"Comps" Part II: Law and the American State

Picking up from my earlier post on preparing for legal history "comps," I would encourage graduate students to include on their lists some books and articles that tackle the intersection of legal history and the burgeoning literature (much coming from political science and historical sociology) on law, political economy, and the state. Based on the offerings at recent legal history conferences, this is a hot area. Six shorter pieces that I've found valuable are:

• Dan Ernst, "Law and American Political Development, 1877-1938," Reviews in American History (1998).

• William Novak, “The Legal Origins of the Modern American State,” from Looking Back at Law's Century (2002).
  

• Reuel Schiller, "'St. George and the Dragon': Courts and the Development of the Administrative State in Twentieth-Century America," Journal of Policy History (2005).

• John Skrentny, "Law and the American State," Annual Review of Sociology (2006).

• William Forbath, "Politics, State-Building, and the Courts, 1870-1920," The Cambridge History of Law in America, Vol. 2 (2008). This piece also includes a very helpful bibliographic essay.

• Paul Frymer, "Law and American Political Development," Law and Social Inquiry (2008).
  

These articles, chapters, and review essays address the relationship between law, courts, state-building, and policy making. They also challenge the enduring assumption that law's role in the development of the American state has been largely negative or obstructionist.

A related piece that I recommend, and continue to grapple with, is Barbara Welke's "Willard Hurst and the Archipelago of American Legal Historiography," from a Spring 2000 Law and History Review symposium on "Engaging Willard Hurst." Welke begins with this simple but thought-provoking observation:

Leading works published since the 1980s relating to law and the modern administrative state that privilege economy and politics—work by scholars like William Novak tracing the nineteenth-century common law roots of the modern regulatory state, Stephen Skowronek on the construction of a national administrative state, and Martin Sklar on the intersection of reform with the rise of corporate capitalism in reshaping the political economy of the American state—remain intensely engaged with the work of Willard Hurst. Leading works published in the same period relating to law and the modern administrative state that privilege gender—work by scholars like Kathryn Kish Sklar on Florence Kelley and women's political culture, Linda Gordon on the welfare state, and Leslie Reagan on abortion—do not cite Hurst in the footnotes or, for the most part, in their bibliographies. For that matter, those from one sub-field do not cite the other and vice versa.

Do others who work in this area have additional suggestions? Any thoughts from non-U.S. legal historians or early Americanists?

Image: James Willard Hurst and his beloved typewriter.