Thursday, February 28, 2013

What I'm Looking Forward To: A Companion to American Legal History

On April 15, A Companion to American Legal History, edited by Sally Hadden and Al Brophy, will be published.  The volume, part of the remarkably useful Blackwell Companions to American History series, includes twenty-eight essays, organized into four sections: (1) Chronological Overviews; (2) Individuals and Groups; (3) Subject Areas; and (4) Legal Thought.  Sally and Al lined up a terrific group of contributors to tackle the wide-ranging topics included in the volume.  (Among the contributors are the Legal History Blog’s own Karen Tani, who co-authored, with Felicia Kornbluh, an essay on “Siting the Legal History of Poverty: Below, Above, and Amidst,” and Clara Altman, who wrote an essay on "The International Context: An Imperial Perspective on American Legal History.")

This is such an impressively ambitious project and is sure to provide an indispensible resource for legal historians.   I had a chance to read a number of the essays in draft, and they were all excellent: filled with information and citations yet also readable and engaging.  They offer an easy way to get up to date on various areas of legal history.  I am really looking forward to having the final product on my desk.

You can get a preview of the book now on Amazon.  The preview includes the table of contents and excerpts from many of the entries.  You can also read Sally and Al’s lovely brief introduction to the volume.  The publisher's site also has some preview material, including the full text of Elizabeth Dale's opening essay, "Reconsidering the Seventeenth Century: Legal History in the Americas."

As to my own contribution to the Companion, I was invited to write an essay on the legal history of the period between 1920 and 1970.  In 8000 words.  Including references.  It was by far the hardest 8000 words I ever produced.  My job was made somewhat easier by the fact that many issues were already well covered in the topical essays.  But still, this was an intimidating—and often deeply frustrating—assignment.  I felt like I spent as much time struggling over what not to talk about as I did over what I actually did cover.  In the end, I just had to make the hard choices, explain why I think they make sense, and hope the essay coheres in an way that is both useful and insightful. 

For an overriding theme, I focused on the decline of the grand narrative of liberalism’s ascent and entrenchment, and its replacement with scholarship that is more attentive to liberalism’s alternatives and more eclectic (less top-down) in its orientation.  Here are the opening two paragraphs of the essay:
Historical scholarship on the United States between 1920 and 1970 has traditionally centered on the rise and dominance of liberal thought and policy. The liberal project in twentieth-century America was dedicated to the application of governmental power and expertise to address society’s most glaring vulnerabilities and inequities. Between 1920 and 1970 the nation faced a series of fundamental challenges – the Great Depression, World War II and then the Cold War, a succession of social movements by African Americans, women, and other disempowered groups demanding full benefits of citizenship. Each destabilized traditional (often localized or non-governmental) bases of authority; each made new demands on government. The result was an “age of reform” (Hofstadter, 1955), characterized by a steady, seemingly ineluctable expansion of the reach of the formal legal authority, particularly at the federal level. Coming to terms with what appeared to be a durable consensus around modern liberalism as political ideology and practice was the central goal of historical scholarship from the 1940s through at least the 1980s. As law was the primary tool of liberal reform, and lawyers and judges leading figures, the work of legal historians generally fit comfortably within this story (e.g., Murphy, 1972). 
Over the past twenty years or so historians have challenged this story of liberalism’s ascent and entrenchment. With the emergence of a powerful conservative social, political, and legal movement in the post-1970 period, liberalism’s triumph in the middle decades of the twentieth century appears more qualified, more tenuous. Legal historians have highlighted forgotten or under-appreciated voices of dissent to liberalism – those on the political left as well as the right (and those who resist easy ideological categorization) who questioned the drive toward top-down, centralized approaches to social regulation, the commitment to litigation and rights as tools of social reform. They have given more attention to legal work (broadly defined) taking place outside the courts – in legislatures, administrative agencies, and various informal settings far from the world of elite lawyers and constitutional doctrine. While the Supreme Court still looms large, the best legal history situates the Court within its social, political, and legal context, generally locating the wellsprings of social change in these extrajudicial settings.

And here is another excerpt, taken from my conclusion:
The general trend of the law in the middle decades of the twentieth century was unmistakable. Government was doing more – regulating more, taxing more, providing more. This was a period of particularly explosive growth of federal authority, with the national government assuming unprecedented levels of responsibility over the lives of the American people. After largely abandoning oversight of economic regulation, judges located new grounds from which to assert their authority, transforming the courts into a critical player in protecting individual rights.

Yet beneath this apparent institutionalization and entrenchment of a liberal consensus, there were also crosscurrents and resilient counter-narratives. Antistatism and localism remained potent factors in American legal culture. So did skepticism toward the courts, led by those who were critical not only of the substance of judicial reforms but also of the idea that courts should try to resolve contentious social issues. By the late 1960s liberalism’s critics, from the left as well as the right, were proving persuasive to growing numbers of Americans.

If one were to identify a single overarching trend in how a recent generation of legal historians has written about the 1920–1970 period, it would be the increased recognition of the significance of these crosscurrents and counter-narratives. Historians today see the liberalism’s supposed triumph as, at best, a qualified victory. It was qualified in that liberalism’s professed goals – reducing racial inequality, making a fairer criminal justice system, creating a social safety net – remained far from realized. It was qualified in that liberalism’s dominance marginalized potentially valuable alternative voices. And it was qualified in that one of its most lasting legacies was the resurgence of a conservatism that was dedicated to undoing much of what liberals had accomplished. 
The revised portrait of the legal history of the twentieth century lacks some of the dramatic narrative arc of the liberalism triumphant storyline. The turning points are no longer so sharp, the antagonists no longer so clearly defined. The current generation of scholarship has more centrifugal tendencies than its predecessor. It has traded a measure of coherence and clarity for a somewhat messier, pluralist reality, in which the project of legal development is diversified, bringing in more actors – elite and non-elite, formally trained in the law and lay persons – acting in more variegated settings. The challenge going forward will be for legal historians to locate analytical frameworks and narratives that are sufficiently robust to draw together disparate scholarly projects, while minimizing the constraints that invariably accompany these frameworks and narratives.