Undergraduate Major in Law, History, and Culture

One of the great pleasures of being at USC is getting to work with undergraduates each year as the instructor of Law 101: Law and the U.S. Constitution in Global History. I have this opportunity as a result of USC’s large, innovative and growing Law, History, and Culture (LHC) major and because of USC’s openness to having law professors teach undergraduates. In this post, I describe the genesis and operation of the major, catalog its successes, and note some risks and shortfalls of the project.

The LHC major was originally the brainchild of my colleagues Ariela Gross, Hilary Schor, and Nomi Stolzenberg. It came into existence because of their determination and their ability to frame it as a solution to two inter-school challenges.

Back in the aughts, the proposal was met by resistance. Then, earlier this decade, USC grew receptive. One reason was that the law school and humanities departments faced financial pressures. Law school applications were down nationally. Growing numbers of undergraduates were choosing majors outside the humanities.  Another reason was that USC became invested in providing undergraduates inter-disciplinary and inter-school experiences. Ariela, Hilary, and Nomi knew both dynamics well. They were co-directors of USC’s Center for Law, History, and Culture, which drew together law and humanities scholars from around the university. Seeing their opportunity, they pitched the LHC major as an inter-disciplinary, inter-school way to grow law and humanities enrollments.

The LHC major piggybacked on the community and intellectual project that the Center for Law, History, and Culture had built. It aimed to draw new students to work with faculty in law and the humanities. After all, many students are interested in the humanities but believe (incorrectly in my view) that the humanities are impractical. Adding a legal component could provide an attractive path in.

The major is structured to combine a couple of courses taught by law professors with a much larger number of humanities (and social science) courses. The hope is that courses by law faculty will attract pre-law students and students who want to know a little law without having to go to law school. Once enrolled, the students will get hooked on what the courses illuminate and facilitate: exciting and generative work on the humanistic study of the law.

The LHC major is housed within the History Department and overseen by an interdisciplinary steering committee that I co-chair with my colleague in history, Nathan Perl-Rosenthal.  We have been lucky that those who teach in the major have been willing to serve on the steering committee, attend events, and speak to students.

In terms of attracting students and boosting law enrollment, the major has been a success. The major is large and growing. There are already more LHC majors than pure history majors. My Law 101 course has around three times as many students as all my other law courses combined. The other law course required for the major enrolls about half as many total students as matriculate into USC’s J.D. program each year.

I get great students who are eager, smart, and often from far from knowing that they want to do with their lives. As compared to teaching law students, I make a different kind of difference in their lives and get to lead more free-ranging discussions. Plus, I get to join pedagogical conversations with colleagues in history, religion, English, and other humanities fields.

The major can also advance research by drawing together like-minded professors from disparate departments and schools. I’m currently working with Nathan Perl-Rosenthal on a history of birthright citizenship. Recently, the major facilitated a connection between a law school and a history colleague who share an interest in the quantitative study of medieval legal history. Ability to teach in this thriving major can also be part of what makes a scholar attractive to departments and schools as a potential hire.

There remains work to be done. The promise that the LHC major would boost enrollments across the humanities remains partly aspirational. We hope that a new set of distribution requirements, which will soon be implemented for the major, will help to bring student demand and course supply into closer alignment.

Conversely, there are potential dangers in driving students towards courses in professional schools.  One justification for the LHC major was that it might coax students from the professional schools, sciences, and social sciences back to the humanities.  To the extent that the major is routing humanities students into law courses instead, we may be making the problem worse, not better.

Then there is the problem of expertise. Professional schools have deep experience in educating students who already have their bachelor’s degrees. The college houses the experts in undergraduate education. A resultant expertise and experience gap can result in poorly designed courses and even-worse-designed majors. If a professional school prioritizes graduate students, undergraduates may receive less desirable instructors. Competition for tuition dollars can also encourage reducing course requirements as a lure to students.

The LHC major itself avoids the potential professional-school trap. Tenured and clinical faculty teach the law courses that count toward the major. Those courses were designed in conversation with colleagues in the college and with an eye to serving a major that was neither designed nor housed within the law school. LHC is not a pre-professional major in law, which I don’t think would serve college students well. It instead identifies and takes as its raison d’etre a pre-existing space in which faculty are crossing disciplinary lines to collaborate and produce cutting-edge scholarship. It is thus an attempt to live up to USC’s ballyhooed commitment to interdisciplinarity rather than to pay it mere lip service.

The danger is that the LHC major is an opening wedge for other, more pre-professional law courses. My hope is that it is instead a model of a better approach to involving professional schools in undergraduate education.

--Sam Erman (with gratitude to Nathan Perl-Rosenthal and Hilary Schor for assisting with this post)

Op-eds and Amicus Briefs

In a prior post, I mentioned the benefits of having access to a good publicity team at one’s home institution.  Today, I want to talk about the relationship between legal historians and other consumers of the past.

Over the years, LHB has flagged many op-eds and amicus briefs and featured a number of commentaries on the issue. Last May, Christopher Schmidt ruminated that The Art of the Op-Ed was “problematic” because it required “compromise and simplification” and “anachronism and presentism.” Turning to amicus briefs, Greg Ablavsky’s Thoughts on Historians and Advocacy included the concern that “briefs rarely capture the complexity that good history depicts.” In “Say Something Historical!” Tomiko Brown-Nagin recounted how using the past in public advocacy or legal reasoning involves “ways of reasoning about history that often seem dubious to me in my capacity as a professional historian. ”

In a recently published entry in the Oxford Handbook of Legal History entitled “Historians' Amicus Briefs: Practice and Prospect,” Nathan Perl-Rosenthal and I relayed a similar concern.  Some historians who had helped the NAACP’s lawyers craft historical arguments in Brown v. Board of Education had come to have second thoughts. They worried that, “spurred on by their desire to reach a particular outcome, they had drawn conclusions that were not warranted by strict historical methods.”

Notably, Chris, Greg, Tomiko, Nathan, and I agreed that the benefits of engagement outweighed the risks. As Tomiko put it, “Historical arguments are quite attractive and will be made.” Better not to exclude those most qualified and committed “to tell the truest story possible, given the available evidence.”

I agree. But I also wonder if we legal historians should wring our hands a bit less before striding into the public square.

Relating the past to the present is inherent to the historical enterprise. While I value complexity and believe that the past is different from the present, it is living readers for whom I write. Modern concerns shape the topics I choose, the methods I deploy, and the arguments that I make. I experience history as a translation between then and now. I worry that the alternative would be sterile antiquarianism.

On this view, the question isn’t whether it’s appropriate to write op-eds, amicus briefs, and the like, but how.  Nathan and I took a stab at part of that question in our essay.  Where amicus briefs are concerned, the historian must often “speak in a language legible to courts on matters of concern to them, while respecting the court’s distinct areas of authority.” We identified several strategies for striking that balance:

1. Stop short of arguing that history can decide the final issue
2. Limit participation in the amicus briefs to experts on the specific topic at issue
3. Use intermediaries between law and history: lawyers familiar with history, legal historians, or historians willing to learn about law
4. Provide multiple points of entry into the argument; describe ways that history could support certain arguments; explain why history runs counter to other arguments
5. Show your work by making your methods explicit

If ever an audience knew more good strategies, it would be LHB readers. I hope you’ll take to the comments to share.

--Sam Erman

A Better Book: Development Editors

              Today’s post concerns the secret weapon of many an excellent (legal history) author, the development editor. I worked with two on my book, Almost Citizens. They were crucial to my learning curve. Without them, I would never have crafted a book that resembled the vision in my head.

              Before starting my book, I had never contemplated paying someone to help me improve my writing. Legal history is a specialized area, and I chose my words carefully to hew to what the sources supported. I worried that someone from outside the field would seek to simplify or expand my claims in ways that I would just end up reversing. The problem was that I also knew that I could benefit from fresh eyes on my writing. By the time I’d drafted a few chapters and signed with Cambridge University Press, I felt confident about my narrative structure and cast of characters. But I found it more difficult to do smaller-scale reorganizations and line edits. This was partly because I was so close to the manuscript. It was also because writing is a skill, and I had more to learn.

Despite having many generous readers, none seemed likely candidates to become writing mentors. Colleagues and reviewers grappled with my work and provided incisive comments. But that feedback almost always involved the substance of the argument rather than its tone and constituent sentences. Given the economic realities of book publishing, many publishers hardly do any editing of manuscripts in progress. I did have the good fortune to publish with American Society for Legal History’s book series (which I discuss here). Sally Gordon was my editor there, and she was a tireless and skilled reader. But she soon saw that the book and I could both gain from more editorial engagement than she could devote to a single book in her series. So she recommended that I consider a development editor.

              I had never heard the term. Perhaps because I live just down the road from Hollywood, my mind immediately went to the entertainment executives who tell show runners that their sitcoms need more dogs or a kooky sister to really draw in the millennials. But (spoiler alert!) that was not whom I was to encounter. The editors I would work with helped me produce the best possible version of my book. Sometimes, such work is called development editing. Sometimes it goes by different names.

              I sought someone who could help me make my prose sing (or at least hum occasionally) without sacrificing nuance and accuracy. Given my topic, that meant an editor who could engage legal and historical arguments, had a sense of the evidentiary norms in the field, and understood the potential audiences for the work. But finding such an editor is a bit like turning up a good contractor for a renovation; you ask around, check out samples of the person’s work, and ultimately take a leap of faith that the (intellectual) place that you lay your head will be transformed for the better.

              I had the good fortune to work with two excellent development editors. I learned of both through admired colleagues who sang the praises of having collaborated with them. The first was Grey Osterud, an accomplished academic historian. Rather than teach, she complements her research with editing colleagues’ work. I was thus confident from the outset that she knew and honored the standards of academic history. Once I had the manuscript drafted, I undertook a rewrite with Pamela Haag, an author of serious histories for broader audiences. Notably, she also has a contract with Yale University Press for a style guide for the scholar-writer that I look forward to adding to my shelf soon.

              As Grey and Pamela helped me improve the book’s prose, they were also teaching me to be a better writer. One set of lessons had to do with the difficulties of evaluating choices about organization when one is too close to the text. Because I was circulating individual chapters to colleagues for feedback, I tried to put enough at the front of each chapter to orient them. The result was bloated chapter introductions. My development editors saw the problem immediately. They worked with me to shorten the chapter introductions and have them serve more as bridges between chapters than as introductions to standalone essays. Similarly, my immersion in the particularities of the book’s events had led me to subdivide the book’s chronology into overly narrow chronological bands. As Grey and Pamela perceived, such fine distinctions muddied the broader argument rather than clarifying it. Thus, a chapter that I had written with six sections, one for each of three characters at each of two times (ABCABC), came to contain just three character-centered sections (ABC).

              Careful editing by others is a wonderful way to discover one’s own writing tics. I had been particularly blind to two. I wrote long, intricate sentences and was overly fond of metaphors. I had to learn to reduce clauses and interjections, break up sentences, and clarify which verbs and nouns went together in what ways. Similarly, I had to unmix metaphors and close them out before they ceased to clarify. The difficulty in both cases was less fixing the problems than perceiving them in the first place. Grey and Pamela sensitized me to my propensity to create these tangles, which was all I needed to start fixing them.

              Like many historians, I revel in the details and complexity of what I study. Seeing the danger, my dissertation committee co-chair Jesse Hoffnung-Garskof counseled that my job was to over-claim and that his job was to rein me in. But knowing that I should trim and sum up did not wholly cure me. My development editors urged me to go further. Curate evidence. Don’t cut one of five quotations; leave just one. Remove tangents. Lead with bold claims. Qualify them later. Or don’t. The result was much more accessible prose. Arguments rose to the surface, no longer drowned by my sea of evidence.

There is one big downside to a development editor: she costs money. How much varies by who you hire, for how long, and for what. But price tags in the thousands of dollars would be common. The best solution is to have someone else pay. My law school (USC’s Gould School of Law) is extremely generous in its support for junior scholars’ work. While schools and departments may vary substantially in what they are able to offer, it is always worth asking. Knowing that peer institutions have offered similar funding can sometimes help shake out extra funds.

Had I had to pay for my development editors entirely out of pocket, I might have balked at using them or using them so extensively. In my case, that would have been a mistake. Their services were worth far more than the cost. As an early-stage scholar, the benefits were quite large. I have many productive years left in which to benefit from what I have learned in terms of writing and argumentation. The book is stronger too. That matters because the book is my debut in legal history as a mature scholar. It was also the centerpiece of my file for tenure (which I just received--Yay!).

My biggest fear when I began working with development editors was that I would not recognize the final text of the book as my own prose. In fact, the opposite was true. By the time I began working with Grey, I largely knew what I wanted to argue, which historical actors and narratives I wanted to feature, and what evidence I wanted to rely upon. But I found it frustratingly hard to translate the book that I had in my head into words on the page. As Grey and then Pamela and I worked on the prose, the gap between it and my envisioned book narrowed considerably (albeit with some nice additions suggested by my development editors that I had not foreseen). Almost Citizens ended up being very much my book—even more so than I had at first hoped.

--Sam Erman

A Better Book: Living Descendants

              Three and a half years ago, I had the good fortune to join Barbara Welke, Mitra Sharafi, and Daniel Sharfstein at the 2015 Annual Meeting of the American Society for Legal History for a roundtable on working with the living descendants of historical actors.  As we explained:

Online databases and communication technologies, the transnational turn, the study of memory and agency, and genealogy all lead legal historians to work with descendants of subjects. . . . Scholar-descendant exchanges shape and enrich legal history, making the past recoverable and vivid.  Joint projects that broaden arguments and audiences can result. . . . The scholar offers new strands in family or community histories.  Descendants’ experiences and understandings reveal impacts, limits, and reverberations of legal dynamics or push scholars to move beyond legal frames in productive and unfamiliar ways.

I joined the panel to discuss the topic of today’s post, my experience working with a descendant of a central character in Almost Citizens. The story began around eight years ago.

Just weeks after receiving final approval of my dissertation, which centered on a 1904 Supreme Court litigant names Isabel Gonzalez, I received an email from Belinda Torres-Mary.  She was also researching Isabel Gonzalez and had been for years.  I held my breath.  She was fascinated to learn new details about Gonzalez’s unsuccessful experience as the first Puerto Rican person to demandU.S. citizenship from the Supreme Court.  She was not an academic historian.  Gonzalez was her great-grandmother. Belinda was a passionate genealogist. Exhale.

Soon, Belinda and I were trading research leads.  She told me anecdotes.  Tacking back and forth, we discovered many more records. A long-passed woman I had spent years getting to know came to life once again, now in a new way.  As a result, the book’s account of Gonzalez is much richer than the dissertation’s.

As our collaboration deepened, we discussed how we each understood Isabel Gonzalez.  I saw her as a tragic hero of sorts. When she sought to migrate from San Juan to a better life in New York, Ellis Island inspectors discovered that she was an unmarried mother who was also pregnant and ordered her to be deported as an undesirable alien. Gonzalez filed a suit that eventually reached the Supreme Court. She argued that Puerto Ricans could not be deported because they had become U.S. citizens after the annexation of Puerto Rico in 1899. The claim tapped into longstanding interpretations of the Fourteenth Amendment as making citizens of all Americans other than American Indians. But the justices ruled more narrowly: Puerto Ricans were not aliens, hence not subject to deportation. Nothing needed to be said regarding citizenship. The tentativeness was typical of the early-twentieth-century Insular Cases, through which the Court contributed to a sea change in constitutional law alongside lawmakers, bureaucrats, presidents, and private actors. But the sum result was momentous, a turn away from the Reconstruction Amendments, rights, citizenship, and statehood and toward colonialism.

Belinda declared Gonzalez to be the Puerto Rican Rosa Parks. Initially, the comparison typified for me the difference between our projects.  Belinda saw her ancestor as a heroic figure in a long U.S. march toward inclusion and liberty.  If asked, I probably would have said that even Rosa Parks was no Rosa Parks.  Certainly, the professional historian in me felt compelled to emphasize differences between the women.  Gonzalez’s activism had not made her famous.  It had not arisen out of a commitment to a mass social movement or come to be supported by one.  She had engaged in legal maneuvers rather than direct action.  She did not prevail.  The unmarried and pregnant Gonzalez was not a model of respectability.  She was from a different community and drew on a heritage of Spanish rather than U.S. rule.  It was not clear that she had African ancestry; she seemingly never identified as of color.

              But the deeper I have delved, the more wisdom I have found in Belinda’s analogy.  However Gonzalez self-identified, racial prejudice lay behind the effort to deny her U.S. citizenship and behind the Court’s tepid response to her challenge.  Both controversies were profoundly shaped by being launched by women.  Law played crucial roles in both cases, in part because its future shape was uncertain.  Although neither dispute resulted in a constitutional ruling, both quickly came to be understood as signal events in processes of major constitutional change.  Both cases asked federal courts to reinvigorate legal legacies of Reconstruction.  Gonzalez and her allies deployed honor in ways that prefigured later uses of respectability.  They argued that Puerto Ricans’ honor made them worthy of equal treatment, and that denial of such treatment unjustly dishonored them.  In both cases, a modestly situated actor meaningfully influenced constitutional change.  Both disputes were key events in iterative processes of legal transformation involving a diverse array of officials.  And as recent events sharply remind us, the constitutional revolutions that resulted in both cases were incomplete and unstable.

              Working with Belinda also made my process of researching Almost Citizens feel similar to my experience of reading good fiction.  The book’s characters, themes, insights, and events kept overrunning the interpretive bounds within which I sought to contain them.  I found the world that emerged from the archives to be immersive and consuming.  I aimed to capture these novelistic sensations with a character-driven approach that attended to narrative and people as much as it did to analysis and argument.  Of course, I did not have the luxury of inventing plot turns and characters at will.  But I did have characters who were real and compelling.  Their struggles helped form the world we now inhabit.  For Belinda, that was doubly true.  Isabel Gonzalez’s decisions brought Belinda’s ancestors into existence.  Unsurprisingly, strongly felt familial ties linked great-granddaughter to great-grandmother.  Perceiving Belinda’s passion for Gonzalez’s story inspired me to deepen my depictions of Gonzalez, her choices, and their consequences – all to the book’s benefit.

That Belinda and I even met reflects a sea change in the practice of history.  Since I began graduate school, innumerable primary documents have become text-searchable online.  Books, census manuscripts, passenger manifests, judicial documents, legislative hearings, and newspaper articles that required research trips, microfilm readers, hours of painstaking review, and no small amount of luck now spit up information on a person or theme of concern with little more than an entry in a search box.  In many cases, the impetus behind this mass digitization and metadata creation has not been the needs of academic historians, but the demands of genealogists and the growing sophistication of character recognition software.  Increasingly, scholars seeking to learn about particular historical figures find themselves working in tandem or collaboration with genealogists investigating their roots.  One additional reason is that the digitization revolution has made scholars' output ever more accessible, as Belinda discovered when she began searching mentions of her great-grandmother.

              The rise of genealogy and new research technologies has transformed the ethics of researching and telling history. I am lucky not to have encountered the more acute conflicts that can arise. Belinda encouraged me to make my own decisions about what to include in the book and how. Here, it helped that Belinda had developed her own writerly voice.  She expressed aspirations soon after we met to write a young adult biography of Isabel Gonzalez.  I think it’s a great idea. With any luck, I’ll interest her in letting me assist while she takes her turn in the author’s chair.

Even in functional partnerships, working together involves give, take, and the question of whether each person is doing their share of both. Early on, I worried that I was more of a taker. Belinda offered up family history that I had no other way to access.  To my delight, I came to realize that the scarce commodity that I could contribute was undigitized archival material and historical methods with which to make better use of what was online. I was pulling my own weight because history had something unique to contribute.

If I stumbled, it was in over-skepticism. When Belinda recounted the family lore that Gonzalez had married a gentleman before migrating to New York, my first thought was that many more families claim ancestral earls than actually have them. Silly me. As our research continued, Belinda remembered that the story was told in Spanish. Gonzalez had married a “caballero.” Perhaps that was a last name, not an adjective? Some searches in digitized church and county records confirmed it. Gonzalez’s first husband, Juan Caballero, died of tuberculosis in his early 30s, shortly after Gonzalez became pregnant with his second child.

              Working with Belinda was also a reminder that Gonzalez has many other living descendants. Some knew her well. All share in her history. Few would accept every interpretive choice that I made. Yet I am obliged to them, especially Belinda. I hope they recognized Isabel Gonzalez in what I wrote, even as they also saw her in a new light.

--Sam Erman

Thank you, Lisa Ford!

We were thrilled to have Lisa Ford guest-blogging for us in March 2019. Here are her three posts (lots to chew on here)--all in one place for your convenience:

• Hello from sunny Sydney! (plus some tips on productivity)
• Hello again from Sydney! Collaboration: Why and How
• Hello, again, from Sydney. Legal History Jobs in Australia

Thank you, Professor Ford!