Thursday, March 20, 2008

Why I write books...

Having been provoked when I am facing a deadline...

Legal history has its place, but you will be fighting a very large uphill battle in submitting a piece that has few to none prospective and/or normative conclusions.

What will Mary Dudziak say?

let me say only this: legal history that makes no argument is not good legal history. Legal history that is principally "prospective" is sometimes fine but can often be, well, "law office history," history in the service of advocacy. This sort of history may work in an amicus brief, but would not make it through peer review in a history journal.

There is a diversity of methodologies in legal history, but legal history helps us understand the nature of legal system, and the relationship between law and social change. New transnational and comparative work (e.g. here and here), to take just one example, helps us to see that the new interest in globalization is not so new, and provides a window on the way national legal ideas have transnational sources and impacts. The sort of arguments found in historical work will generally take a different form than arguments in legal theory. We have a division of labor in the academy.

At a time when history has become a form of analysis on the Supreme Court (e.g. in PICS, Lopez and many other cases), this is hardly a time to turn away from legal history, including in legal education, in spite of recent contrary comments.

But the dismissal of legal history by law review editors is one reason that publishing in peer reviewed history journals and books, where the critical comments in the editorial process go to the substance of the historical arguments & evidence, can be so much more satisfying. There are, of course, exceptions. It usually depends on whether someone on a particular law review board has an interest and/or expertise in history.

While Lawrence Solum is right to imply that the above quote can be thought of as a parody of law review thinking (there is a more earnest take on the blog in question here), there is a substance behind the parody that needs to be engaged.

2 comments:

  1. We need legal history to prevent the originalists of various stripes that continue to surface from cherry picking from among the founders/framers/ratifiers, etc, to support their positions. They seem to start with their conclusion and then search only until they find some quote that may be out of context; they are ideology advocates. Legal History is a check and balance on Legal Theory. We need both - plus a sense of humor.

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  2. This is where legal history constitutes the facts of a constitutional tort trial, and the basis of appellate advocacy.

    The origins of the core legal doctrines of today have their origin in Scholasticism. The paper trail to this church doctrine make them unlawful in this secular nation.

    The mens rea. Future forecasting as the basis of duty to not harm others. The word, reasonable, meaning, in accordance with the New Testament. Each violates the Establishment Clause and is unlawful.

    Despite IQ's of 300, and lengthy publications on the First Amendment, no one has yet to spot this lawbreaking by the entire lawyer hierarchy. It is in out of control insurrection against the Constitution. This blindness to the self-evident is itself a form of collaboration with treason.

    If anyone can think of anything more compelling in the law than this paper trail by the legal history scholar, I would like to hear about it.

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