Legal History

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Volume 92.6
The Splintering of American Public Law
Marco Basile
Assistant Professor, Boston College Law School.

For feedback and suggestions at various stages of this project, I thank David Barron, Mary Sarah Bilder, Nikolas Bowie, Richard Chen, Noah Feldman, Idriss Fofana, Barry Friedman, Jack Goldsmith, Daniel Hulsebosch, Mark Jia, Michael Klarman, Chris Mirasola, and Susannah Barton Tobin. This project also benefitted from workshops with faculty at Boston College Law School, University of Chicago Law School, Cornell Law School, Harvard Law School, Loyola Law School, New York University School of Law, Notre Dame Law School, University of San Diego School of Law, Seattle University School of Law, University of Texas School of Law, University of Southern California Gould School of Law, and Washington University School of Law. I am also grateful to Emma Svoboda and Elaine Tsui for research assistance and to the members of the University of Chicago Law Review for their hard work editing the manuscript.

This Article by Marco Basile argues that U.S. constitutional law and international law diverged after the Civil War when courts came to apply them differently against the state as the United States consolidated a continental nation-state. On one hand, the Supreme Court came to assert authority over constitutional law more aggressively in the context of gutting Reconstruction in the South. At the same time, the Court stepped back from international law in deference to Congress as the United States conquered territories and peoples in the West. The simultaneous rise of judicial supremacy as to constitutional law and of judicial deference as to international law recast constitutional law as more “legal” than political and international law as more “political” than legal. By recovering the earlier understanding of public law, this Article challenges how we construct constitutional traditions from the past. The Article ultimately invites us to reimagine a more integrated public law today.

International Law Legal History
Online
Essay
Before Bakke: The Hidden History of the Diversity Rationale
Anthony S. Chen
Anthony S. Chen is Associate Professor of Sociology and Political Science at Northwestern University, where he is also a Faculty Fellow at the Institute for Policy Research. The author of The Fifth Freedom: Jobs, Politics, and Civil Rights in the United States, 1941–1972 (Princeton, 2009), he is interested in political sociology, historical sociology, and American political development, with a special emphasis on civil rights, social and economic policy, and business-government relations.
Lisa M. Stulberg
Lisa M. Stulberg is Associate Professor of Sociology of Education at New York University’s Steinhardt School of Culture, Education, and Human Development. The author of Race, Schools, and Hope: African Americans and School Choice after Brown (Teachers College Press, 2008) and the co-editor (with Sharon Lawner Weinberg) of Diversity in American Higher Education: Toward a More Comprehensive Approach (Routledge, 2011), she researches the politics of race and education, and LGBTQ+ social change.

Chen and Stulberg are completing a book on the history and development of race-conscious affirmative action in college admissions.

For all of the legal and political contention surrounding affirmative action, one facet of the discussion is characterized by a curious, if implicit, consensus that spans all manner of ideological and partisan divisions.

Diversity Legal History
Online
Essay
John Marshall’s Proslavery Jurisprudence: Racism, Property, and the “Great” Chief Justice
Paul Finkelman
President and Professor of History, Gratz College. B.A., Syracuse, 1971; M.A. and Ph.D., The University of Chicago, 1972, 1976. Fellow in Law and Humanities, Harvard Law School, 1982–83. President William McKinley Emeritus Professor of Law, Albany Law School.

I thank Candace Jackson Gray for her help in researching census and tax records connected to Chief Justice Marshall’s slaveholding, and Charles F. Hobson, Tim Huebner, Alysa Landry, and R. Kent Newmyer for their many comments on early versions of this piece. I thank Harvard University Press for allowing me to reprint material in this essay that comes from my book, Supreme Injustice: Slavery in the Nation’s Highest Court (Harvard 2018).

This is the second Essay in a two-part series exploring Chief Justice John Marshall’s private and public relationship to slavery.

John Marshall Legal History Slavery
Online
Essay
Master John Marshall and the Problem of Slavery
Paul Finkelman
President and Professor of History, Gratz College. B.A., Syracuse, 1971; M.A. and Ph.D., University of Chicago, 1972, 1976. Fellow in Law and Humanities, Harvard Law School, 1982–83. President William McKinley Emeritus Professor of Law, Albany Law School.

I thank Candace Jackson Gray for her help in researching census and tax records connected to Marshall’s slaveholding, and Charles F. Hobson, Tim Huebner, Alysa Landry, and R. Kent Newmyer for their many comments on early versions of this piece.

This is the first of two Essays exploring Chief Justice John Marshall’s private and public relationship to slavery.

John Marshall Legal History Slavery
2
Book review
75.4
The Structure of Classical Public Law
Barry Cushman
James Monroe Distinguished Professor of Law, Professor of History, and F.D.G. Ribble Research Professor, University of Virginia

Thanks to Patty Cushman, Neil Duxbury, Fred Konefsky, Caleb Nelson, J. Henry Schlegel, and G. Edward White for helpful comments and conversation.

Legal History Political Philosophy
2
Book review
76.2
Reasonable Doubt and the History of the Criminal Trial
Thomas P. Gallanis
N. William Hines Professor of Law, University of Iowa

The research for and writing of this Review was done during my time as Julius E. Davis Professor of Law at the University of Minnesota and Mason Ladd Distinguished Visiting Professor of Law at the University of Iowa. It is a pleasure to thank the University of Minnesota Law School and Law Library and the University of Iowa College of Law and Law Library for excellent research support. It is also a pleasure to thank Daniel Klerman and Robert Levy for comments on a draft of this Review.

Criminal Law Evidence Legal History
2
Article
76.2
“Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939–1953
Mariano-Florentino Cuéllar
Professor and Deane F. Johnson Faculty Scholar, Stanford Law School; Faculty Affiliate, Stanford Center for International Security and Cooperation

I appreciate helpful conversations with Daniel Carpenter, Michele Dauber, John Ferejohn, George Fisher, Rich Ford, Lawrence Friedman, David Golove, Jill Hasday, Daniel Ho, Don Hornstein, Lewis Kornhauser, David Luban, Eric Muller, Hari Osofsky, Robert Tsai, and Barry Weingast, as well as feedback from workshop participants at Berkeley, Iowa, Oregon, NYU, North Carolina, Southwestern, and Stanford’s Center for International Security and Cooperation. David Kennedy provided extremely helpful written comments on an earlier version of this Article. I also benefited greatly from the research assistance of Mindy Jeng, Shivan Saran, Britt Grant, Mrinal Menon, Connor Raso, Brad Hansen, and Jennifer Liu, as well as the staff of the Stanford Law School Library. I am also grateful to the staff at the National Archives in College Park, Maryland, the Franklin D. Roosevelt Presidential Library, and the Harry S. Truman Library. All of these people should be secure in the knowledge that they are not responsible for any errors or omissions. This is dedicated to Mateo, Ria, and Lucy.

Administrative Law Institutional Design Legal History

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