This spring I am again teaching my seminar on “Law and History.” In case of interest, here is our list of readings. The seminar is aimed at future lawyers, not future legal historians. So, the goal is not to be comprehensive or to provide the kind of methodological instruction that a history department legal history course might attempt. Rather, the goal is to give students a sampling of different approaches and topics in legal history (with an emphasis on recent scholarship rather than attempting a full survey of “canonical” works), some insight into how historians think (or think they think) as compared to how lawyers think (or think they think), and an introduction to the issues that arise when historians seek to inform or influence the law, and/or when courts draw on narratives about history to explain their decisions.
This year, I reshuffled things to more concretely pair historical readings on a given theme with an example of a Supreme Court case on the same theme that draws on history or narratives about history in some way. (Every third week is a workshop session on the students’ own papers, which sometimes also involves readings that we are using as models, but I haven’t included those readings here.)
Introduction: using history to make law
Jacquelyn Dowd-Hall and Sandi Cooper, “Women’s History Goes to Trial: EEOC v. Sears, Roebuck and Company,” Signs vol. 11, no. 4 (Summer 1986): 751-779.
Alice Kessler-Harris, “Equal Employment Opportunity Commission v. Sears, Roebuck and Company: A Personal Account,” Feminist Review no. 25 (Spring 1987): 46-69.
Introduction: using law to understand history
Barbara Young Welke, “The Cowboy Suit Tragedy: Spreading Risk, Owning Hazard in the Modern American Consumer Economy,” Journal of American History vol. 101, no. 1 (June 2014): 97-121.
Sam Wineburg, Historical Thinking and Other Unnatural Acts: Charting the Future of Teaching the Past (Philadelphia: Temple University Press, 2001), 3-24.
Law as history: policing and punishment
Laura F. Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009), 64-99.
Jeffrey S. Adler, “‘The Greatest Thrill I Get is When I Hear a Criminal Say, “Yes, I Did It”’: Race and the Third Degree in New Orleans, 1920-1945,” Law and History Review vol. 34, no. 1 (February 2016): 1-44.
History as law: policing and punishment
Atwater v. Lago Vista, 532 U.S. 318 (2001)
Petitioner’s brief, Atwater
Respondent’s brief, Atwater
Law as history: marriage/family
Nancy Cott, “Marriage and Women’s Citizenship in the United States, 1830-1934,” American Historical Review vol. 103, no. 5 (December 1998): 1440-74.
Rachel Hope Cleves, “’What, Another Female Husband?’: The Prehistory of Same-Sex Marriage in America,” Journal of American History vol. 101, no. 4 (March 2015): 1055-81.
History as law: marriage/family
Obergefell v. Hodges, 576 U.S. — (2015), link here
American Historical Association amicus brief, link here
Organization of American Historians amicus brief, link here
[optional] George Chauncey, “History from the Witness Stand,” link here
Law as history: guns
Saul Cornell, “A Well Regulated Militia”: The Founding Fathers and the Origins of Gun Control in America (Oxford: Oxford University Press, 2006), 1-8, 137-66.
Jill Lepore, “Battleground America,” The New Yorker, April 23, 2012, link here
History as law: guns
District of Columbia v. Heller, 554 U.S. 570 (2008)
Law and history: concluding thoughts
Shelby County v. Holder, 570 U.S. 2 (2013), link here
John Lewis amicus brief, link here