Miller on Ruffin and Roberts in Mann and Trump

Joseph Scott Miller, University of Georgia School of Law, has posted Perfecting Our Submission? Mann and Trump, Ruffin and Roberts:

Thomas Ruffin (wiki)

Presidential power is vast, both under law and in practice. Who holds presidents accountable, and by what means? Much turns on the answers we provide, as well as on the justifications we establish for those answers. The majority opinion in the new presidential immunity case, Trump v. U.S., is eerily resonant, rhetorically, with a notorious judgment enhancing one person’s power over others by shielding that power utterly from criminal-law accountability. That judgment, now nearly two centuries old, is Judge Thomas Ruffin’s infamous opinion for the North Carolina Supreme Court in State v. Mann. I juxtapose the two opinions, which share jarringly similar claims about the nature of power, rule, and accountability under law.

--Dan Ernst

Staszak's "Privatizing Justice"

Sarah Staszak, Princeton University, has published Privatizing Justice: Arbitration and the Decline of Public Governance in the U.S. in Studies in Postwar American Political Development, a book series of Oxford University Press:

One of the primary goals of the 1970s-era conservative legal movement was to undo New Deal policies that favored labor at the expense of capital. One of the movement's most effective strategies turned out to be advancing bipartisan legislation on arbitration and convincing the courts that settling disputes that way was preferable to litigation. Today, most consumers and employees today are bound by arbitration agreements, in which they are required to submit all future grievances to a private, binding system of arbitration and forfeit access to the legal system. Arbitration as originally conceived well over a century ago, however, stands in stark contrast to the arbitration in practice today. What changed is that Congress, the Supreme Court, and the private sector began to promote its use in the late twentieth century as a means of protecting corporate and other powerful institutional defendants from the costs of litigation and government regulation itself.

How did arbitration shift from providing a low cost, less adversarial, and more efficient way of handling disputes between entities of equal bargaining power to a private, non-reviewable, compulsory forum for resolving disputes between individuals and corporations, often on unilateral terms? By examining the broader institutional, political, and legal dynamics that shaped and enabled these processes of change over the past 150 years, Privatizing Justice examines how this transformation came about. The product of a broad range of actors and institutions interacting with each other--Congress, presidents, the courts, the administrative state, interest groups, and the business community-the system that emerged has not only transformed the American state in profound ways but exacerbated economic inequality and eroded democracy.

Here are two endorsements:

 "Privatizing Justice offers a compelling account of the emergence one of the most important, and overlooked, features of the American political economy. This brilliant book is essential reading not only for students of American capitalism, but also for social scientists interested in the politics of institutional change." -- Kathleen Thelen, MIT

"Staszak's sweeping and illuminating account of how the modern private arbitration system came to dominate dispute resolution in the United States should be required reading for scholars of the modern American state, rights, and our legal system, regardless of discipline. She joins rich history with a bracing argument to pose important questions for policymakers, judges, and scholars alike." -- Sophia Z. Lee, University of Pennsylvania Carey Law School

--Dan Ernst

CFP: Legal Histories of Empire IV

[We are moving this post up[ because the deadline for submissions is a month away.  DRE]

Legal Histories of Empire IV: Empires in Touch.  St Michael’s College, University of Toronto, July 10-12, 2025.

Law in Empire. Law among Empires. We invite papers that consider how law has worked within empires at different times and places, how it has worked at the contact points between empires, and how imperial subjects have attempted to work law to their advantage. Law has facilitated, constituted, and enabled connections. People and societies have both suffered and benefitted from the uncertainties produced as empires have spread, imposed themselves on local populations, and competed with each other. Legal ideas have moved with people who had legal training and people without it. Institutions have formed and reformed, succeeded, failed, and produced intended and unintended consequences. In this fourth Legal Histories of Empire conference, we seek to explore these movements and connections, including the construction of illegality and non-legality. We hope to bring together historians working in different legal traditions and with a range of different sources to reveal the threads that have bound, ordered, and separated different empires, places, laws and legal traditions across the globe.

Please send abstracts to LHE2025conference@uts.edu.au by 31 August 2024. Acceptances will be sent by the middle of October 2024. We are pursuing avenues to allow us to provide funding for travel, especially for graduate students and scholars from the Global South. Those interested in seeking funding should sign up for updates from our website.

Format: Chiefly in-person. We may have some limited capacity for online participation. Please indicate on your abstract whether your participation is contingent on the availability of online participation.

Personal information: For each participant (presenter, chair, or commentator), please submit: (1) biographical details of no more than 150 words; and (2) where, and in what timezone, you will be in July 2025 if you are not physically in Toronto.

Individual papers: If you are submitting an individual paper, please submit an abstract of no more than 200 words.

Panels (of no more than 4 speakers: a chair and/or commentator can be included): If you are submitting a panel, please include (1) a panel abstract of no more than 150 words; and (2) individual paper abstracts of no more than 200 words.

Streams.  We anticipate having streams in the program on the following themes, coordinated by the scholars listedbelow. If your proposal is to a particular stream please indicate that clearly in your abstract.

Illegality in Empire: Dr David Chan Smith

The American Empire: Dr Sam Erman

Empire in Oceania: Dr Mary Mitchell

Law in Africa: Dr Yolanda Osondu

Legal Transfer in the Common Law World: Prof Stefan Vogenauer and Dr Donal Coffey

Comparing Empires: Judicial Institutions and Legal Actors: Prof Heikki Pihlajam

ASLH/Notre Dame Graduate Legal History Colloquium

The schedule for the ASLH/Notre Dame Graduate Legal History Colloquium, sponsored by the American Society for Legal History, Notre Dame Law School and the University of Notre Dame Graduate School is now complete and posted with a registration form here.  Five sessions will be conducted between October 2024 and April 2025. 

--Dan Ernst

Gronningsater, "The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom"

New from the University of Pennsylvania Press: The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom, by Sarah L. H. Gronningsater (University of Pennsylvania). A description from the Press:

The Rising Generation chronicles the long history of emancipation in the United States through the cradle-to-grave experiences of a generation of black New Yorkers. Born into precarious freedom after the American Revolution and reaching adulthood in the lead-up to the Civil War, this remarkable generation ultimately played an outsized role in political and legal conflicts over slavery’s future, influencing both the nation’s path to the Civil War and changes to the US Constitution.

Through exhaustive research in archives across New York State, where the largest enslaved population in the North resided at the time of the American Revolution, Sarah L. H. Gronningsater begins by exploring how English colonial laws shaped late eighteenth-century gradual abolition acts that freed children born to enslaved mothers. The boys and girls affected by these laws were born into a quasi-free legal status. They were technically not enslaved but were nonetheless required to labor as servants until they reached adulthood. Parents, teachers, and mentors of these “children of gradual abolition” found multiple ways to protect and nurture the boys and girls in their midst. They supported and founded schools, formed ties with white lawyers and abolitionists, petitioned local and state officials for better laws, guarded against kidnapping and cruelty, and shaped New York’s evolving identity as a free state. Black fathers used their votes during annual state elections in the early 1800s to influence legislative antislavery efforts. After many but not all black men in the state were disfranchised by a race-based property requirement in 1822, black citizens across New York organized to regain equal suffrage and to expand and protect other crucial, non-gendered features of state citizenship. Women and children were critical participants in these efforts.

Gronningsater shows how, as the children of gradual abolition reached adulthood, they took the lessons of their youth into midcentury campaigns for legal equality, political inclusion, equitable common school education, and the expansion of freedom across the nation.

A selection of advance praise:

"This book is an extraordinary accomplishment of research and writing. Sarah L. H. Gronningsater has immersed herself in countless local archives to give us an entirely new picture of northern black politics in its many forms. With clarity and empathy, The Rising Generation shows how black children, women, and men developed organizing savvy and legal acumen, supported fugitive slaves, demanded access to schools and the courts, and made their voices heard in national politics."—Kate Masur

"The Rising Generation is a book about hope. Meticulously researched and beautifully crafted, it recasts the history of emancipation by foregrounding the activism of ordinary people, particularly black Americans. That past has profound resonance now. By revealing what civic engagement accomplished in the past, this remarkable book also opens up new possibilities today."—Laura F. Edwards

More information is available here.

-- Karen Tani

Studies in New York Law

[We have the following announcement.  H/t: New York Almanac.  DRE.]

SUNY Press has announced a new series, Studies in New York Law, edited by Albert M. Rosenblatt.  Studies in New York Law is expected to highlight key legal issues and cases that have shaped New York (and the nation’s) history.  Combining legal analysis with a focus on specific cases or events, books in the series will address the theoretical and practical applications of New York law as it has evolved over time.

The series will address diverse issues in New York’s legal history, including racial and sexual equality, worker’s rights, health and safety, consumer protection, and equal application of the law.

Books in the series will appeal to academics, legal historians, and New York State historians, as well as general readers interested how law has impacted the social cultural life of the state and country.

Albert M. Rosenblatt teaches at the New York University School of Law and is a retired Judge of New York State Court of Appeals. His books include The Eight: The Lemmon Slave Case and the Fight for Freedom (2023); Opening Statements: Law, Jurisprudence, and the Legacy of Dutch New York (2013, coedited with Julia C. Rosenblatt) and Judith S. Kaye in Her Own Words: Reflections on Life and the Law, with Selected Judicial Opinions and Articles (2019, coedited with Henry M. Greenberg, Luisa M. Kaye, and Marilyn Marcus), all published by SUNY Press

Dale's "Fight for Rights"

Forgive us, but we only recently became aware of Elizabeth Dale's "digital monograph," Fight for Rights: The Chicago 1919 Riots and the Struggle for Black Justice, a publication of LibraryPress@UF, an imprint of the UF Press and the George A. Smathers Library at the University of Florida:

This is a history of the fight for rights and citizenship undertaken by Black people in Chicago in that city’s first century. Covering the period from the 1830s to 1930s, this book looks at their successes and the forces that arose—in the streets, in city government, in the courts, and on the police force—to limit their extent. And it looks at how, and why, individuals and institutions attempted to justify those limits over time.

Fight for Rights is instructive not only on the Chicago riots but also as an example of a digital monograph and the publication initiatives of university libraries.

--Dan Ernst

George Washington Prize Finalists Announced

The finalists for the $50,000 George Washington Prize for 2024 are (in alphabetical order):

Michael A. Blaakman, Speculation Nation: Land Mania in the Revolutionary American Republic (Philadelphia: University of Pennsylvania Press, 2023)

Ned Blackhawk, The Rediscovery of America: Native Peoples and the Unmaking of U.S. History (New Haven: Yale University Press, 2023)

Cassandra A. Good, First Family: George Washington’s Heirs and the Making of America (Toronto, ON: Hanover Square Press, 2023)

Cynthia A. Kierner, The Tory’s Wife: A Woman and Her Family in Revolutionary America (Charlottesville: University of Virginia Press, 2023)

David Waldstreicher, The Odyssey of Phillis Wheatley: A Poet’s Journeys through American Slavery and Independence (New York: Farrar, Straus, and Giroux, 2023)

--Dan Ernst  H/t: AGR

Leuchtenburg’s "Patriot Presidents"

It is the publication date for William E. Leuchtenburg’s Patriot Presidents: From George Washington to John Quincy Adams (Oxford University Press):

The founding fathers of the United States created a unique institution, the presidency, as they were determined to authorize an effective chief executive but wary of monarchy. They endowed this office with broad prerogatives and power but hedged it in with limitations. The presidency that developed over the next generation, however, was fashioned less by the clauses in the Constitution than by the way that the first presidents responded to challenges such as sectional enmity and the vexing Napoleonic warfare that jeopardized maritime rights.

Patriot Presidents explores how the presidency took shape from the medley of clauses handed down to George Washington, who said, "I walk on untrodden ground," for virtually everything he did created a precedent. It then follows the overwhelming challenges faced by his successors, from the austere John Adams who spoke passionately in favor of a strong executive, to Thomas Jefferson, a zealous advocate of American liberties, to James Madison, the creator of the first political party, and James Monroe, whose Monroe Doctrine protected the sovereignty of the Western Hemisphere. It concludes with John Quincy Adams, who could be called the prophet of the expansive twentieth-century state of the Square Deal, the New Deal, the Fair Deal, and the Great Society.

The esteemed American historian William E. Leuchtenburg invites readers to revisit the years after the birth of the republic, when Americans could take pride in leaders of ideals, high competence, and integrity who headed their government--chief executives who, though not unflawed, had an abiding commitment to the success of the vulnerable government that had emerged from the revolutionary cause to which they had devoted themselves.

–Dan Ernst

Visiting Assistant Professor Job at Penn State

[We have the following announcement.  DRE]

The Richards Civil War Era Center and the Department of History at The Pennsylvania State University invites applications for a Visiting Assistant Professor in the field of U.S. History, with a connection to the study of the Civil War Era, beginning Fall 2024, with flexibility. The candidate will also serve as Assistant Director of the George and Ann Richards Civil War Era Center for the academic year.

This is a non-tenure-track, one-year term appointment, with the possibility of reappointment for a second year. This position will be filled at the rank of Assistant Teaching Professor.

Responsibilities for the History Department will include teaching Constitutional History. [Boldface supplied.] Responsibilities within the Richards Center include working closely with the Director of the Richards Center and Center staff to coordinate the Center’s various fellowships and internal programs.

Candidates for the Visiting Assistant Professor position must have a Ph.D. in History or a closely related field by the date of the appointment. The successful candidate will have a record of scholarly productivity, including either completion of an academic monograph or evidence a monograph is near completion; evidence of undergraduate-level teaching experience; and administrative experience or a demonstration of the potential for administrative leadership.

In addition, successful candidates must either have demonstrated a commitment to building an inclusive, equitable, and diverse campus community, or describe one or more ways they would envision doing so, given the opportunity.

To be considered for this position, applications must be submitted electronically and include a formal letter of application and a curriculum vitae. Applicants that move on in the search will be asked for letters of recommendation.

Review of applications will begin immediately and will continue until the position is filled. Questions about the position may be directed to the Chair of the Search Committee, Dr. Rachel Shelden, rshelden@psu.edu.

Visit our website for more details on the Center, and [here] for details on the History Department. Additional information on Penn State can be found [here].

Penn State is committed to and accountable for advancing diversity, equity, and inclusion in all of its forms. We embrace individual uniqueness, foster a culture of inclusion that supports both broad and specific diversity initiatives, leverage the educational and institutional benefits of diversity, and engage all individuals to help them thrive. We value inclusion as a core strength and an essential element of our public service mission.

Penn State offers competitive benefits to full-time employees, including medical, dental, vision, and retirement plans, in addition to 75% tuition discounts (including for a spouse and dependent children up to the age of 26) and paid holidays. Please visit [here] for more detailed information.

Weekend Roundup

• From Time's "Made by History" section" Anthony Lee Gregory, "Republicans’ Calls for ‘Law and Order’ Have Democratic Roots"; Alison Lefkovitz, "The Right Aims to Turn Back the Clock on American Divorce Law."
  

• Legal historian Danaya Wright is doing the Lord's work at the University of Florida (Alligator). 
  

• Legal historian Farah Peterson received the Pushcart Prize for her essay, “Alone with Kindred,” which first appeared in the Threepenny Review.  
  

• 
  We spotted two recent book reviews by Reuel Schiller, UC Law San Francisco.  First up is Schiller's Jotwell review of Margot Canaday's  Queer Career: Sexuality and Work in Modern America (2023)., entitled Liberation Without Law: Queer Workers and the Limits of Legal Liberalism.  Then there's From Binding Arbitration to Shareholder Activism: Labor History and the History of Modern Liberalism, his Reviews of American History essay on two books by masters of the history of American labor relations, Sanford M. Jacoby's Labor in the Age of Finance: Pensions, Politics, and Corporations from Deindustrialization to Dodd-Frank, and Ronald W. Schatz's The Labor Board Crew: Remaking Worker-Employer Relations from Pearl Harbor to the Reagan Era.
   
  

• Stephen Sedley reviews The Rise and Fall of Treason in English History by Allen D. Boyer and Mark Nicholls in the London Review of Books.  

• Jessica Lowe, University of Virginia School of Law, has posted her review essay on Gerald Leonard and Saul Cornell's The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders' Constitution, 1780s-1830s, which will appear in a symposium in Federal History.

• Over at Rechtsgeschiedenis Blog, Otto Vervaart on repetitiones, "a kind of special lectures by medieval professors on selected themes in Roman and canon law," in Early Modern editions of medieval legal treatises.
  

• Joan Howarth discusses the history of the bar exam in an episode of the ABA's The Modern Law Library devoted to her book, Shaping the Bar: The Future of Attorney Licensing.
  

• The National Constitution Center has posted a new podcast: Randy Barnett, Georgetown Law and the author of the memoir A Life for Liberty: The Making of an American Originalist, “joins Jeffrey Rosen to discuss his role in the evolution of originalism from a philosophy of judicial restraint to one of constitutional conservatism dedicated to restoring ‘the lost Constitution.’”
  

• The Oklahoma State Department of Education has issued its “Standards Guidelines for the upcoming 2024-2025 school year,” which are to be “immediate[ly] and complete[ly] implemented.  “This memorandum and the included standards must be provided to every teacher as well as providing a physical copy of the Bible, the United States Constitution, the Declaration of Independence, and the Ten Commandments as resources in every classroom in the school district. These documents are mandatory for the holistic education of students in Oklahoma.”  More.
  

• ICYMI: Daniel Rodgers, Nell Irvin Painter, Aziz Rana, and Abram Van Engen on President Biden's withdrawal from the presidential campaign (WaPo).  Michael McConnell discusses Trump v. United States with Pam Karlin (SLS).  Jay Rubenstein says that although the decision might put presidents above the law, kings never were (The Conversation).
  

• Update: Join Their "Quest for the Truth"?  The Hamilton Center for Classical and Civic Education at the University of Florida is hiring. 
  

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

Law and Humanities at University of London

[We have the following announcement.  DRE.]

The Institute of Advanced Legal Studies at the University of London has announced that legal historian Anat Rosenberg has been appointed their new Professor of Law and the Humanities. The full announcement is here.  The Institute has also published calls for PhD, Post-Doc and Early to Mid-career Researchers and Artists in Law and the Humanities for 2024-2025. The deadline for applications is September 8, 2024. Check out the calls here.

Fortin's "The King Can Do No Wrong"

Marie-France Fortin, Université d'Ottawa, has published The King Can Do No Wrong: Constitutional Fundamentals, Common Law History, and Crown Liability (Oxford University Press):

"The king can do no wrong" remains one of the most fundamental yet misunderstood tenets of the common law tradition. Confusion over the phrase's historical origins and differing meanings has had serious consequences, making it easier for the state to escape liability for the harm caused to individuals by governmental officials or institutions.

In the first dedicated monograph on the topic, Marie France-Fortin traces the historical evolution of 'the king can do no wrong' in constitutional and public law to shed new light on our current understanding of crown liability. The different meanings conveyed by the phrase in the common law world are clarified; the contradictions between them revealed. Adopting a historical constitutional approach, the book delves deep into traditional legal sources to develop an intellectual history of this key legal idea. It explains the mutation from "the king can do no wrong" to "the crown can do no wrong" at the end of the nineteenth century, analyzing the resulting departure from core tenets of the constitutional arrangement of the seventeenth century. The study of the evolution of "the king can do no wrong" in English legal thinking, mirrored in Canada, is complemented by a comparative analysis of the idea in Australia, Ireland, and the United States, where its relationship with the concept of sovereign immunity is scrutinized.

Retracing the evolution of the king can do no wrong in legal thinking, this book enhances academics', students', practitioners', and judges' understanding of the law of governmental liability in the common law world.

--Dan Ernst

CFP: Interdisciplinarity at AALS

In connection with the upcoming annual meeting of the Association of American Law Schools [open to law school faculty] we have the following call for papers:

AALS Section on Scholarship - Call For Papers, January 2025 AALS Annual Meeting

"Interdisciplinarity"

There was a time when law was thought to be a self-contained system. Conceptual analysis, it was believed, sufficed for legal progress. Generations of experience have taught us that this can no longer be the case. At many junctures, the law intersects with disciplines external to the law. Thus, for example, the United States Supreme Court has embarked upon an historical turn that implicates the work of trained historians. Similarly, textualism, whether concerned with the interpretation of constitutional documents, or contracts, or other legal instruments, benefits from insights drawn from literary criticism, or linguistics. Criminal law, with its emphasis on mens rea and capacity, raises questions that are often best answered by the field of neuroscience. We see as well increasing reliance on the tools of psychology in evaluating jurors, and in the conduct of litigation, whether in criminal or civil cases. The fields of torts, insurance law, and other legal specialties place ever greater reliance on economics. Legislative drafting, meanwhile, increasingly depends upon a whole array of disciplines, from statistics, to sociology, to the hard sciences. Data science, furthermore, promises to modify legal analysis in ways as yet only dimly appreciated. And finally, of course, philosophy provides a meta-critique of this rapidly evolving, complex thing we call "The Law."

This Call for Papers seeks contributions by scholars who wish to take a critical view of The Law, not as a self-contained body of rules, but as a complicated, immanent social reality that implicates the findings of a vast array of disciplines. How, in other words, can we synthesize these new interdisciplinary developments into a renewed description of what "The Law" is.

If you are interested, please submit a proposal, including a 200-300 word abstract by September 6, 2024. Please submit the proposal to Charles J. Reid, Jr., Professor of Law, University of St. Thomas (MN), cjreid@stthomas.edu. Thanks!

-- Karen Tani

Liu on the Mid-20th-Century Storm over Administrative Adjudication

Lawrence J. Liu, who received his JD in 2022 from the Yale Law School and is now a doctoral candidate in the Jurisprudence and Social Thought Program at the University of California, Berkeley School of Law, has posted Independence through Judicialization: The Politics Surrounding Administrative Adjudicators, 1929-1949, which is forthcoming in the Michigan Journal of Environmental and Administrative Law:

One front in today’s battle to define the scope of the administrative state concerns the authority, status, and future of its 10,000-plus administrative adjudicators. Decisions by federal courts and the executive branch to increase the dependence of administrative adjudicators on the executive have sparked strong reactions from observers, with many advocating for measures to increase adjudicator “independence.” But who should administrative adjudicators be independent of, which ought to be independent, and why?

Calls for administrative adjudicator independence are not new. This Article draws on primary documents produced by private actors, congressional decisionmakers, and federal executive agents to present a political legal history of legislative proposals between 1929 and 1949 to understand whether, how, and why different actors sought to insulate administrative adjudicators from their agencies or the President. Leading up to and following the enactment of the Administrative Procedure Act in 1946, politicians and interested citizens advanced proposals to increase the independence of the individuals who conducted hearings and served as factfinders in administrative agencies. Then, like now, observers debated administrative adjudicator independence in the context of discussions about the power of administrative agencies. The loudest supporters of independence were anti-New Dealers trying to halt and reverse the growth of administrative power, who were joined by a subset of legal professionals interested in using law to check its operation. These critics attempted to “judicialize” administrative adjudication by increasing the resemblance of administrative adjudicators to the federal judiciary.  
 
What does this history teach? First, it illustrates how actors past and present deploy seemingly apolitical terms like judicial values, independence, or administrative procedure to obtain substantive political ends. Indeed, such terms can take on different meanings at different times, perhaps varying with views of the federal judiciary and active government, the policies and political strength of the President, the issues decided by administrative agencies, or the types of claimants subject to adjudication. Second, it highlights how early supporters of administrative agencies emphasized the diversity among administrative adjudicators, while opponents grouped them together to collectively limit their authority. Today, rather than pursuing one-size-fits-all reforms, I suggest that different rules should apply to different administrative adjudicators depending on the questions and claimants involved. Decisions about ratemaking or regulatory enforcement differ from individualized determinations whether citizens qualify for government benefits or licenses. Claims by business interests might be treated differently from those by more vulnerable groups, such as disability-benefits recipients or noncitizens at risk of removal. In any event, when making policy recommendations, reformers should begin by understanding who administrative adjudicators are and the functions they perform, an understanding that also underscores whether and how politics should animate arguments about adjudicator independence.

--Dan Ernst

The Bible, the Founding, and Religious Mandates in Public Schools

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

History Behind the Headlines: The Role of the Bible in the Founding of the United States and Religious Mandates in Public Schools.  Friday, July 26, 2024, 12 p.m. ET

Recently, state authorities in Oklahoma, Texas, Louisiana, and Florida have made significant claims about the relationship between the Bible and the nation’s founding, and created curricular mandates based on these claims. In light of these events, the AHA will convene a conversation among scholars to discuss the evidence from the historical record, the questions that historians have asked about the relationship between religion and the Constitution, and the lessons resulting from decades of fruitful historical investigation. What should the public know about the relationship between the legal framework of the United States and the Christian Bible? How has this history been represented in public education in the past? And how can historians contribute to an informed understanding of the topic? Moderated by Jon Butler (Yale Univ.), this event features Holly Brewer (Univ. of Maryland), Heath Carter (Princeton Theological Sem.), and John Fea (Messiah Univ.).

This online event is free and open to the public; registration is required. Can’t make it? Sign up anyway and view the recording on the AHA's YouTube channel after the event.

Barrett on Frankfurter as Social Networker

John Q. Barrett, St. John's University School of Law, has posted Felix Frankfurter, Collector of People:

Felix Frankfurter (LC)

This essay is part of the Touro Law Review symposium issue, “The Life, Work & Legacy of Felix Frankfurter.” It grew out of Touro Law School’s April 19, 2023, Frankfurter conference, which was inspired by Brad Snyder’s publication of the biography Democratic Justice: Felix Frankfurter, the Supreme Court, and the Making of the Liberal Establishment.

This essay describes how Felix Frankfurter engaged, intensely, with people—they were the treasures that he hunted down, evaluated, and collected. It considers some of Frankfurter’s most treasured people. One group is people who made Frankfurter, including Henry L. Stimson, and Franklin D. Roosevelt. Another group is Justice Frankfurter’s three great U.S. Supreme Court colleagues: Justices Hugo L. Black, Robert H. Jackson, and William O. Douglas. A third group is biographers who Frankfurter admired and pushed: Harlan Buddington Phillips, Mark DeWolfe Howe, Jr., McGeorge Bundy, Alexander M. Bickel, Andrew L. Kaufman, and Philip B. Kurland.

Biographer Brad Snyder has, by himself collecting Frankfurter and portraying him so fully and so well, brought his people-collecting into focus. I hope that Snyder’s biography stimulates others to study Frankfurter, to recover his stolen papers, to write more about him, to publish more of his writings, and to live people-filled lives.

The Touro Law Review Frankfurter symposium issue includes, in addition to my essay, this superb content: an introduction by Rodger Citron, conference organizer; a keynote address by Frankfurter biographer Brad Snyder; and essays and articles by Judge Jed S. Rakoff, R.B. Bernstein, William E. Nelson, Helen J. Knowles-Gardner, and Dalia Tsuk.

--Dan Ernst

Sunday Roundup

• With unfortunate timeliness, the Historical Society of the District of Columbia Circuit has posted the recording of The Road to the Release of John Hinckley, a reenactment of the oral argument and panel discussion on attempted presidential assassination, insanity, commitment and the courts.  
  

• 

  Stephen Pollak (credit)
  

  Consider also viewing, on the DC Circuit Historical Society's website, the memorial service for Stephen J. Pollak, on whom, this.
  

• Aziz Rana on "The Constitution and the American Left" (Dissent).
  

• Kenneth Mack reviews Madiba K. Dennie's The Originalism Trap (WaPo).
  

• "Finding Law in the History of Global Violence: An Interview with Lauren Benton" (Toynbee Prize Foundation).
  

--Dan Ernst

 

Weekend Roundup

• 
  Thomas McSweeney, William & Mary Law, discusses his book, Priests of the Law, on the Ius Commune podcast.
  

• New on the Talking Legal History podcast, Siobhan M. M. Barco, interviews past ASLH president Michael Willrich, Brandeis University, on his book, American Anarchy, a finalist for the Pulitzer Prize in History.
  

• Alison LaCroix, University of Chicago, discusses her book, The Interbellum Constitution, on the History Unplugged podcast.
  

• Via JOTWELL: Ezra Rosser (American University) reviews Vanessa Ann Racehorse, "Tribal Health Self-Determination: The Role of Tribal Health Systems in Actualizing the Highest Attainable Standard of Health for American Indians and Alaska Natives," which is forthcoming in the Columbia Human Rights Law Review. The article includes a discussion of "the history of the legal framework for the federal government’s provision of health care in Indian Country."  
  

• The  FDR Library has posted to YouTube a recording of that book event on Diana B. Henriques’s Taming the Street: The Old Guard, the New Deal, and FDR's Fight to Regulate American Capitalism. 
  

• Just opened at the National Museum of American History: Forces for Change: Mary McLeod Bethune and Black Women’s Activism.
  

• Lawbook Exchange has posted its July 2024 catalogue of Scholarly Law & Legal History. Update: for more antiquarian books, check out the auction of the library of the now-defunct Birmingham-Southern College, including a bound report of Cherokee Nation v. Georgia.  H/t: GV.
  

• ICYMI: Zachary S. Price says “The President Has No Constitutional Power of Impoundment” .(Notice & Comment).  Someone at the New Yorker is reading past ASLH president Lauren Benton's They Called It Peace.
  

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

Blackhawk on American Indians and Japanese Internment

Maggie Blackhawk, New York University School of Law, has posted The Crisis in Colonial Administration: American Indians and Japanese Internment, which is forthcoming in the American Historical Review:

On March 24, 1943, Acting Secretary of the Department of the Interior, Abraham “Abe” Fortas, and Director of the War Relocation Authority (WRA), Dillon Myer, agreed to repurpose a former Indian boarding school into the primary prison for camps that interned over a hundred thousand individuals “of Japanese ancestry” during World War II.  Built in 1909 on the homelands of the Navajo Nation and only recently closed to students, the Leupp Training School offered the WRA a foundation upon which to construct a prison for the “aggravated troublemakers” in the ten internment camps.  These “aggravated troublemakers” were largely dissidents—individuals who challenged their detention and forced loyalty oaths through collective action like strikes and other uprisings; these individuals were imprisoned at Leupp without charges or trial, and some were transported to the prison in “coffin-like” four-foot-by-six-foot wooden boxes with a single air hole that only narrowly prevented suffocation during the thirteen-hour trip.

Located 30 miles away from its nearest town of Winslow, Arizona (population ca. 4,500), the Leupp Isolation Center imprisoned approximately 80 of the circa 120,000 Japanese and Japanese Americans detained by the United States—seemingly yet another drop of injustice in a wave of “morally repugnant” policy.  But the Leupp Isolation Center provides a particularly paradigmatic example of the central role of American colonialism in facilitating Japanese internment.  Few scholars to date have drawn connections between American colonialism, Native nations, and Japanese internment.  Even fewer scholars have unearthed the direct, enduring, and broad relationship between the federal government’s efforts to colonize Native people and its efforts to intern people of Japanese ancestry.  Initially, all ten Japanese relocation centers were sited to be built on Indian reservations, and Commissioner of Indian Affairs, John Collier, campaigned to head the project he described as “colonization of the Japanese,” including the administration of all camps he termed “colonies.”  Disputes over how much self-determination to foster at the camps disrupted those initial plans, however, and the agency created to oversee Japanese internment, the War Relocation Authority, cobbled together seasoned colonial administrators from the Indian Service and another, more top-down, colonial administration agency, the Soil Conservation Service.    

This Essay explores how the administrative agencies and actors who built and maintained American colonial projects across Indian Country turned these same tools toward the detention, internment, and incarceration of individuals with Japanese ancestry.  This history is necessarily one of administration—it finds continuities between federal administrative institutions, their officials, and the legal justifications they offered (or did not) in accomplishing their aims.  Disputes between administrative officials over how best to colonize Indian Country spilled over into disputes over how best to intern Japanese Americans and Japanese nationals.  These disputes, in turn, then impacted federal policy for Indian Country as these officials returned to the Indian Service following closure of the internment camps.  This history is a history of American colonialism writ large. It reveals the ways that the American colonial project was not tethered to particular populations (Indians) or contexts (Indian Country) but was instead an effort to build infrastructure—legal, constitutional, technological, bureaucratic—to govern a range of populations.

--Dan Ernst

Making Connections: New Works in Legal History Series

Making Connections: New Works in Legal History Series.  Sponsored by the American Society for Legal History.  Deadline for Applications: August 15, 2024
 
The ASLH "Making Connections: New Works in Legal History Series" is intended to foster conversation and connection beyond the annual meeting about exciting new work in the field of legal history or likely to be of interest to legal historians. The series is hosted by the ASLH Digital Initiatives Working Group.  Series Events this year will be 1 hour, 6-7 pm (Central) Wednesday evenings on Zoom.    

Event Structure:  Each event opens with a brief introduction by the author of their book or major article, followed by conversation between the author and an interlocutor of their choice, and closing with conversation with the audience.  There is no expectation that audience members have read the featured work; the format is structured with this in mind.

Eligibility:  Books or Articles published January 2023-December 2024
 
We encourage scholars at all career stages working in all geographic and chronological fields to apply as well as applications from international scholars.  We welcome applications for events featuring two books or articles in conversation, and events coordinated with another professional society. ASLH membership is encouraged, but not required to present.  Books featured on a panel at the Annual Meeting are not eligible. 

Applications:  (max. 1 page; 12 pt font)

• Book/Article Author, Title, Publisher (for articles, Journal title) and Publication date
• Book/Article Abstract (1 paragraph)
• Author Bio (1 paragraph)(including email)
• Interlocutor Bio (1 paragraph)(including email)

Please direct Questions & Submissions to: Barbara Welke, welke004@umn.edu

Mack on E. Frederic Morrow

Kenneth W. Mack, Harvard Law School, has posted E. Frederic Morrow and the Historical Time of the Civil Rights Movement:

E. Frederic Morrow, between King & Ike (LC)

This article considers the life and career of E. Fredrick Morrow, the first African American White House staffer, whose government service in the Eisenhower White House (1955-61) intersected with the classical phase of the civil rights movement.  It argues that Morrow’s life and career illustrate an important problem with what it calls “historical time.”  Historical time can be defined this way: it is the order of events and the causal forces that historians use to make sense of and organize their narratives and analyses.  Morrow’s life and career illustrate the complex nature of historical time as it pertains to the events with which his life intersected.  He was an important figure in Black Republican politics during the early to mid twentieth century.  He was an equally important figure at the NAACP, and was an important voice in the organization’s leadership as it was debating its future strategy in the early 1940s.  He earned a law degree, but surprisingly chose to burn his bridges as he left the NAACP just before its lawyers were about to begin work on the cases that would comprise Brown v. Board of Education.  Morrow’s life and career, this article contends, help us make sense of these decisions as illustrations of the difficulty of constructing and narrating historical time, particularly as it relates to the civil rights movement.  Indeed, this article contends, historical time helps make sense not only of Morrow’s life but also of the choices and uncertainties that beset mid-twentieth century figures such as Thurgood Marshall and Rev. Martin Luther King, Jr., who acted, planned and promised in a world in which much of the narrative that is now taken for granted concerning civil rights at mid century remained deeply contested and uncertain.

--Dan Ernst

Family and Justice in the Archives

Just published: Family and Justice in the Archives: Historical Perspectives on Intimacy and the Law, edited by Peter Gossage and Lisa Moore (Concordia University Press):

Legal archives offer extraordinary opportunities for understanding intimacies across time and space. Family and Justice in the Archives presents a series of fascinating historical essays that unpack stories of familial, domestic, and sexual intimacy from the records left behind by legal processes, providing rich new insights about family, gender, race, sex, culture, identity, and daily life.

Contributors examine the written traces left by public proceedings that occurred in legally sanctioned spaces of social regulation, from notaries’ offices to criminal and civil courtrooms to legislatures. Focusing on the past two centuries and spanning five continents, the essays explore a wide range of topics including marriage, citizenship, inheritance, indentured servitude, infanticide, juvenile justice, parental abuse, bigamy, and sex work. Mindful of the ethical questions that arise when scrutinizing the details of people’s most vulnerable moments, these authors also demonstrate how individuals navigated and sometimes challenged legal prescriptions and processes to address systemic imbalances of power.

Family and Justice in the Archives reveals the wealth of detail that emerges from a close reading of documents generated by legal processes in the past, offering valuable new perspectives on the complex personal lives of so-called ordinary people in former times.

Here is an endorsement:

“This is a strong collection focusing on intimacy, affect, and emotion as viewed through legal archives. The individual stories told by the authors of Family and Justice in the Archives are compelling, moving, and often tragic. The glimpses and contexts of intimacy that they uncover constitute a major strength and unifying force in the collection. And, the narrative approach, based most often around the histories of specific individuals or kinds of court cases, not only unites the chapters but also makes the issues accessible to a wide audience.” —Bettina Bradbury, professor emeritus of history, York University, adjunct professor, Victoria University Wellington, New Zealand

--Dan Ernst

Montalvo's "Enslaved Archives"

Maria R. Montalvo, Emory University has published Enslaved Archives: Slavery, Law, and the Production of the Past:

It is extraordinarily difficult for historians to reconstruct the lives of individual enslaved people. Records—where they exist—are often fragmentary, biased, or untrue. In Enslaved Archives, Maria R. Montalvo investigates the legal records, including contracts and court records, that American antebellum enslavers produced and preserved to illuminate enslavers' capitalistic motivations for shaping the histories of enslaved people. The documentary archive was not simply a by-product of the business of slavery, but also a necessary tool that enslavers used to exploit the people they enslaved.

Building on Montalvo's analysis of more than 18,000 sets of court records, Enslaved Archives is a close study of what we can and cannot learn about enslaved individuals from the written record. By examining five lawsuits in Louisiana, Montalvo deconstructs enslavers' cases—the legal arguments and rhetorical strategies they used to produce information and shape perceptions of enslaved people. Commodifying enslaved people was not simply a matter of effectively exploiting their labor. Enslavers also needed to control information about those people. Enslavers' narratives—carefully manipulated, prone to omissions, and sometimes false—often survive as the only account of an enslaved individual's life.

In working to historicize the people at the center of enslavers' manipulations, Montalvo outlines the possibilities and limits of the archive, providing a glimpse of the historical and contemporary consequences of commodification. Enslaved Archives makes a significant intervention in the history of enslaved people, legal history, and the history of slavery and capitalism by adding a qualitative dimension to the analysis of how enslavers created and maintained power.

 --Dan Ernst

Wiebolt on Jesuits and the Neo-Scholastic Revival

 Dennis J. Wieboldt III, has posted a forthcoming article in the Journal of Law and Religion, The “Crusading Fanatics” of American Law: American Jesuits and the Origins of the Neo-Scholastic Legal Revival, 1870-1960:

Francis E. Lucey, SJ (GULC)

During the early twentieth century, Ivy League legal scholars developed a positivist jurisprudential method known as Legal Realism. Concerned with the law's relationship to social conditions, Realism methodologically triumphed in the elite legal academy and brought to a close what the legal historian Stuart Banner has recently described as the "decline of natural law" in American jurisprudence. Catholic legal scholars in the United States responded to this "decline" by invoking the natural law philosophy of Thomas Aquinas and his (Neo-)Scholastic disciples, arguing that Realism irredeemably divorced law and morality. In so doing, these scholars effectively inaugurated the (Neo-)Scholastic Legal Revival, a decades-long period of debate between Catholic natural lawyers and their positivist contemporaries about the American legal tradition's inextricability from natural law. To understand the history and significance of this debate, this article uncovers the origins of the (Neo-)Scholastic Legal Revival in particular features of nineteenth-century European Catholic intellectual culture that were transmitted to the United States through the Society of Jesus the world's largest Catholic religious order. In concluding, this article examines the lives and legacies of two American Jesuits who became leaders of the (Neo-)Scholastic Legal Revival and who thereby illustrate how recovering the Revival's forgotten history can enrich scholars' understanding of this important period in American legal history.

--Dan Ernst

Sunday Roundup

• 
  A notice on the retirement of the legal historian Daniel R. Coquillette (BC Law).
  

• Alison LaCroix discusses The Interbellum Constitution on  the Groks Science Podcast.
  

• Carl Schmitt, "The Nazi Jurist Who Haunts Our Broken Politics" (NYT).
  

• Update: In the National Constitution Center’s We the People podcast series, Sai Prakash, University of Virginia Law School, and Michael McConnell, Stanford Law School, discuss the history of presidential power and immunity from the founding to present day, and whether the Court’s decision comports with the original understanding of the Constitution.
  

--Dan Ernst

Weekend Roundup

• The Brennan Center has posted in its podcast series a recording of "Supreme Fact Check," an event from October 2023,  moderated by Adam Serwer of The Atlantic, in which Karen Tani, Kate Masur, and Laura Edwards discuss the Supreme Court’s use of history (Brennan Center Live). 
  

• 
  Diana B. Henriques will discuss her book, Taming the Street: The Old Guard, the New Deal, and FDR's Fight to Regulate American Capitalism, over the FDR Library’s YouTube and Facebook pages on Wednesday, July 17, at 2pm ET.  I’ve been reading it this summer and appreciating how Henriques' experience as a financial journalist provides a fresh perspective on familiar landmarks of securities regulation in the New Deal.  The chapters on the fall of Richard Whitney are page-turners.  DRE
  

• Holly Brewer says "The Case for Expanding the Supreme Court Has Never Been Stronger" (TNR).
  

• Aziz Rana discusses The Constitutional Bind in The Nation's podcast, American Prestige.  A DSA review of the book is here.
  

• A notice of past-ASLH president Lauren Benton’s They Called It Peace: Worlds of Imperial Violence (Yale News).

• ICYMI:  Kenneth W. Mack on Trump 2025 and the Civil War (NYT).  Richard Re compares the Roberts and Warren Courts (WaPo). Patrick O'Donnell on the fall of Weimar Germany as historical precedent.
  

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

Wieboldt on Boston's Red Mass

Dennis J. Wieboldt III has posted Natural Law Appeals as Method of American-Catholic Reconciliation: Catholic Legal Thought and the Red Mass in Boston, 1941-1944, which appeared in U.S. Catholic Historian:

Thomas Aquinas (NYPL)

Amid the Second World War, the Boston College Law School and the Archdiocese of Boston co-sponsored the first Red Mass in New England. Though this liturgy had been celebrated for centuries to invoke divine guidance for legal administrators, the Red Mass tradition emerged in Boston during a particular American Catholic intellectual movement. This movement encouraged Catholic and non-Catholic legal practitioners to predicate their understandings of the American legal tradition on the Natural Law philosophy of Thomas Aquinas and, purportedly, the Founding Fathers. By employing the movement's intellectual resources during Red Mass sermons, Boston's Catholic leaders believed they could demonstrate the philosophical Americanness of U.S. Catholicism. Chiefly responsible for the Red Mass tradition's emergence and sustained influence in Boston was Father William J. Kenealy, S.J., Boston College Law School's dean (1939-1956). The history of the first four Red Masses in Boston suggests that the experience of wartime significantly informed Catholic leaders' postwar conviction that appealing to the Natural Law could offer an effective medium for American-Catholic reconciliation.

As Edward Purcell demonstrated in the Crisis of Democratic Theory and I discovered when I wrote a history of Georgetown Law that covered the same period, how Catholics invoked Natural Law to argue that they belonged in the United States during the years when the nation's exceptionalism was a fighting faith is fascinating.  The story Wieboldt recounts is news to me, and it might provide clues to the thinking of at least some of the Catholics justices on today's Supreme Court.

--Dan Ernst

The History Behind Rahimi

[We have the following announcement from the National Association of Women Lawyers of the first of a two-part series of podcasts, The History Behind U.S. v. Rahimi.  DRE.]

Join NAWL Advocacy Committee Members, Siobhan Barco, Princeton PhD Candidate, and Nicolette Sullivan, Milbank LLP Associate, as they interview a distinguished panel of historians and advocates for freedom from gender-based violence, including, Laura Edwards, Class of 1921 Bicentennial Professor in the History of American Law and Liberty in the History Department at Princeton University, Sara Mayeux, Associate Professor of Law and History at Vanderbilt University, and Margaret Drew, Associate Professor at UMass Law School. This episode kicks off a compelling two-part series exploring the historical context surrounding the Supreme Court case, U.S. v. Rahimi.

Please note that this episode was recorded before the Supreme Court decision was issued in this case. NAWL strongly supports the Supreme Court's decision in U.S. v. Rahimi, upholding federal restrictions preventing those under domestic violence restraining orders from possessing firearms. This ruling reaffirms critical protections against gun violence, particularly for individuals at heightened risk in domestic abuse situations. NAWL remains committed to advocating for policies against gender-based violence recognizing that gender equality cannot be achieved without freedom from gender-based violence.

Lanham on "How W.E.B. Du Bois and the Black Antiwar Movement Reimagined Civil Rights and the Laws of War and Peace"

Andrew Lanham (University of Houston Law Center) has posted "How W.E.B. Du Bois and the Black Antiwar Movement Reimagined Civil Rights and the Laws of War and Peace." The article appears in Volume 99 of the Washington Law Review (2024). The abstract:

This Article reconstructs the history of Black antiwar activism in the twentieth-century United States and argues that Black antiwar activists played a significant but largely forgotten role in the development of both modern civil rights law and the international law of war and peace. The Article focuses on the career of W.E.B. Du Bois, tracing how he built coalitions between civil rights and antiwar organizations to pursue a series of shared legal campaigns. Du Bois’s antiwar work was also representative of a larger tradition, and his career illuminates how a range of Black activists and civil rights lawyers like Pauli Murray, Prentice Thomas, Ella Baker, and Martin Luther King, Jr. creatively merged civil rights and antiwar protest.

These activists redefined the very idea of peace, as both a legal and a political category, to include racial equality. As a result of that conceptual shift, they also advocated for a much richer set of legal proposals to regulate warfare. While mainstream white peace activists and international lawyers in the first half of the twentieth century emphasized a formalistic legal ban on war, Du Bois and other Black activists consistently pursued a much more radical set of structural interventions in the socio-economic system that they believed would, functionally, help to prevent war. Their proposed interventions included global decolonization, economic redistribution, and equal civil, political, and socio-economic rights, which they saw as the path to lasting peace.

This Article recovers the legal and intellectual history of that more radical vision for the law of peace. It shows how a “long antiwar movement” collaborated with the better-known “long civil rights movement” across the twentieth century, and it traces how those collaborations helped remake civil rights and global governance. The Article then explores the normative lessons this history holds for vital debates today about movement building, movement lawyering, and the best legal tools to secure racial equality and constrain the use of military force.

The full article is available here.

-- Karen Tani

Weekend Roundup

• Over at Balkinization: Reva Siegel (Yale Law School) and Mary Ziegler (UC Davis) on "Moyle and Abortion’s New Criminalization—A History-And-Tradition Right to Healthcare Access After Dobbs" (recapping findings from a recently posted paper on this topic). 

• Also at Balkinization: an ongoing symposium on Mark Graber's Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University Press of Kansas, 2023). So far, you'll see posts by Evan Bernick (Northern Illinois University College of Law), Rebecca Zietlow (University of Toledo College of Law), Alexander Tsesis (Florida State University College of Law), Travis Crum (Washington University in St. Louis Law), Stephen Griffin (Tulane  Law), and Rogers Smith (University of Pennsylvania).
  

• The Brennan Center reviews its Historians' Briefs in the U.S. Supreme Court in the October 2023 term.
  

• 
  The July Newsletter of the Historical Society of the District of Columbia Circuit is here.  It features the 1859 trial of Daniel Sickles.

• The American Historical Association is presenting a Congressional Briefing to provide historical perspectives on the role of the federal government on issues of academic freedom in higher education. The briefing will take place on Thursday, July 11 at 9:00 a.m. ET in Rayburn House Office Building Room 2075.  David A. Bell (Princeton Univ.), Natalia Mehlman Petrzela (New School), and David M. Rabban (Univ. of Texas School of Law) will present.  James Grossman (American Historical Association) will moderate.

• This panel on Loper-Bright, convened by Neysun Mahboubi and including Cary Coglianese, Emily Bremer, Bridget Dooling, Michael Herz, and Kristin Hickman, sounds in administrative law,  but I found it extremely helpful and thought-provoking about the history of the subject.  DRE 
  

• ICYMI: Holly Brewer says The Supreme Court Turns the President Into a King  (New Republic).  The Court Went Too Far on Presidential Immunity (Cato Institute). The Supreme Court’s immunity ruling has a chilling parallel to the Jim Crow era (MSNBC). The Dred Scott of Our Time, says Sean Wilentz (NYRB). Alison LaCroix interviewed on a podcast on The Exoneration of Richard Nixon (Landslide).  Heather Cox Richardson weighs in (PBS Newshour).  Georgia in the house at the Founding (Atlanta History Center).  Steven K. Green, Willamette University, How Jefferson and Madison's partnership shaped America's separation of church and state (Akron Legal News).
  

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