Legal History Blog

Weekend Roundup

2026-09-19T00:30:00.000-04:00

Holly Brewer, University of Maryland, delivered the Constitution Day lecture at UNLV, entitled The Absolutist Origins of Unitary Executive Theory.

A notice of University of Georgia Law's Lori Ringhand’s new book, We the Voters: The Constitutional Choices That Shape America’s Election (Stanford University Press) (Flagpole).

On Wednesday, October 28, 2026, 6:30 - 8:30 PM, the Historical Society of the New York Courts will sponsor One Woman’s Voice for Justice: How the Courts Have Responded to Violence Against Women from the Revolution to Today at New York City Bar Association (42 West 44th St., NYC 10036) and Livestreamed. John Wood Sweet will present on his book The Sewing Girl’s Tale.

In his assessment of the late Gordon Wood, Víctor Manuel Cázares Lira writes that his "true legacy may have been about showing how futile the Founders' efforts were in the face of pressures from below" (HNN).

A notice of Carole Prietto, Archivist for the Georgetown University Law Center (The Brief).

Savannah State University hosted a special program honoring the life and legacy of U.S. Supreme Court Justice Thurgood Marshall (WTOC).

A review of Nikolas Bowie and Daphna Renan's Supremacy (Mother Jones).

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

Baranowski on Rulemaking and FRCP 54(b)

2026-09-18T13:00:00.000-04:00

Brad Baranowski, SMU Dedman School of Law, has posted Remaking Rulemaking: Lessons from the History of Federal Rule of Civil Procedure 54(b), which appeared in the Cleveland-State Law Review:

This Article uses the lost history of Federal Rule of Civil Procedure 54(b) to provide a framework for rulemaking at the busy intersection of complex litigation and appellate finality. The drafters of the original civil rules spent more time thinking through how to efficiently combine claims and parties in civil actions-a promised benefit of the proposed law-equity merger-than about how combined claims should be disassembled. This failure would haunt the original Advisory Committee on Civil Rules for years. Nowhere was this more evident than in the first decades of Rule 54(b)'s existence.

Promulgated in 1938, Rule 54(b) was designed to provide for partial final judgments in multiclaim actions, but it quickly caused confusion in the courts of appeals. Leading jurists such as Jerome Frank, Learned Hand, Felix Frankfurter, and, above all, Charles E. Clark, the first reporter for the Advisory Committee and the Rules' primary drafter, sparred over its purpose, application, and legitimacy. The debate over amending the rule was often technical. But the stakes of the controversy hinged on a fundamental issue about the scope of rulemaking authority under the Rules Enabling Act. Namely, who should work out the tensions between law and equity after their merger: the courts, Congress, or the rulemakers?
The Supreme Court resolved this debate in 1956 by tapping the rulemakers. This is the point at which a standard history of Rule 54(b) would begin. But the rulemakers' first, abortive efforts to devise a rule of district-court procedure that would advance the goals of the law-equity merger (especially promoting efficiency in complex litigation) while respecting the separation of powers (especially the statutory policy of the final judgment rule) can provide lessons for rulemakers today as they continue to grapple with appellate finality. And as this Article concludes, those lessons provide a framework for analyzing rule proposals related to appellate finality, one that focuses the exercise of the rulemaking authority on further advancing the law-equity merger.

--Dan Ernst

Magliocca on the Senate Subcommittee on Constitutional Amendments

2026-09-18T11:00:00.000-04:00

Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law, has posted Taming the 1960s: The Bayh Senate Subcommittee on Constitutional Amendments:

Birch Bayh, 1968 (LC)
This Article examines the Senate Subcommittee on Constitutional Amendments from 1964-1971 under Chairman Birch Bayh's leadership. Topics covered include the Subcommittee's hearings on the Twenty-Fifth Amendment, one-person, one-vote, Miranda warnings, school prayer, direct presidential election, and the Twenty-Sixth Amendment. My argument is that the Bayh Subcommittee was a linchpin in the constitutional transformation of the 1960s and pioneered new methods in evaluating and achieving higher law reform.

--Dan Ernst

Graber on Constitutional Revolution

2026-09-18T09:30:00.000-04:00

Mark Graber, University of Maryland Francis King Carey School of Law, has posted A Constitutional Revolution? which is forthcoming in SCOTUS 2026, edited by Howard Schweber (Palgrave Macmillan):

Americans are talking about a possible constitutional revolution. Many supporters of Donald Trump are hopeful that his two elections are bringing about relatively enduring fundamental changes in the constitutional order of the United States that will align public policy more consistently with eighteenth century principles. Critics of the Trump administration agree that Americans in the third decade of the twenty-first century are experiencing a constitutional revolution, although they believe recent constitutional developments undermine rather than restore fundamental principles. This chapter explores the history of constitutional revolution in the United States, the conditions of constitutional revolution, the extent to which Trump administration has met those conditions, and what Trump and his supporters must achieve in the future to claim fully the mantle of constitutional revolutionaries.

--Dan Ernst

Marsh's "Novel Constitutions and the Making of Race"

2026-09-18T00:30:00.000-04:00

Sarah Marsh, Seton Hall University, has published Novel Constitutions and the Making of Race: A Literary and Legal History of Slavery in the Anglophone Atlantic, 1688–1818 (Oxford University Press):

Novel Constitutions argues that Anglo-American racial slavery emerged from a seventeenth-century English constitutional crisis exported into the western Atlantic through Stuart imperial expansion. In this crisis, divine-right absolutism collided with the English people’s ancient constitutional claims to life, liberty, and property. As the Stuart monarchy pursued policies that elevated royal prerogative over the common law, imperial governance developed new procedures that severed kinship, alienated labor, and converted human persons of African descent into perpetual chattels—simultaneously transforming some English subjects into colonial slavocrats. These practices of asserting absolute power over other human beings constitute the original sin of American slavery: a profane attempt to assume godlike dominion over human beings. This study names these transatlantic legal improvisations “novel constitutions,” practices that infused absolutism into the very constitutional idioms meant to restrain it. Reading literature alongside statutes, slave codes, charters, and landmark legal decisions, the book traces the rise of racial, chattel slavery as a constitutional process through which race itself was produced in its modern form, binding hereditary rights and constitutional protections to human complexion. By reconceiving slavery and anti-slavery as competing constitutional projects in the anglophone Atlantic world, Novel Constitutions reframes the American founding as both an outcome of imperial slavocracy and a still-unfinished anti-slavery ambition.

--Dan Ernst

Barbas's "Hate Speech"

2026-09-17T00:30:00.000-04:00

Samantha Barbas, University of Iowa Law, has published Hate Speech: The Legal and Cultural History of an American Dilemma (University of California Press). She is also blogging on the book over at The Volokh Conspiracy.

The United States has no hate speech laws; hate speech is generally considered to be free speech under the First Amendment. In this crisp guided history, acclaimed legal historian Samantha Barbas chronicles the country’s legal and cultural battles over the regulation of hate speech in the last hundred years. Charting the historical context for current debates, she ultimately argues that, however emotionally appealing they may seem, hate speech laws undermine civil rights and democracy.

The American policy on hate speech evolved from influences such as the civil rights movement, which contended that the most effective way to combat hate speech wasn’t through proposed laws. Rather than imposing restrictions, the US has developed an array of mechanisms other than law, including counterspeech and public education, that have been relatively effective at dealing with hate speakers and hate groups. Though not perfect, our method of addressing hate is less dangerous than government censorship and less likely to be weaponized against the powerless.

--Dan Ernst

Azari's "Backlash Presidents"

2026-09-16T10:01:19.641-04:00

Julia R. Azari, Marquette University, has published Backlash Presidents: From Transformative to Reactionary Leaders in American History (Princeton University Press, 2025). It has just received the Richard E. Neustadt Best Book Award of the American Political Science Association.

When Barack Obama won the White House in 2008, becoming the nation’s first Black president, the stage was set for Donald Trump’s eventual rise to power. Backlash Presidents shows how, throughout American history, administrations that challenge the country’s racial status quo are followed by presidents who deal in racially charged politics and presidential lawlessness, culminating in impeachment crises.

In this incisive book, Julia Azari traces the connections between racially transformative presidents and their successors, examining the presidencies of Abraham Lincoln and Andrew Johnson, Lyndon Johnson and Richard Nixon, and Obama and Trump. When he signed long-awaited civil rights legislation in 1964, Lyndon Johnson unleashed a perfect political storm that swept Nixon into the White House. Azari demonstrates how Nixon’s rhetoric, relationship to Congress, and attitudes about executive power exhibit striking parallels with Andrew Johnson and Trump. She discusses how their actions are linked to race and racialized institutions—the Department of War during Reconstruction, the FBI during the Nixon years, and elections today—and looks at what happens after impeachment, describing how the rush to establish a new order perpetuates many of the same problems as the old.

Challenging the conventional wisdom about the role of norms in American democracy, Backlash Presidents reveals how normal presidential politics upholds unsustainable racial hierarchy that in turn gives rise to intense periods of instability.

--Dan Ernst

Bowie & Renan, "Supremacy: How Rule by the Court Replaced Government by the People"

2026-09-15T00:30:00.000-04:00

Out today from W.W. Norton & Co.: Supremacy: How Rule by the Court Replaced Government by the People, by Nikolas Bowie and Daphne Renan (both of Harvard Law School). About the book:

Does the U.S. Constitution force us to live under the rule of nine robed lawyers? Many Americans assume that it does. It is commonly said that the Supreme Court has always had the power to decide what the Constitution means and to strike down any act of Congress that violates the justices’ dictates. Even as the Court has used this power to upend democracy—erasing federal laws that once prevented presidential autocracy and protected the right to vote—we are told there is nothing everyday Americans can do, as if our ability to govern ourselves requires the Court to answer our most fundamental questions for us.

But what if that isn’t accurate? What if the Court was not given the power it now wields, but rather seized it?

That is the revelation of Nikolas Bowie and Daphna Renan’s masterful new account of the Supreme Court. In a sweeping narrative of over 200 years of American history, they demonstrate that “judicial supremacy” was not written into the Constitution and has always been challenged as fundamentally at odds with it. Far from being an eternal principle, the power the Court claims to override Congress’s interpretation of the Constitution took hold in reaction to abolition and Reconstruction—not to protect democracy, but to weaken it.

Supremacy charts how the Court has repeatedly sabotaged the efforts of Congress to broaden democracy by enabling presidents, corporations, and the wealthy to ignore enacted law. It also challenges how even liberals understand the Court’s most celebrated rulings—including Brown v. Board of Education and Roe v. Wade—showing how the left has unwittingly subscribed to the very ideology that now threatens it.

At every step, Bowie and Renan recover a lost constitutional tradition, one forged by abolitionists, labor leaders, suffragists, and civil rights pioneers. These individuals presented another way forward, in which power is returned to where the Constitution put it—Congress—and everyday Americans have more of a say in the law that shapes our lives.

A sampling of advance praise:

“Riveting and revelatory, Supremacy is essential reading for anyone keen to know how the U.S. Supreme Court became so powerful. And Nikolas Bowie and Daphna Renan accomplish something else, too: a stirring account of how fiercely Americans have fought to determine, for themselves, the meaning of the U.S. Constitution.” -- Jill Lepore
“Bowie and Renan’s brilliant analysis of our current constitutional malaise explains the source of the problem and offers persuasive solutions for how we must go about fixing it. This is essential reading for all who care about our country’s future.” -- Annette Gordon-Reed

More information is available here.

-- Karen Tani

An Excerpt from Rao, White Power: Policing American Slavery (2026).

2026-09-14T11:32:46.988-04:00

The following is adapted from my book, White Power: Policing American Slavery (Hodding Carter III Books/University of North Carolina Press, 2026):

When they took him, he didn’t go quietly. He kicked and punched and screamed, “I’m in the hands of kidnappers!” The captors didn’t have uniforms. Bystanders saw a gang of white men descend on a defenseless Black man. Only the most well-informed among them would have known that the violent gang were cops. And they were doing their official duty to bundle away their victim, first to the courthouse, and then to be sent to a distant place.

This wasn’t in Minneapolis or LA. And the kidnappers weren’t ICE. The year was 1851 and the victim was a Black man named Thomas Sims, who was arrested for the crime of being a fugitive slave.

Thomas Sims—or Simms—freed himself from slavery on February 21, 1851 by stowing away on the M. & J.C. Gilmore, which regularly plied the waters between Savannah, Georgia, and Boston. Sims managed to hide away for most of the two-week voyage but was discovered and detained as the Gilmore approached Boston. Sims tried to con his way out of captivity but the captain wasn’t buying it. Just before the Gilmore landed in Boston, Sims escaped “his prison” cell on board and made it on shore. In Boston, Sims embraced his new freedom to the point of recklessness as his former owner, James Potter, caught wind of his whereabouts. Potter shipped a gang of slavecatchers up to Boston. Under the Fugitive Slave Law of 1850, Potter could deputize these men and Boston Police officers to do his dirty work as a posse or posse comitatus. On April 12, 1851, Potter’s posse—which now included a phalanx of U.S. Marines, Boston Police, City Watch, and white volunteers—marched a wailing Sims on board a ship headed back to Savannah and a life of slavery.

For Black people like Thomas Sims, this was what the rule of law could look like in nineteenth-century America: racist, surveilling, and violent. That’s because Thomas Sims’ very existence was a threat to white society. He, and the others who sought nothing more than to live free, constituted a public emergency that required emergency powers like the posse comitatus and military force.

***

There’s no straight line between early America and today. But the roots of present-day illiberalism lie in the centuries old police state that slaveholders built to control their most valuable commodity.

What were enslavers so afraid of? After all, enslavers were the ones with the whips, guns, attack dogs, patrols, police powers, and militias. And yet, over time, enslavers became consumed with fears of slaves on the loose in public—where they might go, what they might do, and what they might become. But any slave who was not under the control of a master confounded enslavers—especially the runaway slave.

We’ll never know exactly how many enslaved people ran away, but Southern newspapers were full of ads from masters trying to track down runaways. Enslaved people ran for any number of reasons—to see a loved one, to protest harsh punishment, to steal some time away from brutal working conditions, for example. Some wanted to permanently escape and self-emancipate. Others were willing to remain in an enslaving community, living a precarious existence as “undocumented” migrant refugees in the shadows of Southern cities. Girls and women ran away aplenty, as did boys and men. Most runaways did not go very far or stay away for too long. Enslavers sometimes tortured those they caught by whipping, burning, branding, or mutilating them. But they kept running away. No matter how horrific the punishments and formidable the obstacles, they never stopped. The same was true for the enslaved revolutionaries who used violence—or wanted to—to destroy their captors and create their own society. They knew they faced impossible odds and barbaric reprisals. But they tried anyway. This persistence cut to the heart of enslavers fear because it exposed the lie of mastery and of slavery itself: it wasn’t possible to turn a human being into property

But it wasn’t just capitalism or manhood that inspired enslavers to turn to policing, it was enslavers’ fear that runaways could seek freedom or vengeance. Revolt. Mutiny. Uprising. Insurgency. Rebellion. Insurrection—enslavers used these terms interchangeably for moments when enslaved people disrupted public order, betrayed the trust of their captors, and waged war against enslavers’ mastery. They became obsessed with stories of rebellions that came to pass, such as St. John, Tacky’s Rebellion, Berbice, Tula, Demerara, and most importantly, the Haitian Revolution. These battles were evidence that when slaves became rebels they became “internal enemies” who were hell-bent on racial apocalypse. In the enslavers paranoid style, the very next ‘slave insurrection’ was always just around the corner. In this framework of fear, every unsupervised enslaved person in public, every missing slave, and every runaway was an emergency because any one of them could be a conspirator or potential revolutionary. It was as if enslavers were stuck in a permanent emergency

As a permanent emergency, a runaway and potentially rebellious enslaved person posed a unique threat to public safety. But the law offered enslavers hope. Enslavers, and early Americans more generally, were used to using the law to protect “the public good” against immoral or irresponsible people, environmental problems, public health crises, and other disruptions of public order. They drew on the idea of “police power,” in which government deployed its legal authority to preserve public order and the public good. Most often, police power was used to justify regulations about health, safety, and morality, but it also included security, and policing—including policing slaves.

By thinking of enslaved people as a permanent emergency, white enslavers trapped themselves into the impossible need for permanent policing—unceasing vigilance, and violent force at the ready at all times, and in all places. Slave patrols may have resembled the sheriff’s posse comitatus to arrest a criminal, but they didn’t wait for a sheriff for a summons. Rather, if the threat of runaways was permanent, the slave patrol had to be permanent, too. Slave patrols kept records and answered to higher-ups. Since they were government officials using the state’s sovereign authority, they were largely immune from prosecution if they hurt or killed an enslaved person while on duty. The idea of deputizing whiteness for more routine, day-to-day policing was even more radical. Southern colonies and states didn’t like paying taxes, so they didn’t have the kind of money it would take to appoint enough sheriffs or constables to do the job. So they redistributed policing authority to ordinary white people to be vigilant over and violent toward enslaved people. They collapsed the distinction between the public officer and the private white citizen by appropriating the sheer violent power embodied by a master to serve the state. Enslavers had discretion to decide when they acted as the state. They gave themselves the right to use force, and equate their force with the law. They were the state.

***

Who has the right to violence? For much of American history, the answer was enslavers. In modern America, though, it is the police. And who are the police? Government officers entrusted to enforce laws and maintain public safety, with uniforms, those bulky vests, badges, batons, guns, tasers, and squad cars with flashing lights and blaring sirens. Police departments grew exponentially in the twentieth century. The invention of the automobile created new violations and crimes that needed policing. The Prohibition era from 1920 to 1933 required more officers to root out the scourge of alcohol. After World War II, moral panics fueled a national “war” with two fronts: crime and drugs. The prison-industrial complex became big business as courts funneled people into an ever-expanding network of public and private prisons. What historians call the “carceral state”—the theory and practice of incarceration as the solution to public policy crises—was taking shape.

Today, of course, there are passionate disagreements about policing, especially the question of when and why officers should use force. According to researchers, police kill several hundreds of people per year and injure several hundred-thousands more. Social justice activists argue that the police are too violent. Since many victims of police violence are Black men, critics such as the Black Lives Matter movement protest the disproportionate targeting of racial and ethnic minorities. Backed by big donors and media access, police departments and unions push back hard with movements like Back the Blue and Blue Lives Matter—the latter featuring American flag defaced by a “thin blue line” against a black background which “represents chaos and anarchy.” Police justify violence because they claim they are besieged by danger, and courts have agreed: If an officer “feared for [their] life,” their use of violence is often considered justified, so victims of police conduct have no recourse. Modern policing bestows police officers with virtually limitless authority to use violence.

But policing slavery gave this authority to almost every white person—it made every white person a deputy or a police officer. It was white power. So how did we go from white power policing to modern policing?

To build the modern policing leviathan, the state had to centralize policing authority and redistribute it to thousands of new officers. This, in turn, meant that the old system had to be dismantled. And that would happen through a white supremacist silencing of history. When that process was complete, centuries of racist and violent public law were all but disappeared beneath the pernicious myth of the omnipotent and benevolent enslaver.

America’s slave policing laws and practices all but disappeared from the historical record in the early twentieth century. For one thing, as the United States embraced bureaucracy and modernized policing, older institutions like the posse comitatus, slave patrol, and deputized white citizenry no longer even seemed like the work of government. But the ideological movement to hide the brutality of slavery behind the myth of the benevolent slaveholder was an even more important force in obscuring the history of slave policing. This was connected to the myth of the “Lost Cause” of the Confederacy, in which treasonous secessionists were recast as honorable patriots, and in which enslavers were repackaged as genteel and refined.

No one did more to obscure the history of slave policing than historian Ulrich Bonnell Phillips, who taught at the University of Wisconsin, Tulane, the University of Michigan, and finally at Yale. He had earned his PhD at Columbia University under the tutelage of William A. Dunning, a white supremacist whose commitment to whitewashing the bloody history of Reconstruction was passed down to his prolific students—“The Dunning School,” they would come to be called. Arguably, Phillips’s most important book was his 1918 American Negro Slavery: A Survey of the Supply, Employment, and Control of Negro Labor, as Determined by the Plantation Regime. After spending several hundred pages establishing just how rosy life was for everyone—including enslaved people—on the antebellum plantation, Phillips finally gets to the history of slave policing. It was true, Phillips explained, that in the old days, “all white persons . . were permitted, and in some regards required, to exercise police power over the slaves.” In fact, he conceded, the “laws for securing slave property and the police of the colored population were as thorough and stringent as their framers could make them.” But it was all for show, according to Phillips. Southern white men, after all, were so “individualistic” that they were “incapable” of enforcing laws. White men “were too fond of their liberties to serve willingly as martinets in the routine administration of their own laws.” Slave patrols and militias were “futile and farcical.” Officers “tended toward a similar slackness.” Slaveowners were “easy-going” but refused to stand for “any abuse of their slaves, whether by private persons or public functionaries.” The truth was that enslavers had beaten, killed and disappeared tens of thousands of Black people. But just like that, Ulrich Bonnell Phillips disappeared the history of slave policing.

Phillips was lying. And he knew better; so, too, did his contemporaries, who spread the lie that benevolent masters and happy slaves had no need for policing. Phillips’s papers are now housed in Yale University’s Archives and Manuscripts collection in the beautiful Sterling Memorial Library. His papers include his elaborate notes from old newspapers and diaries that he transcribed on small pieces of paper and notecards, including voluminous mentions of runaways, slave insurrections, and other events that required the Southern colonies and states to exert their public system of policing enslaved people. But these facts couldn’t be squared with the image of the kind and gentle enslaver or with the romantic version of slavery that Phillips was desperate to sell. Most critics bought it, hook, line and sinker. It fell, of course, to the Black intelligentsia to point out how pervasively Phillips’s bias resulted in a quasi-fictional history of slavery. Why there were so many slave insurrections if slaves were as “contented” as Phillips claimed? This question was pointedly asked by Carter Woodson, who is widely considered to be one of the modern founders of African American history. W. E. B. Du Bois pulled no punches: The book was “a defense of American slavery—a defense of an institution which was at best a mistake and at worst a crime.” Despite Woodson’s and Du Bois’s warnings, Phillips’s book would have staying power and remained the leading history of American slavery until the 1950s. Even when historians, inspired by the Civil Rights Movement, began to follow the lead of Du Bois and others and explore the history of enslavement, slave policing remained obscure for most.

But not for all. Woodson popularized an approach to Black history for Black students—usually in segregated schools—that recovered and valorized the very stories of enslaved people’s disruptive acts of running away, fugitivity, and rebellion that professional historians had whitewashed from the historical record. As historian Jarvis R. Givens explains, Black school-teachers’ textbooks and syllabi as well as Woodson’s own work was a radical, subversive historiography that emphasized the “historical achievements of Afro-diasporic peoples in service of and as models for larger political goals of racial advancement.” Another Black historian, John Hope Franklin, would level a devastating blow against the Dunning School’s dominance. Franklin was a historian of immense renown who would go on to chair the History Department at the University of Chicago. In fact, I got the idea for this book while I was in the department’s John Hope Franklin room. Franklin’s 1956 book The Militant South, 1800–1861 rightly argued that the South was awash in violence by white enslavers, though Franklin saw this as private behavior that “discouraged the growth of strong law enforcement agencies.” It wasn’t until Sally Hadden published her remarkable Slave Patrols: Law and Violence in Virginia and the Carolinas in 2003—a book to which this book is also deeply indebted—that we began to see just how drastically Ulrich Bonnell Phillips had silenced this enormous chapter of the American past. Hadden revealed how the slave patrols were but one part of “the public regulation of slavery.” This was an entire system of law and policing. It was the enslavers’ government at work.

Perhaps the most telling sign about the enormity and importance of the enslavers’ old slave policing system is the fact that even as it faded into obscurity beneath the weight of modern policing and white supremacist ideology, it never quite died. Instead, it reappeared frequently, almost exclusively as a tool for white supremacists, who occasionally tried to claim that their whiteness gave them the right to violence and the authority to be deputies to the state. And it is back today.

The Ku Klux Klan returned in the 1920s in response to increasingly vocal activism by the NAACP and others. The “second” Klan still tortured and murdered Black Americans—and also targeted Jews, Catholics, and others. But the new Klan was also legally incorporated, highly organized, boasted millions of members across the country, and was determined to capture local and state governments. In this more centralized and institutional approach, white vigilance looked very different. The Colorado Klan had such a stranglehold on local government that one critic worried that the so-called invisible empire was “now functioning as the visible government.” The Klan prioritized the capture of local law enforcement, either by infiltration or pressure—after all, gaining access to the inner workings of government was more efficient than deputization. The Klan encouraged each local chapters to create a “Law Enforcement Committee” to “advise the Klan and Klansmen as to how they may assist in a law enforcement program.” By controlling law enforcement, the Klan not only ensured its own protection but also owned the state’s eyes, ears, and batons. While the Klan’s approach was more sophisticated, vigilance remained its “stock in trade.” So-called Imperial Wizard Dr. H. W. Evans called the Klansmen’s vigilance “Klan Vision.” With law enforcement in their pocket, the Klan wanted the public to think it could see everything. The Kansas Klan sent notices to those they were watching: “We are here. See for yourselves. We mean business. Law violators, this is your warning to change your habits or we will call on you. Officers do your duty!” They were always watching, pledged a Kansas Klansman, to prevent “Lawlessness” and “Anarchy.”

The second Klan faded sharply by the end of the 1920s, but a third wave crashed down hard on the American South after the Supreme Court’s decision in Brown v. Board of Education, which struck down segregation and the law of the color line. Now that racial equality was the formal law of the land, the Klan and other paramilitary groups became something closer to terrorists than self-defined deputies of the state. And its terrorism was on display for all to see, such as in the assassination of Martin Luther King Jr. and in mass murders such as the bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama. In the wake of such violence, explains historian Kathleen Belew, “public opinion” eventually forced “the Klan underground.” But the virulent racism quickly resurfaced during the explosion of white nationalism that followed the Vietnam War, when disgruntled white communities blamed the government for abandoning them while supposedly protecting ethnic and racial minorities. The Klan followed other extremist groups’ lead, identifying as being at “war” with the state. The government, the Klan argued, had betrayed them and destroyed the “white homeland.” So now, instead of seeing themselves as deputies to the state, the Klan and related groups wanted to “destabilize the federal government, and waged revolutionary race war.” Meanwhile, pro-segregationists channeled their legal energies into Citizen’s Councils. For the low cost of $3.00 per year, you, too, could join the fight in Mississippi “to preserve State’s Rights and racial integrity, as well as to combat the action of the NAACP and other radical left-wing groups”; or you could “tune in” to the Council’s weekly TV show.

For much of the late twentieth century, white supremacists continued to consciously style themselves as deputies to the state in one key context: immigration. This strand of nativist vigilance also has a long history that scholars have closely documented. Historian Erika Lee, for example, has explained how, in the early 1900s, federal immigration officials who were desperate to hire more officers to enforce the notorious Chinese Exclusion Act turned to “special agents, commonly known as ‘Chinese catchers,’” to seize and deport Chinese migrants. After the immigration influx of the 1960s, white supremacist groups began to bill themselves as deputies to the US border police forces. In 1977, the Klan’s national director (and future Republican candidate for president) David Duke created the Klan Border Watch to drive along California’s border with Mexico. If Klansmen spotted any border crossers, the Border Watch pledged to “use CB radios to relay the information to the border patrol.” Some years later, Glenn Spencer founded Voices of Citizens Together and the American Border Patrol (ABP) to scaremonger against immigrants. Spencer later relocated to Sierra Vista, Arizona, where his ABP conducted drone surveillance of border crossings to share with law enforcement. In Texas, a member of the Ranch Rescue group claimed to have made more than twelve thousand “citizen’s arrests” at the border.

Another twentieth-century strain of the pernicious mix of vigilance, violence, and vigilantism for which white people believe they have policing authority was the neighborhood crime watch. Convinced that criminals were coming for them, scared suburbanites took matters into their own hands. They put “this is a crime watch neighborhood” stickers on stop signs and styled themselves “as adjuncts to the local police department” in the belief that “they had the power to surveil and police and could avoid being regulated themselves.” Some communities hired private security officers to patrol their streets in marked cars. Someone was always watching.

***

Two decades into the twentieth-first century, terrifying strands of the white power approach to slave policing are again coming into view. Sectors of American society have already for some years gravitated toward the dangerous, highly racist view that white people—mostly men—need to take it upon themselves to guard the nation from threats, foreign and domestic. The National Rifle Association (NRA) is not the only source of this message, but as political scientist Alexandra Filindra shows, the NRA sold the image of its gun-toting membership “as defenders of public authority,” or as “police auxiliaries” determined “to protect the nation and public order.” Language and imagery from the NRA’s American Rifleman magazine left no doubt that these “police auxiliaries” were white, while “urbanites”—code for Black people and other minorities—were the troublemakers. For the NRA during the tumultuous urban crises of the 1960s, armed Americans who were “prepared for any threat that might appear at one’s doorstep” kept the peace and deterred racial apocalypse.

In the late twentieth century, the NRA sowed distrust of government, especially of the federal government, because gun control laws—in their version of things—threatened to leave the white “police auxiliaries” at the mercy of evildoers. Gun-ownership and white vigilance was needed now more than ever, not only to maintain order but to prevent government from victimizing white citizens. Thus arose the NRA’s mantra that the government “was coming to take your guns.” Historian Andrew R. McKevitt identifies how, in this “worldview of enemies everywhere and security only in endless vigilance,” the right to bear arms became endlessly intertwined with visions of white male commitment to protecting the “security” of self “and community.” The right-wing militia movement that captured national attention through events like Ruby Ridge and the Oklahoma City bombing and organizations like Posse Comitatus had been brewing for some time, but it spawned a renewed alignment between “arming in defense of the Constitution and abstract notions of freedom.” In its infamous 2008 District of Columbia v. Heller decision, the US Supreme Court created an individual right to own a firearm based in part on similar logic and on a fictional rendering of American history: “When the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.” Apparently the highest court in the land believed such a time was now.

The US Supreme Court’s decision in Heller dovetailed with another legal development that evoked specters of the old slave policing regime, the so-called Stand Your Ground laws. At stake in these laws is nothing less than a fundamental reorganization of how we define public space and to whom we grant the legal authority to police it. In American law, you can defend yourself by using force without committing a crime, but only if you first at least try to retreat to avoid the confrontation. The big exception to this rule is if a person is defending themselves in their own home. A man’s home is his castle, and in what came to be known as the castle doctrine, a person can use force to defend themselves in their own home without first retreating. During the twentieth century, some state courts expanded this right to violence to include one’s yard or lot, not just the interior of the home. And what about if you are occupying your own property but you are in public space, such as if you are driving your car on a public road? Do you have to retreat first before using violence if you believe you are under threat and are defending yourself? Put differently, what matters more, the individual’s private right of self-defense without first trying to retreat or diffuse tension; or the public’s right to be safe? In more than half of the American states, the individual’s right outweighs the public’s. As Florida’s “stand your ground” provision puts it, an individual can use “deadly force” if “he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” “Stand your ground” laws expand a person’s “castle” not only to self-defense in public but also to the protection of others and the prevention of other “forcible” crimes. Just like the slave policing laws from centuries past, “Stand your ground” laws deputize citizens and clothe them with policing powers by envisioning them as guardians of public safety. Jennifer Carlson, who has extensively researched gun violence in America, deems this phenomenon the invention of legions of “citizen-protectors.”

In a world free of racial prejudice and other inequalities, one might imagine that “stand your ground” laws would lead to similar fatality rates among all peoples and groups. But in the real world, the laws have had a very different effect. In the real world, a white man who is a community patroller can confront a Black teenager who happens to be walking and talking on the phone; and when the confrontation makes the patroller feel unsafe, he can murder the Black teenager. In this same world, a Black man out for a run who stops to look at a construction site is seen as a threat by nearby white men—one a former cop. “There’s a Black male running down the street.” That is enough for the suspicious white men to murder the Black jogger. They were just standing their ground.

***

Are we backsliding into a world in which government delegates policing to people who have armed themselves with social power, legal authority, and the right to violence? A world in which white vigilance justifies these citizens to act as deputies? In which masked men and women, armed to the hilt but without a warrant, can stop a person of color and demand to see their papers under threat of arrest and deportation? If so, and if in fact the rule of law is degenerating once again into the rule of force, in which law and power become one and the same, then the history of policing American slavery will provide centuries of legal practice and precedents. If this in fact is the case, restoring the rule of law becomes our imperative task. Our reconstruction begins by following activist Ida B. Wells’s advice: “Tell the world the facts” about “the alarming growth and extent of outlawry in our land,” and “some means will be found to stop it.”

[From White Power: Policing American Slavery by Gautham Rao. Copyright © 2026 by Gautham Rao. Published in the W. Hodding Carter III Books imprint of the University of North Carolina Press. Used by permission of the publisher.]

Rg 34 (2026)

2026-09-14T00:30:00.000-04:00

[We have the following announcement. DRE]

Rechtsgeschichte - Legal History 34 (2026) out now. It is the journal of the Max Planck Institute for Legal History and Legal Theory

Last year saw the publication of two significant new books on Rudolf von Jhering, one of the most original legal scholars of the 19th century. In the Research section of this year's issue of our Institute journal, the books' authors present their findings for discussion. While Michael Kunze traces Jhering's life-long quest for a secular foundation of law as an invisible normative order, Mathias Reimann finds both brilliant insights and chaotic tendencies in Jhering's writings.

Dave De ruysscher's article on the history of bills of exchange in Western Europe argues that their regulatory framework remained relatively indeterminate between c. 1450 and 1680. Only gradually did a synthesis of Genoese and Dutch methodologies establish itself as the dominant approach. Beate Althammer explores the history of pardoning practices as a part of 19th-century criminal justice reforms. Her analysis of petitions for royal mercy in England and Prussia leads her to question the narrative of a linear change of legal order and pardoning practices. Triin Tark offers a Baltic perspective on the translation of legal texts during the interwar period. She demonstrates how the consistent terminology for ethnic minorities used in the Estonian Law on Cultural Autonomy (1925) was replaced with an eclectic mix of vocabulary by the League of Nations' translators.

The Research section is completed by Erk Volkmar Heyen taking a closer look at the iconography of the courtroom table from the joint perspective of art and legal history. His analysis of 19th-century French and Belgian satirical images of the judiciary focuses on the relationship between religion and the state.

Art and creativity are also the subjects of this year's Forum section. Its 15 short contributions explore the possibilities opened up by creative methods in legal history from a global perspective - with examples from the Americas, Africa and India.

This issue's Critique section offers 33 reviews of recent publications relevant to the study of legal history from late antiquity to the 21st century. Under Comptes rendus, we briefly present some key publications by researchers at our Institute.

Thorsten Keiser's Marginalia contribution deals with a key characteristic of the Venetian Republic's constitution from the late Middle Ages to the 18th century: the anonymous denunciation (denuncia segreta). The print issue's series of images is also devoted to Venice; the various selected views of the lagoon city all stem from the extensive collections of Frankfurt's Städel Museum.

Rechtsgeschichte - Legal History 34 is now available in print from the publishers Vittorio Klostermann and online in Open Access via the journal's website.

Weekend Roundup

2026-09-12T00:30:00.000-04:00

The Library of Congress will observe Constitution Day with a program on William Howard Taft, featuring Kevin J. Burns, assistant professor of political science and economics at Christendom College, who will draw upon his book, William Howard Taft’s Constitutional Progressivism (University Press of Kansas, 2021). Colleen Shogan, the 11th Archivist of the United States, and John Bridgeland, co-founder and CEO of “More Perfect," will also discuss Hellen ("Nellie) Taft, his wife. Friday, Sept. 18, 2 – 5 p.m. in the Library of Congress's Thomas Jefferson Building, LJ-119.

Meghan Woolley, an assistant professor of history at Idaho State University, has been awarded the A.W. Mellon Junior Faculty Fellowship in Medieval Studies at the University of Notre Dame. She will spend this academic year at Notre Dame’s Medieval Institute where she will focus on her first book project, tentatively titled "The Heart of Law: Friendship and Emotions in the Early Common Law." It will examine “the role of emotions within medieval law, and she aims to look at the long history of how emotions such as love, anger, and sadness were incorporated into the common law in twelfth- and thirteenth-century England to shape a legal system as it was being developed.”

The Association of Law and Political Economy has issued a call for papers for its next annual meeting, to be held in Boston, MA, June 9-10, 2027.

ICYMI: Dennis Wieboldt on Adjudicating “History and Tradition” (Law & Liberty). Brown University remembers Gordon Wood (BDH). John McLaren, founding dean of the University of Calgary Faculty of Law (U Calgary).

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

Ohlmeyer, Ross and Stern on Legal Anglicization in British North America, Ireland and India

2026-09-11T13:00:00.000-04:00

Jane Ohlmeyer, Trinity College, Dublin, Richard J. Ross, University of Illinois, and Philip Stern, Duke University, have posted Anglicization of and through Law: British North America, Ireland, and India Compared, 1540-1800, which also appears in Journal of Modern History 98 (2026): 539-77.

Historians of British North America, Ireland, and India write, each in their own ways, about the convergence of societies in the English empire towards metropolitan models, a process generally known as “anglicization.” Yet anglicization has never been studied as a feature connecting the global British empire. Scholars typically consider a single region and seldom engage with others. We pursue a comparative approach, using law as our vantage point. Our goal is to explore anglicization of law and through law in British North America, Ireland, and India over the course of the long early modern period from the sixteenth through early nineteenth centuries. Our article begins with brief histories of anglicization in Ireland, America, and India that establish a foundation for comparison, for identifying commonalities and differences. We describe the “life cycle” or sequence of anglicization taking place upon different timelines in each of the three regions. Lest we overstate the extent of anglicization, we next consider difficulties that arise when deploying the concept. We conclude by suggesting how our project might stimulate comparative imperial history by developing categories that are portable, transferrable across place and time, and useful in studying both British overseas expansion globally and in connecting the British experience to that of other empires. Towards this end, we apply our approach to a contrast case: the Spanish empire’s fraught efforts to construct legal authority over indigenous peoples in New Spain and Peru.

--Dan Ernst

Duxbury on the "General Law Renaissance"

2026-09-11T11:00:00.000-04:00

Neil Duxbury, London School of Economics, has posted The General Law Renaissance and the Common Law, which is forthcoming in the Notre Dame Law Review:

Of late, there has emerged an important body of legal scholarship sympathetically reassessing the concept of “general law” – unwritten legal norms discoverable by courts. This article shows that these reassessments run up against a problem when the general law in question is common law. The problem arises from a question: what makes common law valid as law in the first place? In England, the answer is that common-law norms are presumed to have governed since the beginning of English legal memory in 1189. That answer is strained, even in England. In the United States, it makes no sense. No American legal custom runs to 1189. The English validity test simply cannot be satisfied here.

This doesn’t pose a difficulty at state level, where statutory and other modes of reception supply an alternative, positivist foundation for the common law. The difficulty is federal. Erie Railroad v. Tompkins held that federal courts cannot discover a body of general law and use it to displace state law. General-law revivalists challenge Erie’s premises. This article argues that the challenge underestimates the difficulty. Absent federal-legislative or constitutional adoption, there can be no valid common law as a category of substantive general law, because the test that makes common law authoritative as customary law cannot be met on American soil.

Rather than discover common-law rules, federal courts, this article contends, do something significantly different: they extract underlying principles from the common-law tradition and fashion new rules from those principles. That is judicial lawmaking, but lawmaking from principle, not from nothing. Attentiveness to this distinction matters more than ever now that general law is back on the agenda.

--Dan Ernst

Murphy on Lay Legal Advocates in the Farm Crisis

2026-09-11T00:30:00.000-04:00

Ellen Murphy, Wake Forest University School of Law, has posted Farm Advocates: Unearthing an Access to Justice Success Story, which is forthcoming in the Nebraska Law Review:

This is the untold story of a grassroots group of lay legal advocates who – in defiance of unauthorized practice of law restrictions – provided legal assistance to countless farmers and farm families during the 1980s Farm Crisis. The Farm Crisis followed a period of unprecedented prosperity in farm country. But when the boom ended, many farmers were saddled with unmanageable debt. Farm country and much of rural America faced catastrophic loss of people, community, and institutions. Pressured by class actions against government lending agencies, Congress (eventually) responded with statutory relief for the farmers. However, obtaining the relief was legally complex and, as remains true today, farm country faced a simultaneous crisis: access to justice. Farmers needed legal assistance, but lawyers were scarce, cost-prohibitive, and unfamiliar with agriculture’s legal complexities and cultural norms. The farm advocates stepped up to provide the legal services that farmers needed.

These self-organized groups of neighbors helping neighbors morphed into a sophisticated system of legal service providers who were trained and supported – but not supervised – by legal service agencies and nonprofits. Some states, like Minnesota, funded farm advocate programs. The advocates, operating in plain sight, counseled, advised, and assisted distressed farmers and farm families in exercising their legal rights. The farm advocates were not lawyers but nevertheless, they engaged in the practice of law. And they did so without evidence of harm and without drawing the ire of the bench and bar.

The farm advocates’ legal work saved countless farms and restored hope to rural communities. Analyzing hundreds of pages of training materials and oral histories, this article unearths their contribution to access to justice. The farm advocates were a small but mighty force in the history of access to justice. Their story challenges the foundational premise of lawyer regulation: that legal services can be competently provided only by lawyers and that law practice by unlicensed practitioners invariably harms the public. The farm advocates' story shows, to the contrary, that legal services can thrive outside of the lawyer monopoly, and that strict enforcement of unauthorized practice of law restrictions can deprive people of help that is essential to their lives and livelihoods.

--Dan Ernst

Maynooth's Research Centre for Legal History Launch

2026-09-10T09:30:00.000-04:00

We have word of the launch of the newly established Research Centre for Legal History at the Maynooth University School of Law and Criminology at the National University of Ireland, 49 Merrion Square East, Dublin, on Wednesday, September 16, 10 AM - 4 PM.

10am Registration

10:10 Introductory remarks by the Chief Justice of Ireland, Donal O’Donnell

10:30-11:50

David Doyle, Maynooth University, ‘Revolting that police officers and Irishmen have to be employed in detecting such crimes': Sexual Offences against Young Boys, 1923-35’

Lynsey Black, Maynooth University, ‘Constructing Evil – The Trial of Mamie Cadden’

12:00-13:20

Sarah Hamill, Trinity College Dublin, ‘Rent Control in the 1970s and the origins of Blake v Attorney General’

Niamh Howlin, University College Dublin, ‘Legal History as a Tool for Righting Historic Wrongs?’

12:30-14:15 Lunch

14:15-15:45

Norma Dawson, Queen’s University Belfast, ‘Lord Talbot de Malahide (1805-1883) and the first treasure trove bill in the common law world’

Heikki Pihlajamäki, University of Helsinki, ‘Writing national legal histories: why and how?’

15:45-16:00 Concluding remarks

Columbia Law's Legal History Workshop

2026-09-10T00:30:00.000-04:00

[We have the following schedule for the Columbia Law School’s Legal History Workshop. DRE.]

Columbia Law School Legal History Workshop, 2026–2027

Wednesdays, 4:10–6:00 p.m., Jerome Greene Hall, Li Lu Law Library 215. Convenors: Kellen R. Funk, Columbia Law School; Amy Chazkel and Kalyani Ramnath, Department of History. RSVP: kprada@law.columbia.edu

September 16, 2026
Alexander Arnold, UCLA School of Law
“Ye Shall Know the Truth”: Truth-Seeking, Judicial Economics, and the
Transformation of Civil Procedure

October 14, 2026
Róisín Costello, Heyman Center for the Humanities, Columbia University
Transatlantic Exchanges: The Development of Privacy in the Common Law World

November 4, 2026
Kalyani Ramnath, Department of History, Columbia University
Law, Science, and the Making of Maritime Boundaries in the Indian Ocean,
1950–1990

December 2, 2026
Samantha Barbas, University of Iowa College of Law
Into the Vortex: Public Figures, Libel Law, and the Making of the Free Press

February 3, 2027
Marie-Amélie George, Wake Forest School of Law
Criminal Instruments: Needle Exchange, the Necessity Defense, and the Fight
Against AIDS in New York City

March 10, 2027
José Argueta Funes, UC Berkeley School of Law
Tribal Law and Legal Landscapes: A Marriage Story

March 31, 2027
Juan Arboleda, SNF Agora Institute, Johns Hopkins University
A Constitution of Many Constitutions: Translation, Participation and
Colombia’s Constitutional Imagination

April 21, 2027
Adriana Chira, Department of History, Emory University
Legal Tender: Slavery, Credit, and Legal Personhood in Seventeenth-Century
Havana

Reading the Past: Historians and Lawyers in Dialogue

2026-09-09T00:30:00.000-04:00

[We have the following announcement. DRE.]

Reading the Past: Historians and Lawyers in Dialogue, Tuesday, September 29, 3–4 p.m. ET

Originalism is now common in contemporary constitutional law cases. In just a few short years, courts have invoked “original public meaning” and “history and tradition” to challenge the separation of powers, reproductive freedom, the ability to regulate firearms, and civil rights law. Given these high stakes, it is more important than ever to understand, counter, and contain originalist arguments. And when it comes to addressing the "historical" claims originalist arguments rely on, lawyers and historians can work together.
Join us virtually on Tuesday, September 29, at 3 p.m. ET as Brennan Center lawyers and leading American historians share practical insights from their work addressing originalist arguments in the courts. They will explore recent trends in judges’ use of history, share practice pointers that can help lawyers and historians partner more effectively, and discuss some non-originalist ways that history can help us make sense of the Constitution.

Continuing Legal Education (CLE) credit will not be available for attending this panel. Produced in partnership with the American Bar Association’s Standing Committees on Gun Violence and on the Law Library of Congress, with support from the Albert LePage Center for History in the Public Interest at Villanova University

Speakers:

Laura Edwards, Class of 1921 Bicentennial Professor in the History of American Law and Liberty and Professor of History, Princeton University
Serena Mayeri, Arlin M. Adams Professor of Constitutional Law and Professor of History, University of Pennsylvania Carey Law School
Thomas Wolf, Director of Democracy Initiatives, Brennan Center
Samuel Breidbart, Counsel, Brennan Center

Moderator: Stephen Wermiel, Emeritus Professor of Practice of Constitutional Law, American University Washington College of Law

Legal History Job at the University of Florida

2026-09-08T11:33:04.786-04:00

[Via H-Law, we have the following announcement for an Assistant Professor US Legal History in the Department of History in the College of Liberal Arts and Sciences at the University of Florida. The university is also seeking a professor of American Government, History, Literature, and Law for its in the Hamilton School for Classical and Civic Education. DRE]

The Department of History at the University of Florida, College of Liberal Arts and Sciences, invites applications for a full-time (1.00 FTE), nine-month, tenure-accruing appointment at the rank of Assistant Professor of United States Legal History, beginning August 16, 2027.

The successful candidate will contribute to the History Department’s intellectual growth through active research programs and engagement in interdisciplinary and collaborative scholarships. We welcome applicants whose research, teaching or public engagement incorporates digital history methods and approaches. We also welcome applicants with interest in indigenous history. The department is particularly interested in candidates whose work advances the study of United States Legal History while fostering connections across disciplines and fields of inquiry.

The appointee will assist in coordinating the Department's Legal History Certificate/Specialization and will contribute to its curriculum through teaching core course in the program.

The successful candidate will be expected to demonstrate a strong commitment to teaching undergraduate and graduate students and maintain robust research and publication agenda consistent with expectations for faculty at a leading Research 1 institution. The candidate will also contribute effectively to the department’s undergraduate and graduate program through mentoring students, offering seminars, and chairing and serving on committees.

Candidates are encouraged to visit the departmental website to learn more about the department and our university.

The salary is competitive and commensurate with qualifications and experience.

The University of Florida, a top-ranked public research institution, offers a comprehensive and competitive benefits package to support employees’ health, financial security, and work-life balance.

Comprehensive medical, dental, vision, and prescription coverage.
Life insurance, long-term disability, accident, and illness insurance.
Retirement savings and investment options with employer contributions.
Generous paid time includes vacation, sick leave, annual holidays, personal holidays, and winter break.
8 weeks of paid parental and medical leave.
Access to wellness programs, flexible spending accounts, and an employee assistance program.
Discounts for on-campus and off-campus activities and services

Required Qualifications:

Ph.D. in History or a closely related field by August 15, 2027.
Demonstrated potential of excellence in scholarly research and publication in the field of United States Legal History.
Evidence of ability to teach effectively at the undergraduate and graduate levels.
Ability to contribute to graduate education through mentoring, advising and service activities

For full consideration, applications must be submitted online.

A complete application includes:

Letter of application summarizing the applicant's qualifications, interests, and suitability for the position
A statement of research goals (approximately 400 words)
A statement on teaching goals (approximately 400 words)
A complete curriculum vitae
Names and contact information for three professional references (the search committee will request confidential letters of recommendation only from candidates selected for its long list).
Additional materials may be requested from finalists.

This position is open until filled. Review of applications will begin on October 16, 2026, and will continue until a successful applicant is selected.

All inquiries may be directed to the Search Committee Chair, Dr David Silkenat at dsilkenat@ufl.edu.

All candidates for employment are subject to a pre-employment screening which includes a review of criminal records, reference checks, and verification of education.

The selected candidate will be required to provide an official transcript to the hiring department upon hire. A transcript will not be considered “official” if a designation of “Issued to Student” is visible. Degrees earned from an educational institution outside of the United States require evaluation by a professional credentialing service provider approved by the National Association of Credential Evaluation Services (NACES), which can be found [here].

Cahn, Eichner and Ziegler on Parental Consent and Minor Rights

2026-09-08T00:30:00.000-04:00

Naomi Cahn, University of Virginia School of Law, Maxine Eichner, University of North Carolina School of Law, and Mary E. Ziegler, University of California, Davis School of Law, have published “For Their Benefit": The Lost History of Parental Consent and Minors Rights, which is forthcoming in the California Law Review:

The principle of parental involvement in children’s lives has achieved surprising consensus across blue and red states. Meanwhile, the goal of children’s wellbeing has become a touchstone for legal reform efforts across a variety of domains. The apparent embrace of both the goal of children’s wellbeing and parents’ right to be involved conceal deeply contested questions about when, why, and how the law should require parental consent of minors’ decisions.

Drawing on archival material housed at six different universities, we make sense of present-day conflicts about parental approval by revisiting the long legal history of parental involvement, from early common-law cases to struggles of the civil rights era. We show that contrary to widespread assumptions, from the very beginning, strict requirements of parental involvement were compartmentalized to particular areas and inconsistently applied in others. Further, what is often portrayed as a relatively recent, evolving consensus in favor of using children’s wellbeing rather than parental involvement as the guiding principle in the regulation of children is instead a continuation of a longstanding tradition. At common law, we demonstrate, in determining whether a minor could bind themselves to an agreement without parental involvement, courts often asked whether an agreement was beneficial to the child’s interests (and therefore either voidable or binding, depending on the judge or jurisdiction) or prejudicial to the child’s interests and therefore void.

Building on a rich literature on child wellbeing, we then use lessons from this history to construct a framework for determining when legislators and judges today should require parental involvement and when minors should be allowed to make their own decisions. We begin with a presumption, drawn from the lessons of common law, that parental involvement should be required for most types of important decisions. Yet decision-makers should impose exceptions to the general rule of parental involvement when: (1) parental involvement requirements impede access to care or resources critical to minors’ wellbeing; or (2) the decision at issue is integral to minors’ autonomy over their bodies and their futures. We consider how this framework would address four current controversies relating to minors: (1) abortion and abortion-related travel; (2) gender-affirming medical care; (3) access to social media; and (4) mental-health treatment. Our framework, we hope, will be faithful to the basic principles that animated the common law and better able to illuminate when parental involvement is beneficial—and when it may have harmful consequences for the minors it is supposed to protect.

--Dan Ernst

Notre Dame Graduate Legal History Colloquium

2026-09-07T00:30:00.000-04:00

[We have the schedule for the first meeting this academic year of the Notre Dame Graduate Legal History Colloquium on September 26, 2026, 10 AM - 3 PM (CST) at the Notre Dame Law School at Chicago. You may register for the event here. DRE]

09:45 - 10:05 AM. Registration/Welcome
Coffee & Morning Refreshments

10:05 - 11:00 AM. Paper #1: Originalism and the New Deal

"Refounding the New Deal"
Author: Keshav Raghavan, Harvard Law School
Respondent: Joanna Grisinger, Associate Professor of Instruction in Legal Studies, Northwestern University

11:05 - 12:00 PM. Paper #2: Emergency Powers: From Exception to Expectation

"The Court of History: Executive Power and the Patient Constitution"
Author: Christian Ketter, University of Illinois at Chicago
Respondent: Beau Baumann, Associate Professor, University of Utah, S. J. Quinney College of Law

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

01:05 - 2:00 PM. Paper #3: The Imperial Executive

"Empire and the Making of the Managerial Presidency"
Author: Elliott Setzer, Yale University
Respondent: Christine Chabot, Associate Professor of Law, Marquette University Law School

02:05 - 3:00 PM, Paper #4: The Executive and Judiciary in Perspective

"The Protective Power: Judicial Self-Defense and the Origins of a Presidential Prerogative"
Author: Tim Vanable, Columbia University
Respondent: Harold J. Krent, Professor of Law & Interim Dean, Chicago-Kent College of Law

Weekend Roundup

2026-09-05T00:30:00.000-04:00

A notice of Arnaud Fossier's research, while on a fellowship at Berkeley's Robbins Collection Research Center, on the "evolution of 'merit' in medieval canon law, from Gratian’s Decretum (circa 1140) to the Liber Sextus (1296)” (Berkeley Law).

Sarah Wharton, Harvard Law Library, discusses here experiences this summer attending “Researching Medieval Manuscripts: From Cataloging to Cultural History” at Rare Book School at Oxford University (Amicus Libris).

"A discussion between Carolina Law Professor Michael Gerhardt and University of Virginia law professor Saikrishna Prakash on the powers the Constitution grants the president and what they mean today," Monday, September 14, 5:30–7 p.m, UNC Law.

The legal historian Alan Rogers, emeritus professor of history, Boston College, is dead.

Andrew Wender Cohen discusses his book “Gangster of New York on the BBC HistoryExtra podcast.

A press release on the research of Andrew Torrance, University of Kansas Law, on the legal history of the kiss.

Daniel Immerwahr reviews Nikolas Bowie and Daphna Renan's Supremacy: How Rule by the Court Replaced Government by the People (New Yorker).

"Step back into Maine’s early legal history on Thursday, September 24, 2026, from 6:00 PM to 8:00 PM, for a special, free dress rehearsal performance of True Crime: 1815 – The Trial of Dr. Moses Adams. The main event will be held Friday, September 25, 2026 at the Ellsworth Public Library" (Bar Harbor Story).

Bronx County Court House, 1933 (NYPL)
The Historical Society of the New York Courts, the New York City Criminal Court, Bronx County, and the Bronx County Supreme Court, Criminal Term will hold the hybrid program America 250: The Bronx Perspective on Thursday, September 24, 2026, 1:15 - 2:15 PM. It will trace “the history of Bronx County through legal landmarks from 1776 to today, addressing how the County has changed from an agrarian community to a diverse and bustling borough."

"The Irish Legal History Society is to take part in the Dublin Festival of History hosting a panel discussion on, ‘courts, crime and hidden lives in Dublin’ on 29 September" (ILN).

Lawbook Exchange's September 2026 list on Scholarly Law and Legal History.

ICYMI: Richard Re on the sloughing off of originalism within the Marble Palace (SCOTUSblog). Gautham Rao takes issue with Chief Justice Roberts's biographical sketch of William Howard Taft (Philadelphia Inquirer). Jodi Kantor's article on Supreme Court justices' papers (NYT). Marcia Coyle on the Constitutional Fight to Preserve [Presidential] History (NCC).

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

Boston College Law School Legal History Roundtable

2026-09-04T00:30:00.000-04:00

[We have the following announcement of this academic year's meetings of the Boston College Law School Legal History Roundtable. We'd be pleased to post the schedules of other works-in-progress series as they are finalized. DRE]

This year, the Boston College Law School Legal History Roundtable begins its 25th successful year. BC Law's legal history group–Mary Sarah Bilder, Felipe Cole, Daniel Farbman, Aziz Rana, Adnan Zulfiqar, Marco Basile, Daniel R. Coquillette, and Frank R. Herrmann, S.J.–welcome anyone in the Boston area to join us. The Roundtable meets and discusses a pre-circulated paper in an informal, collegial atmosphere of informed discussion. We meet in the Boston College Law Library, Daniel R. Coquillette Rare Book Room. More information can be found on the website or by contacting Scott Sheltra (sheltras@bc.edu)

Thursday, September 10, 4:30pm
Professor H. Timothy Lovelace, Jr. (Duke Law)

Thursday, November 5, 4:30 PM
Professor W. Tanner Allread (Harvard Law School)

McKoski Discusses Lincoln's Favorite Judge

2026-09-03T00:30:00.000-04:00

The Supreme Court Historical Society has just posted in its "Breaking History" series an interview by the Lincoln scholar Thomas Horrocks of Raymond McKoski on his book, David Davis, Abraham Lincoln's Favorite Judge (University of Illinois Press, 2025). Topic include "Davis’s long friendship with Abraham Lincoln, his role as a persuasive political strategist who helped mastermind Lincoln’s rise, and his independence during 14 years on the Supreme Court." Also: "how Davis remained impartial even when his rulings put him in conflict with Lincoln during wartime and why Davis ultimately left the Court for politics, becoming the only Supreme Court Justice to resign to become a U.S. Senator."

--Dan Ernst

Making Connections: The ASLH Author-Meets Reader Series

2026-09-02T00:30:00.000-04:00

We recently received a reminder of one of the advantages of membership in the American Society for Legal History. Some years back, the ASLH decided to supplement and, to a certain extent, supplant, “author-meets-reader” sessions at its annual meeting, with the virtual series Making Connections: New Works in Legal History. Anyone may Zoom in, but only ASLH members may access the recordings.

'This academic year’s lineup is quite impressive: Anna O. Law, Migration and the Origins of American Citizenship—African Americans, Native Americans, and Immigrants (Oxford University Press, 2026); Gautham Rao, White Power: Policing American Slavery (University of North Carolina Press, 2026); Melissa Crouch, The Palimpsest Constitution: The Social Life of Constitutions in Myanmar (Oxford University Press, 2025); Rohit De and Ornit Shani, Assembling India’s Constitution: A New Democratic History (Cambridge University Press, 2025); Rachel A. Shelden, The Political Supreme Court: A Forgotten History (University of North Carolina Press, 2026); Ari Z. Bryen, The Judgment of the Provinces: The Roman Empire and the Origins of Law and Society (Cambridge University Press, 2026); Barbara Young Welke, Writing with Fire: The Cowboy Suit Tragedy and the Course of a Life (University of Chicago Press, 2026); Sonia Tycko, Captured Consent: Contract Labor in English Charity, Colonization, and War, 1600–1700 (Cambridge University Press, 2026); Jill Elaine Hasday, We the Men: How Forgetting Women’s Struggles for Equality Perpetuates Inequality (Oxford University Press, 2025); Holly Brewer, The King’s Slaves: The British Empire and the Origins of American Slavery (Princeton University Press, 2027). The interlocutors are just as good as the books.

New Guest Blogger Alert! Gautham Rao

2026-09-01T00:30:00.000-04:00

We are delighted to welcome Professor Gautham Rao to the blog for the month of September! LHB readers are likely familiar with Rao, either from his long-running stint as the editor of the Law & History Review or from his tremendous scholarship on American law and governance in the early national period. Cribbing from his American University bio, here is a fuller introduction:

Gautham Rao is a legal historian of early America and the United States. He joined the Department of History at American University in 2012 after previously teaching at Rutgers/NJIT and completing a postdoctoral fellowship at the Library Company of Philadelphia. Rao was also a Samuel I. Golieb Fellow of Legal History at the New York University School of Law and a Hurst Fellow at the University of Wisconsin Law School. Rao’s latest book, White Power: Policing American Slavery was published in May, 2026 by Hodding Carter III Books. His first book, National Duties: Custom Houses and the Making of the American State was published by the University of Chicago Press in 2016.

Rao is currently working on a book about the historical importance of the television show The West Wing. He is also beginning work on a new legal and constitutional history of the Confederate States of America.

At American University, Rao teaches a wide range of courses, from “The West Wing as History” to General Education courses "Why Big Government?", "Hannah Arendt, Ethics, and Citizenship," "Law and America's Racial Crisis," "American Encounters" and "Social Forces that Shaped America." He also teaches graduate courses such as Colloquium in U.S. History 1, Graduate Research Seminar, and The Historian's Craft. In 2016-2017,The Center for Teaching and Learning named him a Partner in Teaching Fellow.

Rao's service to the field is too robust to capture in full. It includes not only his work for the Law & History Review (which won him the Craig Joyce Medal from the American Society for Legal History in 2025), but also service to the Society for Historians of the Early American Republic, the American Historical Association, and the Brennan Center for Justice’s Historians’ Council on the Constitution. More here.

Rao will be blogging about his most recent book, White Power: Policing American Slavery (Hodding Carter III Books, University of North Carolina Press) (previously mentioned on the blog here).

For even more on Rao, check out his personal website. A nice touch is the rotating series of quotes at the bottom of the home page, where you will see one "RateMyProfessors.com" reviewer describe him (accurately) as "funny as hell."

-- Karen Tani