Bremer on the Judges Bill and Administering the Courts

Emily S. Bremer, Notre Dame Law School, has posted Making Our Ministry of Justice, which is to appear in Notre Dame Law Review Reflection:

William Howard Taft (LC)

This Essay evaluates the Judiciary Act of 1925 from an administrative law perspective. It argues that principles ordinarily associated with administrative governance pervade the law's origin, purpose, means, and effect. The cumulative result was to transform the Supreme Court from an appellate court of last resort into a ministry of justice, i.e., an agency at the head of a hierarchically organized federal judicial branch. 

--Dan Ernst 

Weekend Roundup

• Legal historian Tomiko Brown-Nagin has been appointed dean of the Stanford Graduate School of Education. Stanford's notice is here.
   
• Over at JOTWELL: Bethany Berger (Iowa College of Law) spotlights Lila Teeters Knolle's Indians Now Taxed: Citizenship and Taxation in Settler-Colonial South Dakota, 44 J. Am. Ethnic History 44 (2025); Lisa Owens (UMass Dartmouth) flags K-Sue Park's Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power, 133 Yale L.J. 1487 (2024). 

• From In Custodia Legis: "Murder, He Signed? The Unexpected Death of A Declaration of Independence Signer." 

• We have previously posted about Christina Kexel Chabot's "The Interstitial Executive: A View from the Founding," forthcoming in the BYU Law Review. She has now posted an updated version, which includes historical evidence that bears directly on the Supreme Court's recent decision in Trump v. Slaughter. 

• Nursing Clio is spotlighting undergraduate writing this summer. Here's a post on "Registration of Maternity Homes Act, 1934: Institutional inadequacy and indifference in Irish maternity homes," by Whitney Cowan (St. Olaf College). 

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

Revkin and Gramlick on Fiscal Policing in Civil War DC

Mara Revkin, Duke University School of Law, and Gage Gramlick, a JD candidate at Duke, have posted The Civil War Origins of Fiscal Policing: Evidence from the District of Columbia:

The rise of “fiscal policing” in the United States—the use of fines, fees, and forfeitures to extract revenue from civilian populations—is widely described in previous scholarship as a relatively recent development with roots in post-1970s municipal austerity policies. A smaller literature argues that the revenue-extracting function of American policing can be traced earlier to slave patrols before the Civil War and Reconstruction-era Black Codes in the South. But this Article is the first to show that fiscal policing in the North has roots a century deeper than the austerity account recognizes. We demonstrate this through a case study of the nation’s capital, drawing on an original dataset compiled from the annual reports of the Metropolitan Police of the District of Columbia from 1862 to 1877 to show that revenue extraction was not a subsequent corruption of the Metropolitan Police’s original crime-control purpose but a core feature of its institutional design from the outset. We supplement the quantitative data with contemporary newspaper accounts, congressional and city-council debates, and correspondence between the governing Board of the Metropolitan Police and the military and civilian authorities that shared jurisdiction over the city. Congress established the Metropolitan Police by statute in August 1861, less than four months after the Civil War began, in direct response to the population surge, jurisdictional uncertainty, and disorder that the war had already produced in the capital.

Our key finding is that the Metropolitan Police generated surplus revenue from its first full year of operation, and this fiscal logic not only continued but intensified after the war. Fine revenue nearly doubled from $32,532 in 1862 to $61,944 in 1865—the year the Board first declared the force a net revenue-producing institution, boasting to Congress that there was “probably no other community in our country whose police system produces a net revenue to its finances.” Revenue receded with wartime conditions but remained above the 1862 baseline in 1877, and fine cases rose from 31.9 percent of all arrests in 1862 to a peak of 45.5 percent in 1867, two years after the war ended. The force grew with its revenue: in 1866, Congress authorized a 33 percent increase in its size from 150 to 200 patrolmen. We explain this pattern through two mechanisms. The first is wartime state-building: extending Charles Tilly’s account of how war forges extractive institutions, we show that the Civil War simultaneously created the governance and security crisis that necessitated a new police force and—by exhausting congressional appropriations on military spending—ensured that the force was designed to generate the revenue its own survival required. The second is bureaucratic autonomy: like other nascent administrative agencies, the Metropolitan Police Board had an existential incentive to demonstrate its value to skeptical principals, and it quickly recognized that surplus revenue from fines, forfeitures, and licensing fees was the performance metric most legible and persuasive to Congress and the city councils that controlled its budget—more so than improvements in public safety, which were harder to achieve and measure. The enforcement burden also fell unevenly—across national origin, race, gender, and civil-military status—in ways that shifted during and after the war. Soldiers accounted for more than a quarter of arrests in 1862 but generated no revenue—they were turned over to military authorities rather than fined—and their share declined steadily as the Board came to see such arrests as labor-intensive, fiscally worthless, and a source of friction.

Among civilians, Irish- and German-born immigrants were overrepresented during the war years. We find no clear racial pattern in per-capita arrest rates during the war, but disparities emerge after its end: between 1870 and 1877, Black residents were arrested at 1.4 to 1.6 times the non-Black per-capita rate. Women’s share of arrests rose from 14.2 percent in 1862 to a wartime peak of 22.7 percent in 1865, driven by policing of sex work. These findings relocate the origins of American fiscal policing from the late twentieth century to the 1860s, reveal a Northern and federal pathway that is distinct from Southern institutions previously studied, and provide historical context for contemporary debates over the constitutional limits of fines. More broadly, the Article models what can be gained by studying the United States as a post-conflict society, bringing to American legal history the theories and methods that political scientists have long used to study civil wars and state-building in other countries. 

--Dan Ernst 

Weekend Roundup

• On Jeffrey Rosen's "Blessings of Liberty" podcast Jed Shugerman and Ilan Wurman discuss the historical arguments underlying Trump v. Barbara and Trump v. Slaughter. Also, Reva Siegel says that Trump v. Barbara "shows popular constitutionalism in action" (Slate).  

•  A report of the conferral by the University of Edinburgh conferred the degree of Doctor of Laws honoris causa upon Jean-Louis Halpérin, “Professor Emeritus at the École Normale Supérieure (rue d’Ulm, Paris) and a most distinguished legal historian of international reputation” (Edinburgh Legal History Blog). 

• 
  In the latest episode of Breaking History," the podcast of the Supreme Court Historical Society,  "Brad Snyder interviews New York Times reporter Clay Risen about his new book Red Scare: Blacklists, McCarthyism, and the Making of Modern America"  (SCHS).

• A CFP for an on-line workshop on for scholars of American Political Development.  

• Jane E. Calvert and Jonathan Gienapp on John Dickinson’s secret effort to prevent the American Revolution (Law & Liberty).

• ICYMI:  David Blight's congressional testimony in defense of the Smithsonian (YouTube).  W. Caleb McDaniel on Why Regional Branches of the National Archives Matter.  A display on the Master of the Rolls at the UK National Archives (CTJ).    Bruen’s history-and-tradition test after Wolford v. Lopez (SCOTUSblog).  Reactions to the Supreme Court of Ohio's "Story of America: This Day in History” (CNO).  More on that exhibit on Arkansas's constitutional history (KUAF).  The Delaware Supreme Court Turns 75 (DPM)

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

Goldstein on Constitutional Facts, Jurisdictional Facts, and the APA

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

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

Dan Ernst 

Weekend Roundup

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

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

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

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

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

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

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

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

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

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

--Dan Ernst

JACH (Spring 2026)

The Spring 2026 issue of the Journal of American Constitutional History is now available here.

Articles

Constructing the Constitutional Legitimacy of the Administrative State: Congress and the Settlement of 1946
Johnathan O’Neill

Today the legitimacy of the administrative state is being questioned more deeply than at any time since the New Deal. This article puts Congress at the center of the story to understand how this question was addressed in the New Deal’s immediate aftermath. It argues that Congress sealed the legitimacy of the administrative state in three pieces of legislation passed in 1946: the Employment Act, the Administrative Procedure Act, and the Legislative Reorganization Act.

This legislation marked the “settlement of 1946,” in which Congress acknowledged that modern governance required management of the economy and delegation of power to bureaucracies, but also that the administrative state must be disciplined with recognizably constitutional principles and procedures. It was through this legislative dynamic, traced in each of the three laws passed in 1946, that Congress acted to moderate constitutional conflict and legitimate its resolution: only it could accommodate and validate the administrative state while also limiting and controlling its reach.

From this perspective, the constitutional changes of the New Deal look less like an event centered solely on the Supreme Court and its jurisprudence and more like an adaption that required action by the national legislature to be regarded as legitimate.

The Civic Order of Progressive America: The Fitter Families Ideal and the Acquisition and Loss of U.S. Citizenship
Rogers M. Smith

In the first third of the twentieth century, American leaders affiliated with both political parties and the broader Progressive movement restructured what I term the nation’s “legal civic order” to advance a Fitter Families ideal of American citizenship. The model American family was industrious and prosperous, conventionally religious, patriotic, patriarchal, white, and prolifically fecund. This article analyzes American legislation and executive policies governing immigration, naturalization, denaturalization, and expatriation in the Progressive era to show how comprehensively they expressed this ideal, despite apparent anomalies. National policies sought to exclude persons thought incapable of conforming to Fitter Families standards and to subject Indigenous Americans, inhabitants of the insular territories, and most people of color in America to what Progressives viewed as beneficial “tutelary” forms of second-class citizenship designed to prepare them to approximate the Fitter Families ideal, if they proved capable of doing so. Some on the left of the Progressive movement joined in coalitions with representatives of allegedly “unfit” communities to contest these policies, but substantial changes would not come until succeeding eras in America’s civic development.

Dialogue: The Oliver Wendell Holmes Devise History of the Supreme Court

The Oliver Wendell Holmes Devise: An Introduction
Maeva Marcus

As the third general editor of the Oliver Wendell Holmes Devise History of the Supreme Court, I had the good fortune to be in that position when Mark Tushnet and Robert Post produced their manuscripts on the Hughes and Taft Courts respectively—both truly monumental achievements. By way of introduction, I thought it might be helpful to give JACH readers a short account of the checkered progress of the Devise History, so they might better understand how Professors Tushnet and Post came to undertake such massive projects.

Reflections on the Two Most Recent Holmes Devise Histories of the Supreme Court (Including Mine)
Mark Tushnet

Reading in full Robert Post’s magnificent Holmes Devise history of the Taft Court provoked me to compare the choices he and I made in writing Holmes Devise volumes at roughly the same time.

Two choices Post and I made stood out for me: first, his hope to write a volume “of record” (xxv) compared to my (perhaps resigned) willingness to acknowledge that my volume, long as it is, is not comprehensive; second, his framing of his volumes around what he calls four “narratives about the nature and purpose of constitutional law” (xxvii) compared to my framing around what I called “attitudes” or, sometimes, “legal thought,” drawing upon Duncan Kennedy’s work.

The bottom line should be that his choices were right for him, which in some sense they necessarily were, and mine right for me.  Candor compels me to say, though, that I think my choices were better than his notwithstanding my admiration for his volume’s obviously great merit.

Writing for the Holmes Devise
Robert Post

Although seventy-five years ago it was common for legal historians to focus on the decision-making of apex courts, this had begun to change by 1988. To-day the subject seems positively quaint. Legal historians are now drawn instead to topics like transgender history, or imperial violence, or black legal culture, or intellectual history.  They conceptualize law as emerging from the bottom up, or as epiphenomenally emanating from the practices of governmentality, or as the precipitation of larger cultural developments. All this is very far from viewing law as the conscious, professional practice of judges striving to construct a semi-autonomous system of legal doctrine.

--Dan Ernst 

Weekend Roundup

• "On the 250th anniversary of America’s independence, Harvard Law historian and legal scholar Bruce H. Mann argues that colonists were fighting to uphold English common law rights and traditions" (Harvard Law Bulletin). 

• The Penn Carey Law School welcomes Christian Burset to its faculty. 

• An appreciation of the late John R Wunder (AHA Perspectives) .

• After appearing in "The Last Minute" segment of CBS's "60 Minutes," Jill Lepore wins the Pulitzer Prize in History for We the People: A History of the U.S. Constitution. The National Review is not wholly persuaded.  

• A notice of Stanford’s “America at 250,” one-unit course, cross-listed in the History and American Studies departments and the Law School.  It is “an exploration of where America has been, and based on that, where it might be going or might need to go,” according to Jonathan Gienepp, who is one of its instructors, with Pamela Karlan (Stanford Daily).

• A Q&A with Len Niehoff about his new book, Meeting Shakespeare at the Bar: Reading the Bard Through the Lens of the Law (American Bar Association, 2026) (Michigan Law). 

• On Thursday, May 7, Christine Chabot, Jane Manners and Lev Menand presented papers on removal, with a comment Nick Parrillo, in one of the Academic Paper Workshops at the Spring conference of the Administrative Law and Regulatory Practice Section of the American Bar Association."  

• "Alex Votta recently received Michigan Law’s Dimond Prize for his paper “The Great Rampart in Protecting Human Liberty: The Right to Education in Antebellum and Reconstruction Black Constitutional Consciousness.”  He credits Sam Erman, Rebecca Scott et al. (Michigan Law).

• The subsequent lives of the subjects of Dorothea Lange's Depression-era photographs (National Gallery of Art).  

• From the New York Times: "A Look Inside the Case That Enshrined Political Power for Billionaires" (Buckley v. Valeo).  

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

Federal History 18

Federal History 18 (2026) has been published.  Here is the TOC:

Editor's Note 

Benjamin Guterman

Roger R. Trask Lecture

“Girl From the North Country”: Pursuing History and Finding Community in the Nation’s Capital
Kristin L. Ahlberg

Articles

Bind Together Whom? The Internal Improvements Debate and Native Dispossession in the Early Republic
James R. Stocker

1870s House Investigations of Bureau Commissioner Oliver O. Howard and the Retreat from Reconstruction
Peter A. Porsche

Woodrow Wilson, American Power, and International Order at the Paris Peace Conference, 1918–1919
Peter Jackson

A Troublesome Reckoning: The Rediscovery of the U.S. Postwar Cover-up of Unit 731 and the Ethical Threat to Democracy
Emily Matson

Patients-in-Chief: The Public History of the President’s Physical Exam
Jacob M. Appel

Interview

An Interview with Sheyda F.A. Jahanbani
Sean T. Byrnes

Law & Constitution Roundtable

The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms, by Alison L. LaCroix
Introduction: Gerald Leonard, Boston University
Review: Austin Allen, University of Houston–Downtown
Review: James A. Gardner, University at Buffalo School of Law
Review: Grace Mallon, Lady Margaret Hall, University of Oxford
Review: Gautham Rao, American University
Author’s Response: Alison L. LaCroix, University of Chicago Law School

Reviews in Legal History

Richard Primus, “Sins and Omissions: Slavery and the Bill of Rights”
Terri Diane Halperin

Roger A. Bailey, “‘Intercourse . . . of the Most Friendly Nature’: The U.S. Navy, State Power, and William Walker’s Invasion of Mexico,     1853–1854”
Stephen J. Rockwell

Anna O. Law, “The Civil War and Reconstruction Amendments’ Effects on Citizenship and Migration”
Kelly Marino

Andrea Scoseria Katz, “A Regime of Statutes: Building the Modern President in Gilded Age America (1873–1921)”
Benjamin Guterman    

Benjamin Wetzel, “Theodore Roosevelt and the Unionist Memory of the Civil War: Experience, History, and Politics, 1861–1918”
Evan C. Rothera

Hardeep Dhillon. “The Making of Modern US Citizenship and Alienage: The History of Asian Immigration, Racial Capital, and US Law”
Amelia Flood

Kathryn E. Kovacs. “From Presidential Administration to Bureaucratic Dictatorship” 
Lisa K. Parshall

--Dan Ernst

Blackman on Special Counsels before Watergate

Josh Blackman, South Texas College of Law Houston, has posted A Historical Record of Special Counsels Before Watergate:

This Article presents a corpus of primary sources that were written by presidents, attorneys general, United States attorneys, special counsels, and others between the 1850s and the 1950s. This corpus reproduces primary sources from more than a dozen archives to present a better legal account of how special counsels were retained by attorneys general under Presidents James Buchanan, Andrew Johnson, Ulysses S. Grant, James A. Garfield, Theodore Roosevelt, and Harry S. Truman. 

During these six presidential administrations, attorneys general retained outside lawyers as special counsels either: (1) to assist a U.S. attorney with prosecutions or (2) to assist the Attorney General with an investigation. In none of these matters did the Attorney General appoint an outside lawyer as a special counsel and then delegate to him the powers claimed by modern special counsels: all of the powers of a Senate-confirmed U.S. attorney. 

There was one outlier. In 1924, during the Coolidge Administration, Congress enacted legislation establishing Senate-confirmed special counsels to prosecute Teapot Dome scandal defendants. These special counsels were afforded “total independence.” It is doubtful that these positions would be consistent with the Supreme Court’s modern separation of powers jurisprudence. 

This practice shows that the positions of special counsels in the post- Watergate era are not analogous to the positions of special counsels in the pre-Watergate era. Thus, pre-Watergate history does not provide support for the modern, post-Watergate special counsel and the vast powers that they are purportedly vested with. 

--Dan Ernst 

Ponomarenko on Executive Reorganization

Maria Ponomarenko, University of Texas Law, has posted Revisiting Presidential Reorganization, which is forthcoming in the George Washington Law Review’s annual issue on administrative law:

For much of the twentieth century, Congress repeatedly delegated to presidents the authority to “reorganize” the executive branch. Presidents from both parties used this authority to create agencies, consolidate functions, shift responsibilities across the bureaucracy, and otherwise reshape the administrative state. Congress kept itself in the loop by reserving the right to “veto” proposals with which a majority of legislators disagreed, but the streamlined process for executive reorganization nevertheless smoothed the way for various forms of bureaucratic change. All of this came to an end in 1984 when Congress allowed the last of the Reorganization Acts to expire. Although presidents and legislators from both parties have at times floated the idea of restoring the authority anew, these proposals have never really managed to get off the ground.

This Article examines the 50-year history of executive reorganization—including why it lasted as long as it did, why it came to an end, and why now might be the time to consider restoring the authority anew. It begins by drawing on a review of the 115 reorganization plans proposed between 1939 and 1984 to highlight the role that executive reorganization played in the broader history of bureaucratic change. It demonstrates that although executive reorganization was never the primary mechanism for restructuring the federal bureaucracy, it served as an important residual tool for accomplishing the sorts of structural reforms that were especially likely to stall in the ordinary legislative process—even when they enjoyed majoritarian support.

This Article then revisits the conventional account for why executive reorganization died when it did. Most have assumed that reorganization was yet another casualty of the Supreme Court’s decision in I.N.S. v. Chadha, which invalidated the legislative veto on separation of powers grounds. Yet as Part II makes clear, executive reorganization could very well have survived the legislative veto’s demise. Indeed, shortly after Chadha was decided, Congress and the Reagan administration had identified a plausible post-Chadha substitute in the form of a legislative fast-track process, which would have preserved many of the practical advantages of the earlier regime. What ultimately killed executive reorganization was a broader political an intellectual shift away from formal bureaucratic restructuring, in favor of various “flexible” forms of interagency coordination that promised to accomplish the same objectives at a much lower cost.

This Article concludes by arguing that now may be the time to consider restoring executive reorganization authority anew. It highlights the limits of informal coordination as a substitute for bureaucratic restructuring. And it argues that that executive reorganization has the potential to address, at least to some extent, a growing asymmetry in public law—namely, the degree to which the status quo makes it easier to destroy existing administrative capacity than to build it anew. Finally, it considers the obvious objections to delegating still more power to the executive at a time when presidents already enjoy unmatched authority—but argues that if anything, executive reorganization via a legislative “fast-track” process may offer a promising alternative to the current pattern of governance-by-Executive-Order by making it easier for majorities to effectuate their policy preferences into law.

--Dan Ernst 

The Decline and Fall of the State Executive Council

We note the publication, as an anonymous “Chapter” in the Developments of the Law section of a recent issue of the Harvard Law Review, of the article The Decline and Fall of the State Executive Council.  From the introduction:

Early state constitutions presented a mosaic of institutional design; but today, their structure largely mirrors that of the federal government. This structural convergence story is best told through the decline and fall of state executive councils. At the Founding, nearly every state had one. But today, only two remain. . . . 

Section A examines the rise of executive councils, beginning with their origins in medieval England. It catalogs how the early executive council evolved from a small circle of the King’s advisors to a central institution in English government exported to the colonies, both shaping and being shaped by early American societies. Section B explores the translation of these colonial-era executive councils into republican institutions and catalogs the abortive failure of the federal plural executive — and the victory of the unitary executive — at the Federal Constitutional Convention. Section C details the executive council’s long and consistent fall from grace. Section D discusses the role of the contemporary executive council in New Hampshire, its last true stronghold. Looking at the history of executive council dissolution over time, three sequential historical causes are clear: federalist reaction, Jacksonian democracy, and successive progressive movements. These three trends have one thing in common: They were national, top-down movements that flattened state power. This Chapter concludes that this institution is worthy of a second look, both locally and nationally.

--Dan Ernst 

Kent on the Interwar Development of American Economic Sanctions

Andrew Kent, Fordham University School of Law, has posted The Pre-History of Modern Economic Sanctions, which is forthcoming in Constitutional Commentary:

This review essay examines the historical emergence of modern economic sanctions through the lens of Professor Nicholas Mulder’s outstanding 2022 book, The Economic Weapon.  It then supplements Mulder’s account with a fuller treatment of developments in the United States between World War I and the start of World War II.  The emergence of modern sanctions depended on transformations in international and domestic law, international diplomacy, state administrative capacity, and moral and legal understandings of coercion against civilian populations.  Mulder shows that these changes took shape principally during and after World War I, and focuses his monograph on Britain, France, and the League of Nations, with some attention to the United States.  This essay supplements Mulder’s transnational history with a more detailed account of U.S. law and institutions in the first four decades of the twentieth century.  In the United States, developments during World War I and the interwar period—including the Trading with the Enemy Act, export-control measures, debates about Congress’s neutrality statutes and the merits of using American economic coercion against fascist and expansionist powers, and a growing acceptance of broad executive discretion in foreign affairs—worked together to help create a rudimentary but recognizably modern sanctions regime by the time the United States entered World War II.  The essay highlights the U.S. constitutional questions raised by these developments, including questions about the nondelegation principle, the scope of presidential power and Congress’s foreign and interstate commerce powers, and protections for individual constitutional rights. 

--Dan Ernst 

Jones on the Fugitive Slave Law and Public Rights

Scott Jones has published his YLJ note, The Fugitive Slave Act of 1850: A Public-Rights Paradox:

This Note reconstructs a historical regime that empowered inferior officers to decide matters of life, liberty, and property without judicial oversight. The Fugitive Slave Act of 1850 created a federal administrative apparatus that adjudicated core private rights through federal commissioners who rendered binding, final decisions without the safeguards of Article III.

The administration of this Act challenges the coherence of the modern public-rights doctrine, which purports to draw a formal line between public- and private-rights adjudications. Yet the 1850 Act exposes how that distinction collapses when federal power demands. This Note demonstrates that neither the imperative-necessity nor historical-tradition exceptions can adequately justify this regime within existing constitutional limits. Instead, it argues that the public-rights doctrine has functioned less as a principled constraint on the separation of powers than as a justification that expands to accommodate the state’s political needs.

As courts increasingly rely on historical tradition to define constitutional boundaries in administrative law, this Note shows that historical tradition is far less clear-cut than the “Grand Narrative” of modern administrative law suggests. It reveals that the separation between judicial and administrative power has been shaped by political necessity rather than fixed constitutional principle. The Act complicates the prevailing narratives in administrative law and originalist thought, urging a reevaluation of how constitutional meaning is constructed and state power legitimized.

--Dan Ernst

Eilbert on 20th-Century Public Administration

Casey Eilbert, Johns Hopkins University, has published Architects of the Administrative State: Public Administration in the Twentieth Century, open access in Modern American History:

This article shows how public administration experts theorized and enacted changes to the American administrative state over the twentieth century. In the prewar period, they advanced a strict politics-administration binary that legitimated an expanding administrative state on the premise that it was a politically neutral vehicle for the execution of the public good. But during the Second World War, mounting scrutiny of the administrative state exposed the fragility of the politics-administration binary and undermined confidence in prewar administrative principles and the statebuilding they had sustained. In response to escalating dissatisfaction with existing administrative forms, public administration experts rejected administrative neutrality and turned to new theories and practices of administration emphasizing political responsiveness, managerial efficiency, and individual discretion and choice. In the late twentieth century, these shifts culminated in reforms that cut and contracted out the administrative state, recasting administration as an arbiter of private interests rather than a neutral instrument for realizing a unified public will.

--Dan Ernst 

LHR 44:1

Law and History Review 44: 1 (February 2026) has been published, open access, online.  It is a joint special issue with The William and Mary Quarterly, entitled "New Legal Histories of the American Revolution."  LHR editor Gautham Rao writes on social media that the issue "offer[s] a new methodological challenge to well-trod historiographical terrain."

Bringing the Law and the Local Back In to the Revolution
Sarah Barringer Gordon

The Tension between Religious Liberty and Religious Establishment in Revolutionary New England
Mark Valeri

“They Are Their Citizens and Must Submit to Their Government”: Citizenship and the Creation of the Federal Government, 1776–1787
Jessica Choppin Roney

Popular Government and the Limits of the Law at the Outset of the American Revolution
Donald F. Johnson

Legislation, Regulation, and Administration in the American Revolution
William J. Novak

Review Essay
Something Else: History, Legal Imagination, and the American Revolution
Matthew Crow

Ackerman on the Democratic Basis of Humphrey's Executor

Bruce Ackerman, Yale Law School, has posted Barrett’s Red Flag: Why the Court Should Order Re-argument in Trump v. Slaughter:

William E. Humphrey (LC)

While there are a host of essays dealing with the Slaughter and Cox cases presently under consideration by the Supreme Court, this is the first one exploring a fundamental point about Humphrey’s Executor that was advanced by Justice Amy Coney Barrett in her remarkable interventions during December’s oral argument in Slaughter. She emphasized that, in gaining unanimous support for Humphrey’s Executor in 1935, Justice Sutherland was building on the successful construction of a series of independent agencies by both Democratic and Republican Administrations over the preceding half-century -- beginning with Grover Cleveland’s breakthrough success in gaining Congressional approval for the nation’s first independent agency: the Interstate Commerce Commission in 1887. As Justice Barrett pointed out, Cleveland’s presidential successors built on his landmark precedent to gain repeated Congressional support for a wide range for agencies that continue to play a crucial role in today’s America – including the Pure Food and Drug Administration (Theodore Roosevelt), the Federal Trade Commission (Woodrow Wilson), and the Federal Communications Commission (Calvin Coolidge). Since Democratic and Republican Administrations profoundly disagreed on a host of other fundamental issues, their repeated and bipartisan affirmation of expert agencies as a “fourth branch of government” was even more remarkable.

As a consequence, Justice Barrett suggested that this bipartisan consensus provided a distinctively democratic foundation for Justice Sutherland’s unanimous opinion in Humphrey’s Executor.      After all, it was announced in March of 1935 when Sutherland was refusing leading his six Lochnerians in an escalating constitutional assault on the activist regulatory state – despite the eloquent dissents of Brandeis, Cardozo and Stone. Nevertheless, these bitter disagreements did not lead the Lochnerians to challenge the legitimacy of wide-ranging regulation of the market-economy by independent agencies – since American voters had repeatedly vindicated a bipartisan effort to create independent agencies with the requisite expertise required to confront the scientific and industrial revolutions in a responsibly democratic fashion.

Justice Barrett made these points during the give-and-take of oral argument in the Slaughter case. Unfortunately, however, the lawyers for Rebecca Slaughter and Donald Trump were not prepared to respond with sophisticated analysis of the constitutional significance of the half-century of history that she was emphasizing.

It happens, however, that I have spent a great deal of time exploring these issues in preparation for my multivolume series, We the People – and believe that it powerfully supports Justice Barrett’s interpretation of its constitutional significance. To be sure, I expect this essay to provoke serious critiques, as well as significant elaborations, of the themes I present. Indeed, this is precisely why I believe that the Court should defer its final decision in Slaughter and Cox so as to give it the opportunity to make a genuinely thoughtful decision on an issue which will profoundly shape the course of American government for generations.

--Dan Ernst

Weekend Roundup

• The Asian Legal History Association has hosted its official launch in Hong Kong (The Standard).  The speech of the Secretary for Justice, Paul Lam, at the launch is here. Update: Donal Coffey was there, too.

• Ian Mansfield's review of the exhibition, Londoners on Trial: Crime, Courts and the Public 1244-1924, at the London Archives until February 25, 2027.

• From the Conversation: "The deaf blacksmith who married in 1576 – and the history of sign as a legal language."

• Over at JOTWELL: Blake Emerson (UCLA Law) has posted an admiring review of Nathaniel Donahue's "Officers at Common Law," which is forthcoming in the Yale Law Journal.   

• Ashley Everson on Pauli Murray, the Brown Decision, and the Struggle for Equal Rights (Black Perspectives).

• A notice of Akhil Reed Amar's Giannella lecture at Villanova on Born Equal: Remaking America’s Constitution, 1840–1920 (Villanovan). 

• Five Takeaways from conference on Richard Primus’s The Oldest Constitutional Question  (Michigan Law). 

• Now online: the website of the 14th Amendment Center for Law and Democracy at Howard Law School, led by Sherrilyn Ifill.

• ICYMI: Birthright Citizenship Edition.  Dahlia Lithwick spoke to Anna O. Law about Law's book, Migration and the Origins of American Citizenship (Amicus). Ilya Somin on Slavery and Birthright Citizenship (Lawfare).  Smita Ghosh on Lynch v. Clarke (1844), the birthright citizenship case you never heard of (Slate). Akhil and Vikram Amar and Jason Mazzone on why the text, history, and structure of a landmark 1952 statute doom Trump’s executive order (SCOTUSblog). 

• ICYMI: Orin S. Kerr on How AI Tools Can Help With Legal History Research (Volokh Conspiracy). "The Trump administration’s campaign to remove National Park Service exhibits that 'inappropriately disparage' historical figures" has bogged down (Politico).

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

Murray on Judicial Review for Error of Fact

On March 17, 2026, from 18:00-19:30, Philip Murray, Robinson College, Cambridge, will deliver the lecture Ducks or Rabbits? The History of Judicial Review for Error of Fact.  The event will take place in the Keeton Room, Bentham House, Endsleigh Gardens, London.  It is sponsored by the UCL Law's Legal History Research Group and is open to all who register here.  

Contemporary English administrative law has got itself in a mess over the distinction between
errors of law (generally reviewable) and errors of fact (generally not renewable). Perhaps the low point came in R (Jones) v First-tier Tribunal [2013] 2 AC 48, where the Supreme Court suggested the distinction between the two types of error can be manipulated by the courts to control the availability of judicial review. As such, a factual finding made by an administrator has become a version of the famous duck-rabbit illusion: whether a court sees an error of law or error of fact depends on its psychological predisposition to review.

Looking back over the early history of English administrative law, the courts seemed to have less  of a problem in review for error of fact. Whether an error made by an administrator was of law or of fact didn’t really matter that much. The key issue was what the significance of that error was to the decision-maker’s power to act.

At a time when legal historians and contemporary public law scholars are increasingly turning to the history of administrative law as a site for productive study, this paper seeks to review the history of error of fact review from the middle of 17th century through to the early part of the 20th century. It will chart developments in the jurisprudence of the Court of King’s Bench when reviewing factual errors under the prerogative writs, especially certiorari and prohibition, and try to identify what really led to modern law’s confusion over error of fact review.

--Dan Ernst