legal history 
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SOURCE: Boston Review
6/13/2022
Can Law be an Instrument of Black Liberation?
by Paul Gowder
As activists debate whether the law and courts are a dead end for the pursuit of justice, it's useful to recall Frederick Douglass's conception of the law as a basis for collective demands.
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SOURCE: The Atlantic
6/8/2022
The Supreme Court Isn't Supposed to be this Powerful
by Nikolas Bowie and Daphna Renan
"Judicial supremacy is an institutional arrangement brought to cultural ascendancy by white people who wanted to undo Reconstruction and the rise of organized labor that had followed."
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6/5/2022
Discarding Legal Precedent to Control Women's Reproductive Rights is Rooted in Colonial Slavery
by Clyde W. Ford
The colonial Virginia lawsuit of Elizabeth Key, who won freedom in 1656, pushed colonial authorities to reverse precedent to ensure that the law would be a tool for maintaining hierarchies of race, gender, and class, and Black women's bodies would be the battleground of those conflicts.
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6/5/2022
What Would Madison Think of Originalism? Depends When You Asked Him
by Don Fraser
James Madison moved away from a strict constructionist position based on public necessity and acceptance of legislation based in implied powers. Whatever one can say about the originalist legal theory behind the leaked Dobbs opinion, it's not Madisonian.
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SOURCE: Boston Review
5/23/2022
Make Progressive Politics Constitutional Again
by Joseph Fishkin and William E. Forbath
It is time to jettison the legal liberalism that holds constitutional interpretation separate from popular politics, or else the government's ability to legislate in the public interest will be destroyed.
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SOURCE: National Geographic
5/17/2022
The Complicated History of Abortion and Abortion Law in the United States
Many scholars, including Carla Spivack and Lauren MacIvor Thompson have challenged Samuel Alito's historical research and argue that for much of American history abortion was neither outlawed nor particularly controversial.
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SOURCE: Made By History at the Washington Post
5/3/2022
The Reconstruction Amendments and the Basis of American Abortion Rights
by Peggy Cooper Davis
When the 13th, 14th and 15th Amendments were debated, concerns about the protection of both public rights of citizenship and private, intimate rights of individuals were front and center. There is, notwithstanding Samuel Alito's opinion, a long tradition of constitutional respect for privacy.
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SOURCE: Politico
3/22/2022
12 Questions that Would Actually Help Us Learn Something about Ketanji Brown Jackson
Legal historians, law professors, and other scholars propose productive questions Senators could ask Biden's Supreme Court nominee, if they cared to stop grandstanding and speechifying.
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SOURCE: The Atlantic
2/8/2022
Law Profs: How Progressives Can Take Back the Constitution
by Joseph Fishkin and William E. Forbath
Like in the New Deal era, courts are thwarting the will of many Americans and the other branches of government to protect oligarchy. Today's progressives need to remember how their forebears fought back by contrasting concentrated wealth to the guarantee of a "republican form of government" the constituiton offers.
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SOURCE: Jacobin
2/1/2022
How the Left Lost the Constitution
by Benjamin Morse
Law professors Joseph Fiskin and William Forbath revisit the Reconstruction Amendments to argue that they represent a fusion of a "democracy-of-opportunity" tradition in the law that embraces an affirmative government duty to redistribute wealth.
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SOURCE: Washington Post
1/14/2022
Fighting Racial Bias with an Unlikely Weapon: Footnotes
Slavery lives on in the law in the form of precedent. A new legal history movement seeks to highlight cases where disputes involved enslaved people and reconsider whether they constitute a fair basis for legal decisions today.
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1/16/2022
New York State's Lessons on Preventing a Crisis of Judicial Legitimacy
by Bruce W. Dearstyne
Forceful activism amid rapid social change results in legislation shot down by the most powerful court, leading to calls for sweeping court reform. This was New York State in the early 20th century. How the State Court of Appeals weathered this storm holds lessons for SCOTUS today, if the Justices and their critics care to learn from history.
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SOURCE: The Atlantic
12/1/2021
Wednesday's Arguments Signal the End of Roe
by Mary Ziegler
"Today’s oral argument signaled that the Court is poised to reverse Roe outright when it decides Dobbs, probably sometime in June or early July," says a leading legal historian of abortion rights.
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SOURCE: The Atlantic
11/16/2021
The Elephant Who Could Be a Person
by Jill Lepore
A petition challenging the keeping of Happy, an Asian Elephant, by the Bronx Zoo raises questions about the legal status of personhood. If it applies to protect the property and civil rights of corporations, can it be extended for the protection of the natural world?
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SOURCE: Made By History at the Washington Post
11/3/2021
An Anti-Democratic Court Is Nothing New
by David A. Love
"For most of its existence, the court has not been a moderate, apolitical body, but rather has oppressed marginalized groups and protected White male landowners, the group long considered ideal political citizens."
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SOURCE: Made By History at the Washington Post
11/3/2021
If the Justices Really Value "Originalism," They Can Only Vote One Way in Guns Case
by Saul Cornell
"If the justices professing to believe in originalism are sincere about their method, this case offers the rare opportunity to prove that originalism is not always a prescription for results-oriented judging that follows a conservative political agenda."
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10/24/2021
Four Myths of Presidential Power
by Daniel Farber
History looms large in arguments about the Constitution these days. But there are widespread misunderstandings of what history tells us about presidential powers, from making war to being impeached.
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SOURCE: The Atlantic
10/14/2021
The Sleeper SCOTUS Case that Threatens Church-State Separation
by Kimberly Wehle
"If the plaintiffs win, states and municipalities could be required to use taxpayer dollars to supplement strands of private religious education that many Americans would find deeply offensive, including schools that exclude non-Christian or LGBTQ students, families, and teachers."
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SOURCE: New York Times
9/10/2021
How the Texas Abortion Law Creates Citizen Bounty Hunters
Legal historian and reproductive rights scholar Mary Ziegler: “It almost seemed like anyone could sue anyone — and that didn’t seem right. But it was. It really is that extraordinary.”
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SOURCE: Bookforum
9/12/2021
Vice, Vice, Baby: Anna Lvovsky's History of Policing Sex
The “shifting public understandings of homosexuality in the twentieth century,” the legal historian Anna Lvovsky argues, “cannot be fully understood without a history of policing.”
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