Christian Culture and Society in Later Catholic England

Christian Culture and Society in Later Catholic England: Studies in Memory of F. Donald Logan, edited by Travis Baker, has been published in Brill’s series,  Later Medieval Europe.  Contributors include the legal historians Paul Brand, Charles Donahue, and Richard Helmholz:

This book in memory of F. Donald Logan explores different aspects of Christian culture and society in England from the twelfth to the sixteenth century. Although this period has traditionally been interpreted in terms of decline and decay, this excessively gloomy picture has slowly given way over the last eighty years or so to a more positive view of Christian civilization during these centuries. The twenty-two studies brought together here seek to build on this ongoing reassessment of Later Catholic England, especially in those areas in which Professor Logan himself had done so much to deepen our understanding of Christian English society.

 --Dan Ernst

Baker to Lecture on "The Royal Prerogative and the Judges"

[We have the following announcement.  DRE.]

The Lord Judge Memorial Lecture in Legal History, Wednesday 20th of November 2024, 17:45, Middle Temple Hall. Hosted by the Middle Temple Historical Society.  

Prof. Sir John Baker KC (Hon), LLD, FBA, Emeritus Downing Professor of the Laws of England at the University of Cambridge will deliver the inaugural Lord Judge Memorial Lecture in Legal History, entitled “The Royal Prerogative and the Judges” in Middle Temple Hall on Wednesday 20 November.

Prof. Baker will consider the relationship between the judges and the royal prerogative from a historical perspective, exploding some myths. It has always been for the judges to decide which of the king’s prerogative powers can be reviewed by the courts and which cannot, but it took some time to find effective means of control. The principal issues in the early-modern period were (1) locking people up without reasons, (2) setting up new tribunals outside the common law, (3) creating new forms of taxation, and (4) legislating by proclamation without Parliament. The procedures which eventually put an end to such powers, notably habeas corpus, were developed (notably by Middle Templars) in the reign of Elizabeth I.

The legal issues addressed at that time may be compared with those resulting from our ‘elective dictatorship’, Parliament having become an instrument whereby a modern Government can exercise more absolute power than that formerly attributed to the King’s prerogative.

This event is taking place in Middle Temple Hall and will be streamed live. This page is for tickets to attend in person.  To book a virtual ticket to attend online, click here.   We will not be able to admit anyone into the Hall with a virtual ticket.

Student members (including transferring lawyers) must attend the lecture and reception in order to be awarded the Qualifying Session.

Please note that there are certain rules and customs that members and guests are expected to observe when attending formal dinners at the Inn. [Dress in Business Attire (with Gowns for all Members of the Inn).  More on attire information here.]

Smith and Vine, "Material and Digital Archives: The Case of Wills"

Transactions of the Royal Historical Society is providing open access to the newly published article "Material and Digital Archives: The Case of Wills," by Harry Smith (King's College London) and Emily Vine (University of Birmingham). The abstract:

The range of digital sources available to historians has expanded at an enormous rate over the last fifty years; this has enabled all kinds of innovative scholarship to flourish. However, this process has also shaped recent historical work in ways that have not been fully discussed or documented. This article considers how we might reconcile the digitisation of archival sources with their materiality, with a particular focus on the probate records of the Prerogative Court of Canterbury (PCC). The article first considers the variety of digital sources available to historians of the United Kingdom, highlighting the particular influence of genealogical companies in shaping what material is available, how it has been digitised and how those sources are accessed. Secondly, we examine the PCC wills’ digitisation, what was gained and what was lost in that process, notably important material aspects of the wills. This article does not seek to champion archival research in opposition to digitally based scholarship; instead, we remind historians of the many ways in which the creation of sources shape their potential use, and call on historians to push for improvements in the United Kingdom’s digital infrastructure to avoid these problems in future.

Read on here.

-- Karen Tani

ASLH Surrency Prize to Esther Sahle

Continuing our round-up of the prizes and award announced at the recent meeting of the American Society for Legal History, we turn now to the Surrency Prize. About the prize:

The Surrency Prize is awarded annually for the best article published in the Society’s journal, the Law and History Review, in the previous year. The prize is named in honor of Erwin C. Surrency, a founding member and first president of the Society and for many years the editor of its former publication, the American Journal of Legal History.

This year's award went to Esther Sahle (Freie Universität Berlin), for “Legal Pluralism, Arbitration, and State Formation: The Rise and Fall of Philadelphia’s Quaker Court, 1682–1772,” Law and History Review 41:4 (2023): 653-681. The citation:

Esther Sahle’s “Legal Pluralism, Arbitration, and State Formation: The Rise and Fall of Philadelphia’s Quaker Court, 1682–1772” combines an ingenious reading of archival records, an elegant analytical framework and a lucid, layered narrative. The result is an article of far-reaching insight. Examining the 284 disputes arbitrated over ninety years at Philadelphia’s monthly Quaker meetings, Sahle traces how—in procedure, subject matter and enforcement—the Quakers’ dispute resolution system functioned as a forum typical of contemporary Atlantic legal fori. This new understanding leads to others. Readers learn that the Quaker arbitration system, rather than a static practice explained by religious commitments, evolved in relation to the reliability of Pennsylvania’s public courts. Friends used their forum to enforce contracts, a community legal process that delivered commercial advantages amid political turbulence and state incapacity. Readers also learn how and why this community forum declined as official courts became more dependable, financial relationships with non-Quakers grew and the practicability of information-based enforcement declined. Friends increasingly took their business to the colonial state, strengthening it in the process. This story offers a novel view of the dynamics of legal pluralism, state-building, and economic change—notably, one arising not from official sources but rather from the activities of colonizing subjects in British North America. In its methods and analysis, Sahle’s article offers important lessons for legal historians working across geographies, empires and eras.

Congratulations to Professor Sahle!

-- Karen Tani

Kreis on Regulating Reproduction in Redeemer Georgia

Anthony Michael Kreis, Georgia State University College of Law, has posted Sex and Control in Redeemer Georgia, which is forthcoming in the Georgia State University Law Review:

This essay explores the interplay of history, law, and morality behind the first abortion law in Georgia. Examining the philosophical underpinnings of liberty and equality as articulated in Georgia's constitutional history through time, the essay highlights the moral contradictions inherent in the legal frameworks of Reconstruction Georgia. The origin of Georgia's 1876 abortion law contains multitudes-rooted in race-based contestations for political power, the sociological evolution of medical practice, and evolving attitudes on individual rights. At times, white elites used abortion to attack Yankee culture and stir up racist fears about moral contagion associated with Radical Republicans. To this end, when read against political time, the campaign to regulate motherhood and criminalize reproductive choice was not simply grounded in morality claims about protecting fetal life-a significant theme in the mid-nineteenth century campaign against abortion nationally-but also about enforcing other race and sex crimes and controlling the freedperson labor force in an era of political uncertainty and constitutional upheaval. Abortion surfaced as a political issue in Georgia at a time and in a manner that makes it inextricably linked to the politics of Reconstruction and Redemption.

--Dan Ernst

ASLH Sutherland Prize to Jonathan Connolly

Continuing our round-up of the awards and prizes announced at the 2024 meeting of the American Society for Legal History, we turn now to the Sutherland Prize. About the prize:

[N]amed in honor of the late Donald W. Sutherland, a distinguished historian of the law of medieval England and a mentor of many students, is awarded annually, on the recommendation of the Sutherland Prize Committee, to the person or persons who wrote the best article on the legal history of Britain and/or the British Empire published in the previous year.

This year's winner was Jonathan Connolly (Princeton University), for “Reading Morant Bay: Protest, Inquiry and Colonial Rule,” Law and History Review 41 (2023): 193-216. The citation:

Jonathan Connolly’s insightful, tightly-argued and compelling essay uncovers a new and deeper understanding of the 1865 Morant Bay Rebellion. This uprising in post-emancipation Jamaica, and its violent suppression, have been widely interpreted as a “transformative crisis of empire” that simultaneously consolidated racist attitudes among imperial Britons and engendered seminal British debates about justice, sovereignty and the rule of law. By focusing on legal process, and debates over adherence to process, Connolly shows how law produced meaning in the aftermath of the rebellion. He traces the ways in which a royal commission of inquiry, swiftly assembled to investigate events in Jamaica, adopted a legalistic focus on the “proximate cause” of rebellion. This lawyerly focus, combined with the racialized bias that led commissioners to discount testimony provided by black Jamaicans, enabled them to narrowly limit the events to be investigated. While protesters in Jamaica had engaged in widespread and systematic critique of colonial misgovernment, Connolly argues, commissioners successfully reframed that scandal of misrule so that it was understood to be a scandal about the violent use of martial law by Jamaican Governor Edward John Eyre. This “process of discursive transformation” was completed in the subsequent prosecutions, and debates over those prosecutions, that made up the “Governor Eyre controversy.”

Congratulations to Professor Connolly!

-- Karen Tani

UVA's JD/MA History Program

Jason Vanger, a UVA law student, has published a full report in the Virginia Law Weekly of a recent information session on Virginia Law's longstanding joint J.D.-M.A. Program in Legal History.  The session was conducted by UVA professor Charles Barzun, who was himself an alumnus of the program.  Here is a taste:

The program is unique among joint degree programs at Virginia Law and elsewhere in that it imposes no additional time or financial burden on law students. Students earn both degrees in the same three years that it would take to earn a J.D., and students pay the same amount in tuition that they would pay for law school alone. The program accomplishes this by counting a number of classes toward both degrees, including required 1L courses like Torts or Constitutional Law, which have substantial historical content in the form of case law. On top of the regular course load for law students, participants will generally take one additional course in the history department for each semester of their 2L and 3L years.

--Dan Ernst

ASLH William Nelson Cromwell Article Prize to Katie A. Moore

We are continuing our recap of the prizes awarded at the recent meeting of the American Society for Legal History. This post is dedicated to the William Nelson Cromwell Article Prize ("awarded annually to the best article in American legal history published in the preceding calendar year by an early career scholar"). The 2024 winner is Katie A. Moore (UC Santa Barbara), for “To Counterfeit Is Death? Money, Print, and Punishment in the Early American Public Sphere,” Early American Studies 2 (2023): 233-271. The citation:

This article investigates how paper currency became a powerful site of meaning-making in seventeenth and early eighteenth-century America. Exploring the establishment of counterfeiting as a crime, it contends that colonial governments used these laws to legitimate paper money and produce state power. Moore’s study develops an innovative legal history of paper currency that several Advisory Committee members described as brilliant. Advisory Committee members felt that Moore’s interdisciplinary methods and careful attention to the materiality and social meanings of both specie and notes enrich legal history. The article not only deftly explores the legal regimes surrounding print money and counterfeiting, but also pushes readers to expand their understandings of what law is and how it operates through material artefacts and within a range of social milieus to produce state power. 

Congratulations to Professor Moore!

-- Karen Tani

Penn Symposium on History in Constitutional Interpretation

[We have the following announcement of the University of Pennsylvania Law Review’s symposium for Volume 173 The Uses (and Misuses) of History in Constitutional Interpretation. It will be held in-person and online on Friday, November 22, and Saturday, November 23.]

The Roberts Court has embarked on a constitutional revolution in many different areas of law, including reproductive rights, the Second Amendment, and the Religion Clauses. The Court’s conservative supermajority has repeatedly turned to history to justify and legitimate its decisions. Originalism is an important part of the Court’s language. It has recently adopted a new model of “text, history, and tradition” in important cases like Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, Dobbs v. Jackson Women’s Health Organization, New York State Rifle and Pistol Association v. Bruen, and Kennedy v. Bremerton School District.

Because history is a central source of justification for the Roberts Court’s revolution, it is crucial to understand how history is being used—and sometimes misused and even manipulated—in its decisions.

Debates about the relevance of history to constitutional interpretation occurred in the 1980s and 1990s as the conservative legal movement was gaining prominence. Thirty years later, that movement is ascendant and controls the U.S. Supreme Court. Yet at this very moment of success, the Court’s conservative majority is not consistent in how it uses history. It alternates between many different forms of originalism, including its new emphasis on traditionalism. And sometimes—as in cases like Citizens United v. FEC, Parents Involved in Community Schools v. Seattle School Dist. No. 1, or Janus v. American Federation of State, County, and Municipal Employees—it dispenses with originalism altogether.

The affirmative action case from last year’s Term, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, presents an especially interesting example of how the majority, concurrences, and dissents relied on history from differing ideological perspectives. Reconstruction history does not support a colorblindness rule, and the different opinions offer a window into the uses and misuses of historical memory. In fact, the Congress that drafted the Fourteenth Amendment engaged in race-conscious remedies to address discrimination. Moreover, in the Court’s previous affirmative action decisions, even Justices who adhered to originalism repeatedly refused to discuss the original meaning of the Fourteenth Amendment. With the decision in favor of SFFA, the Court further embedded a malleable doctrine of text, history, and tradition into its jurisprudence.

This symposium seeks to bring together diverse scholars to publish leading scholarship addressing the many open questions about the role of history in constitutional interpretation, organized around Yale Law Professor Jack Balkin’s forthcoming book, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press 2024).

[Register here.  Schedule and CLE credit information after the jump.

Weekend Roundup

• Congratulations to Professor William Chester Jordan upon his receipt of the Barry Prize for Distinguished Intellectual Achievement awarded by the American Academy of Sciences and Letters.  Princeton University's notice is here.  
  

• From In Custodia Legis: "A Short History of the First Native American Women Lawyers and Judges in the United States."

• Paul Lombardo, Georgia State University  College of Law, will lecture on “Carrie Buck on Trial: A Centennial Retrospective” at Washington and Lee University on Monday, Nov. 18 at 5:30 p.m. in Hillel 101.
  

• Eric Muller, a leading legal historian of the Japanese-American "internment," took students in his “Lawyers in Justice and Lawyers’ Injustice” seminar at the University of North Carolina School of Law to Heart Mountain, Wyoming, over fall break.  "Students spent their mornings analyzing government documents and court cases, while afternoons were dedicated to exploring the museum’s exhibits and original structures. In the restored barracks and historic root cellar, the reality of what government lawyers helped implement became tangible."  More.
  

• Johnny Rex Buckles, University of Houston Law Center, reviews Lawrence A. Zelenak and Ajay K. Mehrotra's edition of Stanley Surrey's memoirs in the Florida Tax Review.
  

• Robert L. Tsai revies Aziz Rana's Constitutional Bind in The New Rambler.

• 
  An update on digitization at the National Archives. Among the newly digitized records are those related to the killing of Hattie DeBardelaben, rescued from obscurity by the Civil Rights Cold Case Records Review Board. 
  

• Jake Kobrick, Associate Historian at the Federal Judicial Center, has posted another Spotlight on Judicial History: The Codification of Federal Statutes on the Judiciary.
  

• The recording of that National Constitution Center session on Native Americans and the Supreme Court, with by Keith Richotte Jr., and Matthew L.M. Fletcher, is here.
  

• ICYMI:  David E. Kyvig on Clarence Thomas's Constitution (HNN).
  

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

Thank You, Marie-Amélie George!

We here at Legal History Blog are grateful Marie-Amélie George for her guest posts last month inspired by her new book, Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition (Cambridge University Press 2024).  If you would like to revisit them, here they are:

Introducing Family Matters!

Legal History from the Ground Up

Writing a History of Progress During a Period of Retrenchment

Collecting Oral Histories

Using Oral Histories

The Pre-Publication Gauntlet

Stories on the Cutting Room Floor

Thank you, Professor George! 

CFP: Regulating the Global Movement of Care

 [We have the following CFP.  DRE]

W G Hart Workshop 2025: Regulating the Global Movement of Care.  Institute for Advanced Legal Studies, London.  11-12 June 2025

We invite abstracts (of 250-300 words) for the 2025 W G Hart Workshop focusing on the role of law in regulating the global movement of care. Given the historical and contemporary significance of the issue of the movement of carers, we welcome abstracts that explore the legal regulation of care (including comparative and international aspects) through the lens of a variety of disciplines: law, history, anthropology, politics, sociology, criminology, and creative arts.

The Workshop is organised around four themes - precarity, advocacy, protection, and kinship networks (see below) - reflecting the varied facets through which law's role in regulating the movement of care can be examined. Care is broadly defined and includes healthcare, social care, domestic care, as well as unpaid care. Legal requirements often create precarity by imposing stringent professional regulatory standards on migrant care workers or permitting the claw back of visa fees. Law may also be a tool in the hands of carers and individuals and organisations who support them to battle against exploitation. Legal regulation may, in some instance, offer protection to migrant care workers. Law, in particular immigration requirements, can also define relationships between migrant carers and their broader kinship networks both in their host countries and in the countries that they come from.

Abstracts should be emailed to adrienne.yong@city.ac.uk and p.saksena@leeds.ac.uk by 5pm on Monday, 6 January 2025. Please also include a brief biography of the speaker in the submission. Further details on the workshop themes are included below.

Academic Directors:

Dr Adrienne Yong (City St George's, University of London)
Dr Priyasha Saksena (University of Leeds)
Dr Amanda Spalding (University of Leeds)
Dr Amrita Limbu (University of Leeds)
Professor Marie-Andrée Jacob (University of Leeds)

More after the jump.

Desierto et al. on the Political Economy of Magna Carta

Desiree Desierto and Mark Koyama (George Mason University) and Jacob Hall (University of Pennsylvania) have posted Magna Carta:

King John Granting Magna Charta (NYPL)

Magna Carta, a pivotal moment in history, institutionalized constraints on royal power. We model it as an optimal agreement between two coalitions capable of violence: the king’s loyalists and the rebel barons. This agreement is more likely when the king extracts large rents; the distribution of rents among barons is egalitarian; and barons have large resources that are non-appropriable by the king. Under these conditions, even the baron that enjoys the largest rents would be willing to lead a rebel coalition that has sufficient resources to defeat the loyalists. We test predictions with data on the universe of barons in England between 1200-1270.

--Dan Ernst

Post in Conversation with Gordon on the Taft Court

William H. Taft (NYPL)

The Supreme Court Historical Society has just added an event in December: Robert Post in conversation with Robert W. Gordon, on Post’s The Taft Court: Making Law for a Divided Nation, 1921-1930, which is volume 10 of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. Robert Post is a Sterling Professor of Law at Yale Law School, where he served as dean from 2009 to 2017.  Robert W. Gordon, Professor of Law Emeritus at Stanford University, is a great American legal historian.  The event will take place on December 16, 2024 at Noon EST via Zoom.  Register here.

--Dan Ernst

Call for Applications: Constitutional Accountability Center Scholar-in-Residence program 2025-26

Via the Constitutional Accountability Center ("a nonprofit, public interest law firm and think tank dedicated to making real the progressive promise of our Constitution’s text, history, and values"), we have the following posting:

CAC invites applications for its 2025-2026 Scholar-in-Residence program. CAC’s Scholar-in-Residence will work independently on research and writing on a topic of mutual interest, for one year, while participating in the life of CAC’s ongoing work in litigation, joint scholarship, communications, and collaboration with progressive movement partners.  During this year, the Scholar-in-Residence may work remotely, but would also be expected to come to CAC’s office in Washington, DC on occasion throughout the residency. 

Constitutional scholarship is the foundation of CAC’s work. Our scholarship shows that across a broad range of key issues, the Constitution’s text and history command progressive results. CAC’s scholarly work provides the deep historical support that makes our legal arguments stand out, and builds a comprehensive narrative of the Constitution that is necessary to achieve lasting victories.

This scholar-in-residence program will provide the selected candidate an unprecedented opportunity to work on a project in an area that is congruent with the focus of CAC’s mission, including (but not limited to) Constitutional and Legal Studies, History, Political Science, African-American Studies, and the humanities more generally. Potential projects could focus on such subjects as lifting up often neglected voices in the constitutional story (for example, Black, Native American, and immigrant activists who helped shape the Constitution); the ways that structural reforms might better align our institutions toward democratic values and genuine inclusion; or the exploration of broader Constitutional understandings in advance of the upcoming 2026 commemoration of the 250^th anniversary of the United States, among others.

Responsibilities will include, but not be limited to, the following:

• Conduct research and scholarship in a field of inquiry that intersects with CAC’s mission;
• Produce written products that could include, but are not limited to, law review articles or other scholarly essays, and articles in popular media such as The New York Times and The Atlantic;
• Brief CAC staff on research progress, and help inform the direction of CAC’s existing scholarship;
• Give two public presentations at (in person or virtual) events to educate the public and organizational partners about research progress and findings.

The Scholar-in-Residence will work in collaboration with CAC’s Director of Human Rights, Civil Rights, and Citizenship, within the CAC Think Tank.  

More information is available here.

-- Karen Tani

ASLH William Nelson Cromwell Book Prize to Blaakman

The American Society for Legal History has announced the winners of its 2024 book prizes. This post is dedicated to the William Nelson Cromwell Book Prize. About this prize:

The William Nelson Cromwell Foundation Book Prize is awarded annually to the best book in the field of American legal history by an early career scholar. The prize is designed to recognize and promote new work in the field by graduate students, law students, post-doctoral fellows and faculty not yet tenured. 

This year's award went to Michael Blaakman (Princeton University) for Speculation Nation: Land Mania in the Revolutionary American Republic (University of Pennsylvania Press, 2023). The citation:

Michael Blaakman’s Speculation Nation makes a compelling case for placing land speculation at the very center of our understanding of the American project.  Blaakman demonstrates how the public domain was constructed – and how legislators actively created a secondary market for futures and speculative rights to land on the frontier.  These land grants, contingent though they were, often predated and essentially presaged the dispossession of Native Americans.  Lucid, deeply researched, and beautifully rendered, Speculation Nation shows, in exquisite detail, how this process unfolded in the aftermath of the American Revolution.

Congratulations to Professor Blaakman!

-- Karen Tani

ASLH John Phillip Reid Book Award to Penningroth

The American Society for Legal History has announced the winners of its 2024 book prizes. This post is dedicated to the John Phillip Reid Book Award. About the award:

The John Phillip Reid Book Award is awarded annually for the best monograph by a mid-career or senior scholar, published in English in any of the fields defined broadly as Anglo-American legal history. The prize is named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues. 

This year's award went to Dylan C. Penningroth (University of California, Berkeley) for Before the Movement: The Hidden History of Black Civil Rights (Livewright, 2023). The citation:

Grounded in extensive and painstaking research in local court records, Dylan Penningroth’s Before the Movement brings to life ordinary African Americans’ multiple interactions with law and the legal system in the century that preceded the Civil Rights Movement. In making visible African Americans’ legal tenacity and sophistication when it came to everyday disputes over property, contract, and church governance, Penningroth shows not only that African Americans used the law for purposes that cannot be reduced to their struggles against racial oppression, but also how such uses of the law laid the groundwork for those struggles. As such, Before the Movement profoundly reshapes our understanding of the history of American civil rights.

Congratulations to Professor Penningroth!

-- Karen Tani

Powell Imagines the "Harlan [II] Court"

Relatedly, H. Jefferson Powell has published The Harlan Court: A Constitutional Alternate History, in a symposium for Walter Dellinger in the North Carolina Law Review:

Walter Dellinger shared the widespread perception that the Burger Court was characterized by “rootless activism” rather than principled constitutional adjudication, and for him this put in question the legitimacy even of decisions that reached outcomes he thought politically or morally desirable. To explain what was wrong with such decisions, he often imagined the Court as it might have been if Justice John Marshall Harlan, who died in 1971, had lived another decade, and inspired an era of constitutional decisions deeply rooted in constitutional tradition and characterized by careful adherence to legal method. This Essay seeks to explain Dellinger’s idea and its relevance today. The “Harlan Court” of Dellinger’s imagination would have reached its decisions through opinions that generally built on the legacy of the Warren Court by the logical development of precedent, a refusal to practice the Burger Court’s frequent tactic of obliquely undermining or underenforcing decisions a majority disapproved, and a commitment to persuading the reader’s judgment rather than imposing judgments by rhetorical fiat. Dellinger thought the characteristics of the “Harlan Court” he imagined were equally valuable to correctly identifying the most common error he saw in early twenty-first century constitutional law: the belief or assertion that difficult constitutional issues can be resolved through some method of decision that avoids the exercise of judgment by the decision-maker.

--Dan Ernst

Hogan on Holmes, Frankfurter, and Both Harlans

Gerard Hogan, Judge of the Irish Supreme Court, has published Spring-Cleaning the American Legal Pantheon? Reputations Rivalled: Justices Harlan the First and Holmes & Justices Frankfurter and Harlan the Second, in the Loyola University Chicago Law Journal:

John Marshall Harlan II (wiki)

In the general common law world, few things are more contestable than what constitutes judicial greatness. Is it the capacity to anticipate developments in the law or to champion new ideas that, in time, will become accepted? Or is it the elegance of judicial style? Or is it a combination of some or all of these things? These are the subjects of endless jurisprudential debates. Yet no matter where you stand in this debate, one thing is clear: the U.S. Supreme Court has been fortunate in having had among its ranks some of the greatest judges which the common law world has ever produced. In this Article, I wish to explore the reputation of four great justices of that Court. While Oliver Wendell Holmes has his critics, his greatness can scarcely be denied. Yet I contend that that very aura which surrounds Holmes has somewhat obscured the real achievements of one of his erstwhile colleagues, John Marshall Harlan, who may be said to have outshone him in certain respects. So the first part of this Article seeks to compare and contrast Holmes and the first Harlan and to inquire why Holmes has won the prize of history, while Harlan's reputation nowadays rests almost exclusively on his famous dissent in Plessy v. Ferguson.

In the second part of this Article, I seek to compare and contrast the achievements of Felix Frankfurter with those of the other John Marshall Harlan, the grandson of the first Harlan. I contend that Frankfurter's inflexibility, dogmatism, and personal vanity prevented him from achieving his full judicial potential and that, in this respect, he has been outshone by the Harlan II, whose flexibility, modesty, and a nuanced understanding of the judicial role has distinguished him as one of the great Justices of the post-World War II era.

--Dan Ernst

Online Workshop on Environment, Law, and History

[We have the following announcement.  DRE.]

While environmental history and legal history are well-developed fields with dedicated forums for discussion new scholarship, those of us interested in the intersection of these two fields have to date had a harder time meeting up with scholars with similar interests. After successful sessions at last year's conference of the European Society for Environmental History and this past summer's meeting of the World Congress of Environmental History, we will finally be kicking off an ongoing online workshop, in which we will discuss pre-circulated drafts with the authors from around the world. We plan to meet on Zoom a few times a year, for about an hour each time.
 
Our first workshop session will take place 15 November 2024 at 8 am GMT. We will discuss with David Wilson of the Department of Humanities at the University of Strathclyde his paper, "Towards an Optimum Yield: Science, Technology, and Fisheries Development in Lake Malawi, 1930-1964". The following session, in January 2025, will feature Rebecca McLennan of the UC Berkeley History Department.
 
To receive a copy of David's paper and a Zoom link, or to ask to be put on the list for messages about future workshop sessions, please email one of us. 

Susan Bartie (susan.bartie[at]anu.edu.au)
David Schorr (dschorr[at]tauex.tau.ac.il)

ASLH Peter Gonville Stein Book Award to Yannakakis

The American Society for Legal History has announced the winners of its 2024 book prizes -- starting with the Peter Gonville Stein Book Award. About the award:

The Peter Gonville Stein Book Award is awarded annually for the best book in non-US legal history written in English. This award is designed to recognize and encourage the further growth of fine work in legal history that focuses on all regions outside the United States, as well as global and international history. 

This year's winner is Yanna Yannakakis (Emory University) for Since Time Immemorial: Native Custom and Law in Colonial Mexico (Duke, 2023). The citation:

Yanna Yannakakis’ Since Time Immemorial: Native Custom and Law in Colonial Mexico is a magistral work in global legal history.  Yannakakis offers an innovative account of how the concept and significance of custom developed through interactions among multiple legal cultures spread over two continents.  The book seamlessly shifts registers as it moves across vast expanses of time and space — from 12^th century Europe to 18^th century Mexico – and multiple levels of analysis.  The stunning scope of Yannakakis’ examination of law and legal theory is matched by her fascinating analysis of how Spanish colonizers and their colonial subjects navigated plural legal traditions to strategically define indigenous custom.  Drawing from a diverse array of European and indigenous primary documents, including a large collection of indigenous codices and legal petitions and disputes, Time Immemorial weaves together multiple sources of European and indigenous law with a rich microhistorical analysis of legal practice.  The result is a compelling story of how indigenous subjects of diverse social rank participated in the history of Atlantic legal culture.

Congratulations to Professor Yannakakis!

-- Karen Tani

McKinley on Self-Purchase in 17th-C Andalucia

Michelle A. McKinley, University of Oregon, has published  Financing Freedom: Self-Purchase and Reenslavement in Seventeenth-Century Andalucía in the William and Mary Quarterly, 3d ser., 81, no. 4 (October 2024): 651–86

This article explores cases in which slaveholders, enslaved and freed people, and courts battled over the customary interpretation of the rights of wage-earning slaves in seventeenth-century Andalucía. Throughout the Spanish Empire, enslaved people could purchase their freedom through the processes of cortación (later known as coartación) and ransom (rescate). People paid their purchase price in installments and eventually received freedom papers, which were notarized agreements that reflected the terms of both parties upon receipt of payment. However, freedom papers do not reveal what happened when contracting parties experienced changed circumstances, and many of the particularities of waged enslavement on the Iberian Peninsula and in the Spanish Empire have remained obscure to scholars. Wage-earning slaves inhabited an ambiguous legal space of conditional liberty with rights determined by custom or social practice rather than legislation. Legal cases can shed new light on how the conditions of waged enslavement and conditional liberty were understood and contested in historical moments of economic crisis in seventeenth-century Andalucía. By focusing on stressful moments of property confiscation and currency devaluation, we can see the meanings ascribed to conditional liberty and the attendant legal rights that people who inhabited this conditional status wielded or struggled to enforce in the absence of legislation or codified doctrine.

--Dan Ernst

CFP: Hugo and the Law

“Hugo and the Law,” 8 May 2025, Maastricht University Faculty of Law, Maastricht, The Netherlands

On the occasion of the 150th anniversary of the publication of the first volume of Actes et Paroles, the collection of Victor Hugo’s political speeches, the UM Law and Popular Culture Research Network organizes a Workshop on 8 May 2025 dedicated to the author’s conceptualization of several legal issues. The Workshop will take place at the Faculty of Law of Maastricht University (The Netherlands), with a fully in-person program.

Goal and Background of the Workshop.  In his several works, Victor Hugo has often delved into profound perspectives into the relationship between humanity and the law. Hugo was not merely a renowned novelist but a visionary thinker who engaged with multiple societal issues, including the intricacies of the legal system, the condition of women, the rise of socialism, and the future of Europe. On the 150th anniversary of the publication of Actes et Paroles – which perfectly captures such themes– this Workshop aims to examine Hugo’s conception of the law.

Hugo’s conception of the law is multifaceted, encompassing both its theoretical foundations and its practical implications. His writings often reflect a deep concern for the struggle for power and the ethical responsibilities of institutions. Through an examination of Hugo’s literary corpus, the Workshop will explore how his books’ characters grapple with the complexities of law and its impact on individuals and society. One key aspect of the Workshop is Hugo’s emphasis on the moral dimension of the law. His characters navigate questions of morality, duty, and conscience by their interactions with legal systems. At the same time, the Workshop will address Hugo’s critique of the legal machinery, shedding light on his observations regarding the potential for injustice and the abuse of power. Furthermore, this Workshop will investigate the historical context in which Hugo lived and wrote, considering the political and social upheavals that influenced his views on the law. From the aftermath of the French Revolution to the establishment of the Second French Republic, through the rise and fall of the Empire of Napoleon III, until the experience of the Commune, Hugo’s observations of the evolving legal landscape are integral to understanding his perspective on the nature of power, the State and the foundations of Europe, and the condition of women.

By examining the philosophical, historical, and theoretical underpinnings and practical implications of Hugo’s thoughts on law, the Workshop aims to illuminate the enduring relevance of his insights and their potential to inspire contemporary discussions on law and justice.

Abstract Submissions.  The “Hugo and the Law” Workshop will feature panel sessions. Submissions should relate to the overarching theme of the Workshop.

Submissions should indicate the title of the contribution, an abstract (max. 400 words), and the contact information and a short biography of the speaker (max. 150 words). Fully written papers are not required. We encourage submissions in English, and co-authored papers will be also considered.

Who Can Participate in this Workshop?  The “Hugo and the Law” Workshop is not restricted to lawyers. We welcome proposals that offer multi-disciplinary perspectives from various areas of law (including civil, criminal, tax, and labor law), as well as from scholars in e.g. the humanities and other social sciences (e.g. history, economics, political science, sociology) with an interest in the Workshop’s theme. We welcome submissions from senior and junior scholars (including doctoral students) and interested practitioners.

How and When to Submit?  Send your submission to agustin.parise@maastrichtuniversity.nl.  The Call for Papers closes on 22 December 2024. Shortly after that, the authors will be informed whether their papers are selected for a presentation during the Workshop.

Conference Organizing Committee.  Should you have any questions please do not hesitate to contact a member of the Workshop Organizing Committee:

Eline Couperus(e.couperus@maastrichtuniversity.nl)
Agustín Parise (agustin.parise@maastrichtuniversity.nl)
Franco Peirone (franco.peirone@maastrichtuniversity.nl)
Livia Solaro (l.solaro@maastrichtuniversity.nl)
Arthur Willemse (arthur.willemse@maastrichtuniversity.nl)

2025 Hurst Summer Institute

[We have the following announcement.  DRE.]

The 2025 Hurst Summer Institute in Legal History will take place June 15-27, 2025. The Institute will be chaired by John Fabian Witt, Allen H. Duffy Class of 1960 professor of law at Yale Law School, and Michelle McKinley, the Bernard B. Kliks professor of law at the University of Oregon School of Law.

Invitation.  The American Society for Legal History (ASLH) and the Institute for Legal Studies at the University of Wisconsin Law School are pleased to invite applications for the 13th biennial Hurst Summer Institute in Legal History. The two-week program features presentations by guest scholars, discussions of core readings in legal history and analysis of the work of the participants in the Institute. The Hurst Institute is not primarily intended to provide time to write or work on a research project, but instead to present your work and discuss the craft of writing legal history.

Application Process.  Applications for the Institute will be available Friday, Nov. 1, 2024, and accepted until Wednesday, Jan. 15, 2025. To apply, applicants must:

• Submit the following materials as a single PDF document:
• Cover Letter
• Curriculum Vitae
• Research Agenda (of no more than 2,500 words)
•  Arrange to have two letters of recommendation uploaded as a PDF file. Recommendations must be on institutional letterhead and signed. Letters that contextualize the applicant’s scholarship and highlight the contributions it makes within the relevant subfield are most helpful to the committee in evaluating candidates. Comments on the applicant’s collegiality and participation in seminars and other scholarly events are also helpful.

Please note that incomplete applications will not be accepted. Applicants will be notified of a decision no later than Monday, March 3, 2025.

Applicant Qualifications.  Scholars in law, history and other disciplines pursuing research on legal history of any part of the world and all time periods are eligible to apply. The seminar and written materials are conducted in English, and we cannot consider non-anglophone applications. Applicants with no formal training in legal history are encouraged to apply.

Traditionally, the selection committee has sought to create a cohort of fellows with varying degrees of familiarity with the field, and welcome applications from scholars at an early stage of their career (beginning faculty members, doctoral students who have completed or almost completed their dissertations and J.D. graduates). 

The ASLH Hurst Selection Committee will select 12 Fellows to participate in this event.  Application Deadline: Wednesday, January 15, 2025.  [Apply and submit recommendations here.]  Email hurst@law.wisc.edu with questions or concerns.

--Dan Ernst

Weekend Roundup

• 

  David S. Tanenhaus (UNLV)
  

  Heartfelt congratulations to David S. Tanenhaus on his receipt of the American Society for Legal History's Craig Joyce Medal, awarded to recognized extraordinary and sustained service to ASLH (UNLV Boyd School of Law).
  

• In Time Magazine's Made By History series: Ajay Mehrotra on The Tariff History Donald Trump Is Overlooking.
  

• Garrett Epps reviews Stuart Banner's The Most Powerful Court in the World, "a fresh and readable one-volume history of the Court [that] explains how we got from Marbury to Dobbs" (Washington Monthly).

• On Saturday, November 9, from 12:30pm to 1:30pm, Alison L. LaCroix will discuss The Interbellum Constitution as part of the Chicago Humanities Festival, at the Reva and David Logan Center for the Arts, 915 E 60th St, Chicago, IL 60637.  The event is open to the public.

• The Smithsonian American Women’s History Museum has launched We Do Declare: Women’s Voices on Independence, a "multi-year oral history and education project" commencing with the fiftieth anniversary of the Equal Credit Opportunity Act.

• On Monday, November 4, at Noon ET at the National Constitution Center, Keith Richotte, Jr., and Matthew L.M. Fletcher (University of Michigan) will discuss "Native American history and law through the stories of landmark Supreme Court cases."

• Christine Kexel Chabot, Marquette University Law School, is again making available the syllabus for her course Litigating the Lessons of History, in response to the revived debate making legal history part of the law-school curriculum.
  

• From In Custodia Legis (the blog of the Law Librarians of Congress): "Witchcraft and a Haunted Case of Torture in Joost de Damhouder’s Praxis Rerum Criminalium (1555)"; How a House Becomes Legally Haunted: Stambovsky v. Ackley, The “Ghostbuster” Ruling."

• Literary Hub's Ten Best Books on Reproductive Rights includes ones by Michele Goodwin, Leslie Reagan, and Mary Ziegler.  
  

• A notice of Molly Brady's  Brandeis Chair lecture at HLS, much of which she devoted to the legal history of single-family dwellings in the United States (Harvard Law Today).
  

• The University of Helsinki Faculty of Law "invites applications for a fixed term employment as a doctoral researcher or a postdoctoral researcher" with the project Comparing Early Modern Colonial Laws, led by Academy Professor Heikki Pihlajamäki.   More.

• 
  
  New online in Law & History Review: Weber in Jerusalem: The Rabbinical Debate over the Establishment of the Rabbinical Court of Appeals, 1918–1921, by Chagai Schlesinger.
  

• The Stanford Law School has announced its latest round of Sallyanne Payton Fellows.  I mentioned this here not simply because two legal historians, Greg Ablavsky and Bernadette Meyler, are their mentors, but because I gained lasting insights into the mindset of the first, postwar generation of Washington lawyers when then-Professor Payton shared her recollections of Charles Horsky when I presented at Michigan Law, some years ago.  DRE
  

• ICYMI:  Kristina M. Lee, University of South Dakota, on "What the history of blasphemy laws in the US and the fight for religious freedom can teach us today" (Akron Legal News).
  

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

Balkin on What Lawyers Want from History

 Jack M. Balkin, Yale Law School, has posted What Lawyers Want from History:

This short essay, written for academic historians, explains how lawyers who argue and decide constitutional cases use history and what they want from history.

Lawyers’ use of history is both normative and prescriptive. They construct a lawyerly version of the past to tell us what we should do in the present. This lawyerly construction of history has three basic features. First, lawyers use history to establish authority for their own arguments and to undermine claims of authority by their opponents. Second, lawyers channel history through standard forms of legal argument that shape what they see in history and what they look for in history. Third, lawyers construct memory. They are memory entrepreneurs who try to get their audiences to remember the past in particular ways.

Lawyers remake history in law’s image and for lawyers’ purposes. They beat history into shape so that they can use it in their quest for authority. To understand the legal uses of history, one must be clear-eyed about what lawyers want from history. Their practices follow their desires. 

I found the essay to be quite helpful, when harnessed to Cass Sunstein's Administrative Law's Grand Narrative, in framing a comment for that ASLH panel.

–Dan Ernst

P&P Special Issue: Ordering the Oceans

Past & Present has published a supplemental issue, Ordering the Oceans, Ordering the World: Law, Violence, and European Empires, edited by Jeppe Mulich and Renaud Morieux:

Once the primary domain of naval and social historians, the field of maritime and oceanic history has become in the last decade part of larger and ongoing conversations in the historical discipline. Rather than simply riding the wave of global and transnational history, maritime and oceanic history has been contributing decisively to the recent inflexions of these fields. It has brought attention to issues of disconnection, power asymmetry, frictions, and material and environmental factors. It has questioned the capacity of European empires to control distant spaces, by focusing on legal geography and zones of blurred sovereignty, and by foregrounding the experience of non-European people. It has offered new methods, reflecting critically on how to combine scales of analysis and challenge inherited framings. What all these approaches share is a concern with the relationship between global processes and issues of governance.

Oceanic history is a particularly good laboratory in which to think about order-making in a global context. Many oceanic histories now share the premise that the oceans were governed and not lawless spaces. Yet many authors still focus, on the one hand, on governance and regulatory frameworks, and on the other, on forms of resistance. The concept of ‘ordering’ enables historians to bypass a dichotomy that is, in many ways, unsatisfactory. Focusing on oceans allows us to explore the unstable nature of any order in a more dynamic way than would be possible if confined only to studying the land. The processes taking place on and around the oceans were not always distinct from those on land — but they were often heightened, more experimental and in some cases pre-dated their terrestrial counterparts. Oceans rarely feature in classic accounts of the emergence of the modern state and international order, tied as these are to notions of territorialization and centralization. Focusing on oceans and oceanic contact zones underlines that the structural changes that took place between the seventeenth and the nineteenth centuries, with respect to state formation, empires, global trade and migrations, were inherently the product of inter-imperial and interpolitical dynamics. Furthermore, a focus on the water margins and the polyglot peoples inhabiting them shows how much these changes were shaped from below and from the peripheries. State and social transformation was caused as much by actions at the margin of empires as it was by policies coming from their centres.

 --Dan Ernst.  H/t: KR

Congress Investigates the Vietnam War

[We have the following announcement from the Levin Center for Oversight and Democracy of its latest "Portrait in Oversight."  DRE.]

The Levin Center for Oversight and Democracy, with the support of the U.S. Capitol Historical Society, has released a new Portrait in Oversight describing a series of oversight hearings led by the Senator J. William Fulbright and the Senate Foreign Relations Committee, from 1966-1971, addressing issues related to the Vietnam War. By engaging in factfinding, collecting evidence, and publicizing what the committee learned, the Fulbright hearings forced greater scrutiny of U.S. military actions, exposed misrepresentations by the Johnson and Nixon administrations about the war, legitimized dissent, and helped bring an end to American involvement.

“The nationally televised Fulbright hearings educated Congress and the public about the devastation in Vietnam, U.S. military failures, and the harrowing impact on American soldiers, and it changed the conversation about the war,” said Jim Townsend, director of the Levin Center. “The Fulbright portrait demonstrates how congressional oversight can inform Americans about their government, influence public opinion, and change the course of U.S. history.”

“The 'Fulbright hearings' represented a watershed moment for American society,” said President and CEO of the U.S. Capitol Historical Society, Jane L. Campbell. “Our involvement in Vietnam began with good intentions from both parties. But the hearings revealed a massive chasm between U.S. military objectives, the reality on the ground, and the narrative being shared with American citizens. One of the era's most important lessons is this: if the United States is to remain a beacon of freedom and hope across the world, it must begin with transparency and accountability at home. Congressional oversight is the foundation of that accountability.”

The Fulbright portrait is being released now to pay tribute to two Vietnam War memorials celebrating anniversaries in November. The first is the Vietnam Veterans Memorial on the National Mall in Washington, D.C., marking its 42nd anniversary. The black granite memorial bears the names of over 58,000 servicemembers who were killed or remain missing in action due to U.S. involvement in Vietnam from 1957-1975. The second is the nearby Vietnam Women’s Memorial, marking its 31st anniversary. The only memorial on the National Mall dedicated solely to women who served in the U.S. military, it honors the 265,000 military and civilian women who served during the Vietnam War.

This portrait is the latest in a series of profiles developed by the Levin Center of notable congressional investigations and key figures in the history of congressional oversight from 1792 to the modern era.

2025-2026 Berger-Howe Fellowship

[We have the following announcement.  DRE.]

Harvard Law School invites applications for the Raoul Berger-Mark De Wolfe Howe Legal History Fellowship for the academic year 2025-2026.  Eligible applicants include those who have a first law degree, who have completed the required coursework for a doctorate, or who have recently been awarded a doctoral degree.  A J.D. degree is preferred, but not required.

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

The fellow is expected to spend the majority of their time on their own research. The fellow will also help coordinate the Harvard Law School Legal History Workshop.  The term of the fellowship is July 1 through June 30, and the fellow will be required to be in residence at the law school during the academic year (September through May).

Applicants for the fellowship for 2025-2026 should submit their applications and supporting  materials electronically to Professor Bruce H. Mann.

Each interested applicant should submit:

• a detailed (five pages maximum) description of a proposed project,
  

• a writing sample,
  

• a comprehensive résumé or curriculum vitae that gives the applicant’s educational background, publications, works in progress, and other relevant experience,
  

• two academic letters of reference, which may be submitted electronically by the recommenders to Professor Mann at the above email address, and
  

• copies of official transcripts of all academic work done at the graduate level, which may be sent electronically or by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138.

The deadline for applications is January 24, 2025, and announcement of the award will be made by February 28, 2025.

The fellow selected will receive a stipend of $60,000.  [Former Berger-Howe Fellows here.]

Milov on the Labor Origins of Whistleblowing

Sarah Milov, University of Virginia, has published the very substantial essay, Gags and Grievance: The Labor Origins of Whistleblowing on the website of the Knight First Amendment Institute at Columbia University.  The essay treats "the forgotten history of the Lloyd-La Follette Act and of whistleblowing in the federal workforce."

Gronningsater's "Rising Generation"

Sarah L. H. Gronningsater, University of Pennsylvania, has published The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom (University of Pennsylvania Press):

The Rising Generation chronicles the long history of emancipation in the United States through the cradle-to-grave experiences of a generation of black New Yorkers. Born into precarious freedom after the American Revolution and reaching adulthood in the lead-up to the Civil War, this remarkable generation ultimately played an outsized role in political and legal conflicts over slavery’s future, influencing both the nation’s path to the Civil War and changes to the US Constitution.

Through exhaustive research in archives across New York State, where the largest enslaved population in the North resided at the time of the American Revolution, Sarah L. H. Gronningsater begins by exploring how English colonial laws shaped late eighteenth-century gradual abolition acts that freed children born to enslaved mothers. The boys and girls affected by these laws were born into a quasi-free legal status. They were technically not enslaved but were nonetheless required to labor as servants until they reached adulthood. Parents, teachers, and mentors of these “children of gradual abolition” found multiple ways to protect and nurture the boys and girls in their midst. They supported and founded schools, formed ties with white lawyers and abolitionists, petitioned local and state officials for better laws, guarded against kidnapping and cruelty, and shaped New York’s evolving identity as a free state. Black fathers used their votes during annual state elections in the early 1800s to influence legislative antislavery efforts. After many but not all black men in the state were disfranchised by a race-based property requirement in 1822, black citizens across New York organized to regain equal suffrage and to expand and protect other crucial, non-gendered features of state citizenship. Women and children were critical participants in these efforts.

Gronningsater shows how, as the children of gradual abolition reached adulthood, they took the lessons of their youth into midcentury campaigns for legal equality, political inclusion, equitable common school education, and the expansion of freedom across the nation.

--Dan Ernst

Stories on the Cutting Room Floor

This month, I’ve had the opportunity to share some of the challenges that came with writing Family Matters. Some of them were methodological. Telling a story of national change through state and local law required piecing together disparate events and narratives. Others were practical, like collecting oral histories and getting through the pre-publication gauntlet. In this last post, I want to address a challenge that all authors face: leaving stories on the cutting room floor.

When I began the process of turning my dissertation into a book, my editor, Reuel Schiller, told me to foreground people and stories. Doing so would make the book more interesting for readers, which would get them invested in the argument. (Reuel is a series editor for the ASLH’s Studies in Legal History. He is incredibly kind, patient, and talented. If you have the chance to work with him, take it!)
 
The problem wasn’t finding compelling stories—it was deciding which ones would make the cut. Some were easy decisions. The self-proclaimed “Groucho Marxist” who literally shut the mouth of anti-gay crusader Anita Bryant by shoving a pie into her face? No question that one would go in the introduction. Others were harder calls. I read accounts of hundreds of lesbian mothers who lost custody of their children because of their sexual orientation. Each one illustrated the pain, heartache, and injustice of anti-queer family court doctrines in the 1970s. I had to limit myself to a handful, trusting that they would adequately represent the stories of many parents and children who suffered at the hands of a biased legal system.
 
I agonized most over the stories from my chapters on anti-queer violence in the 1980s. Researching those chapters was emotionally devastating. I had to spend hours in the archives, going through thousands of pages detailing vicious hate crimes. I found the research process so painful that I could not bring myself to work on the chapters for more than three years. When I finally drafted them, I wanted to bring the events to life. At the same time, I did not want to veer into the voyeuristic, unnecessarily using the tragedies that people suffered to grab readers’ attention. It took many rounds of edits to find that balance.
 
The chapter that required me to leave the most material on the cutting room floor was the final one, on marriage equality. Numerous scholars and journalists have written entire books on the movement for same-sex marriage rights. I had to give a comprehensive account in just one chapter! I focused on the arguments and strategies that advocates had honed through previous campaigns for queer family rights. That meant I had reams of material that did not make it into the manuscript. Within that pile, there were two stories that have stayed with me, and that I fervently wish I could have included.
 
Robbie Kaplan Comes Full Circle
 

 

Photograph of Roberta (Robbie) Kaplan by Sylvia Rosokoff, courtesy of Wikimedia Commons.

The first involved famed litigator Roberta (Robbie) Kaplan. She represented Edie Windsor in the case challenging the federal Defense of Marriage Act (DOMA). DOMA defined marriage under federal law as a union of different-sex couples and released states from their obligation to recognize same-sex marriages from other jurisdictions. In 2009, after her wife died, Windsor had to pay more than $350,000 in estate taxes because the federal government did not recognize her marriage. Windsor decided to sue. She invited Kaplan to her home to discuss the case she wanted to bring.
 
When Kaplan walked in, she was stunned. She recognized the living room—she had been there in the early 1990s. It looked exactly the same as it had eighteen years earlier.
 
That apartment was where Kaplan had met with psychologist Thea Spyer for counseling sessions after coming out as a lesbian. Kaplan had stayed in the closet throughout her undergraduate years, fearing that her family and friends would abandon her if she disclosed her sexual orientation. Indeed, when she finally told her parents she was gay, that fear seemed to materialize. Her mother walked to the side of the room and literally began banging her head against the wall! Kaplan’s friends recommended she seek out a therapist for support, which led her to Spyer.
 
During their sessions together, Spyer assured the litigator that lesbians could have fulfilling lives. To prove the point, Spyer even revealed an important aspect of her personal life: since the 1960s, she had lived with another woman, who she described as a brilliant mathematician. Kaplan did not learn the name of Spyer’s partner until almost two decades later, when Windsor invited her over to discuss mounting a legal challenge to DOMA.
 
Kaplan agreed to represent Winsor, even though she had little expectation that the lawsuit would succeed. Several years earlier, Kaplan had taken on New York’s discriminatory marriage laws, only to lose the case before the state’s highest court. But the litigator nevertheless agreed to move forward, in part to repay Spyer for helping her through some of her darkest days.
 
The serendipity of this story was striking. So too was its poignancy. Kaplan first met Spyer at an extremely low point in her life, when she feared rejection from those closest to her simply because of who she was. By the time she represented Spyer’s widow, she had married her wife and they had had a son together. Kaplan’s work reflected just how much her life—and American society—had changed dramatically.
 
Evan Wolfson’s Low Grade
 

Photograph of Evan Wolfson by David Shakbone, courtesy of Wikimedia Commons.

 
There was a second story I had to cut that also illustrated how much American law had transformed over the course of a single generation. That one involved another attorney, named Evan Wolfson. Wolfson had been an advocate for same-sex marriage rights since before the marriage equality movement’s inception. In 1983, as a third-year law student at Harvard University, he had written his graduation thesis arguing that the Constitution protected same-sex couples’ right to marry.

At the time, same-sex marriage was such a radical notion that Wolfson struggled to find anyone who would supervise his project. After approaching the obvious candidates—faculty members who worked in family law, constitutional law, or gay and lesbian rights—he finally convinced a property law scholar to oversee the graduation requirement. The paper that Wolfson produced set out the arguments the movement would later rely upon to change American law, but the professor was unimpressed. Wolfson got a B.
 
Wolfson was undeterred. As an attorney for Lambda Legal, he pressed the organization to lead the movement for marriage rights. Later, he founded Freedom to Marry, a national advocacy organization devoted to pursing marriage equality. In 2015, when he heard the Supreme Court had ruled in favor of the plaintiffs in Obergefell v. Hodges, he cried tears of joy.  By that point, he had spent thirty-two years working to secure marriage rights for gays and lesbians. Wolfson was thrilled to finally be out of a job.
 
I love the story about Wolfson’s low grade for so many reasons. The first is how clearly it illustrates the change American law has experienced over time. In the early 1980s, Harvard Law professors could easily dismiss Wolfson’s arguments as absurd. Thirty-two years later, these same points helped the Supreme Court to rule in favor of marriage equality. The second is more personal. As a law professor, I regularly supervise student papers. When I read arguments that seem far-fetched, I think of Wolfson and hope that my students remain as dedicated to their vision of justice as he was to his.
 
* * *
 
I wish I could have included the stories of Wolfson, Kaplan, and so many others in the book. I’m so very glad to have the chance to share them with you now! Dozens of stories ended up on the cutting room floor, but I hope readers enjoy the ones that did make it into the pages of Family Matters.