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.
