Friday, March 21, 2014

The Legal Foundations of Modern American Capitalism

Front CoverAs I mentioned at the end of my last post, I thought I’d revisit the different ways of teaching legal history.  Following the lead of other bloggers, I thought I’d discuss how I’ve approached my legal history classes.  The title of this blog post is the title I’ve used in the past for my legal history seminars.  I’m sure most LHB readers will recognize it as a riff on John Commons’s famous book by a similar title. 

When I first began teaching I was rather optimistic about developing synergies between teaching and research.  And, so, I choose this title as a rubric for some of the readings that I wanted, and needed, to do for my own research projects.  As a new faculty member, I was also apprehensive about attracting students to a new course, and so I figured a capacious and bombastic title like this one might appeal to law students and graduate students in history and the social sciences.  It turns out I was half right.

Like most overeager instructors, at first, I tried to do too much in one course.  As a result, many traditional law students dropped the class, especially once they saw the reading list, while students from the social sciences or those law students with strong backgrounds in the humanities and social sciences generally stuck around.  Originally, I organized the course into four units: (1) “Classical Social Theories on Law and Political Economy” using excerpts from Adam Smith, Karl Mark, Max Weber, et al.; (2) “Sampling the Historical Canon on Law and American Development,” reading the works of Hurst, Scheiber, Horwitz, et al.; (3) “Revising the Canon: New Works on Law and Political Economy,” using recent monographs by legal, political, and economic historians; and (4) a “Case Study of the Historical Development of American Public Finance,” assigning both old and new texts on U.S. fiscal policy.  I usually tried to conclude the course with some kind of comparative perspective on global capitalism (I’d be happy to share the syllabus with others interested in the course).

After teaching this course, with the same pompous title, for a few years, I came to realize that there were particular kinds of students drawn to the class.  It was often law students interested in transactional law, unsurprisingly, who wanted to get a broader historical perspective on some of the work they were about to engage in as practicing lawyers.  I tried to appeal to this group by pitching the class as an opportunity “to see the forest for the trees.”  Before they embarked on a career negotiating and drafting asset purchase agreements and securities offerings, they could benefit from a bird’s eye view of the historical roots of our modern capitalist system.  These students enjoyed reading some of the canonical books assigned.  By contrast, the few grad students who took the course – it seemed to draw occasionally from sociology and anthropology rather than history – enjoyed the more recent interdisciplinary work on revising the canon.  The social theory section didn’t go over so well with either group – nobody it seems likes reading a couple hundred pages of Marx and Weber.

Gradually, I learned to do more with less, cutting sections of the social theory readings, and choosing shorter books for the recent literature sections.  Still, I benefited enormously from those students who came to the material with a fresh perspective.  Many of them challenged the assumptions that scholars steeped in a literature take for granted.  In fact, it was often my most practically-minded students – the true believers of the beneficence of "free markets" – who pushed the importance of economic forces and private ordering.  At the behest of some of the more thoughtful students, I altered the readings over time to add a more diverse set of voices, including Milton Friedman and Robert Higgs.

Because this was a writing course, students researched and wrote papers some of which were ultimately published as student notes.  Eventually, I learned that working with students’ draft papers was frequently a more useful pedagogical exercise than assigning big books and turgid texts that few students could get through.  I started devoting more class time, toward the end of the term, to workshops on draft papers.  This not only enhanced the collaborative learning environment, it also generally led to better final papers.

I’d like to think that, as this seminar evolved, it became a useful class both for my students and for me. In my next post, I hope to discuss how using historical methods can inform our teaching of more "doctrinal classes" – a version of what others have referred to as “applied legal history.”


Bernard Keith Vetter said...

As a teacher of Legal History - American, Comparative Legal History (the development of the Civil and Common Law Systems), or the legal history of a specific country, do you find it necessary to review in a broad way the history of the societies whose legal history you are teaching, as you teach the development of the legal system?

I find that the majority of my students either have not even taken relevant history courses in College, or if they have, they have forgotten much of what they learned , a fact I don't find surprising.

I don't think you can understand the development of a legal system without knowing something of the historical development of the society whose legal history you are studying. Do you agree, and if so, how do you handle this problem, particularly in a lower tiered law school?

What do you think about using excerpts from a good College History Textbook as part of the Legal History course ?

Unknown said...

Dear Bernard,

Thanks for your comment. You raise several interesting and important questions about providing broader historical context for an advanced legal history seminar. I certainly agree that students often need some background knowledge.

Like you, I too have many students who either don’t have strong backgrounds in history or who have forgotten much of what they did learn as undergraduates. Even the graduate students from outside of the law school have a limited knowledge of American history.

As I mentioned in my post, I do a unit on the legal history “canon.” Some of these works, particularly Hurst and Horwitz do provide broader historical context. Similarly, some of the excerpts I use in this unit come from a reader in American legal history, which also provides some background context. I do the same for some of the social theory readings. So, in a sense, I do use portions of college-level history textbooks.

When students are writing their seminar papers, they frequently need even more assistance. That’s why I require a historiographical essay early on in the writing process, once they’ve begun to refine their research question. This essay forces them to read more broadly in their area and generally provides them with the background to write a strong paper.

I hope this information is helpful. Thanks again for the comment.


Anonymous said...

Thanks for the response to my comment. We're in a little different situation, since I teach a class that is semi-required (it's in a basket of courses that must be taken,) while you apparently only teach seminars, which give more flexibility in designing necessary outside - especially non-legal - readings.

I suppose I emphasize general history more than usual for two reasons : first, I am an historical materialist , that is I believe class struggle caused by economic factors ultimately determines how society is structured, and of course, law provides the structure ; second, I find my students woefully ill informed about history, even American history, not to mention the history of the West. History of Eastern civilizations is almost completely absent. Perhaps the situation is different in a higher tiered Law School.

I suppose that it's natural for Law students to think of history, including legal history, as a luxury, given the demands on their time, and the goal of the majority of them, to be successful practicing lawyers. However, lawyers have historically been leaders of societies, and I think a course that gives them an insight into how, and more importantly why, law has historically changed in various societies will stimulate them to think about the legal changes that they will continue to encounter, especially in the rapidly changing world they live in. Caused of course by rapidly changing historical facts.

I didn't know whether to feel better or more dismayed when a participant in a Conference on teaching Roman Law in Europe, in a fit of frustration, stood up and declaimed : "my students know nothing!", commenting on a lack of background of his European students. After years of teaching, I take a more balanced view : I think it's unrealistic to expect law students to have a good grasp of history that was studied years before. Hence, my somewhat simple - I hope not simplistic - approach to requiring a review of general history.

In summary, I appreciate your response, and I may copy and paste the above as a further comment. Perhaps other teachers will weigh in on what I believe is an important issue in the teaching of Legal History. I too hope that our paths will cross some day.