Legal History Blog

Hodges's "Rise of US Military Legalism"

2026-11-06T09:30:00.000-05:00

Doyle K. Hodges, the Dean of Academic Affairs at the Naval War College, has published The Rise of US Military Legalism A New Theory of Military Professionalism (Routledge):

The book documents a change over the past 50 years in the way in which US military officers make decisions about using force, which it calls "military legalism". Rather than relying solely on professional military judgment and professional military ethics, officers are increasingly using legal norms and reasoning to justify their choices. This book explores how widespread this practice has become, explains why it has emerged, and examines some of its implications. Using historical cases from World War II through the opening days of Operation Iraqi Freedom, this book traces changes in the way in which civilian policymakers have governed US military decisions about the use of force, and how the military has responded to these changes. While military legalism is normatively neither good nor bad, legalistic reasoning has been used to justify morally deficient policies, and a reliance on legal reasoning may have unanticipated and unexamined effects on the norms of civil-military relations.

--Dan Ernst

Zatelli to Lecture on Vice-Admiralty Courts of Colonial NY

2026-11-05T00:30:00.000-05:00

[We have the following announcement. DRE]

On November 10, the Helsinki Legal History Series will reconvene for Gustavo Zatelli, University of Helsinki, to give the lecture “Exploring the British Empire beyond the Common Law: A Comparative Study of the Vice-Admiralty Courts during the Eighteenth Century (New York).” Time: 3 pm – 4.30 pm. Location: Apollon Sali K134. Link for online participation [here]

This paper examines legal pluralism in eighteenth-century British colonial vice-admiralty courts, focusing on how legal actors drew on different legal traditions, particularly the use of civil law, to elaborate their arguments. It presents preliminary findings from an ongoing research project funded by the Research Council of Finland, which compares legal argumentation used in the Vice-Admiralty Courts of Massachusetts, New York, Virginia and Jamaica up to 1775. Within this comparative framework, the paper concentrates on records from New York, where archival research is currently most advanced.

Through an analysis of legal argumentation, the paper investigates how the interpretation and application of imperial admiralty law occurred in colonial contexts. It asks how and why different legal traditions were invoked, and what these practices reveal about the relationship between colonial interests and imperial authority. The project’s central hypothesis is that vice-admiralty jurisdiction provided an institutional environment in which participants could strategically draw on different legal traditions to advance claims, articulate expectations about rights and obligations, and negotiate competing interests. By examining these practices, the paper seeks to clarify the relationship between legal pluralism and colonial governance, while considering how the preliminary findings from New York can inform the project’s broader comparative analysis.

Gustavo Zatelli Correa is a legal historian and Academy Researcher at the Faculty of Law, University of Helsinki. His research focuses on comparative colonial legal history, the circulation of legal knowledge, and the history of administrative law and police regulation. His current project, funded by the Research Council of Finland, compares vice-admiralty courts in eighteenth-century British colonies. He previously worked on the University of Helsinki’s Comparing Early Modern Colonial Laws (CoCoLaw) project and has held research appointments in Frankfurt and Vienna. He obtained his PhD by the University of Brasília, Brazil.

Stern Receives Cromwell Article Prize

2026-11-04T00:30:00.000-05:00

As members of the American Society of Legal History know, the William Nelson Cromwell Foundationhas long awarded a number of prizes and awards to scholars nominated by committees of the ASLH. Since 2022, Cromwell has also awarded, on the nomination of its own committee, a $10,000 annual prize for a legal history article. This year, the Cromwell's committee was chaired by John Fabian Witt. Its other members were Mary Bilder, Risa Goluboff, Amalia Kessler, John Langbein, and yours truly.

The winner of this year's Cromwell article prize is Rephael G. Stern, Boston University Law School, for "The Lost English Roots of Notice-and-Comment Rulemaking," 134 Yale L. J. 1955 (2025). Here is the committee's citation:

Stern takes up one of the most consequential procedures in American government—the notice-and-comment rulemaking enshrined in Section 553 of the 1946 Administrative Procedure Act—and asks where it came from. Conventional scholarly accounts locate its origins alternately in congressional petitioning, nineteenth-century agency practice, and German administrative thought. Drawing on original archival research, Stern shows instead that notice-and-comment rulemaking arose out of a series of American transplantations of U.K. procedures for delegated rulemaking in the late nineteenth and early twentieth centuries, from the Rules Publication Act 1893 through the influential 1932 report of the Donoughmore Committee. New Deal reformers borrowed the English framework, with its requirements of publication and consultation. But the transplant was only partial. In light of concern that congressional involvement might obstruct administrative rulemaking, and given the resounding defeat of the nondelegation doctrine, Americans declined to import a crucial accompanying institution. They omitted the English practice of “laying” regulations before the legislature for consideration—a form of legislative veto that was integral to rulemaking in England.

"The Lost English Roots of Notice-and-Comment Rulemaking" is a model of transatlantic legal history, recovering a largely forgotten Anglo-American world of administrative law and unsettling the origin stories that have dominated the field. It is also a timely contribution to the present. At a moment when administrative law has returned to large-scale constitutional questions like legislative veto and nondelegation, and in an era in which administrative law often seems beset on all sides, Stern’s history illuminates lost paths not taken in the past as well as new possible futures. Readers of this article will ask themselves new questions, including whether some version of an English-style legislative veto might still offer democratic legitimacy to administrative procedures—or instead reproduce the very problems that led the New Deal’s architects to leave it behind.

--Dan Ernst

How and Why I Wrote a Book About the First Woman Judge

2026-11-03T00:30:00.000-05:00

I began writing about Florence Allen, the first woman judge, because she was literally staring me in the face, hanging in a portrait on the wall in the classroom where I taught. My dean casually asked me, “you know Florence Allen, right?” I did not.

A Biographical Lens

Judge Florence Allen,
Ohio Supreme Court c.1923

A quick web search told me the basics. The first woman federal appellate judge, appointed by FDR in 1934. The first woman in the nation elected to any state supreme court, Ohio in 1922 and re-elected in 1928. Before that the first woman judge elected to any general jurisdiction court, elected to Cleveland’s Cuyahoga County Court of Common Pleas in 1920, immediately after the ratification of the Nineteenth Amendment. The first woman shortlisted to the U.S. Supreme Court, considered twelve times by three presidents from both parties—and it looked like she had the nod three times between 1938 and 1949. I wrote a law review article recovering these basics, The Jurisprudence of the First Woman Judge, in the William & Mary Journal of Race, Gender, & Social Justice. There had been women in quasi-judicial administrative positions before Allen, but she was the first elected to a general trial court and was widely known in her time “the first woman judge.”

Judge Allen’s story, however, was more than the story of one woman. It was the story of women’s integration and transformation of the law more broadly. Thus, I thought a book length treatment was needed. For Allen was among the first one percent of women in the law at every stage: as law students, lawyers, trial attorneys, prosecutors, congressional candidate, as well as judge.

And as women entered these halls of justice, they brought with them transformative ideas of public law, fair process, and ethical adjudication. As external players to partisan politics, women activists had learned how to use alternative systems of lobbying, administration, and influence to achieve policy goals and correct injustices. They brought with them reform notions to restore the rule of law, ethical decisionmaking, and a democratic legal system accountable to all, not just the corporate and private business interests. Allen was at the forefront of this transformation, and her story tracks these changes demanding more responsive courts.

On the Research Trail

The research process was longer than I had hoped. I thought I had learned with my first scholarly monograph, ECS, how to better collect, scan, organize, index, and manage the archival process. But this second book project brought similar hurdles. Changing technology uncoding the coded. A pandemic, fire, and political machinations shutting down archives. Research assistants losing and erasing documents before they were backed up. Heavy teaching loads. Restarting writing each summer, and reinventing the wheel. Yet the story continued to drive me.

The research included over five thousand documents primarily at the Western Reserve Historical Archives in Cleveland and the Library of Congress. Digitization and the LOC as well as other libraries revolutionized the process. Even in the final days of proofreading and edits, the explosion of archival access to local papers with sites like Newspapers.com and NewspaperArchive provide rich new sources from sources in real time.

Reading Allen’s 800 federal and state opinions was also a challenge. First, just finding them was a battle, as many in this historical time frame were not readily available or did not indicate the writing judge in databases like Westlaw or Lexis. Frustrated, I finally went old school, asking the wonderful librarians in the Akron Law Library to help me find the dusty volumes of the reporters in the deep storage basement of the library. Lo and behold, I discovered in these a beautiful index at the front of each book listing opinions by writing judge, easily finding all Allen’s decisions including the per curiams. I also discovered in these indices that Judge Allen was always listed at the end of all seven judges, despite the alphabet placing her first and despite rising seniority over the years. It seems the woman judge, or “Miss” rather than “Judge,” as the volumes sometimes labeled her, could not be first.

The second research challenge from the cases was placing them in legal and historical context. Allen’s key years on the bench, 1920 to 1959, were among the least familiar to me. The least taught in Con Law courses, the least used in gender analysis, and often considered mere stopping points on the way to further developments. So learning the U.S. Supreme Court cases from this period, and the labor history, and the full legal history of the 1912 progressive Ohio Constitution were all required reading. It was fascinating—among the most generative and engaging projects of my career. There were rabbit holes galore as detours took me into hours of esoteric web searching. Producing a list of ancillary interests--enough to produce a list of six more books I’d like to write next.

Writing Women’s Legal History

The process of writing The First Woman Judge reminded me of some of the catches to writing women’s history. Writing women’s history is different because the sources may be difficult to find, less evidence is preserved by family members or institutions, women change their name at marriage, and women are often found externally to legal systems. See Oxford Legal History Bibliographies. Newspapers, organizations, and private collections offer potential gold mines, but do not offer easy access or indexation. Books about women’s history are often out of print, with the burst of scholarship in the early 1980s removed from shelves.

Allen’s story did not present as many of these methodological problems because she was unmarried, and was an internal institutional actor, who went to great lengths to preserve her own papers. Yet she culled these papers to omit much of the personal or political backstory and family members got rid of the rest. Even Allen’s opinions, had to be understood in gendered context as the chief justice refused to assign her important cases and male colleagues refused to engage with her in conference or join her opinions. The historical record thus requires gendered, as well as legal and historical, contextualization.

--Tracy Thomas

Mehrotra Reviews Williamson's "Price of Democracy"

2026-11-02T09:30:00.000-05:00

Over at U.S. Intellectual History Blog, Ajay K. Mehrotra reviews Vanessa Williamson’s The Price of Democracy: The Revolutionary Power of Taxation in American History (Basic, 2025). First, from the publisher:

Americans have always fought over the meaning of freedom and equality. What is not commonly recognized is that the battles most pivotal in defining our democracy, from the framing of the Constitution to the decades-long backlash to the civil rights movement, hinged on one issue—taxes.

In The Price of Democracy, Vanessa S. Williamson challenges the myth that Americans are instinctively anti-tax, revealing that fights over taxes have always been proxies for deeper conflicts over who is included in “We the People.” Poorer people have repeatedly built movements that sought to tax all Americans to create a more equal and democratic nation. Wealthy people have responded by constraining the power to tax and stifling democracy through voting restrictions, gerrymandering, and violence. Yet as hard as anti-tax crusaders have fought to create an America that redistributes not from rich to poor, but from non-white people to rich white people, the battle rages on.

The Price of Democracy uncovers how fights for fiscal fairness have defined American history, delivering a powerful message to the present: that taxes are the public’s most powerful weapon in the fight for a real democracy.

And from Professor Mehrotra's review:

In her brilliant and timely new book, Vanessa S. Williamson interrogates the changing historical relationship between taxation and American democracy. Chronicling the connection from the Revolutionary War Era to today, she contends that “taxes are a key ingredient in the recipe for successful representative government; leave them out and democracy struggles to rise.” While she acknowledges that voting is a pillar of democracy, holding free and fair elections is not enough. “A government also needs the resources and the organization to fill the demands of the voters. Thus, it is taxes that make democracy consequential,” she writes. Little wonder that opponents of American democracy, as Williamson persuasively shows, have historically sought to undermine – often simultaneously – both the franchise and robust tax systems.

--Dan Ernst

Welcome, Tracy Thomas

2026-11-02T00:30:00.000-05:00

Tracy Thomas, the Seiberling Chair of Constitutional Law at the University of Akron School of Law, joins the blog this month to discuss her new book, The First Woman Judge: The Life and Legacy of Florence Allen (University of California Press). She is also the author of Elizabeth Cady Stanton and the Feminist Foundations of Family Law (NYU Press 2016) and the editor (with Tracey Jean Boisseau) of Feminist Legal History: Essays on Women and Law (NYU Press 2011). She also directs Akron Law's Center for Constitutional Law. From the press's website:

Florence Allen was the first woman judge many times over—first federal appellate court judge, first elected to a state supreme court, and first shortlisted for the U.S. Supreme Court. During Allen’s forty years on the bench, the country swung between progressivism and conservatism, with passage of a constitutional amendment for women’s voting rights, two world wars, the Red and Lavender Scares, and the New Deal.

Amid these changes, women used their new political standing to transform the courts, first by becoming active agents in the justice system, and then by developing theories of public law, social justice, and fair process. Exploring Allen’s fascinating legal life, Tracy Thomas recounts the larger history of how women infiltrated the legal system as judges, lawyers, jurors, and legislators to demand a more representative system of justice for the welfare of all.

Welcome, Professor Thomas!

--Dan Ernst

Sunday Roundup

2026-11-01T00:30:00.000-04:00

A notice of Felicia Kornbluh's investiture as the Mark A. Stoler Green and Gold Professor at the University of Vermont.

The State Bar of New Mexico has received the Luminary Award for Excellence in Special Projects of the National Association of Bar Professionals for its Bar Bulletin: Commemorative Edition , which "explores more than 250 years of New Mexico’s legal history through original articles, archival photography, artwork and dual timelines" (Daily Post).

"On November 12, The LA Local and the Japanese American National Museum will host a live staged reading of a historic Supreme Court decision, Korematsu v. United States, in Little Tokyo, using a script by the Asian American Bar Association of New York. George Takei will play Fred Korematsu (LA Local).
"A brief history of spoiler candidates and the unsuccessful legal challenges to them" (Conversation).

--Dan Ernst

Weekend Roundup

2026-10-31T00:30:00.000-04:00

Alison LaCroix, University of Chicago Law School, "reflects on the perpetual struggle for a 'well-constructed union'" (UC Magazine).

Tomiko Brown-Nagin is interviewed as she leaves the deanship of Harvard Radcliffe Institute for the James Quillen Dean of its Graduate School of Education at Stanford University.

The Journal for the History of Ideas Blog is publishing a forum on The Conceptual History of Technology. The legal historian Haris Durrani has contributed The Idea of Invention in the Law, which is based on his forthcoming article, “Before Invention,” which charts the history of the legal doctrine of conception.

A recording of Jud Campbell's Scalia Lecture at Harvard Law, entitled "The Federalist Bill of Rights" (YouTube).

Carlton F.W. Larson, UC Davis School of Law, has posted an interview on treason during the American Revolution (AAR).

From In Custodia Legis: posts on "The Story Behind Latin America's Civil Codes: Shared Roots, National Traditions," "America's First Murder Trial," and Anti-Literacy Laws: The Legacy of Slave Codes.

A recent episode of the podcast Strict Scrutiny features Rachel Shelden (Penn State) in conversation with co-host Kate Shaw, Shelden discusses her new book The Political Supreme Court: A Forgotten History. She was also at Politics and Prose, where her interlocutory was Stephen Vladeck. And Penn State's notice of her book.

Pennsylvania's now-closed Pennhurst State School and Asylum has a fascinating and troubling history, including a rich legal history. A new film captures some of that history, alongside footage of the current commercial uses of the space (a haunted asylum attraction, ghost hunting tours). Information about the film (The Haunting of Pennhurst) is here. I also recommended David Korostyshevsky's review, posted at the blog Nursing Clio. [KMT]

Here is the Call for Proposals for the annual meeting of the Association of Law and Political Economy to be held in Boston on June 9-10, 2027.

ICYMI: A notice of A Concise History of American Law by the late William E. Nelson in the Law Society Gazette, and a review of Born Equal by Akhil Reed Amar in the Washington Independent Review of Books.

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

Greenlee and Mocsary on Game Laws, Black Codes, and Bruen

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

Joseph G.S. Greenlee and George A. Mocsary have published the essay From Royal Decrees to Black Codes: Wolford v. Lopez and the Limits of Post-Bruen Evasion in the Yale Law Journal:

Historical practices can illuminate the scope of constitutional rights, but they can also embody the abuses those rights were intended to prevent. Hawai‘i’s reliance on a Reconstruction Era Black Code to justify restrictions on public carry brought this distinction into focus. This Essay argues that New York State Rifle & Pistol Ass’n v. Bruen’s history-and-tradition inquiry is constitutional, not merely descriptive: a historical law does not become an authoritative measure of constitutional meaning simply because it was enacted. Examining English game laws, Hawaiian monarchical restrictions, and Reconstruction Era Black Codes, the Essay distinguishes historical practices that exemplify the American constitutional order from practices that order rejected, most notably through the Reconstruction settlement’s repudiation of laws intended to disarm and subordinate newly freed citizens. Such enactments cannot be erased from history, but neither should they become affirmative precedents for modern restrictions merely because they existed. Instead, they should serve as “anti-analogues”—counterexamples illustrating the abuses that constitutional guarantees were intended to prevent. This approach accounts for the entire constitutional episode, including subsequent repudiation, and supplies a principled method for evaluating historical evidence without allowing discredited governmental practices to diminish constitutional rights.

--Dan Ernst

Insiders and Outsiders in the History of Law

2026-10-29T00:30:00.000-04:00

It is publication day for the essay collection, Insiders and Outsiders in the History of Law, edited by Joanna McCunn and Gwen Seabourne (University of London Press):

Writing the history of law involves choices: whose stories are to be told, and how? Traditionally, legal history has focused on influential ‘insiders’ like judges, lawyers and legislators, and on studying the records they produced. Today, increasing attention is being paid to the lives of ‘outsiders’, drawing on new sources and methods to understand their experiences of the law.

This book brings together new research that examines dividing lines drawn in the history of law and the experiences of those who have fallen inside and outside them. From prominent judges and law reformers to women, colonial subjects and gender nonconforming people, and from medieval Crusader states to twentieth-century England, this book examines the legal encounters of a wide range of individuals and communities. The authors explore how people became legal insiders or outsiders, how the law treated them, and how they sought to wield legal processes to their advantage. They demonstrate the malleability and contingency of any insider/outsider binary. From the Tudor queens of England to mixed-race people in colonial Jamaica, legal actors have transcended boundaries and interacted with law in potent and unexpected ways.

At this pivotal moment for legal history, this book prompts conversation between those engaged in legal and historical studies and legal practice, and demonstrates the potential for a reinvigorated and representative legal history to improve our understandings of law’s past.

--Dan Ernst. TOC after the jump

Introduction
Joanna McCunn and Gwen Seabourne

1 “All those men who are not of the law of Rome”: participation and exclusion of non-Latin plaintiffs, defendants, witnesses and clerks in the courts of the Latin Kingdom of Jerusalem
Jennifer Pearce

2 Sir John Vavasour (d. 1506) and the Palatine of Lancaster: lawyer, judge, Northerner
A J Hannay

3 Inside and outside the palace: Henry VIII’s queens at law
Anthony Musson and Kirsty Wright

4 Racial Passing and Miscegenation in Colonial Jamaica
Justine Collins

5 ‘Being interpreted and translated into the English language’: the Chevalier d’Éon, the French outsider, in the English Law Courts, 1764-1776
Daniel F. Gosling

6 ‘A Scottish Judge’: Law Reform in the Age of Henry Brougham – An Outsider’s Influence
Patricia McMahon

7 Judicial insiders: the Coleridge dynasty
Philip Handler

10 Jurors and Jury Service in Interwar Bristol
Kay Crosby

11 Closing reflections: beyond insiders and outsiders
Joanna McCunn and Gwen Seabourne

Law and Diversity: Europe and Latin America

2026-10-28T10:47:11.749-04:00

[We have the following announcement. DRE]

Collin/Bastias Saavedra (eds.), Law and Diversity: European and Latin American Experiences from a Legal Historical Perspective. Vol. 2: Public Law. [Global Perspectives on Legal History. Vol. 29] (A Max Planck Institute for Legal History and Legal Theory Open Access Publication)

The principle of equality is one of the cornerstones of modern legal systems. Modern law is based on equality, and therefore assumed to stand in sharp contrast to the law of pre-modern, estate-based societies characterised by special legal regimes for particular groups or individuals. However, it is worth asking if this dichotomy can perhaps only be maintained if one looks solely at the fundamental postulates and the major codifications with their equality-orientated system formations. ‘Modernity’, too, is highly socially differentiated and continues or transforms ‘pre-modern’ distinctions to a not inconsiderable extent. All of this is often reflected in special rules created by the state or by the groups themselves – even if, in the latter case, they are often not recognised as law.

In this volume, the term ‘diversity’ denotes constellations of social difference that are relevant to normativity. This understanding of diversity only partially overlaps with the categories of postmodern diversity discourses. Rather, this volume’s central questions ask what social differences are relevant to normativity, to what extent and in what respect. Or, to relate it more specifically to the relationship between law and diversity: which social differences also make a difference to the law?

A comparative look at European and non-European developments provides a broader perspective on these issues. In this context, Latin America is a particularly fruitful field of investigation. On the one hand, a translation of European legal traditions already took place during the colonial period and, after independence, Latin American states striving for modernity often took recourse to European legal ideas and regulatory models. On the other hand, the legacy of the colonial past continued to have a formative influence, and the social differentiation to which the law had to respond was largely different from that in European societies.

To ensure that bringing together European and Latin American perspectives did not result in a series of mere juxtapositions, the contributions on the development of a specific national legal system are accompanied by comments written by experts on other national legal systems. These comments, firstly, outline the comparative development in a different state and, secondly, highlight differences and similarities. European and Latin American authors alternate. The period under discussion is the last 200 years.

These questions are addressed in the multi-volume publication “Law and Diversity: European and Latin American Experiences from a Legal-Historical Perspective”. In volume 1, the authors dealt with fundamental questions of law and diversity. The present volume, the second in the series, focuses on public law. Further volumes on private law and criminal law will follow.

Shelden, "The Political Supreme Court: A Forgotten History"

2026-10-27T00:30:00.000-04:00

Out today from the W. Hodding Carter III Books imprint of the University of North Carolina Press: The Political Supreme Court: A Forgotten History, by Rachel A. Shelden (Penn State University). A description from the Press:

Today’s Supreme Court justices bristle at the label “politicians in robes,” insisting that they operate above the fray of partisan politics. But for the first century of the nation’s history, the Court was unmistakably a political institution, both by design and in practice. Justices were fully expected to engage in partisan politics—there was no concern that such engagement would lead to corruption or undue bias—and they remained deeply involved in civic debate and the electoral process while on the bench. In addition to hearing cases in the capital, each justice spent much of his time “riding circuit” and presiding over federal trial courts. On circuit and in Washington, nineteenth-century justices wrote for partisan newspapers, drafted legislation, advised partisan allies, campaigned for colleagues, and even ran for political offices from the bench. Through these political interactions, members of the Court helped shape debates about the Constitution’s meaning at a time when most Americans did not believe in judicial supremacy.

In this sweeping history, Rachel A. Shelden, one of America’s leading voices on the history of the Court, brings readers inside the social and political world of its justices, recovering their essential role in the era’s turbulent politics. She also charts shifts at the turn of the twentieth century, when members of the Court and the legal community refashioned the judiciary as an apolitical institution, setting the stage for an increasingly more powerful—and more isolated—modern Court. The Political Supreme Court is required reading for anyone interested in the legal and political underpinnings of today’s judicial power.

A sample of praise from reviewers:

“A deeply researched and highly enjoyable study of how politics kept the early Supreme Court accountable—and the most important historical assessment of the nineteenth-century Court in a very long time.”—Stephen Vladeck

“Rachel Shelden compellingly describes the lively political world that nineteenth-century justices inhabited, one that contrasts sharply with the purported neutrality and isolation that our Supreme Court falsely claims to possess.”—Jack N. Rakove

“This is the single best book I have read on the history of the US Supreme Court. A remarkable achievement.”—Gautham Rao

More information is available here.

-- Karen Tani

A Symposium on Dubber's "New Legal Science"

2026-10-27T00:30:00.000-04:00

In 2025, Markus D. Dubber published the essay “New Legal Science in the Dual Penal State: Critical Analysis of Law and the Legitimacy of State Power” in the Bergen Journal of Criminal Law & Criminal Justice. From its introduction:

New Legal Science is an approach to the study of law that aims to push legal discourse beyond its traditional parochialism by bridging the divide between common law and civil law systems, marked by the abandonment of the project of ‘legal science’ in the former and its persistence in the latter. Thus reconceived, the study of law would allow us to frame and face fundamental issues confronting all modern legal systems as such, most importantly the legitimacy of state power through ‘law.’

The journal has now published a symposium issue (14:1) on Professor Dubber's article. Here is the TOC:

Introduction
Íñigo Ortiz de Urbina

The Coexistence of Parallel Worlds of Criminal Law Studies in the Face of the Development of the Dual Penal State
Anna Blachnio-Parzych

On Markus Dubber’s New Legal Science: Promises and Limits from a Feminist Perspective
Julieta Di Corleto

What is Left of Legal Science?
Aya Gruber

New Legal Science or International Legal Science?
Eric Hilgendorf

Can the New Legal Science Be Truly Universal?
Stefano Manacorda

A New Legal Science?
Martin Mindestrømmen

Towards a New Legal Science
Kimmo Nuotio

New Legal Science in the Post-Colony
Abhinav Sekhri

A New Legal Science Instead of an Old Parochial and Uncritical Criminal Law Science?
Adriano Teixeira

The Future of Criminal Law as a Global Discipline: The Liberal Project, the Persistence of the Penal Paradox, and the Role of Legal Scientists
Markus D. Dubber

--Dan Ernst

LHB on X

2026-10-26T10:52:32.003-04:00

Some of you who learn of LHB posts via X have noted that the links in postings on X no longer click through to the blog. To explain: X now charges for such links. The service we've hired to convert blog posts into social media posts has responded with non-clickable links to the original blog post. To get there, X readers have to cut-and-paste the link into their browsers. That's less than ideal, we know.

We continue to have clickable links on Blue Sky and, last time we looked, Facebook. In addition, you may subscribe to an email of our posts on the blog's website, and of course the website is always there for you to consult.

Policy History Conference 2027

2026-10-26T00:30:00.000-04:00

[We have the following announcement. DRE]

The Institute for Political History, the Journal of Policy History and the Arizona State University Center for American Institutions are hosting the Policy History Conference in Tempe, Arizona June 2-5, 2027.Since 2002, the Policy History Conference has provided an interdisciplinary forum for presentations and roundtable discussions on policy history topics and recent policy history research. The conferences bring together academy scholars, independent scholars and graduate students to share their research. Many of the papers presented eventually appear in academic journals and other publications.

The 2027 Policy History Conference will be the last conference co-sponsored by the Institute for Political History and the Center for American Institutions. The conference will continue in future years under new leadership.

We are currently accepting panel and paper proposals on all topics regarding American political and policy history, political development, and comparative historical analysis. Complete sessions, including two or three presenters with chair/commentator(s), and individual paper proposals are welcome. Participants may only appear once as a presenter in the program. The deadline for submission is January 15, 2027.

Proposals for panels and papers must be submitted online at the links below, and must include the following:

1. Name(s)
2. Institutional Affiliation(s)
3. Status (i.e. ABD, Doctoral Student, Assistant/Associate/Full Professor)
4. Email address(es)
5. Panel and paper title(s)
6. One (1) 150 word abstract of panel and papers in Microsoft Word or PDF format.
7. A description of each presenter or panel participant including educational background, major publications, awards or fellowships, also in Microsoft Word or PDF format.

Submit paper proposals here. Submit panel proposals here.

We look forward to learning from you next year in Arizona.

Donald Critchlow
ASU Katzin Family Professor of History
Director, ASU Center for American Institutions

Weekend Roundup

2026-10-24T00:30:00.000-04:00

Sarah White, an assistant professor at the University of Nottingham School of Law, has been awarded a prestigious £100,000 Philip Leverhulme Prize for her research into “legal reasoning, disputes and wills in 12th- and 13th-century England. Drawing on extensive archival research, she has examined how medieval lawyers and litigants constructed arguments, interpreted procedural rules and navigated uncertainty when resolving disputes.” More.

Legal historians of the future: "Department of Justice news releases and court filings from the January 6 prosecutions" are (or at least, at this writing, were) preserved at the January 6 Memory Project "after most were removed from justice.gov."

Nico Perrino, the executive vice president of the Foundation for Individual Rights and Expression, has published Free Speech Generation: The Civil Libertarians Who Saved the First Amendment and Transformed America (Simon & Schuster).

Caleb Nelson, University of Virginia School of Law, and Jack Goldsmith discuss Nelson's working paper, “Against the Dictatorial Presidency.” Topics include "the modern history of unitary executive theory, Nelson’s criticisms of the theory in Slaughter, the relevance of the Necessary and Proper Clause, and the dangers of Slaughter, with special focus on the civil service" (Executive Function).

Andrew Wender Cohen, Syracuse University, discusses his new book, Gangster of New York: A Violent Life in Nineteenth Century America, on The Gilded Age and Progressive Era podcast.

Duke University’s Office of the Provost and the Provost’s Initiative on Pluralism, Free Inquiry, and Belonging convened the roundtable “Justice and the Rule of Law: The Case of Constitutional Rights and Judicial Interpretation.” It was moderated by Kerry Abrams, Duke Law, and included Benjamin F. Chavis, Jr., Duke Divinity School; Jeanette Doran, John Locke Foundation, Thavolia Glymph, Duke History Department, and John Hood, John William Pope Foundation. The transcript is here.

Michael Vorenberg, Brown University, will present "Lincoln's Peace: Struggling to Find the End of a War" at 7 p.m. November 9 in the Benes Rooms of Ohio Wesleyan's Hamilton-Williams Campus Center, 40 Rowland Ave., Delaware, Ohio (OWU).

From Commonplace: "Bad Maps, Courtroom Clashes, and Agrarian Life in 17th-Century New England," by Nathan Braccio (Clark University).

ICYMI: Where the 1215 Magna Carta Originals Are Kept and How Rare Editions Still Emerge (Colin Rugg News).

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

Heniford and Tucker on History, Tradition, and the 2d Amendment

2026-10-23T00:30:00.000-04:00

Kellen Heniford and Jennifer Tucker, Wesleyan University, have posted Artificial Silence: Historians on the Selective Construction of 'History and Tradition' in Second Amendment Jurisprudence, which is forthcoming in the Stanford Law Review:

Since the Supreme Court issued its landmark decision in New York State Rifle & Pistol Association v. Bruen in 2022, courts in the United States have heard more than 3,000 challenges to local, state, and federal weapons regulations. Bruen radically reshaped the landscape of Second Amendment jurisprudence by replacing means-end scrutiny with a two-step “history and tradition” test. Historians who have written about these developments have largely agreed that the methodology is difficult to square with what might be called the “best practices” of their profession. Especially after the 2026 decisions in both United States v. Hemani and Wolford v. Lopez, it has become increasingly clear that the Court is not only making massive demands on litigators and lower courts with respect to the marshaling of historical evidence, but that it is also uninterested in doing good or even consistent historical analysis with the evidence presented to it. The majority in these cases—and especially in Bruen and Wolford—have repeatedly telegraphed their willingness to write off entire swaths of American history as irrelevant to an understanding of the country’s “tradition” of regulation. The more restrictive the Court is as to what counts as acceptable history, the narrower the scope of acceptable analogy, and the less likely any given gun violence prevention law is to survive constitutional scrutiny.

In this Essay, we explore the concept of “artificial silence”—which we define as the selective rejection of relevant historical evidence in the adjudication of Second Amendment claims. To demonstrate the ways this artificial silence has been constructed, we trace the evolving and often contradictory demands that Bruen and its successors have placed on litigators and, secondarily, on historians. Using examples from an ongoing project at the Center for the Study of Guns & Society at Wesleyan University, we argue that American weapons regulation was neither static nor monolithic, but instead deeply shaped by local circumstances, cultural norms, and political structures that varied across time and space. This diversity underscores that only a broader method that integrates legal, social, technological, and cultural history can meet the evidentiary and analytic requirements required in the post-Bruen era, even as the Supreme Court narrows the range of historical analogies it is willing to entertain.

--Dan Ernst

Mitchell, "Unsettling Sovereignty: International Law, Nuclear Weapons, and US Extraterritorial Power in Postwar Oceania"

2026-10-22T12:30:00.000-04:00

New from the University of Chicago Press: Unsettling Sovereignty: International Law, Nuclear Weapons, and US Extraterritorial Power in Postwar Oceania (2026), by M.X. Mitchell (New Jersey Institute of Technology and Rutgers University, Newark). A description from the Press:

In the years following World War II, the United States conducted sixty-seven devastating nuclear blasts in the Marshall Islands—yet the archipelago was never a US territory. Working through the United Nations, US diplomats engineered a new, one-of-a-kind extraterritorial status, called strategic trusteeship, to control the Native lands, waters, and peoples of the Marshall, Caroline, and Northern Mariana Islands. Strategic trusteeship permitted the US to militarize a vast expanse of Western Oceania. This novel and racialized legal form of international dependency was integral to US nuclear weapons detonations and damage in the region.

In Unsettling Sovereignty, M. X. Mitchell recounts this untold legal history, exploring how nuclear weapons changed claims and practices of sovereignty from the 1940s to the present. US nuclear blasting in the Marshall Islands troubled conventional renderings of state sovereignty under international law. The explosions, disastrous for Marshallese communities and their ancestral atolls, also caused hazardous nuclear fallout, which spread around the globe. Islanders and their allies turned to law, using legal wrangling over blasting and fallout to raise new questions about the location, time, and subjects of state violence in a period of decolonization; the intersections between race, Indigeneity, and wide-scale technogenic harm; and the pitfalls and unfulfilled promises of international law. Mitchell shows that the Marshallese people and their lands and waters were, and remain, central to redefining sovereignty in an era of boundless pollution and climate change.

Praise from reviewers:

“Unsettling Sovereignty is a magisterial account of the struggles over US military colonialism in Micronesia after World War II, as the Marshall Islands became a so-called proving ground for nuclear test detonations. Mitchell traces the political and material consequences of US jurisdiction and ongoing nuclear blasting, as well as the legal conflicts these events set off. Ultimately, Marshall Islanders used US environmental law to win recognition of their rights, negotiate sovereignty, and forge the Marshallese state. This is essential reading for scholars and students in history of American science, legal history, and environmental studies.” -- Angela N. H. Creager
“US nuclear explosions in the Marshall Islands during the Cold War were not only catastrophically destructive, but also an occasion for the creation of law as Pacific Islanders fought to retain sovereignty over their homelands, Mitchell shows in this brilliant and original book. Unsettling Sovereignty puts the Islanders at the center of US nuclear history. A powerful and important contribution.” -- Mary L. Dudziak

More information is available here. And we're told that if you purchase from the Press, a 30 percent discount is available (use code UCPNEW).

-- Karen Tani

FedSoc Webinar on Criminal Justice and the Declaration

2026-10-22T09:30:00.000-04:00

The Federalist Society will livestream a webinar on October 28, 2026, at 1:00 p.m. EDT, entitled The Founders’ Indictment: Our Criminal Justice System Through the Lens of the Declaration:

As Americans mark the 250th anniversary of the Declaration of Independence, this Federalist Society America 250 program examines a foundational, yet often overlooked, aspect of our national charter: the colonists’ complaints about the Crown’s administration of justice. The Declaration charged the Crown with “depriving us in many cases, of the benefits of Trial by Jury,” “transporting us beyond Seas to be tried for pretended offences,” and sending officers to “harrass our people, and eat out their substance.” Those grievances helped shape constitutional protections for the accused, including the jury-trial and venue guarantees of Article III and the Sixth Amendment, as well as the Eighth Amendment’s protection against excessive fines.

How well does the modern criminal justice system reflect those founding-era commitments? Criminal jury trials have become increasingly rare as plea bargaining has come to resolve the overwhelming majority of cases, prompting debate over whether the so-called “trial penalty” places undue pressure on defendants to surrender their right to trial. At the same time, civil asset forfeiture and other fines and fees raise questions about when legitimate law-enforcement tools become excessive or create improper financial incentives.

Join us as our panel considers what the Declaration’s grievances can teach us today about our criminal justice system.

The panelists are Mike Fox, Legal Fellow, Cato Institute; Prof. John F. Stinneford, Edward Rood Eminent Scholar Chair, Professor of Law, and Senior Fellow, Hamilton Center for Classical and Civic Education, University of Florida Levin College of Law; Prof. Renée Lettow Lerner, Donald Phillip Rothschild Research Professor, George Washington University Law School; and Sarah Field, Chief Counsel, Legal Policy, Koch Capabilities, LLC (moderator). Register here.

2027-2028 Berger-Howe Fellowship

2026-10-22T00:30:00.000-04:00

[We have the following announcement. DRE]

Harvard Law School invites applications for the Raoul Berger-Mark De Wolfe Howe Legal History Fellowship for the academic year 2027-2028. Eligible applicants include those who have made substantial progress on their doctoral dissertations or who have recently been awarded a doctoral degree. A first law degree is preferred, but not required.

The purpose of the fellowship, which is awarded annually, is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined, as the fellow seeks to begin an academic career in legal history. There are no limitations as to geographical area or time period. Previous fellows have gone on to pursue faculty appointments or other fellowships in American universities, primarily on law faculties.

The fellow is expected to spend the majority of their time on their own projects. The fellow will also participate in the Harvard Law School Legal History Workshop, a for-credit semester-long seminar, and assist with occasional other legal history sessions, both under the direction of Harvard faculty affiliated with the Program in Law and History. The term of the fellowship is July 1 through June 30. The fellow will be required to be in residence at the law school during the academic year (September through May).
Applicants for the fellowship for 2027-2028 should submit their applications and supporting materials electronically to Professor Bruce H. Mann (mann@law.harvard.edu).

Each interested applicant should submit:

a detailed (five pages maximum) description of a proposed project;
a writing sample;
a comprehensive résumé or curriculum vitae that gives the applicant’s educational background, publications, works in progress, and other relevant experience;
two academic letters of reference, which may be submitted electronically by the recommenders to Professor Mann at the above email address; and
copies of official transcripts of all academic work done at the graduate level, which may be sent electronically or by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138.

The deadline for applications is January 14, 2027, and announcement of the award will be made by February 26, 2027. The fellow selected will receive a stipend of $60,000.

Michigan Law's Junior Scholar's Conference

2026-10-21T09:30:00.000-04:00

[We have the following announcement. DRE]

The University of Michigan Law School is pleased to invite scholars to submit their abstracts for the 13th Annual Junior Scholars Conference, which will take place in Ann Arbor, Michigan, on March 26-27, 2027.

The conference provides junior scholars, from institutions around the globe, with a platform to present and discuss their work with peers and receive feedback from faculty of the University of Michigan Law School, one of the premier law schools in the world. It aims to promote fruitful collaboration between participants and encourage their integration into a community of international legal scholars.

Please direct any questions to law-doconf@umich.edu.

Law and Morality in the Soviet Estonian Judiciary

2026-10-21T00:30:00.000-04:00

[We have the following announcement. DRE]

The next Helsinki Legal History Series seminar [will be held] on October 27th! We are delighted to welcome Dr. Minna-Kerttu Kekki (University of Helsinki) to give a lecture titled: “Law and Morality in Soviet Estonian Judiciary: A philosophical analysis of a case from 1960.” Time: 3 pm – 4.30 pm. Location: Athena Sali 167. Link for online participation [here].

In this paper, I will look at a collective property embezzlement case in Soviet Estonia in the 1950s. Interesting factors in this case include the enormous amount of money allegedly embezzled by one individual, the social sympathies revealed by some of the witness statements, and the two-part court process, where the case was sent back to the same court (Tartu lower court, Rahvakohus) but to a different judge, after the state prosecutor found the (first) sentence too mild. Based on the multiple perspectives included in the case – the accused, the two judges, and many witnesses from the kolkhoz and elsewhere in the community – I will analyze the complex relation between law and morality visible in this case.

Minna-Kerttu Kekki (PhD, DSocSci) is a postdoctoral researcher at the Centre for European Studies, University of Helsinki. She is a political philosopher with a multidisciplinary background in philosophy, education, and history. Her current research topics include the political phenomenology of Edith Stein, theory (phenomenology) of collective memory, and the Soviet histories and memories of Estonians and Ingrians. In the project The Experience of Injustice: Property, Legality and Identity in Rural Eastern Europe from 1945 to 1995 (EastJustice), she focuses on Estonia, especially the area of Tartu.

Likhovski's "Legal Theory in the Colonies"

2026-10-20T00:30:00.000-04:00

New from Cambridge University Press and the ASLH’s book series, Studies in Legal History: Legal Theory in the Colonies: Hindu and Jewish Scholars under British Rule by Assaf Likhovski, Tel-Aviv University. It is available open access on Cambridge Core.

In colonial India and Mandatory Palestine, early-twentieth-century legal scholars made important contributions to the study of the nature of law, particularly by analyzing Hindu and Jewish law - their ancient religious systems. This book reconstructs the lives and ideas of these scholars, revealing a forgotten global wave of jurisprudential innovation that appeared across many territories in the non-Western world. The book challenges the view that non-Western legal scholars working in the colonies were passive recipients of Western ideas. It argues that Indian and Jewish thinkers used Western historical and sociological approaches to law to reimagine Hindu and Jewish law, and to assert their relevance to modern legal and constitutional debates. Though historical in scope, the story this book tells is also relevant to contemporary tensions between Western liberal law and non-Western religious legal traditions.

--Dan Ernst

“Presidentialism and the Escalation of Executive Power"

2026-10-19T09:30:00.000-04:00

The Annual Boston University Law Review Conference will take place this week on the topic “Presidentialism and the Escalation of Executive Power.” It commences with a "pre-note" keynote at lunchtime on Wednesday, October 21: Cass Sunstein (Harvard Law), “History and Tribalism in Constitutional Law.” Of the many panels, the following are of special interest to legal historians:

Thursday, October 22: 4:20-6:20pm Big-Picture on the Rise of Presidentialism
Ashraf Ahmed (Columbia), “Justifying the Presidency?”
Joshua Macey (Yale) and Brian Richardson (Cornell), “Separation-of-powers Formalisms”
Bijal Shah (Boston College), “The Deeper State”
Diego Zambrano (Stanford) & Mila Versteeg (Virginia),“Great Expectations: How to Restore the Rule of Law”
Guy-Uriel Charles (Harvard), commentator
Steve Koh (BU), chair

Saturday, Oct. 24: 11:20-12:40 Democracy and Rule of Law
Aziz Huq (Chicago) (paper w/ Tom Ginsburg), “Exhuming the Impetuous Vortex”
Robert Tsai (BU) “The Judge’s Dilemma in a Populist Age”
Matthew Segal & Nellie Conover-Crockett (ACLU),“Is the Westfall Act unconstitutional? Rethinking state sovereignty and converse-1983 statutes.”
Jim Fleming (BU), chair and commentator

1:00-2:20 pm 20th Century Rise of Presidentialism
Jane Manners (Fordham),“The Anti-Unitary Roots of Nondelegation: Schechter/Humphrey’s”
Rafi Stern (BU), “Was the APA a Grand Compromise?”
Andrea Scoseria Katz (Washington U.),”How to Build a President: Executive Branch Lawyering, Social Movements, and the Constitutional Construction of the Unitary Executive, from Nixon to Roberts.”
Andrew Kent (Fordham), “The Expansive Executive Power Clause”
Noah Rosenblum (NYU), commentator
Nicholas Parrillo (Yale), commentator

--Dan Ernst

Berman, "Who Is American? Belonging and the Question of Jewish Citizenship"

2026-10-19T00:30:00.000-04:00

Princeton University Press has published Who Is American? Belonging and the Question of Jewish Citizenship (2026), by Lila Corwin Berman (New York University). A description from the Press:

The history of Jews in the United States is often told as if they immigrated, gained citizenship, and almost immediately achieved full legal rights. Yet this story fundamentally misses how citizenship rights worked for Jews and countless others who arrived on American shores. In Who Is American? Lila Corwin Berman draws on case law, statutes, and debates to argue that both the laws of American citizenship and Jews’ position in them changed repeatedly across the twentieth century. Courts, policymakers, and the public persistently asked what it meant to be Jewish under the law. Were Jews a race, a nationality, a religion—or some combination of each? The answer carried profound legal consequences. Not only did it determine Jews’ citizenship status, but it also affected the rights they could exercise. Just as significantly, the meaning of the categories under law changed over time, affecting Jews’ self-understanding, their political ideals, and their relationships to other groups of Americans.

Who Is American? tells a history that resonates powerfully with today’s high-stakes battles over citizenship and rights. As Berman concludes, citizenship law has always been better at posing questions about the terms of belonging than at providing any ultimate resolution. The tangled story of Jewish citizenship demonstrates the limits of law and explains why the United States continues to fall into new and, often, unsettling debates about who is American.

A sample of praise from reviewers:

“This provocative book definitively explodes the longstanding and misleading myth of ‘American Jewish exceptionalism,’ namely, that American Jews gained citizenship automatically, uncontroversially, and irrevocably—unlike their brethren in Europe and elsewhere. Berman demonstrates that the granting of citizenship was always contingent and disputed. This book will be required reading for everyone concerned with the past, present, and future of Jews in America.”—David Sorkin

“A timely, accessible, and fascinating contribution to American Jewish history and to the history of citizenship in the United States more broadly.”—Jessica M. Marglin

More information is available here. An interview with Professor Berman is available here, via New Books in Law.