how people with heretical ideas can bring about audacious change.

Several book events, including the New York Historical today and Politics & Prose in Washington, DC, on Thursday, are listed on the publisher's website.  In addition, the Supreme Court Historical Society will host an event by Zoom at Noon ET on October 23, and Professor Witt has already discussed the book on the Strict Scrutiny podcast.

--Dan Ernst

Liptak on Nelson's Originialist Defense of Humphrey's Executor

In today's New York Times, Adam Liptak develops the significance of Caleb Nelson's recent "bombshell" (William Baude) essay on NYU Law's "Democracy Project," Must Administrative Officers Serve at the President’s Pleasure?  Professor Nelson is a former law clerk to Justice Clarence Thomas.  Writes NYU Law's Richard Pildes, “If a highly respected originalist scholar like Professor Nelson, on whom the court relies frequently, denies that originalism supports the unitary executive theory, . . . that inevitably raises serious questions about an originalist justification for the court’s looming approach.”

--Dan Ernst 

Challenging Exile: Japanese Canadians and the Wartime Constitution

[We have the following announcement of a book launch to be held at the Library and Archives of Canada on Wednesday, November 12, from 7 - 8pm EST, with the doors opening at 6:30pm.  DRE]

Join us for the launch of Challenging Exile: Japanese Canadians and the Wartime Constitution  [University of Chicago Press] by Eric M. Adams and Jordan Stanger-Ross, presented by Library and Archives Canada.

In September 1945, Canadian democracy faced a fundamental question of constitutional law: could citizens be expelled on the basis of race? Canada proposed exiling Japanese Canadians to Japan, a country devastated by war. Thousands who had already experienced uprooting, internment and dispossession were now at risk of banishment. Challenging Exile investigates the origins, administration, litigation and aftermath of this attempt at gross injustice and shares the stories of resilience of those who faced it.

How did Japanese Canadians navigate the challenges arrayed against them? Eric M. Adams and Jordan Stanger-Ross detail the circumstances and personalities behind the proposed exile. They follow the lives of families facing government orders that forced them from their homes, stripped their livelihoods and possessions, and deprived them of fundamental rights. They also analyze the constitutional framework of the court case in which lawyers and judges grappled with the meaning of citizenship, race and rights at a time of change in Canadian law and politics.

Unfolding in a context of global conflict, sharpened borders and racist suspicion, the story told in Challenging Exile has enduring relevance for our own troubled times.

This meticulous and moving account of a shameful episode in Canada’s past tells a necessary story not only for scholars and historians of law, politics and human rights, but also for readers of Canadian history.

About the authors

Eric M. Adams is a professor in the Faculty of Law at the University of Alberta. He has written widely on constitutional law, legal history, employment law, human rights and legal education.

Jordan Stanger-Ross is a professor of history at the University of Victoria. He is the author of numerous works on the history of migration and race in North America.

[Register here.] 

Weekend Roundup

• The Harvard Law Library’s rich collection on Magna Carta
 ""offers students an important link to the past and the present" (Harvard Law Bulletin).   

• In an online program at Noon on November 4, 2025, the Supreme Court Historical Society will host a conversation by the authors of two published this fall on Justice Robert H. Jackson: G. Edward White, author of Robert H. Jackson: A Life in Judgment, and Gerard Magliocca, author of The Actual Art of Governing: Justice Robert H. Jackson’s Concurring Opinion in the Steel Seizure Case.  Register here.

• Scott Bomboy's explainer on the Posse Comitatus and Insurrection Acts (National Constitution Center).  

• Richard Re on Julian Mortenson's "The Executive Power Clause" and the history of presidential removals (Divided Argument).  

• In the October 16 session of the of the Berkeley Legal History Workshop, "Hendrik Hartog will reflect on the development of the field of legal history and discuss inter-disciplinary collaboration in the legal context" (UC Berkeley Law).

• Clark University's notice of Aziz Rana's Constitution Day lecture on American Constitutional History (ClarkNews).  

• We missed Temple Law's story on Craig Green and the contribution of history to legal education when it appeared this summer (Temple Law News). 

• We don't believe we realized that there is a biennial conference of the Children's History Society. 

• The University of Nevada, Las Vegas seeks an Assistant Historian of Indigenous North America. 

• Two of the three recipients in Berkeley’s JSP program recently named Berkeley Empirical Legal Studies Graduate Fellows are studying legal history.  “Michael Banerjee is researching the legal history of American universities and academic freedom, and Margot Lipin is studying the nexus of legal history, policing, and fashion” (UC Berkeley Law).

• "The University of Northern Iowa's Center for Civic Education has received a $1.22 million grant from the U.S. Department of Education . . . . to strengthen civic education for students statewide. The program will include seminars on civic virtues and Iowa's constitutional history, reaching educators through various formats such as high school teacher seminars, intensive sessions for UNI teaching majors, and workshops for elementary teachers( KWWL). 

• The blog Public Law, Policy, and Public Administration blog conveniently gathers links to all the sites you need to keep up to speed with the Supreme Court during its present term.  Scroll down to the post dated October 7. 

• An essay on the presidents of the Florida State Bar Association from 1907 through 1949 (Florida Bar News). 

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

• Martti Koskenniemi delivered 2025 Leo Mechelin Keynote Lecture at the Rule of Law Day observance by the University of Helsinki’s Rule of Law Centre and the Leo Mechelin Foundation (ESCLH). 

• ICYMI: Twelve Failed Constitutional Amendments That Could Have Reshaped American History (Smithsonian). More Lepore (NPR; CSM; Big Think; Foreign Policy). Steven Calabresi (and Gordon Wood) on Akhil Reed Amar's Born Equal (Volokh Conspiracy). Justice Anthony Kennedy on the Origins of "Equal Justice under Law" (NYT). "The Pendle witch trials will haunt [Lancashire's] past forever" (LancsLive). Chattanooga lawyers mourned the death of Judge Charles Dickens Clark in 1908 (Chattanooga Times Free Press).

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

Klaus on Lemkin and the Tokyo Tribunal

Julia Klaus, Friedrich-Alexander-Universität Erlangen-Nürnberg, has posted "The Right of Existence of Peoples as Independent Nations": Raphael Lemkin, the Tokyo Tribunal, and Aggression:

Raphael Lemkin (wiki)

The article uncovers a significant historical connection between Raphael Lemkin, known for his work on genocide, and the International Military Tribunal for the Far East in 1947. Archival discoveries reveal Lemkin's involvement in discussions on defining the legal concept of aggressive war, aiming to influence the proceedings of the Tokyo Tribunal. A transcript of a US War Department conference shows how Lemkin's legal philosophy, balancing natural law and practical pragmatism, guided his views on aggression. His preference for a common law approach to formulating legal norms also became evident. Linking the 1947 conference report to an earlier publication by Lemkin sheds light on his role in imagining a practicable legal concept of aggression during the pre-and post-World War II era. This historical connection and a survey of the epistemic communities around Lemkin foster a deeper understanding of his multifaceted contributions to international law and the prevention of mass atrocities. 

--Dan Ernst

Tyler on Originalism in the Supreme Court's 2d Amendment Decisions

Amanda L. Tyler, University of California, Berkeley School of Law, has posted Levels of Generality, the Limits of Originalism, and the Supreme Court's Second Amendment Jurisprudence:

Just how originalist is the Court’s Second Amendment jurisprudence after United States v. Rahimi? This is perhaps one of the biggest questions left in the decision’s wake. As it turns out, the answer is not altogether clear post Rahimi. This is because the case produced some seven separate opinions, many of which—even though they agree as to the bottom line—get there by very different paths. This Article suggests that Rahimi, perhaps more than any other recent decision by the Court, underscores the crucial role that levels of generality in constitutional interpretation play, while illustrating the problems with originalism and how, when faced with a choice between strict adherence to originalism’s core ideals and avoiding deeply undesirable results, many justices—even those who purport to be originalists—will forsake originalism for a far more pragmatic approach to constitutional interpretation. In the end, when the various opinions in Rahimi are dissected, one finds considerable support for the notion that the Justices are “look[ing] for the central purposes of the relevant constitutional provision and tr[ying] to apply it in a vastly different world.” Whatever it is, such an approach is decidedly not originalism.

--Dan Ernst 

Siddiqui's "Islamic Law on Trial"

Sohaira Siddiqui, Georgetown University, has published Islamic Law on Trial: Contesting Colonial Power in British India (University of California Press, 2025):

Prior to the East India Company’s establishment in India in 1661, Islamic law was widely applied by the Mughal Empire. But as the Company’s power grew, it established a court system intended to limit Islamic law. Following the Great Rebellion of 1857, the decentralized Islamic legal system was replaced with a new standardized system. Islamic Law on Trial interrogates the project of juridical colonization and demonstrates that alongside—and despite—the violent displacement of Muslim legal sovereignty, Muslims were able to engage with and even champion Islamic law from inside the colonial judiciary. The outcome of their work was a paradoxical legal terrain that appeared legitimate to both Muslim practitioners and English colonizers. Sohaira Siddiqui challenges long-standing assumptions about Islamic law under British rule, the ways in which colonial power displaced preexisting traditions, and how local Muslim elites navigated the new institutions imposed upon them.

Georgetown University Qatar's notice of the book is here. 

 --Dan Ernst

Berger-Howe Legal History Fellowship

[We have the following announcement.  DRE.]

Harvard Law School invites applications for the Raoul Berger-Mark De Wolfe Howe Legal History Fellowship for the academic year 2026-2027.  Eligible applicants include those who have made substantial progress on their doctoral dissertations or who have recently been awarded a doctoral degree. A first law degree is preferred, but not required.

The purpose of the fellowship, which is awarded annually, is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined, as the fellow seeks to begin an academic career in legal history. There are no limitations as to geographical area or time period.  Previous fellows have gone on to pursue faculty appointments or other fellowships in American universities, primarily on law faculties.

The fellow is expected to spend the majority of their time on their own projects. The fellow will also participate in the Harvard Law School Legal History Workshop, a for-credit semester-long seminar, and assist with occasional other legal history sessions, both under the direction of Harvard faculty affiliated with the Program in Law and History.  The term of the fellowship is July 1 through June 30.  The fellow will be required to be in residence at the law school during the academic year (September through May).

Applicants for the fellowship for 2026-2027 should submit their applications and supporting materials electronically to Professor Bruce H. Mann. 

Each interested applicant should submit: 

• a detailed (five pages maximum) description of a proposed project;
• a writing sample; 
• a comprehensive résumé or curriculum vitae that gives the applicant's educational background, publications, works in progress, and other relevant experience; 
• two academic letters of reference, which may be submitted electronically by the recommenders to Professor Mann at the above email address; and
• copies of official transcripts of all academic work done at the graduate level,  which may be sent electronically or by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138

The deadline for applications is January 15, 2026.  Announcement of the award will be made by February 27, 2026.  The fellow selected will receive a stipend of $60,000.

CLH: Dialogues on Customary Law

 [We have the following announcement.  DRE]

Comparative Legal History: Dialogues on Customary Law.  5 November 2025 – 17:00-18:00hs (CET)

The journal Comparative Legal History is an official academic forum of the European Society for Comparative Legal History. Based in Europe, it welcomes contributions that explore law in different times and jurisdictions from across the globe. Submissions are currently welcome and are being assessed on a rolling basis. 

The journal will host a one-hour public session to discuss customary law in the context of comparative legal history. Editors (past and present) will present exploratory points, and all attendees will be invited to join in a general discussion. 

Customary laws were prevalent in Europe during the Middle Ages. In recent years there has been a resurgence in research projects concerning customary laws, and a number of questions need to be raised. To what extent are customary laws something that still needs to be studied? To what extent customary laws ought to be taught at universities to complement core modules such as family law, the laws of inheritance and property law to frame these topics in their historical context? To what extent is there merit in having journals and monograph series concentrate on comparative customary law? How should studies be undertaken? These, and other questions will be explored during this public session.

The event is free and open to the public, and it will take place via Teams. 

Registration is required by sending an email to clhdialogues@gmail.com.

Novak on Legislation, Regulation, and Administration in the American Revolution

William J. Novak, University of Michigan Law School, has published Legislation, Regulation, and Administration in the American Revolution online and open-access in Law and History Review:

This article continues a long-term investigation into the nature of legislation, regulation, and administration across United States history. In contrast to persistent myths about an original American legal and political inheritance dedicated primarily to private rights, limited government, and laissez-faire economics, this article explores the earliest roots of American public rights, popular lawmaking, and regulatory policymaking. In the very first activities of revolutionary Provincial Congresses and Committees of Safety, this article locates a surprisingly robust template for the future development of American state police power, public provisioning, general-welfare legislation, and socio-economic regulation.

--Dan Ernst

Selma Moidel Smith Student Writing Competition in California Legal History

[We have the following Call for Submissions.  DRE]

The California Supreme Court Historical Society (CSCHS) encourages all students working on
California legal history (NOT just the history of California courts) to apply for [the Selma Moidel Smith Student Writing Competition in California Legal History.  Papers may include elements of digital humanities and may also be co-authored. This is a GREAT WAY to get attention for your hard work!

$5,000 first-place, $2,500 second-place, and $1,000 third-place prizes will be awarded to the best papers on California state or colonial history, broadly considered. Recent winners include a study of the death penalty in California, the evolution of California land law, the desegregation of Stanford Law School, and disability law and the campaign for independent living. as well as a jointly authored paper on Chinese adoption practices and their role in immigration decisions after the Chinese Exclusion Act.

We accept papers of at least 7,500 and not more than 15,000 words, including notes and other explanatory matter. The competition is open to students and recent graduates in history and/or law, provided that they did not have full-time academic employment at the time the paper was written. The paper should also be unpublished; prize winners will likely receive an offer to publish in California Legal History, CSCHS's journal.

Papers may be self-nominated or sent in by a professor or supervisor. To ensure anonymity, the author's name should appear only on a separate cover page, along with the author's mailing address, telephone number, email address, and the name of their school.  

Submissions are due by July 1, 2026 and should be sent to director@cschs.org with the subject line "Smith Prize." The winners will be announced in August 2026, and an award ceremony (likely over Zoom) will be held in August or September. 

For the Prize Committee: Sarah Barringer Gordon, Laura Kalman, Stuart Banner

Defend the National Archives!

 [The Organization of American Historians will host a webinar today on the National Archives.  Here is its announcement.  DRE.]

The future of America’s archives is at stake. Join us at 3pm ET for an open-access webinar on the National Archives and Records Administration (NARA)—the institution that preserves and provides access to the documents that tell our nation’s story.

Panelists will discuss:

• how NARA safeguards democracy through record preservation;
• why the Federal Records Act matters to every citizen;
• the potential impact of proposed budget cuts on access to public information; [and]
• simple, actionable steps anyone—not just historians—can take right now

And here’s why this can’t wait: amid widespread disruptions and layoffs, we don’t truly know who is safeguarding the “history of now.” That uncertainty is exactly why informed, immediate advocacy for NARA is essential.

Secure your spot now to help protect access to America’s past, [here.]

Law and Humanities Workshop for Junior Scholars

[We have the following Call for Participation for the 2026 Law and Humanities Workshop for Junior Scholars.  DRE]

Georgetown University Law Center, Stanford Law School, UCLA School of Law, the University of Pennsylvania, and the University of Southern California Center for Law, History, and Culture invite submissions for the 24th meeting of the Law and Humanities Workshop for Junior Scholars, to be held at the University of Pennsylvania Carey Law School on June 8-9, 2026. 

About the Workshop.  The workshop is open to untenured professors, advanced graduate students, post-doctoral scholars, and independent scholars working in law and the humanities. In addition to drawing from numerous humanistic fields, including Black and Indigenous studies, history, literature, political theory, critical race theory, feminist theory, and philosophy, we welcome critical, qualitative work in the social sciences, including anthropology and sociology. While the scope of the Workshop is broad, we cannot consider proposals that are focused solely on quantitative social science research or that are limited to doctrinal legal research. We are especially interested in submissions touching on themes of inequality, anti-racism and anti-subordination. We welcome submissions from those working at regional and teaching-intensive institutions.

Based on anonymous evaluation by an interdisciplinary selection committee, between six and eight papers will be chosen for presentation at the Workshop, where two senior scholars will comment on each paper. Commentators and other Workshop participants will be asked to focus specifically on the strengths and weaknesses of the selected scholarly projects, with respect to subject and methodology. The selected papers will then serve as the basis for a larger conversation among all the participants that may include themes connecting all of the projects, as well as discussion of the evolving standards by which we judge excellence and creativity in interdisciplinary scholarship.

The selected papers may appear in a special issue of the Legal Scholarship Network at SSRN; there is no other publication commitment. (We will accommodate the wishes of chosen authors who prefer not to have their paper posted publicly with us because of publication commitments to other journals.) However, we will only accept Workshop participants whose papers are true works in progress; articles or chapters that are already in page proofs or are otherwise unable to be revised by the time of the Workshop are ineligible.

The Workshop will pay the domestic travel and hotel expenses of authors whose papers are selected for presentation. For authors requiring airline travel from outside the United States, the Workshop will cover such travel expenses up to a maximum of $1250.
Submission Instructions.  Applications should be submitted through the submissions portal on the Law and Humanities Workshop website [here].  Your application should consist of a single Microsoft Word document (not PDF) containing:

• a 1500-2000 word summary of your paper (word count includes footnotes or endnotes);
• a 1-2 page bibliography; and,
• if your paper is a chapter in a book or dissertation, an optional 1-page chapter outline of the larger project.

Applications are due on Monday, December 1, 2025.

If your application advances to the final stage of consideration, you will be asked to submit the full paper by January 15, 2026. Please do not apply if you will not have a full paper on January 15. Your application should be a summary of existing, ongoing work rather than a proposal for new or planned work.
The full paper must be a work-in-progress that does not exceed 10,000 words in length (including footnotes/ endnotes). A dissertation chapter may be submitted, but we strongly suggest that it be edited so as to stand alone as a piece of work with its own integrity. A paper that has been submitted for publication is eligible for selection so long as it will not be in galley proofs or in print at the time of the Workshop; it is important that authors still be in a position at the time of the Workshop to consider comments they receive there and to incorporate them as they think appropriate in their revisions.

We ask that those submitting applications be careful to omit or redact any information in the paper summary, bibliography, or chapter outline that might serve to identify them, as we adhere to an anonymous or “blind” selection process.

For more information, please send an email inquiry to Lawandhumanitiesworkshop@gmail.com or visit [here].

Program Committee, 2026 Law and Humanities Workshop for Junior Scholars

Riaz Tejani, Chapman University, Law, Chair
LaToya Baldwin Clark, University of California Los Angeles, Law
Danielle Boaz, University of North Carolina at Charlotte, Africana Studies
David Eng, University of Pennsylvania, English & Asian American Studies
Melynda Price, University of Michigan, Women and Gender Studies
Clyde Spillenger, University of California Los Angeles, Law

The Law and Humanities Workshop for Junior Scholars is committed to anti-racism both inside and outside the academy.

Gaughan on Eras of Campaign Finance Law

Anthony J. Gaughan, Drake University Law School, has posted Cyclical Misalignment: A History of Campaign Finance Law, which is forthcoming in the Ohio State Law Journal:

The role of money in politics poses a thorny challenge to democratic government. In a healthy democracy, individual voters should have an equal influence on election outcomes. But robust political discourse depends on candidates having access to effective means of communication. In the absence of a comprehensive public funding system, candidates must turn to private donors to finance their campaigns. Candidates’ reliance on wealthy supporters creates the risk that the rich will exercise disproportionate influence over public policy. Principles of free speech and democratic equality thus sit uneasily together in privately funded campaign finance systems. The United States is the leading case in point. Since the 1700s, Americans have struggled to strike a balance between access to campaign funds on one hand and democratic accountability and responsiveness on the other.

This article examines the history of American campaign finance law prior to the adoption of the 1974 amendments to the Federal Election Campaign Act. The period from 1619 to 1974 saw the rise and fall of three distinct campaign finance eras characterized by unique laws and practices: the Aristocratic Era (1619-1790s), the Patronage Era (1790s to 1883), and the Nominally Regulated Era (1883 to 1974). 

This article contends that the American campaign finance system has proven exceptionally difficult to align with democratic values. The Aristocratic Era, the Patronage Era, and the Nominally Regulated Era reveal the extent of the alignment challenge. On paper at least, each era’s campaign finance system sought to facilitate representational and policy alignment with democratic values by ensuring that elected officials reflected the will of their constituents. But in each case, the reforms failed to achieve the long-term goals of the reformers. Technological change, partisan manipulation, wealthy special interest groups, and evolving popular and elite preferences inevitably led to misalignment. History thus provides a cautionary note for modern campaign finance reformers. It suggests that aligning campaign finance law may be the hardest alignment challenge of all.    

--Dan Ernst 

Schlegel to Lecture on Legal Education and the Postwar Middle Class

[We have the following announcement.  DRE]

The Fall 2025 James McCormick Mitchell Lecture at the University at Buffalo School of Law

 Friday, November 14, 2025. Lecture at 2:30 p.m. Panel Discussion at  3:30 p.m. Reception at 4:30 p.m.  Charles B. Sears Law Library, John Lord O’Brian Hall, UB (North Campus)

“Reflections on Legal Education and the Post-War Middle Class,” by John Henry Schlegel

The history of American legal education, the one that “everybody knows,” begins with Christopher Columbus Langdell, the first Dean of the Harvard Law School, who discovered, not a continent, but case law, the large class, and the cold call and used them to wrestle legal education from practicing lawyers who apparently didn’t understand what they did every day. Thereafter, Legal Realism moved the focus of the classroom from what the case law was to what it should be, and their grandchildren attended to matters of ethnicity, race and gender. Matters of social class, while not verboten, are seldom adverted to in this story. Reflections on Legal Education and the Post-War Middle Class attempts to repair this historical absence by inserting aspects of class into the story both generally and more specifically in explaining behavior by contemporary law students that their professors complain about while they teach as if without students.

Join us as we celebrate Prof. Schlegel on his 50+ years of distinguished teaching and scholarship at a reception to follow the lecture.  Free and open to the public. Registration is required.  Prof. John Henry Schlegel is a UB Distinguished Professor and Floyd H. & Hilda L. Hurst Faculty Scholar at the University at Buffalo School of Law. He joined the UB Law faculty in 1973, teaching for more than five decades primarily in the areas of corporate and commercial law and regional economic development.

A legal historian, his scholarship has focused on the history of legal education and the evolution of American Legal Realism in the 1920s and 30s. He is the author of numerous books and articles, including, most recently, While Waiting for Rain: Community, Economy and Law in a Time of Change (University of Michigan Press, 2022).

Weekend Roundup

• 
  John W. Cairns, professor of Civil Law at the University of Edinburgh, will deliver this year’s Eason-Weinmann Lecture on International and Comparative Law at Tulane Law School on November 20, 2025, at 5 p.m. in the Wendell H. Gauthier Moot Court Room 110.  Professor Cairns’s lecture, "The Civil Code of the State of Louisiana: Context and Contents," will kick off a conference on the bicentennial of the Louisiana Civil Code.  

• Caleb Nelson, UVA Law, asks, Must Administrative Officers Serve at the President’s Pleasure?" and makes an originalist case for why the answer is no.
  

• A notice and recording of Richard Primus's discussion with Noah Feldman of Professor Primus's book, The Oldest Constitutional Question, at HLS on September 25 (Harvard Law Today). 

• UVA Law's notice of G. Edward White's Robert H. Jackson: A Life in Judgment (Oxford University Press). 

• Over at Nursing Clio: David Korostyshevsky on The Strange Case of Henrietta Wiley: A Habitual Drunkard’s Journey Through Guardianship and the Asylum (h/t: HNN).

• "Jamie Raskin (D-MD), former Federal Judge Michael Luttig, and Baltimore University Law Professor Kimberly Wehle discuss the history of the U.S. Constitution at an event hosted by George Washington's Mount Vernon" (C-SPAN).  

• My Georgetown Law colleague John Mikhail lectured on anti-slavery and the Constitution on September 17 as part of Ithaca College’s observance of Constitution Day (Ithacan).  DRE. 

• Last month, Nancy Cott, Harvard University, spoke on “Doctors, Lawyers, and Feminists on the Road to Roe v. Wade" at Vanderbilt Law (Vanderbilt)

• Kurt Lash discusses constitutional debates over slavery before the Civil War (NCC). 

• One of the Drinan Visiting Professors are at the Boston College Law School is Rebecca Horwitz-Willis, a recipient of the Kathryn T. Preyer Award from the American Society of Legal History (BC Law).

• In the series "Made by History" in Time Magazine: Samantha Barbas says that History Explains Why the U.S. Doesn’t Ban Hate Speech.  Bob Crawford on John Qunicy Adams and the "the Gag Rule." 

• 
  
  The Organization of American Historians is sponsoring two webinars on immigration in October.  The first, on denaturalization, will take place at 6pm ET on October 14.  Register here.  The second, on U.S. deportation policies from the Alien Friends Act of 1798 to today, will take place at 6pm ET on October 30.  Register here.  Both webinars are co-sponsored by the Immigration and Ethnic History Society.   

• The October 2025 issue of the newsletter of the Historical Society of the DC Circuit is now available.  

• We ought to have noticed sooner Time Immemorial, the podcast of the Osgoode Hall Society for Canadian Legal History. 

• ICYMI: (Before the government shutdown), visitors to the National Archives react to seeing the entire Constitution (WaPo).  Jillian Foley on America’s Privacy Policy (HNN).  Douglas M. Charles, Penn State, on history repeating itself at the FBI (The Conversation).

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

Treanor and Uelman on Religious Freedom, Jesuit Mission, and DEI

William Michael Treanor and Amy Uelmen, Georgetown University Law Center, have posted Religious Freedom, Jesuit Mission, and DEI, which is forthcoming in a special issue of the Jesuit Educational Quarterly entitled "Legal Education and the Society of Jesus."

The ability of Jesuit educational institutions to pursue a central part of their mission that of fostering diverse, equitable and inclusive educational environments is under attack. This essay outlines several dimensions of their religiously-grounded mission and the reasons to strongly protect from government interference the rights of Jesuit universities to implement programs and practices that align with DEI values. First, for Jesuit universities, these programs and practices are rooted in a much deeper culture of the more than 2,000-year old Catholic intellectual tradition and the now 500-year old tradition of Jesuit spirituality. Second, drawing on the classic work of Alexis de Tocqueville, Democracy in America, this essay highlights the important role that Jesuit universities play in protecting liberty and democracy. Third, a Jesuit university's control of its curriculum and admissions practices are protected by well-established First Amendment principles, including freedom of religion. In addition, the First Amendment principle of religious freedom also protects Jesuit universities' ability to have race-conscious programs of student support that advance the Jesuit pedagogic mission. The final section of this essay describes some of the curricular and co-curricular innovations and programmatic offerings at Georgetown University Law Center to illustrate how a Jesuit Law School might advance the Jesuit mission of creating an inclusive environment that supports reflective practices and the free exchange of ideas across differences. 

--Dan Ernst 

Kessler on Law's Constitution of Society

Jeremy Kessler, Columbia Law School, has posted Does Law Constitute Society? which is forthcoming in Law and Contemporary Problems :

This Essay identifies three senses in which law might be said to “constitute” society. First, law might be constitutive in that it is necessary to explain how humans experience the relative distribution of power within a given society (C1). A person’s control of certain means of production might be regularly understood in terms of their legal ownership of that means of production. Legal ownership is, phenomenologically speaking, constitutive of that person’s control. Second, law might be constitutive in that it facilitates, but does not cause, the relative distribution of power (C2). Certain property laws might render more efficient the exploitation of the means of production. Those property laws are, functionally speaking, constitutive of the efficient exploitation of the means of production. But those laws do not explain why a particular person controls the means of production, why they wish to exploit those means, or why more rather than less efficient exploitation is favored by the legal system. Finally, law might be constitutive in that it is causally responsible for the relative distribution of power among human individuals and collectives within a given society (C3). But for certain legal decisions, the relative distribution of power would be different. From this perspective, certain property and contract laws are, causally speaking, constitutive of a person’s control of certain means of production.  

In earlier work, I have described and defended the minimal historical materialist account of law (MHMAL), which affirms C1 and C2 but denies C3. By contrast, Umut Özsu’s Article, “Marx, Marxism, and the Critique of Law,” appears to affirm C3, and to argue that the best of the Marxist legal tradition – from volume 1 of Capital to Nicos Poulantzas’s State, Power, Socialism – also affirms C3. If the dialectic between law and class struggle that Özsu discerns in this tradition is an accurate description of social reality, then C3 is not only consistent with but essential to Marxist legal thought. Since law is shaped by class struggle, law is explicable in materialist terms. Since class struggle is shaped by law, law is not a mere reflection or derivative of the extra-legal balance of class forces. Özsu contends that this dialectical understanding of the relationship between law and class struggle is superior to Evgeny Pashukanis’s functionalism (which, like MHMAL, denies C3) and Katharina Pistor’s “juridical idealism” (which radicalizes C3 at the expense of materialism). This Essay argues that Volume 1 of Capital provides little evidence of Marx’s commitment to C3; that the putative dialectic between law and class struggle inevitably collapses back into either functionalism or idealism; and that functionalism – of the sort defended by Pashukanis and by MHMAL – is the preferable path forward for those interested in offering causal explanations of legal development in a materialist vein. 

--Dan Ernst

Engstrom and the Legal Insurance Experiment

Nora Freeman Engstrom, Stanford Law School, has posted Legal Insurance and Its Limits, which is forthcoming in the Michigan Law Review:

Courts are buckling under the weight of a staggering access-to-justice crisis. In three-quarters of cases, at least one side lacks a lawyer, default judgments are on the rise, and most Americans with valid claims never take legal action. The situation is dire, and it understandably has policymakers casting about for a fix. On the menu are a range of uncontroversial reform ideas, such as expanding legal aid, supporting system simplification, and promoting pro bono. But it is increasingly clear that those measures—even if accomplished—would not make a dent in the problem. Attention is thus turning to other reform ideas, such as relaxing unauthorized practice of law (UPL) rules and scrapping Model Rule 5.4(d), the provision that prevents nonlawyers from even partially owning entities that deliver legal services. Both reforms are promising. But both would dilute the longstanding lawyers’ monopoly. Perhaps not surprisingly, the bar is fighting these reforms tooth-and-nail.

Into this roiling landscape, some now have a new idea: legal insurance. They suggest that legal insurance is the way to expand access to justice for middle and working-class Americans. Reformers are also quick to point out that—unlike a relaxation of UPL restrictions or the abolition of Rule 5.4(d)—legal insurance stands to benefit lawyers.

We have seen this play before. In the 1970s, the bar seized on legal insurance as a solution to what was then seen as an urgent access-to-justice crisis afflicting the middle-class. The movement garnered enthusiastic support, not just from the bar, but also from unions, states, Congress, private insurers, and consumer groups. For a time, legal insurance even took off. By the mid-1970s, there were reportedly 5,000 distinct plans in operation, and experts predicted that, by the mid-1980s, half of practicing lawyers would be participating.  Of course, it didn’t come to pass—and remarkably, it seems the entire episode has been forgotten.

This Article recovers the lost history of the country’s first experiment with legal insurance. In so doing, it seeks to forestall another false start. In addition, by drawing on a range of disciplines—including insurance law (particularly insights concerning moral hazard and adverse selection), behavioral economics, legal ethics, and the legal profession—this Article explains why the legal insurance idea floundered, and seems destined to flounder, going forward.

It is undeniably seductive to think the access-to-justice crisis can be addressed in a way that benefits lawyers. It was seductive half-a-century ago. It is seductive now. But those who actually want to address the access-to-justice crisis need to look somewhere else. 

--Dan Ernst 

Shugerman on Removal and the Fed

Jed H. Shugerman, Boston University School of Law, on The Fed, Offices as Property, and the Meaning of "Cause":

The Federal Reserve Act states that "each member shall hold office for a term of fourteen years from the expiration of the term of his predecessor, unless sooner removed for cause by the President." 12 U.S.C. § 242. Based on the historical record, when Congress creates an office with a fixed term of years and protects against removal without "cause," Congress has both granted "a constitutionally protected property interest" under the Fifth Amendment (that cannot be taken away without "due process") and extended a statutory entitlement to receive fair notice and a meaningful opportunity to respond before any removal may take effect. 

Constitutional Protection: Under English law through the eighteenth century, termed executive offices-even cabinet-level offices-were considered "freehold" property, subject to protections from removal akin to those applicable to real property. This conception-of termed offices as "property"-would have been well known to the Founders and was reflected in Founding-era documents and commentary. The Constitution was drafted with this understanding. 

Statutory Protection: Independent of the Fifth Amendment, the "cause" requirement has a long-established common law meaning of requiring notice and an opportunity to be heard before removal. This understanding hails from pre-Founding English common law, and it is likewise reflected in American precedents soon before Congress drafted the Federal Reserve Act of 1913. The Act’s text of “cause” should be read in this context.

“Faithful Execution.”  Article II of the Constitution requires the President to undertake a “faithful execution” of the laws.  From a historical perspective, there is nothing inconsistent with that obligation.

--Dan Ernst 

Tour the Million-Dollar Courtroom

Million Dollar Courtroom (LC)

[We have word of an excursion on Thursday, November 13, that might interest attendees of the upcoming annual meeting of the American Society for Legal History, a tour at 3:00 pm of the "Million Dollar Courtroom" of the Theodore Levin Federal Courthouse, which is located just a block or so away from the conference hotel in Detroit.  It is not an ASLH-sponsored event but has been arranged Victoria Saker Woeste, an ASLH member who sent us the following.  DRE]

Anyone attending the ASLH meeting in November is welcome to take a tour of the famous “Million
Dollar Courtroom” on the 7th floor of the Theodore Levin Federal Courthouse, 231 W. Lafayette Blvd., less than a five-minute walk from the conference hotel. The tour is free and open to ASLH members and guests. We will get an architectural tour of the space, originally (and lavishly) constructed in 1896 and then lovingly preserved and reinstalled in the current courthouse which was completed in 1935. The room was renovated again in 2015.

Our docent will be Barbara Radke of the Michigan Federal Court Historical Society, and she will give a detailed presentation on the decoration and furnishings in the room, which remains an active courtroom today. We will also learn about important trials held in the space both before and after the relocation. Meet me in the lobby of the hotel at the front doors (at the Washington Blvd. entrance) and we will walk to the courthouse at 2:45 pm rain or shine. You’re also welcome to meet us at the courthouse. You won’t need to register ahead of time but courthouse rules prohibit phones inside the courtrooms, so, unless you are a lawyer with a bar registration card in your possession, prepare to leave your phone in your hotel room or store it in a secure cubby on the first floor of the Levin building. Courthouse security will show us where that is located.

I look forward to showing off this beautiful space. This is not an official ASLH event, so please direct any questions to me at vswoeste@icloud.com.