American Legal History

Law 6930/AMH 6557

M 4:00-5:50PM, Room 297 Holland Law Center

Elizabeth Dale November 2002



Elizabeth Dale, Associate Professor US Legal History,

Affiliated Professor Legal History, Levin College of Law

025B Keene-Flint Hall

392-0271 ex. 226


Office hours: M: 9-11

T: 9-10:30

And by appointment

Final exam question 1

Final exam question 2










This class is designed for two groups: advanced law students, and history graduate students. In order to accommodate the slightly different needs of those students, the course has two aspects:

         a common core of readings in constitutional history, focusing mainly on issues of sovereignty and citizenship, and comprised of cases and other legal materials, supplemented by three books that focus on particular constitutional issues.;

         a special extra collection of readings designed to expose history graduate students to the various methods of doing legal history


The class will meet once a week at the assigned time, during that period there will be lecture and discussion of the cases and materials assigned for the week, focusing on what those materials contribute to our understanding of the evolution of ideas of citizenship and sovereignty. In addition, there will be a second, discussion section of the class for history graduate students, in which the additional readings will be covered.



Law students will be graded based on a take home final exam, consisting of two essays, one worth 40% of the final grade, one worth 60% of the final grade. The exam will be handed out two weeks before it is due. Law students who wish to write a case note in lieu of the final exam may do so, but they must make arrangements with me prior to Spring Break and their note will be due on the same day as the final exams. Law students who wish to do a case note in lieu of a final exam will receive 100% of their grade based on the note.


History graduate students will be graded as follows:

25% in class presentation on readings

25% draft of historiographic essay

50% historiographic essay of 15-20 pages.


Assigned readings:


Common readings (for law students and history graduate students):

Cases and materials linked through this syllabus

Brandwein, Reconstructing Reconstruction

Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century


Noonan, Narrowing the Nation's Power


History grad student additional readings:

Horwitz, Transformation of American Law

Jordan, Tumult and Silence on Second Creek

Benton, Law and Colonial Cultures

Tuttle, Race Riot

Haltunnen, Murder Most Foul

Also article assignments as indicated on syllabus


Schedule of common assignments (history grad student additional assignments are added in italics)


Week 1:

Introduction to the course

History grad student meeting to arrange further meetings


Week 2:

MONDAY *** No class, MLK Holiday ***

***Class rescheduled, Friday at 4PM***

Common readings: Massachusetts Bay Charter, 1629; Sermon on the Arbella; Speech on Liberty Child's Remonstrance; Laws and Liberties

Grad students: Michael Grossberg, "Social History Update: Fighting Faiths and the Challenge of Legal History, 25 Journal of Social History 1919 (1991); Oliver Wendel Holmes, Jr. "The Path of Law" 10 Harvard Law Review 457 (1897) (available at Hein Online, through library)


Week 3:

Common readings: Charter of Carolina, 1665; Fundamental Constitution of Carolina, 1669; Frame of Government for Pennsylvania, 1683; Penn's Charter of Liberty, 1682


Week 4:

Common readings: Articles of Association, 1774; Declaration of Independence, 1776; Constitution of the United States (preamble); Virginia and Kentucky Resolutions; Rhode Island and New Hampshire Reaction to the Resolutions

Grad students: Kuehn, "Reading Microhistory: Giovanni and Lusanna;" Jordan, Tumult and Silence


Week 5:

Common readings: Marbury v. Madison; Report and Resolutions of the Hartford Convention; South Carolina Ordinance on Nullification; Jackson's Proclamation on Nullification; South Carolina Reply to Jackson


Week 6:

Common readings: Gordon, The Mormon Question

Grad students: Hartog, "Pigs and Positivism;" Benton, Law and Colonial Cultures


Week 7:

Common readings: Scott v. Sandford (the Dred Scott case): opinions by Taney, Curtis and McLean


Week 8:

Common readings: Slaughterhouse Cases (1873); Civil Rights Cases (1883); Baylies v. Curry I; Baylies v. Curry II; Grad students: Gordon, "Critical Legal Histories; Horwitz, Transformation of American Law


Week 9:

***Spring Break, no class***



Week 10:

Common reading: Brandwein, Reconstructing Reconstruction; Plessy v. Fergusen (1896)

Grad students: Tomlins, "The Mirror Crack'd;" Tuttle, Race Riot


Week 11:

Common readings: Sparf and Hansen v. United States; Hurtaldo v. California (1884); Twining v. New Jersey (1908); United States v. EC Knight (1895); In re Debs (1895);

Pollock v. Farmers Loan (1895)

Week 12:

Common readings: Lochner v. New York (1905); Muller v. Oregon (1908); Adair v. United States (1908); Coppage v. Kansas (1915)

Grad students: Fisher, "Texts and Contexts in Legal History; Haltunnen, Murder Most Foul


Week 13:

Common readings: Palko v. Connecticut (1937); West Coast Hotel v. Parish (1937); US v. Carolene Products (1938); Adamson v. California (1947)

Grad students: draft of papers due


Week 14:

Common readings: Minersville School District v. Gobitis (1940); West Virginia Board of Ed v. Barnette (1943); Brown v. Board of Education (1954)

Final exam question 1

Final exam question 2


Week 15:

Common readings: Noonan, Narrowing the Nation's Power