NCC Town Halls Announced

The National Constitution Center has announced several interesting online and in-person Town Halls, including:
    
The Future of Birthright Citizenship: A Constitutional Debate, on Thursday, April 24 at Noon ET

President Donald Trump’s executive order seeking to end birthright citizenship has reignited debates over the 14th Amendment and the meaning of citizenship in America. Join legal experts Amanda Frost of the University of Virginia School of Law, Kurt Lash of the University of Richmond School of Law, Ilan Wurman of the University of Minnesota Law School, and John Yoo of the University of California, Berkeley School of Law as they analyze the legal challenges surrounding birthright citizenship, explore the constitutional and historical arguments on all sides of this debate, and discuss its broader implications for immigration. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. 

Democracy in France and America With Justice Stephen Breyer and Christiane Taubira, on Thursday, May 15 at 6:30 p.m. ET

The Honorable Stephen G. Breyer, associate justice of the U.S. Supreme Court (ret.) and National Constitution Center honorary co-chair, joins Christiane Taubira, former French justice minister, for a conversation on democracy, the rule of law, and constitutional traditions from French and American perspectives. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. 

Executive Authority: Presidential Power From America’s Founding to Today, on Tuesday, June 3 at Noon ET

Legal scholars Gillian Metzger of Columbia Law School and Saikrishna Prakash of the University of Virginia School of Law examine the founders’ vision for the presidency, how presidential power has changed over time, and the key constitutional debates that have shaped the modern presidency. The discussion will also explore how the Trump presidency fits within this historical context and what it means for the future of presidential power. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.

The Story of the U.S. Constitution: Past and Present, on Monday, June 23 at 6:30 p.m. ET

This program is presented in partnership with the Sandra Day O’Connor Institute and the Organization of American Historians.  Akhil Reed Amar and David Blight of Yale University join National Constitution Center President Jeffrey Rosen for a sweeping conversation about the Constitution and the debates that have shaped America—from the founding era to today. They’ll examine transformative moments in American history and landmark Supreme Court decisions.

--Dan Ernst

Kim on Australia's Procedure Act of 1854

David Kim, of the Australian law firm Banki Haddock Fiora, has posted “A Turbid Admixture”: The Long Shadow of the Common Law Procedure Act 1854, which appeared in the Adelaide Law Review:

The innovations of the pre-judicature period continue to haunt us. In the 1850s, in response to agitation for procedural fusion, reforms were introduced to allow for the grafting of equitable remedies onto common law courts and vice versa. This well-intentioned blending of jurisdiction spawned two novel remedies that are with us to this day: equitable damages and the lesser known 'common law injunction'. This article explores the Australian jurisprudence that has coalesced around the common law injunction and surveys the difficult theoretical problems that come to the fore when attempting to define its nature and scope.

--Dan Ernst

Savarese on Parents' Habeas Suits in Late 19th-century United States

Laura Savarese, Michigan State University, has posted The Origins of Family Rights and Family Regulation: A Dual Legal History, which is forthcoming in the Stanford Law Review:

The history of the state’s intrusions on the rights of marginalized parents has become central to today’s critical accounts of American family law and family courts, and rightly so. Missing from the conversation, however, is a full account of how those rights first entered the law, and how the state assumed its now-familiar, though often unfulfilled, obligation to afford due process to the parents and children it separates.

This Article is the first to locate that transformation in a now-forgotten wave of habeas litigation brought by parents seeking their children’s return from orphan asylums and juvenile reformatories—the institutions that comprised the nascent child welfare and juvenile justice systems in the late nineteenth century. Those conflicts are visible in archival sources and a set of state court cases that have not received systematic study. Drawing on those sources, this Article argues that modern understandings of the right to family integrity were forged through legal challenges to the state’s growing power to remove children from their parents, in the name of child welfare, from the Civil War through the Progressive Era. Parents, as habeas petitioners, pushed courts to recognize and enforce their rights to notice and an opportunity to be heard, to draw a distinction between child neglect and family poverty, and to affirm parents’ right to regain custody after they remedied the reasons for children’s removal—establishing the core legal principles that delimit the state’s power today.

Recapturing the story of resistance to the family regulation system, at its inception, offers insights for today’s efforts to transform or dismantle that system, and deepens our understanding of the genesis and function of constitutional family rights. Critically, recovering this line of cases provides a more complete account of the history and tradition in which substantive due process protections for family autonomy are rooted. This account also lends support to more ambitious conceptions of the right to family integrity, advocated today, as a tool for expanding legal protections against family separations and terminations of parental rights, as well as affirmative entitlements to state assistance for childrearing. At the same time, the records of parents’ legal challenges offer a warning about the limits of procedural rights and litigation as means of advancing parents and children’s interests, absent a more radical redistribution of public resources to meet families’ material needs.

--Dan Ernst

Fisher and Shapiro on Storytelling, Rulemaking and Agency Expertise

Elizabeth C. Fisher, University of Oxford Faculty of Law, and Sidney A. Shapiro, Wake Forest University School of Law, have posted Storytelling, Rulemaking, and the Expertise of Administrative Agencies.  The paper describes and categorizes comments from the records of twenty-five recent rulemakings by twenty agencies, as well as ten dockets from the years 1974-1992.

For ill or good, the world is full of stories. Given the political stories being used to deconstruct the administrative state, it is easy to be cynical about stories and to discourage their use. But humans are story telling animals. Administrative lawyers need to be cognizant of that fact, and craft their understanding of administrative competence considering it. In this groundbreaking survey of stories in rulemaking comments we show how many different types of commenters are telling stories for a variety of reasons. These stories differ in scale and focus, and in their value to the rulemaking processa fact that underscores that stories need to be evaluated. Given that stories are how humans structure reality, build social relations, and persuade each other this is inevitable. As is the way in which humans have developed the capacity to evaluate stories. But administrative lawyers have failed to pay attention to stories and thus have missed the opportunities to encourage a more enlightened approach to thinking about rulemaking and administrative expertise. Such an enlightened approach matters now more than ever.

--Dan Ernst

A Month of Blogging About We the Men

I have really enjoyed writing about We the Men during my month as a guest blogger.

Here are links to my posts, in case you missed them the first time:

We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality

Forgotten Women and Men’s Spontaneous Enlightenment 

Self-Contradictory Victory Announcements

The Unfinished Battle for the ERA 

My website has additional information about the book.  Follow me on Bluesky for more feminist energy in anti-feminist times.

Happy Women’s History Month!

Lupu Remembers Steinem at the HLR Banquet

Ira C. Lupu, George Washington University Law School, has posted Gloria Steinem at the Harvard Law Review Banquet, which appeared in the Green Bag:

In the Spring of 1971, Gloria Steinem became the first woman to be the keynote speaker at the prestigious annual banquet of the Harvard Law Review. At that time, as an editor of the Review, I played an instigating part in the process that led to this controversial invitation. I attended the Banquet, and I paid close attention to the speech and its aftermath. In 1998, I decided to memorialize that experience in this essay, which frames the event in its cultural and political context – the rise of feminism, the Vietnam War, and American student radicalism, among other phenomena. In her book My Life on the Road (2015), Ms. Steinem draws explicitly from details in the essay in describing her experience at the Banquet.

--Dan Ernst

Weekend Roundup

• Lukasz Korporwicz, associate professor in the Department of Roman Law and vice dean for research at the University of Lodz in Poland, will speak on “Sophisticated Legal Tradition? On the Relation Between Common, Canon and Civil Law Once Again” at 7 p.m. on April 3 in the Thunder Room in the Jack B. Kelley Student Center on West Texas A&M’s Canyon campus. 
  

• Hidetaka Hirota and Kevin Kenny will discuss the history of state immigration control and the first deportations of immigrants in “Receiving the Irish,” a YouTube Live presentation, sponsored by the Tenement Museum, on Monday, March 31,  6:30PM - 7:30PM ET.
  

• The testimony of Amanda Frost at the congressional hearing "'Subject to the Jurisdiction Thereof': Birthright Citizenship and the Fourteenth Amendment," on February 25, 2025 (SSRN).

• In the Berkeley Talks podcast series, "UC Berkeley Law Dean Erwin Chemerinsky and Brian Fitzpatrick, the Milton R. Underwood Chair in Free Enterprise at Vanderbilt Law School . . . debate the merits of originalism in constitutional interpretation."
  

• A report of a session at the American Judges Education Institute summit devoted to The Collective-Action Constitution by Neil Siegel, Duke Law School (ABA).

• "Restoring Truth and Sanity to American History" is an Executive Order issued on March 27 that instructs the Smithsonian to purge itself of "improper ideology" and directs the Secretary of the Interior to ensure that memorials and monuments within his department's jurisdiction do not "inappropriately disparage Americans past or living (including persons living in colonial times), and instead focus on the greatness of the achievements and progress of the American people." 
  

• Okay, then how about restoring Sojourner Truth and the greatness of her achievements?  An "episode of A New York Minute in History podcast commemorates Women’s History Month by uncovering the groundbreaking 1828 court case of Sojourner Truth, a self-emancipated Black woman who took on a white slave owner to free her young son from slavery in the South" (New York Almanack).

• Legal historians Michael Klarman, Jed Shugerman et al. discussed Trump v. United States at HLS recently (Harvard Crimson). 
  

• A notice of Cheryl Harris’s Mathew O. Tobriner Memorial Lecture, the keynote for the Racial Capitalism Symposium at UC Law San Francisco held on February 7 (UC Law SF).

• LHB Guest Blogger Jill Hasday is in conversation with June Carbone on Professor Hasday's book We the Men at Magers & Quinn Booksellers in Minneapolis on Monday, April 7, at 7pm CDT.

• 

  Florence E. Allen (LC)

  ICYMI: Clay Risen reminds us that before Mahmoud Khalil, there was Harry Bridges (Bulwark).  Also that Arnold, Fortas & Porter stood up to McCarthyism (Politico).  The United States approaches its "Andrew Jackson Moment" (The Conversation).  That oral history project for government employees who lost their jobs (WaPo).  A profile of federal judge Florence Allen (at right) (CNO). Ezekiel Gillespie, a 19th-century civil rights pioneer (Milwaukee Independent).

• Update: Legal historians of the administrative state will want to view the recording of the recent on-line symposium, How is Trump 2.0 Reshaping the Administrative State? convened by Penn's Neysun Mahboubi.  Participants include Columbia's Gillian Metzger, whose 2017 HLR Foreword compared today's "anti-administrativism" with that of the 1930s.

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

CFP: New Directions in the Legal History of the Civil War Era

[Via H-Law, we have the following CFP.  DRE.]

Call for Papers: 2025 Conference on the Civil War/Porter Fortune Symposium:

New Directions in the Legal History of the Civil War Era

The Center for Civil War Research and the History Department at the University of Mississippi seek papers for the 2025 Conference on the Civil War, to be held October 16-18, 2025, in Oxford, Mississippi.

The conference features a keynote address by Ariela Gross (UCLA) and a special roundtable with Cynthia Nicoletti (UVA),  Gautham Rao (American University), and Anne Twitty (Stanford University).

The mid-19th century saw a revolution not only in the written laws and constitutions that governed Americans, but in the ways in which Americans interacted with those laws and the people who administered them. The laws governing slavery and those emerging from it first tore the nation apart then posed significant challenges to its reconstruction. Americans likewise confronted severe legal questions as they prosecuted a cataclysmic conflict, one that brought the state and its armed forces into intimate contact with civilians of all stripes. Meanwhile, the changing ways in which Americans worked, moved, and understood their place in the world required fundamental reconsiderations of their relationships to government, capital, and one another–all of which necessarily involved the law.

This conference seeks to build on the work of historians who have begun critical re-evaluations of the legal history of the Civil War era. Papers may represent traditional legal histories, as well as military, social, and cultural histories demonstrating Americans’ encounters with the law. We welcome individual papers or full panel proposals exploring topics including, but not limited to:

• The law and slavery in the United States
• Efforts at or movements for legal and constitutional reform
• Women, gender, and the law
  
• Legal and political culture
• The laws of war
• Labor, capital, and the law
• The law and Reconstruction

Interested participants should submit a paper title, 250-word abstract, and one-page CV to civilwar@olemiss.edu by Friday, June 6, 2025. Panel proposals should include a CV and abstract for each participant; a commenter and/or chair is not required. The Center for Civil War Research offers stipends to offset costs for presenters lacking institutional travel support.

AHA Briefing: The Federal Civil Service

[We have the following announcement.  DRE]

The American Historical Association invites you to attend a Congressional Briefing offering historical perspectives on the federal civil service. The briefing will take place on Monday, April 7, at 9:00 a.m. ET in Rayburn House Office Building Room 2075. 

Panelists Joseph A. McCartin (Georgetown Univ.), Margaret Rung (Roosevelt Univ.), and Eric S. Yellin (Univ. of Richmond) will discuss how the federal government’s bureaucracy has evolved over time, including who has been eligible for federal employment, significant legislation concerning federal employment, processes of federal hiring and how they have changed over time, and the role of unions. The AHA's James Grossman will moderate.

The event is 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.

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.

Pfander and Zakowski on Non-Party Relief in the Early Republic

James E. Pfander and Mary Zakowski, Northwestern University Pritzker School of Law, have published Non-Party Protective Relief in the Early Republic: Judicial Power to Annul Letters Patent, which is forthcoming in the Northwestern University Law Review:

Much of the debate over the constitutionality of universal or non-party protective relief in the federal court system has focused on lessons drawn from historical practice.  But with its emphasis on injunctive relief, the literature has largely ignored forms of adjudication that arose outside the courts of equity and led to judgments and decrees affecting the rights of non-parties. As a result, the story of non-party protective relief has not yet been fully told.

This Article offers a more complete story, highlighting a range of proceedings in which federal courts issued judgments that settled a matter once and for all and operated on all the world. Some familiar examples include proceedings in admiralty, where a decree could settle title conclusively and operate on those who did not appear in the litigation.  Less familiar examples include naturalization judgments, which conferred the status of citizenship on an individual once and for all.  We focus here on yet a third example:  the power of federal courts, acting under the patent laws of the 1790s, to entertain individual suits to cancel or annul a patent for all purposes. Such cancellation proceedings, based on a practice that developed in England on the writ of scire facias, were understood to operate as a general matter and could confer benefits on artisans and manufacturers who did not appear in the litigation. Patent cancellation remains a part of the federal judicial role today.

History suggests, then, that federal courts were understood to have power, when so authorized by Congress, to issue decrees that settled matters conclusively and therefore conferred burdens or benefits on non-parties.  Over the nineteenth century, the patent cancellation power migrated to federal courts of equity, resulting in decrees that prohibited patent owners from asserting claims against non-parties. These early examples of non-party protection make it challenging to argue on historical grounds that Article III of the Constitution bars federal courts from granting such relief today.  In a brief concluding section, we suggest that assessments of non-party protective relief should focus instead on congressional authority; such a focus could help distinguish universal injunctions in general from the set-aside power conferred in section 706 of the Administrative Procedure Act.

--Dan Ernst

Ruskola on the Making of the Chinese Working Class

Teemu Ruskola, University of Pennsylvania Carey Law School, has posted The Making of The Chinese Working Class, which is forthcoming in the New Left Review.

This essay, forthcoming in the New Left Review, is an advance excerpt from a book entitled The Unmaking of the Chinese Working Class: The Global Limits of Capitalism, to be published by Verso Books in 2026. The title of the essay is a deliberate nod to E.P. Thompson’s classic The Making of the English Working Class. The English working class constituted the paradigmatic proletariat in the initial stages of industrial capitalism in the West. It provides an ideal lens for examining the emergence of another proletariat of global significance on the opposite edge of the Eurasian landmass, one that is emblematic of capitalism’s latest stage.

Thompson framed his analysis in terms of the Enclosure Movement, which expropriated peasants of their land and left them with no option but to sell their labor. In China, too, there is occurring a similar dispossession of peasantry that is sometimes described as a New Enclosure Movement. However, the two enclosure movements differ notably in their temporal and spatial scope.  First, processes that took place over a period of several centuries in England are being telescoped into just three decades in China.  Second, they are taking place in the opposite order:  the initial commodification of industrial labor in the 1990s was accompanied by a seemingly inexhaustible stream of migrant laborers into cities even without the large-scale commodification of rural land.  Why, then, dispossess a peasantry that has already submitted to capital voluntarily, i.e., under economic duress without the need to resort to forcible dislocation?  This essay, and the book of which it is a part, address this question by focusing on distinctive forms of ownership of rural and urban land in China—a legal distinction that has no precedent in Chinese history, Marxian thought, or Soviet praxis.

--Dan Ernst

The Unfinished Battle for the ERA

My new book, We the Men, concludes by exploring how Americans can learn from the past to change the future.  The long history of women’s struggles for equality in the United States makes clear that real progress has always required women to challenge prevailing certainties, advance uncomfortable demands, and confront powerful opponents.

I argue that America needs more conflict over women’s status rather than less.  Conflict can generate change.  Patiently awaiting men’s spontaneous enlightenment will not.

The last part of the book highlights some of the unwon battles that need fighting, or continued fighting, to push progress forward—now and over the long haul.  This unfinished reform agenda spans teaching, commemoration, political representation, legislation, litigation, and everyday life.

In this post, I will focus on the unfinished battle for the Equal Rights Amendment.  The required thirty-eight states have ratified the ERA, but the last three ratifications came decades after the expiration of the seven-year ratification deadline that Congress inserted into the 1972 joint resolution sending the ERA to the states. 

The crucial next step is to push Congress to embrace the ERA’s declaration that: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.”  Federal lawmakers should either directly recognize the ERA as part of the Constitution, remove the ratification deadline, or—ideally—both. 

Such congressional endorsement would make it more difficult for the Supreme Court to resist the conclusion that the ERA’s ratification is complete.  The Court has never denied recognition to a constitutional amendment that Congress accepts.

Even so close to the finish line, fighting for the ERA remains arduous.  Continued opposition to the ERA in Congress fits within a long history of vehement resistance to expanding women’s rights and roles.  The stakes are high.

Most broadly, the ERA could help transform how powerful and ordinary Americans understand the relationship between women and the Constitution.  Generations of legal authorities have excluded women from the center of constitutional law.  Indeed, Justice Antonin Scalia argued in 2011 that the Constitution does not prohibit sex discrimination at all because: “Nobody ever thought that that’s what it meant.  Nobody ever voted for that.  If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”  Scalia added: “That’s what democracy is all about.”

This was never a compelling argument.  Men barred women from voting on both the original Constitution and the Fourteenth Amendment prohibiting states from denying “any person” “the equal protection of the laws.”   From that perspective, it is hard to see how abiding by what the men behind these constitutional provisions purportedly thought about sex discrimination would be a triumph of democratic legitimacy, rather than an importation of past injustice into the present.  But in any event, women are unquestionably not an afterthought to the ERA.  Adding that amendment to the Constitution would affirm women’s equal citizenship and women’s centrality to constitutional law.

Most practically, the ERA could help expand women’s rights and opportunities.  As We the Men recounts, ERA opponents have spent over a half century describing the amendment as simultaneously unnecessary and menacing.  The first claim has always depended on denying persistent sex discrimination and dismissing ongoing disparities.  The second line of attack has recently focused on arguing that the ERA would provide constitutional protection for abortion rights.  That latter argument has an ironic dimension: Abortion opponents ordinarily refuse to acknowledge any connections between abortion rights and sex equality.  But anti-abortion attacks on the ERA suggest the impact the amendment could have—eventually, if not necessarily with the current Supreme Court.  Embedding the ERA’s explicit prohibition on sex discrimination into the constitutional firmament would provide a new, sturdier foundation supporting feminist advocacy about constitutional rights.

— Jill Hasday

Smith and O'Neill on Younger v. Harris

Fred O. Smith, Jr., Emory University School of Law, and Peter O'Neill, Stanford Law School, have posted The Forgotten Face of "Our Federalism,” which is forthcoming in the Yale Law Journal:

Younger v. Harris is canonical in the field of Federal Courts, distinguished by its seminal role in federal civil rights litigation. The decision’s memorable exposition of “Our Federalism” produced the Younger abstention doctrine, which limits federal courts’ authority to address constitutional violations in state criminal proceedings. Today, this doctrine significantly impacts litigation challenging systemic illegalities in areas like pre-trial detention systems and child welfare programs. Yet, the origins of the case—a stark narrative of racialized surveillance, censorship, and police violence—remain largely unknown.

Through examination of diverse sources—including original interviews, newly acquired FBI files, press coverage, court transcripts, legislative records, memoirs, protest materials, and the archival papers of four Supreme Court justices—this Article reconstructs the case of John Harris, a Black civil rights activist and former SNCC organizer. While Harris’s Mississippi arrests in 1965 are clearly legible as Jim Crow oppression, his subsequent Los Angeles indictment in 1966 for similar activism became harder to recognize as racial persecution because it fell outside the Southern “Jim Crow paradigm.” This differential recognition helped courts maintain their image as champions against Southern injustice while limiting federal intervention elsewhere. Moreover, FBI files reveal extensive federal-state cooperation in suppressing Black political activism, contradicting Younger’s conception of federalism as “separate spheres.”

This case illustrates “legitimacy laundering”—a novel framework to describe the obscuring of canonical influential decisions’ original context and implications, conferring legitimacy on otherwise questionable legal practices. The Article also reveals how some modern courts have expanded Younger abstention beyond its carefully negotiated scope, undermining the doctrine’s origins in preserving federal courts’ power to prevent irreparable harm.

--Dan Ernst

Weekend Roundup

• Penn Carey Law’s notice of Dean Sophia Lee's recent article on "the evolution of Fourth Amendment privacy from weak pre-Reconstruction protections through its development over the years, culminating in Boyd v. United States."
  

• A Q&A with Felicia Kornbluh and LHB Guest Blogger Jill Hasday on Professor Hasday’s new book We the Men in Ms. Magazine.  Her post on OUPblog is here.
  

• The League of Women Voters of Pullman and Whitman County will host the virtual event, “History of Disability Rights” on 7-8:30 p.m. March 31 over Zoom (Lewiston Tribune).
  

• James E Hurford reviews The Legal History of the Church of England: From the Reformation to the Present, by Norman Doe and Stephen Coleman (Law Society Gazette).

• Stephen B. Presser review Jonathan Gienapp's Against Constitutional Originalism for the Federalist Society.

• From In Custodia Legis: an announcement of a new collection release, "Pre-1901 Legal Documents of New Spain/Mexico." Also, a profile of "Bessie Margolin, Labor Lawyer."
  

• Zachary M. Schrag on the New Crisis in Urban History (AHA Perspectives).

• ICYMI: Black History, Birthright Citizenship & Civil Rights (New York Almanack).  Jim Crow Laws (Historian).  Confiscation in the American Revolution (New York Almanack). A pardon for Ruth Ellis?  (Legal Cheek).

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

ASLH/Notre Dame Graduate Legal History Colloquium: April 2025 Session

The ASLH/Notre Dame Graduate Legal History Colloquium will convene on April 5, 2025. Virtual participation remains an option for those who wish to attend. Register here. The schedule:

Registration/Welcome    09:45 - 10:05 AM  

Paper #1: Social Movements & Litigation Strategy    10:05 - 11:00 AM 

“In re Primus and the Rise of Reproductive Rights Impact Litigation”

Author: Christen Hammock Jones, University of Pennsylvania

Respondent: Mary Ziegler. Martin Luther King Jr. Professor of Law, University of California, Davis 

Paper #2: Legal History of Disability 11:05 - 12:00 PM  

“Bargains & Bandages: Administrative Regulation of Occupational Safety and Care Labor During the HIV/AIDS Epidemic”

Author: Beck Boorstein, University of Chicago Law School/Yale University

Respondent: Laura Weinrib, Fred N. Fishman Professor of Constitutional Law / Suzanne Young Murray Professor, Radcliffe Institute for Advanced Study, Harvard University

Afternoon Break (Lunch)     12:05 - 1:00 PM

Paper #3: Civil Rights and the Constitution     01:05 - 2:00 PM

“Due Process Decarceration: The ACLU’s National Prison Project, 1971-1977”

Author: Daniel Fernandez, University of Chicago

Respondent: Christopher W. Schmidt, Professor of Law & Co-Director, Institute on the Supreme Court of the United States, Chicago-Kent College of Law  

Paper #4: Legal History and the Welfare State     02:05 - 3:00 PM

“Policing Parenthood: Child Support Law and the Enforcement of Austerity in Late-Twentieth-Century America”

Author: Will Holub-Moorman, University of Pennsylvania Carey Law School/Princeton University 

Respondent: Joanna Grisinger, Associate Professor of Instruction & Director of Legal Studies, Northwestern University 

-- Karen Tani

Fay, "Courts of Indian Offenses, Courts of Indian Resistance"

Alexandra Fay (University of Tulsa College of Law) has posted "Courts of Indian Offenses, Courts of Indian Resistance," which is forthcoming in the Michigan Law Review (2026). The abstract: 

In the late nineteenth century, the Department of the Interior created the Courts of Indian Offenses with the express goal of eliminating elements of Native culture through the coercive power of criminal law. The courts stood on dubious constitutional grounds, they were almost universally replaced by tribal courts in the twentieth century, and they have been widely derided as crude assimilationist tools.

This Article examines the Courts of Indian Offenses to study how law and legal institutions operate as sites of colonial struggle in the American context. The Courts of Indian Offenses were formally created to criminalize Native culture. In practice, they were more complicated. Native judges entrusted with Washington’s assimilationist designs frequently declined to enforce the “Indian offenses,” instead using the courts to resolve crimes and disputes recognized by their tribal communities.

The Article uses three decades of annual reports from the Commissioner of Indian Affairs and archival records from three Courts of Indian Offenses to illustrate the structure and function of the courts at the turn of the twentieth century. It engages with concepts from subaltern studies, tribal legal studies, and law and colonialism literatures to explore how tribal law adapted and survived despite the formal imposition of Anglo-American legal forms. The Article ultimately suggests that the Courts of Indian Offenses may be understood as contested institutions through which tribal leaders preserved tribal self-government against the imperatives of empire.

The full paper is available here, at SSRN.

-- Karen Tani

Jagodinsky to Discuss Habeas Corpus in the American West

[We have the following announcement.  DRE]

Please join the American Philosophical Society next Tuesday, March 25th at 12PM ET for our weekly brown bag featuring Katrina Jagodinsky, an Associate Professor of History at University of Nebraska-Lincoln and two-time APS Phillips Fund Award recipient.

Dr. Katrina Jagodinsky will discuss Petitioning for Freedom: Habeas Corpus in the American West, 1812-1924, which is a growing database of habeas petitions from county, state, and federal courts that highlights the remarkable diversity of legal protagonists and actors contributing to American legal tradition. Using digital tools and mixed analytical methods, Petitioning for Freedom documents surprising trends and suggests the potential for innovative research practices to uncover marginalized people's legal strategies over the long nineteenth century.

This will be an all-virtual Brown Bag at 12PM ET.   Join Zoom Meeting.  Meeting ID: 896 3862 0185.  Passcode: 006521.

Cuenca's "Making of Urban Customary Law in Medieval and Reformation England"

Esther Liberman Cuenca has published The Making of Urban Customary Law in Medieval and Reformation England (Oxford University Press):

Drawing on a quantitative analysis of hundreds of printed and archival sources from 77 towns, The Making of Urban Customary Law in Medieval England is the first cross-regional investigation into the history of urban customs since Mary Bateson's seminal, two-volume work Borough Customs (1904-1906). In contrast to English common law and church law, which both had long institutional and academic traditions devoted to training men in their legal philosophies, customary law constituted local practices that acquired the force of law over time. Urban customary law regulated political officeholding, trade, property holding, and even moral behaviour in English towns.

The Making of Urban Customary Law argues that urban customs, which governed the lives of people in English towns, were crucial to the development of a distinct, bourgeois identity in England-an evolution that this new study tracks from the early twelfth to the late sixteenth centuries. In the years following the Black Death, and especially during the Reformation period, this law became more concerned with defining political authority, maintaining morality, and articulating a consensus about the “common good” for townspeople.

This book makes two principal claims: First, customary law advanced the business interests of an urban oligarchy. These were urban (male) elites who drafted laws and obtained privileges to enhance their wealth and assert their political independence from local lords, and often made claims about the legitimacy of their privileges or laws by rooted them in history or some kind of ancestral past. These lawmakers also made considerable efforts to establish their identities as morally upright and even-handed patriarchs. In so doing, urban customary law played a central role in the development of a distinct bourgeois identity in medieval and Reformation England. Second, this law lent particular meanings to the “common good” in towns, as it helped these lawmakers articulate policies that cohered to their vision of an ideal civic community.

--Dan Ernst

LHR 42:3

Law and History Review 42:3 (August 2024), the publication of which was delayed by a cyberattack on the publisher last summer, is now available online.

Inventing Birthright: The Nineteenth-Century Fabrication of jus soli and jus sanguinis
Nathan Perl-Rosenthal, Sam Erman

The Law of Nations in the Diplomacy of the American Revolution
Benjamin C. Lyons

The Cartojuridism of the British East India Company
Sabarish Suresh

Between Empire and State: Haudenosaunee Sovereignty at the League of Nations
Kate Alba Reeve

What Happened to Nancy Jackson? A Riddle of Race and Resistance on the Southern Frontier
Anders Walker

A Christmas Eve Murder and the Notorious Georges: Community Identity in Northern British Columbia, 1913/14
Jonathan Swainger

Pathologization, Law, and Gender in Cases of Infanticide in Spain and the Netherlands in the Mid-Twentieth Century: A Comparative Perspective
Willemijn Ruberg, Sara Serrano Martínez

Witnesses for the State: Children and the Making of Modern Evidence Law
Laura Savarese

A Grand Jury Exhortation
Benjamin Keener

Anglo-Romano Common Law on Natural Subjecthood, Lansdowne MS 486 ff. 142–143
N. R. W. Dudani

Sources and U. S. Citizenship in the Antebellum United States: A View from Abroad
M. Scott Heerman

Book Reviews

Margaret McGlynn, The King's Felons: Church, State and Criminal Confinement in Early Tudor England Oxford: Oxford University Press, 2023. Pp. xx, 371.
Paul Cavill

Laura Flannigan, Royal Justice and the Making of the Tudor Commonwealth, 1485–1547 Cambridge: Cambridge University Press, 2023. Pp. xv, 304.
Daniel F. Gosling

Corrigendum

“Let the Commander Respond”: The Paradox of Obedience in the Imperial Japanese Armed Forces – CORRIGENDUM

--Dan Ernst

Thompson on Mandamus and Democracy

Elizabeth Lee Thompson, Southern Methodist University Dedman School of Law, has published Mandamus as a Democracy Tool, which is forthcoming in the Denver Law Review:

Legal scholars recognize the centrality of state courts and procedures to United States democracy but the study of state proceedings and their impact represents a largely unexplored arena. This Article illuminates one largely ignored procedural area—the writ of mandamus, which is a centuries-old writ recognized in all fifty states that a court issues to compel performance of a duty by a court or public official. The Article examines mandamus concerning public officers—specifically governors and secretaries of state—through an empirical study of 497 state cases over the last almost two centuries.

The Article composes the first empirical national study of mandamus petitions seeking to command action by public officers. The central conclusion is that mandamus forms a valuable democracy tool for citizens, particularly for citizen-directed litigation aimed at pressing public officials to correctly conduct elections. This principal conclusion contributes to a range of insights, including the predominance of mandamus cases concerning officials’ duties to conduct elections and certify candidates—and how these election cases display how individuals employed mandamus to press their democratic rights. The Article also recognizes the related trend of citizens employing mandamus to assert complaints arising from initiative and referenda processes, a finding that underscores how mandamus repeatedly supported direct democracy efforts.

Moreover, the Article brings a new perspective to recent scholarship that notes an increased politicization and frequency of state court mandamus filings and the related area of original jurisdiction. In contrast, this Article—with evidence from hundreds of cases—uncovers individuals’ and political groups’ enabling use of mandamus, including through its somewhat increased use over the last quarter century. Although recognizing mandamus’s potential drawbacks, the Article seeks to establish and encourage the role of mandamus as an accessible and powerful mechanism to support citizens’ rights and hold public officers accountable to perform duties.

--Dan Ernst

Self-Contradictory Victory Announcements

Today’s post about my new book, We the Men, focuses on another form of forgetting in America’s dominant stories about itself—forgetting the work the nation still has to do.

As modern Americans, many of us have encountered people who announce or assume that the nation has left the sexist bad old days behind.  Still, I was surprised to discover just how early in American history those premature declarations began appearing and how important a role they have played in perpetuating inequality.

Wildly exaggerated accounts of American progress toward sex equality have been common in both everyday settings and legal institutions since before the Nineteenth Amendment’s 1920 ratification made sex-based disenfranchisement unconstitutional. These declarations are routinely framed in terms of American women universally, although white women have tended to be top of mind.

The stories forget what remains undone, even to the extreme of proclaiming that the United States has already achieved sex equality. For example, a 1918 textbook assured young readers that: “All men and women are regarded as equals before the law.” At the time, thirty-three out of forty-eight states maintained sex-based restrictions on the franchise. Although women had spent decades mobilizing for equality, discrimination against women at work, in marriage, and in every other arena was still legal and pervasive throughout the nation.

Judges have been suggesting or proclaiming that the nation has moved past sex discrimination for almost as long as American women have been mobilizing to challenge male supremacy. In fact, many of the judiciary’s sunniest proclamations about American progress have appeared in decisions denying women equality, as courts rationalize their rejection of women’s claims by insisting that women already have so much.

I call these decisions “self-contradictory victory announcements” because judges boast about America’s embrace of sex equality while simultaneously enforcing male supremacy. While women are not the only marginalized group to have experienced the judiciary’s self-contradictory declarations, cases perpetuating women’s inequality have long been prominent triggers for self-contradiction.

The Supreme Court continued its long tradition of self-contradictory victory announcements in Dobbs v. Jackson Women’s Health Organization (2022). This decision overruled Roe v. Wade (1973) in the course of upholding an anti-abortion law from Mississippi, the Gestational Age Act of 2018.

Dobbs repeatedly invoked overstated accounts of women’s advances to defend the Justices’ decision to leap backward and eliminate a constitutional right that women had held for generations.  For example, Dobbs sought to justify the Justices’ decision to give legislatures so much control over women’s lives by announcing that: “Women are not without electoral or political power. It is noteworthy that the percentage of women who register to vote and cast ballots is consistently higher than the percentage of men who do so.”

This line of argument turned on obscuring how far America still has to go. Dobbs never mentioned that men held 85.1% of the seats in the Mississippi legislature that passed the Gestational Age Act in 2018. Dobbs also did not mention that the Mississippi governor who championed the bill and signed it into law was the latest in the state’s uninterrupted line of white male governors. Boasting about women’s electoral and political power while ignoring these persistent inequalities made it easier to deny how politicians can endanger women when constitutional safeguards disappear.

— Jill Hasday

 

ASLH Prizes

[We have the following announcement from the American Society for Legal History.]

Each year the ASLH and the Cromwell Foundation sponsor a number of prizes for books, articles, dissertations, and digital  legal history projects. Scholars are encouraged to apply, and to encourage others to apply. Please note that in some cases eligibility criteria have shifted slightly from last year. Applicants should double-check the specific language to ensure eligibility.

All ASLH prize nominations (including self-nominations) are due June 1.

--Dan Ernst  The descriptions of the prizes appear after the jump.

Weekend Roundup

• To celebrate its 90th anniversary, the Stair Society held a legal history moot, according to Scottish law in 1851, a case involving wages for domestic service and an action of seduction (SLN).

• Claire Priest, YLS, will give a talk on Peruvian legal history in the Helsinki Legal History Series seminar on March 25. 
  

• Daniel Huslebosch, NYU Law, will deliver a virtual talk, “Confiscation in the American Revolution: Taking Property, Making the State,” before the Schenectady County Historical Society on April 2, at 7:00pm (News10).

• Kim Lane Scheppele, Princeton University, will deliver the Robert H. Jackson Lecture at Chautauqua this August.

• The American Historical Association and the Organization of American Historians have issued a joint statement on "federal censorship of American History."
  

• The Madison minimizers still have their work cut out for them, judging from this essay for Voice of America.
  

• 
  Law professors and historians at Willamette University "addressed the authoritarian tendencies of President Donald Trump’s second administration and debated historical similarities with European fascism" (Salem Reporter).
  

• Members of the Women and the Law Division of Indiana State Bar have created All Rise, a coloring book on inspirational women in the state's history.
  

• University of Illinois Urbana- Champaign's notice of The Origins of Critical Race Theory: The People and Ideas That Created a Movement, by Aja Y. Martinez and Robert O. Smith (NYU Press).

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

• In Time's "Made by History" series: Historians Call Trump a “Transformative President” (Justin Peck).  1860s Prussia Teaches Us About Constitutional Crises (Christine Adams).  The Long Fight against the Department of Education (Austin Steelman). The Dangers of Politicizing Civil Service (Yong Kwon).  The 1930s Case That Sparked a Deportation Debate (Rebecca Brenner Graham).  What the 1990s Tell Us About DOGE (Jacob Bruggeman & Casey Eilbert).
  

• ICYMI: A notice of the first six months of the honorary historian of the New York State Unified Court System, former Court of Appeals Judge Albert M. Rosenblatt (LAW360).  Social Security Is Not a Ponzi Scheme, writes Lawrence B. Glickman (Boston Review).  Peter Neal says, No, Let's Not Bring Back Letters of Marque (Lawfare).  The Wisconsin Historical Society and the Barron County Historical Society are preparing a new historical marker on Ojibwe treaty rights and the “Walleye Wars” near Rice Lake (Barron News-Shield).

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

Jia on Constitutional Education in China and the US

My Georgetown Law colleague Mark Jia has posted The Possibilities of Constitutional Education:

Constitutional scholarship has traditionally focused on formal constitutional actors: courts, legislatures, and executives. These actors are often regarded as primary sources of constitutional law, or in some cases, as final arbiters of constitutional meaning. More peripheral in this literature are actors thought to transmit what courts and high officials have established. These constitutional educators, including law professors, legal journalists, and civics planners, are often overlooked for defensible reasons: they lack the normative authorities of formal institutional actors, and they do not exercise power as it is often understood in public law.

This Article advances a general theory of constitutional education to show what is possible through centering the output of constitutional educators. In an age of global constitutional change and local constitutional upheaval, constitutional education can shed light on basic questions of constitutional order. The analytic value of constitutional education lies not in studying it in isolation, but from examining how primary constitutional research subjects—texts, ideas, methods, decisions, and reasons—are refracted through a distinct set of downstream epistemic actors. Focusing on two case studies, the United States and China, the Article shows how the study of constitutional education can illuminate the functions of authoritarian constitutions, the construction of constitutional culture, and the dynamics of constitutional change. In so arguing, the Article also suggests that certain constitutional patterns may transcend divisions between autocracy and democracy, constitutions and constitutionalism.

--Dan Ernst

Shusterman on the English Standing Army Controversy and the 2d Amendment

Noah Shusterman, Chinese University of Hong Kong, has posted England’s Standing Army Controversy (1697-99) and the Origins of the Second Amendment:

This article explores the writings of England's Standing Army Controversy at the end of the seventeenth century, and the links between those writings and the debates over military policy during the founding era that would eventually lead to both the Constitution’s militia clause and the Second Amendment. Staring in 1697, a small group of British authors turned what had been a long-standing but undertheorized distrust of professional armies into an elaborate theory in favor of citizens’ militias. These authors argued that standing armies were inconsistent with a free society; that militias were superior fighting forces; and that maintaining a professional army would inevitably result in the army's leaders becoming despots. To prove their arguments, the authors used a combination of historical examples and theoretical discussions, drawing on Ancient Rome, Medieval Europe, and their understandings of what would or would not motivate soldiers. These writings became relevant to colonists in North America once the British began stationing troops around Boston during the buildup to the American Revolution. The ideas of the Standing Army Controversy provided colonists with a framework and vocabulary that linked Britain's action to those of other tyrannies, because of the use of professional soldiers against a civilian population. As states began issuing their own constitutions in 1776, several included language that grew out of the Standing Army Controversy, including the claim that "standing armies, in times of peace, are dangerous to liberty." These fears of standing armies, and the belief in citizen-soldiers rather than professional soldiers, remained the basis for the Second Amendment and for the broader debates it grew out of. The claim that a well-regulated militia is necessary for the security of a free state grew out of the writings of the Standing Army Controversy.

--Dan Ernst

Gallanis on Revolutions in American Trust Law

Thomas P. Gallanis, George Mason University Antonin Scalia Law School, has posted American Revolutions in the Law of Trusts, which is forthcoming in the ACTEC Law Journal:

American trust law is revolutionary. It departs in fundamental ways from the trust law of other major common-law jurisdictions, such as England, Australia, Canada, the Hong Kong Special Administrative Region, and Singapore. It also differs greatly from the trust law of the major civil-law countries that have adopted the trust, such as mainland China and Japan.

This Article identifies five revolutions in American trust law. Each revolution is examined in its historical context and with regard to its lasting effects. Together, the five revolutions explain American trust law's distinctiveness. The Article's primary aim is to shape how American trust law is understood, historically and today.

The Article's contribution is as fundamental as periodization. We used to teach that the "Roman Empire" was followed by the "Early Middle Ages." This periodization was transformed by the pioneering scholarship of the historian Peter Brown. Professor Brown is credited with creating the field of Late Antiquity, approximately AD 250-750. Analogously, this Article's framework of the five revolutions is designed to shape our understanding of the history and development of America's distinctive trust law.

Part I of the Article identifies and analyzes the five revolutions. Part II offers a personal assessment of American trust law's distinctiveness. A brief conclusion follows.

--Dan Ernst

Green on 18th-Century Constitutional Notions of "Tradition"

Jonathan Green, Arizona State University Sandra Day O'Connor College of Law, has posted Some Traditional Questions About “History and Tradition”:

Recently, in Vidal and Rahimi, the Supreme Court reaffirmed that “history and tradition” are probative of, and in some cases dispositive of, the outer bounds of constitutionally enumerated rights. But for the Court’s originalists, that move is puzzling. If the Constitution’s legal content resides in the original meaning of its terms, how might a tradition of political practice that arose long after a constitutional provision’s adoption be legally relevant?

Eighteenth-century English jurists had an answer to that question. By 1791, it was well-established that where a written source of law codified a preexisting, common law right—like the freedom of speech (at issue in Vidal), or the right to keep and bear arms (at issue in Rahimi)—the scope of that right would continue to be defined, as before, by custom. The codification of an unwritten right in written law did not alter its status as a customary right, whose limits were set by a tradition that preceded and succeeded the text’s enactment. So, if the provisions at issue in Vidal and Rahimi codified preexisting unwritten rights into our Constitution, then under Founding-era interpretive rules, the original meaning of First and Second Amendments would just direct contemporary judges to look beyond their words, to pre- and post-enactment tradition. From the eighteenth century looking forward, the Court’s turn to “history and tradition” is entirely reconcilable to originalism, and may be required by it.

At the same time, excavating how tradition delimited the outer bounds of fundamental rights in the decades before ratification throws up a number of interpretive puzzles. Whose tradition, exactly? What is tradition, anyway: how did past jurists conceptualize it? And where an unwritten right had been codified into written law, to what extent could later practice reshape its original scope? These questions vexed English jurists across the eighteenth century, and were unsettled when our Constitution was adopted. If classical English constitutionalism offers a way to square originalism to “history and tradition,” it also highlights the challenges of using tradition to define the scope of rights today. Under the surface, eighteenth-century jurists had questions about “history and tradition” too.

--Dan Ernst

ASLH Student Research Colloquium

[We have the following call fro applications from the American Society for Legal History.  DRE]
 
The American Society for Legal History will host its eleventh annual Student Research Colloquium (SRC) on Wednesday, November 12, and Thursday, November 13, 2025, in Detroit, Michigan, USA. Each year, the SRC brings eight graduate students to the site of the ASLH annual meeting to discuss their in-progress dissertations or other research projects with each other and with ASLH-affiliated scholars. This year's faculty coordinators will be Emily Prifogle (University of Michigan) and Rowan Dorin (Stanford University).

Target applicants include early-post-coursework Ph.D. students and historically minded law students. All students whose research touches on legal-historical themes are encouraged to apply, whatever their chronological or geographical focuses. Applicants who have not yet had an opportunity to interact with the ASLH are welcome, as are those who have never received any formal training in legal history. A student may present a paper at the annual meeting and participate in the SRC in the same year.

The ASLH will at least partially and, in many cases, fully reimburse the SRC students’ travel, hotel, and conference-registration costs.   To apply, please submit the following three items to John Wertheimer at:  srcproposals@aslh.net:

•  a cover letter that describes, among other things, how far along you are and approximately how many years remain in your present course of study;
• an up-to-date CV; and
• a two-page, single-spaced research statement that contains a working title and describes the in-progress research project that you would like to present at the colloquium.

Application deadline: June 1, 2025.

CFP: Northwestern Law Review's Empirical Issue

[We have the following CFP.  DRE.]

The Northwestern University Law Review (NULR) is proud to be opening submissions for the seventh annual empirical issue! NULR is exceptional among flagship law reviews in the United States in that it publishes an annual issue fully dedicated to empirical legal scholarship. We seek to bring cutting-edge, interdisciplinary, empirical work to our legal audience, and enrich our understanding of the law, legal actors, and legal doctrine through robust and reliable examination of qualitative, quantitative, and mixed-method data. Publication at our Journal is especially of interest to authors who would like to benefit from an expedited publication timeline, have their work peer-reviewed from specialists in the field, be supported by a dedicated team of editors who can assist in sharpening the piece’s contribution for the legal audience, and who seek to have their work make impact on legal policy and advocacy in the United States. To provide some examples, we have previously published work evaluating racial bias in police stops, an examination of duplicative proceedings in international litigation, and a field experiment assessing incidence of judicial recusals when potential conflicts of interest come to light. You can find our past empirical issues here.

The exclusive submission window for the Vol. 120 Empirical Issue of the Northwestern University Law Review will open on April 1, 2025, and run until April 28, 2025. A subset of submissions will be selected to move forward to peer review. The Law Review will make every effort to notify authors of rejection or of advancement to peer review by June 30, 2025. Final publication decisions will be issued by August 10, 2025, with the publication date set in March 2026.

Submitted publications must be between 15,000 and 30,000 [words], and conform generally to the style and formatting expectations that are common to law reviews. For more information, please visit our website: Empirical Issue - Northwestern University Law Review or reach out to Thomas Burnett, Senior Empirical Editor for the Northwestern University Law Review at thomas.burnett@law.northwestern.edu.

Kathryn T. Preyer Prize for Early Career Scholars

 [We have the following announcement from the American Society for Legal History.  DRE]

The deadline for submissions to the Kathryn T. Preyer Prize for early career scholars is April 1, 2025.  Please email a CV, contact information, and draft paper (50 pages) max to preyeraward@aslh.net.  

Named after the late Kathryn T. Preyer, a distinguished historian of the law of early America known for her generosity to early career legal historians, the program of Kathryn T. Preyer Scholars is designed to help legal historians at the beginning of their careers. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. The generosity of Professor Preyer’s friends and family has enabled the Society to offer a small honorarium to the Preyer Scholars and to reimburse, in some measure or entirely, their costs of attending the meeting. The competition for Preyer Scholars is organized by the Society’s Kathryn T. Preyer Memorial Committee.

Submissions are welcome on any topic in legal, institutional and/or constitutional history. Early career scholars, including those pursuing graduate or law degrees, those who have completed their terminal degree within the previous year, and those independent scholars at a comparable stage, are eligible to apply. At the annual meeting of the Society two early career legal historians designated Kathryn T. Preyer Scholars will present what would normally be their first papers to the Society. While papers simultaneously submitted to the ASLH Program committee are eligible, Preyer Award winners must present their paper as part of the Preyer panel and will be removed from any other panel.

Submissions should consist of a single MS Word document consisting of a complete curriculum vitae, contact information, and a complete draft of the paper to be presented. Papers should not exceed 50 pages (12-point font, double-spaced). In past competitions, the Committee has given preference to draft articles and essays, though the Committee will also consider shorter conference papers, as one of the criteria for selection will be the suitability of the paper for reduction to a twenty-minute oral presentation. The deadline for submission is April 1, 2025.

The two Kathryn T. Preyer Scholars will receive a $500 cash award and reimbursement of expenses up to $750 for travel, hotels, and meals. Each will present the paper that s/he submitted to the competition at the Society’s annual meeting. The Society’s journal, Law and History Review, has published several past winners of the Preyer competition, though it is under no obligation to do so.

Please send submissions by April 1, 2025 to preyeraward@aslh.net.

Jenkins and Peck on Antibusing Legislation and the Civil Rights Coalition

 Jeffery A. Jenkins and Justin Peck’s The Collapse of the Civil Rights Coalition: Congress and the Politics of Antibusing Legislation, 1966-86 is now available online from Law and History Review:

The legislative coalition responsible for passing the 1964 Civil Rights Act did not set out to use busing as a means to end school segregation. When it came time to implement relevant portions of the law, however, busing became the primary method for reversing “separate but equal” education. In this paper, we provide a legislative policy history detailing the unanticipated, but nearly two-decade long, congressional battle over busing. Through a detailed examination of congressional hearings, floor debate, and roll-call votes, we shed light on the collapse of the pro-civil rights coalition responsible for the landmark achievements of the early 1960s. In its place emerged a new, bipartisan, and interregional bloc of lawmakers—led by southern Democrats and Republicans but joined by a pivotal group of (ostensibly liberal) northern Democrats—who were opposed to efforts by the Supreme Court and administrative state to end school segregation in the North as well as the South.

--Dan Ernst

Bogle on Viscount Stair and Commercial Law

Stephen James Bogle, University of Glasgow School of Law, has posted James Dalrymple, Viscount Stair, 1619-1695: a pioneer of law and commerce?

James Dalrymple, Viscount Stair (NYPL)

James Dalrymple, Viscount Stair (1619-1695), is rarely associated with commercial law, yet this connection is both justified and valuable. While he does not explicitly use the term 'commercial law' or structure his writings around commercial transactions, his Institutions of the Law of Scotland, drafted between 1659 and 1661 and first published in 1681, offers an innovative theory of law and commerce. This nuanced outlook merits closer examination. Arguably, this perspective on Stair has largely been overlooked, perhaps due to the way in which the Institutions is presented as a comprehensive account of Scots customary law. However, as argued in the conclusion, to neglect the commerciality of Stair is to the detriment of our historiography of commercial law. Recognizing Stair as not only a lawyer but also a thinker on commerce highlights the significance of legal treatises to broader historical narratives. Moreover, today, there are efforts to rebuild connections between the fields of political economy and law, seeking to understand how economics and politics shapes legal thinking, and vice versa. Such efforts, however, can be enriched, it is argued here, by considering, from a historical perspective, what might otherwise appear dogmatic works of commercial law scholarship. To do that, we first need to identify who might be worth examination.

As will be argued, Stair took the ideas he found in the natural jurisprudence of Hugo Grotius - and perhaps also, those relating to free trade on the high seas - and incorporated it into domestic legal writing about internal commercial activity. Stair’s transformation of Grotius's ideas on international law, trade, and human sociability into the domestic context has not always been appreciated. However, when framed in this manner Stair’s project represents an interesting contribution to the development of commercial law literature in the early modern period.  To adequately contextualise Grotius and Stair requires a deeper examination of seventeenth century natural jurisprudence, which continued to inform legal, economic, and political ideas well into the eighteenth century. Thus, for example, Istvan Hont has shown that natural jurisprudence, including the work of eighteenth-century Scottish philosophers, provided a key bridge between legal and economic ideas, and the eventual development of national state policy. Of course, much of this is beyond the compass of this present enquiry, but it does nonetheless underscore the importance of taking commercial law scholarship seriously. Our first task, however, is to establish Stair as a notable example of commercial law scholarship, explain why, and then suggest avenues for future study.

--Dan Ernst

Forgotten Women and Men’s Spontaneous Enlightenment

My new book, We the Men, explores how America’s dominant stories about itself forget about women. This post draws on that book to highlight one mode of forgetting—simply ignoring women and their struggles for equality.

 

Some examples are concrete (literally). A 2021 survey of federal courthouses found more than 165 named for a man and just four named for a woman. Only three women made a 2021 list of the fifty most frequently commemorated people in America’s public monuments, compared to forty-four white men, many of them slaveholders.

Struggles over commemorating women have drawn much less mainstream attention than commemoration conflicts framed as centrally about race, even though many struggles over commemorating women are simultaneously intertwined with race. Perhaps our male-dominated commemorative landscape is such a perennial fact of life that it sometimes fades into the background as we enter yet another government building with a man’s name over the door or walk through yet another public square featuring a man immortalized on horseback.

But commemorations are not just decorative flourishes or scenery. They shape the vision of America that we carry around with us, which is why generations of women have fought to reconstruct the commemorative landscape and why they have faced such persistent resistance.

For example, women in and out of Congress have been fighting since the 1990s for construction of an American Women’s History Museum. That battle has lasted so long because of sustained opposition from conservative lawmakers and anti-feminist activists. As of this writing, Congress has not passed the statute required to build on the National Mall, and the museum remains years away from opening.

Women’s erasure also runs through the stories that powerful Americans tell with torrents of words rather than blocks of concrete and stone. Politicians delivering odes to America on significant anniversaries commonly celebrate the Founders for establishing government by the consent of the governed. That account depends on excluding almost everyone who was not a white male property owner.

Supreme Court opinions regularly ignore women when remembering the Court’s key decisions. They skip over both rulings that offered crucial support to women striving for equality and the many cases where the Court blocked or undid women’s progress. Law professors making lists of the Court’s most important or most terrible constitutional judgments routinely omit decisions about women’s rights.

Indeed, I was surprised to discover how frequently legal authorities and popular writers marginalize women even within discussions of women’s status. When judicial opinions mention women, judges on and off the Supreme Court often write as if men decided on their own to expand women’s rights and opportunities. I call these tales “spontaneous enlightenment stories,” and they feature in generations of popular press and political debates as well. These stories attribute progress to consensus and men’s wisdom while erasing the conflict and female agency that forward momentum required, with women needing to demand change and fight for reform against determined opponents.

For example, it remains all too common for judges, politicians, and textbook writers to describe the Nineteenth Amendment as a gift from men that “gave” all women the vote. That account is doubly misleading.

First, framing the Nineteenth Amendment as conclusively establishing women’s access to the polls misdescribes reality and implicitly centers white women. While the amendment prohibits sex-based denials of the franchise, it guarantees no one the right to vote. Laws on the books or tactics on the ground have denied many women the vote since 1920, especially women of color. Battles over voting and voter suppression rage to this day.

Second, the Nineteenth Amendment was not a gift. It was a multigenerational battle that required suffragists to overcome furious, sometimes violent, opposition. Suffragists were shot at, assaulted, knocked from picket lines, dragged on the ground, arrested while their assailants went free, brutalized in prison, and force fed.

American newsmen were apparently unable or unwilling to provide detailed photographs of anti-suffragist violence, which helped shield the violence from scrutiny. A suffragist artist refused to let the violence go undepicted. Nina Allender’s cartoons for the National Woman’s Party attracted widespread attention. Her cover art for a September 1917 edition of the Suffragist newspaper shows a male mob surrounding suffragists to wrest their banners from their hands and destroy them. One delighted hooligan has ripped the word “democracy” from a woman’s banner and claimed it for himself. The drawing was captioned: “Training for the Draft.” It illustrated how women battling for suffrage faced their own ferocious combatants, at a time when the nation was drafting young men to fight World War I.

— Jill Hasday