Saturday, December 1, 2018

Developing an undergraduate American legal history survey course

Thanks to Mitra, Karen, and Dan for inviting me to blog this month. I’ve been a big fan of the Legal History Blog since its inception and I am happy to have an opportunity to contribute by talking about teaching legal history. The Legal History Blog has been the home of some great posts on teaching, especially teaching legal history in law schools, that I encourage everyone to go back and read; recent posts include those by Mitra Sharafi (here and here), Bernard Hibbetts (here and here and here), Ajay Mehrotra (here), Karen Tani (here, here, here, and here), Anders Walker (posts collected here) and Benjamin Coates (posts collected here).  

I’m going to use my posts to discuss my experiences teaching American legal history courses to undergraduates – designing syllabi, choosing readings, developing assignments, and generally figuring out the nuts and bolts of teaching legal history to students who have little or no prior legal knowledge, and little or no experience reading cases and statutes, but who are nonetheless extremely interested in engaging with the subject and the sources.

My first job after finishing graduate school was at the Department of History at Clemson University, which had a two-semester American legal history survey already on the books (U.S. Legal History to 1890/since 1890) when I started. In preparing to teach this sequence for the first time (and facing an early deadline for textbook orders), I chose Kermit Hall, Paul Finkelman and James W. Ely’s casebook, American Legal History: Cases and Materials, 3rd ed. (Oxford University Press). I appreciated that it contained a large number of clearly edited sources from early America to the present, and that it also included useful explanatory essays that framed those sources. In designing my syllabus, I tried to use the materials in the casebook as much as possible – after all, I had required students to buy it, and I wanted them to get their money’s worth. (The casebook was and is expensive – slightly under $100 – but I used a lot of it, and required it for each half of the course every year, thus keeping the resale market active.) I supplemented the casebook only sparingly, filling in some gaps with my own edited versions of materials like James Madison’s “Vices of the Constitution” (1787), the Constitution of the Confederate States of America (1861), Buck v. Bell (1927), and several cases on sex discrimination and the equal protection clause. (I shall note here my frustration with casebook editors who consider Griswold v. Connecticut and Roe v. Wade largely sufficient for covering questions of sex, gender, and civil rights in the twentieth century.) I also assigned four monographs alongside the primary sources; I'll say more about how I incorporated these in a later post.

Choosing this casebook helped me make decisions about content; for example, I knew I wanted to cover colonial American law, but wouldn’t have known where to start assembling my own sources. Restricting myself to the sources in the casebook made syllabus design a lot easier. In fact, most of my initial decisions were about which materials not to use – both in terms of coverage and in terms of how much reading to assign. (I have since started assembling my own course materials, which I will discuss in a later post, but I remain grateful that I was able to rely on a casebook for guidance when I was first figuring out how to teach this course.) I had been a teaching assistant for William J. Novak’s two-quarter U.S. Legal History course years earlier, and my notes from that class were a big help; so too were other instructors’ syllabi. I found it extremely helpful to look at as many other legal history syllabi as I could find, in order to figure out how other people had taught similar classes and how much they had assigned. Certain things became obvious (pretty much everyone teaches Farwell), while other things were less so (how best to teach the American civil rights movement? how much material close to my own heart – bureaucracy – would students be willing to stomach?). Looking at all these syllabi also made clear how many possible ways there are to organize such a class, and reassured me that whatever choices I made would probably be fine.

My location shaped some other coverage decisions. Given that I was teaching not just in South Carolina but on John Calhoun’s former plantation, I made sure to include sources on nullification and secession, and on the law of the Confederacy. And throughout both semesters, I aligned the story of American legal history around the laws of slavery, race discrimination, and civil rights – important everywhere, and particularly relevant on a campus that is also home to ("Pitchfork Ben") Tillman Hall and the Strom Thurmond Institute.

Over time, of course, I learned which themes I found most compelling, which sources reliably resulted in great student discussion (and which ones led to abject confusion), and  how to tie material covered early in the course into lectures and discussions weeks later. Over the next few years, as I became comfortable with the course (and with teaching generally), I assigned fewer sources for students to read before class so that we could spend more time discussing each one. I also rearranged lectures, deemphasized certain topics, and dropped others from the syllabus entirely. In designing the first half of the course, I had felt more or less bound by Morton Horwitz’s The Transformation of American Law, 1780–1860, and had devoted one class each to tort law, contract law, and property law. Undergraduates easily engaged with the first two, but I found that explaining the details of riparian rights to students with no prior knowledge of property law took more time than it was worth. After years spent drawing mills on the board, I decided that tort and contract law (and labor law and corporate law, which we also discussed) more than sufficed to illustrate how courts actively promoted economic development. Similarly, in the second half of the class, students had tolerated a full day devoted to railroad regulation and the Interstate Commerce Commission, and another day spent discussing on antitrust regulation and the Federal Trade Commission. However, no one complained when I eventually combined these two lectures into one on the growth of federal regulation and the Progressive era.

After five years of teaching and tinkering with both halves of the American legal history survey, I was pretty happy with it. In my next post, I’ll describe how I rethought the course as I moved from a semester system to a quarter system.