Legal History Blog

BU Law Review Symposium on "The University and Democracy"

2026-08-05T14:00:00.000-04:00

Volume 106, no. 4 of the Boston University Law Review features the essays from the law review's Fall 2025 Symposium on The University and Democracy. The following may be of particular interest to readers of this blog:

A Brief on Behalf of the Corporate University by Timothy V. Kaufman-Osborn

A Tale of Two Strikes (And Dreams of More) by Nina Farnia
Using Citizens United by Michael Banerjee

-- Karen Tani

Nelson's "Concise History of American Law"

2026-08-04T00:30:00.000-04:00

We note the posthumous publication of the late William E. Nelson's Concise History of American Law (Oxford University Press):

A Concise History of American Law traces the development of the US legal order from the colonial era to the twenty-first century. Emphasizing the essential role of the common law--derived from judicial precedent, rather than legislation--eminent legal historian William E. Nelson examines the foundations of the American rule of law and its interactions over time with political, economic, and societal transformations. Synthesizing the broad structural, institutional, and ideological changes embedded within American legal history illuminates the significant role courts have played in structuring politics and society. Nelson's accessible chronological narrative details how the rule of law has both facilitated change, by protecting the rights of those who advocate for it, and inhibited change, by acting as a conservative bulwark protecting the rights and property of the rich and powerful. Weaving this fundamental tension between law and politics into his pithy account of how the law was made and practiced over three centuries of American history, Nelson has produced an invaluable guide to the intricate evolution of the modern US legal system.

--Dan Ernst

Balkin on How Social Power Shapes Legal Reason

2026-08-03T09:30:00.000-04:00

Jack M. Balkin, Yale Law School, has posted From Off the Wall to On the Wall: How Social Power Shapes Legal Reason:

Throughout the history of the Constitution legal arguments have moved from being "off the wall"-- crazy incompetent, and beyond the boundaries of professional reason, to "on the wall"-- plausible claims on which reasonable minds can differ. Some of these claims have eventually become part of the law, and a few have become orthodox, so that denying them would be off the wall.

This article explains how and why this happens. Arguments move along a spectrum of plausibility depending on who occupies important nodes of power and influence in society. These include political leaders, political parties, social movements, the media, elite lawyers, and legal intellectuals. When powerful actors invest in a fringe claim, they compel the legal profession to debate it. Arguments move on the wall not by general acceptance but by compelled engagement.

Several examples show how this dynamic works in practice. Arguments for same sex marriage only slowly gained traction because gays and lesbians had little social status and had to build support over decades. The constitutional challenge to Obamacare's individual mandate moved on the wall in only a few years because the Republican Party and conservative media were unified behind it. The equal protection argument in Bush v. Gore took only a month because control of the government was at stake. The Trump administration's recent challenge to birthright citizenship had the support of a sitting president, the MAGA social movement, the Republican Party, and the party's affiliated media and institutions. Conservative legal intellectuals quickly devised arguments designed to appeal to a Supreme Court six of whose members were conservatives appointed by Republican presidents.

Underlying this phenomenon is the dual nature of legal consciousness, which combines acceptance of shared professional norms with constitutional protestantism, the belief that individuals can interpret the Constitution for themselves. The phenomenon also exemplifies law's dual character as fixed in the short run and mutable in the long run. Legal education cultivates this duality, training lawyers both to treat existing law as authoritative and to creatively deconstruct it.

The theory recasts jurisprudential debates over legal indeterminacy from the nature of language to sociology and culture. Legal materials are flexible but not infinitely malleable; they are tilted towards entrenched interests until sustained social power changes them. Following these changes, constitutional culture frequently rewrites its own history. Formerly off-the-wall claims that win out are later heralded as always having been correct, while formerly accepted decisions, such as Plessy v. Ferguson, are denounced as “wrong the day they were decided.” This triumphalist narrative obscures the intense social and political labor required to shift the boundaries of professional reason.

--Dan Ernst

Weekend Roundup

2026-08-01T00:30:00.000-04:00

ASLH President (and former Legal History Blog co-moderator) Mitra Sharafi discusses her new book, Fear of the False: Forensic Science and the Law of Crime in Colonial South Asia (Cornell University Press) over at the New Books Network.

Penn Carey Law announces the awarding of its first Certificate of Study in History and Historical Research Methods, which provides students with "a structured pathway to build expertise in legal history without the multi-year commitment of Penn Carey Law’s JD/PhD Program in American Legal History."

Over at JOTWELL: Ilya Somin (Scalia Law) spotlights Anna O. Law's Migration and the Origins of American Citizenship: African Americans, Native Americans, and Immigrants (2026); Reuel Schiller (UC Law San Francisco) reviews Alma Steingart, One Person, One Vote? The Gap between Representative Equity and Mathematical Equality after Baker v. Carr, 112 J. Am. Hist. 702 (2026).

Todd C. Peppers and Madison Mycoff on how Chief Justice Warren Burger celebrated the Declaration of Independence in 1971 (SCHS).

From Nursing Clio's "undergraduate writing series": “Presumptive Testimony Only”: From Esther Davis to Patience Rousseau, Two Centuries of Criminalizing Pregnancy Loss, by Rachel Kuhn.

"Cooley Law School Professor Joseline Jean-Louis Hardrick recently premiered, “If These Headlines Could Talk,” an original historical documentary musical that brings the landmark decisions of the Warren Court to life through storytelling, music, archival materials, and legal history" (Florida Bar News).

Kali N. Murray, Marquette Law, on the haunting of American trademark law (by fugitive slave advertisements) (Marquette Today).

Over at Shugerblog, Jed Shugerman (Boston University School of Law) has been "fact-checking" the U.S. Supreme Court. The latest installment is here.

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

WMQ Forum on the Dickinson-Barclay Documents

2026-07-31T12:30:00.000-04:00

The William and Mary Quarterly has published a Forum on the "Dickinson-Barclay documents." From the introductory essay, by Jane E. Calvert (John Dickinson Writings Project) and Jonathan Gienapp (Stanford University):

This Forum introduces previously unknown documents written by John Dickinson, the leading American revolutionary statesman, in mid-1775 and explores their historical significance. The documents reveal one of the last attempts to prevent American independence and the secret diplomatic back channels used to carry it out. There are four documents: two lengthy letters from Dickinson to David Barclay Jr., a British merchant, and two nearly identical drafts of a legislative act for Parliament to adopt to resolve the imperial crisis and restore harmony in the empire. An introductory essay by Jane E. Calvert and Jonathan Gienapp places these documents in their original context. Five subsequent essays interpret their deeper significance: Calvert shows how Dickinson's letters undermine John Adams's later portrayal of the Second Continental Congress; Gienapp traces continuities between Dickinson's struggle to preserve the British Empire and similar attempts to hold together the new American federal union; David Como situates Dickinson's peace bid in the context of contemporary British politics and previous failed reconciliation attempts; William B. Ewald explores how Dickinson used ambiguous wording and punctuation in his draft act to navigate the irreconcilable principles of the two sides; finally, Jack N. Rakove argues that Dickinson occupied an increasingly idiosyncratic political position, but his bid for peace ultimately failed because Britain's leaders would not rethink their inflexible imperial policy.

The full issue is available here. And according to Prof. Gienapp (via Bluesky), "the WMQ has generously made the issue open access for the next month."

-- Karen Tani

Welcome (Back), Mitra Sharafi!

2026-07-31T00:30:00.000-04:00

We are thrilled to announce that former LHB blogger Mitra Sharafi will be re-joining us for the month of August as a guest blogger!

Professor Sharafi is the Evjue-Bascom Professor of Law at the University of Wisconsin-Madison and a renowned legal historian of South Asia. She is also a dedicated servant of the field -- including in her current role as President of the American Society for Legal History.

Cribbing now from her Wisconsin bio:

Mitra Sharafi (UW History)
She holds law degrees from Cambridge and Oxford (the UK equivalent of a JD and LLM) and history degrees from McGill (BA) and Princeton (PhD). Her first book, Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947 (Cambridge University Press, 2014) won the Law and Society Association’s Hurst Prize in 2015. Her second monograph, Fear of the False: Forensic Science and the Law of Crime in Colonial South Asia, came out with Cornell University Press (Open Access) in 2026. Her next major project will explore the world of non-European law students from across the British empire (and globe) who came to London's Inns of Court to become barristers, 1860s-1960s.

A fuller description of Fear of the False, via the Press:

Fear of the False uncovers colonial South Asia's critical role in the development of forensic science. Around 1900, the government of British India created a web of institutions for the scientific detection of crime. Driven by anxieties about "native mendacity," newly minted forensic analysts focused on uncovering faked evidence planted by South Asians. These experts, joining toxicologists known as "chemical examiners," were supposed to extract objective, scientific truth in the service of British justice. But in trying to counteract the presumed tendency of colonized peoples to lie, the system enabled widespread misconduct by state experts, increasing the risk of wrongful convictions of South Asian defendants.
Through scrupulously documented legal cases, Mitra Sharafi reveals that colonial dynamics put special pressure on the relationship between truth and justice. Examining falsity on both sides of the law through the use of testing to (mis)identify poisons, blood, and spermatozoa, as well as debates over adversarialism and inquisitorialism in the colonial courtroom, Fear of the False explores advances in forensic science and shortcuts in criminal procedure against the backdrop of colonial mistrust.
Thanks to generous funding from the University of Wisconsin Law School, the ebook editions of this book are available as open access volumes through the Cornell Open initiative.

Welcome back, Professor Sharafi!

-- Karen Tani

Call for Applications: Assistant Prof. of Law, Politics & Public Discourse at UC Berkeley

2026-07-30T15:00:03.140-04:00

We have the following call for applications:

The Department of Rhetoric at the University of California, Berkeley, invites applications for a tenure-track assistant professor position in Law, Politics, and Public Discourse, with an expected start date of July 1, 2027.
The Department seeks applications from candidates with an active research agenda in the interdisciplinary study of law and/or politics. The position is open to applicants whose research and teaching critically engage with the rhetoric and traditions of politics and political thought, legal thought, legal history, law & humanities, and/or sociolegal studies. The position is open in terms of specialization, historical period, and geographical area. We especially welcome candidates whose research in law and/or politics contributes to the Department’s historical and existing strengths in aesthetics, gender and sexuality, religion, science and technology, and the environment. Applicants should demonstrate evidence of a strong humanistic and/or theoretical research agenda and excellent scholarly potential in areas that complement the interdisciplinary profile of the Department. Responsibilities include teaching graduate seminars and undergraduate courses in the Department's Public Discourse concentration, mentoring graduate students in the Ph.D. program, and participating in departmental and campus life.

Rhetoric is a multidisciplinary and transdisciplinary department distinguished by its ongoing interrogation of existing and emerging fields of knowledge at their boundaries. While the Department is open to all disciplines in the humanities and the humanistic social sciences, it strongly values theoretical approaches that cross conventional disciplinary divisions. For more information about Rhetoric, visit Home | Rhetoric.

The department is committed to addressing the family needs of faculty, including dual career couples and single parents. We are also interested in candidates who have had non-traditional career paths or who have taken time off for family reasons, or who have achieved excellence in careers outside academia. For information about potential relocation to Berkeley, or career needs of accompanying partners and spouses, please visit the Office for Faculty Equity and Welfare

Click here to continue reading

-- Karen Tani

Gordon on Church and State in Early New York

2026-07-30T00:30:00.000-04:00

Sarah Barringer Gordon, University of Pennsylvania, has posted The Holy Cause: Church and State in Revolutionary and Early National New York:

This article explores a key outgrowth of the American revolution in the law of church and state. The careers of Presbyterian pastor John Rodgers of New York and his congregants bridged pre- and post-revolutionary debates on the law of religion. In early 1784, the inaugural New York State legislature passed a game-changing law, introduced by one of those congregants, which allowed all “religious societies” to incorporate.

The new law followed decades of controversy over whether non-Anglican religious organizations could incorporate in the colonies. Just months after the British evacuated, New York transformed an Anglican privilege into a general benefit. The law also mandated significant lay control, vesting elected trustees with authority over salaries, decisions to buy and sell, and more.

Other states followed New York’s lead. Lay trustees controlled church finances and property: they became partners with local governments in state-building infrastructure, as they founded universities, hospitals, publishing houses, libraries, etc. Some religious institutions grew faster than others in this expansive climate. Presbyterians’ conservative standards meant that more nimble groups, especially Methodists, could capitalize on the opportunities offered by new settlements in upstate New York and beyond, where revivals burned hot as American settler colonialism exploded in the early republic.

--Dan Ernst

Robert M. Ireland (1937-2026)

2026-07-29T00:30:00.000-04:00

Robert Michael Ireland has died. For forty-one years after he obtain his Ph.D. in history at the University of Nebraska--he had earlier received a JD from Stanford--Professor Ireland taught in the Department of History at the University of Kentucky, where he taught introductory courses in U.S. history, American Legal History, United States Constitutional History, and a seminar on Famous American Criminal Trials. He repeatedly won teaching awards at UK and was revered as a mentor to his students. His publications included The County Courts in Antebellum Kentucky (1972), The County in Kentucky History (1976), and Little Kingdoms: The Counties of Kentucky (1977). Mary K. Bonsteel Tachau once wrote that if "the traditional Kentucky trilogy [was] good bourbon, fast horses, and beautiful women," Ireland's studies of the work of the state's county courts "altered it to a new tetralogy of horses, whiskey, hemp, and lawlessness." Professor Ireland discusses his career briefly here and at greater length here.

McGovern on Psychologists and Disparate Impact in the 70s

2026-07-28T00:30:00.000-04:00

Michael F. McGovern, Knight Law and Media Fellow, Information Society Project, Yale Law School, has published Regulating bias: validity liberalism and the politics of civil rights in 1970s America, in the British Journal of the History of Science Themes:

The Civil Rights Act of 1964 made the validity of aptitude tests in employment screening and promotions a major legal and political issue in the United States. A 1971 Supreme Court decision relied on guidelines derived from the American Psychological Association’s test standards to establish liability under the disparate impact theory of discrimination, a major victory for civil rights organizations and allied personnel psychologists. These adherents to what I call ‘validity liberalism’ put faith in practices of technical evaluation as a wedge, both for enforcing the law and for decoupling ideas about ability and merit from evaluations of job performance. But not all testing experts saw these developments as salutary. After the federal government’s own merit examinations were challenged under the US Constitution, a competing contingent of psychologists lined up to defend them, helping confine disparate impact to statutory law. Historians have shown how white backlash against early civil rights victories gave form and substance to the politics of the 1970s. This article argues that scientific dissensus over validation standards became a key fulcrum in this shift, highlighting a previously unexplored episode: the older Civil Service Commission’s effort to promulgate a competing set of validation guidelines to undercut the newer Equal Employment Opportunity Commission.

--Dan Ernst

Li's "Translating Weimar"

2026-07-27T00:30:00.000-04:00

[We have the following announcement from our friends at the Max Planck Institute for Legal History and Legal Theory of a new open access publication in its series, Global Perspectives on Legal History. DRE]

Fupeng Li, Translating Weimar: The Cultural Translation of the Weimar Constitution in China (1919-1949). Global Perspectives on Legal History. Vol. 28

How can a constitution imagine social revolution? This book answers this question by placing social rights at the center of the Weimar Constitution's long journey to China. It tells a global legal history of how jurists and legislators used constitutional language to conceptualize 20th-century projects of social transformation.

Moving between Germany and China, the book follows the Weimarer Reichsverfassung as it was read, translated, and rewritten by Chinese actors. Rather than treating the Weimar Constitution's influence as a simple "reception" of foreign ideas, it reconstructs how Chinese jurists used debates on labor, welfare, and economic order to rethink what a social constitution could be - and what kind of social revolution it might legitimately guide.

At the core of the analysis lies a structural shift: from the Weimar Constitution's rights-based model of social order to the policy-oriented constitutionalism that came to characterize modern China. Drawing on multilingual archives and constitutional drafts, the study traces how the Weimar Constitution's catalog of fundamental social rights was progressively reframed as Fundamental National Policies, transforming social rights into state programs, planning targets, and ideological commitments.

Organized around the triad of space, time, and tradition, the book maps the routes by which German Staatsrechtslehre and the Weimar Constitution's concept of social rights entered Chinese debates, shows how they were positioned within changing temporal narratives of crisis and revolution, and examines how they were negotiated in the encounter with Confucian statecraft, revolutionary nationalism, and socialist planning. In doing so, it offers a new framework for understanding how constitutions mediate social revolution through the cultural translation of rights into policies.

The book will interest scholars and students of constitutional law, global legal history, and modern Chinese history who seek to understand how social rights traveled across borders - and how, in the process, they quietly remade the meaning of both "constitution" and "revolution" in the 20th century.

Weekend Roundup

2026-07-25T00:30:00.000-04:00

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

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

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

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

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

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

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

Tulane Law Job Announcement

2026-07-24T15:12:48.754-04:00

[We have the following announcement. Note the openness to candidates in all topics, despite the specific emphasis on corporate law and torts. Tulane would be a terrific place for a legal historian of the civil law world and/or a comparative legal history. DRE.]

Tulane University Law School invites applications from entry-level and lateral candidates for one or more tenure-track faculty positions. We welcome applications from candidates with teaching and research interests in all topics, but we are particularly interested in candidates who focus on (1) business and corporate law (at the Assistant, Associate, or Full Professor rank) and (2) tort law (at the Assistant Professor rank). To learn more about the law school, visit our website.

Please apply at [here]. All inquiries about the positions should be directed to: Sally Richardson, A.D. Freeman, Professor of Civil Law, Tulane University Law School, richardson@tulane.edu.

About Tulane University. Tulane University is an equal opportunity educator and employer committed to providing an education and employment environment free of unlawful discrimination, harassment, and retaliation. Legally protected demographic classifications (such as a person’s race, color, religion, age, sex, national origin, shared ancestry, disability, genetics, veteran status, or any other characteristic protected by federal, state, or local laws) are not relied upon as an eligibility, selection or participation criteria for Tulane’s employment or educational programs or activities.

Smith on Catholic Constitutional Republicanism

2026-07-24T00:30:00.000-04:00

Thomas A. Smith, emeritus at University of San Diego School of Law, has posted Catholic Constitutional Republicanism: Suárez, the School of Salamanca, and the American Law of Public Power:

American constitutional theory traces its lineage to Hobbes, Locke, Montesquieu, and the common law; the political thought of the Spanish neo-scholastics rarely appears in the standard account. This Article recovers that tradition, with particular attention to Francisco Suárez, and argues that it supplies a constitutional theory of public power resisting both Hobbesian absolutism and a thin, individualist Lockeanism. Rulers hold jurisdiction rather than dominion, so a king does not own the realm he governs. Law is an ordinance of reason for the common good rather than the sovereign’s bare command. Office confers authority for another’s good; a ruler who converts public power into private advantage does not merely govern badly but corrupts the office itself. The recovery is offered with its costs stated rather than concealed. The same doctrine that limited the civil ruler served, in its original setting, a claim for the Church’s indirect power over him; the Article marks this cost wherever it bears on the argument. On most of the concepts recovered here, from the distinction between office and ownership to the corporate personality of the people, the tradition systematized a Roman and canonical inheritance more than it originated one. Two claims are stronger: Suárez’s theory of law as reasoned ordinance, and Vitoria’s contribution to the law of nations. The Article also distinguishes this recovery from Adrian Vermeule’s common good constitutionalism, which trusts the magistrate to specify the common good through determinatio; the tradition recovered here begins instead from the corruptibility of that discretion, and treats constitutional form as part of the common good rather than a constraint upon it. The tradition does not decide cases. It names the wrong that the American law of office exists to prevent: the conversion of a public trust into a private possession.

--Dan Ernst

Wiebolt on the Lawyer behind School Choice

2026-07-24T00:30:00.000-04:00

Dennis J. Wieboldt, III, soon to be a VAP at Notre Dame Law, has posted William Bentley Ball and the "Century of Struggle" for School Choice:

The Supreme Court’s 1971 decision in Lemon v. Kurtzman profoundly shaped the development of federal constitutional law. For more than fifty years, Lemon served as the basis for invalidating countless government programs that sought to support private religious education, posing a formidable challenge to the late-twentieth-century school choice movement. In response, school-choice advocates spent decades incrementally dismantling the Court’s three-part test for determining when government programs seemingly supporting religion violate the Establishment Clause. Their efforts culminated in Kennedy v. Bremerton School District (2022). There, the Court not only opened new doctrinal avenues for defending a wide range of school-choice programs, but also vindicated the litigators who unsuccessfully argued Lemon decades earlier.

To understand Lemon and the forces that led to its eventual undoing, this article turns to William Bentley Ball, a relatively little-known Catholic lawyer who argued Lemon before the Supreme Court in March 1971. As Ball himself remarked after oral argument, the “fight” for school choice in Lemon “was the windup of years of work – a century of struggle.” To be sure, Ball was not litigating for a century before Lemon, but the ideas that so decisively shaped his thinking about the constitutionality of public funding for private religious education indeed emerged one hundred years before he appeared at One First Street. By tracing Ball’s intellectual formation in the lead-up to Lemon, this article sheds new light on the history of the twentieth-century Supreme Court and one of the legal campaigns that continues to figure prominently in our national debates over the Religion Clauses.

--Dan Ernst

Schwartz on Compact Theory and the US Constitution

2026-07-23T00:30:00.000-04:00

David S. Schwartz, University of Wisconsin Law School, has posted The Birth of Compact Theory, which is forthcoming in the Journal of American Constitutional History:

"Compact theory" is the idea that the U.S. Constitution is a compact of the states: the act of sovereign states rather than that of "We the people of the United States." Compact theory interprets the Constitution as a confederative treaty according to international law principles of treaty interpretation: construing its grants of power narrowly, disfavoring implied powers and implied waivers of sovereign rights, and affording to each party to the compact the right to judge for itself whether the compact has been infringed. When was it first deemed plausible to interpret the Constitution according to these "confederationst" principles, as a compact of the states? This question is worth asking, not only for its intrinsic historical interest, but also for its implications for constitutional interpretation at a time when originalism has become so prominent. Historians have either ignored this question or simply assumed that compact theory began with the Virginia and Kentucky Resolutions of 1798, ghost-written for those two state legislatures by James Madison and Thomas Jefferson to protest the Alien and Sedition Acts of that year. But none have inquired into the provenance of compact theory ("its history before 1798") except for a handful of revisionists, who challenge the conventional assumption by arguing that a compact-theory interpretation of the Constitution was present throughout the founding. This article provides the first detailed account of the emergence of compact theory. Confirming the previously unsupported conventional belief, I argue that compact theory was pushed into the range of plausible constitutional discourse (the "Overton window" of constitutional interpretation) by the Virginia and Kentucky Resolutions. Although hints of a confederationist interpretation of the Constitution were offered as part of Federalist propaganda during the ratification campaign, strict constructionists did not deem such an interpretation plausible for the next decade. Compact theory was not argued in any of the salient constitutional debates of 1788-1798"such as the debate over the First Bank of the United States"where strict constructionists or "enumerationists," had a strong incentive to develop compact theory. Only when the crisis of the 1798 Alien and Sedition Acts motivated Jefferson and Madison to assert that the Constitution was a compact of the states, did compact theory first emerge.

--Dan Ernst

"Who Owns Civil Rights History?" by Chang and Lovelace; response by Gross

2026-07-22T00:30:00.000-04:00

Volume 106 of the Boston University Law Review includes the article "Who Owns Civil Rights History?" by Robert S. Chang (UC Irvine School of Law) and H. Tim Lovelace, Jr. (Duke Law School). The abstract:

In this Article, Professors Chang and Lovelace argue that affirmative action litigation is not simply about college admissions but about putting America’s racial history—and future—on trial. They highlight the critical role that the Supreme Court plays in constructing our nation’s collective memory in which it operates, functionally, as a court of history. At stake is historical memory, which is used to produce the instant outcome but which then contains and constrains future possibilities. The litigation results in an “opinion of the Court” written by the victors. The word “opinion” belies the power that the victors have in
narrating the official history, which becomes authoritative in our precedent- based system. As a result, racial justice is being written out of the official civil rights history narrated in the “opinion of the Court."
In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Court’s opinion does not use the word “affirmative action,” which allows Chief Justice Roberts to ignore how affirmative action was a critical part of the civil rights movement. This erasure allows him to characterize the civil rights movement and Brown v. Board of Education as if they were only ever animated by fealty to colorblindness. Part of constructing this revisionist civil rights history includes a repudiation of Korematsu v. United States. The Court, in essence, retroactively applies strict scrutiny to arrive at the conclusion that
Korematsu had been wrongly decided at the very moment that it applies strict scrutiny to Harvard’s and the University of North Carolina’s admissions policies to wipe out what it perceives to be the stain of race-conscious affirmative action. It asserts that this is precisely what Brown called for and requires. This parallelism in the application of strict scrutiny to the very disparate circumstances of Japanese American incarceration during World War II and affirmative action in selective college admissions becomes a central feature in the new challenges to race-conscious affirmative action at our nation’s military academies. This Article explores the invocation of Korematsu and Brown by litigants and the Court. It offers a corrective history of affirmative action to counter the Court’s erasure of that history.

The article is followed by a response by Ariela Gross (UCLA Law), titled "Erasing, Remembering Colorblindness." The response "expand[s] on" the article's "observations regarding the constitutional memory-work of SFFA, placing Chief Justice Roberts’ story in the broader context of the conservative movement’s memory of Brown and a colorblind Constitution." It "conclude[s] with a few thoughts regarding the alternative civil rights history Chang and Lovelace sketch that places affirmative action at its center."

-- Karen Tani

Goldstein on Constitutional Facts, Jurisdictional Facts, and the APA

2026-07-21T00:30:00.000-04:00

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

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

Dan Ernst

Corcos on Tocqueville in Canadian Judicial Opinions

2026-07-20T00:30:00.000-04:00

Christine A. Corcos, Louisiana State University Paul M. Hebert Law Center, has posted The Uses of Alexis de Tocqueville's Writings in Canadian Judicial Opinions, which appears in Moréteau on Law, Language and Heritage, edited by Agustín Parise, Mariano Vitetta and Michel Séjean (Praxis Jurídica Ediciones, 2026) 1:365-386

At least one scholar, Nancy McCormack, has examined the reasons for which Canadian judges cite to philosophers in their writings. She notes that John Stuart Mill leads the list, but Confucius, Plato, Aristotle, Machiavelli, Thomas More, Hobbes, Locke, Descartes, and Kant are some of the other choices. Interestingly, she does not discuss Tocqueville. However, a number of Canadian judges have mentioned or discussed Tocqueville and his writings in their opinions, or cited passages from secondary sources that cite him. The most popular Tocquevillian writing for such jurists, whether in the majority or the dissent is Democracy in America, to support various views as they interpret the Charter and various statutes. Because he analyzed government in the areas of separation of powers, elections, judicial review, and human rights, these are the areas that judges find of great interest, and that they mine for quotations or support in cases in these issues come to the fore.

--Dan Ernst

Weekend Roundup

2026-07-18T00:30:00.000-04:00

In Law & Liberty, Dennis Weiboldt (J.D., Ph.D. candidate, Notre Dame) writes about "Bob Jones's Warning." "By recalling the circumstances under which Bob Jones University v. United States reached the Court, both conservatives and progressives will find lessons about the perils that accompany the aggressive use of executive power to reform American colleges and universities."

Rohit De and Ornit Shani have received the 2026 ICON-S Book Prize to historians for Assembling India’s Constitution: A New Democratic History (American Bazaar).

The Docket's interview of Anna O. Law about her book, Migration and the Origins of American Citizenship (Oxford University Press, 2026) Ilya Somin's Jotwell review of the book.

An update on and review of the Constitutional History Project of the American Historical Association (AHA).

Regnat Populus: Digitizing 190 Years of Arkansas Constitutional History opened at the Mullins Library on the University of Arkansas campus (KUAF).

The Morris/Sussex Vicinage of New Jersey Courts recently opened a self-guided exhibit on more than 270 years of Morris County's legal and civic history.

On September 10 and 11, Lafayette College will host Democracy: Past, Present, and Future, a symposium featuring plenary talks by Hélène Landemore, political science at Yale, and Akhil Reed Amar, YLS, with a series of panel discussions, including more than twenty members of the Lafayette faculty.

The June 2026 issue of the Journal of American History has two articles of special interest to legal historians: The Empire of Military Necessity: General Orders No. 100, Atrocity, and the Law of Occupation between the Civil and Philippine Wars, by Justin F. Jackson and H. R. Haldeman, Dynastic Politics in California, and the Dismissal of University of California President Clark Kerr by Nick Fischer.

A series of satirical paintings of legal professionals by "the contemporary artist and fabulist Cassou."

Lawbook Exchange's July catalog of Scholarly Law & Legal History.

ICYMI: David Blight on DJT and the Smithsonian (NYT). Michael Dorf on Historical Analogies in Second and Seventh Amendment Cases (Dorf on Law). Noah Feldman says that the Supreme Court’s originalism is dead, dead, dead (Seattle Times). Lawyers Should Spend More Time Studying Legal History (Above the Law). White House Defends 1882 Immigration Law Excluding Chinese Immigrants (Forbes). A history of justices testifying before Congress (SCOTUSblog). What the American Founders Did Was a Reluctant Revolution: An Interview with Lee J. Strang (Hungarian Conservative).

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

Clifford et al. on OCR Error Rates

2026-07-17T09:30:00.000-04:00

Jim Clifford, Jacob Polay, and Jessica Jack, University of Saskatchewan, and Mark Humphries and Lianne C. Leddy, Wilfrid Laurier University, have posted Reading the Archive by Machine: An OCR Benchmark for Historians, 1612–1921, in Working Papers in Critical Search:

A benchmark of six OCR systems (Tesseract, olmOCR 2, Chandra 2, Infinity Parser 2, GLM-OCR, and Gemini 3.5 Flash) on human-transcribed archival documents spanning 1612–1921: early-modern print, nineteenth-century newspapers, full multi-column pages, and handwriting. The free, open models a historian can run on their own hardware have caught up with the paid commercial service on printed sources — level on clean newspaper print, ahead on complex multi-column pages — leaving the commercial model a real lead only on difficult handwriting. Because accuracy has converged, the choice between tools is now practical rather than qualitative: it turns on layout fidelity and on speed and cost. We report per-content-type results, characterise each tool’s failure profile (olmOCR silently modernizes archaic spelling and collapses on multi-column pages; Gemini refuses some pages outright), and argue for a tiered workflow that transcribes a collection with a fast open tool and spends the paid model only on the pages that reward it. Every number is produced by the harness in the paper’s repository, and the expandable transcription panels are generated from the same result files, so the prose and the evidence cannot drift apart. This is Version 1.0 of a paper we intend to keep current as new models are released.

--Dan Ernst

Commons on Migrants and the Common Law in Early Modern Engalnd

2026-07-17T00:30:00.000-04:00

Kathleen Commons has published, open access, Discovering ‘Immigration Control’ in England, c. 1540 – c. 1640 in The Historical Journal:

Migration history is a growing field – yet the legal status of migrants in early modern England has not yet been investigated in detail. Reconstructing the legal system that governed migrants in early modern England does not just add significant depth and nuance to histories of migration and migrants, but also provides fresh insight into the status of English subjects. Furthermore, it enables historians to trace longer histories of the exclusion of migrants from rights in England and Britain. This article reconstructs the common law governance of migrants between c. 1540 and c. 1640, showing how common law principles and practices excluded migrants from the rights-bearing status of English subjects. Rather than being governed by the law, migrants were substantively governed under prerogative, a form of governance repeatedly resisted by English subjects. Although some migrants could access (unstable) liberties granted under prerogative, for the most part migrants were also subject to discriminatory local bylaws and licences and commissions granted by the crown for their exploitation. The repeated ‘molestation’ of migrants by informers for working contrary to statute, and petitions against this harassment from migrants suggest this early modern system of immigration control was relatively well understood by both subjects and migrants.

--Dan Ernst

Smith and Chang on Stravinsky's "Star-Spangled Banner" and the Law

2026-07-16T00:30:00.000-04:00

Michael L. Smith, University of Oklahoma College of Law, and Yoo Jung Chang, a cellist, have posted Stravinsky's National Anthem:

Igor Stravinsky (LC)
In January 1944, famed composer Igor Stravinsky was scheduled to conduct the Boston Symphony Orchestra in performing his controversial arrangement of “The Star-Spangled Banner.” Before the performance took place, the police arrived in Stravinsky’s dressing room and informed him that his arrangement violated a Massachusetts law against altering the national anthem. Faced with the prospect of a criminal violation, and with the police already removing the offending arrangement from the music stands, Stravinsky opted to conduct the traditional version of the anthem.

This Article takes a deep dive into Stravinsky’s distinctive anthem arrangement, surveying its development, performance, and reception. Along the way, we dig into Massachusetts’s anthem restriction—a 1917 law that remains on the books to this day. In doing so, we address the parallels between the law’s wartime development and its wartime enforcement against Stravinsky. We argue that Stravinsky’s run-in with the police was unwarranted, both because Stravinsky’s arrangement did not violate the statute, and because the statute itself ran afoul of the First Amendment. Our historical investigation and analysis shed light on modern issues, including the phenomenon of patriotic outrage, the role of moral panic in the development and enforcement of the law, and the dangers of leaving unconstitutional zombie laws on the books.

--Dan Ernst

Kastenberg on Historians in the Frick Libel Case

2026-07-15T00:30:00.000-04:00

Joshua E. Kastenberg, University of New Mexico, has published, in the St. Louis University Law Journal, The Past May Be Uncomfortable: Frick v. Stevens, the Protection of Scholarly Inquiry, Knowledge, and a Free Society as a Retrospective and Salient Study for Our Time. It is the first in a series of articles on historians as expert witnesses. We will note the others as they appear.

The past may be “uncomfortable,” the Washington Post pointed out on July 1, 1966, before adding a far more serious observation: “[t]he suppression of history—which is to say the judgment of historians—is an incongruity of a free society.” A year earlier, Helen C. Frick sued Professor Sylvester K. Stevens in Pennsylvania’s Cumberland County Court of Common Pleas to prevent the publication of his recent history book, Pennsylvania: Birthplace of a Nation. She claimed that the book libeled her deceased father and caused her a loss of standing in the public’s estimation and emotional distress. Judge Clinton R. Weidner indicated his intention to decide the case on the state’s libel laws rather than to dismiss the suit on a First Amendment basis. Equally troubling, Weidner sided with Frick’s attorneys on their evidentiary objection to preclude Stevens from having distinguished historians testify as experts as to the merits of his book. In issuing his ruling, Weidner determined that the historian experts would simply provide otherwise inadmissible hearsay. Professional historians had, on at least eight occasions, testified as experts in state and federal trials as well as before Congress on critical issues such as arms reductions and neutrality legislation. Ironically, if not hypocritically, in 1935 Frick employed a professional historian, Frank Jewett Mather Jr. of Princeton University, when her curator sued her for libel. Perhaps from the vantage of the present, Frick’s lawsuit appears bizarre but in 1965 Pennsylvania’s libel laws included the phrase “tending to blacken the memory of the dead,” as did several other states, and in theory, these laws made her lawsuit feasible.

--Dan Ernst

CFP: Notre Dame Legal History Colloquium

2026-07-14T10:37:58.997-04:00

[We have the following announcement. DRE]

Notre Dame Legal History Colloquium to Begin Third Year of Meetings, Now Accepting Presenter Applications

The Notre Dame Legal History Colloquium will again convene a series of workshops during the 2026-2027 academic year for emerging legal historians. Now in its third consecutive year of meetings, the initiative is financially supported by Notre Dame Law School and The Graduate School.

Formerly known as the ASLH/Notre Dame Graduate Legal History Colloquium, the forum provides early career legal scholars and practitioners with feedback on works-in-progress—an important step in fine-tuning research to a point where it can be submitted for publication. This year, the Colloquium has been restyled to ensure that law, master’s, and doctoral students, as well as faculty members in visiting or other term-limited positions (e.g., postdocs) are eligible to present their work.

The Colloquium was established in 2024 with the support of the American Society for Legal History. It was organized at that time by Dennis Wieboldt, who graduated from Notre Dame Law School in 2026. Over the last two years, the Colloquium has enabled more than 40 students from across the country to present their research. Articles workshopped at the Colloquium have already begun (or will soon appear) in leading journals, including the Yale Law Journal, University of Pennsylvania Journal of Constitutional Law, and Fordham Law Review Online.

Although the Colloquium has been restyled, its format will remain the same. Each presenter will be paired with a designated respondent, who is typically a senior scholar in the field. Previous respondents have included faculty from Notre Dame Law School, Harvard Law School, Yale Law School, the University of Chicago Law School, and the Northwestern University Pritzker School of Law. All works-in-progress will continue to be pre-circulated to prospective attendees to facilitate a robust discussion.

Now that Wieboldt has concluded his studies at Notre Dame Law School, the Colloquium will be co-convened by 3L Mintae Cha and history Ph.D. student Sophie Rizzieri. Cha, who formerly earned his Ph.D. from Princeton University, received the American Society for Legal History’s 2024 William Nelson Cromwell Dissertation Prize. The Prize is awarded annually to the best dissertation in any area of American legal history by the Society. Rizzieri’s research focuses on early American intellectual, social, and legal history.

During the 2026-2027 academic year, meetings of the Colloquium will be held at the Notre Dame Law School campus in Chicago on September 26, October 17, February 6, and March 6. An additional meeting will be held at the Law School’s South Bend campus on January 16.

Those interested in presenting at and/or attending meeting(s) of the Colloquium should indicate their interest here.