Legal History Blog

Bank's "High Rates and Low Taxes"

2026-04-27T00:30:00.001-04:00

Steven A. Bank, UCLA School of Law, has published High Rates and Low Taxes: Tax Dodging in Mid-Century America (Cambridge University Press):

Amidst calls for a return to the high tax rates of the 1950s and 60s, this book examines the tax dodging that accompanied it. Lacking political will to lower the rate, Congress riddled the laws with loopholes, exemptions, and preferences, while largely accepting income tax chiseling's rise in American culture. The rich and famous openly invested in tax shelters and de-camped to exotic tax havens, executives revamped the compensation and retirement schemes of their corporations to suit their tax needs, and an industry of tax advisers developed to help the general public engage in their own form of tax dodging through exaggerated expense accounts, luxurious business travel on the taxpayer's dime, and self-help books on 'how the insider's get rich on tax-wise' investments. Tax dodging was a part of almost every restaurant bill, feature film, and savings account. It was literally woven into the fabric of society.

Professor Bank has posted the introduction here.

--Dan Ernst

Weekend Roundup

2026-04-25T00:30:00.148-04:00

Elizabeth Papp Kamali on "Charles Donahue: Man, Magister, Inimitable Scholar" (Harvard Law Bulletin).

The HLS Library has scanned "Harvard’s full collection of 140,000 documents comprising more than 700,000 pages" to produce "the first complete, keyword-searchable online collection of the Nuremberg Trials records" (Harvard Law Bulletin).

BU Law's notice of legal historian Rephael Stern.

Congratulations to Alison LaCroix, upon her election to the American Academy of Arts and Sciences! Also William Baude and Elizabeth Clemens (UChicago News). Professor LaCroix will be the speaker at the University of Chicago's 2026 Commencement this June.

A notice of Jill Lepore's HLS seminar, “The History of Evidence,” devoted to "two key questions: 'What counts as proof?' and 'How has that changed over time?'” (Harvard Law Today). She discussed her book We the People: A History of the U.S. Constitution on Oregon Public Broadcasting.

Mary Sarah Bilder and Sarah Isgur will "explore Virginia's central role shaping the nation's founding" as part of the 2026 Founding Debates Program of the George Washington Presidential Library at Mount Vernon and the Virginia Law Foundation on September 24, 2026, from 7 p.m. to 8:30 p.m. (More.)

ICYMI: Martin v Hunter’s Lessee (History is Now). Michael D. Ramsey, Keith Whittington, Kurt Lash, and Lawrence Solum on birthright citizenship (Regulatory Review). The Forgotten History of the School Choice Movement (AEI).

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

Jones and Tani, "Unwanted Histories" -- on History and Constitutional Decisionmaking

2026-04-24T10:54:00.000-04:00

Christen Hammock Jones, a Ph.D. candidate in History at the University of Pennsylvania, and Karen M. Tani (University of Pennsylvania) have posted Unwanted Histories, 75 Duke L. J. 1265 (2026).

The Supreme Court's turn to history as a method of constitutional decisionmaking has both intrigued and alarmed professional historians, for reasons now well-rehearsed in the literature. This Article, written for a symposium on "Historical Facts and Constitutional Law," takes as a given that history is now part of judges' work. It then invites judges to think more expansively about the type of history they could--and perhaps should--be producing. This task, in turn, means engaging with some of the central questions about methodology and sources that preoccupy professional historians.

This Article focuses on a source base that historians routinely rely upon but that courts have shied away from: personal accounts of past perceptions and experiences, drawn from diaries, letters, oral histories,and other types of testimonials. Professional historians highly value such sources, even though they require caution, because they often provide glimpses of the past that are missing from more formal or “official” documentary records. In doing so, they enrich and sometimes even transform our answers to important historical research questions. Courts, by contrast, tend to resist these sources, even when they might be relevant to the historical inquiry at hand. This Article illustrates such resistance via examples from the realms of disability and reproductive rights, both of which currently receive weak constitutional protection.

The Article closes by underscoring that, when judges engage in historical interpretation, they are not simply making law; they are also making history, upon which other courts and the broader public may rely.This reality implies responsibility. Judges could lean into that responsibility by bringing a critical eye to the traditional “high law” historical sources that are most readily available and by shepherding into the record voices and perspectives that enrich our collective understanding of the American past.

The full symposium is available here.

--Dan Ernst

Basile on the 19th-Century Turn to Textualism

2026-04-23T09:30:00.000-04:00

Marco Basile, Boston College Law School, has posted Old Textualism, New Juristocracy, which is forthcoming in the New York University Law Review:

This Article traces the emergence of text-centric theories of legal interpretation in the early nineteenth century amid an increasingly writing-based legal culture. While many scholars and judges associate textualism with the Founding period’s enactment of written constitutions and innovation in the separation of powers, this Article argues that the first “textualist” turn in legal interpretation crystallized after the Founding and reflected transnational developments. Not until the 1830s through 1850s did certain jurists on both sides of the Atlantic elaborate interpretive theories predicated on understanding a written law as an ordinary linguistic communication, as opposed to being in part declaratory of unwritten principles. This new emphasis on the enacted text reflected the increasingly writing-based legal culture of the early nineteenth century enabled by the industrial revolution in print and communication technologies. Amid this technological change, old textualists believed they were bringing the equivalent of modern steam power to legal interpretation.

Indeed, it was their work from the 1830s through 1850s, not the Founding, that Justice Scalia cited as muses for his project to revive a text-centric “science” of legal interpretation. Scalia’s new textualism, however, differed from old textualism. New textualism emphasizes the public legibility of the enacted text and how that public legibility operates to constrain judicial discretion. Old textualism, by contrast, understood law as a largely technical language and instead promoted a vision of legal interpretation that advanced public ends through non-public means. Old textualists ultimately sought to claim interpretation as the expertise of judges and to reassure skeptics that judges could exercise this expertise objectively—laying groundwork for the rise of judicial supremacy that would follow.

--Dan Ernst

Tolson's "In Congress We Trust?"

2026-04-23T00:30:00.002-04:00

Forthcoming from the Cambridge University Press: In Congress We Trust? Enforcing Voting Rights from the Founding to the Jim Crow Era by Franita Tolson, Dean of the University of Southern California Gould School of Law. It will appear in the series Cambridge Studies on Civil Rights and Civil Liberties:

This book reveals how Congress quietly shaped American elections across more than a century of constitutional development. Far from a passive observer, Congress used its authority to influence key controversies – from the expansion of slavery in new territories to the reconstruction of the post-Civil War electorate. Congress exercised power under the Elections Clause, the Guarantee Clause, and later, the Fourteenth and Fifteenth Amendments, to combat voter suppression, reimagine representation, and determine who could (and could not) participate in American democracy. Even as Jim Crow laws disenfranchised millions, Congress continued to review and sometimes overturn the elections of its own members, refusing to cede complete control to the states. In doing so, Congress routinely subordinated federalism to politics. In Congress We Trust? provides a new perspective on who truly governs our system of elections by showing that federal authority has been broad, lasting, and decisive.

--Dan Ernst

U.S. Supreme Court Records and Briefs on Internet Archive

2026-04-22T09:30:00.002-04:00

[We have the following announcement from Merrilee Proffitt of Democracy's Library. DRE]

Thanks to a generous gift of materials from the Wolf Law Library at the William & Mary Law School, and the Internet Archive’s mission to digitize and provide universal access to knowledge, we are pleased to share more than 125,000 U.S. Supreme Court records and briefs. These materials which span nearly two centuries of American law are now freely accessible online.

Why This Matters. Most people are familiar with the U.S. Supreme Court opinions as public documents. But the opinions are only part of the story. Behind every landmark ruling lies a vast archive of briefs, petitions, appendices, and supporting records; these are the the arguments, evidence, and voices that shaped each decision. The Supreme Court may receive 7,000-8,000 petitions each year, but only grants a writ of certiorari to hear the case for about 80 cases. This collection includes records and briefs received by the court, both those granted certiorari and those denied certiorari; the latter category is much more voluminous than the former. Until now, these important public documents have only been available in limited ways — in print form in a limited number of law libraries, and in other formats in other libraries but not generally available for all people to freely access.

That has now changed. As part of Democracy’s Library, the Internet Archive’s large-scale effort to preserve and open government information, this collection includes records and briefs spanning cases from 1830 through 2019, making it one of the most comprehensive archives of freely available Supreme Court materials ever assembled in one place.

What’s Now Available. The collection covers three kinds of materials:

The first is the official records from the lower court(s): the trial transcripts, evidence, and procedural documents that travel with each case up through the federal judiciary.

The second is the briefs: the petitions, responses, amicus filings, and supporting appendices submitted by the litigants themselves and by interested third parties. These briefs are the raw material of American constitutional argument. They capture the perspectives of individuals, corporations, civil society organizations, and government agencies pressing their cases before the nation’s highest court.

The third category is the opinions (for cases that are heard by the Supreme Court): the ultimate decisions reached by the highest court in the United States, demonstrating the logic and reasoning of the court.

Taken together, they form a detailed documentary record of how legal arguments, social concerns, and political priorities have evolved over nearly two hundred years of American life.

Berger-Howe Fellowship to Reiss

2026-04-22T00:30:00.005-04:00

[We have the following announcement. DRE]

The Raoul Berger-Mark DeWolf Howe Legal History Fellowship for 2026-2027 at Harvard Law School has been awarded to Jennifer Reiss. A doctoral candidate in history at the University of Pennsylvania, she received her B.A. from Penn and her law degree from Harvard, as well as two master’s degrees in law and history from the University of Cambridge. Before graduate school, she practiced law in New York and London. During her fellowship year she will revise her dissertation, “Undone Bodies: Women and Disability in Early America,” for publication and work on a new project on disability and abolitionism in eighteenth- and early-nineteenth-century America.

Stenlund on Sweden, Rule-of-Law Talk, and the US Right

2026-04-21T00:30:00.003-04:00

On Tuesday, April 28, 15:00-16:30, Helsinki time, which is seven hours ahead of EDT, Karolina Stenlund, a lecturer at the Faculty of Law at the University of Helsinki, the holder of a doctoral degree in law, and a former visiting doctoral researcher at Harvard Law School, will present in the Helsinki Legal History Series seminar:

My presentation for HLHS will be on an article that examines the uneasy relationship between the rule of law and democratic backsliding through a legal-historical case study of Sweden. Challenging the conventional assumption that legality and the rule of law inherently safeguard democracy, the article traces how early rule-of-law discourse and rights-based litigation in Sweden emerged not from left-wing civil rights activism but from a right-libertarian legal movement inspired by U.S. public-interest law firms. Through an analysis of the landmark 2006 "Uppsala case" and the intellectual and strategic foundations behind it, the article shows how concepts such as equality and the rule of law were mobilized to expand judicial power and reshape the balance between courts and the political branches. By situating these developments within Sweden's unique political and constitutional history, the article highlights how legal strategies aimed at strengthening individual rights can simultaneously redistribute political power in ways that complicate dominant narratives of democratic resilience. The piece forms part of an ongoing research project and should be read as work in progress.

Online attendance (listen-only) here.

--Dan Ernst

ASLH 2026 Registration Open

2026-04-20T00:30:00.001-04:00

[We have the following announcement from Emily Prifogle, Secretary of the American Society for Legal History. DRE.]

We are happy to announce that pre-registration for the ASLH meeting in Banff is now open!

If you navigate to the conference page, you will be able to register. Pre-registration is open and refundable until October 9, so we encourage you to register early. This helps the Society in our planning.

We encourage attendees to stay at the conference hotel and to make hotel reservations early. The ASLH contracts for a set number of rooms at the negotiated rate. Once those rooms are taken--and this can happen well before the conference registration deadline--attendees must make other arrangements, either at the conference hotel at a higher room rate or elsewhere.

Our local arrangements committee has also added a guide to Banff, including cultural icons, restaurants, and practical tips on transportation.

We also gently remind you that the deadline to apply for ASLH prizes and fellowships is coming on June 1. Projects and Proposals funding will be due on September 1.

Finally, we are pleased to announce that the ASLH 2027 meeting will be held November 4-6 in Minneapolis!

We look forward to seeing you in Banff.

Weekend Roundup

2026-04-18T00:30:00.183-04:00

Mary Sarah Bilder, Boston College Law School, delivers the 2026 Maurice and Muriel Fulton Lecture at the University of Chicago Law School on Catherine Macaulay's 1767 pamphlet, "Loose Remarks."

The Columbia Law Library tells the law school's history through an exhibit of its "artifacts and treasures" (CLS).

And the Princeton University Library has opened the exhibit “Nursery of Rebellion’: Princeton and the American Revolution,” featuring original copies of the Declaration of Independence and the U.S. Constitution (Daily Princetonian).

From In Custodia Legis: a post on "William Paca, Deliberator and Declaration Signer.

On April 28, Foley partner Harlan Levy will moderate a discussion with Akhil Reed Amar on The Declaration's Impact on American History, Law and the Constitution at the NYC Bar Series. Also here.

Over at Nursing Clio: Dori Hobbie on "British Reactions to the 1992 Irish X Case."

Greg Ablavsky, Stanford Law, on Native Nations, Federal Indian Law, and the Birthright Citizenship Case (SLS Podcasts). Also, the National Constitution Center's resource guide for classroom discussions of the birthright citizenship.

More on that PRA EO: Marty Lederman, Georgetown Law, and Jack Goldsmith, Harvard Law, on who owns Presidential Records (Executive Function Chat). Christopher Fonzone says that the Presidential Records Act is Constitutional (Just Security). Gary M. Stern, a former general counsel for the National Archives and Records Administration, is astonished by the executive order (WaPo).

ICYMI: Jane Manners and Lev Menand summarize their argument on "The Law of For Cause Removal" (Oxford Business Law Blog). Live from Penn Carey Law via WHYY: Kermit Roosevelt and Amanda Shanor of the history of the U.S. Supreme Court (YouTube). Larry Solum takes issue with Richard Primus on enumeration and constitutional interpretation (Legal Theory Blog).

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

Amorosa and Suuronen on Schmitt and Vitoria

2026-04-17T09:30:00.001-04:00

Paolo Amorosa, University of Helsinki Faculty of Law, and Ville Suuronen, University of Turku, have posted 'Ancora tu?' Questioning Carl Schmitt's Place in the Canon of International Law:

In recent decades, the controversial intellectual legacy of Carl Schmitt, leading Nazi lawyer, has returned to prominence in political and legal theory as well as in international law. Schmitt’s work continues to inspire not only conservative and far-right thinkers but, somewhat surprisingly, also serves as a source of inspiration to leftist or even postcolonial positions. This revival is often justified through a decoupling of Schmitt’s odious political commitments from what is often seen as his uniquely valuable insight into the nature and history of the international legal order. The goal of this chapter is to problematize and question this decoupling and the resulting canonical position Schmitt has acquired as a theorist and historian of international law. As our starting point to this complex debate, we offer a critical analysis of Schmitt’s profoundly political narration of the history of international law, and in particular, his supposedly neutral appropriation of Francisco de Vitoria, usually examined apart from the historical context and motives that inspire Schmitt to take up this figure in the 1940s. By comparing Schmitt’s work on Vitoria with his earlier publications on international law, we offer a historical contextualization of the development of Schmitt’s arguments, showing how these were motivated by unscholarly and overtly political intentions. Indeed, Schmitt used Vitoria to develop a complex historical narrative of international law which not only reiterated far-right revanchist positions on the Treaty of Versailles but also aimed to offer an apologetic narrative concerning his own role within the Nazi party.

--Dan Ernst

The Decline and Fall of the State Executive Council

2026-04-17T00:30:00.001-04:00

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

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

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

--Dan Ernst

Allread, "Indigenous Constitutionalism"

2026-04-16T09:30:00.002-04:00

The Harvard Law Review has published "Indigenous Constitutionalism," by Tanner Allread (University of California, Los Angeles). The abstract:

By standard accounts, there are fifty-four constitutions across the federal, state, and territorial governments of the United States. But in fact, there are 230 other governmental constitutions that currently govern peoples and territories within the United States. These constitutions not only flow from a sovereignty that existed prior to the United States but also came out of a legal movement that asserted its independence from both the U.S. Constitution and state constitutions.

This Article tells the story of these constitutions — the constitutions of Native nations. Having existed for over two centuries with an archive of thousands of constitutional documents and amendments, tribal constitutions have been left out of the narratives of American constitutional history while being obscured within the fields of American constitutional law and federal Indian law. This Article corrects these oversights and calls for the recognition of a tradition of “Indigenous constitutionalism” in the United States.

This Article’s aims are both theoretical and historical. On one hand, it conceptualizes Indigenous constitutionalism as a distinct and shared constitutional practice through which Native nations claim and exercise self-governance while embedded in the wider constitutional — and colonial — landscape of the United States. On the other hand, this Article draws Indigenous constitutionalism’s features from the two-hundred-year history of tribal constitutions. It explores, for the first time, three major eras of tribal constitutional development: the first constitutions during the early nineteenth-century period of Indian Removal, the explosion of constitutions under the Indian Reorganization Act in the early twentieth century, and the movement for tribal constitutional reform that has stretched from the late twentieth century to today.

But this Article also brings theory and history together to rethink the prevalent narratives surrounding tribal law, federal Indian law, and American constitutionalism. Indigenous constitutionalism reveals the fundamental and persistent questions around which a tribal constitutional law framework can be constructed. It also revises the origin stories of federal Indian law, demonstrating that the field did not coalesce in isolation from tribal law but was actually cocreated with tribal constitutions. Finally, by placing tribal constitutions into conversation with other American charters, Indigenous constitutionalism disrupts and expands the category of constitutionalism itself. This Article demonstrates that tribal constitutions — unique among American constitutions — showcase how these documents can appear in many forms, function as external-facing declarations of sovereignty, and exist alongside other forms of fundamental law.

Read on here (or at SSRN).

-- Karen Tani

Wieboldt on Catholic Legal Thought and First Amendment Originalism

2026-04-16T00:30:00.001-04:00

Dennis J Wieboldt, III, a JD-PhD candidate at Notre Dame, has published ‘But the original intent of the Constitution would be restored’: Catholic legal thought and the emergence of First Amendment originalism, 1947-87, online and open access in the American Journal of Legal History:

Several scholars of twentieth-century American legal history have recently argued that originalism—a method of constitutional interpretation commonly associated with the conservative legal movement—first emerged as southern Republicans and conservative Democrats (many of whom were evangelical Protestants) reacted to the US Supreme Court’s 1954 decision in Brown v Board of Education. But southern opponents of Brown were not the only figures to have self-consciously introduced originalist ways of thinking about the Constitution into the nation’s legal vocabulary at mid-century. Indeed, this article reveals that, nearly a decade before Brown, Catholics hundreds of miles away from Selma and Little Rock similarly sought to convince their neighbours that the Constitution ought to be understood according to the intentions of its eighteenth-century drafters (or, when appropriate, its nineteenth-century amenders). And importantly, they did so not to undermine the Civil Rights Movement, but rather to ensure that the Court’s 1947 decision in Everson v Board of Education would not stymie the American Catholic Church’s efforts to obtain public financial assistance for parochial schools.

In encouraging jurists, scholars, and voters to understand the First Amendment’s Religion Clauses through the lens of founding-era history, post-Everson Catholics became as responsible as anyone outside of the Supreme Court for originalism’s decisive (re)shaping of the Religion Clauses during the next half-century. But this ultimately proved troubling to some as the conservative legal movement became ascendant in the 1980s. From the perspective of these critics of First Amendment originalism, God’s natural law, not Thomas Jefferson’s metaphorical ‘wall of separation’ between church and state, should determine the First Amendment’s meaning. In concluding, this article therefore suggests that Catholics initially turned to originalism pragmatically to vindicate their background philosophical and theological conceptions of religious liberty, but increasingly came to realize that originalism—to the extent that it relied on positivist assumptions about the nature of individual rights—was alone inadequate to do so.

--Dan Ernst

Kent on the Interwar Development of American Economic Sanctions

2026-04-15T00:30:00.000-04:00

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

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

--Dan Ernst

New Resource: The Supreme Court Indian Law Database

2026-04-14T12:30:00.002-04:00

[The following is an invited guest post by Keith Richotte, Jr. (Director, Indigenous Peoples Law and Policy Program, and Professor of Law, University of Arizona), introducing The Supreme Court Indian Law Database.]

A critical new resource for scholars of the Supreme Court and Native America is now available: The Supreme Court Indian Law Database. Recently launched, this website offers a number of important features.

It identifies every Indian law case decided by the U.S. Supreme Court (680 and counting). Listed chronologically, the list has a search function to allow a researcher to find a particular cases or cases easily

It places each case in one or more categories for identification and comparison. The site has forty-three categories, including plenary power, criminal jurisdiction, treaties, and many others

It lists every justice of the U.S. Supreme Court and their participation in the cases on the list. It also identifies how the justice voted and if they wrote in a particular case

The pages for each individual case identifies the other cases on the list that it cites and the cases where it has been cited. For example, Cherokee Nation v. Georgia cites three cases and has been cited forty-eight times

In the future additional search functions will be added to the site. Once running a researcher will be able to easily identify cases decided between a certain date range, or cases that fall under the same four categories, or find out which three justices participated in the same cases or any combination of all three of these things and more.

In addition, there is room for debate for what counts as an Indian law case or for which category a particular case belongs. While acknowledging this certain subjectivity, quite a bit of thought and care went into curating the list. If you have questions about the list or would like to know how it was crafted please visit the methodology page.

Finally, while a lot of thought and care has been put into the list and the website, it is still very new and there is always room for improvement. To that end, if you have any constructive feedback you would like to share please send it to Keith Richotte, the curator of the site and Director of the Indigenous Peoples Law and Policy Program at the James E. Rogers College of Law at the University of Arizona. His email address is at the bottom of the main page.

The hope is that this website will be a valuable resource for practitioners, scholars, students, tribal nations and peoples, and anyone else with an interest in Native America and a desire to see Indigenous peoples thrive. Thank you and happy searching on SCILDB.com!

Widener on Greenleaf's Confessions and Corbin's Complaint

2026-04-14T09:30:00.002-04:00

Mike Widener, formerly Rare Book Librarian in the Lillian Goldman Law Library at the Yale Law School, has made two recent articles available via Academia. The first appeared in volume 29 of the Green Bag, 2d ser.: "Confessions of a Case Reporter." “It describes and publishes a letter that Simon Greenleaf wrote in 1836, where Greenleaf discusses both the economics and the style of case reporting, and concludes that ‘it costs far more labor to make a neat & condensed report of a case, than to publish it, chaff & all, just as the materials come to the reporter’s hands.’”

The second appeared in volume 12 (2025) of the Journal of Law. "Authoring: Reclaiming Credit Where Credit is Due” presents “an irate memorandum by Arthur Corbin, accusing the dean of the Yale Law School of trying to stiff him and a co-author over payment and credit for their work on Volume 22 of the Cyclopedia of Law and Procedure (1906).”

--Dan Ernst

Durrani, "Before Invention"

2026-04-14T00:30:00.001-04:00

Haris Durrani (Harvard University) has posted "Before Invention," forthcoming in the Texas Intellectual Property Law Journal. The abstract:

This Article is the first comprehensive historical account of a foundational doctrine of U.S. patent law: conception. Conception supplies the meaning of invention at the root of the patent system. It is a mental act, the formation of the idea of an invention before it is made. Considered “the touchstone of inventorship,” conception can determine who receives a patent, awarding credit and title, and governs employee inventions and federally funded research. Despite conception’s import, courts inconsistently state its doctrinal standard while insisting on its deep historical continuity, and scholars exclude it from studies of patent law’s practice, theory, and history. Carefully reading nearly two centuries of cases and treatises, the Article details the doctrine’s development, reveals its causes and tectonic effects on the patent system, and proposes a new test. Due to conception’s influence across other doctrines, the test transforms the meaning of invention holding aloft the system’s whole architecture.

The conventional wisdom is that the meaning of conception is well-settled, “unchanged for more than a century.” But this Article argues the doctrine has oscillated between a “mentalist” tradition, privileging a general idea in the mind at an early stage of the inventive process, and a “materialist” one, privileging a detailed idea formed amidst the physical work of experimentation. The doctrine developed in three phases, crafted in the nineteenth century with a mentalist theory equating conception with invention; turned materialist in the twentieth, breaking that equation; and, near the twenty-first, reverted to mentalism, albeit unsteadily. Heedless of these conflicting traditions, scholars and judges pick and choose among their divergent doctrinal standards. The result is a modern doctrine as convoluted as its history. Clarity requires understanding the development of the doctrine’s oscillating preferences for ideation and work.

The Article draws two takeaways from this history. First, conception has long provided the meaning of invention underwriting the patent system. This claim counters popular belief in patent law’s early materialism and recasts the modern system as the triumph of conception’s doctrinal development. Conception is thus not only temporally before making an invention, but also ontologically before the very notion of invention—the first principle of the entire edifice. This conclusion provides a basis for a foundational theory of invention that traverses the many doctrines shaped by conception’s doctrinal development.

Second, conception must be reworked to bring back the materialist turn, grounded in experimental labor. The mentalist tradition is flawed, designed to exclude that labor. The Article proposes a new test synthesizing elements from the materialist case law. While scholars have advocated materialist approaches to other doctrines, primarily related to inventorship and a patent application’s disclosure, those doctrines were largely shaped by conception’s development and should incorporate versions of the proposed conception test, harmonizing divergent theories of invention with their source. The test resolves controversies over federally funded research and artificial intelligence, and the thorny case law on disclosure, the basis of the modern system

Read on here.

-- Karen Tani

Lake on Men's Suits for Sexual Misconduct Defamation

2026-04-13T00:30:00.001-04:00

Jessica Lake, Melbourne Law School, has published Professional authority and institutional integrity: men's suits for sexual misconduct defamation in nineteenth-century America, open access, in the American Journal of Legal History:

Since the #MeToo movement, prominent men accused of sexual misconduct have frequently brought defamation claims against their accusers and media companies that have published the allegations. This trend has generated a wealth of debate and scholarship, but little research has placed such cases within a historical context. This article seeks to fill this gap in legal history by examining men’s sexual misconduct defamation claims in the nineteenth-century United States. By analysing numerous court records and connecting them with shifts in work patterns and models of masculinity, it argues that men’s claims for sexual misconduct defamation were increasingly connected to the rise of the professions during the nineteenth century. Whereas ideas of ‘male fortitude’ in the face of sexual accusations were central to judicial adjudication of rural men’s claims—particularly farmers—courts took the vindication of the sexual reputations of urban, professional men more seriously. Such scandals had the capacity not just to insult or wound individual feelings or threaten bonds of community or kin, but they could imperil respect for the emerging professions and undermine the authority of social institutions. Scandals involving professors could erode the repute of universities, reports about doctors could undermine respect for medicine, rumours about lawyers could breed distrust of the courts, and news articles about teachers could threaten the education system. Defamation cases show that men’s sexual transgressions mattered most when they questioned the authority of professional expertise and republican projects of other men.

--Dan Ernst

Weekend Roundup

2026-04-11T00:30:00.095-04:00

Over at JOTWELL, we've noticed several reviews of interest: Maya Manian (American University Washington College of Law) wrote about Aziza Ahmed's Risk and Resistance: How Feminists Transformed the Law and Science of AIDS (2025); Martha Ertman (University of Maryland Francis King Carey School of Law) reviewed Dorothy Brown, Getting to Reparations: How Building a Different America Requires a Reckoning with Our Past (2026); Jedidiah Kroncke (University of Hong Kong) spotlighted María E. Montoya's A Workplace of Their Own: Rockefeller, Roche, and Labor's Battle Over Industrial Democracy (2026).

The California Law Review's podcast has posted an episode on Michael Banerjee's "What Harvard’s Lawsuit Should Have Said" (published in the journal's online companion in August 2025).

On the history-of-higher-ed theme, Banerjee also alerted us to this interesting Portland Press Herald article, on "How Maine’s elite private colleges sold Wabanaki land to bankroll early construction."

Vicki Jackson, HLS, delivered the 2026 Malyi Lecture at the University of Chicago Law School on “Knowledge Institutions and Constitutional Democracy.”

Jack Rakove will speak on Theory of Constitutional Failure: The American Case at Notre Dame Law on Friday, April 24, 2026, from 2:00 pm - 3:00 pm.

Congratulations to Kunal Parker, Miami Law, on his selection as Beatrice Webb Visiting Professor at the London School of Economics!

And congratulations to Edward J. Balleisen, the new Provost of George Washington University! (GW Today)

Nathan Dorn on Lodovico Carerio: Heresy, Lawbooks, and the Inquisition in the Kingdom of Naples (In Custodia Legis).

Haris A. Durrani, a Prize Fellow in Economics, History, and Politics at Harvard University, has published Engineering the Law: The Complicated Legal History of a Satellite in the American Historical Association's Perspectives on History.

"The 1874 Arkansas Constitution and records from the convention that produced it are now available online through a collaboration between the University of Arkansas Libraries and the Quill Project at the University of Oxford" (Arkansas News)

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

The National Constitution Center has announced the opening on May 15 of "Governing the Nation, a new permanent gallery exploring the Constitution’s system of separated powers." Its development was guided by "a distinguished scholarly advisory board representing leading universities and research institutions, ensuring a rigorous and balanced exploration of the separation of powers and federalism," including H. W. Brands, Cristina Rodríguez, Yuval Levin, Michael Klarman, Gail Heriot, and Ilan Wurman.

Deborah Rosen reviews Andrew Fede's A Degraded Caste of Society in the Journal of Southern History.

That E.O. on the PRA: The American Historical Association and American Oversight file suit (CBS News). The Trump Administration Is Trying to Erase Its Own History (Atlantic Daily). Joyce Vance with the court filing (Civil Discourse). The AHA's notice of the lawsuit.

More on Birthright Citizenship: Steve Vladeck, Georgetown Law, on the "pitched battle within the legal academy over the fairly transparent efforts of a small cohort of right-wing law professors to provide a fig leaf of historical support for the Trump administration’s legally and morally odious position in the birthright citizenship case" (One First). Philip Hamburger, Columbia Law, on Allegiance, Birthright, and Citizenship (Law & Liberty). For a brief time only, you may read, open access, the introduction to Anna O. Law's Migration and the Origins of American Citizenship, here.

ICYMI: In the National Constitution Center's series, "Constitutional Voices": W.E.B Du Bois and Elizabeth Cady Stanton. Kevin Kruse rethinks the Civil Rights Movement (Campaign Trails).

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

Kohtz on a Successful Challenge to an Indian Boarding School

2026-04-10T00:30:00.002-04:00

Rong Kohtz, a historically minded attorney-at-law, has posted In re Lelah-Puc-Ka-Chee: A Case Study on the Americanization of Law in the Heartland, 1898-1908:

Lelah Puc-Ka-Chee (SHSI via Wiki)
From 1899 to 1908 in Iowa, the Meskwaki people and their local allies repeatedly defeated forcible removal of their children to a federal Indian boarding school in a series of legal actions during the zenith of hostile assimilation. The case of Lelah-Puc-Ka-Chee was the first one of these cases. The Meskwaki’s legal victory unsettles the prevailing historical account that casts Indigenous peoples as passive and reactionary to the U.S.’s assimilationist Indian policies and calls for re-examination of Indigenous Americans’ role in the evolution of American law. By examining the power dynamics in the cases regarding Lelah-Puc-Ka-Chee, this essay investigates how far was the reach of the colonial administrative and judicial powers in the lives of Indigenous families and individuals, and what forces accelerated, slowed, or redirected the colonial powers in the domestic sphere at the local level. In this exploration, the essay finds powerful Indigenous forces in the Americanization of law, and Indigenous Americans role as progenitors of a pluralistic American polity.

--Dan Ernst

Ritger's "Houses of Correction"

2026-04-09T09:30:00.000-04:00

Matthew Ritger, Dartmouth College, has published Houses of Correction: Carceral Institutions and Humanist Culture in Early Modern England (University of Pennsylvania Press):

More than 250 years before the rise of the modern penitentiary, houses of correction pioneered the use of forced labor and individualized sentences within institutions of confinement, promoting reform and the “hope of amendment” for every individual. Yet these earlier carceral institutions faced many of the problems that remain familiar today: corruption scandals, recidivism, and abuses of power.

In Houses of Correction, Matthew Ritger turns to the archives of England’s first house of correction, Bridewell, to show how humanist reformers provided ideas, justifications, and administration for what came to be called bridewells, workhouses, and “Literary worke-houses,” even as repeated scandals made it clear that these coercive institutions would forever be at odds with the ideals of humanist culture. Examining how the work of writers including More, Shakespeare, and Milton dealt with humanism’s entanglements with these new prisons, Houses of Correction constructs the first book-length literary history of some of early modern Europe’s most influential carceral institutions.

--Dan Ernst

Sanders, "Parliament's American Shadow"

2026-04-09T00:30:00.002-04:00

We missed this one from earlier this year: Anthony B. Sanders (Institute for Justice, University of Minnesota) has posted "Parliament's American Shadow." The abstract:

In the first century after 1776 American courts repeatedly compared their constitutional system's understanding of sovereignty-where the people are sovereign and speak through written constitutions and where legislatures are subordinate-with the British system where Parliament itself was sovereign. This distinction was central to the invention of judicial review. In 1776 Americans rejected British rule and Parliamentary sovereignty. But that did not necessarily mean they had to embrace popular sovereignty and written constitutions. Yet they did, and that choice led to the rise of judicial review just a few years later. American judges understood this genealogy and therefore found the "omnipotent" Parliament an incredibly useful rhetorical device when justifying judicial review. At the same time, judges used "Parliament" in other contexts, including the exact opposite-justifying judicial restraint-and also to shame American legislatures for at times behaving worse than Parliament did.

This Article reviews the use of "Parliament" as a rhetorical device in American courts from the Republic's earliest days. After a review of the centrality of the Crown in Parliament in the British constitutional system and the choices Americans made in the Revolution to embrace a constitutional architecture that would lead to judicial review, it examines various cases where American judges repeatedly invoked what the Article calls "Parliament's shadow." Two well known examples are Calder v. Bull and Vanhorne's Lessee but there were numerous others. The review demonstrates that this practice continued at around the same frequency from the late eighteenth century through the mid-nineteenth century. However, the Article then documents that Parliament's shadow ebbed, steadily, in the late nineteenth and early twentieth centuries, essentially had disappeared by the mid-twentieth century, and has never rebounded. Although American courts today still sometimes compare the British constitutional system to the American, it is extremely uncommon.

Why after the repeated use of Parliament's shadow over the first century of the United States did American courts slowly give it up? There is no clear answer but the author offers some suggestions. One is that after the Revolution passed out of living memory, although judicial review itself was secure, the connection between it and the Revolution's change in systems of sovereignty became less front of mind. Another, and perhaps the most important, is that as the title of "top nation" passed from Britain to America the shadow of Parliament inevitably receded.

Read on here.

-- Karen Tani

OAH Binkley Stephenson Award to Lim

2026-04-08T12:30:00.000-04:00

The Organization of American Historians has announced its 2026 award winners, and among them is Julian Lim (Johns Hopkins). Lim won the Binkley-Stephenson Award for her article "Plenary Powers: Chinese Immigration, Sovereignty Challenges, and the Making of Federal Immigration Power in the U.S. West," Journal of American History 112, no. 3 (2025). This award "is given annually . . . for the best article that appeared in the Journal of American History during the preceding calendar year."

-- Karen Tani

OAH Merle Curti Award to Lew-Williams for "John Doe Chinaman"

2026-04-08T09:30:00.001-04:00

The Organization of American Historians has announced its 2026 award winners, and among them is Beth Lew-Williams (Princeton University). She won the Merle Curti Award for John Doe Chinaman: A Forgotten History of Chinese Life under American Racial Law (Harvard University Press, 2025). This award recognizes "the author of the best book in American social history."

-- Karen Tani