legal history

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• 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. 

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• 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. 

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• 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. 

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• 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. 

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• 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. 

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• 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. 

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• 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. 

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• 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."

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• 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."

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• 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. 

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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.