AMH 6557, Fall 2004

Readings in Legal and Constitutional History


Professor Elizabeth Dale

Keene-Flint 025



Office hours: Tuesday 1-2:30 PM and by appointment






This seminar has two aspects:


·        The readings below are intended to introduce you generally to the range of studies encompassed in the term American legal history. The articles below, all of which are available on line, are generally historiographical studies, focusing on particular approaches to law and legal history, and they are arranged in a rough chronological order. Over the course of the semester, we will use these articles to consider the various approaches to legal history in the abstract, examining what different schools of historiography considered important, or unimportant.


The two books, Magic Mirror and The Legalist Reformation, are intended to provide a vantage point from which to consider the ideas put forth in these articles. The first book is a synthesis of American legal history, which is itself written from a particular (somewhat revisionist) perspective. It will both give you an idea of the scope of American legal history, and provide you with a general perspective on the other approaches commented on in the various articles we will read subsequently. In contrast, the Legalist Reformation is a fairly recent historical analysis of law in a particular point in time. We will consider it at the end of the semester to see how far the field has come since Magic Mirror, and to analyze whether it offers yet another, newer approach to legal history than any of those proposed or considered in the articles we read over the course of the semester.

·        The rest of the seminar is intended to provide you with independent research opportunities in legal history. To that end, in the first three weeks of the semester, you need to come up with a research topic (historiographical or based on primary research) on legal history, which you will work on for the rest of the semester. This may be a topic that relates to your MA thesis/non thesis paper, or a PhD dissertation, or it could be something you simply wish to explore for its own sake. At the end of the semester, your aim should be to write a paper of roughly 20-25 pages long, based on this research. In that paper, you should attempt to build on some of the approaches to legal history we have explored over the course of the semester.




Most of your grade (75%) will be based on the research paper you write in this seminar. The rest of your grade will reflect your participation in the course, and your engagement with the materials.






First week: (August 24)

Discussion of course


Second week: (August 31)

Hall, Magic Mirror


Third week:

Tomlins, “The Mirror Crack’d”William and Mary Law Review 32 (Winter 1991): 353


Fourth week:

Holmes, “The Path of Law,” (reprint) Harvard Law Review 110 (March 1997): 991

Reed, “Holmes and the Path of Law,” American Journal of Legal History 37 (June 1993): 273-306


Fifth week:

Pound, “Theories of Law,” Yale Law Journal 22 (December 1912): 114-150


Sixth week:

Vinogradoff, “The Meaning of Legal History,” Columbia Law Review 22 (Dec 1922): 693-705


Seventh week:

Gilmore, “Legal Realism, It’s Cause and Cure,” Yale Law Journal 70 (June 1961)


Eighth week:

Gordon, “Historicism in Legal Scholarship,” Yale Law Journal 90 (April 1981): 1017-1056


Ninth week:

Hurst, “The State of Legal History,” Reviews in American History 10 (Dec (1982): 292-305

Scheiber, “American Constitutional History and the New Legal History,” Journal of American History 68 (Sept 1981): 337-350


Tenth week:

Gordon, “Critical Legal Histories,” Stanford Law Review 36 (1984): 57


Twelfth week:

Hartog, “Pigs and Positivism,” Wisconsin Law Review 1985 (1985): 899


Thirteenth week:

Grossberg, “Social History Update: Fighting Faiths and the Challenges of Legal History,” Journal of Social History 25 (1991): 191


Fourteenth week:

Nelson, The Legalist Reformation