I invited myself into the Faculty Lounge (thanks Al and Dan!) to test run an idea about teaching legal history as applied legal history. Over the next several days, I’ll put up a series of posts up on the topic. Today’s post sketches out why I think an applied legal history course might be a good addition to the traditional approaches to the ways we teach legal history in law schools and graduate history programs. In a second post, I’ll talk about the way I’d teach applied legal history as a grad level course for both law and history students. Then, in a third post, I’ll expand on that idea with a discussion of a possible JD/MA program in applied legal history. Finally, since I may not have time to read and respond to comments and criticisms as they get made, I’ll try to pull together my responses in a final post, if need be.
So what is applied legal history? As Al Brophy noted in “Introducing Applied Legal History,” as scholarship it comes in many shapes and sizes. In one respect, all legal history is applied in the sense that it may be written to respond to or have an impact on contemporary debates over policy or practice.
In some legal histories, those lessons may be remote, but that does not mean there are none. While a study of the rise of written legal texts in early China, for example, might seem to have little obvious significance to contemporary discussions of Chinese law and likely seems to have no relevance at all to legal study in the West, its exploration of the relationship between institutional development and legal change may have implications that are of as much interest to students of legal systems as they are to scholars of Chinese history. (For another argument about the contemporary significance of legal history issues from remote times and places, see this recent blog post.)
But if all legal history is at least potentially applied history, some legal history is more clearly applied than others. That work explicitly sets out to explore the historical background of current legal problems, or to provide an analysis of contemporary some issue from a perspective that combines law and history. It may be done in legal briefs; it may be done in books and articles. And it is that self-consciously agenda-driven legal history that I want to advocate for as a teaching method.
Why do it? The short answer is that applied legal history offers precisely the opportunity for experiential education that graduate training, whether it be legal or historical, should provide. Both law schools and graduate programs in history are professional training grounds; they do not merely offer instruction on facts, principles, or methods to be learned for the sake of learning, they serve as an introduction to practices of a craft (either legal or historical) and the foundation for the sort of lifelong and self-motivated learning that historians, lawyers and other professionals have to engage in.
Experiential learning, in John Dewey’s sense, with its emphasis on education through problem solving and experimentation, provides an environment in which practices (and their purposes) and the skills of self-instruction are learned. (For another argument in favor of problem-based learning, see this article.) As such, it should be central to both the training of graduate students in history and law.
But to say that experiential learning should be part of legal and graduate history programs does not, of course, mean that a course on applied legal history is the best means of providing that training, or even a necessary one. After all, law schools have clinics and other skill-based courses; history graduate programs require students to write theses and dissertations. Both these elements were designed to fill the role of experiential learning. More to the point, both provide that training without raising the sort of concerns that applied legal history, or applied study more generally, can inspire (see here and here, but also see here).
Chief among those concerns, of course, is the sense that applied study—whether historical or in some other field—is suspect because it is not only bought and paid for, but agenda driven. Of course, applied legal history need not only, or chiefly, be subsidized research. Instead the practice of applied legal history may take three different forms, only one of which is overtly commercial or subsidized:
- 1. Applied legal history may be undertaken simply to uncover the history of a particular practice in order to inform people about a contemporary issue. For example, given my own research interests in the history of criminal justice, and my employment in Florida, I often get calls from the press to explain the stand your ground law’s past. But I do not study criminal justice in Florida, so I know far less about that subject than reporters (or students or colleagues) think I should. If I were to undertake to study on the issue, it would simply be for its practical application. If I were to teach a course designed to investigate the same history it would be a course in applied legal history. Yet there would be no commercial application or client.
- 2. Applied legal history may be undertaken as part of social outreach or service, for example as part of an effort to give a community a sense of its historic self. When a scholar at the University of Texas researches that university’s role in a famous desegregation case, and prepares an archive of that material, he engages in an example of this type of applied legal history, even though the effort is undertaken to help a community understand itself and its past. And where the work is done (at least in part) by scholars employed by public universities, the work is the sort of publicly engaged scholarship that we might otherwise characterize as outreach or (at a land grant university) extension service.
- 3. A third type of applied legal history does involve scholarship done at the request of another, but it still need not be subsidized. It might be an investigation undertaken at a congregation’s request into a local church’s role during civil rights disputes in the 1950s and 1960s. But even this sort of legal history, undertaken pro bono, could be it could be agenda driven to the extent that it was also part of an effort to seek redress through the courts or legislation.
All of these examples are agenda driven to some extent or another, which raises issues of both legal and research ethics. But those in the third category, which are undertaken to advance the particular agendas of third parties, raise the clearest ethical concerns for historians and for legal scholars. And those problems are compounded if the research is paid for by people who presumably expect to have the research reach the result they want.
That fact, it seems to me, is a feature, not a bug in an applied legal history course.
It is a feature precisely because those ethical issues, actual or potential, are matters that can be raised and explicitly engaged as part of the inquiry undertaken in each course. And they are matters of debate, which might have different answers, depending on whether one approaches them from the perspective of a historian or a lawyer. And since those are important things for students to engage as part of their professional training, it is good that applied legal history provides an opportunity for students to undertake that engagement in practice in a classroom.
So implied legal history invites (one might even say requires) ongoing discussion of professional ethics. In an applied legal history course, those discussions can and should be informed by a variety of guidelines, including the legal profession’s codes of professional responsibility, the Code of Ethics prepared by the National Council for Public History, and the statement of Principles and Best Practices of the Oral History Association. In addition, a body of recent works that consider the ethics of history (for example this, this, or this) in general, or look at the particular ethical issues that arise when history is done as part of truth and reconciliation efforts, also provide useful discussions of the problems posed having historical study actively engage contemporary issues.
And in the end, that is the important additional contribution of an applied legal history course: It provides experiential education that goes beyond helping law and history students learn the crafts of history and law by engaging in them under the direction of faculty because that study takes place in a setting where there are potential ethical problems that the students will need to continuously engage, research, and seek guidance about. In that sense, an applied legal history course is invaluable because helps students learn when and how to wrestle with the larger implications and risks posed by their work. In the process, it reminds history students that they are scholars whose work in the past has present consequences and law students that they can never merely be hired guns, or policy wonks, whose obligation is only to a client or an agency at all costs.