Friday, May 27, 2011

im in ur base...

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