Wednesday, May 1, 2013

The U.S. Legal History Survey Revisited: I

This is the start of a series of posts on my first time teaching an introductory legal and constitutional history course. Guest blogger Anders Walker has covered this ground before, and I hope readers continue to benefit from his terrific posts (here). We ought to revisit this topic regularly, as pedagogical methods change, the field shifts, and the appetite for legal history waxes and wanes.

Some of my comments will be specific to teaching legal history in a law school setting, but I hope the conversation will extend to courses taught at the undergraduate and graduate level in history departments. I imagine that my law school course is not in fact so different from an undergraduate level survey. For example, I taught in lecture format and did not assume a strong background in U.S. history. The main differences seem to be the assignments (one final exam/paper as opposed to various projects and shorter papers over the course of the semester) and my operating assumptions about the students' knowledge of legal doctrine and legal institutions.

First, the syllabus. For all you first-time legal history teachers, there are a few great collections of legal history syllabi on the web: check out the links on H-Law, here, and on the Triangle Legal History Seminar's website, here. Anders Walker's syllabus is here, on SSRN. (To those of you who have contributed to these syllabi banks -- thank you!) I also emailed a few legal historians whom I admire, and without fail, they were very generous about sharing with me.

My syllabus is shamelessly derivative of the "Legal History: Law in American Life" course that Sarah Barringer Gordon teaches at the University of Pennsylvania School of Law, but I revised a bit to reflect my strengths and interests, as well as to take into account student feedback (e.g., they voted for "Law and the 'War on Terror'" for the final week). I'm sure I will continue to tweak this syllabus, but for the purposes of discussion, here it is:
Tani, Introduction to U.S. Legal and Constitutional History, Spring 2013
Robert W. Gordon, “The Struggle Over the Past,” Cleveland State Law Review (1996)

The Laws of Empire
Letters Patent to Sir Humfrey Gylberte (1578)
Proclamation of George III (1763)
William Blackstone on the Imperial Constitution (1765)
The Stamp Act (1765)
Memorial of the Stamp Act Congress (1765)

The Rebellion in Law

The Declaration and Resolves of the Continental Congress (1774)
The Declaration of Independence (1776)
[James MacPherson], The Rights of Great Britain Asserted against the Claims of America (1776) (excerpt)

Confederation and Constitution
The Articles of Confederation (1781)
Constitution of the United States (1787)
Speech of James Wilson (1787)
The Virginia and Kentucky Resolutions (1798-99)

Law, the State, and Economic Development in Antebellum America
Palmer v. Mulligan (1805)
Dartmouth College v. Woodward (1819)
Gibbons v. Ogden (1824)
Willard Hurst, “The Release of Energy” (1956) (excerpt)

Labor and Employment in Antebellum America: The Law of Master and Servant
Christopher Tomlins, “Master and Servant in Republican America,” from Law, Labor, and Ideology in the Early American Republic (1993), 259-92.
Commonwealth v. Pullis [The Philadelphia Cordwainers Case] (1806)
Farwell v. Boston & Worcester Railroad (1842)

How Did Lawyers Wind Up Running Things?: The Growth of the Legal Profession
Honestus, “Observations on the Pernicious Practice of Law” (1786)
James Kent, “Lecture in Law” (1824)
Alexis de Tocqueville, Democracy in America (1840) (excerpt)

Antebellum Family Law
D’Hauteville Case (1840)
Review of the D’Hauteville Case (1841)
Hendrik Hartog, “Being a Wife,” from Man & Wife in America (2000), 93-135.

The Law of Slavery

State v. Mann (N.C. 1829)
Record, State v. Celia (Missouri, 1857)
Optional: Eugene D. Genovese, “The Hegemonic Function of the Law,” from Roll, Jordan, Roll: The World the Slaves Made (1972)
The Problem of Slavery in the Federal System
Commonwealth v. Aves (1836)
Prigg v. Pennsylvania (1842)
American Anti-Slavery Society, “The Fugitive Slave Law, and Its Victims” (1856)
Scott v. Sandford (1857)

The Break Up
Confederate Constitution (1861)
Lieber Code (1898)

Alabama and Mississippi “Black Codes” (1865)
Civil Rights Act of 1866
U.S. Constitution, Amendments 13, 14, 15 (1866)

Reconstruction in the Courts

Sharecropping contract (1879)
Slaughter-house Cases (1873)
Brief for the Plaintiffs, Butchers Benevolent Association (1873)
The Civil Rights Cases (1883)
“Problem” Populations and Federal Power
President Franklin Pierce, Veto Message, Ten-Million Acre Bill (1854)
Reynolds v. United States (U.S., 1879)
George F. Edmunds, “Political Aspects of Mormonism,” Harper’s Monthly (1881)
Dawes Act (1887)

Exclusion and Segregation

Trial records: United States v. Jung Ah Lung and United State v Kam Toy

The Law of Industrial Accidents
Crystal Eastman, “Work Accidents and the Law” (1910) (excerpt)
Ives v. South Buffalo RR (NY 1911)
New York State Constitutional Amendment (1913)

The Progressive Ideal: Reform, Social Control, and Sociological Jurisprudence
Florence Kelley, “Some Ethical Gains through Legislation” (1905) (excerpt)
The Brandeis Brief (1908) (excerpt)
Muller v. Oregon (1908)

Policing Americanism in World War I and after
Paul Murphy, “World War I and the Origins of Civil Liberties in the United States” (1979) (excerpt)
Meyer v. Nebraska (U.S. 1923)
Moore v. Dempsey (1923)

The First “New Federalism”
U.S. Constitution, Amendment 18
Massachusetts v. Mellon (1923)           
Olmstead v. United States (1928)
The Social Security Act of 1935

The New Deal and the “Constitutional Revolution”
William E. Leuchtenburg, “The Constitutional Revolution of 1937” (1987)
Felix Frankfurter, “Mr. Justice Roberts,” University of Pennsylvania Law Review (1955)
Erwin Griswold, “Owen J. Roberts as a Judge,” ibid.

World War II and Civil Liberties
Wartime Civil Control Administration, Interior Security Regulations (1942)
Dillon S. Myer, “Evidences of Americanism Among Japanese-Americans” (1943)
Korematsu v. U.S. (1944)
West Virginia Board of Education v. Barnette (1943)

The Cold War, the “Rule of Law,” and Desegregation
Brief for the United States as Amicus Curiae, Brown v. Board of Education (1952)—Parts I, III, and Conclusion (pp. 1-8, 18-26, 31-32)
Southern Manifesto on Integration (1956)
Michael J. Klarman, “Race and Rights,” from the Cambridge History of Law in America (2008) (excerpt)
Optional: Mary Dudziak, “Desegregation as a Cold War Imperative,” Stanford Law Review (1988)

The “New Property”
Flemming v. Nestor (1960)
Charles Reich, “The New Property,” Yale Law Journal (1964)

The “Rights Revolution” and Its Discontents
Alexander Bickel, “Is the Warren Court Too ‘Political’?,” New York Times, Sept. 25, 1966
Transcript of the President’s Announcement on Two Nominees for Supreme Court (1971)
Matthew D. Lassiter, “The Suburban Origins of ‘Color-Blind’ Conservatism: Middle-Class Consciousness in the Charlotte Busing Crisis,” Journal of Urban History (2004)

Abortion as a Constitutional Question
American Medical Association Policy Statements (1967, 1970)
Betty Friedan, “Abortion: A Woman’s Civil Right” (1969)
Linda Greenhouse, “Constitutional Question: Is There a Right to Abortion?” New York Times, Jan. 25, 1970
Justice Harry Blackmun, Hand Down, Roe v. Wade (1973)

Incarceration, Capital Punishment, and Victims’ Rights
Laurie Woods, "Litigation on Behalf of Battered Women," Women’s Rights Law Reporter (1978)
Frank Carrington and George Nicholson, “The Victims’ Movement:  An Idea Whose Time has Come,” Pepperdine Law Review (1984)
Deborah P. Kelly, “Victims’ Perceptions of Criminal Justice,” ibid.

Same Sex Marriage
Baker v. Nelson (Minn. 1971)
Note, "The Legality of Homosexual Marriage," Yale Law Journal (1973)
Singer v. Hara (Wash. 1974)

Law and the "War on Terror"
Mary Dudziak, “What Is a War on Terror?” from War Time: An Idea, Its History, Its Consequences (2012)
Some thoughts and questions for all you legal history teachers out there:
  • Last summer, I asked a research assistant to survey all the legal history syllabi that I was able to get my hands on and tell me if there was a consensus casebook or core text. The short answer: No. Many of us seem to be stitching together our own materials, sometimes through articles and monographs, sometimes through cases and documents, often through an eclectic mix of primary and secondary sources. Has anyone out there found one book that works particularly well? Do you prefer to cobble together your own reading assignments?
  • How much reading do you assign per session? (My sense is that I could have assigned more.) Are there readings that tend to work better than others? 
  • Do you attempt to provide a grand narrative, or do you instead work through various topics and occasionally discuss the connective threads?
  • Does a strictly chronological approach work best, or have you found some other way to organize the material?
In the next post: Further thoughts on teaching "Law and the 'War on Terror.'"