legal history

  • 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. 

  • 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. 

  • 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.

  • 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.

  • 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? 

  • 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."

  • 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. 

  • 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."