Shechter on the 1964 Constitutions of Egypt, Iraq and Syria

Relli Shechter, Ben-Gurion University, has published, open access, Legislating the Progressive Arab Society: State Authority and Social Rights in the 1964 Interim Constitutions of Egypt, Iraq, and Syria, in Law and History Review:

This article examines the 1964 interim constitutions of Egypt, Iraq, and Syria as markers of a two-decade-long shift in Arab constitutional design—moving from individual liberal rights toward a new regional social contract centered on social rights. The vision of a progressive society rested on two principles of collective welfare: solidarity—expressed through constitutional commitments to collective well-being—and social justice, which aimed to ensure equality and better living standards for all. Contrary to common interpretations, these documents were not simply authoritarian bargains or tools for consolidating power. Rather, the interim constitutions were social bargains that reflected legislative social engineering during decolonization and guided both citizens and the state in building a new society. Despite the intense regional rivalries, these constitutions reflected a shared commitment to socioeconomic transformation that transcended political divides. The analysis of these constitutions shows that the difficulties in their execution extended beyond future limitations of political will or economic resources. Rather, they contained inherent legal and ideological tensions about the structure and direction of the progressive society—particularly in their approach to fundamental questions of social organization. These tensions emerged in the complex relationship between family and individual rights, the delicate balance between private and collective ownership, and the role of state patriarchy in providing social welfare.

--Dan Ernst

Daniel on the Birth of Municipal Bankruptcy Law

Josiah M. Daniel III, Vinson & Elkins and UT Austin, has posted The Historiographical Problem of Municipal Bankruptcy Law:

This is the first archivally researched history of the genesis of municipal bankruptcy law, 1933-1938. It also compares the historical method with law and economics (L&E) for finding and telling the story.

Congressman Hatton Sumners, Judiciary Committee chair, was the key actor. The legislative process was a laboratory for new forms of relief under the Bankruptcy Clause of the Constitution, seeking to relieve the insolvency experienced during the Depression by irrigation districts in “the Valley” of Texas, new towns in Florida, and elsewhere across the nation that could not collect taxes and pay their municipal bonds. State governments were helpless; the Constitution’s Contract Clause forbade “impairing the Obligation of Contracts,” and voluntary, private restructuring agreements were frustrated by the “holdout problem.”

From a variety of models, it was composition with creditors that succeeded politically. Congress from 1933 to 1937 amended the Bankruptcy Act of 1898 by enacting the First and Second Municipal Bankruptcy Acts—known as Chapter IX—based on composition. L&E scholars credit this to freshman Florida congressman Mark Wilcox who worked in conjunction with a bondholders’ group. But it was Sumners who determined that the composition model was constitutional and politically most feasible. He navigated through opposition that insisted “bankruptcy” required turnover of the debtor’s assets in exchange for a discharge and that such legislation would destroy the municipal credit market. Municipal bankruptcy did leave all assets in the debtor’s hands and granted a discharge, and the credit market survived. And relevantly to a key issue in reorganizational bankruptcy today, Sumners crafted the first, and still the only, statutory injunctive relief applicable in the bankruptcy case of an artificial entity for the protection of nondebtor third parties—here, all officers and inhabitants of a municipal debtor—against creditors’ collection efforts.

Municipal bankruptcy became a New Deal agenda item, and Franklin Roosevelt helped push the legislation to enactment in the spring of 1934. The Supreme Court invalidated the first act in the 1936 Ashton case, but Justice Cardozo dissented and outlined small changes that Sumners and Congress utilized in enacting the second act in 1937. Then Sumners led the oral arguments in 1938’s Bekins case that sustained it.

Municipal bankruptcy law succeeded in effectuating municipal-bond restructuring agreements, and its essence lives in today’s Bankruptcy Code as Chapter 9, providing discharge of unpayable debt and more commonly furnishing the platform upon which towns and taxing districts negotiate such deals. Chapter IX worked in the past, and Chapter 9 works today. Sumners, not Wilcox, was primarily responsible for the legislation. Nothing was assured; the story demonstrates change over time, with Sumners the key actor. And the project of finding and interpreting the genesis of municipal bankruptcy is one for legal history, not for L&E, the author argues.

--Dan Ernst

Justice Browning Awarded Texas Legal History Fellowship

[Congratulations to Justice Browning on this fellowship!  DRE]

The Texas State Historical Association has selected Justice (ret.) John G. Browning (law professor and Distinguished Jurist in Residence at Faulkner Law School in Montgomery, Alabama) as the winner of the 2025 Larry McNeill Research Fellowship in Texas Legal History. This award, which includes a stipend, is presented annually " for the best research proposal on some aspect of Texas legal history." Established in 2019 in honor of Larry McNeill ( a past president of both the Texas State Historical Association and the Texas Supreme Court Historical Society), it " recognizes his commitment to fostering academic and grassroots research in legal history."  Justice Browning's winning proposal was for " Forgotten Firsts: Uncovering the Lives and Legacies of Texas' Early Black Lawyers." Justice Browning's work on America's early Black lawyers has appeared in multiple law reviews, bar journals, and the Journal of Supreme Court History.  The award and check were presented at a luncheon on February 28, 2025, during the TSHA's Annual Meeting in Houston.

Siegel on Democratizing Constitutional Memory

Reva Siegel, Yale Law School, has posted Foreword: Democratizing Constitutional Memory, which is forthcoming in the Michigan Law Review:

The Court regularly makes claims on the past—claims that have grown in prominence since conservatives on the Roberts Court invoked “history and tradition” to overrule longstanding case law on religious free exercise, the right to bear arms, and the right to abortion.  The Court claims its historically based approach constrains judges by focusing interpretation on objective and impersonal facts in the past.

To refute that account, this Foreword demonstrates that appeals to the past in constitutional law, whether true, false, or selective, are commonly elements of normative arguments about our identity and obligations as a people that I term “constitutional memory” claims. I examine gaps between constitutional memory and constitutional history to show how claims on the past in law can conceal, rather than constrain, the expression of judicial values—illustrating through a brief consideration of Dobbs v. Jackson Women’s Health Organization, the decision reversing the abortion right.

Analyzing gaps between constitutional memory and constitutional history refutes core premises of the judicial constraint claim. Importantly, it brings into view new interpretive possibilities for “democratizing memory,” which the Foreword concludes by exploring.

Many critics of conservative historicism would spurn historical-based argument altogether in favor of argument from principle. But there are good reasons to combine argument from principle and memory. The point is not to accommodate the powerful. To the contrary: As we appreciate the pervasive gaps between history and memory in constitutional law, we can ask whose voice, experience, and perspective does law represent? Whose is absent? And how might we democratize constitutional memory and represent in law the perspectives of those unjustly denied voice in the making of American law for much of the nation’s history?  In recalling efforts of the disfranchised to speak—whether by petitioning lawmakers or by resisting law—we can expand our accounts of constitutional lawmaking and identify new authorities to guide the application of constitutional principles.

Including these stories can reorient the law today. To take but one example: When we democratize constitutional memory—considering not only the views of lawmakers but of the people—we can see that American understandings of liberty include freedom from coercion in sex, reproduction, and family life.

--Dan Ernst

Masur Delivers Fulton Lecture on Abortion in New England

On April 28, Kate Masur, the John D. MacArthur Chair and Professor of History at Northwestern University, delivered the 2025 Fulton Lecture in Legal History at the University of Chicago Law School, “Of History and Traditions: Abortion, Patriarchy, and Law in Small Town New England ca. 1860.”  A full notice of Professor Masur's lecture is here.  We will update with the video when it becomes available.

--Dan Ernst

JACH: Spring 2025

The Spring 2025 issue of the Journal of American Constitutional History is now online.   

Dictatorship in the American Founding
Adam Lebovitz

Throughout the Revolutionary War, America experimented extensively with forms of emergency governance explicitly modeled on the Roman dictatorship, at both the national and the state levels. Surprisingly, America’s leading authors and statesmen rejected dictatorship in the Constitution, not primarily from fear of concentrated authority, but because they deemed this institution ill-suited to the rigors of modern statecraft.

Originalism and the Path to Partisan Jurisprudence: The Guidelines on Constitutional Litigation inside the Reagan Administration
Logan Everett Sawyer III+

Documents from the National Archives and elsewhere reveal why Reagan’s DOJ first adopted originalism, and then transformed it to serve a deeply contested, partisan legal-policy agenda.

Infringed
Daniel D. Slate

The legal concept of “infringement” at the time of ratification of the Second Amendment in 1791 meant that a right could be regulated—that is, given more definitive shape or partially curtailed or restricted—if the process by which the regulation came about was regulated through a duly elected legislature acting with the public good in mind.

Farm-Bloc Federalism: The Rise, Fall (and Rise Again?) of a Constitutional Coalition
Roderick M. Hills, Jr.+

Between 1832 and 1932, politicians from a “farm bloc” of states in the South, Midwest, Prairie, and Mountain West embraced and then rejected the idea that the Constitution limited the federal government’s power over a variously defined set of issues. This history of federalism’s ups and downs illustrates how political parties generally craft doctrine to achieve stability in the face of disagreement about values and interests.

--Dan Ernst

Bemmer on Early Irish Law in Helsinki Seminar

Jaqueline Bemmer, a Marie S. Curie Fellow with the Research Group Medieval History at Leuven, will present in the  Helsinki Legal History Series seminar on Thursday, May 22, from 3 pm - 4:30 pm in P673, Porthania, University of Helsinki.  You may attend via Zoom.  She will speak on "Rethinking the Margins: Early Irish Law and the Post-Roman Legal Landscape":

The early Irish laws, sometimes referred to as fénechas, constitute the largest extant body of vernacular legal writing in Europe outside the Graeco-Roman world – yet they remain largely unknown beyond a small specialist audience. Unlike the roughly contemporary Germanic edicts, these texts were not issued by kings but preserve the customary laws (or socio-legal customs) of the local population in early medieval Ireland. Committed to parchment in the 7th and 8th centuries by scholars trained in Irish and early Church law, grammar and poetry, this legal material reflects an oral tradition transmitted and transformed within monastic scriptoria. Notably, these jurists chose to write in Old Irish – a Goidelic Celtic language – rather than Latin, a decision paralleled only by the Anglo-Saxons who wrote in Old English.

The resulting legal texts are extraordinarily rich, and cover a wide array of social and legal topics. My current Marie Sklodowska-Curie project places these Irish laws in dialogue with contemporary post-Roman edicts from the Continent (often labeled ‘leges barbarorum’), to explore continuities and contrasts in legal thought across the early medieval West. In this talk, I will present aspects of this ongoing research and highlight the comparative potential of the Irish material in relation to developments in Francia, Lombardy, and beyond.

--Dan Ernst

A Conference for Charles Donahue

[Congratulations to Professor Donahue.  We wish we could be there!  DRE]

The Learned and Lived Law: A Celebration in Honor of Charles Donahue, May 19, 2025, Lewis 214, Harvard Law School.

Please join us for a celebration honoring Professor Charles Donahue and marking the publication of The Learned and Lived Law:  Essays in Honor of Charles Donahue.  We will have a day of presentations by chapter authors as well as a display of medieval manuscripts in the Harvard Law Library in the early afternoon.

Welcome
8:45 – 9:00 am
Interim Dean John C.P. Goldberg
Saskia Lettmaier and Elizabeth Papp Kamali

Panel 1: Roman Law
Chair: James Townshend
9:00 – 10:00 am

Charles Bartlett, Roman Property, Corporate Personhood, and the Politics of Natural Law in Medieval and Early Renaissance Italy: Venice, Baldus, and the res communes omnium

Wim Decock, “For the Sake of Mental Health and Mutual Peace”: The Transactio-Agreement in Early Modern Law and Theology


Panel 2: Medieval and Early Modern Law
Chair: Elizabeth Papp Kamali
10:15 – 12:15 pm

Samantha Kahn Herrick, Getting Ahead in a Twelfth-Century City: The Ambitious Monks of Saint-Clément, Metz

Ryan Rowberry, The Papal Constitution Execrabilis (1317) and Clerical Justices in the English Royal Courts

Elizabeth Mellyn, Suicide in Early Modern Italy

Carol Symes, The “Desire of Deeds”: On Cherishing Medieval English Charters

12:15 – 1:15 pm
Lunch available in Lewis 202

Medieval Manuscript Display
Harvard Law Library, 4th floor, Caspersen Room
1:15 – 2:15 pm
Arranged by Sarah Wharton, Historical & Special Collections
Co-Hosts: Carol Symes and Charles Bartlett

Panel 3: American Legal History
Chair: Ryan Rowberry
2:30 – 3:30 pm

Sally Hadden, Lawyers and Their Book Collections: Notes from the Eighteenth Century

Amalia Kessler, The American Importation of the Comparative Accusatorial/Inquisitorial Divide: Francis Lieber’s Failed Transplant and Its Early Twentieth-Century Resurgence

Panel 4: Literature and Legal Theory
Chair: Saskia Lettmaier
3:45-4:45 pm

Anton Chaevitch, Faust: Goethe’s Guide to Legal Progress

Bharath Palle, Wesley Hohfeld’s Modernist Imagination

Closing Reflection
Mary Elizabeth Basile Chopas, De Magistro eruditissimo et beneficentissimo

Unauthorized Migrations from Europe to the United States

New from the University of Illinois Press: Hidden Histories of Unauthorized Migrations from Europe to the United States, edited by Danielle Battisti and S. Deborah Kang:

Often depicted as the nation’s iconic legal immigrant, unauthorized European migrants are often overlooked by scholars, policymakers, and the media. This volume tells the stories of European migrants who adopted irregular migration strategies to enter and remain in the United States throughout the twentieth century. Contributors explore facets of this history with essays on migration patterns from Russia, Italy, Ireland, the Ottoman Empire, and Poland. They also offer important arguments about the treatment of unauthorized European migrants by states and societies on both sides of the Atlantic and how the reception of undocumented immigrants has been and continues to be impacted by the dynamics of racial, class, and gender constructions in the United States and abroad. As the contributors show, the reception accorded unauthorized European migrants frequently obscured and even normalized their irregular migration strategies, easing their access to American citizenship.

Revealing and insightful, Hidden Histories of Unauthorized Migrations from Europe to the United States sheds new light on our intertwined notions of race, legality, and immigration.

The contributors are Danielle Battisti, Ashley Johnson Bavery, Mary Patrice Erdmans, Polina Ermoshkina, Torsten Feys, Carly Goodman, S. Deborah Kang, E. Kyle Romero, Randa Tawil, and Joanna Wojdon.

--Dan Ernst

A New Look at Domesday Book

Stephen Baxter, Julia Crick, and C. P. Lewis have published Making Domesday: Intelligent Power in Conquered England (Oxford):

Making Domesday presents a fresh interpretation of William the Conqueror's survey of England, made possible by a major collaborative study and a new online edition of Exon Domesday, the earliest of the three original manuscripts to survive from the Domesday survey. The book addresses big questions about pre-modern government, written records, and the use of intelligence in both senses: the minds behind the planning and execution of Domesday, and the information about England that Domesday gathered. It characterizes Exon as the surviving part of the 'working papers' of one of the writing offices that over a period of ten weeks in summer 1086 dealt with all seven 'circuits' (regional groupings of shires) of the Domesday survey. The circuit offices had the task of recasting the manorial descriptions assembled in an earlier stage of the survey into an interim form intended for further redaction as Great Domesday Book by rearrangement, rewording, and abbreviation. A new deep understanding of the codicology and palaeography of Exon underpins every part of the analysis, and offers a model of documentary production for royal government at an exceptionally early period in western Europe. Part I describes and analyses each Exon text in unprecedented detail; Part II places Domesday in context and in broad comparative perspective, ranging across and beyond the Latin West. The dual approach provides a new interpretation of Domesday and a deeper understanding of both the Domesday survey and Domesday Book. It emerges that the survey was even more complex than we had dared to imagine, involving the production of different kinds of text intended to meet a range of fiscal and political needs. It is also clear that the survey was immediately effective, transforming the politics of land in a newly conquered society. Domesday has always been thought awesome, as its very name shows; Making Domesday contends that it was also a feat of intelligent government deployed by an aggressive and ambitious regime. As such it speaks to broader concerns with the colonial domination of conquered societies through the purposeful collection of systematic statistical information.

--Dan Ernst

Weekend Roundup

• Over at Nursing Clio, Kylie Smith (Emory University) brings history to bear on "RFK’s ideas about 'wellness farms' for young people." 
  

• The next online meeting of the Environment, Law, and History Global Workshop will take place on May 16 at 12 noon UTC.  Sara Limao Papa, a doctoral student at Goethe University Frankfurt, will present "The Pathways of the People: Access to Water in 18th-Century Maranhão and Bahia."  Tamar Herzog, Harvard University, will comment. (More and h/t: H-Law).

• 
   HLS's notice of A Perfect Turmoil: Walter E. Fernald and the Struggle to Care for America’s Disabled by Alex Green, a visiting fellow at the Harvard Law School Project on Disability (Harvard Law Today).

• Throughout this week, we've mentioned legal-historical works that won prizes at the recent meeting of the Organization of American Historians. Another legal history--Marie-Amélie George's Family Matters--won an Honorable Mention, for the prestigious Frederick Jackson Turner award.  For more on the book, check out the wonderful series of posts that Professor George wrote for the blog last fall. Congratulations, Professor George!
  

• Mary Ziegler, UC Davis, discusses her new book, Personhood, on the NPR show Here & Now.

• NYU Law's notice of its lateral hiring of Sarah Seo.  
  

• Linda Colley has received Princeton University's Howard T. Behrman Award for Distinguished Achievement in the Humanities.
  

• The Organization of American Historians hails its new president, Annette Gordon-Reed.

• Gerard N. Magliocca on Vice Presidential Inaugural Addresses (Green Bag).
  

• Seth Barrett Tillman's reflections on civility and the debate over Section 3 of the Fourteenth Amendment, forthcoming in the Mississippi Law Review.

• ICYMI:  Chief Justice Roberts, a Buffalo native, will help celebrate 125th anniversary of the Western District of New York.  Robert H. Jackson and John Lord O'Brian would be pleased!  (WGRZ). originalism in a gun control case in the Fourth Circuit (Bloomberg Law).

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

"Dangerous Democracy": Upcoming Workshop at Stanford Law School

Our legal historian friends at Stanford Law School have sent along the following announcement, about an upcoming workshop of interest:

Dangerous Democracy
May 16th, 2025
Stanford Law School Paul Brest Hall

The Dangerous Democracy workshop explores the historical tensions between law and democracy, examining how legal mechanisms have been used to undermine democratic institutions, and conversely, how political pursuits have eroded the rule of law. It challenges the conventional narrative that liberal democracy and the rule of law are inherently reinforcing, instead highlighting their more complex interconnections. Organized by the Stanford Center for Law and History (SCLH), the Sally B. and William H. Neukom Center for the Rule of Law at Stanford and EuroStorie-Centre of Excellence at the University of Helsinki, the workshop brings together scholars from multiple disciplines to better understand the contemporary crisis of liberal democracy through a historical and global lens.

For additional information and to register please visit here.

-- Karen Tani

Stern on Criminal Law, Literature, and History

Simon Stern, University of Toronto Faculty of Law, has posted Introduction: Crime and Literature, Narrative and Doctrine:

This Introduction to a special issue of the Modern Criminal Law Review+ discusses the history of criminal law as a focus within the field of Law and Literature, from the early 20th century to the present, including bibliographies anthologies, and critical studies. Work in this area once focused primarily on the depiction of crime, criminals, and criminal trials in literary narratives (“law in literature”). Over the last thirty years, scholars have moved far beyond this focus, asking more foundational and conceptual questions, such as how literature can help us understand the epistemology and analysis of evidence, the structure of the trial, the development of doctrines and concepts such as attempt and mens rea, the changing treatment of crimes such as treason and conspiracy, and the representation of intention in forensic advocacy and judicial writing. What these investigations share is a concern with literary form and modes of representation, on the one hand, and structures of legal analysis, on the other. Instead of asking how crime and criminals are portrayed in imaginative works, scholars have inquired into the conditions that make these portrayals possible. This more foundational approach has been far more productive and continues to open up new avenues for research. After reviewing these developments, the introduction turns to the contributions in this special issue by Elise Wang, Hannah Walser, Anna Schur, Abhinav Sekhri, and Daria Bayer, discussing them in relation to this recent line of scholarship. All the contributions may be found on the MCLR+ site.

--Dan Ernst

Bilder on Distinguishing Instrument and Constitution

Mary Sarah Bilder, Boston College Law School, The Character of the Constitution: Instrument and Constitution, which is forthcoming in the Yale Journal of Law and the Humanities:

What was the character of the Constitution in the framing period? Gordon Wood's Creation of the American Republic did more to interest people in that question that perhaps any other single twentieth-century book. And yet we still struggle to answer the question. In fact, we stumble over what we even mean by constitution. In this brief essay, I distinguish two words: instrument and constitution. These two words illuminate the character of the Constitution in the framing era. They were long used by the Supreme Court in interpreting the Constitution. The productive ambiguity produced by this disambiguation is a central aspect of the American system Wood praised as "political theory worthy of a prominent place" in the history of political thought.

--Dan Ernst

Dworniczak et al. on Legal Transplants

Dominik Dworniczak, Dorota Nowacka, Carolina Paulesu, Mathias Siems, and Onur Ucarer have posted The Notion of Legal Transplants Beyond the Anglosphere: Decentring the Debate:

Legal transplants are key to understanding the evolution of law in a global context. Current debates on this topic focus predominantly on publications in English. By contrast, this article explores how scholars in French, German, Italian, Polish, Spanish and Turkish language publications have discussed the idea of legal transplants. It identifies alternative terms used in these languages and examines how debates on legal transplants vary across different countries, considering historical, doctrinal, theoretical and critical perspectives. The analysis reveals that each country's legal history results in diverse approaches to legal transplants, in particular each country's role as a donor or recipient. While acknowledging some influence of Anglophone scholarship, this research thus emphasises home-grown discussions predating this literature and highlights the absence of a fully integrated transnational legal discourse. Moreover, the article advocates for a normative shift towards a more critical and cosmopolitan evaluation of legal transplants, also paying closer attention to their design ex-ante.

--Dan Ernst

Vlahoplus on Treason and the Natural Born Citizen

John Vlahoplus, a member of the bar as well as a holder of a D.Phil. from Oxford University and a J.D. from the Harvard Law School, has posted Allegiance, Treason, and the Natural Born:

Sir Edward Coke (NYPL)

This Article contributes to current debates over birthright nationality by utilizing previously overlooked authorities and showing the longstanding link between the common law rule of the natural born and the law of treason.  It demonstrates that the common law rule imposes nationality on children born in the king’s dominions regardless of whether their parents are lawfully present or have a right to remain, as Parliament confirmed more than forty years ago.  It applies the rule to the unusual cases of children born to spies, interned alien enemy civilians, prisoners of war, subjects and aliens caught in enemy occupied territory, and outlaws.  Finally, it explains the rule’s continuing application in U.S. constitutional law.  The Fourteenth Amendment does not occupy the field.

The Article sets out the two formulations of the common law rule found in Coke’s report of the 1608 English decision in Calvin’s Case.  The first involves the king’s relationship with the child:  any child born in the king’s dominions under his power and protection is natural born.  The second involves the king’s relationship with the child’s parents:  any child born in the dominions to parents owing ligeance to the king is natural born.  Although Coke’s report cites the filial version of the rule as the ground for the decision in Calvin’s Case, both reach the same result in the unusual cases—as they should, given that they appear together in Coke’s report.

The Article then shows the historic connection of the common law rule with the law of treason.  The same obligations of ligeance that make children natural born also make one liable for treason, including treason liability for transitory sojourning aliens and alien enemies other than invaders.  The Article documents parallels in U.S. constitutional law, including the constitutional law of treason, and critiques contemporary interpretations by James C. Ho, John C. Eastman, Randy E. Barnett, and Ilan Wurman.

The Article also examines the United Kingdom’s abrogation of the common law rule and its implications for U.S. nationality law.  Three hundred seventy-five years after Calvin’s Case, Parliament confirmed that the common law rule applies regardless of parents’ legal status and then radically changed the law, restricting citizenship by birth to children having either a citizen parent or a parent who is lawfully present and ordinarily resident without any legal restriction on how long they can remain.

Some assert that the use of the term “subject to the jurisdiction” in the Citizenship Clause of the Fourteenth Amendment abrogated the common law rule in the United States by imposing the very same restrictions that Parliament did more than one hundred years later.  That is shockingly anachronistic and unconvincing.  Absent a new amendment, the common law rule will continue to inform the constitutional law of U.S. nationality without regard to parents’ legal status.

--Dan Ernst

Dearborn on the Unitary Executive and Civil Rights during the Reagan Administration

John A. Dearborn, Vanderbilt University, has published, open access, Contesting the Reach of the Rights Revolution: The Reagan Administration and the Unitary Executive in Studies in American Political Development:

Today, two touchstones of the conservative legal movement are support for the unitary executive theory and skepticism of affirmative action policies. This article reveals a connection between these two positions, demonstrating how policy disputes over civil rights contributed to conservative efforts to increase and legitimize presidential control over the bureaucracy through the controversial claim that the president possesses the whole executive power under Article II. Specifically, I examine two intertwined controversies from 1983, which pit the Reagan White House and Department of Justice (DOJ) against the Equal Employment Opportunity Commission (EEOC) and U.S. Commission on Civil Rights (USCCR), two agencies that Reagan officials viewed as obstacles to pursuing its preferred civil rights agenda. Conflicts between the DOJ and EEOC led the administration to deploy the unitary executive theory to help centralize control over its civil rights litigation strategy, while clashes with the USCCR spurred the administration to assert the theory's tenets amid battles over that agency's reauthorization. While these episodes yielded mixed political and legal outcomes, the early articulations of the unitary executive theory that emerged helped to elaborate and advance a controversial constitutional doctrine about presidential power that has become increasingly consequential over time.

--Dan Ernst

OAH Binkley-Stephenson Award to Zipf

At its annual meeting in April, the Organization of American Historians awarded the Binkley-Stephenson Award (for "the best article that appeared in the Journal of American History during the preceding calendar year") to Karen L. Zipf (East Carolina University) for "Exposing the Masculinist Narrative in Federal Antislavery Law: A History of U.S. v. Tony Booker (1980)," Journal of American History, 110 (March 2024), 689–714. The citation:

“Exposing the Masculinist Narrative in Federal Antislavery Law: A History of US. V. Tony Booker (1980),” by Karen Zipf (East Carolina University), is a deeply researched and compelling contribution to modern slavery studies, showing that lawyers in the Civil Rights Division of the Department of Justice were trying to apply a gendered lens to U.S. antislavery law. Zipf highlights a missed opportunity to unite antislavery law and anti–sex trafficking law because judges could not overcome their “masculinist” reading of slavery as male, and sex trafficking as female. The lawyers in U.S. v. Tony Booker, the case at this heart of this article, worked hard to show that labor contractors tried to create a “climate of fear” by threatening sexual assault, debt bondage, violence, and death to keep farm workers in bondage. Despite the work of feminist theorists and legal analysts to apply gendered analysis to the language of the Thirteenth Amendment, it was not until the 1990s and later that courts began to recognize sexual violence as an essential component of involuntary labor. Well-grounded in Black feminist theory, legal history, and slavery history, Zipf’s essay will be foundational for scholars assessing slavery after emancipation.

Congratulations to Professor Zipf!

-- Karen Tani 

OAH John D’Emilio LGBTQ History Dissertation Award to Olmstead

At its annual meeting in April, the Organization of American Historians awarded the John D’Emilio LGBTQ History Dissertation Award ("given annually for the best PhD dissertation in U.S. LGBTQ
history") to Shay Olmstead (Rochester Institute of Technology) for "‘Refuse to Run Away’: Transsexual Workers Fight for Civil Rights, 1969–1992," University of Massachusetts Amherst, 2024. The citation:

In this timely, innovative, and thoughtfully structured dissertation, Shay Olmstead explores how trans workers harnessed both civil rights and disability law to confront antitrans employment discrimination in the United States from the late 1960s through the early 1990s. Olmstead spotlights the experiences of over thirty claimants who privileged narrow, individual legal action over collective, grassroots organizing and consciously worked to distinguish themselves from others in LGBTQ+ communities. These trans claimants petitioned elected officials, the courts, and various government agencies at the federal, state, and local levels to define amorphous legal concepts such as “sex” and “disability,” albeit in “trans-exclusionary ways” that also authorized “the mistreatment of some gay, intersex, and gender-nonconforming cissexual workers.” Olmstead’s dissertation therefore recasts both queer labor and legal history while also intervening in the fields of disability history and studies. The dissertation ultimately offers a cautionary tale with profound implications for our present moment of rampant (legal and extralegal) discrimination. 

Congratulations to Professor Olmstead!

-- Karen Tani

Erkkilä and Gries on Popularizing GDR's Lower Courts

Ville Erkkilä and Luisa Gries have published “The Problem Can Be Solved Only by Those Imbued with a Socialist Sense of Justice!”: Social Conflict and the Lower Courts in the German Democratic Republic open access in Law and History Review:

The article concentrates on the massive project of popularizing the court system and penal practice in the GDR in the 1960s. From then on, the GDR transferred a considerable amount of jurisdiction to collectives, which were further assigned the task of adjudicating “close to the people” within and alongside the existing legal system. We will analyze how the government with this project managed to translate the ideological task of sanctioning the inner-state enemy into existing legal concepts, and how it used law as a means to advance its political aims. By focusing on the judicialization of politics in the GDR, the article examines the legal history of the GDR as an important example in the broader and pressing phenomenon of the relationship between law and authoritarian politics.

--Dan Ernst

Gómez-Arostegui on the Universal Injunction and English Chancery Cases

Tomás Gómez-Arostegui, Lewis & Clark Law School, has posted Universal Injunctions and Attorney General v. Vernon (Ch. 1684-1685/6):

On May 15, 2025, the Supreme Court will hear oral argument in a trio of cases on the emergency docket. Although the cases all concern birthright citizenship, the United States has asked the Court to address a single issue: whether universal injunctions are lawful as a general matter. A universal injunction protects persons that a defendant will allegedly harm, but who are not plaintiffs in the suit.

English legal history could play a major role. Several Justices have recently signaled that they will adhere to a line of decisions from the Court in which it ruled that federal courts can only employ equitable remedies that were known to the English Court of Chancery in 1789. Thus, a central issue before the Court this month might be whether the English Court of Chancery in 1789 could issue something akin to a universal injunction.

In this essay, I first lament the lack of primary research in the briefing. Unfortunately, no one to my knowledge has dived deeply into the Chancery cases before 1789. Thus far, scholars have cited only a handful of printed reports from the period, and no one has explored the countless unpublished suits that survive in the records of the National Archives. Indeed, I do not believe any scholar has cited even a single actual order or decree from the Chancery's official records.

Second, I address a 17th-century Chancery case that some might believe supports non-party protective relief in equity. To show it does not, I review all the records in the case, including manuscripts from the Court of Chancery and elsewhere.

Lastly, I conclude with some thoughts on how the Court should proceed, particularly given how little 18th-century work has been done on universal injunctions thus far.

--Dan Ernst

OAH Nickliss Prize to Gomez, "Picture Bride, War Bride"

At its annual meeting in April, the Organization of American Historians awarded the Mary Nickliss Prize in U.S. Women’s and/or Gender History ("given annually for the most original book in U.S. women’s and/or gender history") to Sonia C. Gomez (Santa Clara University) for Picture Bride, War Bride: The Role of Marriage in Shaping Japanese America (New York University Press). The citation:

Picture Bride, War Bride is an understated yet powerful new take on the gendered politics of immigration, racial formation, and interethnic relationships. Looking at the immigration of Japanese brides, the book analyzes the role of marriage in producing a dialectic of exclusion and “differential inclusion” in federal immigration laws, from the Gentlemen’s Agreement of 1908 to the Hart-Cellar Act of 1965. Sonia Gomez persuasively argues that compulsory heterosexual marriage enabled Japanese wives to achieve degrees of inclusion in U.S. society.

This graceful and wide-ranging book spans periods, geographies, and gendered identities, deftly linking national and international governance, politics and war, to intimate details of Japanese and American lives. Impressively researched, this compassionately written account of Issei bachelors, Japanese wives, and wartime interracial relationships reveals the dynamic role that gender and family played in the deployment of cultural difference and attitudes toward assimilation. Finally, this boo realizes the long stated but rarely attained goal of using gender as a category of analysis: it tacks between women’s and men’s experiences and the intersecting impact of masculine and feminine ideations. 

To the literature on “war brides,” Gomez contributes three original narratives. First, marriages between Japanese women and U.S. servicemen transformed postwar immigration laws. Second, African American GIs who fought to marry Japanese women pushed civil rights organizations to challenge antimiscegenation laws. Finally, these marriages changed the postwar racial landscape by troubling, even eliding, the Black/white binary. “War brides” navigated layers of white supremacy, interethnic tensions within communities of color, and a legal regime structured to privilege heterosexual masculinity. Much more than a community study, Picture Bride, War Bride presents a fresh, multiethnic narrative of gender, race, sexuality, law, politics, and culture in the twentieth-century United States.

Congratulations to Professor Gomez!

-- Karen Tani

Stern on the English Roots of Notice-and-Comment Rulemaking

Just out in the Yale Law Journal: The Lost English Roots of Notice-and-Comment Rulemaking, by Rephael G. Stern, who currently is the Raoul Berger-Mark DeWolfe Howe Fellow in Legal History at the Harvard Law School and will be joining the Boston University law faculty this summer.  Here is the abstract:

Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking.

These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth and early twentieth

centuries. In the New Deal Era, influential American reformers tracked important developments in English rulemaking as they grappled with the rapidly changing American legal ecosystem. Yet, as this Article emphasizes, Americans only partially adopted the English procedural framework.

While they transplanted the “notice” and “comment” dimensions of English procedure, the Americans ultimately decided not to import a legislative veto, which was a critical part of rulemaking procedures in England.

By offering a revisionist account of the origins of notice-and-comment rulemaking, this Article makes two contributions. First, it takes an initial step toward recovering a largely forgotten world of Anglo-American administrative law. Second, it illuminates current debates about the legitimacy of notice-and-comment rulemaking. With many current critiques of notice-and-comment rulemaking centering on the procedure’s supposed lack of democratic accountability, the history this Article traces pushes us to ask whether belatedly transplanting an English-style legislative veto would legitimate the procedure.

--Dan Ernst

Bolden's "Soul of the Court"

Tonya Bolden has published Soul of the Court: The Trailblazing Life of Judge William Benson Bryant Sr., which appears in the Margaret Walker Alexander Series in African American Studies of the University Press of Mississippi:

Legal legend Judge Louis F. Oberdorfer once stated that there were “only two people in the world who really understood the Constitution” and its impact on American lives. One was Hugo Black, deceased Supreme Court justice. The other was William Benson Bryant Sr. (1911–2005), who in the early 1950s became the first Black assistant US attorney to try cases in Washington, DC’s federal court, and became that same court’s first Black chief judge in 1977. Written by award-winning author Tonya Bolden, Soul of the Court: The Trailblazing Life of Judge William Benson Bryant Sr. presents the story of Bryant’s remarkable, pioneering life in the law—one that began in a segregated DC and included many years as an extraordinary criminal defense attorney, most notably as the dogged defender of Andrew Mallory, a young poor Black man sentenced to the electric chair for the 1954 rape of a white woman. Bryant fought for Mallory’s life all the way to the US Supreme Court, chiefly on the grounds that Mallory’s confession—the most damning evidence against him—was the fruit of an illegal detention. The High Court overturned Mallory’s conviction. Mallory v. United States was among the cases that culminated in the landmark 1966 Miranda rule.

Appointed to federal judicial service by Lyndon B. Johnson in 1965, Bryant’s forty-year tenure included cases ranging from overturning a corrupted election of the United Mine Workers and unconstitutional conditions at the DC jail. The biography draws upon an array of documents, newspaper articles, and interviews with the judge’s friends, colleagues, and family members, as well as oral histories, including Judge Bryant’s. Bolden beautifully narrates the story of a life of compassion, unparalleled integrity, and unwavering belief in the dignity of every human being.

--Dan Ernst

OAH Award for Contributions to Public Policy to Kang

At its annual meeting in April, the Organization of American Historians awarded the Award for Contributions to Public Policy ("recognizing significant contributions to U.S. public policy through historical research") to S. Deborah Kang (University of Virginia). The citation:

S. Deborah Kang is a leading scholar of border enforcement whose work brings important
insights to both law and policy. Her book The INS on the Line: Making Immigration Law on the U.S.-Mexico Border, 1917-1954 (2017) has informed affidavits and amicus briefs that seek to illuminate how past immigration laws and policies have impacted the lives of countless individuals both in the past and present day. Her award-winning book, The INS on the Line, provides the starting point for her policy work. Her affidavits and amicus briefs are detailed and scholarly and deeply historical works that seek to show that “in the long term, the agency’s repeated exercise of its administrative discretion resulted in the creation of a broad and distinctive set of policies, pertaining to admissions, deportation, and enforcement, for the border region.” Kang’s extensive efforts to make immigration policy more humane and equitable are an exemplary example of the type of contributions to and ongoing obligations the historical profession has in helping to create public policy that is more firmly grounded in sound history.

Congratulations to Professor Kang!

-- Karen Tani 

ASLH Wallace Johnson First Book Program

 Via the American Society for Legal History, we have the following announcement: 

The biennial Wallace Johnson Program for First Book Authors provides advice and support to scholars working toward the publication of first books in legal history, broadly defined. In conversation with peers and with the advice of senior scholars, participants develop and revise book proposals and sample chapters, as well as meeting with guest editors to learn about approaching and working with publishers.

The Johnson Program is open to early career, pre-tenure scholars, publishing in English, who have completed PhDs, JDs, or equivalent degrees. Scholars with expertise in all chronological periods and geographical fields are encouraged to apply, as are applicants who may not (yet) identify as legal historians. The Program provides substantial travel and accommodation funding to support attendance at Program meetings.

Admission to the Wallace Johnson program is biennial. The next cohort will be selected in summer 2025, and the call for applications for the program can be found below.

The program includes the following elements:

• Fall 2025 (November 13, 2025): in-person, one-day, pre-conference workshop at the ASLH Annual Meeting (Detroit, MI), introduction to book publishing and proposal writing;
• Spring 2026 (date TBD): remote meeting, feedback from program leader and peers on draft book proposal;
• Summer 2026 (date TBD): in-person, two-day workshop on draft chapters at the American Bar Foundation (Chicago, IL); and
• Fall 2026 (date TBD): in-person, half-day, pre-conference workshop at the ASLH Annual Meeting (Location TBD).

The 2025-26 Johnson Program will be led by Professor Christopher Schmidt, with the participation of other senior legal historians.

Up to 5 Fellows will be selected. Fellows must commit to participation in all elements of the program. Each will receive substantial funding for travel and accommodation related to the program, with a small supplement to participants who do not have institutional support for travel and research.

The application deadline is June 27, 2025. Applicants should submit items 1-3 as a single pdf document, Times New Roman, 12-point font, with your full name in a header on each page. All materials should be submitted to Sam Erman (samerman@umich.edu) by June 27, 2025.

Read on here.

-- Karen Tani

Neilson's "Dangers of Youth"

Briony Neilson has published Dangers of Youth: Age, Criminality, and Juvenile Justice Reform in Third Republic France (McGill-Queen’s University Press):

 French society at the turn of the twentieth century was deeply preoccupied with the conduct and management of its young people, especially those who had broken the law. Legislators and social reformers of the Third Republic grappled with the question of whether children who committed offences should be held criminally responsible for their actions or if their age should exempt them from liability.

Dangers of Youth examines foundational debates – about young lawbreakers, their criminal liability, and their appropriate treatment – at the origins of France’s modern juvenile justice system. In a context of overcrowded prisons, frequent recidivism, a sluggish birth rate, and growing international tension, young offenders were viewed as harbingers of the nation’s decline and as dangerous agents of disorder. At the same time, young people, including juvenile delinquents, were seen as victims of neglect and necessary vehicles for national regeneration. In 1912 legislators established a distinct criminal justice system for juveniles, enshrining probation at its heart and decriminalizing offences committed by children under the age of thirteen. Legislators drew on recommendations from France’s pre-eminent penal reform association, the Société générale des prisons, introducing measures that enabled the state to intervene as never before in children’s upbringing.

Dangers of Youth is a detailed historical account of the emergence of greater age consciousness in the criminal justice system in modern France, which contributed to the creation of a distinct branch of justice for juveniles.

OAH Rawley Prize to Gronningsater, "The Rising Generation"

At its annual meeting in April, the Organization of American Historians awarded the James A. Rawley Prize ("given annually for a book dealing with race relations in the United States") to Sarah L. H. Gronningsater (University of Pennsylvania) for The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom (University of Pennsylvania Press). The citation:

Sarah L. H. Gronningsater beautifully reframes our understanding of gradual abolition and the long period of emancipation in this extraordinary book. The Rising Generation explores gradualism as Black New Yorkers understood it—as a story of a generation of children who were born into the seemingly liminal status of servitude but whose newfound access to schools, philanthropic associations, courts, and voting had ripple effects for their communities. Black New Yorkers recognized that the children of gradual abolition would bear particular responsibility in shaping opportunities for all African Americans in the
state. As Gronningsater brilliantly shows, having spent their lifetimes promoting emancipation, voting rights, and citizenship at the state level, the children of gradual abolition would eventually become leaders in crafting the legal protections of Reconstruction era. The children of gradual abolition transformed a struggle for freedom that first played out in the household into a broader fight for political power as citizens. Behind each of these questions about legal and political rights is a stunningly researched and deeply textured look at the way that mothers, fathers, teachers, and communities navigated the new reality of gradual abolition to protect their children.

The Rising Generation also received an Honorable Mention for the OAH's Frederick Jackson Turner Award ("given annually to the author of a first scholarly book dealing with some aspect of American history").

Congratulations to Professor Gronningsater!

-- Karen Tani 

OAH Jackson Turner Prize, Hawley Prize to Nofil, "The Migrant's Jail"

At its annual meeting in April, the Organization of American Historians awarded the Frederick Jackson Turner Award ("given annually to the author of a first scholarly book dealing with some aspect of American history" to Brianna Nofil (William & Mary) for The Migrants Jail: An American History of Mass Incarceration (Princeton University Press). The citation:

Brianna Nofil’s The Migrant’s Jail explains how a century of political, economic, and ideological exchange between the U.S. immigration bureaucracy and the criminal justice system gave rise to world’s largest system of migrant incarceration. Ultimately, it asks (and answers) the question: How can a self-proclaimed nation of immigrants also be a place that imprisons tens of thousands of immigrants, exiles, and refugees? Migrant incarceration remade the political economy of American jails and rewrote the constitutional rights of noncitizens, as local entities competed for federal revenue associated with the practice, even before private prison companies entered the business in the 1980s. This dispersed, local participation in turn helped cultivate popular fears and the myth of migrant harm that have infused a broader American national discourse. The Migrant’s Jail is an important, original, and surprising story, well told, based on extensive, impressive research and analysis. It is a timely national account grounded in local places and institutions, offering broad regional and chronological coverage and perceptively illuminating a central contemporary controversy—one that has been around longer than we might imagine and one that afflicts us now more than ever.

The Migrant's Jail also received the OAH's Ellis W. Hawley prize ("for the best book-length historical study of the political economy, politics, or institutions of the United States, in its domestic or international affairs, from the Civil War to the present") The citation:

The Migrants Jail: An American History of Mass Incarceration, by Brianna Nofil, is an excellent example of why history matters to modern discussions of migration, immigration, and detention. This timely and meticulously researched study guides readers across the United States and through a century of history while employing a combination of compelling and consistent analysis from beginning to end. “The Migrant’s Jail,” as Nofil states, “tells a national story about local institutions.” Such a focus asks readers and scholars to combine our awareness of court cases and federal restriction policies with the lesser-known cooperative action and resource assistance from American counties that have made, and continue to make, mass detention and deportation possible. The result of this reality, and the “exchange between U.S. immigration bureaucracy and the criminal justice system,” is the creation of “the world’s largest mass incarceration system.” It is the sincere honor of this committee to recognize, with unanimous and uncontested consensus, Brianna Nofil and The Migrant’s Jail: An American History of Mass Incarceration as the winner of the 2024 Ellis W. Hawley Prize.

Congratulations to Professor Nofil!

-- Karen Tani

CFP: The Other Declarations of 1776

[We have the following CFP.  DRE.]

The Institute for Justice’s Center for Judicial Engagement and the Liberty and Law Center at Antonin Scalia Law School are pleased to announce a conference: “The Other Declarations of 1776.” Additional details for the conference are available here.

We invite authors interested in exploring these and related topics to submit proposals for papers. We are looking for a journal where the papers will be published as a symposium. The number of papers published will depend on the quality of applications but the anticipation is to select approximately six. The writers are expected to attend the conference in person. Papers should be approximately 10,000 words and should address the history, meaning, and impact of state declarations of rights of 1776. We encourage this to include their impact on the later development of judicial review and constitutional government. A non-exclusive list of suggested topics include the following, but additional topics are welcome: 

• How cognizant were the framers of the “Other Declarations” of any break their new declarations and constitutions represented from parliamentary supremacy?
• When and how did the stirring words of an individual state’s declaration of rights come to be seen as a law that binds future legislatures?
• Did the framers of the “Other Declarations” see themselves in the tradition of the Glorious Revolution and the Declaration of Rights of 1689, or as a different method for a different age?
• Were “Other Declarations” an impetus for the development of judicial review in subsequent decades, or were later appeals to them in conjunction with judicial review a method of retrofitting history?
• How did the “original meaning” of certain provisions in the “Other Declarations” influence later constitution writing and interpretation?
• What was the relationship between the Declaration of Independence and the “Other Declarations”? 
• More specifically, did Thomas Jefferson’s well-known cribbing of George Mason’s Virginia Declaration have a meaningful impact on subsequent constitutional history?
• How does the legacy of the “Other Declarations” differ from the Declaration of Independence and/or the federal Bill of Rights?
• Are there untold stories of contributions from the “Other Declarations” to later constitutional law—such as ancestors of the First and Fourth Amendments—that we should know about?
• What thinkers actually had an impact on the “Other Declarations”—such as Locke, Pufendorf, Montesquieu, Rousseau, etc.—or were their ideas not relevant to the more practical concerns of revolution?

Reasonable travel and hotel expenses will be provided for those selected to write and present papers. International travel will be considered on a case-by-case basis but cannot be guaranteed. An honorarium of $2,500 will also be provided to selected paper authors.

Hurst Fellows Announced

The fellows for the 2025 Hurst Summer Institute in Legal History has been announced, here.  H/t: MS.

Weekend Roundup

• Sam Tanenhaus reviews former ASLH president Michael Willrich’s American Anarchy: The Epic Struggle Between Immigrant Radicals and the US Government at the Dawn of the Twentieth Century (Basic) in the New York Times.
  

• "Old Courthouse reopening shines light on Louis Brandeis’ early legal career in St. Louis" (STL Jewish Light).

• Evan Bernick, Northern Illinois University College of Law, debates birthright citizenship with Ilan Wurman, University of Minnesota Law School, at a Federalist Society event.
  

• Judge Beryl Howell used originalist arguments in ordered the reinstatement of a member of the National Labor Relations Board (FedSoc).  And be sure to read Judge Howell's latest, on the Perkins Coie litigation, including its references to Shakespeare, John Adams, et al.

• Litigating History: Practical Observations on the Use of History in Litigation by Matthew L. Schafer, in the ABA's Communications Lawyer.
  

• Legal scholars on the Liberty Justice Center's brief in the litigation against the recent tariffs include Steven Calabresi (Northwestern), Harold Koh (Yale), Richard Epstein (NYU), Michael McConnell (Stanford, also former federal judge), Alan Sykes (Stanford), and Gerard Magliocca (Univ. of Indiana) (Volokh Conspiracy).

• A notice of the legal historian Michael Klarman's "Last Lecture" (although presumably not his last lecture) at HLS.

• ICYMI: Supreme Court of Ohio Honors Judicial Legacy with Melhorn Exhibit for Law Day (Court News Ohio).  Sundry historians on whether Trump 2.0 is unprecedented (NYT). Rick Baldoz on the long history of politically motivated deportations (The Conversation).
  

• Update: Kathy Hermes on Hartford's "Exploding School house" incident (Patch).

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

Ballas and Moran on Criminal Justice in Colonial Himalaya

Irit Ballas and Arik Moran have published General Will or Public Order? The Debate on Criminal Justice Policy in Early Colonial Himalaya, 1815–1816 in Law and History Review:

When the British East India Company (EIC) conquered the West Himalaya region in the 1810s, it faced a critical challenge commonly encountered by colonial empires: determining the extent of intervention in intracommunity criminal matters among colonized subjects. This article examines the archived correspondence of colonial officials regarding this challenge and scrutinizes the various arguments made for and against intervention. It shows that the alterity of the subject population was strategically employed by both sides of the debate, who simultaneously promoted contradictory agendas: for those advocating intervention, alterity rendered involvement in criminal matters necessary and just, whereas those averse to intervention employed the very same notion to justify the opposite stance. This dual usage is explained by exposing the contemporary ideas about criminal justice that underlay each of these positions: that criminal law should represent the general will of society, and that it must be executed by a centralized power so as to maintain public order. While these two tenets are commonly perceived as supporting one another, the analysis reveals their decoupling in colonial settings. The debates of EIC officials thus demonstrate how the colonial setting distorts ideas foundational to modern criminal law systems, casting doubt over whether they were ever truly in harmony to begin with.

--Dan Ernst

ASLH: Student Research Colloquium

[We have the following announcement from the American Society for Legal History.  DRE.]
 
The American Society for Legal History will host its eleventh annual Student Research Colloquium (SRC) on Wednesday, November 12, and Thursday, November 13, 2025, in Detroit, Michigan, USA. Each year, the SRC brings eight graduate students to the site of the ASLH annual meeting to discuss their in-progress dissertations or other research projects with each other and with ASLH-affiliated scholars. Target applicants include early-post-coursework Ph.D. students and historically minded law students. All students whose research touches on legal-historical themes are encouraged to apply, whatever their chronological or geographical focuses. Applicants who have not yet had an opportunity to interact with the ASLH are welcome, as are those who have never received any formal training in legal history. A student may present a paper at the annual meeting and participate in the SRC in the same year. The ASLH will either partially or fully reimburse participants’ travel, hotel, and conference-registration costs. To apply, submit the following three items to John Wertheimer at: srcproposals@aslh.net:

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

Application deadline: June 1, 2025.  Thanks to the generosity of ASLH donors, the SRC is able to offer student participants fellowships named in honor of past and present leaders in our field: the Lauren Benton Fellowship, the Herbert A. Johnson Fellowship, the Martha Jones Fellowship, the Laura Kalman Fellowship, the William Novak/University of Michigan Law School Fellowship, the Amy Dru Stanley Fellowship, the John Wertheimer/Davidson College Fellowship, and the James Whitman/Yale Law School Fellowship.

Brill's Law and Society in China Book Series

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

Call for Manuscripts:  Law and Society in China Book Series/Brill

After nearly four decades of reform, China is a transformed and yet a rapidly changing society. Along with the continuing economic changes, there is no dispute that China has witnessed tremendous transformations in the area of law.

This series aims to study the legal development in China from the historical and comparative perspectives. It seeks to bring together scholarly work that not only examines legal theories but also investigates how law is implemented and enforced in the Chinese society. It aims to become the series of choice for prospective authors of in-depth historical, theoretical studies as well as socio-legal and empirical studies on Chinese law.

We invite scholars from all disciplines working on Chinese law and society to submit book proposals or full manuscripts. Submissions should engage critically with legal developments in China and contribute to a deeper understanding of its evolving legal landscape.

Submissions and Inquiries: All submissions will undergo a double-anonymous peer review prior to acceptance.  Please direct your proposals or completed manuscripts to the Acquisitions Editor at Brill, Iulia Ivana (iulia.ivana@degruyterbrill.com).

For more information, please visit the series' webpage.  We look forward to your contributions to this important and growing field.

Iulia Ivana (iulia.ivana@degruyterbrill.com)
Acquisitions Editor, Asian Studies, Brill

Fay on Birthright Citizenship and Elk v. Wilkins

Alexandra Fay, University of Tulsa College of Law, has posted  "Subject to the Jurisdiction Thereof"?: Citizenship and Empire in Elk v. Wilkins, which is forthcoming in the Washington University Law Review:

In 1884, the Supreme Court held that the Fourteenth Amendment's guarantee of birthright citizenship did not apply to Native Americans. In Elk v. Wilkins, the Court denied John Elk the right to vote on the grounds that he was born a tribal member, not subject to the jurisdiction of the United States, and thus ineligible for citizenship. This Article explores that decision, its context, and its consequences. It considers the radical promise of the Fourteenth Amendment's text alongside the intentions of its Framers and the expectations of minority litigants. It situates Elk in a transformative period for both federal Indian policy and American federalism.

The Article offers several readings of the Elk decision. It explores both the racist paternalism and the respect for tribal sovereignty evident in the Court's reasoning, as well as the rapid shifts in Indian policy coinciding with Reconstruction. It ultimately argues that Elk v. Wilkins is emblematic of a distinct inflection point in federal Indian law, in which the Court's formal adherence to longstanding principles of tribal sovereignty could simultaneously service federal assimilationist policy goals and a larger turn to American empire.

--Dan Ernst

Early Career Global Legal History Research Fellowships

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

Early Career Global Legal History Research Fellowships
 
This new initiative is intended to provide funding for early career scholars, publishing in English, who are working on projects in legal history relating to non-U. S. history topics. Non-U. S. history topics refers to research that does not qualify for the fellowships awarded by the Cromwell Foundation in coordination with the ASLH. Early career scholars includes those researching or writing a PhD dissertation (or equivalent project) and recent recipients of a graduate degree working on their first major monograph or research project. The Committee will make up to five awards.

Criteria:  Early career scholars, publishing in English, researching in non-U. S. fields of legal history.  Amount: $2,000.  Deadline: June 30, 2025

Elements of Application:

1. Project Proposal (maximum 750 words including notes).  The proposal should include (in this order): your name and contact information; name and contact information for the reference you have asked to write for you; and project title and description;
2. Budget & Timeline (1 page);
3. Curriculum Vitae (1 page). It should include your name, contact information, education and degree dates, current appointment (if any), publications and conference papers, and professional society affiliations; and
4. One Letter of Recommendation.

Applicants should submit items 1-3 in a single pdf, and arrange to have the letter of recommendation submitted directly. Both the application and reference must be received by the deadline of June 30, 2025. Only complete applications will be considered.

Applications should make clear the relevance of law to the project and how the research will tell us something new about law. Applications should engage with relevant scholarship in the field. Finally, applications should have a clear budget that is specific about how and where you plan to spend research funds.

Submit Application and Recommendation to: global@aslh.net.  Awards will be formally announced at the Annual Meeting of the American Society for Legal History in Detroit.  Questions? Please email Barbara Welke (welke004@umn.edu).

ASLH Early Career (Virtual) Legal History Workshop

[We have the following announcement.  DRE.]

ASLH Early Career (Virtual) Legal History Workshop

Deadline for Applications:  June 30, 2025
 
The American Society for Legal History (ASLH) Early Career (Virtual) Legal History Workshop is designed to provide support and intellectual community to early career scholars working in legal history, broadly defined.
 
Applications are invited from early career scholars, publishing in English, who have completed PhDs or JDs (those working toward a JD/PhD must have completed the PhD), and are working on their first major monograph or research project.  We encourage applications from scholars with expertise in all chronological periods and geographical fields, both within and outside the United States, as well as from those who may not (yet) identify as legal historians.
 
The committee (the ASLH Committee on Digital Programming) will select seven (7) Fellows for the 2025-26 workshop. The workshop will be limited to the Fellows and Faculty Chairs and will meet once monthly via Zoom from September through April (no meeting in November because of the Annual Meeting) giving each fellow an opportunity to share work-in-progress with the group for discussion and feedback.  The 2025-26 Early Career LHW will be chaired by Hendrik (Dirk) Hartog, Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Emeritus; Professor of History, Emeritus, Princeton University, and Michelle McKinley, Bernard B. Kliks Professor of Law, University of Oregon. The date and time of the monthly workshops will be established by the Faculty Chairs. Fellows must commit to participate for the full academic year.
 
Elements of Application

(1) Cover Letter (1 page) (the cover letter should address the following points: briefly describe your research and path to the project, note the intended result (book/article/other) and the stage of the project, explain your interest in being part of the 2025-26 workshop, and note your time zone (UTC) and range of flexibility for meeting.  Though time zones present a challenge, one of the goals of the ASLH’s virtual initiatives is to increase opportunities for engagement between international and U.S. based scholars);

(2) Curriculum Vitae (1 page) (including education and degree dates, current appointment, publications and conference papers, and professional society affiliations);

(3) Title and Abstract for what you plan to share (draft article, book chapter, book proposal)(up to 100 words);

(4) 1 Letter of Recommendation (the letter should be from someone who knows you and your work well and who can comment on how you would benefit from and contribute to the workshop community).

Applicants should submit items 1-3 in a single pdf.  And arrange to have the letter of recommendation submitted directly.  Application Deadline: June 30, 2025.  Only complete applications will be considered.

Please direct Questions & Submissions to: Jonathan Connolly, jsc1@uic.edu