You may listen to the book panel session that White references below here or watch it here. The panel took place at the University of Virginia last month; along with White, it featured John Witt (Yale), Fred Konefsky (SUNY-Buffalo), and me.
Q: Some visible legal historians derive their visibility in part from being identified with a particular approach to the field--Willard Hurst, Morton Horwitz, and Lawrence Friedman come to mind. You don't seem to have been identified with any particular approach, either methodological or substantive. Do you feel your scholarly career has some common methodological or substantive themes?
A: At a February 27 conference on Law in American History, Volume One, each of the panelists made an effort to say something about my general approach as a legal historian. Tomiko Brown-Nagin suggested that I "take law seriously" in the sense of paying close attention to legal doctrine, judicial interpretation, and the importance of legal institutions in American culture. Fred Konefsky compared my new book to The American Judicial Tradition, claiming that one way to think of the book was as an effort to sketch an "American legal tradition," using its central themes as the equivalent of the interconnected essays on judges I produced in that earlier volume. John Witt felt that my approach in Law in American History was "optimistic" about law in that the book sought to demonstrate the persistence and stability of law and legal institutions in American history, despite their being buffeted about by disintegrative social, political, intellectual, and military pressures emanating from the larger culture.
I don't really disagree with those assessments, but I don't want to convey the impression that by "taking law seriously," sometimes giving close attention to its deliberative processes and modes of reasoning, and emphasizing its centrality as a force for social cement in American culture, I am associating myself with an "internalist" perspective on the fields of legal and constitutional history, or with the view that law is an essentially autonomous discipline or profession, or with a claim that the "rule of law," as an aspirational vehicle in America, has consistently triumphed over the course of American history. I have said in other places that I find distinctions between "internalist" and "externalist"scholarship not particularly useful generally and not at all useful as applied to my work. As I say in Law in American History, I find the relationship between law and its cultural context to be reciprocal, with law being both constitutive and reflective of that context. One could say that I start in the book with "external" matters, central themes of American history, and seek to fit law around them, but in the course of the fitting I emphasize the reciprocal relationship between law and those themes, so that law and legal institutions take on a certain degree of autonomy. I also reject any implication that if one seeks to emphasize the central role of law as an aspirational force in American culture, that necessarily means one is setting forth a triumphalist account of a society dominated by the "rule of law." Law in American History is a narrative about how, in some respects, law and legal institutions failed to resolve divisive cultural tensions, leading to convulsion and the prospect of the disintegration of the American republic. It is also about how law and legal institutions contributed to the emergence of those tensions. In my view the centrality of law in America has been for worse as well as for better.