Epidemics and the Law

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

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

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

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

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

--Dan Ersnt.  TOC after the jump. 

AHA Congressional Briefings on AI and Vaccines

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

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

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

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

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

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

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

Remembering Willowbrook

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

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

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

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

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

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

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.

Boes on Antivaccination and American Antistatism

Julia Bowes, University of Melbourne, has published “Another Human Sacrifice Thrown to the Pitiless Moloch of Police Power”: The Anti-Vaccination Movement, Parental Rights, and the Roots of American Anti-Statism, 1890–1917, in Law and History Review:

This article revisits the roots of anti-statism in the United States by analyzing opposition to the introduction of compulsory school vaccination and medical examinations at the local and state levels in the Progressive Era. It shows that the widespread use of compulsory schooling laws to promote vaccination in the late nineteenth century, which led to establishing compulsory school medical exams and school nurse programs in the early twentieth, precipitated intense conflicts over states’ police powers. Exploring the controversy over school vaccine requirements in Utah between 1899 and 1901, the article reveals that resistance to public health interventions in schools fused skepticism of science with a gendered defense of individual and parental rights to challenge states’ power over children. The article then traces how these conflicts filtered up to the federal level, framing arguments against a proposed federal department of health in the 1910s. Led by the National League for Medical Freedom, opponents directly linked the reach of the police powers via compulsory school health initiatives with the expansion of federal power, arguing they were connected in a plot to establish “state medicine” that imperiled the gendered freedom of the “individual”—i.e., the white male citizen—over the home.

--Dan Ernst 

Weekend Roundup

• 
  Talking Legal History has posted a new podcast: host Siobhan M. M. Barco talks with Felicity Turner, Georgia Southern University, about her book Proving Pregnancy: Gender, Law, and Medical Knowledge in the Nineteenth-Century United States (UNC Press, 2022).
  

• Felicia Kornbluh University of Vermont, in conversation with her sister, Ambassador Karen Kornbluh will discuss her book A Woman's Life Is a Human Life at Politics and Prose (and, virtually, here) on January 16 at 7:00 PM. 
  

• In the Journal of Christian Legal Thought, Craig A. Stern, Regent University School of Law, “describes, as remarkable works of Christian Imagination, Henry II’s assize of novel disseisin, Justinian’s Corpus Juris Civilis, and Blackstone’s Commentaries on the Laws of England.”
  

• New online from Law and History Review and Cambridge Core: Before Equal Protection: The Fall of Cross-Dressing Bans and the Transgender Legal Movement, 1963-86 by Kate Redburn.
  

• The ACLU senior staff attorney, Gillian Thomas, is in conversation with Dahlia Lithwick about the latter’s book, Lady Justice, in the ACLU’s podcast series, At Liberty.
  

• The latest issue of the Newsletter of the Historical Society of the District of Columbia Circuit notes the passing of Judge Laurence Silberman and U.S. Attorney Earl Silbert.  
  

• From the Washington Post's Made by History section: Ivón Padilla-Rodríguez on Title 42 and immigration policy since the Sixties. 
  

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

Podvia's "Strange Case of Dr. Paul Schoeppe"

Mark W Podvia, emeritus from Dickinson School of Law of the Pennsylvania State University, has published The Strange Case of Dr. Paul Schoeppe (Talbot Publishing, 2022):

Maria Steinnecke, a wealthy spinster, died in the central Pennsylvania borough of Carlisle on January 28, 1869. At first her death was not considered suspicious. That changed when her doctor, Paul Schoeppe, presented a will in his handwriting; it said she had left her entire estate to him. Soon afterwards, an autopsy performed on Miss Steinnecke revealed traces of prussic acid, a deadly poison. Thus began the murder case of Commonwealth of Pennsylvania v. Paul Schoeppe, an event that brought national and international attention to Carlisle. Found guilty, Dr. Schoeppe would come within days of his execution before the efforts of America's physicians and the German-American community combined to force a second trial that ultimately freed him. Exciting events at the time, the two trials of Dr. Schoeppe forever changed the way that medical evidence was presented and appeals were conducted in criminal cases.

–Dan Ernst

Sharafi on Abortion in South Asia

It was published some time ago but has just gone open access: Abortion in South Asia, 1860–1947: A medico-legal history, by former LHBlogger Mitra Sharafi, University of Wisconsin Law School, in Modern Asian Studies:

In the progression of stages toward unintended lives, the two stops on either side of abortion—contraception and infanticide—have been studied extensively by historians of South Asia. We know much less about abortion, particularly during the colonial period. Drawing upon published judgments, unpublished case records, forensic toxicology reports, and treatises on Indian medical jurisprudence, this article suggests that anti-abortion law was generally enforced in colonial India only when women died as a result of illegal abortions. This approach was contrary to the Indian Penal Code (IPC), which criminalized most abortions even when the women survived. The pattern was a continuation of the pre-IPC approach in India. This article explores possible explanations for the lax enforcement of anti-abortion law in South Asia during the late nineteenth and early twentieth centuries, considering abortion as experienced by South Asian and British women alike. It proposes as contributing factors: challenges in detection, the social movement for the protection of Hindu widows, colonial anxieties about false allegations of abortion among South Asians, the common phenomenon of imperial (British) husbands and wives living apart, and physicians’ desire to protect doctor–patient confidentiality. The article focuses on two key cases involving abortion: the Whittaker-Templeton case from Hyderabad (1896–1902) in which a British woman died following an abortion; and the Parsi matrimonial case of T. v. T. from Bombay (1927), in which a Zoroastrian woman alleged that her pharmacist husband had forced her to terminate three pregnancies by ingesting drugs.

–Dan Ernst

The Lawsuit that Closed Willowbrook

 [We have the following announcement. DRE]

Willowbrook State School: How a Lawsuit Closed the Gates to a Notorious Institution and Opened the Doors of Opportunity for Thousands, presented by the Historical Society of the New York Courts in collaboration with the Willowbrook Legacy Committee.  September 22 @ 6:00 pm - 8:00 pm EDT. Free In-Person and Online Event at the New York City Bar Association.  Open to the Public.

Credit: NYPL

Willowbrook State School was an infamous institution on Staten Island built to care for those with developmental disabilities.  In January 1972, television reporter Geraldo Rivera brought his camera to Willowbrook  and reported on the horrible conditions at the  “school,” once described by Sen. Robert Kennedy as a “snake pit.” Two months later, lawyers from the NYCLU and the NY Legal Aid Society, on behalf of residents, parents and organizations filed a class action lawsuit arguing that residents had a constitutional right to treatment and sought injunctive relief. A distinguished panel of attorneys who have been involved with this case will discuss the filing of the complaint, the entry of a Consent Judgment and the continuing nature of the litigation. The panel will also discuss the importance and relevance of Willowbrook today.

See images of the terrible conditions those with developmental disabilities were forced to endure on the Pennhurst Memorial & Preservation Alliance website.

PANEL DISCUSSION
Beth Haroules, Esq., Senior Staff Attorney, New York Civil Liberties Union
Christopher Hansen, Esq., Senior National Staff Counsel, American Civil Liberties Union
Hon. Robert M. Levy, United States Magistrate Judge for the Eastern District of New York
Paul Kietzman, Esq., Of Counsel, Barclay Damon LLP

NY CLE Credits currently pending for members of the Historical Society of the New York Courts. Registration Opening Soon!

LHR 40:2

Law and History Review 40:2 (May 2022) is now available online:

Using Topic-Modeling in Legal History, with an Application to Pre-Industrial English Case Law on Finance
Peter Grajzl, Peter Murrell

Rebellion, Sovereignty, and Islamic Law in the Ottoman Age of Revolutions
Will Smiley

The Surveillance State and the Surveillance Private Sector: Pathways to Undercover Policing in France and the United States
Jacqueline E. Ross

Religion, Law, and the Dynamics of Intellectual Transmission: Weimar Jurisprudence among Religious Socialists in Israel
Alexander Kaye

Heart Transplants, Legislating Death, and Disruptive Anti-Apartheid Advocacy
Meredith Terretta

Book Reviews

Sara M. Butler, Pain, Penance, and Protest: Peine Forte et Dure in Medieval England. Cambridge: Cambridge University Press, 2022. Pp. xiv, 474. $135.00 hardcover (ISBN 9781316512388)
Henry Summerson

Tom Johnson, Law in Common: Legal Cultures in Late-Medieval England. Oxford: Oxford University Press, 2020. Pp. xii, 324. $105.00 hardcover (ISBN 9780198785613)
Anthony Musson

Catherine L. Evans, Unsound Empire: Civilization & Madness in Late-Victorian Law. New Haven and London: Yale University Press, 2021. Pp. 304. $65.00 hardcover (ISBN 9780300242744)
Katherine D. Watson

Christopher W. Schmidt, Civil Rights in America: A History. Cambridge: Cambridge University Press, 2020. Pp.250. $114.95 hardcover (ISBN 9781108426251); $39.95 paperback (ISBN 9781108444972)
Sophia Z. Lee

--Dan Ernst

Evans on empire and madness

Catherine Evans (University of Toronto) has published Unsound Empire: Civilization and Madness in Late-Victorian Law with Yale University Press. The publisher calls this a "study of the internal tensions of British imperial rule told through murder and insanity trials." More from the press:  

Unsound Empire is a history of criminal responsibility in the nineteenth‑century British Empire told through detailed accounts of homicide cases across three continents. If a defendant in a murder trial was going to hang, he or she had to deserve it. Establishing the mental element of guilt—criminal responsibility—transformed state violence into law. And yet, to the consternation of officials in Britain and beyond, experts in new scientific fields posited that insanity was widespread and growing, and evolutionary theories suggested that wide swaths of humanity lacked the self‑control and understanding that common law demanded. Could it be fair to punish mentally ill or allegedly “uncivilized” people? Could British civilization survive if killers avoided the noose?

Praise for the book: 

 “Unsound Empire reconnoitres with late-Victorian jurists and medical men struggling with prisoners too dangerous to release and too mad to hang.  Catherine Evans’s micro-histories are strewn with eccentric characters and thick with tales that sparkle with stunning prose.” -Constance Backhouse

“This original, bold and beautifully crafted book brings legal history, the history of medicine and imperial history into dialogue. A must-read for anyone interested in a critical history of the British Empire.” -Renaud Morieux

 “Deeply researched and grippingly written, Unsound Empire demonstrates the centrality of imperial rule to the making of the common law and of legal competence to the emergence of political subjecthood, fundamentally transforming histories of law, medicine, and empire.” -Rohit De

Further information is available here.

--Mitra Sharafi

Grossman's "Choose Your Medicine"

It’s hard to imagine a more timely book or an author who has devoted more thought and research to his subject.  Lewis A. Grossman, American University, has just published Choose Your Medicine: Freedom of Therapeutic Choice in America (Oxford University Press):

Throughout American history, lawmakers have limited the range of treatments available to patients, often with the backing of the medical establishment. The country's history is also, however, brimming with social movements that have condemned such restrictions as violations of fundamental American liberties. This fierce conflict is one of the defining features of the social history of medicine in the United States.

In Choose Your Medicine, Lewis A. Grossman presents a compelling look at how persistent but evolving notions of a right to therapeutic choice have affected American health policy, law, and regulation from the Revolution through the Trump Era. Grossman grounds his analysis in historical examples ranging from unschooled supporters of botanical medicine in the early nineteenth century to sophisticated cancer patient advocacy groups in the twenty-first. He vividly describes how activists and lawyers have resisted a wide variety of legal constraints on therapeutic choice, including medical licensing statutes, FDA limitations on unapproved drugs and alternative remedies, abortion restrictions, and prohibitions against medical marijuana and physician-assisted suicide. Grossman also considers the relationship between these campaigns for desired treatments and widespread opposition to state-compelled health measures such as vaccines and face masks.

From the streets of San Francisco to the US Supreme Court, Choose Your Medicine examines an underexplored theme of American history, politics, and law that is more relevant today than ever.

Some encomia:

"Grossman's work displays his mastery not only of the law, but also of everything else that makes medicine and health enduringly fascinating aspects of human history. Life, death, fear, love, pride, greed, envy, and ambition spring repeatedly from its pages. If you only read one book to understand the social cleavages that make it hard for Americans and their political leaders to 'follow the science' and end the pandemic, it should be this one." -- William M. Sage, Professor of Law and Medicine, The University of Texas at Austin

"What have 'life, liberty, and the pursuit of happiness' meant for medicine? Lewis Grossman provides a provocative answer, showing how Americans across the political spectrum used the law to fight—often against their physicians—for therapeutic choice. The legalization of medical marijuana and compassionate use of experimental cancer drugs are, in his view, just the most recent examples of a 200-year-old tradition of medical rights-making in the US, often linked to expressions of religious freedom. A fascinating diagnosis of the American wariness of the state and medical science." -- Angela N. H. Creager, Thomas M. Siebel Professor in the History of Science, Princeton University

"From George Washington's Deathbed in 1799 to the D.C. Circuit's courtroom in 2007 hearing argument in the landmark case of Abigail Alliance, Grossman's book takes readers on a thrilling historical ride to understand what 'therapeutic choice' has meant for this country and what the sometimes unstable marriage between medicine and law has wrought." -- I. Glenn Cohen, Deputy Dean and James A. Attwood and Leslie Williams Professor of Law, Harvard Law School, and Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics

"Meticulously researched, engagingly written, and deeply relevant, Lewis Grossman begins with the question of therapeutic freedom in the early 21st century and traces a vital thread connecting two centuries of legal studies, consumer history, and American politics. Choose Your Medicine provides a thorough and trenchant meditation on what is gained—and what has been lost—in foregrounding individual choice in the forging of US health policy and law." -- Jeremy Greene, William H. Welch Professor of Medicine and the History of Medicine, Johns Hopkins University

--Dan Ernst

Rosenberg on Medicine, Advertising and Law in England

It’s gated, but we’re noting anyway the publication of Anat Rosenberg’s Exaggeration: Advertising, Law and Medical Quackery in Britain, c. 1840-1914 in the Journal of Legal History 42 (2021): 202-231:

This article revisits the nineteenth-century debate about medical quackery in Britain, to examine its implications for the history of modern advertising. It makes two related claims. First, the prevalent view of advertising as a field prone to exaggeration, often taken as obvious, has a legal history. The circumstances of the quackery debate led to a legal elaboration and formalization of views of advertising as an epistemologically doubtful but not illegal field. Second, advertising’s status as exaggeration was part of a legally supported cultural division of labour – or legal boundary work, which carved differentiated roles for science and the market in modern Britain whereby science was increasingly defined by restraint, and the market by its lack. The analysis examines the implications, while also offering new insights on the role of law in the history of quackery, and examining untapped sources, particularly a set of libel cases that developed a legal definition of quackery.

–Dan Ernst

Priel on Judges' Breakfasts

Dan Priel, Osgoode Hall Law School, York University, has published Law Is What the Judge Had for Breakfast: A Brief History of an Unpalatable Idea, in the Buffalo Law Review 68 (May 2020): 899-930:

According to a familiar adage the legal realists equated law with what the judge had for breakfast. As this is sometimes used to ridicule the realists, prominent defenders of legal realism have countered that none of the realists ever entertained any such idea.  In this Essay I show that this is inaccurate. References to this idea are found in the work of Karl Llewellyn and Jerome Frank, as well as in the works of their contemporaries, both friends and foes. However, the Essay also shows that the idea is improperly attributed to the legal realists, as there are many references to it, in legal and non-legal sources, from long before the advent of legal realism. This suggests that the phrase has long reflected something of a received wisdom about adjudication. Tracing the question of the significance of digestion to one's health, I argue that what we today take to be a humorous claim, may have been a much more serious one. For much of the nineteenth century it was widely believed that one's health depended on one's digestive health. Interestingly, this view is now once again taken seriously by scientists, which suggests that rather than scorn, the realists deserve credit for suggesting that the question be studied seriously.

--Dan Ernst