Comment on Schlegel

Extract

I recall vividly taking part in a session just over a decade ago at a meeting of the American Society for Legal History titled “New Directions in Legal Research.” Two young legal historians presented a paper in which they took to task some of the luminaries in the field for not writing “truly social histories” of the law. (I will not mention the names of the young historians who presented the critical paper; but those readers interested in knowing names can employ the traditional research skills for which we historians are noted). The two iconoclasts attacked Lawrence Friedman's A History of American Law (1973), William Nelson's The Americanization of the Common Law (1975), a series of Morton Horwitz's articles that became the basis for The Transformation of American Law, 1780–1860 (1971, 1972–73, 1974, 1977) and even Willard Hurst's impressive body of work (1950, 1956, 1960). Although the session was held late on a Saturday afternoon, the discussion following the paper was spirited. It struck me, however, that all of the examples of influential but ersatz legal history presented were on eighteenth and nineteenth century subjects. So I was moved to ask: “What about twentieth century American legal history?” The quick and clever answer from one of the paper readers was: “We don't care about twentieth century legal history, that's just the history of ideas with a little constitutional law thrown in.” This drew laughter from the audience, and the discussion quickly went back to Horwitz, the fellow servant rule, nineteenth century instrumentalism, and other pre-1900 matters. I should add that the glib young historian soon after this meeting left the writing of legal history behind, attended law school and, I am told, is now a comfortable partner in a major West Coast law firm. Perhaps there is a lesson in this, but it was lost on me.