I've been working on a short review of the first volume of G. Edward White's Law in American History trilogy. I'm particularly interested in his method -- how law occupies a sort of ancillary place in the story of American history from European settlement through Civil War. Where other legal historians tell stories about the evolution of law or of lawyers and judges, or lawsuits and legislation -- all with "law" as a central piece of the story -- White makes law more an ancillary piece. Law is a gauge, often; or sometimes a bit player. It's one small part of a multiple regression equation that explains American economic, social, and intellectual development. This is a really interesting move by White and I'm interested in why he does this; I think part of it may be that we need to put law into context in that way to see its overall impact.
This has gotten me thinking and reading about other methods of doing legal history -- in part this is motivated also by the recent Law and Social Inquiry symposium on Robert Gordon's "Critical Legal Histories." (subscription necessary). And this reminds me that I want to return to talking about something I've been calling "applied legal history" -- that is, work that is pretty directly motivated by contemporary issues. The motivation may be -- as has happened in the historical profession with immigration -- searching for the roots of contemporary problems. That's a short of low-level of application; there may not be any direct prescriptions that arise out of such work.
There is other work that is more directly motivated with contemporary legal issues. We've seen a series of works of late on how we might interpret federal civil rights statutes in light of their history -- or at least how their history of interpretation affects litigants now. I suppose this is related in some ways to the original intent scholarship we have so much of, which looks to history to make some kind of argument about contemporary constitutional law. The literature on the original meaning of the second amendment comes to mind, obviously. (My recent questioning (and here) of the continuing reliance on Founding-era federalism is a very modest part of the use of history to inquire about contemporary doctrine.) Then there's the literature that seeks to provide a historical grounding (and sometimes context, too) for contemporary doctrine. In essence, it's scholarship that legitimizes current practices -- one of my favorite examples along these lines is Richard Posner's early work on nineteenth century tort law and economic efficiency. (And, rather oddly, given their different political orientations, I think Morton Horwitz' first book did that as well for the economic interpretation of the common law in the nineteenth century.)
And then there's work that is pretty directly engaged with the continuing effect of past events on the present disputes or to put those disputes into a better context. A lot of the work on Native American history fits this -- books like Robert Williams' The American Indian in Western Legal Thought and Lindsay Robert's Conquest By Law, come to mind here. A lot of recent African American history that falls into this category as well, obviously -- like Doug Blackmon's Slavery By Another Name. There are a lot of works one could put in the category of applied legal history and I hope to talk a lot more about how this genre seems to be increasing in importance.
The illustration is the Confederate Soldier outside the Albemarle, Virginia County Courthouse. I put it there to illustrate that history -- often linked to law -- is used to shape contemporary debate.