This spring I am teaching a new seminar on “Law and History.” In case of interest, here is the course description and a tentative list of readings. The seminar is aimed at future lawyers, not future legal historians. So, the goal is not to be comprehensive or to provide the kind of methodological instruction that a history department legal history course might attempt. Rather, the goal is to give students a sampling of different approaches and topics in legal history (with an emphasis on recent scholarship rather than attempting a full survey of “canonical” works), some insight into how historians think (or think they think) as compared to how lawyers think, and an introduction to the issues that arise when historians seek to inform or influence the law. (This post is not the complete syllabus but just a list of some of the readings I plan to include.)
Course description: Historians have served as expert witnesses, filed amicus briefs, and shaped judicial thinking on topics ranging from criminal procedure and Second Amendment rights to employment discrimination and same-sex marriage. This seminar will explore both sides of the two-way interaction between law and history. How do historians draw on legal sources to explain change over time? In turn, how do lawyers and judges draw on historical sources to advance legal arguments? Given the disciplinary and methodological differences between lawyers and historians, how can or should history inform law? In Part I, “Law as History,” we will examine examples of recent scholarship on legal history. In Part II, “History as Law,” we will examine recent Supreme Court cases in which historians, historical research, and/or popular narratives about history have played an important role. Students will have two options for the final paper: (1) a legal history research paper or (2) an advocacy paper or mock brief that uses historical research to intervene in a doctrinal or policy debate.
Readings
INTRODUCTION
Lawyers v. Historians
Jacquelyn Dowd-Hall and Sandi Cooper, “Women’s History Goes to Trial: EEOC v. Sears, Roebuck and Company,” Signs vol. 11, no. 4 (Summer 1986): 751-779.
Alice Kessler-Harris, “Equal Employment Opportunity Commission v. Sears, Roebuck and Company: A Personal Account,” Feminist Review no. 25 (Spring 1987): 46-69.
Sam Wineburg, Historical Thinking and Other Unnatural Acts: Charting the Future of Teaching the Past (Philadelphia: Temple University Press, 2001), 3-24.
Laura Kalman, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996), 167-171, 191-208.
Optional: Anne Orford, “The past as law or history? The relevance of imperialism for modern international law,” http://ssrn.com/abstract=2090434
PART I. LAW AS HISTORY
Lawyers and Their Worlds
Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in America (Oxford: Oxford University Press, 1977), vii-xiii, 130-157.
Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Cambridge: Harvard University Press, 2012), 1-11, 207-233.
Exclusion and Inclusion
Felice Batlan, Women and Justice for the Poor: A History of Legal Aid, 1863-1945 (Cambridge: Cambridge University Press, 2015), 1-46.
Michael Willrich, “‘Close That Place of Hell’: Poor Women and the Cultural Politics of Prohibition,” Journal of Urban History vol. 29, no. 5 (July 2003): 555-574.
Crime and Punishment
Laura F. Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009), 64-99.
Jeffrey S. Adler, “‘The Greatest Thrill I Get is When I Hear a Criminal Say, “Yes, I Did It”’: Race and the Third Degree in New Orleans, 1920-1945,” Law and History Review vol. 34, no. 1 (February 2016): 1-44.
Native Histories
Bethany R. Berger, “Red: Racism and the American Indian,” UCLA Law Review vol. 56 (2009): 591-600, 639-656.
Karen M. Tani, “States’ Rights, Welfare Rights, and the ‘Indian Problem’: Negotiating Citizenship and Sovereignty, 1935-1954,” Law and History Review vol. 33, no. 1 (February 2015): 1-40.
Pain and Suffering
Barbara Young Welke, “The Cowboy Suit Tragedy: Spreading Risk, Owning Hazard in the Modern American Consumer Economy,” Journal of American History vol. 101, no. 1 (June 2014): 97-121.
Nate Holdren, “Incentivizing Safety and Discrimination: Employment Risks under Workmen’s Compensation in the Early Twentieth Century United States,” Enterprise & Society vol. 15, no. 1 (March 2014): 31-67.
PART II. HISTORY AS LAW
Law-and-Order Originalism
Atwater v. City of Lago Vista, 532 U.S. 318 (2001) and related readings
Legacies of Injustice
Shelby County v. Holder, 570 U.S. — (2013) and related readings
Historians and the Second Amendment
District of Columbia v. Heller, 554 U.S. 570 (2008) and related readings
Historians and Same-Sex Marriage
Obergefell v. Hodges, 576 U.S. — (2015) and related readings