Heavy Books, Compulsory Positivity, and Post-Dissertation Depression

A friend who is a comedy writer once asked me what my book was about. I explained that it was about people getting hurt at their jobs and what I see as the limits of legal responses to those injuries. He replied “that’s really dark. It’s probably not good for you to spend so much time in that headspace.” I said “oh it’s fine, it’s based on my dissertation, I’ve been thinking about this stuff for about a decade.” He responded, “you realize that’s not reassuring, right?” I didn’t at first.

I finished the heavy lifting thinking-wise on my book some time in the spring or summer of 2019, if memory serves. I did a lot of line-edits and other hard work afterward but the ideas didn’t change. I finished that work some time in the fall of 2019. When the COVID-19 pandemic really took off, I felt like I had been living with mass death for a very long time already and was emotionally exhausted. I’m sure I can’t be the only person feeling this way right now and I don’t mean to claim that the pandemic is extra hard for me. I’m just saying that I wonder if I was already depleted somewhat when the pandemic started. I’ve seen other scholars talking about this on social media but I haven’t kept notes on that; I now wish I had.

History’s Failures and Historians’ Duties

“History has failed us, but no matter.” So begins Pachinko, a novel by Min Jin Lee. The claim that history has come up short assumes that history is supposed to do something. Historians have often asked themselves this question, particularly when debating the uses of history. But Lee made me think about this question from the perspective of non-historians or the “us” in that first line—zainichi Koreans who were denied even second-class citizenship in Japan. What did Lee mean by her opening sentence? What do people who have suffered expect of history? Do—and should—their expectations inform the work that historians do?

Lee could be referring to history as an event, as in, “the passage of the Voting Rights Act made history” or, to use an example from Pachinko, the end of Japan’s occupation of Korea. Such history-making events and individuals create expectations for a better future, and if that future doesn’t materialize, then, well, history has failed us. Perhaps this is why the war ends in Pachinko without much ado; it didn’t change the lives of the zainichi very much. But no matter. Life goes on; the struggle never ends.

Or, Lee could be referring to history as a discipline that seeks to reconstruct or remember the past. If history in this sense forgets a group of people, then, yes, history has failed them. Is this why Lee wrote Pachinko? Lee didn’t learn about the zainichi from history books. And I never fully grasped their plight until I read Pachinko—and I majored in history with a certificate in East Asian Studies! Another aspect of this failure of history is that it tends to prioritize the types of sources that forgotten people usually don’t leave behind. But no matter. Historical fiction may have been Lee’s attempt to fill in where the record remains frustratingly thin, her effort to portray zainichi characters with the full range of emotions that made them human.

Or, a third interpretation: Lee could be referring to history as an endeavor that sheds light on past injustices. In this case, history works to raise awareness and perhaps also to restore justice. Failure, here, is a fraught subject and raises questions that many legal historians, especially those in law schools, often get. What’s the takeaway? Are there any doctrinal or policy implications? These are fair questions because it’s a rare case when history does not take a moral stance; it’s baked into the narrative structure. (Which is not the same issue as whether historians can be objective. One can both hold values and be faithful to sources.) If you start with this position, as I do, then the relevant question isn’t so much about whether there are normative conclusions as it is about how such conclusions should appear in the histories that we tell.

All three of these ideas about history, its aims, and its failures get at the question of the historian’s duty, beyond fidelity to sources and professional norms. First of all, do historians have a duty to complicate the past, even the heroes or milestones that we wish to celebrate? Many historians take “problematizing” to be part of their task, so this might not seem so controversial. But there are times and places when it was dangerous to do so. Fortunately, it’s expected today to tell the unvarnished truth. Still, I suspect that this is more difficult to do in practice than we realize when it comes to people, events, and ideas that are closer to us in time. Even harder still, I think, is bringing together celebratory and critical histories.

Does our quest to understand the past include a duty to look for under-represented and forgotten experiences? Historians for some time now have paid more attention to neglected subjects and made brilliant use of historical imagination. But should that attention be a part of every historical project in some way? This question is tricky because it comes close to telling others what to study, which, just as a practical matter, is a futile endeavor. But there’s another way to think about this. Wouldn’t our histories be more complete, and closer to the truth, by including more perspectives? If so, then wouldn’t best practices oblige us to look far and wide?

And finally, does our knowledge of the past impose a duty on us to take action in the present? A more seasoned colleague recently told me that, contrary to the doom-and-gloom talk, academic books are thriving. But their purpose has changed. It used to be that a book represented the culmination of a scholar’s exhaustive research; nothing more was left to say after publication. Today, a book serves as a platform for the author to keep talking. Even if this observation were wrong, it is true that historians are often asked for their thoughts on current issues. Would we be squandering our expertise if we choose to stay in our cloistered studies? Should the scholarly pursuit be enough? On the flip side, are op-eds, amicus briefs, or law review articles enough?

I recognize how privileged academics are to be able to do what we do, and that privilege seems to demand a return, in particular to give voice to people and ideas that haven’t been heard. All the more so when historical knowledge can be influential, especially in a legalistic society that values precedent. (Tangentially, from what I gather, an historian apparently won in the Game of Thrones.) What we do with our privilege and power is certainly a personal decision that depends on particular circumstances and abilities, so it’s a question worth thinking about regularly.

It’s also been a privilege for me to blog this month. I’m grateful to the stewards of LHB for the opportunity, and to LHB followers for reading, which is, really, the greatest affirmation that a writer can receive.

Sarah Seo

Narrative as a Mode of Argument

The most practical course I took in grad school was Writing History with Marni Sandweiss, where I learned how to use narrative as a mode of argument. Historians already do this when they decide which characters to follow, how to frame conflict, and when and where to begin and end their story. What was especially helpful for me was learning how to use organization—the unfolding of a story—to make an argument.

One good example is Malcolm Gladwell’s New Yorker essay, “Offensive Play.” It’s a braided narrative of two different stories, one about football and the other about dogfighting. Gladwell never explicitly claims that the injuries sustained by football players are an inherent part of the game and, thus, that the sport is fundamentally immoral. Instead, he raises the question and to answer it, he weaves in sections about dogfighting. Readers, of course, come to the very conclusion that Gladwell wants them to reach, transferring their reactions in one context to the other. But the effect is much more powerful than it would have been if Gladwell had pontificated directly on the ethics of dangerous sports.

I thought about narrative organization often, especially when writing about the history of traffic. My challenge was twofold. First, how could I make an ostensibly boring topic like traffic interesting? Given our familiarity with cars and traffic today, how could I capture the sense of bewilderment at the traffic problem in the early twentieth century? Simply declaring that traffic was a big problem that interested many important people in the early years of the automobile didn’t seem to work. The second challenge was directly connected to the argument I wanted to make. How could I convey that the traffic problem was so serious, overwhelming, and massive that American society built an entirely new mode of governance? How could I relate to contemporary readers that the solution, which is taken as a given today, was not assumed a century ago?

To figure out how to create historical suspense, I went back to Erik Larson’s Devil in the White City. Incidentally, this book offers another compelling example of a braided narrative, interlacing the stories of Daniel Burnham, the mastermind of the 1893 World Fair, and H.H. Holmes, a mastermind serial killer, to portray both the potential and pathos of modernity.

Another one of Larson’s narrative techniques is to hold back certain details until the right moment in order to give readers the same perspective as the historical actors. Consider the following example [spoiler alert]. Early in the book, Larson introduces one of the conflicts in the plot: Burnham desperately desired a structure to “out-Eiffel Eiffel” to showcase the greatness of American architecture and engineering. There was a competition. Several entries proposed a tower even taller than the one at the Paris Exposition, but Burnham deemed towers unoriginal. Two chapters later, we read about a 33-year-old engineer from Pittsburgh with a flash of insight. Pages later, we learn that his idea “embodied little ‘dead load,’ the static weight of immobile masses of brick and steel. Nearly all of it was ‘live load,’ meaning weight that changes over time, as when a train passages over a bridge.” [What is this? I wondered.] This proposal was accepted and then, on second thought, revoked because it was deemed un-buildable.

Finally, the resolution, on page 185: The engineer refined his plans. The structure would be a “vertically revolving wheel” carrying “thirty-six cars, each about the size of a Pullman, each holding sixty people and equipped with its own lunch counter” and “when filled to capacity the wheel would propel 2,160 people at a time three hundred feet into the sky over Jackson Park, a bit higher than the crown of the now six-year-old Statue of Liberty.” I still didn’t get it until the last sentence of the chapter, which finally revealed the name of the engineer from Pittsburgh, George Washington Gale Ferris. What stayed with me from this narrative is the ambition behind a now common feature of state fairs and amusement parks.

In Policing the Open Road, I juxtaposed stories and played with the organization of chapters, sections, paragraphs, and even sentences. I made this effort not just to engage readers, but also to advance the argument. But there are tradeoffs. When a writer avoids direct, declarative expressions of argument (the “I argue that…”), there is the possibility that readers might miss the point. When writing and editing, I constantly asked myself whether I was asking the reader to do too much. Would a reader feel drawn in or wonder if I was hiding the ball? To be sure, there were places where I had to lay out my argument. But the wonderful thing about writing a book is the freedom to experiment with narrative.

Sarah Seo

A Better Book: The First Book Workshop

              Several years ago, LHB’s own Karen Tani and Mitra Sharafi wrote wonderful posts on their first book workshops (Karen’s is here; Mitra’s is here).  For those who missed them, a first book workshop is a manuscript workshop for a first-time author. Such sessios have grown increasingly common in legal history. Participants typically include a mix of home-school colleagues and outside commenters. Mine was incredibly valuable. This post uses that experience to build on Karen’s and Mitra’s insights. (If your experience as an author or participant was similar or to the contrary, please share it in the comments below.)

              An immediate benefit of staging a first book workshop is the deadline. Karen Tani declared it “a source of stress -- but also a source of motivation.” I would write “and” where she wrote “but.” The interim deadline improved my mood, productivity, and work product. It distracted me from the truly looming deadline: closure of my tenure file. I thus traded exhausting long-term stress for more energizing and motivating short-term stress. After all, getting a manuscript done sooner would mean more time to improve it later.

              The structure of the workshop can vary with the author’s goals. Mitra Sharafi described gathering 4-6 readers for an afternoon of conversation about the book. Karen Tani’s workshop had more than a dozen participants who presented on different parts of the book in panels across an entire day.  My workshop split the difference.  I gathered just shy of a dozen people for a single three-hour book conversation in the morning. There were opportunities to follow up and revisit matters during the lunch that followed and the dinner that I had with the out-of-town guests.

              My goal for the workshop was to come away with a plan for pulling the manuscript’s disjointed pieces together. I already had a clear vision of the characters, narrative, and argument of the book. I knew what I wanted to accomplish in each chapter and overall.  Plus, my tenure file would close in a year and a half, so I had to stay firmly in finish-the-book mode. Any deep exploration of new literatures or events would have to wait for follow-on projects. Instead, I hoped that my readers and I would put on the table competing visions for integrating what I already had. To keep the focus on the book as a whole, I decided against asking each reader to take primary responsibility for one or another chapter.

              Inevitably, I received conflicting advice and concerns. Here, it was crucial to have a trusted mentor present who could direct conversation toward achieving consensus on a concrete plan.  Ariela Gross served that role for me, and did a fantastic job.  Had she been unavailable, I’m confident that either of the ASLH series editors involved in the book – Sally Gordon and Reuel Schiller – could have stepped in.

              I would also recommend having someone in the room take notes. If (unlike me) you would listen to a recording later, consider following Karen Tani’s lead and asking participants’ permission to record the session. I also found it helpful to ask those who spoke to send me any notes they had afterward. I worried that asking people to pre-circulate notes as Karen Tani had might stifle free-flowing discussion.

              I aimed to be instrumental and substantive when inviting participants. My primary goal was to choose readers who would provide helpful feedback on the project. But the workshop was also an opportunity to secure buy-in and buzz for the book and to strengthen my relationships with others in the field. My ideal outside reader was someone who would value the project, become an interlocutor, and potentially write a tenure letter. I wanted inside readers to hear from outsiders why the project mattered and to be drawn more into the work. I also hoped that the discussion would cause all the participants to discuss the book with colleagues once the workshop ended.

              For my workshop, I chose equal numbers of external and internal readers.  Bob Gordon and Sophia Lee agreed to fly in for the event, as did Reuel Schiller in his capacity as the editor for the ASLH series that was publishing my book. Clyde Spillenger made the trek from UCLA, and my USC colleague from American Studies and Ethnicity, Nayan Shah, came as well.  At my home institution, the Gould School of Law, I invited senior colleagues in legal history and constitutional law.

All of this cost money. Mitra Sharafi and Karen Tani turned to grants to fund their workshops. I was fortunate to work at a law school willing to foot the bill. (Thanks, Dean!).

               In my case, the workshop was time and money and well spent. I came out of it with better key terms, a clearer sense of argument, and plans for streamlining the prose. I strengthened my relationships with scholars I admire and placed my book project on their radar.  Crucially, I also gained a renewed sense of the potential of the project.

              Though manuscript workshops are beneficial for junior scholars, they are not equally accessible. Certain educational trajectories and institutional homes make it easier to secure funds and participants – if one knows to seek them in the first place. It is that last barrier that made Mitra Sharafi’s post so valuable. It publicized the first book workshop when it was an emerging practice and possibility.

--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

A Better Book: The ASLH Book Series

              Perhaps the most important decisions of my transition from dissertation to book was mine to publish with the American Society of Legal History’s book series at Cambridge University Press and theirs to have me.  In a word, the reason was: editing.  In a person, it was: Sally Gordon.  More specifically, I gained a mentor, a booster, a reader, a quarterback, and a promoter.

              From the outset, Sally shared and shaped my vision for the project. I first reached out to her about the book on the suggestion and introduction of my mentor Dan Ernst, himself a former editor of the series.  To my amazement, she read my entire dissertation with her discerning and constructive eye. She saw the same promise in the dissertation that I did. It already had characters, a narrative, and evidence that constitutional change sometimes occurred outside of courts. The promising strands it had left dangling included the place of Reconstruction in U.S. empire, mechanics and details of who drove what legal change how, the relationship between Puerto Ricans and both American Indians and mainland women and minorities, and the shadow that U.S. colonial rule in the Philippines cast over everything.

              An unexpected (but not surprising) benefit of publishing with the ASLH series is that it brings instant credibility with society members. At the annual meeting of the American Society for Legal History, Sally also introduced me as an up-and-coming scholar with plans to publish in the series.  Anyone who’s seen Sally in action knows that means meeting a lot of society members. I’ve always felt welcome at the annual meetings, but since then the meetings have been a sea of friendly faces.

               Joining the series also meant receiving a level of editing and mentorship that I associate with literary presses of yore, not the tight margins of modern academic publishing.  Almost Citizens was my first book, so I had no experiences identifying – much less making – many of the decisions that book writing  requires. Fortunately, as I wrote (and rewrote), Sally read (and re-read)–the book proposal, an annotated table of contents, individual chapters, and finally the full manuscript.  Every major element of the book bears her mark. Through emails, phone calls, and coffees, she pressed me to specify and “surface” my biggest claims and to open my geographic and temporal lenses wide enough to bring those claims fully into focus. We discussed what books I liked, how they were structured, what writerly voice the authors had employed, who read those volumes, and who might read mine.

Equally important, Sally was an enduring source of encouragement. She kept me optimistic and energized throughout the long and lonely endeavor that is book writing. Our conversations spanned years. During each she reminded me what I had accomplished, then identified the further progress now within reach.

As my draft chapters accumulated, Reuel Schiller joined Sally as a co-editor of the series, to its and my good fortune. Sally and Reuel were a crack pair of text massagers and arrangers. They also knew how to leverage their insights. When they saw room for improvement but lacked the time to provide detailed feedback (the series had other authors; they had day jobs–and lives), they recommended that I use development editors (a subject of an upcoming post).

Working with the series also meant that I had experienced editors in my corner as I navigated the unfamiliar, far-from-intuitive publishing process.  When I negotiated my contract, Sally knew which details mattered: commit to a number of images and ask for preapproval; ensure that the series can choose the copy editor and indexer; choose a publication deadline that can slip a month or two without endangering your tenure case.  Someone had to pay for editing, indexing, and the like. The series helped me ask my home institution for the funds by providing me evidence that peer institutions were already providing such funds to their junior faculty. When I became concerned with one or another of the press’s decisions, Sally and Reuel helped me sort out which items were worth raising in what ways. They were always willing to speak on my behalf to Cambridge, with whom they maintained a strong and cooperative relationship.

Mostly, the series steered me away from pitfalls. I never had to contemplate the disadvantages of a machine-made index because my contract let me hire the wonderful Derek Gottlieb. Where some authors tell horror stories of overseas copy editors who insert more typos than they correct, the series snagged for me the excellent Julie Hagen.

              With my book now out under the series imprint, I can add that I am happy being judged by the company I keep. Cambridge University Press’s august imprimatur makes it more likely that readers will pick up the book. The American Society for Legal History is my foremost academic home. It has also published many of the legal historians that I most admire, including the first books of several of the best up-and-coming scholars in the field.

--Sam Erman

A Third Interlude: Presenting the Same Book to Different Audiences

I just returned from Paris, where I presented in the École de Droit of Sciences Po my most recent book on the history of European Law. This was the fifth time, in which I presented this book, the previous opportunities being the Law Faculty of the Universidade Nova of Lisbon, The departmental seminar of the European University Institute (the graduate school of the European Union), the joint PhD program of the University of Florence and Siena, The Annual Meeting of the American Society for Legal History (hurray!), and now Paris. As I flew back over the Ocean, I was thinking about how different each of these experiences was. 

In Lisbon, the session was mainly attended by law students. The students – who obviously read the book— wanted to know how I situated myself. They asked to which school of thought I belonged and how I distinguished myself from other scholars. They also wanted to know how Portugal would be inserted into my narrative. Did I not believe in the existence of nations? (I do not). Did I not think that European law was different, even superior, to law elsewhere? (I do not). The session at the European University Institute was mostly attended by jurists and historians. Many of them are involved in the construction of Europe through historical research but also through legal work, and they mainly wanted to know why I identify my object of study as “European Law” (for many Europeans this term designates the Law of the European Union). They also asked how I chose what to concentrate upon (in terms of subject matter but also geographical coverage), and what putting together England and the Continent taught me. In the Joint PhD, students and faculty were particularly interested to hear my views as to whether law was an important element everywhere, always, and in all regards. Do historians need to take it into account? In what ways? How can they? Participants in Italy also asked how (and what) we can know about the legal past. Many of their questions were directed at methodology: What can be learned from which type of sources and how does one piece together into a coherent narrative the multiple fragments of information that the archives contain. At the Annual Meeting, three commentators discussed the book. Their comments were mostly directed at posing questions about choice and selection. One of the commentators also discussed how my work could be situated among the various schools engaged in doing European legal history. In Paris, the public included both law professors and political scientists. They were particularly interested in the “big picture:” How law interacted with society and society with law, how European were the developments I described, and whether law was fixed or contingent, enduring or constantly changing. Listeners also wanted to hear more about how I selected what to write about and why certain important features of European law were absent. What was Europe came up several times, as did the question whether I intended to reproduce existing narratives or question them. Is law something that exists objectively or is it what jurists tell us it is, that is, a narrative that they, the jurists, can (and often do) constantly change?  

These differences can of course be fortuitous and depend on the accidental group of people that happened to gather that very same day, but my impression is that at least some of them had to do with distinct academic traditions of reading and discussing, as well as with the preoccupations of distinct listeners of distinct disciplines. I often tell students that no reader is ever faithful to a book. I certainly am not. I read books with my own questions in mind and looking for the information I most desire to find. As a result –as often happens to me with films or fiction books I really like —I can read the same book over and over again, each time seeing it differently or getting other things from it.  As Ruiz Zafón, a Spanish novelist, once said, because books are labyrinths, we need to find our own path in order to transit through them. And, as we do, we often discover what we already possess.  This voyage of discovery is ours, not the author's, and no author can ever control it.

Does European Law Have a History?

Historians have routinely divided European Legal history into many pieces. They distinguished an English from a Continental law and they often proceeded to describe national legal spheres even in periods, which pre-dated the emergence of nation-states. It was as if, once legal systems were nationalized in the late eighteenth century and in the nineteenth century, it was no longer possible to imagine a legal history that pre-dated the nation state or that, even after nation-states were formed, continued to be shared by the different European countries.  

In my most recent work (“A Short History of European Law: The Last Two and a Half Millennia,” Harvard U Press, 2018) I sought to identify a common European legal tradition that also embraced England and that filtered outside Europe because of European colonialism and because of processes of adaptation, translation, and transplantation. Rather than tracing the evolution of specific arrangements, I wanted to understand what law was: how it emerged, how it gained validity, and who controlled these processes. In other words, I was after the operating system(s), not the specific solutions it (they) enabled formulating.

Having surveyed two and a half millennia (from the Roman empire to the present-day), my most salient conclusion was that the development of law in Europe was both surprisingly consistent and astonishingly unpredictable. Take for example, Roman law. Roman law, Goethe once said, was like a diving duck. Whether you saw it or not, it was always there. Goethe was unquestionably correct when he pointed out to the enduring legacies of Roman law, which were widely shared across the Continent, but he was wrong to imagine it as a single duck. Classical Roman law was radically distinct from how Medieval jurists, allegedly reviving it, read it, and it had even less in common with what 19^th century German jurists imagined it to be. If it was a diving duck, it constantly changed colors and shapes to the point that it was no longer clear which type of duck it was and whether it was a duck at all. The endurance of Roman law, in other words, was less illuminating of continuity than it was revealing of change.

The same thing was true of the Magna Carta, to mention yet another emblematic example. The Magna Carta was a thirteenth-century feudal charter meant to guarantee peace among lords. However, centuries after it was enacted, it was given a new meaning and a new role. What counted for this radical transformation was not only, not even mainly, the identity of those reading the document, but the contexts in which they operated. Therefore, if we wanted to understand how law evolved over time, we would need to reconstruct the contexts (the operating systems) in which specific documents, doctrines, or institutions were implemented.

Listening to what actors stated was rarely sufficient. Jurists who invoked Roman law pretended to obey its rationale and instructions. So did the early modern English lawyers who invoked the Magna Carta. Yet, their pretense for continuity did not mask the profound changes they introduced. While claims for continuity could mask change, claims for change could mask continuities.  This was evident when late-eighteenth and early nineteenth-century French revolutionaries presented their system as entirely new, but it was also clear in the work of European jurists who purportedly wished to purge local law from the (evil) influence of Roman law yet nonetheless employed Romanist methodology. European legal development, in short, could be told as a story of actors both adopting and rejecting the past, both copying and re-writing it, both positioning for and against it. In the process, what the past meant, which parts of it were relevant, and how they could be used became essential as different individuals, groups, and institutions fought to discover, but also invent, the rules that would govern their relationships.

These processes were common across Europe. In the late Classical period and the high middle ages, the influence of Roman law and Roman traditions expanded outside the boundaries of the empire as a byproduct of the spread of Christianity and the creation of Latin Christendom. By that stage, however, Roman law was already very different from what it had been because it was infused with Christian ideals. Mixing with new elements continued with the Germanification of Roman law and the Romanization of Germanic laws. Roman, Canon, and Germanic laws all operated conjointly in the Middle Ages, alongside the extreme fragmentation of the legal regime. The eleventh, twelfth, and thirteenth-centuries witnessed a colossal effort to unite hundreds of local arrangements in a systematic ius commune (in the Continent), or common law (in England). This effort resulted in moments of greater or lesser cohesion but, above all, it unleashed a fierce struggle over the right to pronounce, make, implement, or unite, the law.

The advent of the modern state and stronger monarchical orders (as well as the opposition they generated), intensified these struggles. It also led to a serious questioning whether a common European law indeed existed and, if so, what was its nature. During these debates, many pointed to the obvious: that law was always contextual and, to some degree or the other, local. Particularism, such as embodied by the idea of a local customary, and then national law, however, never extinguished a horizon of commonality, only that commonality itself changed. Instead of placing Europe or Christianity at the center as had been the case during the Middle Ages, in the early modern period it progressively referenced a common humanity with a common rationality. This allowed Europeans to again refashion their system as universal by arguing that it united all humans regardless of their extreme dissimilarities.  These developments justified the imposition on occasions, the expansion in others, of European law overseas. They were responsible for severe Eurocentrism, but they also radically transformed European law. If what was common to Europeans was also common to all peoples and places, what was specifically European (and eventually national) in this law? Would European law become but a local version of a more general law that was in the process of being globalized?