Towards a Bibliography of Applied Legal History

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.

Comments

[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.