Last summer Karen Tani over at legal history blog (and here) and I had a couple of posts (and here) about the idea of "applied legal history" -- that is, legal history scholarship that speaks to contemporary issues. Now I have a brief essay on applied legal history in the current issue of Law and History Review. It introduces an article by James Oldham and Su Jin Kim on arbitration in the late eighteenth century. Oldham and Kim recover a robust arbitration culture, which may have some implications for how courts think about the historical roots of this increasingly controversial practice. Elizabeth Dale, the editor-in-chief of LHR, is planning on other occasional pieces in this series.
My essay aims to label the varieties of applied legal history -- some are quite direct in their application (like the work that suggests how to think about a constitutional amendment or presidential power) and others are more remotely connected to the present -- such as work that normalizes (or in other cases destabilizes) a contemporary practice by showing that it has (or perhaps lacked) antecedents. One classic work of this genre is C. Vann Woodward's Strange Career of Jim Crow. Woodward recognized that the “twilight zone that lies between living memory and written history is one of the favorite breeding grounds of mythology.” I suggest a few other categories as well -- that which seeks to tell us how we got where we are (and either a subcategory or closely related other category that is inspired by concern over contemporary issues and looks back at their antecedents), and one that seeks a “useable legal history,” which teaches us something about contemporary law reform. Cribbing now from the essay:
Sometimes there is a direct lesson, such as in Michael Klarman's From Jim Crow to Civil Rights, which has a fairly stark message about the dangers of looking to the courts for social reform. Often the lesson is more indirect, such as how people have remade the law. Felicia Kornbluh's work on welfare comes to mind, because that shows us something about how reform takes place. Kenneth Mack's Representing the Race and Tomiko Brown-Nagin's Courage to Dissent both teach us lessons about how reform happened, from lawyers' offices to civil rights protesters who took to the streets to remake their world. Mack's and Brown-Nagin's work is far from the core of applied legal history, but what often motivates that kind of “useable past” is some desire to show how people outside of the traditional seats of power have thought about law and used it, and remade it. Perhaps therein lie possibilities for inspiring more activism. But even if inspiring activism is not the goal, it lets us know that positive legal change happens in many ways; that literature legitimizes activism and, perhaps, change.
Until the end of February "Introducing Applied Legal History" is available without a subscription on the Law and History Review website, along with a couple of other articles from the current issue, Kristin Collins' "'Petitions Without Number': Widows' Petitions and the Early Nineteenth-Century Origins of Public Marriage-Based Entitlements" and Kimberley Reilly's "Wronged in Her Dearest Rights: Plaintiff Wives and the Transformation of Marital Consortium, 1870–1920". After that you'll need a subscription (which is included as part of the annual dues for the American Society for Legal History). If you already have a subscription I'd urge you to check out the entire content of this month's LHR, which includes Roman Hoyos' very good article "The People's Privilege: The Franking Privilege, Constituent Correspondence, and Political Representation in Mid-Nineteenth Century America."