American Legal History

A lawyer without history and literature is a mechanic, a mere working mason; if he possess some knowledge of these, he may venture to call himself an architect. 
          -- Sir Walter Scott, Guy Mannering (1815; New York: E. P. Dutton & Co., 1906), 259.  


The Laws of a country are necessarily connected with every thing belonging to the people of it; so that a thorough knowledge of them, and of their progress, would inform us of every thing that was most useful to be known about them; and one of the greatest imperfections of historians in general, is owing to their ignorance of law.        

-- Joseph Priestley, Lectures on History (Birmingham: Pearson and Rollason, 1788), 149. 


The life of the law has not been logic: it has been experience. The seed of every new growth within its sphere has been a felt necessity. The form of continuity has been kept up by reasonings purporting to reduce everything to a logical sequence; but that form is nothing but the evening dress which the new-comer puts on to make itself presentable according to conventional requirements. The important phenomenon is the man underneath it, not the coat; the justice and reasonableness of a decision, not its consistency with previously held views. No one will every have a truly philosophic mastery over the law who does not habitually consider the forces outside of it which have made it what it is.... 
          -- Oliver Wendell Holmes, Jr., review of A Selection of Cases on the Law of Contracts. . . , 2d ed., by Christoper C. Langdell, American Law Review 14 (1880): 233.


This course concerns itself with the interaction between the legal system and social change in what is now the United States. Chronologically, the course materials run from the colonial period to the New Deal, although the nineteenth century will receive particular emphasis. A principal focus is the interrelationship of law, social life, economy, and ideology. 

WARNING

Like all law school courses, this course contains material that some students may find offensive.  For example, the readings for this course document instances of fornication, transvestism/hermaphrodism, and bestiality, as well as murder and other violence.  This course is an elective, and any student likely to be upset by this material should consider dropping the course.


The assignments indicate the topics into which the course will divide. These topics include colonial regulation of economy, morality and labor; slavery and racism in seventeenth-century Virginia; the Revolution; the Constitution; the legal profession; public lands; native peoples; property law in the early nineteenth century; corporations; women and family; morality and social welfare; criminal justice; antebellum slavery; reconstruction; late-nineteenth-century populism and industrialism; legal education; legal realism; and the New Deal.

The course consists of 28 lectures of 75 minutes apiece.  During the lectures, students should feel free to raise questions and initiate discussion as may be appropriate.  Participation in class discussion is on a voluntary basis.

Prior familiarity with U.S. history is not necessary.  The lectures and reading will provide whatever extralegal background may be essential, and students should feel free to raise questions in or outside class.

© Thomas D. Russell 2014