John Fabian Witt

BOOKS

The American Fund: A Story of Money and Politics in America (Simon & Schuster, forthcoming)

American Contagions: Epidemics and the Law from Smallpox to COVID-19¹¹ (Yale University Press, 2020)

To Save the Country: A Lost Treatise on Martial Law¹² (Yale University Press, 2019) (with Will Smiley)

Lincoln's Code: The Laws of War in American History¹³ (Simon & Schuster / Free Press, 2012)

• Bancroft Prize
• ABA Silver Gavel Award
• Finalist for the Pulitzer Prize in History
• Littleton-Griswold Prize from the American Historical Association
• John Phillip Reid Prize from the American Society for Legal History
• J. Willard Hurst Award for the Best Work in Sociolegal Legal History
• New York Times Notable Book for 2012
• New York Times Book Review Editor's Choice
• Kirkus Reviews Best Nonfiction of 2012

Patriots and Cosmopolitans: Hidden Histories of American Law¹⁴ (Harvard University Press, 2007)

The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law ¹⁵(Harvard University Press, 2004)

• William Nelson Cromwell Prize from the American Society for Legal History
• J. Willard Hurst Book Prize from the Law and Society Association
• Thomas J. Wilson Prize at Harvard University Press
• Firestone Library Noteworthy Book in Industrial Relations and Labor Economics
• Chinese edition, Lei Tian, trans., Shanghai Joint Publishing Co., 2008)

CASEBOOKS

Torts and Regulation: Cases, Principles and Institutions⁴ (CALI, 2nd ed. 2020) (1st ed., 2019)

Torts: Cases, Principles, and Institutions¹⁶ (CALI, 5th ed. 2020) (with Karen Tani) (1st ed. 2014) 

ARTICLES

“Movement Capture or Movement Strategy? A Critical Race History Exchange on the Beginnings of Brown v. Board,” 31 Yale J. Law & Hum. 520 (March 2021) (with Megan Ming Francis)

“The Partisan Transformation of American Public Health Law, 1918 to 2020,” 111 Am. J. Public Health 411 (March 2021)

“Radical Histories / Liberal Histories in Work Injury Law,” 60 Am. J. Legal Hist. 564 (Dec. 2020)

“The Fourteenth Amendment as an Ending,” 10 Journal of the Civil War Era 5 (2020) (with Lisset Pino)

“Inventing the War Crime: An Internal Theory,” 60 Virginia Journal of International Law 52 (2020) (with Jessica Laird)

“Contract’s Revenge: the Waiver Society and the Death of Tort,” 41 Cardozo Law Review 1265 (2020) (with Ryan Martins & Shannon Price)

“Tort as Private Administration,” 105 Cornell Law Review 1093 (2020) (with Nathaniel Donahue)

“The Czar and the Slaves: Two Puzzles in the History of International Arbitration,” 113 American Journal of International Law 535 (2019) (with Bennet Ostdiek)

“A  Lost Theory of American Emergency Constitutionalism,” 36 Law & History Review¹⁷ 551 (2018)

“For Bob Gordon¹⁸,” 70 Stanford Law Review 1681 (2018).

“Adjudication in the Age of Disagreement¹⁹,” 86 Fordham Law Review 149 (2017)

“Strategy and Entailments: The Enduring Role of Law in U.S. Armed Forces,” 146 Daedalus²⁰ 11 (2017) (with Laura Savarese)

“Ives and MacPherson: Judicial Process in the Regulatory State,” 9 Journal of Tort Law 43 (2016)

“Constraint, Authority, and the Rule of Law in a Federal Circuit Court of Appeals²¹,” 85 Fordham Law Review 3 (2016)

"Modernism and Antimodernism in the Federal Courts: Reflections on the Federal District Court for the District of Connecticut on the 100th Anniversary of Its New Haven Courthouse²²," 48 Conn. L. Rev. 219 (2015)

“Civil War Historians and the Laws of War,”²³ 4 Journal of the Civil War Era 159 (2014)

"The Dismal History of the Laws of War²⁴," 1 U.C. Irvine L. Rev. 895 (2012)

"War and Law in America²⁵," 115 American Historial Review 768 (2010)

“Form and Substance in the Law of Counterinsurgency Damages²⁶,” 41 Loyola Law Review 1455 (2008)

“The Metaphysics of Mind and the Practical Science of the Law,” 26 Law & History Review 161 (2008) (with Sarah A. Seo)

“Contingency, Immanence, and Inevitability in the History of Accident Law,” 1 Journal of Tort Law (no. 2, 2007)

“Empire and the Crisis of the Legal Frame (Will the Real British Empire Please Stand Up?),” 120 Harvard Law Review 754 (2007)
*Winner of The Green Bag’s “Exemplary legal writing” prize, 2007*

“Bureaucratic Legalism, American Style: Private Bureaucratic Legalism and The Governance of Tort System²⁷,” 56 DePaul Law Review 261 (2007)

“Internationalism and the Dilemmas of Strategic Patriotism²⁸,” 41 Tulsa Law Review 787 (2006)

“The Long History of State Constitutions and American Tort Law,” 36 Rutgers Law Journal 1159 (2005)

“The Internationalist Beginnings of American Civil Liberties²⁹,” 54 Duke Law Journal 697 (2004)

“The Inevitability of Aggregated Settlement: An Institutional Account of American Tort Law,” 57 Vanderbilt Law Review 1571 (2004) (with Samuel Issacharoff)

“Narrating Bankruptcy / Narrating Risk,” 98 Northwestern University Law Review 303 (2003)

“Speedy Fred Taylor and the Ironies of Enterprise Liability,” 103 Columbia Law Review 1 (2003)

“Toward a New History of American Accident Law: Classical Tort Law and the Cooperative First-Party Insurance Movement³⁰,” 114 Harvard Law Review 690 (2001)

“From Loss of Services to Loss of Support: The Wrongful Death Statutes, the Origins of Modern Tort Law, and the Making of the Nineteenth-Century Family,” 25 Law & Social Inquiry 717 (2000)

“Rethinking the Nineteenth-Century Employment Contract, Again,” 18 Law & History Review 627 (2000)

“Making the Fifth: The Constitutionalization of American Self-Incrimination Doctrine, 1791- 1903,” 77 Texas Law Review 825 (1999)

“The Transformation of Work and the Law of Workplace Accidents, 1842-1910,” 107 Yale Law Journal 1467 (1998)

BOOK CHAPTERS

“Two Humanitarianisms in Ambrose Bierce’s ‘An Occurrence at Owl Creek Bridge,’” in LaCroix, Masur, Nussbaum & Weinrib eds., Cannons and Codes: Law, Literature, and America’s Wars (Oxford University Press 2021)

“The Law of Salus Populi,” in Meghan O’Rourke ed., A World Out of Reach: Dispatches from Life under Lockdown (Yale University Press, Nov. 2020)

“To Save the Country: Reason and Necessity in Constitutional Emergencies,” in Gary Gerstle & Joel Isaac, eds., States of Exception in American History (University of Chicago Press, October 2020)

Foreword to Robert W. Gordon, Taming the Past: Essays on Law in History and History in Law³¹ (Cambridge University Press, 2017) (with Sarah Barringer Gordon)

“Law, Rights, and the Constitution in the American Civil War,” in Ted Widmer, ed., Disunion: A History of the Civil War³² (Oxford University Press, 2016)

“Freedom and Restraint,” in Ted Widmer, ed., Disunion: A History of the Civil War³² (Oxford University Press, 2016) 

“On Adopting a Posture of Moral Neutrality,” in Bradley Jay Strawser, ed., Opposing Perspectives on the Drone Debate³³ (Palgrave, 2014)

“Two Conceptions of Suffering in War,” in Austin Sarat, ed., Knowing the Suffering of Others³⁴ (University of Alabama, 2014)

"The Secret History of the Chief Justice's Obamacare Decision," in Persily, Metzger, & Morrison eds., The Health Care Case³⁵ (Oxford University Press, 2013)

“The Political Economy of Pain,” in Bernstein & Hulsebosch eds., Making Legal History: Essays in Honor of William E. Nelson (NYU Press, 2013)

"The Social Histories of International Law³⁶," in William Dodge, Michael Ramsay & David Sloss, eds., The U.S. Supreme Court and International Law: Continuity or Change? (Cambridge University Press, 2011).

POPULAR PRESS

“For 100 Years, the Filibuster Has Been Used to Deny Black Rights,” Washington Post, March 18, 2021 (with Magdalene Zier)

“How U.S. Pandemic Restrictions Became a Constitutional Battlefield,” Foreign Affairs, Dec. 31, 2020 (with Kiki Manzur)

“The Wondrous Banality of Democracy,” in The Yale Review, November 2020

“C-Span After Words with Lawrence Gostin,” Oct 26, 2020

“Republican Judges are Quietly Upending Public Health Laws,” New York Times, October 15, 2020

“Why We Don’t Need COVID-19 Immunity Legislation,” Balkinization, Sep. 26, 2020

“The Law of Salus Populi,” Yale Review, March 30, 2020

“Supremely Divided: How the Republican Party Took Over the Supreme Court,” The New Republic, April 7, 2020

"The Achievements and Compromises of Two Reconstruction-Era Amendments," Washington Post, October 31, 2019

“The Shrinking Legacy of a Supreme Court Justice: Why Veneration of Oliver Wendell Holmes is in Decline,” The New Republic, Oct. 2019

“Slouching Back to Calhoun,” Yale Daily News, Sept. 2, 2019

“A Debate over Politics, Principles, and Impeachment–in 1868,” Wash. Post, May 24, 2019

“Elite Colleges Don’t Understand the Business They’re In,” The Atlantic, March 15, 2019

“Trump’s Farcical National Emergency Plan Should Fail – but it Might Not,” Slate, January 8, 2019

“National Emergencies, Then and Now,” Balkinization, January 7, 2019

“The Operative: How John Marshall Built the Supreme Court around His Political Agenda,” The New Republic, January 7, 2019

“Democrats Need a Plan B for the Supreme Court³⁷,” Washington Post, July 27, 2018 (with Ian Ayres)

“Bomber Harris and the Haspel Nomination³⁸,” Balkinization Blog, May 9, 2018

“A Hidden Legacy³⁹,” Yale Daily News, April 5, 2017

“Fighting Words⁴⁰,” The New Rambler, March 6, 2017

“Symbols and Speech⁴¹,” The Chronicle of Higher Education, Dec. 19 2016 (with Jonathan Holloway)

“The New Rockefellers⁴²,” Wall Street Journal, October 16, 2016

“The Provocative Life of Judge Richard Posner⁴³,” New York Times, October 7, 2016

“Senate Republicans and the Supreme Court: Where Is This Headed Exactly?⁴⁴” New York Times, February 24, 2016

“The Biden Speech Fallacy⁴⁵,” Balkinization Blog, February 24, 2016

“Booze and Big Government⁴⁶,” Wall Street Journal, December 18, 2015

“Stephen Breyer’s ‘The Court and the World,’⁴⁷” New York Times, September 14, 2015

“It Happened Here⁴⁸,” Wall Street Journal, April 24, 2015

"How Much Does it Say to Cost to Say 'I'm Sorry,?⁴⁹'" NPR's Radiolab, December 23, 2014

“Obama, the Least Lame President?,”⁵⁰ New York Times, December 21, 2014

"Debunking A Progressive Constitutional Myth; or, How Corporations Became People, Too,"⁵¹ Balkinization Blog, November 15, 2012

"Freedom and Restraint⁵²," New York Times, September 21, 2012

"The Secret History of the Chief Justice's Obamacare Decision⁵³," Balkinization Blog, June 29, 2012

"The Legal Fog Between War and Peace⁵⁴," New York Times, June 10, 2012

"All Things Considered on Corporate Personhood," National Public Radio, October 24, 2011 http://www.npr.org/2011/10/24/141663195/what-is-the-basis-for-corporate-personhood⁵⁵

"Lincoln's Laws of War⁵⁶," Slate, February 11, 2009

"History Lesson Ye Olde Gitmo⁵⁷," Slate, December 9, 2008

“A Declaration the President Ignores⁵⁸,” Washington Post, July 4, 2007

“First, Rename All the Lawyers⁵⁹,” New York Times, October 24, 2006

“Tactical Withdrawal: The Easy Way Out for the Supreme Court on ‘Don’t Ask Don’t Tell,⁶⁰’” Slate, December 5, 2005 (with Ariela R. Dubler)

“Can Chinese Industry Be Made Safe?⁶¹,” The Korea Herald, May 8, 2004; The Pakistan Daily Times, May 8, 2004; The Jakarta Post, May 8, 2004; Taipei Times, May 10, 2004; The Singapore Straits Times, May 7, 2004; The Bangkok Post (May 8, 2004)

ENTRIES, SHORT REVIEWS, ETC.

Review of Stacy Pratt McDermott, The Jury in Lincoln’s America (Ohio University Press, 2012), in Journal of American History (2014) 100 (4): 1201-1202

Review of Jamie Bronstein, Caught in the Machinery: Workplace Accidents and Injured Workers in Nineteenth-Century Britain ⁶²(Stanford 2008), in British Journal of Sociology (June 2011)

Review of Kal Raustiala, Does the Constitution Follow the Flag?⁶³ (Princeton, 2009), 28 Law & History Review 569 (2010)

Review of Kenneth S. Abraham, The Liability Century: Torts and Insurance from the Progressive Era to 9/11⁶⁴, in Law & History Review (Fall 2009)

Review of Sally H. Clarke, Trust and Power: Consumers, the Modern Corporation, and the Making of the United States Automobile Market⁶⁵, in Law & History Review (Fall 2009)

“Tort Law⁶⁶,” in The Encyclopedia of Legal History (Oxford University Press, 2009)

“Elias Hill⁶⁷,” in African American National Biography (Oxford University Press, 2008)

Review of Laura Kalman, Yale Law School and the Sixties: Revolt and Reverberations ⁶⁸(University of North Carolina Press, 2005), in New England Quarterly, September, 2006, pp. 347-49

“Workers’ Compensation,” in Eric Arnesen et al. eds., Encyclopedia of U.S. Labor and Working- Class History ⁶⁹(Routledge, 2007) (with Jean-Denis Grèze)

Review of George I. Lovell, Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy (Cambridge University Press, 2003), in 45 Labor History 390-92 (2004)

“Lessons from History: State Constitutions, American Tort Law, and the Medical Malpractice Crisis⁷⁰,” Pew Charitable Trusts Project on Medical Liability in Pennsylvania (March 2004)

“The Federal Employers’ Liability Act,” in Major Acts in Congress (Macmillan Publishers 2003)

“Thinking Historically about American Accident Law⁷¹,” Columbia Law Report, Fall 2002

“The Klan on Trial⁷²,” 106 Yale Law Journal 1611 (1997)

BRIEFS

Brief of Legal Historians as Amici Curiae in Support of Respondent, Department of Homeland Security v. Thuraissigiam, 2020 WL 416674 (U.S.), January 22, 2020

Brief of Torts Scholars as Amici Curiae in Support of Respondents in Comcast Corp. v. National Ass'n of African-American Owned Media and Entertainment Studio Networks, 2019 WL 4748379 (U.S.), September 27, 2019

Gill v. Whitford, 137 S.Ct. 2268 (2017), Brief of Historians as Amici Curiae

Soto v. Bushmaster Firearms International, LLC, 2016 WL20625507, Brief of Law Professors as Amici Curiae.

Boumediene v. Bush,⁷³ 128 S. Ct. 2229 (2008), Brief of Legal Historians as Amici Curiae

Ramroop v. Flex-Craft Printing, Inc., 896 N.E.2d 69 (N.Y. 2008), Brief of New York Labor and Employment Law Professors as Amici Curiae

FAIR v. Rumsfeld,⁷⁴ 547 U.S. 47 (2006), Brief Amici Curiae of 56 Columbia Law School Faculty Members