Friday, May 27, 2011

im in ur base...

A number of years ago, when I was still teaching at Clemson, I invited Kermit Hall in to give a talk. At the dinner after his lecture, he turned and asked what I thought of the state of legal history. As a practical matter, I thought legal history was in pretty good shape. I knew lots of people who did legal history,  many of them fresh out of law school. I thought quite a few people were doing interesting things in a lot of different areas. So I said something vague to that effect. It was pretty clear he was not so sanguine, though he didn’t elaborate much more than I had. Since I had invited him down to give the talk as part of some scheme to convince the administration that Clemson should be doing something New! and Exciting! in legal history (I forget what, I am constantly trying to convince administrators I should be allowed to do something New! and Exciting! in legal history; it all runs together in my mind) I was just as glad that someone else changed the subject.
A couple of years later, I was sitting in a conference room at UF waiting for a department meeting to start when one of my colleagues in history turned and asked me what I thought about the fact that I taught in a dying field. When I sputtered “What?” he asked me if I didn’t agree that legal and constitutional history were going the way of the dodo. It probably would have been prudent to have broken something as a distraction or otherwise tried to change the subject, since I didn’t have tenure at the time and the colleague who was trying to provoke me did.  But I am not always prudent. So instead I pointed out that of the people in the room with us, any number worked with cases or statutes; some read regulations for their research, others read treaties, and another group studied things like citizenship, public spheres, administrative systems or the State. So far as I was concerned, that was all legal or constitutional history. I’m not sure I added that legal history wasn’t dead, all history had become legal history, but that’s certainly what I meant to imply.
Notwithstanding my propensity to make wild claims about the hegemonic reach of legal history, I have my moments of, not doubt exactly, futility, perhaps. It is doubtless a result of my delusions of grandeur (see the discussion of my propensity for New! and Exciting! schemes, above), but I think we might make more effective use of our hegemony. 
If nothing else, we could try to reach out a bit more to our colleagues in law and in history to try to persuade them to pay a bit more attention to each other’s crafts. History is hardly circumscribed in law schools; historical stuff turns up in most law school courses one way and another. And sometimes it can be very well done and effective. But sometimes it's classic comics history at best and at worst an exercise in creative hypothesizing where, instead of doing a few minutes of historical research, people speculate about what might have happened at X moment in the past and then build their arguments on the history they just invented. Likewise, I’ve had undergraduate history majors assure me that in another history course they learned that a case stood for a particular proposition or had a specific significance, when even a casual reading of the case shows it could not be understood to mean anything of the sort.  And it's not just students, I’ve heard historians give papers that argued that a decision or a legal rule demonstrated something that is simply not plausible.
So I wonder whether, at the very least, we could spend time trying to figure out ways to help make discussions of history in law schools more sophisticated and discussions of law in history courses more subtle.  I don’t mean that we should insist that all law professors preface their historical assertions with a disclaimer (“Before I tell you X I should inform you that the following three books offer a completely different interpretation of this case and its historical context”) or insist that they consult Wikipedia before making some historical claim. Nor do I mean that we should wander around the halls of history departments demanding that all history professors learn to issue spot or test them on their ability to identify the holding of a case.
I was thinking less along the lines of hegemon as enforcer and more along the lines of hegemon as cultural broker. To return to the meme in this posts title, perhaps Instead of killing (or disciplining) them, we could try to figure out ways to bring the perspectives of the dudes in one base to the dudes of the other. For example, it is my sense (as I suggested in a response to a comment, here) that law students are trained to think of law vertically, while history graduate students are conditioned to think of law horizontally. For law students, a case or statute or constitution builds on earlier doctrines, or decisions, or failures, and provides a foundation for subsequent cases, statutes, or constitutions. For history graduate students, in contrast, a case, or statute or constitution is more often seen as part of a larger discourse that is also articulated in contemporary literature, or other cultural or social manifestations. Obviously, that’s something of a simplification--good historians understand that a particular era’s discourse reflects earlier discourses and social structures, and serious students of law understand that precedent is shaped by current events and assumptions as much as by the doctrines of the past.  But I think there is a general difference in perspective, which, in turn, influences how each group approaches and uses history and law.  
So maybe we could exercise our hegemony by trying to shift those perspectives, so that both groups routinely think of law in multiple dimensions. Law professors, and students, could be encouraged to consider and talk about decisions as part of a historical moment. Legal outcomes, in this perspective, are shaped by a larger discourse, and legal institutions are part of an array of institutions and practices that shape behavior at any given time. Historians, and history students, could be encouraged to think of cases (or statutes, or whatever) as part of particular moments in time and subject to the institutional constraints of precedent and procedure.
I'm sure that this sort of multi-dimensional approach to law is what most of us do when we teach legal history, regardless of where we are and who we are teaching at any given moment. The question is how we persuade our colleagues, and by extension students, on both sides of campus, to join us. 


Andrew Lyall said...

Re ypur post:
"I am constantly trying to convince administrators I should be allowed to do something New! and Exciting! in legal history"
If you need the permission of administrators to take up a particular topic in academic research, then there is a more serious problem to address. Extraordinary!

Debbie Kang said...

A course, seminar or survey, that's cross-listed in both the law school and history department of a particular campus. It could even be team-taught by a law professor and a history professor. The syllabus, moreover, would integrate both cases and historical monographs as well as extensive discussions regarding the respective methods of legal scholars and historians.

I make this suggestion because as a teacher, I've found that a single course on legal history (that articulates both the law school and history approaches to legal history) plays a profound role in shaping the outlook of my undergraduates with respect to the law (its meaning, its institutions, and its social and cultural implications) as well as change over time (the core issue confronting historians).

Within the confines of this course, I also give my students the tools to conduct historical research in ways that would withstand the scrutiny of both legal and historical scholars. For instance, I devote two class sessions to legal research: one in the classroom in front of the computer (using LexisNexis, Thomas, etc.); and the second in the government documents section of the library where we complete a short legislative history. This second exercise is eye-opening for undergraduates. One student saw the _Congressional Record_ and immediately exclaimed, "Wow, so this is like the paper version of C-Span!". More seriously, the law (understood as legislation and judge-made law) becomes much more concrete to the students. As I walked them through the library, I sensed that they were beginning to understand what really goes on behind the walls of Congress and the courts.

Even more important, these library tours as well as the class as a whole led many of my students to write legislative histories for their next paper assignment. And the following semester, several went on to write impressive senior theses on various topics in American legal history.

Taught at the graduate level, I am fairly certain that a legal history course (emphasizing the multidisciplinary nature of the field) would go a very long way toward developing a new generation of scholars and producing the kind of "New! and Exciting!" scholarship Dale seeks.

Elizabeth Dale said...

Hi folks, I appear to have not bbeen clear, so let me offer a couple quick clarifications:

First, Andrew it's not that anyone is controlling my research. On the contrary, that's never been an issue, not even when I casually announced that I thought I'd do Chinese legal history now. The New! and Exciting! stuff has been in the realm of teaching and programs.

Second, and that brings us to Debbie's points, all of which are good. While I've had some success with some team taught ideas, I have not been as lucky pushing ideas of sustained interdisciplinary programs and offerings.

But that doesn't mean any of us can't teach that sort of thing ourselves, and I think many of us probably do. I do. And I play my JD and PhD (and experience practicing law) to the hilt to get Debbie's point about different perspectives across.

But my interest isn't so much in "us," I think we know the importance of interdisciplinary approaches that respect both disciplines. My question, in aptly framed as it was, is how to persuade our colleagues in both disciplines to take the concerns and interests of the other discipline more seriously? Given the extent that "normal" professors of history teach law stuff, and "normal" professors of law teach history stuff,I think we need to evangelize to our colleagues as much as our students.

Elizabeth Dale said...

Sigh, inapt and inept, all at once! I apologize for the typos and odd punctuation in my last comment. It's true what they say--multitasking is bad.

Debbie Kang said...

A few ideas on how to bridge the intellectual and even social divides between law school professors who teach history and historians of law:

1) a speaker series on legal history with plenty of time for Q & A so that participants can engage in methodological debates

2) an informal faculty reading group involving members of the law school and history department (we have on here on my campus)

3) an NEH-sponsored or other grant-funded symposium on legal history held at your campus

No matter what forum you choose, I personally think it's critical to allow a lot of time for discussion and debate, especially about methodological issues.

Good luck and I would be interested to hear what you decide to do you on your campus.

I think that this is an important issue, especially when, from my perspective, legal history is, on some campuses, a dying field because it may not enroll the same numbers of students as say a cultural history or social history class.

These structural factors, I think, make it important for us to think about how we can sustain the teaching of legal history in humanities departments -- but without having to make sacrifices with respect to intellectual and methodological rigor.

Bruce Boyden said...

"when one of my colleagues in history turned and asked me what I thought about the fact that I taught in a dying field."

I'm curious about what might be driving that impression. Did he elaborate, or do you have any theories?

Mary L. Dudziak said...

Regarding Bruce's question, the idea that legal history is a 'dying field' strikes me as incredibly out of date. Historians outside the field used to say things like that, maybe two decades ago. That was often because they thought that legal history was only the history of legal doctrine. But now so many historians are turning to law, in part due to a new interest in the state. I often advise both junior and senior historians about how to get up to speed on the law they need to know. And while there is still a fair amount of ignorance about what legal historians actually do - it seems to be much better now than 15-20 years ago. So Elizabeth's colleague strikes me as out of date on the issue of what historians in general think of legal history.