legal history

Clarence Thomas Took a Swipe at My Dissertation Research in a Decision. Here's Why He's Wrong

by Gregory Ablavsky

Historians' work played a huge role in a recent decision affecting Native American children. But the dissent by Clarence Thomas showed an appalling willingness to cherry-pick from the past that undermines originalism's own claims to legitimacy. 

The Power of Dependency in Women's Legal Petitions in Revolutionary America (Excerpt)

by Jacqueline Beatty

It's anachronistic thinking to ask whether the American revolution improved women's status; a legal historian's new book seeks to understand change and continuity in women's status through those women's own worldview, which often involved leveraging their dependent status in specific claims. 

Liberal SCOTUS Judges are Calling Out the Court's Crisis of Legitimacy. Why Aren't Dem Politicians?

by Simon Lazarus

A Washington legal veteran argues that the judicial branch has always been political. The liberal ideal of a branch separate from partisan concerns is a historical oddity that the conservative legal movement has rejected in substance; legal liberals must do the same. 

Legal Historian Jed Shugerman: Yes, Trump's NY Indictment is a Legal Embarrasment

Isaac Chotiner interviews the law professor and digs deeper into his skepticism of the state charges against Donald Trump. 

Did Dobbs Return Abortion to the States and the People? LOL

by Leah Litman

The conservative legal movement has no intention of subjecting abortion to democratic processes. 

It's Not Clear if Winning in 2024 Could Shield Trump from a Conviction

by Olivia B. Waxman

The lack of clear precedent about the relationship between the federal and state law enforcement systems and the timing of Trump's indictment and potential trial mean that the election will be ensnared in a potential constitutional crisis. 

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.

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. 

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. 

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. 

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. 

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. 

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? 

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. 

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. 

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. 

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. 

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. 

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. 

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.