Constitutional Law

Examining Executive Power

Professor Jed Shugerman leverages legal history expertise to advocate for checks on the executive branch.

Jed Handelsman Shugerman realized he wanted to be a law professor and a legal historian soon after starting law school. “I continued to find the historical questions—the social and political context, the legal realist perspective—the most important and interesting,” he shares, “and I discovered that many of the law professors on the faculty were filing historical amicus briefs in Supreme Court cases and writing historical articles with immediate legal significance.”

Shugerman joins Boston University as professor of law and Joseph Lipsitt Scholar. He is coauthor of amicus briefs on the history of presidential power, the Emoluments Clauses, the Appointments Clause, the First Amendment rights of elected judges, and the due process problems of elected judges in death penalty cases. Most recently, Shugerman filed an amicus brief in SEC v. Jarkesy, focusing on the question of presidential power. He also wrote a series of op-eds and essays about the Trump investigations and impeachments for the New York Times, the Washington Post, Slate, the Atlantic, Politico, and other publications. Prior to joining BU Law, he taught at Fordham Law School for seven years, one of which was spent as a visiting professor at BU Law. He teaches Torts, Civil Procedure, Administrative Law, Statutory Interpretation, and Federal Courts, in addition to re-starting the Clark Legal History Colloquium this spring.

Shugerman received his BA, JD, and PhD in history from Yale. In between college and law school, he lived in Israel for two years, studying Jewish law and interning with Rabbis for Human Rights, assisting Israeli Arabs and West Bank Palestinians in protecting their property rights. While at Yale Law School, he worked on death penalty cases and “discovered that one could be a legal historian doing interesting intellectual work with real-world relevance.” Shugerman continues, “I decided to work on a joint JD/PhD, and my dissertation research emerged from my death penalty defense work.” Shugerman published his dissertation as The People’s Courts (Harvard University Press 2012), tracing the rise of judicial elections, judicial review, and the influence of money and parties in American courts.  This year, he is drawing on that research as an expert assisting the NAACP’s defense of African American voting rights in Jackson, Mississippi.

Shugerman’s upcoming book projects are shaped by his experience with clinical death penalty defense work and prisoners’ rights litigation as a law student and a graduate student. One book, tentatively titled A Faithful President: The Founders vs. the Originalists, focuses on the Roberts Court’s “unitary executive theory”—the theory that the president has unconditional powers beyond the checks and balances of the other branches—as a case study of originalism overreach. Drawing on new historical evidence and re-interpretations of misunderstood evidence, he puts the presidency in the context of fiduciary duties of good faith, loyalty, and public accountability, with practical legal consequences for constitutional law, administrative law, civil rights law, and the law of national security.

The second book project, titled The Rise of the Prosecutor Politicians: Race, War, and Mass Incarceration, also examines power dynamics. Shugerman illustrates how prosecutors influenced political campaigns in the mid-twentieth century. He points out that prosecutors’ increased leverage in the late twentieth century caused the rates of arrests to prosecution to double, leading to mass incarceration.

Outside of work, Shugerman contributes to his local community through the Newton-Brookline Asylum Resettlement Coalition, an interfaith group assisting asylum seekers in the greater Boston area. He also enjoys spending time with family through sports, movies, “long dramatic television series,” and travel. Shugerman is a third baseman in a local synagogue softball league (though he confesses that his arm isn’t what it once was). He writes about law, history, politics, and sports on Shugerblog.com. He advises BU Law students, “Find balance—whatever balance means to you. Keep in touch with old friends, make new friends, and find mentors.”