John Fabian Witt

BOOKS

The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America¹ (Simon & Schuster, October 2025)

 

American Contagions: Epidemics and the Law from Smallpox to COVID-19¹⁶ (Yale University Press, 2020) 

• Reviews in The New York Times¹⁷, The Wall Street Journal¹⁸, The Washington Post¹⁹, American Historical Review²⁰, Law & Society Review²¹, Law & Politics Book Review²², Journal of American Studies²³, Kirkus²⁴, Health Affairs²⁵, and the Yale Daily News²⁶, among others 

To Save the Country: A Lost Treatise on Martial Law²⁷ (Yale University Press, 2019) (with Will Smiley)

• Reviews in Law & History Review²⁸ and Jus Gentium: Journal of International Legal History

Lincoln's Code: The Laws of War in American History²⁹ (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 Law³⁰ (Harvard University Press, 2007)

• Reviews in American Historical Review, Harvard Law Review, Journal of American Studies³¹, The Historian³², Law & Social Inquiry³³, Choice, and Washington Lawyer, among others

The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law ³⁴(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 Institutions⁹ (3rd ed., 2022)

Torts: Cases, Principles, and Institutions³⁵ (with Karen Tani) (6th ed., 2022) 

ARTICLES

“Weaponized from the Beginning³⁶,” 4 J. Free Speech Law 715 (2024)   

“Foreseeability Conventions³⁷,” 44 Cardozo L. Rev. 1075 (2023) (with Morgan Savige)  

“American Contagions: Unexpected Pasts, Unwieldy Presents, and Contested Futures³⁸,” 18 U. St. Thomas L.J. 510 (2022)  

“Tort Law’s New Quarantinism: Race and Coercion in the Age of a Novel Coronavirus³⁹,” 71 DePaul L. Rev. 613 (2022) (with Sierra Stubbs)   

“Garland’s Million; or, the Tragedy and Triumph of Legal History⁴⁰,” 40 Law & History Review 123 (2022)  

“On Dignity and Danger: The Virus Next Time⁴¹,” Law & Liberty (Dec. 15, 2021)

“Movement Capture or Movement Strategy? A Critical Race History Exchange on the Beginnings of Brown v. Board⁴²,” 31 Yale J. Law & Hum. 520 (March 2021) (with Megan Ming Francis)

“The Partisan Transformation of American Public Health Law⁴³, 1918 to 2020,” 111 Am. J. Public Health 411 (March 2021)

“Radical Histories / Liberal Histories in Work Injury Law⁴⁴,” 60 Am. J. Legal Hist. 564 (Dec. 2020)

“The Fourteenth Amendment as an Ending⁴⁵,” 10 Journal of the Civil War Era 5 (2020) (with Lisset Pino)

“Inventing the War Crime: An Internal Theory⁴⁶,” 60 Virginia Journal of International Law 52 (2020) (with Jessica Laird)

“Contract’s Revenge: the Waiver Society and the Death of Tort⁴⁷,” 41 Cardozo Law Review 1265 (2020) (with Ryan Martins & Shannon Price)

“Tort as Private Administration⁴⁸,” 105 Cornell Law Review 1093 (2020) (with Nathaniel Donahue)

“The Czar and the Slaves: Two Puzzles in the History of International Arbitration⁴⁹,” 113 American Journal of International Law 535 (2019) (with Bennet Ostdiek)

“Jennifer Egan’s Dive for the Inarticulate⁵⁰,” 134 PMLA (Publications of the Modern Language Association of America) 412 (2019) 

“A Lost Theory of American Emergency Constitutionalism⁵¹,” 36 Law & History Review 551 (2018)

“For Bob Gordon⁵²,” 70 Stanford Law Review 1681 (2018).

“Adjudication in the Age of Disagreement⁵³,” 86 Fordham Law Review 149 (2017)

“Strategy and Entailments: The Enduring Role of Law in U.S. Armed Forces⁵⁴,” 146 Daedalus 11 (2017) (with Laura Savarese)

“Ives and MacPherson: Judicial Process in the Regulatory State⁵⁵,” 9 Journal of Tort Law 43 (2016)

“Constraint, Authority, and the Rule of Law in a Federal Circuit Court of Appeals⁵⁶,” 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 Courthouse⁵⁷," 48 Conn. L. Rev. 219 (2015)

“Civil War Historians and the Laws of War,”⁵⁸ 4 Journal of the Civil War Era 159 (2014)

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

"War and Law in America⁵⁹," 115 American Historial Review 768 (2010)

“Form and Substance in the Law of Counterinsurgency Damages⁶⁰,” 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 System⁶¹,” 56 DePaul Law Review 261 (2007)

“Internationalism and the Dilemmas of Strategic Patriotism⁶²,” 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 Liberties⁶³,” 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 Movement⁶⁴,” 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

“The View from the U.S. Leviathan: Histories of International Law in the Hegemon⁶⁵,” in Randall Lesaffer & Anne Peters, eds., The Cambridge History of International Law, vol. 1 (Cambridge University Press, 2024)  

“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 Wars⁶⁶ (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 Emergencies⁶⁷,” 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 Law⁶⁸ (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 War⁶⁹ (Oxford University Press, 2016)

“Freedom and Restraint,” in Ted Widmer, ed., Disunion: A History of the Civil War⁶⁹ (Oxford University Press, 2016) 

“On Adopting a Posture of Moral Neutrality,” in Bradley Jay Strawser, ed., Opposing Perspectives on the Drone Debate⁷⁰ (Palgrave, 2014)

“Two Conceptions of Suffering in War,” in Austin Sarat, ed., Knowing the Suffering of Others⁷¹ (University of Alabama, 2014)

"The Secret History of the Chief Justice's Obamacare Decision," in Persily, Metzger, & Morrison eds., The Health Care Case⁷² (Oxford University Press, 2013)

“The Political Economy of Pain,” in Bernstein & Hulsebosch eds., Making Legal History: Essays in Honor of William E. Nelson⁷³ (NYU Press, 2013)

"The Social Histories of International Law⁷⁴," 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

“The Unbearable Lightness of Process¹²,” Balkinization, Nov. 13, 2024 

“Is the United States Too Devoted to the Constitution?¹³,” The New Republic, June 24, 2024 

“The Showdown: FDR vs. the Supreme Court⁷⁵,” The Nation, June 27, 2023  

“Lieber at Sand Creek: A New Critical Reinterpretation of the Laws of War¹⁴,” Just Security, March 3, 2023 

“Glacier Gets Tort Law Wrong, Too,¹⁵” OnLabor, Dec. 12, 2022 

“In Jon Meacham’s Biography, Lincoln is a Guiding Light for Our Times⁷⁶,” The Washington Post, October 24, 2022  

“The Justice Who Wanted the Supreme Court to Get Out of the Way⁷⁷,” The New Republic, Aug. 26, 2022 

“The Civil War’s Financial Battles⁷⁸,” The Washington Post, April 1, 2022 (reviewing Roger Lowenstein, Ways and Means: Lincoln and His Cabinet and the Financing of the Civil War (Penguin, 2022)) 

C-SPAN After Words: Interview with Randy Barnett & Evan Bernick⁷⁹ on The Original Meaning of the Fourteenth Amendment, Nov. 10, 2021 

“Fishing, Not Catching, in the History of the Law⁸⁰,” Balkinization, Sep. 20, 2021 “Oh, the Humanity,” Just Security, Sep. 8, 2021 

"Oh, the Humanity⁸¹," Just Security, Sep. 8, 2021

“America’s Forgotten Civil Rights Movement⁸²” The Washington Post, April 23, 2021 (reviewing Kate Masur, Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction (Norton, 2021)) 

“For 100 Years, the Filibuster Has Been Used to Deny Black Rights⁸³,” Washington Post, March 18, 2021 (with Magdalene Zier)

“How U.S. Pandemic Restrictions Became a Constitutional Battlefield⁸⁴,” Foreign Affairs, Dec. 31, 2020 (with Kiki Manzur)

“The Wondrous Banality of Democracy⁸⁵,” in The Yale Review, November 2020

“C-Span After Words with Lawrence Gostin⁸⁶,” Oct 26, 2020

“Republican Judges are Quietly Upending Public Health Laws⁸⁷,” The New York Times, Oct. 15, 2020

“Why We Don’t Need COVID-19 Immunity Legislation⁸⁸,” 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,⁸⁹” The New Republic, April 7, 2020

"The Achievements and Compromises of Two Reconstruction-Era Amendments⁹⁰," Washington Post, Oct. 31, 2019

“The Shrinking Legacy of a Supreme Court Justice:⁹¹ Why Veneration of Oliver Wendell Holmes is in Decline,” The New Republic, October 2019

“Slouching Back to Calhoun⁹²,” Yale Daily News, Sep. 2, 2019

“A Debate over Politics, Principles, and Impeachment – in 1868⁹³,” Wash. Post, May 24, 2019

“Elite Colleges Don’t Understand the Business They’re In⁹⁴,” The Atlantic, March 15, 2019

“Trump’s Farcical National Emergency Plan Should Fail – but it Might Not⁹⁵,” Slate, January 8, 2019

“National Emergencies, Then and Now⁹⁶,” Balkinization, January 7, 2019

“The Operative: How John Marshall Built the Supreme Court around His Political Agenda⁹⁷,” The New Republic, January 7, 2019

“Democrats Need a Plan B for the Supreme Court⁹⁸,” Washington Post, July 27, 2018 (with Ian Ayres)

“Bomber Harris and the Haspel Nomination⁹⁹,” Balkinization Blog, May 9, 2018

“A Hidden Legacy¹⁰⁰,” Yale Daily News, April 5, 2017

“Fighting Words¹⁰¹,” The New Rambler, March 6, 2017

“Symbols and Speech¹⁰²,” The Chronicle of Higher Education, Dec. 19 2016 (with Jonathan Holloway)

“The New Rockefellers¹⁰³,” Wall Street Journal, October 16, 2016

“The Provocative Life of Judge Richard Posner¹⁰⁴,” New York Times, October 7, 2016

“Senate Republicans and the Supreme Court: Where Is This Headed Exactly?¹⁰⁵” New York Times, February 24, 2016

“The Biden Speech Fallacy¹⁰⁶,” Balkinization Blog, February 24, 2016

“Booze and Big Government¹⁰⁷,” Wall Street Journal, December 18, 2015

“Stephen Breyer’s ‘The Court and the World,’¹⁰⁸” New York Times, September 14, 2015

“It Happened Here¹⁰⁹,” Wall Street Journal, April 24, 2015

"How Much Does it Say to Cost to Say 'I'm Sorry,?¹¹⁰'" NPR's Radiolab, December 23, 2014

“Obama, the Least Lame President?,”¹¹¹ New York Times, December 21, 2014

"Debunking A Progressive Constitutional Myth; or, How Corporations Became People, Too,"¹¹² Balkinization Blog, November 15, 2012

"Freedom and Restraint¹¹³," New York Times, September 21, 2012

"The Secret History of the Chief Justice's Obamacare Decision¹¹⁴," Balkinization Blog, June 29, 2012

"The Legal Fog Between War and Peace¹¹⁵," 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-personhood¹¹⁶

"Lincoln's Laws of War¹¹⁷," Slate, February 11, 2009

"History Lesson Ye Olde Gitmo¹¹⁸," Slate, December 9, 2008

“A Declaration the President Ignores¹¹⁹,” Washington Post, July 4, 2007

“First, Rename All the Lawyers¹²⁰,” New York Times, October 24, 2006

“Tactical Withdrawal: The Easy Way Out for the Supreme Court on ‘Don’t Ask Don’t Tell,¹²¹’” Slate, December 5, 2005 (with Ariela R. Dubler)

“Can Chinese Industry Be Made Safe?¹²²,” 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 ¹²³(Stanford 2008), in British Journal of Sociology (June 2011)

Review of Kal Raustiala, Does the Constitution Follow the Flag?¹²⁴ (Princeton, 2009), 28 Law & History Review 569 (2010)

Review of Kenneth S. Abraham, The Liability Century: Torts and Insurance from the Progressive Era to 9/11¹²⁵, 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 Market¹²⁶, in Law & History Review (Fall 2009)

“Tort Law¹²⁷,” in The Encyclopedia of Legal History (Oxford University Press, 2009)

“Elias Hill¹²⁸,” in African American National Biography (Oxford University Press, 2008)

Review of Laura Kalman, Yale Law School and the Sixties: Revolt and Reverberations ¹²⁹(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 ¹³⁰(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 Crisis¹³¹,” 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 Law¹³²,” Columbia Law Report, Fall 2002

“The Klan on Trial¹³³,” 106 Yale Law Journal 1611 (1997)

BRIEFS

Brief of Legl Scholars in Platkin v. FSS Armory, Inc., Superior Court of New Jersey, Chancery Division, June 2024, arguing that the federal Protection of Lawful Commerce in Arms Act does not preempt a New Jersey firearm nuisance statute 

Brief of Legal Scholars in Platkin v. Arms Unlimited, Inc., Superior Court of New Jersey, Chancery Division, October 2024, arguing that the federal Protection of Lawful Commerce in Arms Act does not preempt deceptive marketing claims under a New Jersey consumer protection statute 

Brief of American Historians, in Trump v. Anderson, U.S. Supreme Court, Jan. 29, 2024 (with Jill Lepore, David Blight, and Drew Gilpin Faust) 

Brief of Legal Scholars in National Shooting Sports Foundation v. Lopez, D. Hawaii, Sep. 29, 2023 

Brief of Legal Scholars in National Shooting Sports Foundation v. Bonta, S.D. Cal., July 28, 2023 

Brief of Legal Scholars in National Shooting Sports Foundation v. Ferguson, E.D. Wash., June 7, 2023 

Brief of Legal Scholars¹³⁴, in National Shooting Sports Foundation v. Attorney General of New Jersey, United States Court of Appeals for the Third Circuit, April 9, 2023 

Brief of Torts Professors as Amici Curiae in Support of Respondents¹³⁵, Glacier Northwest v. Int’l Brotherhood of Teamsters Local No. 174, No. 21-1449, November 2022 (with Mark Geistfeld) 

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. Whitford¹³⁶, 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,¹³⁷ 128 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,¹³⁸ 547 U.S. 47 (2006), Brief Amici Curiae of 56 Columbia Law School Faculty Members