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Introducing Applied Legal History

  • Alfred L. Brophy

James Oldham and Su Jin Kim write about the acceptance of arbitration in the early United States in their article, “Arbitration in America: The Early History.” They correct a misperception that stretches back at least to Justice Joseph Story's 1844 opinion in Tobey v. Bristol that said equity did not enforce arbitration awards. Oldham and Kim recover a robust culture of arbitration in the early United States and thus correct the received wisdom, which led Justice Kennedy to remark in 2001 that American courts were historically hostile to arbitration. Perhaps this newly recovered history will add support for the acceptance of arbitration in the federal courts. Oldham's and Kim's article is, therefore, part of an emerging and sometimes controversial trend in legal history to speak to contemporary issues. It is also the first of an occasional series for Law and History Review on “applied legal history.”

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1. Oldham, James & Kim, Su Jin, “Arbitration in America: The Early History,” Law and History Review 31 (2013): __ .

2. Tobey v. Bristol 23 F.Cas. 1313, 1320 (C.C. Mass. 1845).

3. See Circuit City Stores v. Saint Clair Adams, 532 U.S. 105, 111 (2001).

4. See, generally, Kalman, Laura, The Strange Career of Legal Liberalism (New Haven: Yale University Press, 1996) (discussing the turn to history in law, in part as a response to the decline of other sources of authority).

5. Cornell, Saul, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2006); and Konig, David Thomas, “Why the Second Amendment Has a Preamble: Original Public Meaning and the Political Culture of Written Constitutions in Revolutionary America,” UCLA Law Review 56 (2009): 12951342.

6. Flaherty, Martin, “History ‘Lite’ in Modern American Constitutionalism,” Columbia Law Review 95 (1995): 523–90; Cornell, Saul, “Heller, New Originalism, and Law Office History: ‘Meet the New Boss, Same as the Old Boss,’” UCLA Law Review 56 (2009): 1095–126; Rabban, David M., “The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History,” Stanford Law Review 37 (1985): 795856.

7. See, for example, Kozuskanich, Nathan, “Originalism, History, and the Second Amendment: What Did Bearing Arms Really Mean to the Founders?” University of Pennsylvania Journal of Constitutional Law 10 (2008): 413–46.

8. Halliday, Paul D. and White, G. Edward, “The Suspension Clause: English Text, Imperial Contexts, and American Implications,” Virginia Law Review 94 (2008): 575714.

9. Boumediene v. Bush 553 U.S. 723, 740, 747, 751 (2008).

10. Brief of Professors of History George Chauncey et al. as Amicus Curiae, Lawrence v. Texas, 539 U.S. 558 (2003) (visited December 15, 2012)

11. See Mortenson, Julian Davis, “Executive Power and the Discipline of History,” University of Chicago Law Review 78 (2011): 377443 (exploring examples of Yoo's use of early American history).

12. See, for example, Siegel, Reva, “She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family,” Harvard Law Review 115 (2002): 9471046.

13. See, for example, Kaczorowski, Robert J., “The Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History in Light of Runyon v. McCrary,” Yale Law Journal 98 (1989): 565–95.

14. See, for example, Franklin, Cary, “Inventing the ‘Traditional Concept’ of Sex Discrimination,” Harvard Law Review 125 (2012): 1307–80.

15. Vann Woodward, C., The Strange Career of Jim Crow xvi (New York: Oxford University Press, 1955, reissued 2002).

16. Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004); and Siegel, Reva, “Dead or Alive: Originalism as Popular Constitutionalism in Heller, Harvard Law Review 122 (2008): 191245. Although some question the relevance of popular constitutionalism to contemporary law, Siegel's article on Heller shows popular action in practice and, importantly, that it is not the domain of one political viewpoint.

17. Goluboff, Risa L., The Lost Promise of Civil Rights (Cambridge: Harvard University Press, 2007).

18. See, for example, Novak, William J., The People's Welfare Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996); and Alexander, Gregory, Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776-1970 (Chicago: University of Chicago Press, 1998).

19. Posner, Richard A., “A Theory of Negligence,” Journal of Legal Studies 1 (1972): 2996.

20. Horwitz, Morton J., The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press, 1977).

21. See Martinez, Jenny S., The Slave Trade and the Origins of International Human Rights Law (New York: Oxford University Press, 2012). See also Ludington, Sarah, Gulati, Mitu, and Brophy, Alfred, “Applied Legal History: Demystifying the Doctrine of Odious Debts,” Theoretical Inquiries in Law 11 (2010): 247–82 (finding tradition of sovereign rejection of “odious” debt in United States history).

22. Kornbluh, Felicia, The Battle for Welfare Rights: Politics and Poverty in Modern America (Philadelphia: University of Pennsylvania Press, 2007).

23. See Siegel, Reva, “Roe's Roots: The Women's Rights Claims that Engendered Roe,” Boston University Law Review 90 (2010): 1875–908. Similarly, Sophia Lee's work on how administrative agencies interpret the Constitution has implications for how we approach public constitutionalism and constitutional interpretation. Lee, Sophia, “Race, Sex, and Rulemaking: Administrative Constitutionalism and the Workplace, 1960 to the Present,” Virginia Law Review 96 (2010): 799886.

24. Tani, Karen M., “Flemming v. Nestor: Anticommunism, the Welfare State, and the Making of ‘New Property,’” Law and History Review 26 (2008): 379414.

25. Tanenhaus, David, The Constitutional Rights of Children: In re Gault and Juvenile Justice (Lawrence: University Press of Kansas, 2011).

26. See, for example, Williams, Robert J., The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1989). See also Robertson, Lindsay, Conquest By Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (New York: Oxford University Press, 2005).

27. See, for example, Litwack, Leon, Trouble in Mind: Black Southerners in the Age of Jim Crow (New York: Knopf, 1998). The work does not necessarily see a direct line between past and present; it may tell us only about the roots of current issues, such as Davis', T.J.A Rumor of Revolt: The “Great Negro Plot” in Colonial New York (New York: Free Press, 1985) or it may be more closely tied to contemporary politics, such as Tibbs', DonaldFrom Black Power to Prison Power: The Making of Jones v. North Carolina Prisoners' Labor Union (New York: Palgrave, 2011).

28. Gordon Wood distinguishes historical scholarship from advocacy, and he has warned that presentist work risks losing the distance and control necessary to accurate history. See, for example, Wood, Gordon S., The Purpose of the Past: Reflections on the Uses of History (New York: Penguin, 2008), 293308. The final line warns that “historians who want to influence politics with their history writing have missed the point of their craft; they ought to run for office.” However, his work promotes a positive view of American institutions, which has contemporary relevance. See, for example, Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969).

29. Ngai, Mae M., Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton: Princeton University Press, 2004); and Motomura, Hiroshi, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States (New York: Oxford University Press, 2006).

30. Cover, Robert, Justice Accused: Anti-slavery and the Judicial Process (New Haven: Yale University Press, 1975).

31. Klarman, Michael, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004). Compare Post, Robert and Siegel, Reva, “Roe Rage: Democratic Constitutionalism and Backlash,” Harvard Civil Rights-Civil Liberties Law Review 42 (2007): 373434.

32. Mack, Kenneth W., Representing the Race: The Creation of the Civil Rights Lawyer (Cambridge: Harvard University Press, 2012).

33. Brown-Nagin, Tomiko, The Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (New York: Oxford University Press, 2011). Among the other outstanding examples of this genre, one might think of Patricia Sullivan's Days of Hope: Race and Democracy in the New Deal Era (Chapel Hill: University of North Carolina Press, 1996).

34. Many of applied legal history's goals are similar to those that William W. Fisher described for legal history, including “contribut[ing] to contemporary policy debates by enabling readers to assess the merits and preconditions of policies pursued in other societies,” “expos[ing] injustice and inspir[ing] indignation and commitment,” and “assit[ing] contemporary judges in construing constitutional texts.” Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History,” Stanford Law Review 49 (1997): 1065, 1096, 1101, 1103.

35. See, for example, Moglen, Eben, “Commercial Arbitration in the Eighteenth Century: Searching for the Transformation,” Yale Law Journal 92 (1985): 135–52 (arbitration in colonial New York); and Brophy, Alfred L., “Ingenium est Fateri per quos profeceris’: Francis Daniel Pastorius' Young Country Clerk's Collection and Anglo-American Legal Literature, 1682–1716,” Unversity of Chiicago Law School Roundtable 3 (1996): 637, 679, 727–28 (discussing forms for arbitration in colonial Pennsylvania). Even what looks to be “pure” legal history—such as constitutional practice in seventeenth century Massachusetts—may describe the intersection of legal practices and everyday life and those complex yet common dialectics, and may provide insight into current dynamics. See, for example, Dale, Elizabeth, Debating – and Creating – Authority: The Failure of a Constitutional Ideal in Massachusetts Bay, 1629–1649 (Aldershot: Ashgate, 2001). Although such social history may speak to some contemporary issues, this is different from the more directly applied legal history envisioned in this article.

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Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
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