The Yale Law Journal

Legal History


Lessons from Lawrence: How “History” Gave Us Dobbs—And How History Can Help Overrule It

Aaron Tang

Twenty years ago, in Lawrence v. Texas, the Supreme Court overruled Bowers v. Hardwick by correcting Bowers’s mistaken historical assertions. History, as they say, repeats itself: When a future Court reconsiders Dobbs v. Jackson Women’s Health Organization, it will find an opinion whose historical e…


The History of History and Tradition: The Roots of Dobbs's Method (and Originalism) in the Defense of Segregation

Reva B. Siegel

In Dobbs, the Court reversed Roe, interpreting the Fourteenth Amendment by counting states that banned abortion in 1868, an interpretive method popularized in the defense of segregation. This Essay traces the method’s spread, evolution, and justifications through decades of debate about originalism,…


The History of Neutrality: Dobbs and the Social-Movement Politics of History and Tradition

Mary Ziegler

By excavating the history around the history-and-tradition test used in Dobbs v. Jackson Women’s Health Organization and the alternative it pushes to the side, this Essay reconsiders the meaning—and plausibility—of neutrality claims turning on the Dobbs Court’s use of history and tradition.



Making History

Melissa Murray

foreword What is history but a fable agreed upon? —Napoleon Bonaparte. Introduction October Term 2021 was a momentous one for the United States Supreme Court. In a series of decisions, the Court overturned two long-standing precedents guaranteeing the right to abortion,1 …


Property and Sovereignty in America: A History of Title Registries & Jurisdictional Power

K-Sue Park

What is the source of jurisdictional power, or the power to say what the law is and give it force in a territory? This Article examines how this fundamental attribute of sovereignty historically arose, in America, from property and property institutions, especially the local, mundane, overlooked and…


The Unabridged Fifteenth Amendment

Travis Crum

The Fifteenth Amendment is usually an afterthought compared to the Fourteenth Amendment. This oversight is perplexing: the Fifteenth Amendment ushered in a brief period of multiracial democracy and laid the constitutional foundation for the VRA. This Article completes the historical record, providin…


Deciphering the Commander-in-Chief Clause

Saikrishna B. Prakash

At the Founding, commanders in chief (CINCs) enjoyed neither sole nor supreme military authority, each military branch having many chief commanders. Thus, most presidential authority over the military stemmed from the rest of Article II, not the CINC Clause. Consequently, Congress enjoys sweeping au…


The Modern State and the Rise of the Business Corporation

Taisu Zhang & John D. Morley

This Article argues that the rise of the modern state was a necessary condition for the rise of the business corporation. Corporate technologies require the support of a powerful state with the geographical reach, administrative power, and legal capacity necessary to enforce the law uniformly among …


General Citizenship Rights

Jud Campbell

This Article explores ideas of citizenship rights from the Revolutionary Era through Reconstruction and challenges the conventional view that citizenship rights came in only two sets—state and national. It argues that Americans also widely recognized general citizenship rights, reflecting an older c…


What We Ask of Law

Aziz Z. Huq

This Book Review asks what comprises a well-functioning legal system in light of new evidence of how law operated across a wide historical panorama. Such contextualization has implications for a sound working definition of law, understanding law’s relation to the rule of law, and law’s role in emanc…


The Separation-of-Powers Counterrevolution

Nikolas Bowie & Daphna Renan

The Article traces modern separation-of-powers jurisprudence to the Court’s reaction to Reconstruction. Converting Lost Cause dogma into the language of constitutional law, the Court sparked a counterrevolution that obscures, and eclipses, a more normatively compelling conception—one that locates in…


Writing About the Past That Made Us: Scholars, Civic Culture, and the American Present and Future

Annette Gordon-Reed

This Review assesses the arguments made in Akhil Amar’s The Words That Made Us about the impoverished nature of our current discourse on our constitutional system of government.



The Constitutional Right of Self-Government

Nikolas Bowie

The Assembly Clause today serves little purpose. But long before the First Amendments drafting, American activists advanced what they called their right to “assemble” to defend their right to govern themselves. This Article argues that this right can be interpreted as a right to meaningfully partic…


A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s

Nicholas R. Parrillo

The Supreme Court is poised to consider whether the Constitution’s original meaning is compatible with numerous and longstanding congressional laws delegating power to the bureaucracy to enact regulations affecting private rights within the United States. New evidence presented in this Article indic…


Nondelegation at the Founding

Ilan Wurman

Several current Supreme Court Justices have signaled a renewed interest in resurrecting the nondelegation doctrine, but numerous scholars have portrayed the doctrine as ahistorical and unoriginalist. This Feature systematically reviews the evidence and concludes there is much more historical support…


Truer U.S. History: Race, Borders, and Status Manipulation

Sam Erman

Daniel Immerwahr’s How to Hide an Empire rewrites U.S. history with empire at the core. Building on that accomplishment, this Review sketches a U.S. legal history of indigeneity, race, slavery, immigration, and empire in which legal “status manipulation” accomplished and hid the myriad wrongs done.


Expounding the Constitution

Farah Peterson

This Article reinterprets Founding-era debates about constitutional interpretation as arguments over its nature. If analogous to public legislation, it would be read pragmatically; if more like private legislation, it would be construed narrowly. This insight provides vital context for contemporary …


Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self-Determination

Lisset M. Pino

This Comment problematizes the historical basis for the Supreme Court’s decision in Rice v. Cayetano. In deeming voting qualifications for the Office of Hawaiian Affairs racially discriminatory, the Rice Court evaded the more complex question whether Native Hawaiians constitute a political community…


Island Judges

James T. Campbell

Tracing the evolution of territorial courts over the last half century, this Note argues that prevailing justifications for withholding life tenure from federal judges in U.S. territories are now obsolete. It foregrounds the central role that the Judicial Conference has played in preserving two sepa…


Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis

Jedediah Britton-Purdy, David Singh Grewal, Amy Kapczynski & K. Sabeel Rahman

Current crises of economic inequality and eroding democracy require us to move beyond legal orientations that prioritize efficiency, neutrality, and apolitical governance. This Feature suggests new orientations and questions for scholarship on “law and political economy” that instead foreground real…


Plessy Preserved: Agencies and the Effective Constitution

Joy Milligan

Federal officials enforced a “separate but equal” framework for public housing long after Brown invalidated that principle. This administrative regime wrote segregation into U.S. cities, operating as the effective Constitution for decades. This Article asks why a liberal, reformist agency chose that…


Twenty-First-Century Contract Law Is a Law of Agreements, Not Debts: A Response to Lewinsohn

Curtis Bridgeman

Jed Lewinsohn’s excellent article on consideration offers groundbreaking work on the concept of exchange but errs in seeing the motivational account of consideration as a bad fit with doctrine. I argue that the motivational account provides a more natural justification for both consideration and for…


Paid on Both Sides: Quid Pro Quo Exchange and the Doctrine of Consideration

Jed Lewinsohn

The doctrine of consideration in contract is home to the law’s only substantial account of quid pro quo exchange—one that withers under philosophical scrutiny. By fleshing out the idea that exchange involves reciprocal payments, this Article offers both an original theory of exchange and a reconcept…


Sex in Public

Elizabeth Sepper & Deborah Dinner

This Article provides the first history of sex discrimination in public accommodations. Fifty years ago, bars displayed “men-only” signs. Women held secondary status in leisure, professional, and financial institutions. In the 1970s, feminists challenged this discrimination. Sex equality came to sig…


Empire States: The Coming of Dual Federalism

Gregory Ablavsky

In the standard account of federalism’s eighteenth-century origins, the Framers divided government power among two sovereigns to protect individual liberties. This Article offers an alternative history. It emphasizes that federalism was a form of centralization—a shift of authority from diffuse quas…


Democratic Policing Before the Due Process Revolution

Sarah A. Seo

Prevailing narratives of the Warren Court’s Due Process Revolution emphasize how it constrained police behavior. This Essay questions this account. It returns to the legal culture before the Revolution, focusing on three lectures by the prominent scholar Jerome Hall. Due process, it concludes, as mu…


The Forgotten History of Metes and Bounds

Maureen E. Brady

Property scholarship has long derided metes and bounds systems of land demarcation, largely accepting that standardized boundaries best facilitate economic growth. Through a case study of colonial New Haven, Connecticut, this Article suggests that metes and bounds descriptions actually provided earl…


An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act

Kate Andrias

This Article recovers an institutional experiment in the early history of the Fair Labor Standards Act as an example of democratic and egalitarian administrative law. The Act’s wage boards, the Article suggests, offer an alternative, participatory vision of governance in today’s age of growing polit…


Beyond the Critique of Rights: The Puerto Rico Legal Project and Civil Rights Litigation in America’s Colony

Valeria M. Pelet del Toro

In the wake of Hurricanes Irma and Maria, Puerto Ricans were faced with a stark reminder of their second-class citizenship. This Note traces the development of the island’s civil rights movement through the little-known history of the Puerto Rico Legal Project, revealing the power (and limits) of ri…


Transparency’s Ideological Drift

David E. Pozen

From the early twentieth century to the present, the concept of transparency in American law has drifted across the political spectrum. Originally linked with progressive causes, it is now associated primarily with libertarian or neoliberal aims. This Article traces this multigenerational transforma…


Petitioning and the Making of the Administrative State

Maggie McKinley

This Article traces the roots of the modern administrative state to the petition process, drawing on an original database of over 500,000 petitions submitted to Congress from the Founding until 1950. This institutional history provides a deeper functional and textual understanding of the administrat…


The Original Theory of Constitutionalism

David Singh Grewal & Jedediah Purdy

The conflict between various versions of “originalism” and “living constitutionalism” has long defined the landscape of constitutional theory and practice. In this Review of Richard Tuck’s The Sleeping Sovereign, David Grewal and Jedediah Purdy adapt the sovereignty-government distinction at the hea…


Publius and the Petition: Doe v. Reed and the History of Anonymous Speech

Chesa Boudin

120 Yale L.J. 2140 (2011). 

This Note argues that signatures on petitions intended for use in direct democracy processes such as ballot initiatives should be subject to public scrutiny and disclosure. They should not benefit from free speech protections allowing for anonymity. Signatures used in th…


Before (and After) Roe v. Wade: New Questions About Backlash

Linda Greenhouse & Reva B. Siegel

120 Yale L.J. 2028 (2011). 

Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v. Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this c…


Federal Administration and Administrative Law in the Gilded Age

Jerry L. Mashaw

119 Yale L.J. 1362 (2010). 

The dominant story of America’s so-called “Gilded Age” describes an era of private excess and public corruption. In a rapidly industrializing society, private capital, in league with venal politicians, ran roughshod over a national state apparatus incapable of responding…


The Politics of Nature: Climate Change, Environmental Law, and Democracy

Jedediah Purdy

119 Yale L.J. 1122 (2010). 

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwi…


The Significance of Domicile in Lyman Trumbull's Conception of Citizenship

Mark Shawhan

119 Yale L.J. 1351 (2010).


The Significance of Signatures: Why the Framers Signed the Constitution and What They Meant by Doing So

Michael Coenen

119 Yale L.J. 966 (2010). 

The signing of the U.S. Constitution is traditionally understood as the closing act of the Constitutional Convention. This Note provides an alternative account, one that understands the Constitution’s signing as the opening act of the ratification campaign that followed i…


How Much Redistribution Should There Be?

Daniel Markovits

112 Yale L.J. 2291 (2003)

Egalitarianism ties people's fortunes together. It takes the good and bad things in people's lives--their blessings and their afflictions--and shares them out, or redistributes them, among their fellows. Where egalitarianism operates, each person's fortunes and misfortunes c…


The Secret History of Race in the United States

Daniel J. Sharfstein

112 Yale L.J. 1473 (2003)

In the beginning, there was a man named Looney. George Looney's world was Buchanan County, Virginia, a pocket of Appalachian hills and hollows that juts into Kentucky and West Virginia. In 1911, his place in this world was secure. Where lumber was the only industry in town, …


Friedman's Law

Michael E. Parrish

112 Yale L.J. 925 (2003)

In this appraisal of Lawrence M. Friedman's American Law in the Twentieth Century, I begin in Part I with a survey of the several "schools" of American legal history that have risen to prominence in the years since World War II, utilizing a suggestive framework first offered …