Weekend Roundup

• On the New Books Network, Derek Litvak, a Ph.D. student in the department of history at the University of Maryland, interviews Matthew Crow, Associate Professor of History at Hobart and William Smith Colleges, about his book Thomas Jefferson, Legal History, and the Art of Recollection (Cambridge University Press, 2017). 

• On September 3, the 124th anniversary of his birth, the Harvard Law School held a symposium on Charles Hamilton Houston.  A full report in Harvard Law Today and a link to a recording of the symposium are here.

• Thanks to Brian L. Frye, we just noticed the open source casebook Legal History: History of American Economic Regulation (Spring 2015), by Kenneth Mack, Harvard Law School, who happens to have been one of the speakers at the aforementioned symposium.

• We note belatedly that the Wheeling Academy of Law and Science Foundation and other sponsors held the symposium "Women in Labor History” last weekend in Wheeling, WV.

• ICYMI: John Locke on “Reasons for Tolerateing [sic] Papists Equally with Others" (WSJ via HNN).  John Fabian Witt on Tony Kronman on renaming Yale's Calhoun College and Kronman's response (Yale Daily News).  William Dalrymple in the NYT on the East India Company as The Original Evil Corporation.   Colin Gordon, University of Iowa, in the Jacobin on The New Deal State and Segregation.

• In WaPo’s “Made by History,” Jamie Pietruska, Rutgers University, on Why President Trump’s Sharpied weather map was likely a crime--and should be.

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

Weekend Roundup

• Congratulations to Sarah Barringer Gordon and Kevin Waite, both of the University of Pennsylvania, on their award of a $242,000 collaborative research grant from the National Endowment for the Humanities. The grant will support a project titled "The Long Road to Freedom: Biddy Mason (1818–1891) and the Making of Black Los Angeles."

• From the Washington Post's "Made by History" section: Adam Malka (University of Oklahoma) on "Why law enforcement has a blind spot for white male violence"; Hidetaka Hirota (Waseda University) on "The danger of vilifying poor immigrants"; Salonee Bhaman (Ph.D. candidate, Yale University) on "How President Trump’s new immigration rule could erode the social safety net"; Margaret Marsh (Rutgers University) and Wanda Ronner (Perelman School of Medicine of the University of Pennsylvania) on "Why new anti-abortion laws may make it harder to conceive"; Katherine M. Marino (University of California, Los Angeles) on "How Mike Pompeo’s new commission on ‘unalienable rights’ butchers history"; Faith Hillis (University of Chicago) on "Why trying to distinguish between useful and dangerous immigrants always backfires"; and more.

• Writing for JOTWELLs Constitutional Law section, Ilya Somin has posted an admiring review of Maureen E. Brady's recent article on damagings clauses.

• Over at In Custodia Legis, an appreciation for equal rights crusader Maggie Kuhn; the long struggle for Swiss women's suffrage.   

• Harvard Law Today has a story on how students in Elizabeth Papp Kamali’s seminar, "Mind and Criminal Responsibility in the Anglo-American Tradition," use crime broadsides and other original sources in the Harvard Law School Library's Historical & Special Collections.

• Princeton Alumni Weekly has posted a podcast with Sarah Seo on her book Policing the Open Road: How Cars Transformed American Freedom.

• The Supreme Court Historical Society and production company Article III Films have announced the launch of the web documentary FDR and the Courtpacking Controversy.  “In late August the documentary will be sent to U.S. History teachers across the nation, accompanied by specially designed lesson plans to help students learn about the Courtpacking episode, which highlights important issues about separation of powers.”

• Now available on-line from the American Journal of Legal History: The Development of the ‘Modern’ Criminal Law of Evidence in English Law and in France, Germany and the Netherlands: 1750–1900, by R G Bloemberg.

• 1619: The 400th anniversary of the start of African American slavery in what is now the United States of America is the subject of the 1619 Project of the New York Times Magazine and this timeline in The Guardian.  But the History Channel says it started earlier.

• ICYMI: Immigration edition.  Erika Lee on the legal history of the new "public charge" regulation.  Also Kunal Parker, on NPR.  Mother Jones thinks Acting Director of US Citizenship and Immigration Services Ken Cuccinelli’s ancestor might have been excluded under it.

• Have you checked out the Federal Judicial Center's Famous Federal Trials lately? 

• Margaret O'Mara, the Howard & Frances Keller Professor of History at the University of Washington, will be delivering the keynote at the Policy History Conference in June 2020.  The PHC is currently accepting submissions of panels and papers.

• Now out in paperback:Women's Legal Landmarks: Celebrating the History of Women and Law in the UK and Ireland (Hart), edited by Erika Rackley and Rosemary Auchmuty.

• Update: LHB blogger Mitra Sharafi's post for India's Independence Day (Aug.15) on how one law journal survived the partition of British India

• Update: Check out the Teaching Law and Religion Case Study Archive by Winnifred Fallers Sullivan and Elizabeth Shakman Hurd. Lots of legal history here!

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

Using fiction to teach legal history

Do you include fiction on your legal history syllabi? This summer, we asked many of you what novels, short stories, plays, and other kinds of fiction you use to teach legal history (H/t: LSA Law & History CRN and Twitter). This is a sequel of sorts to our posts on using film to teach legal history in summer 2017 (here and here).

Here are the responses (lightly edited for readability). 

Happy reading, everyone!

• Denise Arista on indigenous legal history: Some indigenous futurism or post apocalyptic Sci-fi which suggest the resurgence of "non-normative" extra Euro-American legal regimes may be a good place to teach. Some of us work in the intersection of colonial and indigenous customary law and language, these things though rich, are rarely focused upon. 
• Begin perhaps with the collection Walking the Clouds look at the work of Grace Dillon (Anishinaabe) The work of Professor Aaron Mills who is working in Anishinaabe Constitutionalism at McGill University may be an interesting pairing. 
• Rebecca Roanhorse? Look at the work being done on the interface between humans and AI. We wrote an essay, not explicitly about law but on indigenous AI, for a collection "Making Kin With the Machines," forthcoming, MIT press
• Indigenous people are having everywhere to deal with issues of climate change, especially in the Pacific, the central US and Canada. So questions of territoriality, customary law and practice, and environmental justice need to be addressed, as well as the nuclear Pacific Issues in Micronesia, and Tahiti. In many of these places the "evidence" is in our customary chants and knowledge----not precedent. 
• The work of John Scalzi on Disability law and futures, start your searches on international law and Sci-fi, or law and Sci-fi. The work of Octavia Butler and obviously Margaret Atwood. 
• If you want to go a different route look at video gaming and indigenous futurity. And coming soon, AR/VR. Also: questions of IP and cultural appropriation. 
• Evelyn Atkinson: I really like to use "A Jury of Her Peers" by Susan Glaspell when I'm teaching about women's exclusion from the legal system (I got the idea from Amy Dru Stanley who uses it in her legal history class).  It's a murder mystery where the two female characters figure out at the end why a wife killed her husband (domestic abuse) based on little clues around her house, while the male sheriff can't figure it out.  It's short and a really engaging read (there's also a play and a very slow movie from the 1970's).
• Pat Bell: for History of American Legal Education: The Paper Chase
• Peter Candy (@Pete_Candy): On the Augustan marriage legislation, I've used Graves' 'I, Claudius'. Adds a bit of lightness and comedy before getting down to the law.
• @cszabla: I haven't taught it but one that comes to mind re colonial legal history is Achebe's "No Longer at Ease," which involves a Nigerian getting a legal education in Britain that he then gets arrested for taking bribes to pay for when he becomes part of the colonial civil service.

Lots more after the jump:

Weekend Roundup

• Over at Et Seq., Irene Gates, the project archivist at the Harvard Law School Library for the Justice Antonin Scalia papers, reports that items "that should be open next year includes the Justice’s pre-Supreme Court files (1970-1986); correspondence (through 1989 only); speaking engagement and event files (through 1989 only); photographs (circa 1982-2016); and miscellaneous files, such as subject files and articles about Scalia (1986-2016).”  H/t: JQB

• A recent post by our friends at the Federal Judicial Center reminds us of its list of “Unsuccessful Nominations and Recess Appointments” to the federal judiciary.

• Former LHB Guest Blogger Mary Ziegler, Florida State College of Law, discusses the history of the“fetal personhood” movement as part of a National Constitution Center podcast on Box v. Planned Parenthood.

• According to Bucks Local News, “In a bold decision that will preserve the material record of American Revolutionary history and make it accessible to scholars across the globe,” the holdings of the David Library of the American Revolution will be relocated to the American Philosophical Society.  More.

• Some years back, Roman Hoyos observed that their flexibility as teachers allow many legal historians to contribute mightily to the law school curriculum.  The announcement of the 2019 Law Teaching awards at the University of Pennsylvania makes the point nicely.  Among the recipients were Sophia Lee, Serena Mayeri, and Herbert Hovenkamp.  --DRE

•  ICYMI: Seven historians say Justice Clarence Thomas erred in writing in Box that “[f]rom the beginning, birth control and abortion were promoted as a means of effectuating eugenics."  (WaPo).  Also, Seth Barrett Tillman’s latest brief in the emoluments-clause litigation.  Finally, the Seattle University Law Review has published Berle X, the latest symposium inspired by the mid-twentieth-century law professor and government official Adolf Berle   I can especially recommend the contribution of my Georgetown Law colleague Robert Thompson.  --DRE

• At The Conversation: Anne Fleming (Georgetown Law) on the relevance of "the history of small-dollar loans and their regulation" to recent proposals to curb predatory lending.; 

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

Weekend Roundup

• Michael Klarman devoted his talk in HLS’s “Last Lectures” series to Thurgood Marshall and Ruth Bader Ginsburg, whose lawyering, he said, evinces “hope and resilience in what I find to be an alarming political landscape.”  More.

• The Norman Transcript kvells over the winning of the Supreme Court Historical Society’s Journal of Supreme Court History by University of Oklahoma graduating senior Adam Hines for “Ralph Waldo Emerson & Oliver Wendell Holmes, Jr.: The Subtle Raptures of Postponed Power," to appear in the May edition of the Journal of Supreme Court History.  Mr. Hines was a student of OU's Andrew Porwancher.

• A tweet from our friends at the Federal Judicial Center reminds us of its massive online bibliography, Historical Scholarship Related to Federal Judges. 

• At San Francisco State, Steve Harris “uses role-playing to transport his students into the past” in a constitutional-history-laden course.  His student Serafina Kernberger's Ben Franklin alone is worth the click. He was drawing upon techniques learned in Barnard College’s Reacting to the Past program, which holds its Nineteenth Annual Faculty Institute, this year devoted to Democratic Education in Uncertain Times on June 12-15, 2019.

• On Friday, May 17, 2019, Laura Sumari, University of Helsinki, will speak on Refugee Narratives of Europe: An Area of Security? in the EuroStorie research seminar series at the University of Helsinki.

• ICYMI:  Daniel Okrent on the history of anti-immigration laws in the United States on NPR.

• And finally: a Twitter thread from Erik Wade, Universität Bonn on cats in early medieval law

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

Undergraduate Major in Law, History, and Culture

One of the great pleasures of being at USC is getting to work with undergraduates each year as the instructor of Law 101: Law and the U.S. Constitution in Global History. I have this opportunity as a result of USC’s large, innovative and growing Law, History, and Culture (LHC) major and because of USC’s openness to having law professors teach undergraduates. In this post, I describe the genesis and operation of the major, catalog its successes, and note some risks and shortfalls of the project.

The LHC major was originally the brainchild of my colleagues Ariela Gross, Hilary Schor, and Nomi Stolzenberg. It came into existence because of their determination and their ability to frame it as a solution to two inter-school challenges.

Back in the aughts, the proposal was met by resistance. Then, earlier this decade, USC grew receptive. One reason was that the law school and humanities departments faced financial pressures. Law school applications were down nationally. Growing numbers of undergraduates were choosing majors outside the humanities.  Another reason was that USC became invested in providing undergraduates inter-disciplinary and inter-school experiences. Ariela, Hilary, and Nomi knew both dynamics well. They were co-directors of USC’s Center for Law, History, and Culture, which drew together law and humanities scholars from around the university. Seeing their opportunity, they pitched the LHC major as an inter-disciplinary, inter-school way to grow law and humanities enrollments.

The LHC major piggybacked on the community and intellectual project that the Center for Law, History, and Culture had built. It aimed to draw new students to work with faculty in law and the humanities. After all, many students are interested in the humanities but believe (incorrectly in my view) that the humanities are impractical. Adding a legal component could provide an attractive path in.

The major is structured to combine a couple of courses taught by law professors with a much larger number of humanities (and social science) courses. The hope is that courses by law faculty will attract pre-law students and students who want to know a little law without having to go to law school. Once enrolled, the students will get hooked on what the courses illuminate and facilitate: exciting and generative work on the humanistic study of the law.

The LHC major is housed within the History Department and overseen by an interdisciplinary steering committee that I co-chair with my colleague in history, Nathan Perl-Rosenthal.  We have been lucky that those who teach in the major have been willing to serve on the steering committee, attend events, and speak to students.

In terms of attracting students and boosting law enrollment, the major has been a success. The major is large and growing. There are already more LHC majors than pure history majors. My Law 101 course has around three times as many students as all my other law courses combined. The other law course required for the major enrolls about half as many total students as matriculate into USC’s J.D. program each year.

I get great students who are eager, smart, and often from far from knowing that they want to do with their lives. As compared to teaching law students, I make a different kind of difference in their lives and get to lead more free-ranging discussions. Plus, I get to join pedagogical conversations with colleagues in history, religion, English, and other humanities fields.

The major can also advance research by drawing together like-minded professors from disparate departments and schools. I’m currently working with Nathan Perl-Rosenthal on a history of birthright citizenship. Recently, the major facilitated a connection between a law school and a history colleague who share an interest in the quantitative study of medieval legal history. Ability to teach in this thriving major can also be part of what makes a scholar attractive to departments and schools as a potential hire.

There remains work to be done. The promise that the LHC major would boost enrollments across the humanities remains partly aspirational. We hope that a new set of distribution requirements, which will soon be implemented for the major, will help to bring student demand and course supply into closer alignment.

Conversely, there are potential dangers in driving students towards courses in professional schools.  One justification for the LHC major was that it might coax students from the professional schools, sciences, and social sciences back to the humanities.  To the extent that the major is routing humanities students into law courses instead, we may be making the problem worse, not better.

Then there is the problem of expertise. Professional schools have deep experience in educating students who already have their bachelor’s degrees. The college houses the experts in undergraduate education. A resultant expertise and experience gap can result in poorly designed courses and even-worse-designed majors. If a professional school prioritizes graduate students, undergraduates may receive less desirable instructors. Competition for tuition dollars can also encourage reducing course requirements as a lure to students.

The LHC major itself avoids the potential professional-school trap. Tenured and clinical faculty teach the law courses that count toward the major. Those courses were designed in conversation with colleagues in the college and with an eye to serving a major that was neither designed nor housed within the law school. LHC is not a pre-professional major in law, which I don’t think would serve college students well. It instead identifies and takes as its raison d’etre a pre-existing space in which faculty are crossing disciplinary lines to collaborate and produce cutting-edge scholarship. It is thus an attempt to live up to USC’s ballyhooed commitment to interdisciplinarity rather than to pay it mere lip service.

The danger is that the LHC major is an opening wedge for other, more pre-professional law courses. My hope is that it is instead a model of a better approach to involving professional schools in undergraduate education.

--Sam Erman (with gratitude to Nathan Perl-Rosenthal and Hilary Schor for assisting with this post)

Thank you, Elizabeth Thornberry!

Many thanks to Elizabeth Thornberry for her great guest posts on teaching strategies, project ideas, archive finds, and other aspects of her work on African legal history in February 2019! 

Here they are, all in one place:

• African History as Legal History
• Books I Didn't Write, or, Is Anyone Looking for A Dissertation Topic?
• Archive Fever, part 1: Translation and its Failures
• Archive Fever, part 2: Make Your Students Do It!
• Archive Fever, part 3: Favorite Finds

Please join us in thanking Professor Thornberry. 

Weekend Roundup

• The Law & Political Economy blog has been running a series (called "1LPE") on what it would mean to teach courses in the first-year law school curriculum from a law and political economy perspective. Perhaps not surprisingly, lessons from history are crucial. See, for example, this recent post by Michelle Wilde Anderson (Stanford Law School) on Property Law and the creation of the racial wealth gap. See also this post, by Kali Murray (Marquette University Law School), on "teaching from narrative" and how she makes use of the diary of an antebellum African-American abolitionist.

• From the American Political Development blog A House Divided: Calvin TerBeek on "how conservatives embraced the Bill of Rights and incorporation."

• Max Planck Institute for European Legal History has issued a call  for Postdoctoral and Research Scholarships 2020.  Deadline 31st May 2019.

• On February 7, Martha S. Jones spoke on Birthright Citizens at the Milton S. Eisenhower Library at Johns Hopkins University.  LHB's own Mitra Sharafi spoke on Abortion in South Asia, 1860-1947: A Medico-Legal History at the Stanford Law School on February 14. And James Loeffler will deliver the 2019 Helen Diller Distinguished Lecture in Jewish Studies on Wednesday, February 20, at UC Santa Cruz on the topic The Right to Be Heard: Jews, Human Rights, and Global Democracy.

• New online in Law and History Review via the Cambridge Core are William Johnson's Hypothesis: A Free Black Man and the Problem of Legal Knowledge in the Antebellum United States South, by Kimberly Welch, and Married Women's Wills: Probate, Property, and Piety in Later Medieval England, by Cordelia Beattie. 

• In the Washington Post's "Made by History" section this past week: Sara McDougall (John Jay College/CUNY Graduate Center) (recently spotlighted on this blog, here) on "When the Catholic Church’s prohibition on scandal helped women"; Judith Friedlander (Hunter College) on "Why left and right both get the meaning of academic freedom wrong"; and more.

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

Pedagogical Panels for #ASLH2019

Thanks to all for reading my posts about developing syllabi for a two-semester American Legal History survey; adapting my survey to a quarter-based system; choosing readings and assembling course materials; writing lectures and preparing for class; encouraging in-class discussion; and developing assignments.

I will be posting my syllabi at The Docket’s Teaching Legal History project once it is up and running.

Finally, I want to encourage interested readers to propose pedagogical panels for the ASLH annual meeting. The 2018 ASLH Annual Meeting featured a fantastic preconference on teaching legal history, organized by Katrina Jagodinsky, and I hope these kinds of discussions become established features of our meetings going forward. I’ve learned the most about teaching legal history from conversations with other legal historians about what works and (equally important) what doesn’t. The ASLH Call for Papers for the 2019 annual meeting in Boston (Nov. 21-24) welcomes proposals for skills/pedagogical workshops; I encourage anyone who’s interested in organizing such a panel and finding co-panelists to post on H-Law, tweet using #ASLH2019, and/or comment below. 

Designing Assignments for Legal History Courses

Today I'm going to focus on the kinds of assignments I've used in my American legal history courses. 

When I taught on the semester system, I required students to write a five-page book review (of a book they chose from a list I provided). Since few students had much practice writing reviews of scholarly monographs, I attached to the assignment an extensive rubric that emphasized analysis over summary and listed various things their paper should do. (For example: “The paper describes and critically assesses the clarity and organization of the author’s narrative in light of what the author was attempting to accomplish; and the paper describes the specific kinds of primary sources used, and evaluates how well they support the author’s narrative and argument; and the paper discusses how well the topic is defined and critically assesses the author’s choices to include or exclude certain topics and groups of people.”) I also asked students to analyze their monograph as a work of legal history. (“The paper engages broader points about the relationship between law and society and the usefulness of legal sources in addressing this issue.”) Breaking down the assignment into pieces (each with a specific number of points assigned) helped students figure out how to approach the project (and, frankly, made the papers much easier for me to grade).

Students also took two in-class midterms and an in-person final exam that were a mix of IDs and essays. Several days before the exam, I passed out a list of essay questions that might appear on the exam. Since students had time to prepare, I could ask broad questions that asked students to reflect on and synthesize a lot of course material. Questions included:

• The Declaration of Independence states that “all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.” Would the pre-revolutionary colonists we’ve studied agree with this? How might their reactions depend on their political, economic, and social status?  
• In Lawrence v. Texas (2003), the Supreme Court observed that “In our tradition the State is not omnipresent in the home.” Is this a correct description of how law has operated to define gender relations since World War II? How much room have men and women had to define marriage and gender roles for themselves, and to what extent have these been defined by courts and legislatures?

When I moved to a school on a quarter system, I was reluctant to sacrifice any my eighteen class days for an in-class exam. I thus tried to design paper assignments that would assess students’ understanding of broad course themes, skill in analyzing legal history sources, and ability to synthesize primary and secondary sources while  developing an argument related to those themes. My now-standard paper assignment in my legal history courses gives students a source we have not read or talked about in class and asks them to analyze it. As I tell them, this is not a research paper, and requires no outside knowledge of the source; instead, I want to see how well they can make sense of the source given the information they have from class lectures, discussions, and readings. I also try to make it clear to students that they have freedom in how they approach the source; giving students a choice of documents, or a lengthier document where they can choose one part to discuss, reinforces that.

I’ve used a variety of sources for this assignment. I have asked students to choose an issue of the digitized Virginia Gazette and discuss some aspect of that issue (each issue is ~4 pages long, and the ads are a particularly rich source). The prompt read as follows:

• Read the paper and, using the primary sources and historical articles assigned in the class, reflect thoughtfully on how one or more articles and/or one or more advertisements relate to the themes and material we have discussed so far. Some questions to consider: what does this document tell us about labor, servitude, or slavery? About morality, crime, and social control? About Virginia’s relationship with England? Choose one of these questions (or develop your own) and discuss how we should understand this document in light of the materials we have read and discussed thus far this quarter. (Another way to think about it—if you were to add the source to the syllabus, which day would you add it to, and why? How does it expand on themes and ideas we have discussed so far in the class, and/or how does it complicate or contradict it?)

I’ve asked students to do the same kind of analysis with sources including the New York State Ratification of the Constitution (1788), Cleland v. Waters (Ga. 1855); Hoke v. United States (1913), and United States v. Cartozian (D. Or. 1925). In my Gender & the Law class, which I teach chronologically using a historical approach, I recently gave students three late nineteenth-century cases: McIntyre v. McIntyre (N.Y. Misc. 1894) (a collusive divorce case), Hood v. Sudderth (N.C. 1892) (a seduction case), and Paulin v. State (Tex. App. 1886) (a criminal prosecution of a husband who had killed his wife’s lover). Students were free to focus on one case, pull out common themes in two or three of the cases, etc. 

I like to give students the whole unedited source for this assignment, which means the source should not be too long, and court cases should not be too full of procedural or technical language that might stump undergraduates. Finding suitable cases is challenging, and often means I’m frantically skimming nineteenth-century treatises on HeinOnline the night before I promised the paper prompt would be available. However, now that I use this assignment in several of my classes, I’ve been keeping a list of cases and other sources that might work well as I run across citations in books and articles. (I’ve been waiting for a chance to have students write about State v. Hunter [Or. 1956]).

Another assignment I’ve adopted and adapted to great effect in my legal history courses is the “50 word assignment.” As I mentioned in an earlier post, in my legal history courses, I am fortunate enough to have graduate student teaching assistants to lead students in weekly discussions of the academic article or book chapter assigned that week. I want to set everyone up for a successful discussion by making sure students arrive at discussion section having actually done the reading. Thus, I require students to submit a one-sentence summary of the assigned reading (no more than 50 words) before their section meets; each sentence is worth a small number of points. A concise summary of an academic argument is hard to do well, and this serves as an excellent writing exercise. In addition, one can see immediately whether students understood the reading. (I find that summaries work better for this purpose than the discussion questions I used to assign.) The sentences are also very easy to grade quickly.

Classroom Discussions

I last wrote about writing lectures and preparing for class; today I’m going to focus on how I spend my time in the classroom.

As my earlier posts suggest, I use primary sources in the classroom as much as possible. I learned to teach this way in graduate school at the University of Chicago, where I was a teaching assistant, and then an instructor, in (what was then) the America in Western Civilization sequence. I really enjoyed leading small seminars in which students discussed primary sources, and when I began teaching larger courses, I tried to use this approach as much as possible. Now I teach most of my classes through a mix of lecture and discussion—I lecture for a bit, then stop and ask students to reflect on one of the assigned sources, then lecture, then discuss another source, etc. The balance between lecture and discussion shifts a little every day, depending on how many sources I’ve assigned, and how rich those sources are. Obviously this takes experimentation, and early on I assigned way too many sources so that I wouldn’t run out of things to discuss. As I had a better sense of how much students have to say (and how much they want to say) about different sources, I scaled back the assigned materials accordingly. I find that (most, or at least enough) students will do the reading if they know they are accountable for it, so I do want to leave enough time to cover each source I assigned. 

On the first day of class I model what I want discussion to look like going forward. I pass out a copy of a primary source, ask the students to take a few minutes to read it, and then we work through it as a class. In the first half of the survey, I hand out a selection of provisions from the Lawes Devine, Morall, and Martiall (Va. 1611) and ask students what they can figure out from the text. (I often call for volunteers to read various sections aloud—it means less of me talking, and allows students to participate in a different way.) Provisions prescribing whipping or (mostly) death for a range of crimes, many focused on threats to the food and water supply, are short and straightforward to read. Asking students to discuss what the source does and does not tell us, and what it suggests about conditions in early Virginia, works well to get students engaged with source analysis and sets them up to do this on their own at home. In the second half of the survey, I’ve sometimes started the course by asking the class to engage in a very close reading of the Fourteenth Amendment—a very different source, but one we’ll come back to again and again in that class.

A tangent: I really like using colonial American legal materials in class, not least because they’re generally so short and incomplete. They’re also usually free of formal legal jargon that can confuse undergraduates. Cases about drunkenness and fornication that are only a few sentences long are easy to read, but require students to use what they’ve learned in class as they puzzle over possible reasons why X received a lighter sentence than Y. They also require students to acknowledge that there’s a huge amount of information that they just don’t have. This serves them well as the sources get longer and more complex in later weeks. 

I require students to bring the assigned primary sources (on paper or electronically) to each class so that we all have the text in front of us during discussion. I also try to make it very clear to students how to read these sources. I have written up guides for reading primary sources and secondary sources (which I post in our course management system); I also assign Orin Kerr’s article “How to Read a Legal Opinion: A Guide for New Law Students,” Green Bag 11 (Autumn 2007), which does a good job walking students through some of the technicalities. I use Powerpoint sparingly, for lecture outlines and for images, but I do often include the questions I plan to ask about a particular document on a slide, to give students a minute or so to think through some answer. 

A practical note: I have used this approach successfully in classes as large as about 80. Even at that size, there’s enough time for a significant percentage of the students to speak every day, and everyone can participate pretty frequently. (I incentivize this, of course, by awarding points for class participation and by rather theatrically jotting down each student’s name in my notes as they talk.) As I have learned the hard way, of course, classroom design plays a crucial role here. Some classrooms on my campus are arranged so that students can all see and hear one another; in others, the acoustics are such that I end up having to repeat all student comments to the group. 

I’ll also take the opportunity to share one of the best pieces of advice I’ve ever received for teaching small seminars: start each class by going around the room and asking each student to say what they want to talk about that day. (Some people do this by passing around a stopwatch and letting each student speak for no more than one minute; I do not time them, but I have found that undergraduates tend not to go on at great length. One might find a timer helpful, however, in a law school or graduate school seminar.) Students know they have to come to class each day prepared with something to talk about, and it’s fascinating to see at the beginning of class what they’ve drawn from the readings. It also means that fifteen minutes into class, each student has already participated. Students are generally going to mention topics or issues you had already planned to talk about, but it is easy to give students credit for their ideas (and bring quieter students back into discussion) by saying things like “as Rex said” or “let’s move to the question Roscoe raised.” 

In my next post, I'll discuss the assignments I use in my legal history courses. 

Preparing for Class

I’ve written already about constructing syllabi and choosing readings for my legal history courses; today I’m going to focus on how I prepare for class. (This may all be obvious for many readers, and much of it is not specific to American legal history, but I hope that readers with little or no teaching experience may find it of some interest. I know when I was first prepping my own courses, I was extremely curious about how everyone else did it, and I benefited from many colleagues’ generous advice.) 

Prepping my first classes out of graduate school required a giant shift in perspective. After years of narrowly focusing my attention on the details of American administrative law and politics, I needed to figure out big themes through which to tell the story of American legal history over many centuries. I also needed to figure out how to balance big ideas and granular detail in each day’s class. My dissertation adviser, Bill Novak, had been exactly right when he told me that I should think about my oral exam lists as setting me up to teach classes in that field, and it was a relief to remember that I had taken detailed notes on a wide array of books and articles during my preparation for oral exams years earlier. (I even had outlines—I had adapted my law school outlining technique to help me organize my thoughts for my oral exams.) My notes alone were often insufficient, of course, since they were largely focused on historiographical questions, but even just knowing which books I could go back to was a huge help. 

For a broader perspective, I repeatedly turned to Kermit Hall and Peter Karsten’s The Magic Mirror: Law in American History and Lawrence Friedman’s A History of American Law in order to step back and see what broad themes these scholars had identified in American legal history. While I may quarrel with some aspects of these books, I find their focus on the forest, not just the trees, very useful for thinking about finding entry points into often dense material. 

Also useful for seeing broad themes were notes I’d taken as a law student in Richard Ross’s course on Colonial American Law and notes I’d taken as a TA for courses including Bill Novak’s U.S. Legal History class and Gerald Rosenberg’s Constitutional Law class. I could see in my notes even years later that the most successful lectures were organized around a single big idea, illustrated with concrete examples and then complicated and challenged through counterexamples. (I even still have my handwritten notes for many college history courses, but deciphering my college handwriting was perhaps a bridge too far.) Graduate students reading this—take good (typed!) notes, and save them! You never know what might be helpful in the future. 

Figuring out how to balance the big ideas with the granular details is, of course, always the challenge. Early on, I assigned too much reading, and included too many details in my lectures, largely out of terror that I would run out of things to say. As I became more comfortable teaching, I pulled back some (a lot, actually) to give students more time to engage with the readings and examples I did provide. 

Some other habits I’ve adopted to make class preparation easier (again, these are probably old hat for many of you, but they are things I wish I’d known to do when I started teaching):

I keep fairly extensive lecture notes, organized with bullet points into outlines so I can easily see where I am on the page. I don’t bother with full sentences, but I include the broad point I wanted to make, the examples/details/statistics I’ll need to read off the page, the questions I want to ask students about the readings, and the specific quotes from the reading I want them to discuss. I know that I can get through exactly four and a half pages of my notes (single-spaced, 12 point font) in 80 minutes. (Only recently did I figure out how great it would be to increase the font size before printing.) I also know that from experience I will not be able to get through more no matter how much I want to or how quickly I talk.  This is really helpful to know when I’m writing new lectures. (I’ve also starting using my lecture note format when I give conference papers; it allows me to be somewhat more relaxed in style, while presenting in a format I’m used to doing multiple times a week.) 

As soon as a syllabus is finalized and handed out, I save a copy as “future syllabus 3XX” and add notes to it (moving or removing certain cases that just don’t work with a particular day’s material, noting at the top that I need to spend more time on A, B, or C, etc.) I know I’m not going to remember the details of why something didn’t work a year, or years, later, but it’s easy to go back to my office and simply move an assigned reading from one day to another. It’s also a file where I can paste citations, links, and stray thoughts (like “do a better job explaining negligence” or “read this article before teaching Lochner again”) to deal with later.

Further, when I run across something online that I think might be interesting to use in one of my classes someday (an image, a newspaper article, a Legal History Blog reference to a new book or journal article, a digital history project, someone else’s syllabus or reading list, a tweet with a great piece of teaching advice), I immediately save it with Google Keep (which lives in my browser and requires a single click; Evernote also works for this.) Evernote and Google Keep (and probably a dozen more similar programs) store all kinds of materials and allow you to tag your materials as you like. I’ve created tags for each of the different classes I teach or might teach (as well as ones for various research projects I’m working on, restaurant recommendations, travel ideas, etc.). I’ll tag a link as soon as I save it, with whatever fits (the same article might be of use in Legal History since 1850, Gender and the Law, and Constitutional Law). Some of these classes I might not be teaching again for a few years, but when I’m starting to think about ordering materials and revising the syllabus for that class, I have a giant head start. It’s also a great way to keep track of the teaching tips and interesting assignments people tweet about that can be almost impossible to find weeks or months later.

Assembling My Own Legal History Course Materials

As I mentioned in an earlier post, a few years ago I decided to start assembling my own primary source materials, tailored to the dates and coverage of my courses. (This also reduced course costs—I post the materials via our course management system, allowing students to print and/or view the materials online, as they like.) I initially expected the process to be fairly straightforward; I had taught legal history courses many times over, and thus knew what kinds of materials would illustrate, complement, and complicate my lectures and the historical scholarship I assigned. However, it turned out to be much more time consuming than I had anticipated, because there’s just so much fascinating material one could assign, and it was so easy to go down rabbit holes. Although I thought I knew what I was looking for, I kept finding materials sources that were so intriguing that I rewrote some lectures entirely in order to include them.

The first and easiest part of the task was gathering cases, statutes, and other sources I’d already been teaching and wanted to continue using. For each, though, I now had to decide how much of the original source to include. For example, I had long used casebook excerpts of seventeenth and eighteenth-century Virginia statutes regarding servitude and slavery, but there was so much rich and interesting material in the statute books that it was hard to figure out what to exclude. And editing nineteenth and twentieth-century judicial opinions for an undergraduate audience required significant attention to both length and clarity.  

In other areas, I knew only generally what I wanted (these included colonial cases involving domestic disputes, and nineteenth-century private law cases with more interesting fact patterns than the ones I’d been using). Without specific documents in mind, I looked to the footnotes of relevant books and articles for ideas; I also tried to browse online sources to the extent possible. For colonial records, I am extremely thankful for archive.org, where it is easy to full-text search many colonial legal reports. Here my strategy was to identify something like Nathaniel B. Shurtleff’s Records of the Governor and Company of the Massachusetts Bay in New England, search various volumes for words like “adultery” and “drunk,” and see what came up. (A lot.) And once I found an interesting case, I could search the litigants’ names; I was happy (for me, of course, not for them) whenever I found couples whose domestic strife kept them returning to the courts. Similarly, in paging through the nineteenth-century legal treatises available through HeinOnline (especially the Early American Case Law and the Legal Classics collections) I found brief descriptions of and citations to nineteenth-century tort and contract cases that seemed engaging and readily comprehensible.

Finally, I wanted to see what other kinds of sources were out there, and I wanted to broaden my sources to showcase non-elite, non-male, and non-white perspectives on law and legal change. Here too I looked to the footnotes of academic books and articles; I also went back to other people’s syllabi to see what sources they included. (I’ve been collecting paper and electronic syllabi since I started teaching. Online resources have significantly improved in recent years, and one particularly useful collection of legal history can be found at the Triangle Legal History Seminar’s website. Academic crowd-sourced reading lists of primary and secondary sources like the Trump Syllabus 2.0 and the #CharlestonSyllabus—now a book—are another great resource. And The Docket is planning a syllabus repository.)

I also browsed the resources on Project Avalon – both its Chronology of American History 1492-present and its more focused collections like Statutes of the United States Concerning Native Americans – for sources of possible interest. George Mason University’s History Matters website also has a great set of primary sources, as does the American Yawp (especially pre-1923). I also sat down with a pile of all of the various American history document collections I’d accumulated via book sales, exam copies, and free book piles in academic hallways. These included (but were definitely not limited to) the Founders’ Constitution (now also online); Women’s America (Linda K. Kerber, Jane Sherron De Hart, Cornelia Hughes Dayton, and Judy Tzu-Chun Wu, eds.); multiple volumes of A Documentary History Of The Negro People In The United States (Herbert Aptheker, ed.); The Constitutional and Legal Rights of Women (Judith A. Baer and Leslie Friedman Goldstein, eds.); The Age of Jim Crow (ed. Jane Dailey); and the excellent but out of print Women in American Law: From Colonial Times to the New Deal (Marlene Stein Wortman, ed.)

At the end of the day, of course, I found more material, and more ideas for hunting down even more material, than I could ever use (or ask students to read). (I’ll describe how I repurposed some of these sources for paper topics in a later post.) I had, however, created collections that represented a broader set of voices and perspectives and that I was excited to teach.

Moving from semesters to quarters

In my first post, I discussed my approach to developing a two-semester survey course in American legal history. After several years of tinkering, I was pretty happy with the course; I needed to rethink it, however, when I moved from a school on the semester system to one on the quarter system.

When I joined the Center for Legal Studies at Northwestern University, I began teaching a variety of undergraduate socio-legal and legal history courses, eventually including both halves of a two-quarter legal history survey co-listed in History and Legal Studies (Legal and Constitutional History of the United States to 1850/since 1850). Moving from semesters to quarters in the first half of the survey was pretty easy; my semester-long class had ended at 1890, so I had almost exactly the right amount of material for a roughly nine-week class that ended in 1850. The second half of the survey, however, posed a challenge, since I now had only 18 class periods but more than 30 lectures worth of material that I thought was important and enjoyed discussing with students. Keeping all of this content was obviously impossible, though, and I had to decide which topics I really wanted to preserve in the course. I had organized my semester-long course around certain recurring themes, and saw that the course would still hold together if I lifted out the stand-alone lectures and assigned readings on changes in American legal thought and legal theory (i.e. formalism, sociological jurisprudence and legal realism, legal process, and originalism). I now cover these topics only briefly in class, where necessary to understand other sources; I do hope to use this material someday in a stand-alone class entirely on American legal theory where we can delve into these ideas in some depth.

I made some other coverage decisions based on topics and material I was teaching in other classes. I work in an interdisciplinary legal studies program and teach a variety of other law-related courses, including Constitutional Law II, focused on civil rights and civil liberties (co-listed in Political Science), and Gender and the Law (co-listed in Gender and Sexuality Studies). Undergraduates who are interested in legal topics often take more than one of these classes, so I’ve tried to eliminate as much overlap as possible, both in topics covered and reading assigned. Where there is some inevitable overlap (i.e. abortion, segregation, marriage equality), I have approached the material differently (doctrinal in some classes, historical in others) and assigned different readings whenever possible.  

I also suspected that my previous approach of assigning monographs to read alongside the primary sources would be less successful given the pace of a quarter system. While teaching a semester-long course, I had generally assigned four or five monographs that matched, chronologically, what we were covering and gave the students more background on particular issues than I had time to cover in class. I frequently changed up these books, both to highlight different themes and to keep things fresh for me, but I did repeatedly rely on John Ruston Pagan’s Anne Orthwood's Bastard: Sex and Law in Early Virginia (Oxford University Press, 2002) and Mary Dudziak’s Cold War Civil Rights: Race and the Image of American Democracy (Princeton University Press, 2001). Both worked particularly well and were always a hit with students.

In a nine-week course, I wanted to use more focused readings; I thus moved from assigning a few books to be read over multiple weeks to assigning one or more journal or book chapters per week. Here, too, I tend to switch up most of these readings each time I teach, but some articles that work extremely with students include Cornelia Hughes Dayton, “Taking the Trade: Abortion and Gender Relations in an Eighteenth-Century New England Village,” William and Mary Quarterly 3^rd Series, 48 (1991): 19-48 (there’s a companion website); Laura Edwards, “Textiles: Popular Culture and the Law,” Buffalo Law Review 64 (2016): 193-214; and Nancy Cott, “Marriage and Women's Citizenship in the United States, 1830-1934,” American Historical Review 103 (1998): 1440-1474.

Moving to articles and book chapters also addressed two pragmatic concerns. First, these readings eliminated significant course costs, since students are able to access journal articles through library databases and book chapters through e-reserve. (I’ll add here a plug  for helping out academic journals by posting stable links to assigned articles.)

Second, my courses now included weekly discussion sections led by graduate teaching assistants, and I wanted to use this time effectively. Since I use class time to lecture and to discuss the assigned primary sources, I ask the graduate teaching assistant to lead students in a discussion of that week’s article or chapter. (A very short weekly assignment where students summarize that week’s reading before their section meetings ensures that students have read the article and come to their section meeting ready to discuss it.) This approach focuses section meetings on the specific task of discussing the author’s question, argument, and use of sources, and gives the students the opportunity to relate the reading to that week’s lectures and primary sources. In addition, my graduate teaching assistants have been excellent and enthusiastic, but they have had varying levels of familiarity with American legal history. I think this approach makes it fairly straightforward for them to prepare for and lead discussion.

Finally, I rethought the assigned primary source reader, since I couldn’t justify asking students to spend their money on a large, comprehensive casebook that they were going to use so little of in nine weeks. I initially adopted Melvin I. Urofsky and Paul Finkelman’s Documents of American Constitutional And Legal History, using volume one (from the founding to 1896) for the first half of the course, and volume two (1896 to the present) for the second half. I no longer use these, however, since the books are not inexpensive (approximately $60 each), and contain much more material than I could ever assign. (This is not necessarily a criticism of the books themselves—they simply do not map well onto the courses I was teaching. The first volume has little on colonial American law, and the second volume’s starting date of 1896 does not really work for a class beginning in 1850.) I supplemented each volume with a collection of sources I’d edited myself, and soon realized I’d be happier in the long term if I took the time to simply assemble and edit all the sources myself. I’ll discuss my process of choosing and assembling sources in the next post; for now I’ll just say that it was an enormously time-consuming endeavor that I am nonetheless glad to have done.