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February 15, 2013

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Matt Crow

What is the standard of use or "useable" being applied here? (One could also ask this question in the cost of scholarship debate below, I suppose). Doesn't all of the work you list across all of the categories meet the criteria for your final category? What is the difference between use and application, or useable and applicable, in distinguishing what is useable or used within applied legal history? What about Larry Kramer's book, for example, makes it applied (or applicable...?) but not directly for use?

Great stuff here on the blog.

Alfred Brophy

Hi Matt,

Thanks for these questions and for joining the conversation. Couple of quick thoughts.

There are varying degrees of usefulness -- some is quite directly useful (such as how to interpret the second amendment); others less so, but the literature is still aimed or (or at least speaks to) contemporary questions. The fifth category is something of a catchall, but I'm not sure that the history of second amendment tells us so much about how people have remade the law. What I was primarily thinking about in the fifth category is work that may inspire or at least guide future efforts at reform. That's why I mentioned a couple of recent works like this (Mack's and Brown-Nagin's).

Kramer's The People Themselves makes more acceptable public constitutional arguments because it teaches us that our ancestors used public constitutional arguments -- that is, Kramer expands the tools available to people who think the federal government is over-stepping its bounds.

Kurt Lash

Some of the best examples of "applied legal history" are presented every year at San Diego's Conference on Originalist Works in Progress. For a list of this year's impressive program (which is happening as I post), see: http://originalismblog.typepad.com/the-originalism-blog/.

I often hear critics of originalism claim that proponents of this method are not really "doing history," but are only selectively "cherry picking" evidence. I suppose that may be true for some originalist works, but we can all think of certain historians who gave into the same temptation. The real divide is between those historians who reject the concept of law as a semi-autonomous subject of historical analysis, and those who believe that recovery of the historical meaning of legal texts is both possible and important. Both sides seem far too quick to accuse the other side of poor, or even bad-faith, scholarship.

I have too many favorites to list, but I am particularly impressed by the recent article by Nathan Chapman and Michael McConnell, "Due Process as Separation of Powers" (forthcoming Yale Law Journal).

Matt Crow

Professor Brophy- thanks for responding. I suppose I was only drawing attention to the potentially expansive concept of use here (the status of usage and usefulness in law and history is a little pet project of mine, so the question was selfish, admittedly). I would only add that Saul Cornell's work on the 2nd amendment, for example, is directly historical, directly applied, and is at least intended, if I understand correctly, to be an intervention in contemporary constitutional politics, i.e., an impetus to historically inflected discussion and reform.

Professor Lash- on that point, I agree with your point about the "doing history" critique- that is well taken. I would argue, however, that on the particular point about originalism, the divide (perhaps, a divide) might be between those who believe they can and should recover the historical meaning of texts and those who believe they might be and should all the same try to recover and understand the historical meanings of texts. It is not really a question of context vs. no context, but of whether our history and our jurisprudence, and our histories of jurisprudence, can live with the recovery and representation of a plurality of contexts.

Tom Russell

Al,

I guess I'm not entirely sure what you mean by "Applied Legal History." Is my piece about Professor Simkins part of this genre?

Also, what's the alternative: unapplied legal history? unappliable legal history?

Tom

Alfred Brophy

Yes to your piece on Simkins, most definitely.

Unapplied legal history (which I call in the essay "pure legal history") is work that is neither motivated by contemporary questions, nor attempts to speak to them.

Bill Davies

I'm wondering if there is scope to spread this bibliography beyond the American arena to also include scholarship on Britain and Europe (in it's various incarnations)?

For instance, the group of historical scholars I work closely with are interested in testing the idea that European Union law has been 'constitutionalized' and that the expansion of the powers of the European Court of Justice has been accepted and utilized by national judiciaries and governments. This is a widely found notion in professional and legal academic circles, but one that does not seem to be holding up very well against the scrutiny of newly released material from national and European archives. This might well have important implications for a contemporary EU in on-going crises (not least of democratic legitimacy). An overview of this scholarship can be found in the Contemporary European History journal special issue from late last year (Issue 21, 3 August 2012).

I'm intrigued by the distinction between pure and applied legal history and have just downloaded the Law and History Review article. I hope that finding out more about the finer points here will allow me to start adding to the historiographical sophistication on the EU side of things.

Alfred Brophy

Thanks for the suggestion, Bill -- I certainly think we should be thinking about applied scholarship outside of the US.

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