Over at legal history blog, Karen Tani's been kind enough to post some questions about my post on "applied legal history." Karen asks some important questions about "applied legal history," such as "Is 'applied legal history' a useful term? Is it a nice way of saying 'law office history'? Is applied legal history to legal history perhaps what public history is to history, or does it have greater ambitions?"
I want to take up some of these issues. I think applied legal history is a way of describing what a number of us are already doing -- that is, it's a way of talking about what has motived a number of legal histories of late and of also explaining what we are doing to our colleagues. First as to the description. I think applied legal history is scholarship that is inspired by contemporary issues or seeks to address some contemporary issue. It can be something very directly engaged in a current debate, such as the work on the meaning and context of the second amendment in the late eighteenth and early nineteenth century. Saul Cornell and David Konig are two scholars who have both done a lot of work that is directly engaged in a contempoary legal issue. Here I might observe that sometimes people refer to historical work that's aimed at responding to an immediate legal issue as "law office history" -- as in historical work performed in a law office for advocacy purposes. The phrase "law office" highlights that it is both advocacy-oriented and unlikely to be good history. What is very different about Cornell's and Konig's work on gun regulation is that it's actually really good history. They ask questions that are not solely about advocacy; they put questions into context. That kind of work admits what contradicts the arguments the lawyers who use the scholarship are making. Another example of this is the work by Paul Halliday and G. Edward White on the English law of habeas corpus in the eighteenth century and the suspension clause. Closely related to this scholarship may help us understand the context in which statutes were enacted and how, thus, to interpret the statue. I'm thinking, for instance, of work on section 1981, like Robert J.Kaczorowski's "The Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History in Light of Runyon v. McCrary" in the Yale Law Journal back in 1989; and Carry Franklin's recent work on Title VII also does this, among others.
Often, though, applied legal history is a more abstract -- or less applied. I think there are several kinds of this other work that is serious as historical scholarship, but also directed in some ways -- sometimes obliquely -- to contemporary issues. A second branch of applied legal history normalizes (or in some cases destabilizes) some contemporary practice by showing that it has antecedents -- I think of Larry Kramer's popular constitutionalism, Richard Posner's very early work on the economics implicit in nineteenth century tory law, and perhaps Peter Karsten's work on the humanitarian basis of nineteenth century tort law. And I'd also add the work that Sarah Luddington, Mitu Gulati, and I did on repudiation of sovereign debt in the nineteenth and early twentieth centuries. There's a lot more one could add here, including work that shows that judges in the early 20th century and even in the 19th century had a dynamic sense of constitutional interpretation; G. Edward White's work on the Marshall Court and Cultural Change may be an example of some of this -- at least to the extent that it shows how judges in that era, close to the founding, looked broadly for historical and theoretical guidance on interpretation of the Constitution.
A third -- and exceptionally broad -- category of applied legal history scholarship looks to "how we got where we are now." I'm thinking for instance of Felicia Kornbluh's work on poverty and welfare rights in the 1960s, The Battle for Welfare Rights. (And I think Karen's work on Flemming v. Nestor fits here, too.) There's a lot of this kind of literature, which is really terrific history -- Linda Gordon's Great Arizona Orphan Abduction is an example that looks back to the conflicts between miners and their employer in early twentieth century Arizona, but opens with a question about why there are such poor employment and living conditions among Arizona miners today. Along parallel lines, David Tanenhaus' The Constitutional Rights of Children recovers the context of In re Gault and teaches us, in that way, about the state of juvenile justice now. David has linked legal history -- from the establishment of juvenile courts in early twentieth-century Chicago to procedureal rights of juveniles -- to immediate social policy in several op-ed pieces over the years, such as "From a Second-Chance Kid to a Hero" in the LA Times, and just last month, "The Roberts Court’s Liberal Turn on Juvenile Justice," in the New York Times.
I think there is a fourth category of a "useable past" -- which are examples of how people have remade the law. Again, Felicia Kornbluh's work comes to mind -- as well as Ken Mack and Tomiko Brown-Nagin. This is now pretty far from the core of applied legal history, but I think what often motivates that kind of scholarship is at least some desire to show how people outside of the traditional seats of power have thought about law and used it, and remade it. And maybe therein lie possibilities for inspiring more activism -- but even if not that, in letting us know that positive legal change happens in many ways. That literature legitimizes activism and also change.
The Perils of "Applied Legal History"
More ominously, Karen also raises the possibility that a focus on applied legal history will make (shall we call it) "pure" legal history look descriptive rather than normative. I'd go beyond Karen on this. I'm worried that focus on "applied legal history" may highlight that "pure" legal history doesn't relate much to the issues that our law school colleagues care about most. As someone who's spent a lot of my career writing about things like seventeenth century legal thought (and here), jurisprudence in pre-Civil War graduation addresses (and here), how landscape art in the pre-Civil War era illuminates property law, proslavery legal thought at Southern colleges, and the critique of southern jurisprudence in anti-slavery fiction, I am keenly aware that legal historians spend a lot of time on issues that many of our colleagues are likely to find irrelevant -- even if quite interesting. Of course I deeply respect -- and think it important that we produce -- work of "pure" legal history. That kind of work helps us understand how legal thought and legal practice relate to culture, for instance. There are some great examples of work that appears at first having very little relationship to contemporary concerns that are still incredibly important. One of my favorite examples along these lines is Morton Horwitz' Transformation of American Law. Though even that book was inspired by the 1970s controversy over law and economics. So while it's about the pre-Civil War era, it's also about the ways that economic thought infiltrated judicial thought. And there may be some important contemporary implications of Horwitz' findings. We should continue to write on "pure" legal history -- but I think we need to be prepared to defend why we are doing it. Talk of applied legal history may be a relatively easy way of demonstrating to colleagues the importance of our work; there are other ways of demonstratinig that as well. The utility of legal history scholarship is a topic I plan to return to later.
So far I've largely been naming works off the cuff; next up in this series of posts will be an attempt to work towards a bibliography of applied legal history.
The illustration is of a pre-Civil War law office in Eutaw, Alabama, from the Library of Congress' Historic Buildings Survey.