Ted White Q&A: Law in American History in the Scholarly Market

Ted White's most recent book, Law in American History, Volume I, is the point of departure for new questions for him about his work and how it fits with related scholarship.

Q: Although Law in American History, Volume I, makes unique contributions, you also cover some ground that has been covered by other works, particularly Lawrence Friedman's A History of American Law and Kermit Hall's The Magic Mirror. How would you describe the differences in approach between those volumes and yours? Did you (or the publisher) anticipate your volumes as "competitors" to those of Friedman and Hall?

 

A: When I first agreed to do a "history of American law," the scholarship I had produced at the time suggested that I would be unlikely to embrace the approach to law and legal institutions that had become influential among social historians in the 1960s and 1970s, which Lawrence Friedman famously described as law's containing "nothing autonomous," and being "a mirror of society." I believe that the publisher may have anticipated my producing a volume that was self-consciously "competitive" with Friedman's. But by the mid-1990s I had written Tort Law in America and The Marshall Court and Cultural Change, and I had come to the view that the relationship between law and its historical context was reciprocal and complex, and that neither conceiving of legal discourse as wholly "autonomous," nor thinking of legal developments as "mirroring" trends in the larger culture, were satisfactory ways of describing that relationship.

              The principal analytical move that I decided to make in this volume was to try to capture the complex reciprocal relationship between law and its historical context by centering my narrative first on themes that helped to centrally define American culture at periods in its history, and then to examine the way in which law interacted with those themes. I felt that by "taking history first and fitting law around it," so to speak, I would be able to emphasize that the defining characteristics of American law and legal institutions at any point in their history need to be historicized, and at the same time the central role of law in contributing to the major themes of American history needs to be understood.

And here is a related question.

Q: In general, you seem to have chosen to write on topics that have previously been covered a fair amount by other scholars--the Marshall Court, Earl Warren, Justice Oliver Wendell Holmes, sociological jurisprudence, legal realism, process theory, critical legal studies, and even Alger Hiss and baseball. Many historians seek to make a contribution by writing on something that hasn't been covered much in the literature. Was your choice to take up relatively familiar topics a conscious one?

A: That question is a fair way of describing my scholarly orientation. Although my work has sometimes resulted in my writing on quite obscure topics (western lands cases decided by the Supreme Court of the United States in the early nineteenth century or the internal deliberative protocols employed by the Supreme Court of the United States for much of its early history), I have generally been interested in trying to take a fresh look at topics that have been regularly studied because they have successively been deemed important (I am neither the first person nor the last to write on Earl Warren, Justice Oliver Wendell Holmes, the Marshall Court, or Alger Hiss). That has certainly been the case in this volume. Every one of my chapters takes up topics that numerous American historians have addressed, and some of them involve topics (American independence from the British Empire, the framing of the Constitution, slavery) that would be taken up in any survey of American history, including legal history. I am of the view that the continuing perceived importance of certain topics, or the lives of certain figures, means that they are attractive subjects for continuous scholarly reconsideration, and that such reconsideration is a way in which we try to make sense of our current experience.