Stanford Law Legal History Detectives

Law and History at Stanford

Greg Ablavsky’s path to the study of legal history started on the Zuni Reservation in New Mexico where he spent two years teaching fifth grade as part of Teach for America.  “Few places are more regulated than an Indian reservation,” he notes, and “seeing how the laws evolved and how they impacted the Zunis was eye-opening. That experience made me want to do the kind of historical research that matters today.” Ablavsky, associate professor of law, is now writing a book on relations between U.S. citizens, the Native American nations, and the federal government in the U.S. territories during the late 18th century. Meanwhile, he is watching two cases the U.S. Supreme Court has agreed to hear that will turn in significant part on the interpretation of an 1855 treaty with the Yakima Nation and the 1866 territorial boundaries of the Creek Nation in eastern Oklahoma.

For Rabia Belt, assistant professor of law, legal history research feels like “a treasure hunt, like being Nancy Drew.” One of her current research projects explores how it came to be that some Americans under guardianships—for example, individuals with cerebral palsy or mental disabilities—still have difficulty participating fully in party caucuses and elections. Insights from her research might lead to legal changes that enfranchise more citizens.

Professor Norman Spaulding, JD ’97, began publishing in the field of legal ethics while in law school. In his early work, he says, he “very quickly” realized that almost no one was thinking about questions of legal ethics and professional identity from a historical perspective. And when they did, Spaulding notes, they tended to lament the history as one of “decline from the lofty forms of statesmanship exhibited by the Founders, forgetting that about one-quarter of the bar left for England when the Revolution broke out and that those who stayed, including elite lawyers who rose to distinguished careers in public service, engaged in dueling and believed fervently in the zealous representation of their clients.”

Stanford Law Legal History Detectives

Illustration by: Gérard Dubois

SO SPAULDING BEGAN CLOSELY SCRUTINIZING 19TH-CENTURY PRIMARY SOURCES TO TRY TO UNDERSTAND THE COMPLEX WAYS in which attorneys reconciled their moral obligations and civic ideals with the duties to their clients. His work identifies “profound connections to every important question of legal ethics that we think about today.”

However, for Lawrence Friedman, Marion Rice Kirkwood Professor of Law, one of the nation’s most distinguished and prolific legal historians, exploring how the law influences society was “simply much more interesting than studying corporation law, which I find a crashing bore.” And Friedman has been anything but bored during his 61 years of scholarship and teaching. Along the way he has written 45 books (with subsequent editions) and hundreds of articles and was even a Pulitzer Prize finalist for Crime and Punishment in American History (1993), which offered the first comprehensive view of an important area of society—and law. As with several other of his other works, he couldn’t believe it hadn’t been written before.

“You’d think with all the interest in crime and a dozen books on Lizzie Borden’s case alone that someone would have written it before me. But no,” he says.

Michael McConnell, Richard and Frances Mallery Professor of Law and director of the Constitutional Law Center, is widely regarded as one of the preeminent constitutional law scholars and has argued 15 cases before the Supreme Court. A former law clerk to Justice William J. Brennan, Jr., McConnell served as a circuit judge on the U.S. Court of Appeals for the Tenth Circuit, nominated by President George W. Bush. While his scholarship has been cited in Supreme Court opinions, it is his work that looks at the history of the law,
including “Originalism and the Desegregation Decisions,” that has been most cited. (“The Origins and Historical Understanding of Free Exercise of Religion,” by McConnell, is one of the most cited law review articles of all time, according to a 2012 Michigan Law Review article.)

These are just five of the scholars on Stanford Law School’s deep and diverse bench in legal history. Some have formal training as historians; many do not. Long recognized as a powerhouse in the field, the school created a focal point for the study with the launch in late 2017 of the Stanford Center for Law and History. Led by Amalia Kessler (MA ’96, PhD ’01), Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies, the center serves as an intellectual hub for law and history on campus, bringing together the many scholars whose work straddles the two fields and building a bridge to scholars with shared interests throughout Stanford, the Bay Area, and internationally.

“We’ve really wanted for some time to have an institutional structure to encourage community building,” Kessler says, noting that the center’s inaugural workshops and lectures have already drawn strong participation across campus and beyond from faculty, graduate students, and postdocs.

The center’s creation marks these as heady days for those who do legal history research. But the explosion of scholarship in recent decades is not the only change.

“Legal history has gone global; it’s now a genuinely cosmopolitan enterprise with many more historians doing comparative work,” observes Robert Gordon, professor of law, another preeminent scholar, who first joined the law school faculty in 1983 and returned in 2011 after a stint at Yale Law School. His research has ranged from contract law and legal philosophy to the history, current ethics, and practices of the organized bar. Where scholars of colonial periods may have once looked just at the American colonies under British rule or those of Spain, many are now engaged in comparative work, he says, looking across empires and drawing insights from plural legal contexts, plural societies, and plural regimes.

“Legal history has gone global; it’s now a genuinely cosmopolitan enterprise with many more historians doing comparative work.”

Robert Gordon, professor of law

Scholarship has also influenced judges at the highest levels. While doctrinal rather than historical arguments still generally determine most blockbuster cases, Gordon and others point to several cases where historical arguments have tipped the scales.

On gun rights, for instance, Gordon has noted that orthodox constitutional doctrine held for many years that Second Amendment rights were collective rights, belonging to militias not individuals. However, in District of Columbia v. Heller (2008), the U.S. Supreme Court, relying in part on research from the National Rifle Association and other pro-gun organizations, the narrow majority articulated an individual right to gun ownership. “Though the NRA’s theory of gun ownership as an individual right remains controversial,” he adds. Historical research has been persuasive as well in cases involving the habeas rights of Guantanamo detainees, marriage equality, state sodomy laws, and in cases involving the Establishment Clause, particularly the role of religion in public schools and on the public stage.

However, beyond individual cases, says Gordon, the field of constitutional law has been “historicized,” and constitutional law textbooks now include far more historical analysis than in past decades. But Gordon sees the proliferation of research also as an acknowledgment that “you can’t understand developments in constitutional law without historical research.”

Spaulding goes a bit further, arguing that legal history has “become one of the primary modes of legal analysis.” Like Gordon, he views the ongoing debate over “originalism” as giving legal history “a doctrinal imprimatur,” allowing historical analysis to become “a contested and yet unquestionably legitimate method of legal interpretation.”

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Professors Greg Ablavsky and Rabia Belt. Photo by Gregg Segal

Robert Rabin, A. Calder Mackay Professor of Law, whose PhD is in political science, agrees. A scholar of the regulation of health and safety who has written extensively in the area of tort law, he sees doctrine as often “steeped in history.”

“The core of the judicial process in a common law country like the U.S. is to try to address new principles in light of how the law has previously developed,” he says.

For that reason, legal history has emerged as the most dominant mode of law and humanities interdisciplinary research, now rivaling the influence of law and economics. “Historians have become more deeply interested in the law,” Spaulding observes, noting that at the same time the Supreme Court has become more deeply interested in historical interpretations of the law.

THE OUTCOME OF LITIGATION ASIDE, LEGAL HISTORIANS HAVE SIGNIFICANTLY DEEPENED our understanding of the interplay between law and society. Over his long career, Friedman, who joined the law school in 1968, has authored dozens of scholarly books and articles on an ever-expanding range of subjects as well as The Frank May Chronicles, a fictional legal mystery series. His comprehensive A History of American Law, originally published in 1973 and now in its third edition, has been required reading for generations of graduate and undergraduate students. The book charts the symbiotic development of law and the nation’s economic and political life, family practices, and attitudes toward government, crime, and justice.

In the same vein, Kessler’s most recent book, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877, demonstrates that America’s adversarial legal culture was not baked into our judicial system. Instead, adversarialism emerged in the chaotic decades before and after the Civil War, in part due to the wider socioeconomic, political, and cultural struggles of that time, including debates over market regulation and racial equality that remain with us to this day. While adversarialism continues to shape American legal institutions and practices and is widely viewed, she notes, as “encoded in the country’s DNA,” Kessler draws on her expertise in European legal history—including her award-winning first book on the history of French commercial law and courts—to reveal important but now forgotten European influences on American legal development. “The country’s history of procedural experimentation, including efforts to learn from those abroad, suggests possibilities for ongoing reform as we struggle to ensure meaningful access to justice,” she says.

The strength of historical analysis explains why researchers trained in other fields often find themselves in dark library stacks and dusty archives where they are able to draw important connections to law today.

For example, Bernadette Meyler, JD ’03, Carl and Sheila Spaeth Professor of Law, pursued her PhD in literature concurrently with her law degree. In her forthcoming book, Theaters of Pardoning (Cornell University Press, 2019), Meyler argues that there has been a decline in mercy in contemporary society, a development she ties to the 17th-century relationship between pardoning and the sovereign power.

Her interest in this topic began with her dissertation research on Renaissance drama, long before recent controversies over presidential uses of the pardon. For the book project, Meyler read every tragicomedy surviving from the period between 1600 and 1660 and realized that many of these plays include a final pardon.

Is the pardon just a theatrical device, she wondered, or does it say something more? The location of pardoning in theatrical plays, Meyler concluded, tracked the evolution of English politics, noting that “the theatricality of pardoning was a mode of presenting power.” In other words, who could pardon signaled who was sovereign.

Professors Lawrence Friedman, Bernadette Meyler, JD ’03, and Amalia Kessler (MA ’96, PhD ’01). Photo by Gregg Segal

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The U.S. Constitution largely embraced British pardon practices; Article II grants the president “fairly absolute power” to pardon, she says. The result has been what Meyler sees as “a decline in mercy,” with presidents reluctant to grant pardons and, when they do, Americans uncomfortable with “this relic of sovereignty.” President Trump’s pardons of former Maricopa County Sheriff Joe Arpaio and conservative commentator Dinesh D’Souza have only exacerbated that unease, she says.

Meyler suggests articulating “more democratic forms of pardoning to reinvigorate the idea of mercy in our society today.” One possibility: The president might convene something Meyler calls “a pardon jury” to advise him or her on possible pardons.

Rabin’s research on the development of intangible loss drew him even farther back, to the 13th century, where he found the “first glimmering of recovery for emotional distress without accompanying physical injury.” Similarly, his writing on the roots of the fault principle led him to explore how law developed before the Industrial Revolution.

Jenny Martinez, professor of law and Warren Christopher Professor in the Practice of International Law and Diplomacy, is a leading expert on international courts and tribunals and international human rights. The author of The Slave Trade and the Origins of International Human Rights Law, she often focuses on contemporary human rights issues but was also drawn to historical research. “I felt the history of contemporary international institutions was incomplete,” she says.

While common wisdom held that the story of human rights courts began with the Nuremberg trials, “I was curious about what happened before that,” she adds.  In talking with a judge from the special court for Sierra Leone (a hybrid court created under the auspices of the U.N. to hear cases of war crimes and crimes against humanity in that country), Martinez learned of international courts that governed the slave trade during the 19th century. Those tribunals heard more than 600 cases involving the sale and trans-Atlantic shipment of slaves after treaties had banned the slave trade, granting freedom to some 80,000 enslaved persons found aboard captured illegal slave ships. Almost nothing had been written about these tribunals, even though voluminous records remained in British archives.

Martinez sees her account of those tribunals as evidence of the value of “taking the long perspective” on human rights questions. Many 19th-century politicians and government officials in Britain and the United States thought it was hopeless to ban the slave trade, let alone seek the abolition of slavery, and argued for giving up. “Looking today at the question of the success and viability of international human rights bodies and the International Criminal Court,” she believes that the persistence of abolitionists for many decades before achieving success indicates “it hasn’t been nearly long enough to make the call on whether international human rights laws and institutions are a success or a failure.”

Legal history wasn’t always such a hot field. When Friedman was studying for his JD, in the 1950s, almost no law schools included a legal historian on their faculty. Gordon remembers that even by the 1970s, the major titles in U.S. legal history, some 20 to 25 books and an equal number of journal articles, could fit on a single-spaced page. “Now the bibliography has expanded beyond the capacity of any person to master in a lifetime,” he observes.

As the job market for history PhDs dried up in the 1970s, some went to law school where a number eventually found jobs during what Gordon calls “the interdisciplinary turn in law schools,” as law and economics gave rise to law and history, law and philosophy, and other interdisciplinary legal fields.

“The core of the judicial process in a common law country like the U.S. is to try to address new principles in light of how the law has previously developed.”

Robert Rabin, A. Calder Mackay Professor of Law

Now, although law school enrollment has largely recovered after the recession, few schools feel they can afford a full-time legal historian—even at top-tier schools. “If you can teach a section of torts, you’re much more useful to the law school,” Friedman notes.

At the same time, Belt cautions that the long training and apprenticeship required for an academic position “can be hard for people who have to forgo compensation for many years.” “That’s a pretty strong barrier to entry” to the profession, she notes, and “we need to make sure that legal history is still a diverse field.”

Yet, the imperative to publish on both contemporary legal topics and historical ones has continued to energize the field, in good measure because “law is the language of the state and so many of our ideas about power go through law,” says Belt. “That’s why pressure for legal changes was integral to efforts by African-Americans, women, Latinos, and more recently, by gays and lesbians to participate fully in American life.”

Or as Gordon has observed, “History is always written out of present preoccupations; there’s simply no getting around that.”  SL

Molly Selvin, a legal historian and former staff writer for the Los Angeles Times, is a freelance writer based in Los Angeles.