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July 24, 2010


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Mary Dudziak

Al, thanks for this, which I had also missed. One quibble: I like Jim Stoner,and I agree that he is a scholar and not an ideologue. But as much as it's great for legal historians to be methodologically open and welcoming, Stoner is a political scientist who incorporates history into his work, rather than a legal historian. His Ph.D. is in political science, he chairs the poli sci dept. at LSU, etc.

Alfred Brophy

Yeah--really interesting observation, Mary -- and raises some key questions in disciplinary boundaries and definition of "what's legal history." Probably this deserves some discussion at legalhistoryblog and elsewhere, too. I might title the post, "Varieties of Legal History"....

Partly I suppose whether someone is a "legal historian" is a question of self-definition: does an individual scholar think of herself as a "legal historian." Partly's it's what people write on, partly it's method and questions they ask. And partly it's how firmly one polices the boundaries of our discipline. And I now think of that book as a model of legal history (though I'm idiosyncratic in my tastes and interests!)

There are some people who have phds in political science/government who are legal historians. Sandy Levinson and Morton Horwitz come to mind and for an earlier generation, I'd think of Louis Hartz (perhaps you disagree with this?). I'd add Mark Graber to that list. Though a lot of Mark's questions (like constitutional design) tend more towards the political science than the core legal history, his sources are largely historical and I think his methods are, too. At least for Stoner's first book, I'd think of him as addressing core legal history.

Then there are the literature phds who are legal historians (Perry Miller; Gregg Crane; Jeannine DeLombard all spring to mind). Then there are lots of people who don't have a phd, but who write legal history. Stephen Presser, whom you wrote about in connection with his testimony during the Kagan hearings, is one of them. I think some of Presser's questions about legal method are similar to Stoner's.

This reminds me of Robert Cover's Justice Accused, which is one of my favorite works of legal history -- even though his inquiry was motivated by presentist concerns about how to think of judicial behavior and morality. When I first read Cover, oh, more than two decades ago, I thought "this isn't legal history." I've changed dramatically in my thinking over the years. Each time I've re-read it I've appreciated his insights into history, as well as judicial morality, more.


History is, of course, an older discipline than political science--one reason why Edward Corwin's PhD was in history. But Corwin is a good example of someone who straddled that line. He was, after all, in the Department of Politics at Princeton and yet a good bit of his work was (to my mind) history. The same could be said of Alpheus Mason, who followed Corwin at Princeton. And while there are certainly judicial biographies by political scientists that focus upon conceptions of power or even psychology, some of the very best relied on long work in archives (Woody Howard's biography of Frank Murphy comes to mind). I think that work is, well, history. And political science. It's both. And that's still the case with what I consider some of the best work by political scientists who study public law--people such as Keith Whittington and Howard Gillman and (as you mention) Mark Graber. I have a PhD in political science and I think that the emphasis upon science and the move away from history and doctrine have not necessarily been a boon for the field. But even the number crunchers are testing propositions about how courts work and they are often going into archives to track down the raw data. And that's a type of history too. These walls are porous--from all sides.

Alfred Brophy

Anon and Mary--points well taken.

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