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.

du Plessis's "Henry Maine’s Ancient Law as an Expression of Victorian Humanism"

Paul J. du Plessis, University of Edinburgh, has published Henry Maine’s Ancient Law as an Expression of Victorian Humanism (University of Edinburgh Press):

This monograph offers a comprehensive contextual analysis of Maine’s Ancient Law, emphasising the author’s use of various sources to construct the book's key themes. Ancient Law was written as a sophisticated piece of rhetorical prose grounded in Maine’s education in the classics. Central to this analysis is the significant role of Roman law in shaping the narrative, particularly its influence on Maine’s arguments and conclusions.

The monograph also positions Maine’s work within the broader intellectual debates of the nineteenth century, especially concerning the teaching of English law and Britain’s colonial presence in India. By situating Maine’s Ancient Law within this larger context, the study enhances our understanding of the text, revealing the historical legal framework that resonates in modern legal discourse and thought. This connection enriches our knowledge of Maine’s contributions and highlights the enduring relevance of his ideas.

–Dan Ernst

Pauline Maier Early American History Seminar

[Here is the schedule of the Pauline Maier Early American History Seminar.  DRE]

Sponsored and hosted by the Massachusetts Historical Society, 1154 Boylston Street, Boston

Seminars begin at 5:00 PM (ET). These sessions bring together a diverse group of scholars and interested members of the public to workshop a pre-circulated paper. Our sessions are free and open to everyone. Register through our online calendar to attend and receive the pre-circulated papers. The Pauline Maier Early American History Seminar steering committee at the MHS includes Profs. Mary Bilder, Katherine Grandjean, Brendan McConville, and Paul Musselwhite. Questions? Contact seminars@masshist.org.

14 October 2025.  Colonial North America in the 17th Century – A Panel Discussion Nathan Braccio, Clark University Elizabeth Hines, Johns Hopkins University Comment: Timo McGregor, Leiden University

2 December 2025.  The Devil Unleashed: The Royal Navy in Boston, 1685 – 1687 Steven Pitt, St. Bonaventure University Comment: Stephen R. Berry, Simmons University

15 January 2026.  Enemies: Treatment and Perception of the Defeated in the American Revolution – A Panel Discussion Susan Brynne Long, University of Delaware Tanner Ogle, Texas A&M University Comment: To Be Announced

3 March 2026. Unruly Convicts, Disorder, and Shifting Moral Responsibility in the British Atlantic Nicole Dressler, The College of William & Mary Comment: To Be Announced

19 March 2026.  “An ASYLUM from TYRANNY”: Slavery and the Anglo-American Politics of Asylum in the Late Eighteenth and Early Nineteenth Centuries Matthew Mason, Brigham Young University Comment: Francois Furstenberg, Johns Hopkins University

14 April 2026. Revisiting the Three-Fifths Compromise – A Panel Discussion Ben Mutschler, Oregon State University Andrew M. Schocket, Bowling Green State University Comment: To Be Announced

Weekend Roundup

• JOTWELL has recently published a few reviews of interest. A post by Natsu Taylor Saito (Georgia State University) encourages readers to check out Angi Porter, POISON! An Africana Legal Studies Investigation into Enslaved Africans and Their Deadly Roots, 43 Law & Ineq. 1 (2025). Sara Mayeux (Vanderbilt Law) spotlights Joseph Blocher & Brandon L. Garrett, "Applying History as Law: The Role of Historical Facts in Implementing Constitutional Doctrine," 104 Tex. L. Rev. __ (forthcoming 2026) (available at SSRN).

• At Balkinization: Dylan Penningroth (University of California, Berkeley) closes out the symposium on Before the Movement with two-part response (Part I, Part II). The symposium on Marital Privilege, by Serena Mayeri (Penn Carey Law), has also now concluded. All the posts, including Mayeri's response, are available here.    

• YLS's notice of Akhil Reed Amar's Born Equal: Remaking America’s Constitution, 1840–1920, which was the subject of the Rosenkranz Originalism Conference at Yale Law School (Yale Daily News).

• Selden's Sister has announced an undergraduate essay competition on women and legal history.

• Over at the LPEblog: Genevieve Lakier (University of Chicago Law) on "Title VI Turned Upside Down."    

• The Brennan Center for Justice has listed its Historians’ Friend-of-the-Court Briefs from the Supreme Court’s 2024 Term.

• "The Australia Studies Institute is hosting Associate Professor Alecia Simmonds to deliver the 2025 Reese Memorial Lecture on her book Courting: An Intimate History of Love and the Law" at King's College London on November 3, 2025 from 18:00 to 20:00.  More.  

• On November 19, at 6:00 p.m. EST, the Supreme Court Historical Society, in partnership with the Irish American Judicial Institute, invites you to a special lecture at the Supreme Court of the United States. Sean Meehan discusses The Emerald Bench: The History of the Irish American Justices on the Supreme Court on November 19, at 6:00 p.m. at the Supreme Court of the United States.

• Vermont Chief Justice Jeffrey Amestoy discusses his book on most notorious crime, "the 1926 murder of Cecelia Gullivan, treasurer of the Cone Automatic Machine company, in her home in Windsor" (VTDigger). 

• More Jill Lepore: PBS News Hour; WYPR; Katie Couric.

• The lectures in America at 250: A History, co-taught by Joanne Freeman, David Blight, and Beverly Gage on the YaleCourses YouTube channel. 

• The DC Circuit Historical Society has recently noted the exhibits in the Great Hall of the Barrett Prettyman U.S. Courthouse. 

• Brendan Shanahan discussed Disparate Regimes: Nativist Politics, Alienage Law, and Citizenship Rights in the United States 1865–1965 at Yale (Yale Daily News).

• ICYMI: Akhil Reed Amar on Lincoln's Lesson on Trump's Birthright Citizenship (Time). A Rare Draft of the Constitution Shows It as a Work in Progress (NYT).  The Vermont Constitution (State Court Report). Bowdoin's Role in the Massachusetts Constitution of 1780 and the U.S. Constitution of 1787 (mass.gov).  The Supreme Court Has Always Been This Bad (Nation).

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

Atencio on the First Generation of Latina Attorneys

Dolores S. Atencio has published The Illustrious Impact of Luminarias on the Law: The Legal Handicraft of the First Latina Article III Judges, State Supreme Court Justices, and Public Interest Litigators (Carolina Academic Press):

The first generation of Latina attorneys, Luminarias, earned their law degrees over the 100-year period of 1880–1980. Lawyer and author Dolores Atencio uncovered their identities and legal careers through the Luminarias Study, which was conducted from 2016 to 2022 at 167 law schools in the country accredited by the American Bar Association.

This book features the legal work of the first Latina federal Article III judges, state supreme court justices, and select public interest litigators. Their story begins in the early 1970s when the first Luminaria public interest social justice activistas began advancing novel litigation theories seeking to expand voting rights, equal educational opportunities and funding, and the reproductive and work rights of women. Included are cases tried or supervised by Luminaria litigators and leaders—Vilma Martinez, Norma Cantú, Antonia Hernandez, Irma Herrera, and Deborah Escobedo—during their tenures at the Mexican American Legal Defense and Education Fund, the Multicultural Education and Training Advocacy, Inc., Youth Law Center, Equal Rights Advocates, and the U.S. Department of Education, Office of Civil Rights.

Beginning in the 1980s when Luminarias began ascending to the bench, significant decisions issued by the first eight Luminaria judges on courts of last resort are discussed, including those that codify theories tested by the Luminaria litigators. The juridical careers of the first seventeen Luminaria Article III judges are covered, from both the district trial courts and circuit courts of appeals. Obstacles faced during their confirmation processes are highlighted as is data construed and created expressly for the book, including a comparison of the number of days from dates of referral to dates of confirmation.

For each Luminaria featured in the book, biographical summaries of their early lives, education, and professional trajectory are included. The intersectionality of the careers of these thirty-five remarkable Latina lawyers blends together their individual histories with the country's during times of turmoil, reconciliation, and a return to a litigious past.

–Dan Ernst.  TOC here.

ASLH Environment, Law, and History Global Workshop

[We have the following announcement.  DRE]

The next meeting of the ASLH Environment, Law, and History Global Workshop will take place on 3 October at 11am UTC. Eddie Kola will be presenting his draft paper "Lessons for the Upcoming Age of Climate Refugees":

Many of the people who enjoy the least freedom of mobility in the world today, are also those most susceptible to the deleterious effects of climate change. And yet, neither those who must flee their homes due to urgent environmental catastrophes, nor economic migrants whose livelihoods are destroyed by the climate crisis, enjoy any protection under the 1951 Convention relating to the Status of Refugees. The plight of these so-called climate refugees are only set to worsen as time goes on. Through a detailed contextualization of the development of international refugee law, and the impact refugees have had on the development of the modern passport system, this paper will use historical lessons to make normative arguments that existing legal instruments must be amended and new ones negotiated, to address what is undoubtedly going to soon become an age of climate refugees.

Ben Richardson will provide commentary.  If you would like to attend the session, please email Susan Bartie (susan.bartie[at]anu.edu.au) or David Schorr (dschorr[at]tauex.tau.ac.il) and they will send you the paper and a link.

Liebman on Executive Reorganization in New York

Design for New York State Capitol (NYSA)

We missed this one when it first appeared: Bennett Liebman, "a government lawyer in residence at Albany Law School's Government Law Center," has published Whose Board or Commission Is This Anyway? in the Albany Law Review 87 (2023-2024): 607-646.  The paper provides a very useful overview of attempts to reorganize New York State government in the early twentieth century.  It reminds me of Willard Hurst's letter to Felix Frankfurter in which he said that an HLS conference on John Marshall was all well and good, but what legal history really needed was a conference on Alfred Smith's reorganization of New York State government.  Better late than never.

Liebman reproduces the following quotation of William Howard Taft to the New York State Constitutional Convention of 1915:

The study of the State government, like this of New York, with 150 different commissions spread all over the State, only arouses in me the same feeling that I have with respect to our methods of conducting our courts: profound admiration for the political adaptability of the people to make a machine work that nobody who had any real business sense would think would work under any other conditions.

 --Dan Ernst

JAH 112:2

[The latest issue of the Journal of American History, 112:2 (September 2025), includes much legal history.  Here’s the JAH’s summary.  DRE]

In recent years, sociologists have noted how the aggressive policing of small debts such as unpaid parking tickets contributes to the disproportionate incarceration of poor people and people of color. Justin T. Clark demonstrates how, centuries ago, debt played a similarly underappreciated role in the development of North American carceral punishment. Surprisingly, most early eighteenth-century prisoners in Boston were debtors, not criminals. After a series of evangelical religious awakenings, New England authorities began to imagine that imprisonment could serve a punitive (and not simply a procedural) function for criminals as well. This history may help us better understand the conditions leading to what legal historians have called the present “re-establishment” of debtor’s prisons.

Emancipated mothers whose children had been apprenticed against their wishes challenged those apprenticeships in the courts and enlisted the assistance of the Freedmen’s Bureau through the late 1860s. While the immediate goal was child recovery, freedwomen’s protests of apprenticeship marked a pursuit of long-denied reproductive justice rather than just an effort to contend with an individual act of kidnapping. By placing Black mothers at the center of postwar custody battles, Jessica Wicks-Allen illuminates how gender shaped the fight for family integrity in slavery’s aftermath and underscores the political and emotional stakes of reunion.

Nicole Martin encourages historians to view Reconstruction from an unexpected perspective: western boardinghouses of Nevada’s Comstock Lode. While western mining centers lay on the fringes of the consolidating nation, they provide a powerful lens for understanding how the idealized free-labor home at the heart of Reconstruction policy played out in rapidly industrializing economies struggling to reconcile older and newer values. By drawing on the private and public writings of people who lived in and ran Comstock boardinghouses, she insists that we turn our view of Reconstruction inward into the intimate lives of ordinary Americans to better understand the on-the-ground compromises that contributed to the success of American empire.

Crack cocaine cast a long shadow over the 1980s. While much is known about the carceral efforts to curb the drug’s influence, far less is understood about the urban political economy driving its spread. Pedro A. Regalado examines the rise of drug capitalism in New York City, revealing how long-simmering tensions in the city’s rental housing market created an opening for an illegal enterprise that extracted profit from buildings that landlords had struggled to exploit. Tenants fought back, defending the habitation value of housing and forging new alliances with police, housing courts, and elected leaders—a pattern that took hold nationwide.

AJLH 64:3

American Journal of Legal History 64:3 (September 2025) has been published.  
 
Early American versions of a homosexual-advances defence
William B Meyer

Litigating longshoremen in the Lone Star State: black dock workers and the struggle to maintain autonomy after the 1964 Civil Rights Act
D Caleb Smith

The progressive secularization of credit in New Granada and the antecedents of commercial banking in Colombia (1835–1863)
Marcela Castro-Ruiz

The State of Florida v Fortune Ferguson, Jr: the death penalty and legal change in Florida, 1924–1927
Brandon T Jett
 
Book Review
 
Hendrik Hartog, Nobody’s Boy and His Pals: The Story of Jack Robbins and the Boys’ Brotherhood Republic
Kathryn Schumaker

Brandeis's Uncollected Writings

Democracy and Social Justice: Uncollected Writings of Louis Brandeis, edited by Peter Scott Campbell (Carolina Academic Press) has been published:

Few Supreme Court justices have had a greater impact on modern life than Louis D. Brandeis.  His court opinions have shaped the law and have helped articulate many rights Americans enjoy today. But Brandeis was a prolific author before he ascended to the Court and much of what he wrote then continues to be relevant today. The threat of monopolies, the importance of unions, and the obligations of citizens living in a democracy were just a few of Brandeis's interests that still affect Americans.

Democracy and Social Justice: Uncollected Writings of Louis Brandeis collects many previously unanthologized writings to expand Brandeis's corpus as well as to re-introduce him to a new generation of readers. The title of this book reflects two themes of much of the work collected here and in much of Brandeis's work as a whole. Brandeis was a lifelong proponent of democracy and its promise of equal rights to all. Any person, or institution, that threatened a person's right to freedom and self-improvement was not just an affront to that person, but also to democracy itself.

The articles in Democracy and Social Justice: Uncollected Writings of Louis Brandeis touch on several issues that Brandeis believed threatened democracy, such as monopolies, union busting, and racial discrimination. Of special note, there is also a brief memoir that Brandeis dictated that was recently unearthed.

--Dan Ernst.  TOC and introduction here. 

Weekend Roundup

• The University of Pennsylvania digital history site, Building Inequality: Mapping the spatial and racial inequalities of FHA Section 608 rental housing, 1942-1950, is well worth a visit.

• We have updated information on that inaugural session of "Historicising Jurisprudence," a first-book symposium co-sponsored by the Selden Society and the School of Law, Queen Mary University of London, and co-hosted and co-organised by Maks Del Mar and Michael Lobban.  It will be held on September 30, and devoted to Natasha Wheatley's The Life and Death of States: Central Europe and the Transformation of Modern Sovereignty (Princeton UP, 2023).  Registration and more information is here.  

• 
  Sara Butler, Ohio State University, discusses her book, Forensic Medicine and Death Investigation in Medieval England (2015) on the Medievialists.net podcast (YouTube).

• The Balkinization symposium continues on Serena Mayeri's Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025). Recent contributions include reflections by Kris Collins and Doug NeJaime.   

• A recording of Dylan Penningroth's talk on his book Before the Movement: The Hidden History of Black Civil Rights at The City Club Forum (ideastream).

• Over at the Jackson List: John Q. Barrett on the appointment of Harold Burton to the U.S. Supreme Court.  

• The historian Joan Wallach Scott recalls the firing of her father, a high school teacher in New York City, during the McCarthy Era  (Boston Review).  

• A concurring opinion in Alan Dershowitz v. CNN cited Samantha Barbas's article,  “New York Times v. Sullivan: Perspectives from History,” to provide historical context for the ongoing debate over defamation law (Iowa Law).

• On Thursday evening, Jonathan Turley, George Washington University Law School, and Michael Klarman, Harvard Law School, debated “Is There a Constitutional Crisis? How Would We Know?” at Colgate University.

• Jill Lepore's We the People had a substantial presence on the internet this week.  Professor Lepore's op-ed in the NYT.  Reviews in The Guardian and the LA Times.  Her argument that originalism "killed" the Constitution in The Atlantic; to which the National Review dissents.

• ICYMI: The Desegregation of Local 53 in New Orleans (1969) (BlackPast). The 18th-century legal case that changed the face of music copyright law (WIPO).  John Yoo on the long history of presidential discretion (Law & Liberty).  The Heritage Foundation's Guide to the Constitution.  The entire Constitution is on display for the first time in US history (Smithsonian; WTOP; USA9).  The Georgia Historical Society displayed its own rare copy, once owned by the Georgia’s signer Abraham Baldwin (TOC11).

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

Keller on China, Legal Transplants, and Policy Irritants

Kevin Byrne Keller, a Visiting Fellow in East Asian Legal Studies at Harvard Law and PhD candidate in history at Yale, has published From Legal Transplants to Policy Irritants: Chinese Economic Expansion and Global Legal Change in the American Journal of Comparative Law:

Since the 1970s, comparative law scholars have studied “legal transplants”: legal institutions that emerged in one location and then were moved to (or forced upon) another. This research agenda offers little traction on one of today’s most pressing questions of global legal change. For several decades, Chinese leaders have encouraged Chinese enterprises to increase their international engagement. Those leaders insist that they have no desire to alter the legal systems of their economic partners, but China’s growing global economic presence does seem to affect legal systems elsewhere.

To make sense of this pattern, this Article draws on and extends Gunther Teubner’s concept of a “legal irritant.” It introduces the idea of a “policy irritant”: a policy that a country implements, inspired by policies elsewhere, that places pressure on and potentially reshapes the country’s legal regime. To demonstrate how the concept of a policy irritant improves our understanding of theoretical questions about legal change and concrete questions about current global conflicts, this Article offers a case study of the Madaraka Express, a China-funded railroad project in Kenya.

From a theoretical perspective, the Article makes two contributions to the literature on legal transplants. First, it reveals that policy emulation can catalyze legal change. Second, it observes that policy emulation can result in changes both to the recipient legal system and to the policy being emulated. At a more concrete level, the Article offers two insights into China’s engagement with the Global South. First, the introduction of China-inspired policies caused controversy in Kenya not because those policies were inherently insidious, but because they rubbed roughly against features of Kenya’s legal system that many Kenyans value highly. Second, Kenya’s legal system has shown strength in the face of pressures introduced by China-inspired policies, and has in some instances forced changes in those policies.

--Dan Ernst

Priel on the Political Theories of the Legal Realists

 Dan Priel, Osgoode Hall Law School, has posted The Political Theories of the Legal Realists:

Jerome Frank, with William Douglas (LC)

A popular view about the legal realists is that, either knowingly or inadvertently, they advanced ideas inconsistent with traditional values, democracy, and the rule of law. Another view about them suggested that the realists had no political theory: they only offered a descriptive (empirical) theory of adjudication, albeit one that has normatively "quietist" implications. In this essay, I challenge both views. I argue that there were two legal realist camps whose jurisprudential ideas presupposed two quite different political theories. One group of legal realists consisted of public utilitarians who were consciously inspired by Bentham, wanted to turn legal and political theory into a science, and who thought law should be evaluated by its ability to increase social welfare. The other group had a very different political theory underlying its approach to law. For these legal realists, law was a traditionary institution, which should reflect, and be continuous with, community customs and values. After showing these different views, I show their relevance to contemporary debates in different areas of law. 

--Dan Ernst 

Fighting Words at the Founding

We were intrigued by this student note: Fighting Words at the Founding, Harvard Law Review 138 (June 2025): 2049-2070.  From its introduction: 

At the Founding, speakers of fighting words were indictable only if they intended to cause violence. Yet today, Americans who speak fighting words without any intention of causing a fight routinely face criminal sanctions. The Supreme Court has yet to rule definitively on whether the First Amendment requires that the government prove mens rea to punish the speaker of a fighting word. But in the lower courts, nearly every defendant prosecuted for speaking a fighting word faces strict liability: Her interior mental state is irrelevant. That approach breaks with the uniform practice of the common law at the time the nation ratified the First Amendment.

--Dan Ernst

An Oral History of Ruth Bader Ginsburg

RBG in 1993 (LC)

The Historical Society of the District of Columbia Circuit has just announced the opening of an oral history of Supreme Court Justice Ruth Bader Ginsburg conducted by Maeva Marcus, the general editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States and a past-president of the American Society for Legal History.  The interviews were conducted between 1995 and 2000 with a final session in 2014.

--Dan Ernst 

Larson on Rape and Medieval Canon Law

Atria A. Larson, Saint Louis University, has published Lucretia (and Lucia) and the Medieval Canonists: Guilt, Consent, and Chastity in the Early Canonistic Jurisprudence of Rape, online in Law and History Review:

This essay explores a key stage in the legal history of the concepts of consent and guilt in cases of rape, namely in twelfth-century canon law in the work of Gratian and the early canonists who commented on his Decretum. It substantially revises the account that currently exists in scholarship and explains that confusion between raptus and rape and a limited read of the Decretum have combined to provide a problematic picture in which, it has been claimed, neither Gratian nor broader medieval canon law took rape seriously as an offence. The essay focuses on the underexplored Causa 32 in the Decretum and discusses how Gratian very directly addressed forced coitus in that section of his text, both condemning it and exonerating women of all guilt who are forced to have sex without their consent. Gratian and the decretists ended up changing the discourse on rape, in part through their treatment of both Lucretia of Roman legend and an early Christian martyr, Lucia. Their considerations, which intersected with theology, resulted in a legal principle that a raped wife cannot be charged with adultery. Since their considerations could also be applied to any rape victim, their work is important for the development of rape law and legal notions of consent.

--Dan Ernst 

University of Pennsylvania Legal History Workshop, AY 2025-26

As usual, the University of Pennsylvania will convene a legal history workshop this year. The lineup is below:

September 25, 2025: James Q. Whitman (Yale Law), “The Apparatus of Abasement and Elevation: Death and Transfiguration of Rank.”  

 

October 16, 2025: Daniel Hulsebosch (NYU School of Law), TBD. 

 

January 29, 2026: Jessica Pliley (Texas State University), TBD.  

 

March 26, 2026: Susan Pearson (Northwestern University), TBD. 

 

April 9, 2026: Rachel Shelden (Penn State University), TBD.  

 

April 23, 2026: Amalia Kessler (Stanford Law School), TBD. 

-- Karen Tani 

Job Alert: Constitutional Law and Legal History

[We note the following advertisement for an Assistant Professor of U.S. Constitutional Law and Legal History in the Kinder Institute on Constitutional Democracy in the College of Arts and Sciences at the University of Missouri-Columbia.  DRE.]

The Kinder Institute on Constitutional Democracy at the University of Missouri invites applications for an
interdisciplinary, assistant professor tenure-track job in U.S. Constitutional Law and Legal History. Candidates from history, political science, and joint JD/PhDs are encouraged to apply, though all applicants should have PhD in hand by 1 August 2026. Depending on their expertise, the holder of this position will have an academic home in either the Department of History or the Truman School of Government and Public Affairs. The search committee is looking for candidates whose research and teaching focuses on the constitutional development, public law, and legal history of the United States in the chronological period

Minimum Qualifications: Ph.D. in History or Political Science by time of appointment.

Candidates should have an established research trajectory, commensurate with career stage, as well as college-level teaching experience. 

Application Materials.  Use the online application and be prepared to upload your cover letter, CV, list of three reference contacts, and chapter or article length writing sample. The cover letter should include statements on both your research and teaching. 

Applicants may contact the Chair of the Search Committee, Kinder Institute Associate Director Dr. Billy Coleman (colemanw@missouri.edu) with any questions about the job duties. Contact Andrew Longley (Andrew.longley@umsystem.edu) for any questions about the application process. Deadline for applications is October 22; the position will remain open until filled.
Benefit Eligibility

This position is eligible for University benefits. As part of your total compensation, the University offers a comprehensive benefits package, including medical, dental and vision plans, retirement, and educational fee discounts for all four UM System campuses.  For additional information on University benefits, please visit the Faculty & Staff Benefits website. 

The University of Missouri is an Equal Opportunity Employer.  To request ADA accommodations, please call the Director of Accessibility and ADA at 573-884-7278.

Rg-Legal History 33 (2025)

[We have the following announcement.  DRE.]

Rechtsgeschichte-Legal History 33 (2025), the journal of the Max Planck Institute for Legal History and Legal Theory, is now available, in print from the Vittorio Klostermann publishing house and online in Open Access via the journal's website.

The most recent issue of Rechtsgeschichte-Legal History (Rg) opens with an essay in the Research section on multilingualism and law in late antiquity. Hartmut Leppin focuses on Syrian, Coptic and Hebrew sources, showing the rich legal pluralism of the Roman empire and how its openness to diverse languages was part of the decentralisation of the empire, even transcending its borders. Thorsten Keiser uses sources from the late middle ages, the early modern period and the modern era to trace the transformation of labour law from a right to discipline workers into the workers' right to social security. Thomas Weitin and Katharina Herget demonstrate possible applications of Digital Humanities in their study of the criminal cases collection Der Neue Pitaval (1842-1890). The Research section closes with Daniel Siemens' contribution about the periodical Rechtsprechung zum Wiedergutmachungsrecht (1949-1981) and the tireless work of its editor Walter Schwarz to promote German jurisprudence on reparations.

The Focus section looks at a central issue of labour law: the normative structures of industrial relations in the 19th and 20th centuries. The studies by Peter Collin, Johanna Wolf, Tim-Niklas Vesper and Matthias Ebbertz result from years of research at the Institute into normative labour relationships in the metal industry. This section also contains further contributions by Roman Köster, Eva-Maria Roelevink und Fabian Trinkaus.

As always, the Critique section covers new publications from the colourful cornucopia of legal history, including: legal pluralism, Chinese legal history, legal history in Latin America, the history of private law, public law, and criminal law. The reviews in this section are authored by researchers at the Institute and from all over the world.

This edition of the Rg also premiers a new section: following the Critique, under the heading Comptes rendus, you will find ten short presentations of select publications from members of the Institute.

This year's Rg is rounded off by two Marginalia. In the first, Ralf Seinecke asks: Was ist Recht? (What is Law?). In the second, Karla Escobar offers a look, based on the dissertation that she wrote at the Institute and published in Colombia in the form of a Graphic History, at the Indigenous Movement in Colombia around 1900. This graphic novel also provided the material for the image spread in the printed issue of this Rg edition.

Amar's "Born Equal"

Akhil Reed Amar, Yale Law School, has published Born Equal: Remaking America’s Constitution, 1840–1920 (Basic Books):

In Born Equal, the prizewinning constitutional historian Akhil Reed Amar recounts the dramatic constitutional debates that unfolded across these eight decades, when four glorious amendments abolished slavery, secured Black and female citizenship, and extended suffrage regardless of race or gender. At the heart of this era was the epic and ever-evolving idea that all Americans are created equal. The promise of birth equality sat at the base of the 1776 Declaration of Independence. But in the nineteenth century, remarkable American women and men—especially Elizabeth Cady Stanton, Frederick Douglass, Harriet Beecher Stowe, and Abraham Lincoln—elaborated a new vision of what this ideal demanded. Their debates played out from Seneca Falls to the halls of Congress, from Bloody Kansas to Gettysburg, from Ford’s Theater to the White House gates, ultimately transforming the nation and the world. 
  
An ambitious narrative history and a penetrating work of legal and political analysis, Born Equal is a vital new portrait of America’s winding road toward equality.

Jeff Shesol's review in the NYT is here. 

--Dan Ernst 

Ablavsky, "Why We Should Stop Saying 'The Founders'"

Gregory Ablavsky (Stanford Law School) has posted "Why We Should Stop Saying 'The Founders,'" forthcoming in Volume 173 of the University of Pennsylvania Law Review. The abstract:

This short Essay—part of a symposium on Jack Balkin's Memory and Authority—argues that we should stop using the term "the Founders" in legal-academic writing. I understand the appeal; I have used the term myself. Nonetheless, I highlight five limitations of the term. It is vague because it is not clear who is in and who is out. It stresses uniformity over disagreement. It embraces filiopietism and ancestor worship. It transforms the study of institutions and ideas into biography. And it is exclusionary—not just in the sense of the widespread critique that the conventional Founders were elite white men, but also, more broadly, in the sense that the term conscripts its subjects into the project of building the United States.

If we don’t use “the Founders,” what should we use instead? In a word: nothing. That is, there are lots of terms that might capture with more specificity what we mean in any given instance when we say, “the Founders.” But we do not need a new collective noun that describes this amorphous group of late-eighteenth-century politicians. We manage to speak coherently about lots of other moments of significant historical and constitutional change—including, most notably, the “Second Founding,” the Reconstruction era—without a term analogous to “the Founders.” We could surely do so for the late eighteenth century, too. 

Read on here.

-- Karen Tani 

Arlyck's "Nation at Sea"

My Georgetown Law colleague Kevin Arlyck has published The Nation at Sea: The Federal Courts and American Sovereignty, 1789–1825 (Cambridge University Press).  It appears in the series Studies in Legal History, sponsored by the American Society for Legal History.

The Nation at Sea tells a new story about the federal judiciary, and about the early United States itself.  Most accounts of the nation's transformation from infant republic to world power ignore the courts. Their importance, if any, was limited to domestic politics. But the truth is that, in the critical decades following the Constitution's ratification, federal judges decided thousands of maritime cases that profoundly shaped the United States' relations with foreign nations. Judges ruled on the legality of naval captures made by European powers, regulated the conduct of American merchants, and tried pirates and slave traders who sought profit amid the turmoil of transatlantic war. Kevin Arlyck's vivid reconstruction of this forgotten history reveals how, over time, the federal courts helped realize an increasingly bold conception of American sovereignty, one that vindicated the Declaration of Independence's claim to the United States' place 'among the powers of the earth.'

Here are some endorsements:

‘In The Nation at Sea, Kevin Arlyck expertly bridges two significant but often detached areas of scholarship: the early history of the federal courts, a topic typically treated as ‘domestic,’ and the international struggles of the United States in the early national period. The intersection of these topics is of pressing interest to lawyers, judges, legal scholars, and historians, especially given the current prominence of originalist methods of legal interpretation.’

Alison LaCroix - Robert Newton Reid Professor of Law, University of Chicago Law School and author of The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms

‘In the first 40 years after the Constitution was ratified, much of the business of the federal courts consisted of maritime disputes with international dimensions. These disputes made judges central to U.S. foreign relations in ways that are scarcely imaginable today. Arlyck’s compelling and important study is the first major treatment of how federal judges took up this international role and with what consequences.’

Nicholas R. Parrillo - Townsend Professor of Law, Yale Law School and author of Against the Profit Motive: The Salary Revolution in American Government, 1780–1940

  

‘A Nation at Sea argues persuasively that America’s high courts negotiated international conflicts at a crucial period after the founding when the United States needed to establish credibility and assert neutrality in the midst of dangerous conflicts between powerful empires. Arlyck also demonstrates that Supreme Court justices failed to uphold American restrictions on the slave trade after 1808, even though they could have done so through extension of legal doctrines of their own maritime decisions.’

Holly Brewer - Burke Chair of American Cultural and Intellectual History, University of Maryland and author of By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority

--Dan Ernst 

CFP: Crime and Conjugality in Europe, pre-1800

[We have the following CFP.  DRE]

Call for papers: Crime and Conjugality in Europe, pre-1800.  6 July 2026, 9.00 AM - 6 July 2026, 6.00 PM.  All Souls College, University of Oxford.

We seek expressions of interest in participating in a one-day workshop on the theme of ‘crime and conjugality’ in European history prior to c. 1800, with the aim of producing an edited collection of essays on the topic thereafter. 

Context: Marriage is a social institution with complex functions and meanings that are neither transparent nor unchanging. It does much to determine many women’s legal capacity, social agency, and rights; it has shaped and been shaped by deeply gendered, patriarchal relations of power between and among women and men. As such, it has long been a site and source of conflicts both personal and political. The conversations at our one-day workshop will contribute to the historical analysis of this culturally significant pattern of social action by exploring its relationship with criminal law in the pre-modern past.  

The long history of marriage in Europe has been described as a shift from sacrament to contract but criminal law played parts in its regulation throughout. Even when canon law was the primary regulatory framework for ‘sacramental’ unions within Europe, the criminal laws of secular authorities also shaped marriage and the ways in which it served as an instrument in a wide field of power relations, well before state control and civil marriages came to dominate. We want to draw together a group of scholars whose work will afford new perspectives on marriage and its relationship with other social and political structures by looking comparatively at how criminal law helped define the institution before and during its early, haphazard ‘secularization’.  

The ultimate aim is a volume of essays in which individual chapters will examine how criminal law policed who could marry and how: which close personal relationships counted as conjugal? Other chapters will study how marriage altered criminal responsibility for acts otherwise understood when committed by the unmarried: what did marriage make lawful or unlawful? We aim to have chapters that explore the criminal law’s role in marriage both before and after the sixteenth-century religious reformation, in both civil and common law jurisdictions, and into the encounters that defined the colonial era, through to the emergence of civil marriage regimes. The collaborative, comparative format of a collection of essays by experts in the histories of different times and places seems the best way to examine the varied histories of this subject. Collectively, the papers will highlight some of the ways criminal law helped construct normative, functional distinctions between conjugal and non-conjugal relationships in pre-modern Europe. 

Possible topics for papers include but are not limited to the following: Abduction/forced marriage; adultery; bigamy; child Marriage; concubinage; legitimacy/bastardy; aestrictions on unions that crossed legal, national, racial, religious, sexual, social or other boundaries in ways deemed criminal; polygamy/plural marriage; spousal/intimate partner violence; spousal homicide; and marital status and criminal responsibility: behaviours made lawful or unlawful or differently categorised depending on the status of the actors (e.g., for men, theft from or the sexual or physical assault of women, and for women, spousal homicide and infanticide). 

If you are interested in participating in the workshop, with an eye to a possible contribution to the intended essay collection, please send a working title and a brief abstract (c. 300 words) to both organisers by 15 September 2025. 

Note that places for the workshop are limited, and booking, via Eventbrite, will be essential. A facility for booking will be added to this page in 2026.  While the workshop will be free to attend, we are unfortunately unable to cover travel or accommodation costs for participants.   

Contact addresses for the organisers: Gwen Seabourne (g.c.seabourne@bristol.ac.uk) and Krista Kesselring (krista.kesselring@dal.ca) 

Chapman on Fines and Common Bench

New online from Law and History Review: Fines and the Common Bench, 1218–1226 by Douglas R. Chapman, University of Cambridge:

The years immediately following the issue of Magna Carta and the death of John were of fundamental importance in determining the trajectory of the nascent common law legal system. Although the existence of the Bench had functionally been permanently established under chapter seventeen of Magna Carta, the central royal court faced an uncertain future under conciliar rule and in the aftermath of extensive civil conflict. The extensive extant records of the common law fines made to initiate actions in the Bench as recorded the Fine Rolls offer a window into the roles played by the court in relation to litigants, within the wider structure of royal governance, and in relation to a rapidly evolving legal system. An analysis of these sources can therefore both illuminate the early workings of the common law legal procedures and characterize the demand for royal justice that survived the First Barons’ War before continuing to grow across the thirteenth century. What emerges is a picture of a judicial system at the onset of a period of rapid development and widespread demand that would come to lay the foundation for the massive expansion of royal justice that was to follow throughout the reign of Henry III and beyond.

--Dan Ernst 

Tate on Liberty in the Common Law

Joshua C. Tate, Southern Methodist University Dedman School of Law, has posted Liberty as Entitlement in the Common Law, which is forthcoming in the San Diego Law Review:

In recent decades, some justices of the U.S. Supreme Court have questioned the broad definition of liberty that is the basis for the doctrine of substantive due process. In his dissenting opinion in Obergefell v. Hodges, for example, Justice Thomas argued that liberty in the common-law tradition "has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement." This Article will argue that such a narrow definition excludes many instances in which the common law used "liberty" as a synonym for "privilege" or "entitlement." Treatises that were well-known to the framers of the U.S. Constitution discussed various entitlements as examples of liberties. The rights to hold a fair or market were considered liberties, as were the rights to hold court in certain disputes and to select local officials. In addition, statutes from the American colonies used the term "liberties" in a similar way. This broad common-law understanding of liberty must factor into any consideration of the "original" meaning of the term. 

--Dan Ernst 

Weekend Roundup

• Over at Balkinization: a symposium has begun on Marital Privilege, by Serena Mayeri (Penn Carey Law).   

• Over at Notice & Comment: a symposium has begun on Private Finance, Public Power: A History of Bank Supervision in America, by Peter Conti-Brown & Sean Vanatta.

• What an interesting way to encourage student interest in legal historical research!  American Legal Histories is an exhibit at the Lillian Goldman Law Library of sources used in Yale University’s historical collections by students in YLS’s American Legal History course, “each week in class and over the semester in their final research papers. The exhibit highlights a document chosen by each student from their research in primary source collections, online and in person, from Yale and elsewhere.  

• The Supreme Court Historical Society, the White House Historical Association, and the U.S. Capitol Historical Society, hosts the 2025 National Heritage Lecture on Thursday, October 9, at 6:00 PM at historic Decatur House.  Douglas Brinkley will lecture on Presidential Evolution: A History of Executive Orders Over 47 Presidencies.

• 
  Jill Lepore is appearing on various podcasts, including Dahlia Lithwick's Amicus and Kara Shwisher's On on her new book, We the People: A History of the U.S. Constitution (Norton). The WaPo review is here.  

• NYU Law's post on Sarah Seo, who recently joined its faculty (NYU).  

• Bob Bauer, Richard Pildes and Samuel Issacharoff have launched the NYU Law Democracy Project, which seeks to engage,"along many dimensions and from diverse ideological perspectives," the challenge of the "dissatisfaction with democratic government [that] has been pervasive for the last decade throughout the West."

• On the back end of the latest episode of Strict Scrutiny, hosts Leah Litman, Melissa Murray, and Kate Shaw speak with Justin Driver (Yale Law) about The Fall of Affirmative Action: Race, the Supreme Court, and the Future of Higher Education.  

• You can always check in on the most recent, digitally published, and open-access articles and book reviews in Law and History Review at its First View page at the Cambridge University Press. 

•  Becoming Thurgood: America’s Social Architect is now streaming on PBS.  

• The Supreme Court Historical Society's recording of John Q. Barrett's lecture, “Away Without Leave but Back in Washington, Briefly: Nazi Prosecutor Justice Robert H. Jackson on the Road to Nuremberg, September 1945,” is now available on the Society's YouTube site.

• Gerard Magliocca, the winner of the Erwin N. Griswold Prize of the Supreme Court Historical Society, will discuss his new book Washington’s Heir: The Life of Justice Bushrod Washington at the Supreme Court of the United States on September 25, 2025 at 6:00 PM at the Supreme Court of the United States.

• Over at Just Security: my Georgetown Law colleagues Marty Lederman and John Mikhail's ongoing series of posts on birthright citizenship.  DRE 

• Lawbook Exchange's September 2025 list of Scholarly Law and Legal History is here.   

• We are not the first to note the irony that the U.S. Immigration and Customs Enforcement's Human Rights Violator Law Division is advertising for a historian.  Julia Rose Kraut's discussion of the history of ideological exclusion and deportation suggests that they been at it for a while (Unsung History).

• ICYMI: American Historical Association Sends Letter in Support of the State Historical Society of Iowa Research Center (AHA).  A century later, the gunshots from the historic Ossian Sweet house still echo (Detroit Free Press).

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

Goh on "Potential Legal History" in Art

New online from Law and History Review: Potential Legal History in the Art of Sonny Liew by Benjamin Goh, National University of Singapore:

Photographs, much less comic books, are not often seen to be focal sources of legal-historical research. This is so despite the growing momentum in the humanities and social sciences to take the visuality of culture, history, and law seriously. Notwithstanding the “visual turn” in law and humanities and socio-legal studies, it remains quite rare for legal history journals to carry images for the close reading of their pertinent implications. For the most part, legal scholarship has continued to exclude much of the optical media that arrange and compose the history of law, including the textual documents whose visuality produces, even contests, foundational legal concepts. This omission calls for intervention, not because legal history has failed to engage critically with dominant histories and the legal orders that they sustain, but rather because archived photographs and their (re)entry into visual modes of storytelling expand the range of historical sources that facilitate such critical projects. More fundamentally, the remediated photograph discloses the technological and theoretical assumptions of history-writing, prompting reflection on how far legal history should evolve to accommodate insights from its neighboring fields.

--Dan Ernst 

Aulakh's "Empire and the Peasant Proprietor"

Preet S. Aulakh,York University, has published Empire and the Peasant Proprietor: Inter-Colony Land Reform in the Victorian Era (Oxford University Press):

As the British Empire consolidated its geographical possession of distant lands by the 19th century, the agrarian nature of its colonies necessitated careful considerations about land tenure relationships. After intense debates around property rights and political economy, several land laws were enacted across the Empire between 1868 and 1875, which recognised the proprietary rights of peasant cultivators. Empire and the Peasant Proprietor examines this transformative shift in the imperial approaches to land tenure.

Through a comparative analysis of historical land tenure arrangements in three diverse colonial sites, Punjab, Ireland, and Prince Edward Island, the book identifies two crucial mechanisms which facilitated the institutionalisation of peasant proprietorship. One, there was a fortuitous ideological alignment between important governing agents in the three colonies. Two, the debate about the impact of land reform in the colonies on the 'sanctity' of English principles was redirected, allowing for inter-colony analogies and precedents to support the proprietary rights of peasant cultivators.

Empire and the Peasant Proprietor demonstrates the importance of these reciprocal influences within the imperial system and provides insight into contemporary challenges of secure land rights for a large proportion of the global population that continues to be dependent on agriculture for sustenance.

This is an open access title available under the terms of a CC BY-NC-ND 4.0 International licence. It is free to read on Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations.

--Dan Ernst

A Self-Paced Course on American Constitutional History

The Gilder Lehrman Institute of American History is offering a “self-paced” course, The Fate of the American Constitution, led by John Fabian Witt, YLS.

Since 1787, the United States Constitution has aimed to hold together a divided political community around a set of basic agreements. Some now call it the oldest constitution in the world still in effect today; others insist that though the textual template has remained in many respects the same, we have actually had two or three, or maybe even four constitutional orders over time. Either way, its history has been one of tumult, controversy, and sometimes mass violence from the very start. This course takes up the social and political history of the document and the practices that have arisen around it, from the founding era to the 1937 transformation that now hangs in the balance. Readings and lectures draw on multiple disciplinary approaches to history and law and foreground competing perspectives on the past. 

--Dan Ernst