Dale, Legal History, Spring 2003

Final exam, part 1

Instructions:

Your answers are due on Tuesday, April 29, at 5PM.
You must use your exam number on this exam, do not put your name anywhere on your answers.
This question is worth 40% of your grade. Your answer should be at least 3.5 pages long (typed, double spaced, normal font size – ie, 12 pt Times New Roman or Courier) and no longer than 8.5 pages.

Question:

In his 1995 law review article, “History ‘Lite’ in Modern American Constitutionalism,” Martin S. Flaherty criticized the way many lawyers and judges tried to bend history to support their constitutional theories.[1] He directed his ire at a number of legal thinkers on the left and right, including Robert Bork, Richard Epstein, Paul Kahn, and Cass Sunstein, all of whom, he asserted, used bits and pieces from the past to support their constitutional theories, while ignoring the parts that contradicted them.

Flaherty’s article was not simply an attack on the abuse of legal history, it was also an argument that legal history should matter to lawyers and judges. As he put it in the final sentence of his article, “The work of . . . American constitutional thinkers merits our attention not just because they outlined the framework we still follow, nor merely because many were brilliant individuals in extraordinary times, but as well because they did confront and again can offer a fresh perspective on problems that still challenge their modern heirs.”

Based on your reading of the Brandwein and Gordon books, do you agree or disagree with Flaherty’s view of the relevance of legal history? If you agree, which of those two books comes closest to achieving the goal he set for legal historians? Why? If you disagree, what do you think the value of legal history is for lawyers and judges? Which of those two books comes closest to performing the role you would assign legal history, and why?