ARTICLE: Kathleen CLAUSSEN, Timothy MEYER, "The Foreign Commerce Power" (California Law Review CXIV (2026), April)

 

(image: The White House (South Façade); source: Wikimedia Commons)

Abstract:

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between diplomacy and commerce and used this confluence to justify unilateral economic actions by a “trader in chief” that circumvent the Constitution’s allocation of power. These matters have reached a tipping point over the last decade, prompting a series of high-profile cases in which the government has argued that this general foreign affairs power includes some portion of the foreign commerce power. To correct this misapprehension, this Article undertakes a novel examination of Founding-era materials, including the distribution of commercial authority between the king and parliament in eighteenth-century Britain, the correspondence and deliberations of the Framers, and the Founding Generation’s implementation of the commerce power in matters of national security during the early years of the Republic. These sources reveal a consistent and deliberate understanding both that Congress’s control over foreign commerce is exclusive and that Congress’s control over commerce trumps the President’s general foreign affairs powers when the two intersect. This Article further argues that this allocation was not accidental or ancillary but central to the constitutional design.

Read the article in open access here. 

(source: Legal History Blog)

BOOK: Steven A. DEAN, Racial Capitalism and International Tax Law. The Story of Global Jim Crow (Oxford: OUP, 2025), 200 p. ISBN 9780197525975

 

(image source: OUP)

Abstract:

Global tax policy has long determined which states can access the resources necessary to flourish. Today, even the wealthiest states struggle to tax rich individuals and multinationals. Anti-Black racism has enriched affluent states at the expense of marginalized ones and undermined the taxing power of all nations. In a compelling narrative interwoven with personal storytelling, Racial Capitalism and International Tax Law: The Story of Global Jim Crow connects Dr. Martin Luther King Jr.'s metaphor of the "bad check"-representing unfulfilled promises of freedom and equality to Black Americans-to contemporary anti-Black global tax policies. The book uncovers lost connections, such as those between Edwin Seligman, an architect of our global tax system, and the Dunning School, which laid the foundation for Jim Crow laws, and between Stanley Surrey, a Harvard professor and advisor to President John F. Kennedy, and key moments of the Cold War. Furthermore, it takes a global view and reveals how racial panic triggered by African decolonization allowed an exclusive club of white countries to deliver a second bad check to newly sovereign states like Kenya and Nigeria. By circumventing the inclusive one-country, one-vote system of the United Nations, the OECD and its double tax treaty dismantled the generous arrangements that helped Europe rebuild after both World Wars. Racial Capitalism and International Tax Law exposes the surprising role anti-Black racism played in shaping an international tax system that benefits billionaires at the expense of billions of people. This eye-opening account challenges readers to rethink the global tax system and its profound impact on racial and economic justice.

 Table of contents:

Introduction: Tax and the Origins of Global Inequality
Chapter 1. The Perils of Precision
Chapter 2. A Surprising Generosity
Chapter 3. The Rise of Global Jim Crow
Chapter 4. US Power and Global Jim Crow
Chapter 5. Contesting Global Jim Crow
Chapter 6. Global Jim Crow's Pyrrhic Victory
Chapter 7. Beyond Global Jim Crow
Conclusion: Fear of a Black Planet

On the author:

Steven A. Dean is an award-winning author and a Professor of Law and the Paul Siskind Research Scholar at Boston University. He has spoken at the United Nations and testified in Congress about the impact of racism on tax law. Dean's work forced President Biden to change course on tax havens and forced the leading international tax policymaking organization to withdraw a major marketing brochure. He led the world's foremost graduate tax law program at NYU and practiced tax with leading global law firms. He earned his law degree from Yale and has published four previous books, including two with Oxford.

Read more here. 

JOURNAL: Law and History Review XLIV (2026), No. 1 [OPEN ACCESS]

 

(image source: CUP)

Articles

Bringing the Law and the Local Back In to the Revolution (Sarah Barringer Gordon)
DOI 10.1017/S0738248026101540
Abstract:

The study of legal change at local levels in this forum opens new windows onto the legal landscape, especially because they explore ground-level legal change that reveals far more innovative and incremental shifts in law and legal understanding than is visible at higher altitudes.

The Tension between Religious Liberty and Religious Establishment in Revolutionary New England (Mark Valeri)
DOI 10.1017/S0738248025101466
Abstract:

Revolutionary-era state constitutions reflected an unsettling tension in the history of American liberty. This article captures how revolutionary-era Americans accommodated moral liberty with religious establishment. Their notions of liberty were paradoxical, but it is possible to track their moral reasoning.

“They Are Their Citizens and Must Submit to Their Government”: Citizenship and the Creation of the Federal Government, 1776–1787 (Jessica Choppin Roney)
DOI: 10.1017/S0738248025101314
Abstract:

The American War for Independence scrambled the concept of political allegiance and belonging. In James H. Kettner’s apt phrase, “subjects became citizens.” Where British law denied the possibility that a subject could renounce the obedience owed to their sovereign, Americans asserted through force of arms “the right to choose their allegiance.”1 Influenced by a contractual notion of political compact and by the mayhem of a violent civil war, people shuffled and sometimes reshuffled into camps of revolutionaries, loyalists, and neutrals

Popular Government and the Limits of the Law at the Outset of the American Revolution (Donald F. Johnson)
DOI: 10.1017/S0738248025101351
Abstract:

The outbreak of the American Revolution thrust would-be revolutionaries into a paradoxical relationship with the law. As they overthrew colonial governments from New Hampshire to Georgia during the summer and fall of 1775, leaders of the resistance to Great Britain found themselves in the awkward position of having to justify rebellion against British authority while still professing to be law-abiding Britons. The revolutionaries’ mandate to govern rested on protecting rights to property and representation that many colonists believed had been violated by agents of the Empire, but the practicalities of war demanded extra-legal measures. The popular governments that replaced colonial administrations had to find a way to balance upholding many of the laws of the old regime while simultaneously organizing an armed insurrection against it. Much of this burden fell on revolutionary committees at the town and local level. As the Continental Congress and provincial elites vacillated between rebellion and reconciliation and struggled to assert control over the fast-growing revolutionary coalition, ad hoc governments comprised of ordinary citizens took on the tasks of governing their regions and organizing for armed struggle. For much of 1775 and early 1776, these popular regimes precariously balanced the need for extra-legal expediencies with the need to maintain at least a semblance of law to maintain their legitimacy.

Legislation, Regulation, and Administration in the American Revolution (William J. Novak)
DOI 10.1017/S0738248025101235
Abstract:

This article continues a long-term investigation into the nature of legislation, regulation, and administration across United States history. In contrast to persistent myths about an original American legal and political inheritance dedicated primarily to private rights, limited government, and laissez-faire economics, this article explores the earliest roots of American public rights, popular lawmaking, and regulatory policymaking. In the very first activities of revolutionary Provincial Congresses and Committees of Safety, this article locates a surprisingly robust template for the future development of American state police power, public provisioning, general-welfare legislation, and socio-economic regulation.

Review essay

Something Else: History, Legal Imagination, and the American Revolution (Matthew Crow)
DOI 10.1017/S0738248026101503

Read the whole issue in open access here.

BOOK: James HART, The U.S. Supreme Court in American Society. Historical Perspectives [Elgar Studies in Law and Society] (Cheltenham: E. Elgar, 2025), 182 p. ISBN 9781035349265

 

(image source: E. Elgar)

Abstract:

This insightful book examines the U.S. Supreme Court in a broad historical context, concentrating on the influence of political movements, military and economic developments, the arts and technology on the law and vice versa. Exploring major case law in each period from the Age of Enlightenment and the Civil War to the Watergate Scandal and the present day, James Hart illustrates the role of the Supreme Court in American society.

Table of contents:

Contents
Preface
1 The beginning
2 The country forms its identity
3 Antebellum and the Civil War
4 Reconstruction
5 The Court, wartime, and free speech
6 The Great Depression
7 The Warren Court and Civil Rights
8 Watergate and presidential power

9 To the present and the future of individual rights

Read more here: DOI 10.4337/9781035349272. 

BOOK: Mary L. DUDZIAK, Cold War Civil Rights: Race and the Image of American Democracy (Princeton: Princeton University Press, 2025), 360 p. ISBN 9780691274324, 32 USD

 

(image source: Princeton)

Abstract:

In 1958, an African American handyman named Jimmy Wilson was sentenced to die in Alabama for stealing less than two dollars. Shocking as this sentence was, it was overturned only after intense international attention and the interference of Secretary of State John Foster Dulles. Soon after World War II, American racism became a major concern of US allies, a chief Soviet propaganda theme, and an obstacle to American Cold War goals throughout Africa, Asia, and Latin America. Racial segregation undermined the American image, harming foreign relations in every administration from Truman to Johnson. Mary Dudziak shows how the Cold War helped to facilitate desegregation and other key social reforms at home as the United States sought to polish its image abroad, yet how a focus on appearances over substance limited the nature and extent of progress. Cold War Civil Rights situates the Cold War in civil rights history while giving an international perspective to the fight for racial justice in America.

On the author:

Mary L. Dudziak is the Asa Griggs Candler Professor of Law at Emory University. Her books include War Time: An Idea, Its History, Its Consequences and Exporting American Dreams: Thurgood Marshall’s African Journey.

Read more here. 

(source: Legal History Blog)

BOOK: Richard PRIMUS, The Oldest Constitutional Question. Enumeration and Federal Power (Cambridge (Mass.): Harvard University Press, 2025, 448 p. ISBN 9780674293595, € 45,95

 

(image source: Harvard)

Abstract:

A groundbreaking challenge to a core principle of constitutional law, arguing that congressional action is not limited by the legislative branch’s textually enumerated powers. Every law student learns that the federal government is constrained to act only according to its enumerated powers, meaning that Congress can do what the Constitution expressly authorizes it to and nothing more. Yet Richard Primus contends that this longstanding orthodoxy—allegedly required by the text of the Constitution, the Framers’ vision, and the logic of federalism—is fundamentally flawed.

On the author:

 Richard Primus is Theodore J. St. Antoine Collegiate Professor at the University of Michigan Law School. He clerked for Justice Ruth Bader Ginsburg at the US Supreme Court and is the author of The American Language of Rights.

(source: Legal History Blog) 

Read more here. 

JOURNAL: Les échanges en matière de droit pénal entre les États-Unis et l’Europe (eds. Jean-Louis HALPÉRIN & Amalia D. KESSLER) (Clio@Thémis XXVIII (2025)) [OPEN ACCESS]

(image source: openedition)

Introduction (Jean-Louis Halpérin & Amalia D. Kessler)
DOI 10.4000/13wwa

Quelle connaissance et quel impact du droit criminel américain dans la France du xixe siècle ? (Jean-Louis Halpérin)
DOI 10.4000/13wwb
Abstract:

At two moments during the 19th century, French jurists were interested in American criminal law, and not only in the overseas prison systems discussed in the 1833 report by de Beaumont and Tocqueville. The first moment occurred between 1825 and 1835, when Livingston’s draft of a penal code for Louisiana was published in French, and when Livingston came to France. This project, which provided for the abolition of the death penalty, was seen as a response to the risks of increased repression by ultra-royalists on the basis of the Napoleonic Penal Code. The second moment occurred at the turn of the 20th century, when American innovations in indeterminate sentencing and juvenile courts were discussed in France. After identifying and analyzing the texts of French jurists who dealt with American criminal law in these two periods, the article examines the estrangement of French specialists of criminal law from American ideas.

Atlantic Knowledge Transfer. U.S. Criminal Law in 19th Century Germany (Sylvia Kesper-Biermann)
DOI  10.4000/13wwd
Abstract:

The article examines the transfer of legal ideas from the U.S.A. to Germany in the long 19th century. On the one hand, actors and paths of knowledge transfer are described. On the other hand, selected examples are used to examine which North American ideas, texts, and experiences were perceived and discussed in Germany. It is shown that two phases with different emphases of reception must be distinguished, namely a first phase from the 1830s to the 1850s and a second phase around the turn of the 20th century.

French and American Histories of Animal Prosecutions: Criminal Punishment and Animal Rights through the Prism of the Past (Amalia D. Kessler) 
DOI 
Abstract:

Between the early 1800s and the early 1900s, a sudden, and as yet unexplained, transatlantic literature on the history of animal prosecutions emerged. Focusing on France and the United States, this article explores the birth and evolution of this literature. A product of such developments as the rise of historicism, positivist criminology, and a social movement against animal cruelty, this literature addresses what proved to be enduring challenges of criminal punishment and animal rights. In so doing, it highlights the interrelation of these seemingly distinct domains.

Criminal Justice in Italy between the End of the Liberal State and Fascism: Transnational Perspectives between the USA and Italy (1919-1945) (Luigi Lacchè)
DOI 10.4000/13wwe
Abstract:

This article considers how American scholars and articles published in English viewed the Italian reforms of Criminal Justice implemented between the “Ferri project” (1919) and the Fascist regime. It analyzes in particular how Fascist criminal reforms have been received, interpreted and assessed from that perspective. To summarize the views of American legal thinkers on Fascist criminal reforms we can say that, despite the popularity of positivism in the U.S. at the turn of the century, the radical Ferri Code was criticized in several respects. By the mid-1930s American responses were still focused on questions of criminal science, rather than the nature of the regime itself. The isolationist policy of the U.S. did not prevent a number of scholars from assessing certain aspects of Fascist codes and criminal reforms, pointing out problems and contradictions. The transnational viewpoint is therefore important to understand better the real nature of the Fascist regime and the formal maintenance of the principle of legality.

Why and How Sexual Freedom Changed Western Criminal Law (19th and 20th centuries) (Aniceto Masferrer)
DOI 10.4000/13wwf
Abstract:

This article explains “why” and “how” the new paradigm of sexual freedom radically changed Western criminal law. “Why” touches upon the change in the moral sexual paradigm in the West at the cultural level. “How” describes the ways in which sexual (criminal) laws were reformed in accordance with the new cultural paradigm, describing the mutual influences between the US and Europe: while the US Supreme Court took the lead in forbidding states to make laws that might interfere in the sexual behaviour by resorting to the right to privacy – and this legal doctrine notably influenced most of European jurisdictions –, in Europe legal scholars and legislatures were the protagonists in undertaking criminal law reform, adjusting sexual criminal law to the new cultural ideas.

 Varia

The doctrine in power and the origins of the doctrine dirigée: the early role of the Soviet legal doctrine through the official legal journal of the RSFSR (1918-1922) (Marco Mellina)
DOI 
Abstract:

Analysing data about articles and authors from the official legal journal of the Russian Soviet Federative Socialist Republic, Proletarian Revolution and Law, this article shows that the legal doctrine writing in the journal was primarily composed by jurists who were also part of the ruling class from 1918 to 1921, effectively creating a doctrine in power. This observation partly contrasts with the dominant Western historiographical notion of Soviet legal doctrine being only directed by an external political power. However, the article also shows how, with the advent of the NEP, the establishment of the USSR, the revival of law and the consequent proliferation of legal journals, Soviet legal doctrine expanded and laid the foundations for the doctrine dirigée of later years.

Read the full issue in open access here. 

SYMPOSIUM: Constitutional Meaning in the Shadow of the Articles of Confederation (Philadephia: Brennan Center for Justice/National Constitution Center, 12 MAY 2025) [HYBRID]

(image source: Swogo)

Abstract:

The Roberts Court has increasingly relied on history to resolve some of the most important constitutional questions of our time. Embracing a form of interpretation called “originalism,” the Court’s conservative majority argues that the original public understanding of the Constitution is what really counts. But discerning the goals and assumptions of those who ratified the Constitution requires an understanding of the document they were replacing: the Articles of Confederation. Today, the Articles are ignored as a false start. That’s a mistake. The Constitution was an explicit attempt to form a union “more perfect” than that of the Articles of Confederation, and they provide vital context to the framers’ choices. Join us in Philadelphia on Monday, May 12, at 11 a.m. ET as historians, journalists, law professors, and political scientists explore how the nation’s first experiment in self-governance paved the way for the Constitution we have today. Participants will examine the legacy of the Articles of Confederation, the founding debates over federal power, and the lasting influence of these debates on modern-day constitutional interpretation.

Program:

11-11:15 a.m. | Introductory Remarks

Jeffrey Rosen, president and CEO, National Constitution Center
Michael Waldman, president and CEO, Brennan Center for Justice

11:15 a.m.–12:30 p.m. | Panel 1: The Articles of Confederation

Explore the origins of the Articles of Confederation—examining the political, practical, and ideological reasons behind the states' sovereignty—and how the “firm league of friendship” among the 13 states ultimately became unworkable.

Aditya Bamzai, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law
Johann Neem, professor of history, Western Washington University
Farah Peterson, professor of law, University of Chicago Law School
Jack Rakove, Coe Professor of History and American Studies, professor of political science emeritus, Stanford University
Moderator: Alicia Bannon, director of the Brennan Center Judiciary Program

12:30–1:15 p.m. | Lunchtime Keynote

1:15–2:30 p.m. | Panel 2: Debating the Constitution 

Examine the reasons for the Constitution’s plan of government, how it was understood at the time, and how concerns over its failings were addressed through ideological debates at the Constitutional Convention.

Jay Cost, Gerald R. Ford Nonresident Senior Fellow, American Enterprise Institute
Jonathan Gienapp, associate professor of history, associate professor of law, Stanford University
Kermit Roosevelt, David Berger Professor for the Administration of Justice, University of Pennsylvania Carey Law School

2:45–4 p.m. | Panel 3: The War Over the Constitution’s Meaning

Explore governance under the new Constitution and the Articles’ long shadow, from the early republic to the post–New Deal modern era, and how competing narratives of the Constitution’s origin story evolved.

Ilya Somin, professor of law, Antonin Scalia Law School at George Mason University
Alan Trammell, associate professor of law, Washington and Lee University School of Law
Moderator: Wilfred U. Codrington III, Walter Floersheimer Professor of Constitutional Law, Benjamin N. Cardozo School of Law; fellow, Brennan Center

4–4:15 p.m. | Closing Reflections

Registration information: online - in-person.

(source: Legal History Blog)

BOOK: Rian DERRÍG, The New Haven School. American International Law [The History and Theory of International Law, eds. Nehal BHUTA, Francesca IURLARO, Anthony PAGDEN & Benjamin STRAUMANN] (Oxford: OUP, 2025), 256 p. ISBN 9780192868695, 100 GBP [OPEN ACCESS]

(image source: OUP)

Abstract:

The New Haven School was a school of legal theory and practice that was developed and taught at Yale Law School and named for its place of origin. At its centre stood a 'policy-oriented jurisprudence' - so-called for its emphasis on using law to pursue acknowledged policy aims. It was developed by Harold Lasswell and Myres McDougal in the 1940s. The New Haven School provides a comprehensive history of the School and a thorough examination of its impact on American International law in the past and today. Beginning with a review of Laswell and McDougal's biographies using previously unexploited archival materials drawn from multiple sites in New Haven, New York, and Chicago, this book explores the contexts that shaped this body of legal theory. From rural Mississippi to interwar Europe, to the American East Coast at mid-century, the book is a story of ideas and the people that used them. It narrates the moments, places, and contexts that shaped the approach that later became associated with the New Haven School, exploring progressive political movements of the early twentieth century United States and Europe, avant-garde interwar European psychoanalytic social theory, and the American tradition of philosophical pragmatism. The book contextualizes the New Haven School within the larger context of twentieth-century human and social sciences. It shows how the School's style of argument, a specific anti-formalism and a collection of methods, characterized the American practice of international law in the middle of the twentieth century and still does today. In doing so, The New Haven School contributes new insights to current conversations among scholars as well as in wider public discourse about the history and future of America's approach to internationalism, democracy, and foreign policy. This is an open access title available under the terms of a CC BY-NC-ND 4.0 International licence. It is free to read on Oxford Scholarship Online and offered as a free PDF download from OUP and selected open access locations.

On the author:

Ríán Derrig is a Postdoctoral Fellow at the World Maritime University (WMU)-Sasakawa Global Ocean Institute, funded by The Nippon Foundation. He was previously a Postdoctoral Fellow at the WZB Berlin Social Science Center and defended his doctoral thesis at the European University Institute. He was awarded the 2018 'Young Scholar Prize' of the European Society of International Law and the 2020 'Antonio Cassese Prize' for his work on the New Haven School. Derrig has been a Visiting Researcher at Yale Law School and holds an LL.M. with distinction from the London School of Economics and Political Science and an LL.B. from Trinity College Dublin.

 More information here.

BOOK: Karlson PREUSS, Die Erfindung des 19. Jahrhunderts. Ein wissens- und professionssoziologischer Beitrag zur Historiographie des westlichen Rechtsdenkens [Grundlagen der Rechtswissenschaft, 51] (Tübingen: Mohr Siebeck, 2024), 342 p., ISBN 978-3-16-163256-3

 

ABOUT THE BOOK:

 

Die Rechtsepoche des 19. Jahrhunderts leidet unter einem schlechten Ruf. In der westlichen Rechtsgeschichtsschreibung behauptet sich hartnäckig die Auffassung, dass das Rechtsdenken im 19. Jahrhundert einer formalistischen Ideologie verfallen war und erst mit der Wende zum 20. Jahrhundert einen Sinn für die »soziale« Realität des Rechts entwickelt hat. Karlson Preuß führt dieses Narrativ auf geschichtspolitische Professionsstreite um 1900 zurück. Er zeichnet nach, dass juristische Reformdiskurse in Deutschland, Frankreich und den USA im frühen 20. Jahrhundert Zerrbilder der vorangegangenen Rechtsepoche in die Welt gesetzt und mit dieser Sicht einen immensen Einfluss auf die westliche Rechtshistoriographie ausgeübt haben. Dabei will er sowohl der Transnationalität des Untersuchungsgegenstandes gerecht werden und damit der Tatsache, dass ein höchst fragwürdiges Narrativ einen bedeutenden Einfluss auf die nationalen Rechtsdiskurse verschiedener Rechtsfamilien ausgeübt hat, als auch eine soziologische Erklärung für den Erfolg dieses Narratives anbieten.

 

Read more here.

PODCAST: Digging Into Our Forgotten Legal History (UVA Law - Common Law Podcast, 9 APR 2024)

 

(image source: Apple Podcasts)

Abstract:

UVA Law professors Cynthia Nicoletti and Joy Milligan join host Risa Goluboff for a discussion on how divergent approaches to digging into the past can reveal some surprising truths about law and history.

Biographies:

Joy Milligan studies the intersection of law and inequality, with a particular focus on race-based economic inequality. Her scholarship is interdisciplinary, drawing on social science theory and methods, and has been published in the Yale Law Journal, Virginia Law Review, UCLA Law Review, NYU Law Review, Annual Review of Law & Social Science, and the Journal of Legal Education. Her current work examines the legal and political struggles over federal administrators’ long-term role in extending racial segregation. Before entering academia, Milligan practiced civil rights law at the NAACP Legal Defense and Educational Fund Inc., where she was a Skadden Fellow, and clerked for Judge A. Wallace Tashima of the U.S. Court of Appeals for the Ninth Circuit. She earned a Ph.D. in jurisprudence and social policy from the University of California, Berkeley, with a focus on race, politics and legal history, and her law degree from New York University. She also holds an M.P.A. from Princeton University and an A.B. in social studies, magna cum laude, from Harvard-Radcliffe.

Cynthia Nicoletti is a legal historian and professor of law at Virginia Law. She has received numerous awards and fellowships, including the William Nelson Cromwell Prize for the best dissertation in legal history, awarded by the American Society for Legal History in 2011. Her book, Secession on Trial: The Treason Prosecution of Jefferson Davis, won the 2018 Cromwell Book Prize, given by the William Nelson Cromwell Foundation each year for excellence in scholarship to an early career scholar working in the field of American legal history.

Read more here. 

ADVANCE ARTICLE: Kellen R. FUNK, "Sect and Superstition: The Protestant Framework of American Codification" (American Journal of Legal History) [OPEN ACCESS]

(image source: Oxford Academic)

 

Abstract:

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to ‘superstition’ and ‘priestcraft’. Their opponents denounced the codifiers’ idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly ‘clear’ texts that divided the positivists into an ever-increasing number of sects. Many works have addressed the relationship between populism and positivism over the course of the codification debates in the United States. What these works have missed is the Protestantism. Understanding how lawyers of another generation approached these questions can help us to appreciate the varieties of American textualism, and the fact that today’s textualism may be as foreign to textualisms of the past as to other methods entirely. Rather than the forerunners of a modern, rationalist ‘Republic of Statutes’, the codifiers were the literal and figurative sons of a post-Calvinist generation that was unquenchably optimistic about the clarity of texts and the common sense of individuals reading them. This lens also helps us better understand the defenders of the common law, who were not so much the retrograde servants of property rights and judicial supremacy as they are often presented, but were more often practically minded lawyers who understood the limits to which legislative texts could change the complex practices of law on the ground.

Read the full article here: DOI 10.1093/ajlh/njae008.

SEMINAR: Julie ROCHETON, The Genesis of Nineteenth-Century Civil Codes in the United States [Legal History Library, eds. Remco VAN RHEE, Dirk HEIRBAUT & Matthew C. MIROW; 66] (Leiden/Boston: Martinus Nijhoff/Brill, 2024), ISBN 978-90-04-68996-1 (Versailles: Université de Versailles (Paris Saclay); 28 MAR 2024)

 

(image source: Brill)

Book abstract:

Starting in Louisiana in the early nineteenth century, this book takes the reader on a journey through the USA and the development of their civil codes. From Georgia and New York, civil codes traveled to California and Dakota Territory; in the Great Plains, they made their way to Montana, North Dakota, and South Dakota by the end of the century. Unveiling the history of nineteenth-century civil codes in the USA, this book examines their origin stories, circulation, and usage by focusing on the social-historical context of their drafting and legal concepts.

Blurbs:

“Rocheton's work, published four decades after Cook's book on ‘The American Codification Movement,’ contains an exhaustive and insightful analysis of nineteenth-century civil codes. It thoroughly discusses their context, how they were conceived, discussed, drafted and approved, their main foreign influences and content, and their practical operation." - Aniceto Masferrer, University of Valencia “While there is a vast corpus of literature on codification and, more specifically, civil codes in the civil law tradition, it is much less known that six US states codified their private laws during the 19th century. This book tells the fascinating story. Spoiler alert: it’s a family affair.” - Stefan Vogenauer, Max Planck Institute for Legal History and Legal Theory 

On the author:

Julie Rocheton, Ph.D. (2021), Universitat de València, Master in Legal History (2013), Université Pantheon-Assas, is a postdoctoral researcher at the Max Planck Institute for Legal History and Legal Theory in Frankfurt am Main, Germany.

Roundtable abstract:

Le jeudi 28 mars, de 15h à 17h, dans les locaux du laboratoire DANTE, se tiendra une table ronde consacrée à la codification aux États-Unis. À cette occasion, Mme Julie Rocheton, docteur en histoire du droit, présentera son ouvrage tout juste publié, tiré de sa thèse de doctorat : The Genesis of Nineteenth-Century Codes in the United States (publié chez Brill).

Roundtable participants:

Aniceto Masferrer (Universtitat de València); Claire Bouglé-Le Roux (Université Paris-Saclay (Versailles))

Roundtable address:

Laboratoire DANTE 2nd Floor Faculté de droit de Versailles - UVSQ (Paris Saclay) 3 rue de la Division Leclerc 78280 GUYANCOURT FRANCE

For the book see here: DOI  10.1163/9789004689978.

ADVANCE ARTICLE: Eric J. SCARFFE, "Justice Kennedy’s Jurisprudence of Dignity: From Sovereign Immunity to Gay Rights" (American Journal of Legal History)

 

(image source: OUP)

Abstract:

Although this article uses Obergefell v Hodges (2015) as its frame, it aims to bring out some distinctive features of Justice Kennedy’s jurisprudence of dignity more broadly. There are two reasons why such an investigation is important. The first is important to those interested in the legal case. Indeed, in Dobbs v Jackson Women’s Health (2022), the Court now argues that the relevant ‘test’ for determining whether a right is protected under the Due Process Clause is whether the right is found to be ‘deeply rooted’ in the nation’s history and tradition. This article aims to critique this decision, as well as originalist approaches to constitutional interpretation more broadly, and seeks to resurrect and reconstruct Kennedy’s jurisprudence of dignity that has undergirded (sometimes quietly) the expansion of civil rights protections to the LGBTQ+ community. The second reason this investigation is important is of interest to philosophers and legal historians. Dignity is a notoriously elusive concept, and much ink has been spilt trying to sort out the precise nature of its content and its boundaries. This article brings together the many (seemingly disparate) uses of dignity found across cases involving gay rights, abortion, and foreign sovereign immunity, and argues Kennedy effectively weaves these uses together in ways that may sharpen our understanding of dignity in both the philosophical and legal literatures.

Read the article here: DOI 10.1093/ajlh/njad026.

BOOK: Kunal PARKER, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge: Cambridge University Press, 2023), 346 pp, ISBN 9781009335225, £79.99

 

(image courtesy: Cambridge University Press)

Book description: 

In The Turn to Process, Kunal M. Parker explores the massive reorientation of American legal, political, and economic thinking between 1870 and 1970. Over this period, American conceptions of law, democracy, and markets went from being oriented around truths, ends, and foundations to being oriented around methods, processes, and techniques. No longer viewed as founded in justice and morality, law became a way of doing things centered around legal procedure. Shedding its foundations in the 'people,' democracy became a technique of governance consisting of an endless process of interacting groups. Liberating themselves from the truths of labor, markets and market actors became intellectual and political techniques without necessary grounding in the reality of human behavior. Contrasting nineteenth and twentieth century legal, political, and economic thought, this book situates this transformation in the philosophical crisis of modernism and the rise of the administrative state.

Table of contents: 

Introduction
Part I. Truths (and Methods): American legal, political, and economic thought before 1870
Part II. The Turn to Process, 1870 – 1970: Three Essays: A. Law: becoming procedure
B. Political science: the group as process
C. Economics: man and market as technique
Part III. Conclusion: History, method, fracture

About the author: 

Kunal M. Parker is a Professor of Law and Dean's Distinguished Scholar at the University of Miami. He is the author of Common Law, History, and Democracy in America, 1700–1900: Legal Thought Before Modernism (2011) and Making Foreigners: Immigration and Citizenship Law in America, 1600–2000 (2015).

More information can be found here. 

VACANCY: Henry A. Kissinger Postdoctoral Fellowship, Yale University (DEADLINE: 18 December 2023)

(Source: Yale University)

International Security Studies at Yale University has a vacancy for a postdoctoral fellowship.

International Security Studies (ISS) welcomes applications for the Henry A. Kissinger Visiting Scholars Postdoctoral Fellowship funded by the Johnson Center for the Study of American Diplomacy. We seek to attract outstanding junior scholars from around the globe whose research is focused on the role of the United States in global affairs from World War II to the present, including the conduct of U.S. statecraft, diplomacy, and grand strategy. Kissinger Visiting Scholars fellowships will be awarded to candidates with outstanding proposals that require access to the Henry A. Kissinger Papers or other archival holdings related to American diplomacy at Yale (http://web.library.yale.edu/digital-collections/kissinger-collection; http://guides.library.yale.edu/american-diplomacy-primary-sources).

Fellowships are awarded for one-year and are renewable for one additional year. The PhD degree must be completed to begin the fellowship. Recipients are expected to use their time at Yale to conduct original research and prepare manuscripts for publication. Kissinger Visiting Scholars will also work with an active academic community of predoctoral fellows, postdoctoral fellows, and visiting scholars, as well as Yale faculty in history, political science, and other disciplines.

Fellows are required to remain in residence through the duration of their fellowship. International Security Studies provides office space and resources. Postdocs are expected to participate in the academic life and public activities of the Brady-Johnson Program in Grand Strategy, International Security Studies, and the Jackson School of Global Affairs. This includes regularly attending ISS’s weekly colloquium and sharing one’s research within this forum. Kissinger postdocs may teach small seminars if desired on subjects relevant to U.S. statecraft, diplomatic history, international affairs, or grand strategy.

The Johnson Center for the Study of American Diplomacy was founded upon the 2011 donation of Dr. Henry Kissinger’s papers to Yale related to his pre-government, government, and post-government careers (http://news.yale.edu/2011/06/14/yale-receive-kissinger-papers-and-establish-johnson-center-study-american-diplomacy). A program of the Jackson School of Global Affairs, in conjunction with International Security Studies and the Brady-Johnson Program in Grand Strategy, the Center brings academics and practitioners to Yale as Kissinger Visiting Scholars and Kissinger Senior Fellows, as well as hosts an annual conference a range of other activities relating to international affairs.

Salary: $65,000 plus $5,000 for research expenses

Qualifications: Recent Ph.D. in relevant field. Ph.D. must be in hand by September 1, 2024.

The deadline for applications is December 18, 2023. Applications are due through Interfolio:              apply.interfolio.com/133967          

A complete application includes:

c.v.

1000-word research proposal, to include an explanation of how access to the Kissinger Papers or other archival holdings related to diplomatic history at Yale would help achieve the goals of your project.

Writing sample, e.g. a dissertation chapter or journal article

Three academic references (no letters of recommendation required)

Yale University is an Affirmative Action/Equal Opportunity employer. Yale values diversity among its students, staff, and faculty and strongly welcomes applications from women, persons with disabilities, protected veterans, and underrepresented minorities.

(Source: AHA) 

BOOK: Christian G. FRITZ, Monitoring American Federalism. The History of State Legislative Resistance [Studies in Legal History, ed. Lisa FORD, Thomas MCSWEENEY, Reuel SCHILLER & Taisu ZHANG] (Cambridge: CUP, 2023), ISBN 9781009325578, 39,99 USD

 

(image source: CUP)

Abstract:

Monitoring American Federalism examines some of the nation's most significant controversies in which state legislatures have attempted to be active partners in the process of constitutional decision-making. Christian G. Fritz looks at interposition, which is the practice of states opposing federal government decisions that were deemed unconstitutional. Interposition became a much-used constitutional tool to monitor the federal government and organize resistance, beginning with the Constitution's ratification and continuing through the present affecting issues including gun control, immigration and health care. Though the use of interposition was largely abandoned because of its association with nullification and the Civil War, recent interest reminds us that the federal government cannot run roughshod over states, and that states lack any legitimate power to nullify federal laws. Insightful and comprehensive, this appraisal of interposition breaks new ground in American political and constitutional history, and can help us preserve our constitutional system and democracy.

 On the author:

Christian G. Fritz is Emeritus Professor of Law at the University of New Mexico School of Law. He is the author of American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (2008).

Table of contents;:

Introduction 1. The riddle of federalism and the genesis of interposition 2. Early state use of interposition: testing the powers of the new national government 3. State interposition and debates over the meaning of the Constitution 4. The Virginia and Kentucky Resolutions and Madison's report of 1800 5. State interposition during the Jefferson and Madison presidencies 6. State challenges to the Supreme Court's control over constitutional interpretation 7. The transformation of interposition: the theory of nullification emerges 8. State interposition and nullification on the path to secession 9. State interposition during and after the Civil War 10. Modern interposition by states and 'nullification' Epilogue. 

(Source: Law & Humanities Blog) 

Read more on the CUP site.

BOOK: Robert P. MERGES, American Patent Law: A Business and Economic History (Cambridge: Cambridge University Press, 2023), 450pp., ISBN 9781009123419, £105

 

(image courtesy: Cambridge University Press)

Book description: 

Students and established scholars of intellectual property law often look for historical context when trying to understand the development and present-day contours of IP rules and systems. American Patent Law supplies this context, offering readers a comprehensive account of the evolution of the US patent system and patent doctrine beginning in 1790. From the technologies for harvesting wood and shoemaking in the earliest periods to computer software and biotechnology of the present, each chapter of the book covers the characteristic technologies of each historical era. The book also describes how businesspeople in each era acquired and enforced patents and used patents as the foundation of various business arrangements. This book is a landmark in the history of technologies, the US patent system, and the way private actors have deployed patents across American history.

Table of contents: 

1. Introduction: Overview and themes
2. Founding era patent law, 1790-1820
3. The Jacksonian era and early industrialization, 1820-1880
4. Corporatization, 1880-1920
5. 1921-1982: Patents in and out of the headlines
6. The federal circuit era
7. In conclusion: The private (law) life of patents.

About the author: 

Robert Merges is a professor of law at Berkeley Law (University of California), where he co-directs the Berkeley Center for Law & Technology. He has been writing about patents and patent law for over thirty years.

More information can be found here. 

BOOK: Stefano MALPASSI. LA «DEMOCRAZIA ECONOMICA» AMERICANA Alla ricerca di un ordine giuridico del mercato, tra cultura individualistica e tentazioni corporativistiche (1919-1939). (Milano, Giuffrè, 2023). ISBN 9788828850229. 49,40€

 

(Source: https://shop.giuffre.it/024218850-la-democrazia-economica-americana)

Nel Novecento il rapporto tra diritto ed economia ha condizionato grandemente l’evoluzione del pensiero giuridico americano, a partire da quelle teorizzazioni dell’ordine del mercato che nel ventennio fra le due guerre mondiali si fondavano sempre più spesso sul ripensamento, o persino sul rifiuto, dell’individualismo. Le soluzioni istituzionali create per far fronte all’emergenza bellica, prima, e per rispondere alla Grande depressione, poi, facevano emergere un protagonismo nuovo dello Stato ma anche dei gruppi sociali, che ha condizionato la disciplina della concorrenza e del credito imponendo, infine, una trasformazione dell’ordine giuridico-costituzionale. Un processo che s’inseriva in un contesto culturale popolato sempre più da teorizzazioni ultra-individualistiche e nel quale il corporativismo appariva una riflessione capace di conciliare, invece, iniziativa privata e regolazione pubblica, alimentando così l’interesse per il modello fascista, pur lontano dalla tradizione (giuspolitica) e dal contesto (geografico e nazionale) americano. Corporativismo e New Deal possono essere riletti, allora, anche alla luce di questi studi incrociati, i quali, al di là del successo o dell’insuccesso delle diverse soluzioni immaginate, hanno favorito un ripensamento del rapporto diritto-economia capace di condizionare i contorni della nuova «democrazia economica» americana.

BOOK: Christian G. FRITZ, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge: Cambridge University Press, 2023), 410 pp., ISBN 9781009325578, £29.99

 

(image credit: Cambridge University Press)

Book description: 

Monitoring American Federalism examines some of the nation's most significant controversies in which state legislatures have attempted to be active partners in the process of constitutional decision-making. Christian G. Fritz looks at interposition, which is the practice of states opposing federal government decisions that were deemed unconstitutional. Interposition became a much-used constitutional tool to monitor the federal government and organize resistance, beginning with the Constitution's ratification and continuing through the present affecting issues including gun control, immigration and health care. Though the use of interposition was largely abandoned because of its association with nullification and the Civil War, recent interest reminds us that the federal government cannot run roughshod over states, and that states lack any legitimate power to nullify federal laws. Insightful and comprehensive, this appraisal of interposition breaks new ground in American political and constitutional history, and can help us preserve our constitutional system and democracy.

Table of contents: 

Introduction
1. The riddle of federalism and the genesis of interposition
2. Early state use of interposition: testing the powers of the new national government
3. State interposition and debates over the meaning of the Constitution
4. The Virginia and Kentucky Resolutions and Madison's report of 1800
5. State interposition during the Jefferson and Madison presidencies
6. State challenges to the Supreme Court's control over constitutional interpretation
7. The transformation of interposition: the theory of nullification emerges
8. State interposition and nullification on the path to secession
9. State interposition during and after the Civil War
10. Modern interposition by states and 'nullification'
Epilogue.

About the author: 

Christian G. Fritz is Emeritus Professor of Law at the University of New Mexico School of Law. He is the author of American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (2008).

More information can be found here.