legal history

• 
• 3/26/2023
  

  The History of State Interposition Shows Federalism is a Deliberative Process, not a Set of Rules

  by Christian G. Fritz

  The efforts of state legislatures to oppose federal law have been varied. In sum, they show that the Supreme Court cannot dictate the distribution of power under federalism; Americans will have to keep figuring it out as we go, through political deliberation.

• 
• SOURCE: Slate
  3/14/2023
  

  Texas's Abortion Ban Can Never be Made Humane

  by Mary Ziegler

  When abortion access depends on establishing that a pregnant woman deserves an exception to a ban, the law will inevitably prevent doctors from serving patients with problem pregnancies. 

• 
• SOURCE: New York Times
  3/16/2023
  

  Citing Slavery-Era Property Law, VA Judge Rules Embryos are Property

  A bioethicist argued that the judge could have resolved a property dispute without reference to chattel slavery, and that invoking the statue was offensive. 

• 
• SOURCE: Slate
  2/15/2023
  

  We Don't Need to Pretend Clarence Thomas Can Read the Founders' Minds

  by Heidi Li Feldman and Dahlia Lithwick

  The approach to "original intent" laid out in recent gun control rulings imagines the founders as capable only of the most cramped and limited understanding of the function of law in a society, argue a legal scholar and veteran court reporter. 

• 
• SOURCE: Yale Law School
  1/23/2023
  

  Legal Historian Reva Siegel on Dobbs

  Legal historians have argued that the equal protection provisions of the 14th Amendment offer a more solid rationale for reproductive rights than the now-defunct right to privacy, though the court's majority has expressed skepticism while not directly ruling on the question. 

• 
• SOURCE: Made By History at the Washington Post
  10/29/2022
  

  A Warning from Weimar: The Danger of Courts Hostile to Democracy

  by Samuel Huneke

  Far from being guardrails for democracy, Weimar courts were implacably hostile to it, and paved the way for its overthrow by leniency toward right-wing political violence. 

• 
• SOURCE: Boston Review
  10/25/2022
  

  When Abortion is Criminalized, Can Juries Nullify the Law?

  by Sonali Chakravarti

  Inevitably, a health care provider will be prosecuted under one of the post-Dobbs abortion laws passed by the states. When this happens, will juries be informed by their predecessors who refused to convict defendants charged under the Fugitive Slave Act? 

• 
• 10/23/2022
  

  Originalism is Doomed to Failure. Will it Destroy Democracy First?

  by Richard Striner

  Textualism as a theory of judicial interpretation arose as a semantic game among academics, but has been put to brutal use by the Federalist Society to undermine the democracy that most 21st century Americans enjoy. 

• 
• SOURCE: Black Perspectives
  10/13/2022
  

  How Pauli Murray Masterminded Brown v. Board of Education

  by Tejai Beulah Howard

  Overcoming marginalization by male classmates, Pauli Murray made a bet with a professor that segregation could be challenged by arguing that separate was inherently unequal. Murray collected on the bet only after the 1954 ruling validated the argument, but was long denied credit. 

• 
• 9/25/2022
  

  Does Marital Status Discrimination Hold the Key to Protecting Sexual Freedoms from SCOTUS?

  by Marc Stein

  As concern rises that the court might revoke the rights to same-sex marriage and contraception while reinstating the criminalization of gay sex, advocates for reproductive and sexual freedom need to consider how to make the equal protection argument that rights individuals enjoy in marriage can't be denied to individuals outside of them. 

• 
• SOURCE: Democracy
  9/15/2022
  

  Economics is Power, not Math: Why the Dems Should Attack Monopoly

  by Barry C. Lynn

  Until the Reagan Revolution, American politics reflected the understanding that concentrated economic power was corrosive to democracy. Today, the Democrats need to revive that story as a political argument. 

• 
• SOURCE: The New Republic
  8/26/2022
  

  The New Wave of Court Activism Revives Interest in Felix Frankfurter, a Hands-Off Justice

  by John Fabian Witt

  Historian and legal scholar Brad Snyder's new biography shows Justice Frankfurter's concern for courts moving too far away from the decisions of elected legislators echoed in today's battles over abortion, guns and religion—by both sides. 

• 
• SOURCE: Michael Smith's Law Blog
  8/10/2022
  

  Choosing History—A Rejoinder to William Baude on The Use of History at SCOTUS

  by Michael Smith

  The problem with the historical arguments in this term's SCOTUS decisions is that the court isn't "using" history but "choosing" it—deciding whether or not historical examples map onto present beliefs about the legitimacy of rights or regulations. 

• 
• SOURCE: Washington Post
  8/8/2022
  

  Law Prof: If Recent SCOTUS Decisions Relied on Bad History, Opponents Need to Come Up with a Better Version

  William Baude of the University of Chicago argues that if historical arguments have been used selectively in recent cases, it opens the door for dissenting justices to propose more compelling narratives about the constitutional basis of rights. 

• 
• 8/7/2022
  

  Who's Afraid of Critical Race Theory?

  by Wallace Hettle

  An introduction to the core ideas of the Critical Race Theory movement and its founding thinkers suggests the right today isn't mad about ideas, but wants a new and scary-sounding term to justify their ongoing opposition to racial equality. 

• 
• SOURCE: Politico
  7/26/2022
  

  Law School Dean: Whose History is it at SCOTUS?

  by Allison Orr Larsen

  The Supreme Court's embrace of historical arguments for its decisions is dangerous, because motivated advocacy groups, not scholars, are the source of much of it. 

• 
• SOURCE: The Atlantic
  7/20/2022
  

  Originalism is Just Selective History

  by David H. Gans

  "This is a Court that insists it is following history and tradition where they lead, while cherry-picking the history it cares about to reach conservative results."

• 
• SOURCE: Politico
  6/26/2022
  

  On the Historical Dilettantes Practicing Originalism

  by Joshua Zeitz

  "The functional problem with originalism is that it requires a very, very firm grasp of history — a grasp that none of the nine justices, and certainly few of their 20-something law clerks, freshly minted from J.D. programs, possess."

• 
• SOURCE: Legal History Blog
  6/30/2022
  

  Legal Historians as Authority in West Virginia v. EPA

  This is a note identifying the legal history sources cited in both Elena Kagan's dissent and Neil Gorsuch's concurrence in the court's ruling limiting the power of the EPA to limit emissions. 

• 
• 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.