Congress Investigates the Vietnam War

[We have the following announcement from the Levin Center for Oversight and Democracy of its latest "Portrait in Oversight."  DRE.]

The Levin Center for Oversight and Democracy, with the support of the U.S. Capitol Historical Society, has released a new Portrait in Oversight describing a series of oversight hearings led by the Senator J. William Fulbright and the Senate Foreign Relations Committee, from 1966-1971, addressing issues related to the Vietnam War. By engaging in factfinding, collecting evidence, and publicizing what the committee learned, the Fulbright hearings forced greater scrutiny of U.S. military actions, exposed misrepresentations by the Johnson and Nixon administrations about the war, legitimized dissent, and helped bring an end to American involvement.

“The nationally televised Fulbright hearings educated Congress and the public about the devastation in Vietnam, U.S. military failures, and the harrowing impact on American soldiers, and it changed the conversation about the war,” said Jim Townsend, director of the Levin Center. “The Fulbright portrait demonstrates how congressional oversight can inform Americans about their government, influence public opinion, and change the course of U.S. history.”

“The 'Fulbright hearings' represented a watershed moment for American society,” said President and CEO of the U.S. Capitol Historical Society, Jane L. Campbell. “Our involvement in Vietnam began with good intentions from both parties. But the hearings revealed a massive chasm between U.S. military objectives, the reality on the ground, and the narrative being shared with American citizens. One of the era's most important lessons is this: if the United States is to remain a beacon of freedom and hope across the world, it must begin with transparency and accountability at home. Congressional oversight is the foundation of that accountability.”

The Fulbright portrait is being released now to pay tribute to two Vietnam War memorials celebrating anniversaries in November. The first is the Vietnam Veterans Memorial on the National Mall in Washington, D.C., marking its 42nd anniversary. The black granite memorial bears the names of over 58,000 servicemembers who were killed or remain missing in action due to U.S. involvement in Vietnam from 1957-1975. The second is the nearby Vietnam Women’s Memorial, marking its 31st anniversary. The only memorial on the National Mall dedicated solely to women who served in the U.S. military, it honors the 265,000 military and civilian women who served during the Vietnam War.

This portrait is the latest in a series of profiles developed by the Levin Center of notable congressional investigations and key figures in the history of congressional oversight from 1792 to the modern era.

2025-2026 Berger-Howe Fellowship

[We have the following announcement.  DRE.]

Harvard Law School invites applications for the Raoul Berger-Mark De Wolfe Howe Legal History Fellowship for the academic year 2025-2026.  Eligible applicants include those who have a first law degree, who have completed the required coursework for a doctorate, or who have recently been awarded a doctoral degree.  A J.D. degree is preferred, but not required.

The purpose of the fellowship, which is awarded annually, is to enable the fellow to complete a major piece of writing in the field of legal history, broadly defined, as the fellow seeks to begin or establish an academic career in legal history.  There are no limitations as to geographical area or time period. Previous fellows have gone on to pursue faculty appointments or other fellowships in American universities, primarily on law faculties.

The fellow is expected to spend the majority of their time on their own research. The fellow will also help coordinate the Harvard Law School Legal History Workshop.  The term of the fellowship is July 1 through June 30, and the fellow will be required to be in residence at the law school during the academic year (September through May).

Applicants for the fellowship for 2025-2026 should submit their applications and supporting  materials electronically to Professor Bruce H. Mann.

Each interested applicant should submit:

• a detailed (five pages maximum) description of a proposed project,
  

• a writing sample,
  

• a comprehensive résumé or curriculum vitae that gives the applicant’s educational background, publications, works in progress, and other relevant experience,
  

• two academic letters of reference, which may be submitted electronically by the recommenders to Professor Mann at the above email address, and
  

• copies of official transcripts of all academic work done at the graduate level, which may be sent electronically or by regular mail to Professor Mann at Harvard Law School, Cambridge, Massachusetts 02138.

The deadline for applications is January 24, 2025, and announcement of the award will be made by February 28, 2025.

The fellow selected will receive a stipend of $60,000.  [Former Berger-Howe Fellows here.]

Milov on the Labor Origins of Whistleblowing

Sarah Milov, University of Virginia, has published the very substantial essay, Gags and Grievance: The Labor Origins of Whistleblowing on the website of the Knight First Amendment Institute at Columbia University.  The essay treats "the forgotten history of the Lloyd-La Follette Act and of whistleblowing in the federal workforce."

Gronningsater's "Rising Generation"

Sarah L. H. Gronningsater, University of Pennsylvania, has published The Rising Generation: Gradual Abolition, Black Legal Culture, and the Making of National Freedom (University of Pennsylvania Press):

The Rising Generation chronicles the long history of emancipation in the United States through the cradle-to-grave experiences of a generation of black New Yorkers. Born into precarious freedom after the American Revolution and reaching adulthood in the lead-up to the Civil War, this remarkable generation ultimately played an outsized role in political and legal conflicts over slavery’s future, influencing both the nation’s path to the Civil War and changes to the US Constitution.

Through exhaustive research in archives across New York State, where the largest enslaved population in the North resided at the time of the American Revolution, Sarah L. H. Gronningsater begins by exploring how English colonial laws shaped late eighteenth-century gradual abolition acts that freed children born to enslaved mothers. The boys and girls affected by these laws were born into a quasi-free legal status. They were technically not enslaved but were nonetheless required to labor as servants until they reached adulthood. Parents, teachers, and mentors of these “children of gradual abolition” found multiple ways to protect and nurture the boys and girls in their midst. They supported and founded schools, formed ties with white lawyers and abolitionists, petitioned local and state officials for better laws, guarded against kidnapping and cruelty, and shaped New York’s evolving identity as a free state. Black fathers used their votes during annual state elections in the early 1800s to influence legislative antislavery efforts. After many but not all black men in the state were disfranchised by a race-based property requirement in 1822, black citizens across New York organized to regain equal suffrage and to expand and protect other crucial, non-gendered features of state citizenship. Women and children were critical participants in these efforts.

Gronningsater shows how, as the children of gradual abolition reached adulthood, they took the lessons of their youth into midcentury campaigns for legal equality, political inclusion, equitable common school education, and the expansion of freedom across the nation.

--Dan Ernst

Stories on the Cutting Room Floor

This month, I’ve had the opportunity to share some of the challenges that came with writing Family Matters. Some of them were methodological. Telling a story of national change through state and local law required piecing together disparate events and narratives. Others were practical, like collecting oral histories and getting through the pre-publication gauntlet. In this last post, I want to address a challenge that all authors face: leaving stories on the cutting room floor.

When I began the process of turning my dissertation into a book, my editor, Reuel Schiller, told me to foreground people and stories. Doing so would make the book more interesting for readers, which would get them invested in the argument. (Reuel is a series editor for the ASLH’s Studies in Legal History. He is incredibly kind, patient, and talented. If you have the chance to work with him, take it!)
 
The problem wasn’t finding compelling stories—it was deciding which ones would make the cut. Some were easy decisions. The self-proclaimed “Groucho Marxist” who literally shut the mouth of anti-gay crusader Anita Bryant by shoving a pie into her face? No question that one would go in the introduction. Others were harder calls. I read accounts of hundreds of lesbian mothers who lost custody of their children because of their sexual orientation. Each one illustrated the pain, heartache, and injustice of anti-queer family court doctrines in the 1970s. I had to limit myself to a handful, trusting that they would adequately represent the stories of many parents and children who suffered at the hands of a biased legal system.
 
I agonized most over the stories from my chapters on anti-queer violence in the 1980s. Researching those chapters was emotionally devastating. I had to spend hours in the archives, going through thousands of pages detailing vicious hate crimes. I found the research process so painful that I could not bring myself to work on the chapters for more than three years. When I finally drafted them, I wanted to bring the events to life. At the same time, I did not want to veer into the voyeuristic, unnecessarily using the tragedies that people suffered to grab readers’ attention. It took many rounds of edits to find that balance.
 
The chapter that required me to leave the most material on the cutting room floor was the final one, on marriage equality. Numerous scholars and journalists have written entire books on the movement for same-sex marriage rights. I had to give a comprehensive account in just one chapter! I focused on the arguments and strategies that advocates had honed through previous campaigns for queer family rights. That meant I had reams of material that did not make it into the manuscript. Within that pile, there were two stories that have stayed with me, and that I fervently wish I could have included.
 
Robbie Kaplan Comes Full Circle
 

 

Photograph of Roberta (Robbie) Kaplan by Sylvia Rosokoff, courtesy of Wikimedia Commons.

The first involved famed litigator Roberta (Robbie) Kaplan. She represented Edie Windsor in the case challenging the federal Defense of Marriage Act (DOMA). DOMA defined marriage under federal law as a union of different-sex couples and released states from their obligation to recognize same-sex marriages from other jurisdictions. In 2009, after her wife died, Windsor had to pay more than $350,000 in estate taxes because the federal government did not recognize her marriage. Windsor decided to sue. She invited Kaplan to her home to discuss the case she wanted to bring.
 
When Kaplan walked in, she was stunned. She recognized the living room—she had been there in the early 1990s. It looked exactly the same as it had eighteen years earlier.
 
That apartment was where Kaplan had met with psychologist Thea Spyer for counseling sessions after coming out as a lesbian. Kaplan had stayed in the closet throughout her undergraduate years, fearing that her family and friends would abandon her if she disclosed her sexual orientation. Indeed, when she finally told her parents she was gay, that fear seemed to materialize. Her mother walked to the side of the room and literally began banging her head against the wall! Kaplan’s friends recommended she seek out a therapist for support, which led her to Spyer.
 
During their sessions together, Spyer assured the litigator that lesbians could have fulfilling lives. To prove the point, Spyer even revealed an important aspect of her personal life: since the 1960s, she had lived with another woman, who she described as a brilliant mathematician. Kaplan did not learn the name of Spyer’s partner until almost two decades later, when Windsor invited her over to discuss mounting a legal challenge to DOMA.
 
Kaplan agreed to represent Winsor, even though she had little expectation that the lawsuit would succeed. Several years earlier, Kaplan had taken on New York’s discriminatory marriage laws, only to lose the case before the state’s highest court. But the litigator nevertheless agreed to move forward, in part to repay Spyer for helping her through some of her darkest days.
 
The serendipity of this story was striking. So too was its poignancy. Kaplan first met Spyer at an extremely low point in her life, when she feared rejection from those closest to her simply because of who she was. By the time she represented Spyer’s widow, she had married her wife and they had had a son together. Kaplan’s work reflected just how much her life—and American society—had changed dramatically.
 
Evan Wolfson’s Low Grade
 

Photograph of Evan Wolfson by David Shakbone, courtesy of Wikimedia Commons.

 
There was a second story I had to cut that also illustrated how much American law had transformed over the course of a single generation. That one involved another attorney, named Evan Wolfson. Wolfson had been an advocate for same-sex marriage rights since before the marriage equality movement’s inception. In 1983, as a third-year law student at Harvard University, he had written his graduation thesis arguing that the Constitution protected same-sex couples’ right to marry.

At the time, same-sex marriage was such a radical notion that Wolfson struggled to find anyone who would supervise his project. After approaching the obvious candidates—faculty members who worked in family law, constitutional law, or gay and lesbian rights—he finally convinced a property law scholar to oversee the graduation requirement. The paper that Wolfson produced set out the arguments the movement would later rely upon to change American law, but the professor was unimpressed. Wolfson got a B.
 
Wolfson was undeterred. As an attorney for Lambda Legal, he pressed the organization to lead the movement for marriage rights. Later, he founded Freedom to Marry, a national advocacy organization devoted to pursing marriage equality. In 2015, when he heard the Supreme Court had ruled in favor of the plaintiffs in Obergefell v. Hodges, he cried tears of joy.  By that point, he had spent thirty-two years working to secure marriage rights for gays and lesbians. Wolfson was thrilled to finally be out of a job.
 
I love the story about Wolfson’s low grade for so many reasons. The first is how clearly it illustrates the change American law has experienced over time. In the early 1980s, Harvard Law professors could easily dismiss Wolfson’s arguments as absurd. Thirty-two years later, these same points helped the Supreme Court to rule in favor of marriage equality. The second is more personal. As a law professor, I regularly supervise student papers. When I read arguments that seem far-fetched, I think of Wolfson and hope that my students remain as dedicated to their vision of justice as he was to his.
 
* * *
 
I wish I could have included the stories of Wolfson, Kaplan, and so many others in the book. I’m so very glad to have the chance to share them with you now! Dozens of stories ended up on the cutting room floor, but I hope readers enjoy the ones that did make it into the pages of Family Matters.

ASLH/Notre Dame Graduate Legal History Colloquium: November 2024 Session

The ASLH/Notre Dame Graduate Legal History Colloquium will convene on November 23, 2024. Virtual participation remains an option for those who want to attend. Register here. The schedule:

ASLH/Notre Dame Graduate Legal History Colloquium
November 23, 2024 | 10 AM - 3 PM (EST)
Notre Dame Law School | South Bend, IN

Registration/Welcome 09:45 - 10:05 AM

Paper #1: Legal History of State Court Jurisdiction 10:05 - 11:00 AM

“Grounding Pennsylvania's King's Bench Jurisdiction”

Author: Benjamin Pontz, Harvard Law School 

Respondent: Samuel L. Bray, John N. Matthews Professor of Law, University of Notre Dame

Paper #2: Criminal Law in the British Atlantic 11:05 - 12:00 PM

“Slave Courts, Compensation, and the Politics of Petitioning in the Eighteenth Century British Atlantic” 

Author: Geneva Smith, Yale Law School/Princeton University

Respondent: Lee B. Wilson, Associate Professor of History, Clemson University

Afternoon Break (Lunch) 12:05 - 1:00 PM

Paper #3: Legal History of Arbitration & Investment Treaties 01:05 - 2:00 PM 

“State Counterstrategies Against Investor-State Dispute Settlement” 

Author: Daniel Loebell, Northwestern University

Respondent: Roger P. Alford, Professor of Law, University of Notre Dame

Paper #4: Early American Legal History 02:05 - 3:00 PM

“John Dickinson at the Middle Temple: Bridging Worlds of Law in the British Atlantic”

Author: Sophie Rizzieri, University of Notre Dame

Respondent: Samuel K. Fisher, Assistant Professor of History, The Catholic University of America

More information about the colloquium, from a May 2024 announcement:

With the financial support of the American Society for Legal History, Notre Dame Law School and the University of Notre Dame Graduate School will host the ASLH/Notre Dame Graduate Legal History Colloquium during the 2024-2025 academic year.

Dennis Wieboldt, a joint J.D./Ph.D. student in history, is spearheading the forum. Associate Dean Randy Kozel and Professor Christian Burset have worked with Wieboldt to launch the colloquium at Notre Dame next year.

. . . The forum will provide budding legal scholars and practitioners with feedback on works-in-progress—an important step in fine-tuning research to a point where it can be submitted for publication. “As the federal judiciary increasingly turns its attention to ‘history and tradition,’” Wieboldt noted, “it is crucial for future leaders in the legal profession to develop the skills necessary to employ historical methodologies and make historically informed claims about the meaning of legal texts.”

“Notre Dame is an excellent place to think seriously about the role of history in contemporary legal practice,” Wieboldt added. “I am excited to welcome students and faculty from other institutions to engage in conversation with members of the Notre Dame community.”

. . . 

For further information about the Colloquium, please visit here.  If you have any questions, please contact Dennis Wieboldt at dwiebold@nd.edu.

-- Karen Tani

Fraley on Court-Packing and Brown

Jill M. Fraley, Washington and Lee University School of Law, has published What Roosevelt Did to Brown v. Board of Education, or Race and Court Packing in the Nebraska Law Review:

Roughly one-third of American schools remain segregated. Scholars have offered a variety of explanations, mostly social and cultural, but sometimes legal, for why desegregation did not proceed effectively after Brown v. Board of Education. This Article articulates a less expected
and previously undocumented cause: President Roosevelt's prior attempt at court packing slowed-even derailed-desegregation.

The story of what Roosevelt's court packing did to make the work of integration harder is a cautionary tale, particularly for those who want to alter the U.S. Supreme Court now in furtherance of a modern cause. The only reasonable route for reforming the Supreme Court must be based on furthering the stability and legitimacy of the Court. The lesson of Roosevelt and Brown further provide that this reform must be done with a deep knowledge of the public understanding of the Court.

When the Court decided Brown v. Board of Education, Roosevelt's court packing attempt was within living memory, and strongly influenced reactions to the Court's decree that American schools must integrate. Members of the public and southern lawmakers capitalized on Roosevelt's attacks on the Court, rearticulating those claims to cast doubt on the legitimacy of Brown. Other opponents of integration argued that Roosevelt had succeeded in packing the Court (if by less direct means), and that the Brown Court did not legitimately have the authority to determine constitutional law. Both lines of argument proliferated through the media, reducing public acceptance of the Brown decision.

The impacts of Roosevelt's court packing attempt, however, went beyond questions about the legitimacy of the Court. Roosevelt had another legacy in authoring a playbook of strategies for manipulating both state and federal courts. The public and southern lawmakers attacked Brown by employing these strategies, often directly claiming validity for their actions by way of Roosevelt's endorsement.

In the decades when Roosevelt's court packing attempt remained in lived memory, Brown was never going to fully succeed in the South, where it did not have the majority support of the population. The Court simply did not have the power to demand public acquiescence or sway
public opinion. This understanding of the Court's power matters today, as both court packing and court reforms are brewing in American politics. Any future changes must be done with a nuanced understanding of how the public will view the Court and what precedents we set that will be mirrored at the state level.

On what Civil Rights groups thought of Court-packing in 1937, see  Zach Jonas, “FDR’s Court-packing and the Struggle for Civil Rights,” Journal of Supreme Court History (July 2023).

--Dan Ernst

Senior Lecturer in Law, History and Society at Vanderbilt

[Via H-Law, we have the following announcement.  DRE]

The Department of History at Vanderbilt University seeks candidates for an instructional position at the rank of Senior Lecturer in Law, History, and Society. We seek a U.S. historian with a demonstrated record of teaching excellence in law and society or legal history. We are especially interested in candidates with teaching interests in immigration, civil rights, criminal law, human rights law, or environmental law. The position will begin in Fall 2025 and is non-tenure-track. The teaching load is six courses per academic year, including a two-semester survey in the history of law in the United States and elective courses in the candidate’s area of expertise. The initial appointment is for three years, with the potential for continuing reappointment, contingent upon institutional review.

Law, History, and Society is a rapidly growing interdisciplinary major at Vanderbilt that serves a diverse student body. We approach law from both a historical and an interdisciplinary perspective with emphasis placed on close reading of legal documents, broadly defined, research, and analytical writing. Students are encouraged to study topics that stretch across national and chronological boundaries, and to think comparatively. All faculty in the History Department teach classes at all levels of the curriculum, from introductory lectures to majors’ seminars, and also serve in an advisory capacity for honors students and undergraduate majors.    

Qualifications. Candidates should have evidence of teaching experience in law and society or legal history and a commitment to undergraduate teaching and programming. All requirements for the PhD in History must be completed no later than August 1, 2025.

Application Instructions.  Applications are accepted via Interfolio here. To be considered, please submit the following materials: cover letter, curriculum vitae, teaching statement, teaching evaluations for all available courses, two sample syllabi (at least one for an introductory lecture course), and three letters of reference. Review of application files will begin on December 9, 2024.

Equal Opportunity Employer.  At Vanderbilt University, we are intentional about and assume accountability for fostering advancement and respect for equity, diversity, and inclusion for all students, faculty, and staff. Our commitment to diversity makes us who we are.  We have created a community that celebrates differences and lets individuality thrive. As part of this commitment, we actively value diversity in our workplace and learning environments as we seek to take advantage of the rich backgrounds and abilities of everyone. The diverse voices of Vanderbilt represent an invaluable resource for the University in its efforts to fulfill its mission and strive to be an example of excellence in higher education.

Vanderbilt University is an equal opportunity employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, or status as a protected veteran, or any other characteristic protected by law.

A Festschrift for Hendrik Hartog

In Between and Across: Legal History Without Boundaries, a festschrift of Hendrik Hartog, edited by Kenneth W. Mack and Jacob Katz Cogan (Oxford University Press), has been published online and will appear in print on December 11, 2024.

The boundaries between the history of law and the history of everything else are quite blurry nowadays. Whether one is asking questions about the origins of the carceral state, the relationship between slavery and capitalism, the history of migration flows and empires, the longer story of human rights, the building of the straight state, the role of religion in public life, or many other topics, there is a shared belief that law and its history matters. In fact, legal historians have begun to focus on the blurring of boundaries such as those between markets and politics, between identity and state power, as well as between national borders and the flows of people, capital, and ideas around the world. Legal history, broadly conceived, seems to mark much of the most exciting work that is redrawing the boundaries of historical scholarship in many areas of study. In Between and Across: Legal History without Boundaries gathers some of the newest and freshest work by both younger and established scholars who are carrying forward that project and extending it into new areas of historical inquiry. It captures the best of the new and innovative tools and questions that have made law a central plane of inquiry, charts novel directions for the field, and poses broader questions concerning the past, present, and future. Crossing a wide variety of geographic areas (from British-ruled Australia, to colonial India, to the United States), the authors sketch new boundaries for the field to cross—boundaries of time, geography, and method—and claim that legal history provides the language to talk across national borders.

--Dan Ernst

CFP: LCH 2025

[We have the following announcement from Simon Stern, President of the Association for the Study of Law, Culture & the Humanities.  DRE.]

We are excited to announce that we are now accepting submissions for the Twenty-Seventh Annual Conference of the Association for the Study of Law, Culture, and the Humanities. The conference will be held in person (with some online components) on June 17-18, 2025 at Georgetown Law in Washington, D.C. This year's theme is "Speech Matters."  You can find the call for papers on our website or view the PDF version.

We are also accepting applications for our annual Graduate Student Workshop, which will take place the day before the conference on June 16, 2025. Information on how to apply for the workshop can be found in the PDF or on our website here.

Rechtsgeschichte-Legal History 31

[We have the following announcement from our friends at the Max Planck Institute for Legal History and Legal Theory.  DRE]

The recent issue of our Institute’s journal Rechtsgeschichte – Legal History (Rg) presents high-level research contributions and candid reviews of books on topics that are relevant for the field of legal history, in Germany and worldwide.

Three essays are dedicated to the legal history of slavery in the early modern and modern periods: Carlo Bersani traces the European legal discourse on servi and personae (16th–18th century). Matilde Cazzola looks at the efforts to abolish slavery in British Caribbean, and Tamar Herzog analyses some aspects of the historiography of the legal history of slavery, a field so far dominated by Atlantic history.

The way in which jurists translated traditional knowledge bases for their present time in order to get a grasp on colonial realities in 16th-century Latin America is analysed in Christiane Birr’s Research contribution on Gregorio López. It shows how López’ ubiquitously used edition (including glossary) of the medieval Siete Partidas, by reverting to seemingly old knowledge, resulted in answers to new problems in the 16th-century Iberian empires. A set of entirely different, long-neglected sources of law is highlighted by Paolo Revilla Orias and Pablo Quisbert Condori. They offer an introduction to the local archives and the normative knowledge of indigenous communities in the ‘Plurinational State of Bolivia’.

Writing about the early modern Imperial Aulic Council (Reichshofrat), Tobias Schenk asks to what extent our view as legal historians is still influenced by the paradigm of statehood and makes the case for research along the lines of praxeology and the history of knowledge. Finally, Andrew Harding presents a case study on the transfer of rights under common law, the Six Widows' case, which dates back to the early 20th century in Singapore.

Like the other segments, the Critique section and its numerous reviews of recent publications reflect the mpilhlt's research areas. The assessed volumes cover topics such as imperial and colonial legal history, the history of codification and constitutional history, the history of international law and of EU law, and the connection between the theory and the history of law.

Two Marginalia conclude this volume. Paul Kahn offers a critical commentary on a chapter from The Cambridge Legal History of Latin American Law in Global Perspective, which was published this year; and Erk Volkmar Heyen writes about stairs as settings for gender-specific glorification and condemnation, opening the reader's eye to legal aesthetics. His contribution settled the question of what motif we would use for the image spread of the print issue: stairs of all shapes and sizes, reflecting a great diversity of epochs and world regions.

Rechtsgeschichte--Legal History 32 is available in print from the Vittorio Klostermann publishing house, and online in Open Access via the journal's website.

Weekend Roundup

• Dylan C. Penningroth (UC Berkeley) recommends "Seven Essential Texts That Show the Human Side of Black Legal History" (Literary Hub).   
  

• Earlier this week, Judge Amul R. Thapar of the Sixth Circuit delivered "Why Originalist Courts Need Originalist Classrooms,” the 17th Joseph Story Distinguished Lecture of the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.  Judge Thapar faults the "overwhelmingly anti-originalist" legal academe for teaching "widely accepted originalist methods through a distorted, uncharitable, and often inaccurate lens.  This means that most students never engage with originalism in a serious way during their law school careers, much less learn how to do originalism in practice.”  He proposes solutions.

• Cynthia Neville, Professor Emeritus at Dalhousie University, Halifax, Nova Scotia, will give the Annual Lecture of the Stair Society in the Mackenzie Building, Old Assembly Close, Edinburgh on Saturday 16 November 2024.  Her title is “March Law as Auld Law in the Late Medieval and Early Modern Scottish Legal Traditions.”
  

• Jonathan Gienapp (Stanford) asks Why is the Supreme Court Obsessed with Originalism?
  

• Along similar lines, James Kloppenberg (Harvard) explains to readers of Commonweal "Why History Matters Now" (subtitle: "A Commonweal Catholic on the mess made by Supreme Court Catholics").  
  

• A notice of that Penn conference on the political and legal history of voting (Daily Pennsylvanian).
  

• We spotted a notice for a three-year postdoc at Radboud University in the Netherlands on the project "The Social Life of Early Medieval Normative Texts," headed by Dr Sven Meeder, who "aims to describe and contextualise the spread of social norms as articulated in specific combinations of canons in a bottom-up approach starting from the vast corpus of manuscript witnesses of canonical collections in every shape and form (4th-12th centuries)" (I Am EXPAT).
  

• The Center for International and Comparative Law at the University of Michigan will hold a Junior Scholars Conference on April 25-26, 2025, in Ann Arbor, MI.  The deadline for submitting abstracts is January 5, 2025. The Center seeks submissions from pre-tenure track faculty, as well as Ph.D. and S.J.D. candidates, in law and related fields. 

• From History News Network: Richard R. John (Columbia University) on "The Other Sherman’s March: How the younger brother of the famous general set out to destroy the scourge of monopoly power." 
  

• Rebecca Brenner Graham’s essay, Frances Perkins: Breaking Glass Ceilings in the Cabinet, has recently been posted to the website of the White House Historical Association.
  

• "Justice O'Connor's Papers Show She Would Have Dissented in Chevron" -- so writes Tracy Thomas (University of Akron) over at the Gender and the Law blog.
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.  

LDF's Civil Rights Legal Archives

[We reproduce part of the October 16 announcement by the Legal Defense Fund of its launch of a digitized collection of its archives.  We've added a link to our earlier post on a related digital collection of the Library of Congress.  DRE.]

Today, the Legal Defense Fund (LDF)’s Thurgood Marshall Institute announced the launch of Recollection: A Civil Rights Legal Archives, a first-of-its kind, searchable archival collection of oral histories, legal briefs, press releases, and correspondence related to more than 6,000 cases the organization has litigated since its founding. This effort is the culmination of five years of work by LDF’s dedicated team of archivists.

Recollection will give litigators, advocates, researchers, students, and the general public insight into eight decades of records on history-making work in educational equity, political participation, economic justice, and criminal justice. This archival website is a “living” resource that will be continuously updated to include newly digitized materials, including oral histories and editorial content that highlights LDF’s critical work to advance racial justice in the United States.***

Today’s announcement comes after a major portion of LDF’s early records were recently made available online for the first time through the Library of Congress in September 2024. About 80% of the approximately 80,000 items have been digitized thus far, resulting in approximately 210,300 images in the digital collection. The digitization significantly expanded research access to primary source materials for scholars and students studying the civil rights movement.

Lyons on the Law of Nations and Diplomacy in the American Revolution

Published online open access in Law and History Review: The Law of Nations in the Diplomacy of the American Revolution by Benjamin C. Lyons.

Historians have long known that leaders of the American Revolution looked to the law of nations for insight into the rights and obligations of independent states. In so doing, Americans relied largely on the writings of European legal theorists, such as Hugo Grotius and Emerich de Vattel, whose treatises on the law of nations are regarded today as having laid the foundations of international law. As this article demonstrates, however, early modern statesmen did not base their conduct on such treatises, but on a customary law of nations that they derived from precedent and the text of earlier treaties. This article elucidates the distinction between the customary and theoretical branches of the law of nations. It then goes on to examine the law of nations’ impact on revolutionary-era diplomacy, drawing particular attention to a series of wartime negotiations over rights to the Mississippi River. As the article shows, most American emissaries lacked experience with the customary laws of diplomacy and struggled to use that law effectively in their negotiations. The most serious consequences were averted due in part to French legal advice, and because one American, John Jay, acquired enough competence in customary law to guide his colleagues toward an effective negotiation of peace.

--Dan Ernst

State of the Field of State Constitutional Studies

Today, at 2:30 EST, “the State Constitutions Lab and the Brennan Center for Justice will host a seminar discussion about the “State of the Field of State Constitutional Studies” that will center on past and current scholarly work, future directions and areas of research, and new methodological approaches.”  Participants include the historian Jane Manners, Jessica Roney, and Robinson Woodward-Burns.  Register here.  (H/t: H-Law).

--Dan Ernst

ASLH 2024

Starting today, your Legal History Bloggers will be in San Francisco at the annual meeting of the American Society for Legal History, for which Karen served as co-chair of the Program Committee.  This year, we appear on the same panel, Foundations of the Modern Administrative State, at 3:00 tomorrow.  Karen will chair, and I will comment.  The papers and their authors are:

A Presidency of Statutes: Gilded Age Reform and the Roots of the Modern Executive (1868-1921)
Andrea Scoceria Katz, Washington University in St. Louis School of Law

The Progressive Origins of Centralized Administrative Review
Edgar Melgar, Yale Law School

The Lost English Roots of Notice-and-Comment Rulemaking
Rephael Stern, Harvard University/Harvard Law School

The Origins of the Major Questions Doctrine
Rachel Rothschild, University of Michigan Law

As in the past, we welcome otherwise unsolicited reports of sessions at the meeting, and we expect to post on the prizes announced there after the meeting concludes.

--Dan Ernst

Robertson's "Harlem in Disorder"

Stephen Robertson, George Mason University has published Harlem in Disorder: A Spatial History of How Racial Violence Changed in 1935, a digital monograph that the Stanford University Press released earlier this year. 

The violence that spread across Harlem on the night of March 19, 1935 was the first large-scale racial disorder in the United States in more than a decade and the first occurrence in the nation’s leading Black neighborhood. However, as many observers pointed out, the events were “not a race riot” of the kind that had marked the decades after the Civil War. Racial violence took a new form in 1935.

Through a granular analysis of those events and the mapping of their locations, Harlem in Disorder reveals that Harlem’s residents participated in a complex new mix of violence that was a multifaceted challenge to white economic and political power. Tracing the legal and government investigations that followed, this project highlights how that violence came to be distorted, diminished, and marginalized by the concern of white authorities to maintain the racial order, and by the unwillingness of Harlem's Black leaders and their white allies to embrace fully such direct forms of protest.

Focused on capturing rather than simplifying the complexity of the new form of racial violence, Harlem in Disorder is a multi-layered, hyperlinked narrative that connects different scales of analysis: individual events, aggregated patterns, and a chronological narrative. Its structure foregrounds individual events to counter how data can dehumanize the past, and to make transparent the interpretations involved in the creation of data from uncertain and ambiguous sources.

Here are some encomia:

“Harlem in Disorder is a remarkable achievement. It embodies the promise of digital humanities, creating a deeply immersive and analytically rich history of a milestone event in the history of New York City and 1930s America. Robertson achieves an enviable balance by bringing clarity to the 1935 Harlem Riot without diminishing the complexity of the motives of its participants, officials, and commentators. All future works on American collective violence and urban unrest will need to take into account this book’s findings and Robertson’s exemplary scholarship.” W. Fitzhugh Brundage, University of North Carolina

“Harlem in Disorder gives new meaning to the idea of a deep dive. The work is a model for anyone planning to do a digital history project, and a powerful answer for those who still wonder what value digital history has.” Elizabeth Dale, University of Florida

“Harlem in Disorder is a landmark in digital scholarship. Integrating remarkable research, innovative strategies, and compelling narrative, this work demonstrates new dimensions of historical understanding. Stephen Robertson portrays individuals and their complex humanity in a way never before possible.” Edward Ayers, Recipient of the National Humanities Medal

“Harlem in Disorder evenhandedly unfolds the events of March 1935 in half-hour segments, allowing us to envision what actually occurred. Robertson comprehensively reconstructs the disorder and its later representations in the media, courts, investigations, and culture—an unprecedented accomplishment.” Amanda I. Seligman, University of Wisconsin, Milwaukee

As Bridget Laramie Kelly's review in the Journal of Social History makes clear, the book joins a debate on "the utility of terms such as riot, uprising, protest, revolution, and disorder."

--Dan Ernst

AHA Katz prize to Yannakakis for "Since Time Immemorial"

The American Historical Association has announced its 2024 Prize Winners, and we were pleased to see legal historian Yanna Yannakakis (Emory University) named as winner of the Friedrich Katz Prize in Latin American and Caribbean history for Since Time Immemorial: Native Custom and Law in Colonial Mexico (Duke University Press, 2023). 

Congratulations to Professor Yannakakis!

-- Karen Tani

The Pre-Publication Gauntlet

Drafting a book manuscript is daunting! I thought that, after I’d located and collected sources, organized my notes, crystalized my argument, and put together the narrative, the heavy lifting would be done. It turns out that wasn’t exactly right. The heaviest lifting was done, but I still needed to get through the pre-publication gauntlet.

This post covers the plethora of tasks that need to be completed before the book can go to press. If you’re writing your first book (or contemplating doing so!), you’ve likely heard about many of these steps. I hope this post helps you get through the list more easily.

Acknowledgments

Every book has an acknowledgments section, even if not everyone reads them. (I love reviewing acknowledgments, but even I’ll concede that many readers skip past those pages.) Crafting the acknowledgements ended up being one of my favorite parts of the book writing process. It gave me a chance to reflect on the many people who had made Family Matters possible, from my advisors during the PhD program, to the archivists who tracked down documents, to the friends and family members who supported me throughout the process.

 I hope that I managed to convey my sincere gratitude to everyone involved in making my book a reality However, it’s entirely likely that I missed some names! I regret leaving the acknowledgments at the end. If I had to do it over again, I would have kept a running list of people who helped me with the book as I was researching and writing it. That way, I could be sure I hadn’t inadvertently left anyone out. 

 Images

I should have kept a running list of potential images too! Images can make a book stand out. However, securing the rights to print them can be a challenge. Even if a repository has an image, they do not necessarily have the copyright from the photographer.

That means securing image rights can require some sleuthing. Let me give you an example. A few months before my manuscript was due, I contacted the New York Times in hopes of licensing a photograph that had appeared in their pages in 1991. They had the image, but not the rights. My efforts to track down the photographer, Donna Binder, stalled, until I saw Sarah Schulman’s recently published book on ACT-UP. The notes mentioned an oral history interview with Binder! I didn’t know Shulman, but I emailed her anyway, asking if she would please pass along my information. She kindly did—and Binder agreed to license the image, which appears on page 207 of Family Matters.

 Although it took weeks to track down that image, I was very fortunate to have a lead on the photographer at all. In my research, I came across quite a few snapshots from the 1950s and 1960s that perfectly illustrated my chapters…but no one at the archives knew who had taken the photographs. As a result, I could not secure permission to print them in the book.

 Obtaining the right to publish an image was one obstacle. Paying for the licenses was another. I ultimately had to spend several thousand dollars to reproduce and license the photographs in the book. I was able to use funds from a William Nelson Cromwell Foundation Fellowship to cover some of the costs—which is yet another reason to apply for these grants! Although I spent thousands on images, the bill could have been much higher. I was quite fortunate to publish Family Matters with Cambridge University Press for many reasons, one of which was that they have an agreement with Getty Images. That allowed me to include any of the photographs in the Getty database without paying them a license fee.

Indexing

Images were not the only cost associated with publishing the book—indexing was another. Many authors index their own books, but I wasn’t familiar with the process. I therefore decided to hire a professional—and was very glad I did. My indexer, Derek Gottlieb, did a fantastic job. I might have been able to create a workable index, but he identified entries that I would never have thought to include. The index he created was much more comprehensive, and therefore much more useful to users, than anything I would have done myself.

Page Proofs

The indexing happened around the same time as the copy edits. A few months later, I received the page proofs. By that time, I was exhausted. I’d been working on the book for years, had just submitted my tenure packet, and was teaching a new course. But the manuscript needed to be proofread.

Thankfully, I had a team of students to help me get through this final task. Once I knew when the page proofs would come in, I contacted my Associate Dean for Research and Academic Programs. I asked for permission to hire additional research assistants for the limited purpose of proofreading the book. I’m so very grateful he agreed. At least two students read each chapter, and while they worked, I reviewed each chapter twice. They all found errors the others had missed. They also found several typos that I overlooked.

By the time the students and I reviewed the page proofs, multiple editors had reviewed the manuscript several times, and a professional copyeditor had proofed the entire book. And yet…we still identified hundreds of typos and formatting errors in the manuscript. I wish I had caught all of those mistakes earlier, but I am really glad we found them before the book went to print. (I am still very nervous that a few errors got through. If you see any typos in Family Matters, please don’t tell me!)

* * *

All book authors have to get through the pre-publication gauntlet. In my next and final post, I’ll talk about another challenge that all writers face: deciding which stories to include and which to leave on the cutting room floor.

Two AHA book prizes to Penningroth for "Before the Movement"

The American Historical Association has announced its 2024 Prize Winners, and we were pleased to see that legal historian Dylan C. Penningroth (University of California, Berkeley) was a two-time winner. 

Before the Movement: The Hidden History of Black Civil Rights (Liveright, 2023) won the Beveridge Family Prize in the history of the US, Latin America, or Canada since 1492 and also the Littleton-Griswold Prize in US Law and Society.

 Congratulations to Professor Penningroth!

-- Karen Tani

A Podcast on Colonialism and Its Normative Systems

We learned from Dr. Raquel Sirotti, a postdoctoral researcher in the "Historical Regimes of Normativity" department at the Max Planck Institute for Legal History and Legal Theory in Frankfurt, of the launch of a project she and her research group has developed. Tramas Coloniais is a seven-episode documentary podcast in Portuguese, about the history of colonialism in Africa and its normative systems.  Episodes are being released weekly until November 20th. The project has also created a website with written and audio sources and a bibliography for each episode.  The Spotify link for the first episode is here.

--Dan Ernst

The Slavery, Law and Power Project

[We recently noticed the project on Slavery, Law and Power in the British Empire and Early America at the University of Maryland, created with the support of the National Archives and the American Society for Legal History.  Here is its description.  DRE.]

SLP (Slavery, Law, and Power) is a project dedicated to bringing the many disparate sources that help to explain the long history of slavery and its connection to struggles over power in early America, particularly in the colonies that would become the United States. Going back to the early English Empire, this project traces the rise of the slave trade along with the parallel struggles between monarchical power and early democratic institutions and ideals. We are creating a curated set of documents that help researchers and students to understand the background to the fierce struggles over both slavery and power during the American Revolution, when questions of monarchical power, consent to government, and hereditary slavery were all fiercely debated. After America separated from Britain, the United States was still deeply influenced by this long history, especially up to the Civil War. The colonial legacies of these debates continued to affect the course of politics, law, and justice in American society as a whole.

America’s current struggles over authoritarianism and democracy, over racism and social justice, have long roots. Whereas most historians began their explorations of those roots with the American Revolution and the Declaration of Independence, or in some cases with individual colonies’ discrete history with regard to slavery or democracy, this project aims to help scholars access that longer history within the context of the larger power structure of the British Empire. The Slavery, Law, and Power (SLP) project focuses on primary sources that expose the debates and struggles over slavery and power in the early modern British Empire and in the new United States. At present many of these sources are buried in archives–in difficult old handwriting–and scattered across institutions, many geographically remote from each other. When some of these materials are accessible via scanned databases, they are often behind a cascade of different paywalls.  It is thus difficult for scholars to see how the structures of power connected, or to see how those imperial structures in many ways promoted not only authoritarian governance, but also slavery.

Under royal patronage, slavery, and the slave trade (and Britain’s role in it) expanded exponentially across its empire on the African coast and in the Americas (even when “free trade” in slaves was permitted in slaves after 1698, that trade was protected at great expense by the Royal Navy). At the same time this period marked the birth of what we now call democratic principles and legal practices. How these connect is a crucial and difficult question that for too long we have been trying to answer without sufficient access to the evidence that helps us to see how structures of governance interacted with the polices, that helps us understand individual actions without a broader context.

Piecing together these struggles over policies and practices requires that many of the original sources be put in conversation.  But these sources are so difficult to access that most scholars have consulted only fragments of this larger record. SLP seeks to enable historians, political theorists and scientists, and scholars in African American, American, and British studies to access materials that reveal how power and law, censorship and propaganda, political theory and religion, all influenced and connected to the development of racial chattel slavery–and its eventual demise–in the British Empire and the United States.

Weekend Roundup

• From In Custodia Legis, "Orange Shirt Day and the Federal Indian Boarding School Initiative."
  

• The Roots of Reality podcast ("[a] podcast by historian Ben Baumann that uses history from the formation of the universe to the present, illustrating how our world came to be") has posted an episode on "Treason According to the Founding Fathers," featuring Carlton Larson.
  

• Mr Justice [Sir Stephen William Scott] Cobb, delivered "Justice must be seen to be done”: One Hundred Years since R v Sussex Justices [1924] as the Conkerton Memorial Lecture in Liverpool on October 10. 
  

• Catherine Kelly and Gwen Seabourne, University of Bristol Law School, have been elected as Fellows of the Royal Historical Society. 
  

• President Biden has appointed Justin Driver, the Robert R. Slaughter Professor of Law, Yale Law School, to the Permanent Committee for the Oliver Wendell Holmes Devise (YLS).
  

• Alison LaCroix, University of Chicago Law School, on How History Rhymes at the Supreme Court on Michael Lewis's Against the Rules podcast.
  

• 
  Douglas Rooks, "a seasoned journalist with over 40 years of experience," will deliver a virtual lecture sponsored by the Supreme Court Historical Society on October 30th at noon, based on his new biography, Calm Command: U.S. Chief Justice Melville Fuller in His Times, 1888–1910.  Register here.  
  

• Historical and Contemporary Perspectives on Guns and Society, the third annual fall conference of the Center for the Study of Guns and Society at Wesleyan University concludes today. 
  

• Via Time's "Made by History" section: The Debate That Gave Us the Electoral College by Jane E. Calvert (John Dickinson Writings Project); What Christian Nationalism Looked Like in Practice by William Horne (University of Maryland, College Park).
  

• Justice Joseph Bradley and the Civil Rights Cases (New York Almanack).
  

• "Columbia Law School marked the 70th anniversary of Brown v. Board of Education with a discussion of the civil rights record of President Dwight D. Eisenhower, whose appointment of Chief Justice Earl Warren in 1953 paved the way for the decision holding school segregation unconstitutional."  Jeremy Kessler discussed Eisenhower's first steps to integrate the army at the end of World War II--at the battalion but not the platoon level (Columbia Law).
  

• A notice of the Program in Politics, Law and Social Thought at Rice University, the brainchild of former ASLH president Harold Hyman.
  

• A recording of that National Constitution Center book event in which Kenneth Mack interviewed David Greenberg on his biography of John Lewis is now up on the NCC's YouTube channel. 
  

• A notice of Akhil Reed Amar’s Constitution Day lecture at the Stanford Law School,  The Constitution, Originalism, and the Presidency: Questions and Answers–and his book signing for The Words That Made Us: America’s Constitutional Conversation, 1760-1840. 
  

• Brian Leiter's list of the ten most-cited legal historians on U.S. law faculties. [We note this with some caution -- recalling LHB founder Mary Dudziak's critique of such lists, echoed by Brian Tamanaha. KMT]

• Mary Ziegler (UC Davis) spoke with NPR's Fresh Air this week about "where . . . things stand with reproductive rights as we head into the election."
  

• My former and present colleagues Mark Tushnet and Louis Michael Seidman have a podcast, "Supreme Betrayal:  How the Supreme Court and Constitutional Law Have Failed America."  The first episode is downloadable from Apple and Spotify.  DRE. 
  

• The Center for Constitutional Studies at Utah Valley University also has a new podcast, This Constitution.  The first episode is “Above the Law? Executive Privilege and Presidential Immunity.”
  

• ICYMI: T.F.T. Plucknett, in 1941, on why the London School of Economics should have its own publications program.  Eric Segall on Originalism and the Emperor's New Clothes (Dorf on Law).
  What the history of blasphemy laws in the US can teach us today (The Conversation).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Kexel Chabot on Falsifying the Unitary Executive

Christine Kexel Chabot, Marquette University Law School, has posted Rejecting the Unitary Executive:

George Washington (NYPL)

Critics have dismissed originalism as an empty methodology incapable of resolving our most important constitutional disputes. The debate over the unitary executive has proved particularly difficult to resolve as a matter of original public meaning.  While unitary scholars claim that Article II grants the President an indefeasible power to remove all subordinates at will, their interpretation rests on minimal text and conflicts with significant historical evidence. The Supreme Court circumvented this impasse when it adopted a strong unitary interpretation of Article II in Trump v. United States.

This Article develops a new methodological framework to address the underlying disconnect between ongoing historical disputes over the unitary executive and original public meaning’s claims to a determinate understanding of the Constitution. Leading originalists have staked their claims to determinacy on empirical, fact-based assertions of historical consensus on the Constitution’s meaning. My framework responds to these empirical claims on their own terms. It requires unitary theorists who assert historical consensus to measure their claims against the entire historical record including evidence that would render these claims false. Under my approach, for example, a theory asserting an absolute claim that all that swans are white cannot withstand observations of swans that are black. A theory of historical consensus that Article II empowered the President to remove all subordinates at will likewise cannot withstand reliable historical counterevidence of restrictions on the President’s removal power.

 While the supposedly competing evidence relied on by unitary executive theorists may show an unrestricted removal power over some subordinate officers, this evidence does not rule out tenure protection for other subordinate executive officers. It aligns just as well with the unitary executive’s theoretical alternative: a pluralist understanding in which Congress has discretion whether or not to restrict the President’s removal power. The framework developed by this Article makes clear what originalism’s underdetermined methodological framework has hidden from plain sight. The Founding generation rejected the unitary executive and not today’s pluralistic system of congressional discretion.

--Dan Ernst

Using Oral Histories

In my last post, I covered how I went about collecting oral histories. In this one, I’ll discuss how I went about using them in Family Matters. What I learned was that oral history interviews provided so many more benefits than I expected when I started collecting them!

I initially began taking oral history interviews to fill in gaps in the historical record. Even though I was writing about the 1980s and 1990s, and therefore had a large number of written sources from which to draw, I often had questions about what happened, when, and why. Oral histories allowed me to get the answers I needed. For example, the Village Voice began offering domestic partner benefits to its employees in 1982. Its announcement generated a great deal of attention, spreading the concept and encouraging other companies to follow suit. But what led the Village Voice to make this change? To find out, I interviewed Jeff Weinstein, who was integral to making the program possible. He told me that he first began thinking about domestic partnership benefits in the early 1970s, but dismissed the notion as an impossible dream. Then, in 1979, he learned that the Village Voice provided health insurance to his straight colleagues’ unmarried partners. He reasoned that, if the Village Voice was willing to extend benefits to heterosexual domestic partners, then it might consider doing the same for their queer employees. He raised the issue with his union, which put it on the agenda during the next set of contract negotiations.

I quickly came to appreciate that the interviewees did not just fill in the missing pieces—they also provided details that enriched the story. When Weinstein told me about the union negotiations, he gave colorful commentary that brought the events to life. He described his appearance at the time—women’s clothing, long hair, and a beard—which he termed gender fuck drag.” Other interviewees volunteered details that I had not known to ask about, but which deepened the narrative. For example, I interviewed several researchers whose studies became crucial to lesbian mother custody lawsuits. One of them, Ellen Lewin, explained that she began her research after hearing about a lesbian mother’s custody battle. She did not just cite the case as a motivating factor—she told me that she undertook the work “with the fantasy that [she] would be called upon to be an expert witness in some of these cases.” That language conveyed just how personally invested she was in the legal issues her research implicated.

 As this indicates, what made the oral histories so useful was not just what the interviewees said—it was how they said it. Their word choices, tone of voice, and inflection all communicated valuable information. When I spoke to Tom Brougham, who became active in the gay liberation movement in the 1970s, his voice broke as he reflected on the changes he had seen in his lifetime. He had never expected to see large swaths of American society come to accept same-sex sexuality. I also interviewed Judy Shepard, who became a prominent advocate for hate crimes laws after her son was brutally murdered for being gay. In the wake of the news reports on the attack, parents of gays and lesbians reached out to her to ask how she had been able to accept her son’s sexual orientation. I could hear the irritation and anger in her voice as she wondered aloud how any parent could imagine rejecting their child. The emotion and tones that interviewees used all added to the substance of what they told me, conveying separate—and equally important—information.

Oral history interviews had several other benefits. One of them was that they corrected historical misstatements. Simply because documents consistently tell one story does not mean that it is true! To give just one example, the fourth chapter of Family Matters discusses states’ efforts to ban same-sex couples from adopting or fostering children. In 1985, New Hampshire became embroiled in a debate on this issue after the state’s Division of Children, Youth, and Families (DCYF) licensed an openly gay foster parent. Newspaper accounts indicated that DCYF tried to quell public outcry by adopting a policy preventing gays and lesbians from serving as foster parents, but that the legislature considered this insufficient and therefore enacted a statutory ban. When I spoke to the director of DCYF at the time, David Bundy, he told me that this account was far from accurate. The policy his agency adopted did not in fact ban queer foster parents, because child welfare experts believed sexual orientation was irrelevant to parenting ability. DCYF’s leadership was so adamant on this point that, after the legislature stepped in, the agency did its best to circumvent the law! The statute prohibited placements in homes with homosexual adults, so social workers simply did not ask prospective foster parents about their sexual orientation. Bundy summarized the situation with by explaining: “We came up with ‘don’t ask, don’t tell’ way before Clinton.”

 In addition to correcting the historical record, some of the interviews corrected my personal errors. Family Matters focuses on developments at the state and local levels, which meant I often had to figure out the relationships between legislators, committees, and agencies. I did my best, but sometimes I just got it wrong! Speaking to the people involved allowed me to fix my mistakes before I submitted the manuscript for publication.

Collecting oral histories is time consuming, but incredibly valuable. Indeed, I am far from the only twentieth century historian to comment on the utility of these sources. (Margot Canaday has a particularly good discussion of oral history sources in her recent work, Queer Career: Sexuality and Work in Modern America.)  I realize not every historian has the option of taking and incorporating oral histories. However, if it’s a possibility, I strongly recommend you take advantage of the opportunity!

 I’ve now had a chance to share with you both the arguments and methods of Family Matters. In my next post, I’ll move from drafting the manuscript to getting it through the publication process.