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legal history


  • 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. 



  • 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. 



  • 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."



  • 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."



  • 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. 



  • 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. 



  • 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."



  • 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. 



  • 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.



  • 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.



  • 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.