Continuing on the talk of "applied legal history" here, over at the legal history blog by Karen Tani (and here), and in the Law and History Review, (download it now if you're interested in this -- a subscription wall goes up at the end of February!) I want to talk about the varieties of applied legal history. I'm now thinking that I like the following categories, though obviously there's a lot of refining that one could do. And I'm also going to try to start listing work that fits into each one. One of the things that I'm realizing is that a lot -- perhaps the majority -- of recent legal history fits into one of these categories. So this list is going to be suggestive of the kinds of work I'm thinking about and I'm also recycling parts of posts from last summer on applied legal history (and here).
(1) Work that uses legal history for constitutional or statutory interpretation. A lot of this will include work that's aimed at original intent. But I don't want to include every work of "originalism" here, because one of my points is that "applied legal history" maintains the standards of the history profession in gauging the context, rather than selectively pulls out data to serve its purposes.
Some examples that come immediately to mind are Paul Halliday and G. Edward White, "The Suspension Clause: English Text, Imperial Contexts, American Implications," 94 Va. L. Rev. 575 (2008); David Konig, "Arms and the Man: What Did the Right to "Keep" Arms Mean in the Early Republic?,"25 L & Hist. Rev. 177 (2007); Saul Cornell, "The People's Constitution vs. The Lawyer's Constitution: Popular Constitutionalism and the Original Debate Over Originalism" 23 Yale Journal of Law and Humanities 295 (2011); Robert J.Kaczorowski, "The Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History in Light of Runyon v. McCrary" 98 Yale Law Journal 565 (1989).
(2) work that normalizes (or in some cases destabilizes) some contemporary practice by showing that it has antecedents (or lacks antecedents). I think of Larry Kramer's The People Themselves; Richard Posner's very early work on the economics implicit in nineteenth century tort law.
(3) work on historical practices that is inspired by a contemporary issue and seeks to understand or critique those practices. This is closely related to 2, but perhaps deserves separate treatment. Because I think there's important work that isn't so much about showing that past history is consistent (or inconsistent) with current practices, but that legal history can tell us something about present legal practices or the morality and wisdom of them. Robert Cover's Justice Accused: Anti-Slavery and the Judicial Process (1975). And maybe I'd put Michael Klarman's From Jim Crow to Civil Rights here, because of its caution about the problems with backlash (he also appears in the fifth category below).
(4) work that asks "how we got where we are now." I'm thinking particularly of Felicia Kornbluh's work on poverty and welfare rights in the 1960s, The Battle for Welfare Rights. (And I think Karen Tani's work on Flemming v. Nestor fits here, too.) 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.
(5) "useable legal history," a sort of catch-all category, which teaches us something about contemporary law reform. What really interests me here are studies of how people have remade the law. Again, Felicia Kornbluh's work comes to mind, as well as that of Ken Mack and Tomiko Brown-Nagin. But I suppose that Michael Klarman's From Jim Crow to Civil Rights fits here, too. A lot of this literature is 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.
There are a lot more examples one could add here -- and I'd be most interested in hearing in the comments about readers' favorite work that should be added here.