Elizabeth Dale

392-0271

edale@history.ufl.edu

http://plaza.ufl.edu/edale

Offices: 224 at Keene-Flint

240E at Law School

Office hours: Wednesday (at Keene-Flint) 1:00-2:00

Thursday (at Law School): 10:00-11:00

Or by appointment (note I am generally not available Tuesday or Friday)

Syllabus, Spring 2006

American Legal History

AMH 6557, section 2500

LAW 6226, section 4216

Introduction:

For many years, legal history in the United States and Europe focused on doctrinal shifts, tracing (for example) the origins and meanings of the concept of “color of law.” For the past fifty years, legal history in the United States has gone beyond the study of doctrine, to consider how social and cultural forces influence the development law and determine its role.

Legal history in the United States is now a well organized, and complex field of study, with its own academic journals (Law and History Review, Yale Journal of Law and Humanities). Works on legal history also find a place in law reviews, both in symposia devoted to particular historical topics and in individual articles.[1] Several major syntheses have been published, purporting to provide an overview of the legal history of the United States, and scholarly presses publish a number of monographs in the field every year.[2] Legal historians in other countries recognize the importance of the work in American legal history, and some have gone so far as to urge their colleagues to model their study of the history of law on American scholarship.[3]

Yet the breadth of scholarship in American legal history has made the field so big and so fragmented that it is difficult to teach the subject in a single course. Few themes connect the legal and social systems of the colonial era to those found in the early twenty-first century. And so texts on legal history tend to include large numbers of cases and materials on a wide variety of unconnected subjects, resulting in a course that is both overwhelming in terms of reading matter and incapable of providing a close look at the ways in which law and society intersected across time.

This semester, we are going to approach the study of legal history somewhat differently. Rather than try to trace changes in the law across the full spectrum of American history, we are going to look at the intersection of law and society by focusing on a particular type of legal problem. Specifically, we are going to look at the problem of employment (a subject that this course defines broadly) and we will look at how the legal treatment of that problem in American history reflected a variety of forces (religious, social, economic, cultural, and political). Some weeks, we will read cases and statutes, some weeks we will read historical studies. In the aggregate, those works should provide a glimpse at how law and society could and did interact in United States history.

Common course and special readings:

This is a cross-listed course, taught in both the law school and the history department. The “common course” is the law school class, which will meet every week on Thursday for two hours. All students enrolled in this course are expected to do the readings labeled “common readings” each week.

While the law course is a two hour course, the history course is a three hour course. As a result, we will have to schedule extra meeting times for the history students. There are additional readings for that extra session. They are designated in the assignments below as “history supplements.”

There are also extra readings listed for each week, these relate to the semester assignment, described below.

Assignment:

Grades for this class are based on an end of term project, as follows:

A. Law students have the option of doing one of two assignments:

1. A 10-12 page paper based on one week’s readings, plus some of the supplemental readings and/or history readings listed for that week. This assignment is in effect a take home final exam, and is due during finals week on a date to be agreed on by the class. In this paper, you will address a question that I pose to you. Copies of this question will be available the week before spring break.

2. A 10-15 page research paper, on any aspect of American legal history. If you wish to do this project you must have my approval. You must submit a topic proposal to me, and get my approval of it, before spring break. I’m glad to discuss possible research topics and resources with you, and I will review a single draft of your paper before you turn it in if you wish.

B. History students will do a 15-20 page seminar paper, on an aspect of legal history relating to their particular research projects. You must discuss your topic with me before spring break.

Take home exam questions

Assigned text books (common course):

Bernstein, Only One Place of Redress

Ernst, Lawyers against Labor

Mancini, One Dies, Get Another

Simon, The Fabric of Defeat

Stanley, From Bondage to Contract

Stein, The Triangle Fire

Steinfeld, Invention of Free Labor

Weekly assignments:

First week: Jan 6: Introduction to the course

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

Second week: Jan. 12: Law and labor in England and the colonies

Common reading: Steinfeld, The Invention of Free Labor

Supplemental readings: Morris, Government and Labor in Early America (reprint 1975)

History readings: none

Sources cited in lecture: “Laws and Liberties” (Massachusetts Bay, 1648); “Sermon on the Arbella (1629); George Haskins, Law and Authority in Early Massachusetts; David Konig, Law and Society in Puritan Massachusetts; Elizabeth Dale, Debating—and Creating—Authority: The Failure of a Constitutional Ideal, Massachusetts Bay, 1629-1649.

Third week: Jan. 19: no class because of law school schedule

***History students will meet during class time at Keene-Flint to discuss scheduling extra sessions***

History readings: Tomlins, “Why Wait for Industrialism? Work, Legal Culture and the Example of Early America—An Historiographical Account,” Labor History 40 (Feb. 1999): 5-34. Read the responses to this article if you get the chance.

Fourth week: Jan. 26

Common readings: Nelles, “The First American Labor Case,” Yale Law Journal 41 (1931): 165 (available online through either Lexis or Hein Online, via the University of Florida Library); Commonwealth v. Hunt (Mass 1842)

Supplemental readings: Department of Labor: History of Labor in the Early Republic and Antebellum Era

History readings: Montgomery, “The Working Classes of the Pre-Industrial American City, 1780-1830,” Labor History 9 (1968): 22, et seq.

Sources cited in lecture: Nockleby, “Two Theories of Competition in Early 19^th Century Labor Cases,” American Journal of Legal History 38 (1994): 452; William Novak, The People’s Welfare (University of North Carolina Press); Morton Horwitz, The Transformation of American Law, 1780-1860 (Harvard University Press); Hunt v. Simmons, 19 Mo. 583 (1854); Vegelahn v. Gunter, 167 92 (especially Holmes dissent); People v. Fisher, 14 Wend. 2 (N.Y. 1835); Sean Wilentz, Chants Democratic (Oxford University Press); Charles Sellers, The Market Revolution (Oxford University Press); Sean Wilentz, The Rise of American Democracy (W.W. Norton); Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press); Roger Lane, Violent Death in the City: Suicide, Accident, and Murder in Nineteenth-Century Philadelphia (2d ed. Ohio State University Press). Addendum: Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947) (esp. Douglas dissent, which raises the issue of vertical competition).

Fifth week: Feb. 2

Common readings: State v. Mann, 13 N.C. 263 (N.C. 1829); Farwell v. Boston and Worchester Railroad Co., 45 Mass 49 (1842); Ponton v. Wilmington Railroad Co., 51 N.C. 245 (1858); Gorman v. Campbell, 14 Ga. 137 (1853).

Supplemental readings: Mark Tushnet, American Law of Slavery;

History readings: Julius Yanuck, “Thomas Ruffin and North Carolina Slave Law,” Journal of Southern History 21 (1955): 456-475; John Edward Stealey, “The Responsibilities and Limitations of the Baillee of Slave Labor in Virginia,” American Journal of Legal History 12 (1968): 336-383.

Sources cited in lecture: Priestly v. Fowler, 150 Eng. Rep. 1030 (1837); Taylor, The Transportation Revolution, 1815-1860 (1951); Horwitz, The Transformation of American Law, 1780-1860; Burroughs v. Housatonic Rail Co., 15 Conn. 124 (1842); Ryan v. N. Y. Central RR Co., 35 N.Y. 210 (1866); Orren, Belated Feudalism: Labor, the Law, and Liberal Development n the United States; Satrobin, Industrial Slavery in the Old South (1970); Lewis, Coal, Iron and Slaves: Industrial Slavery in Maryland and Virginia (1979); Randolph v. Hill, 7 Leigh. 383 1836); Scudder v. Woodbridge, 1 Ga. 195 (1846); Butler v. Waller, 1 Rice 182 (S.C. 1839); Paul Finkelman, “Slaves as Fellow Servants: Ideology, Law and Industrialization,” American Journal of Legal History 31 (1987): 269; Ariela Gross, Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (2000); Wahl, The Bondsman’s Burden: An Economic Analysis of the Common Law of Slavery (1998); Morris, Southern Slavery and the Law, 1618-1860; Wertheim, “Slavery and the Fellow Servant Rule: An Antebellum Dilemma,” New York University Law Review 61 (1986): 1112.

Sixth week: Feb 9

Common reading: Stanley, From Bondage to Contract

Supplemental readings: Civil Rights Act of 1870; McClain, Charles J., “Chinese Struggle for Civil Rights in Nineteenth Century America: The First Phase, 1850-1870,” 72 Cal. L. Rev. 552 (1984) (available on line through UF library)

History readings: Jentz, “Class and Politics in an Emerging Industrial City: Chicago in the 1860s and 1870s,” Journal of Urban History 17 (May 1991): 227; Forbath, "The Ambiguities of Free Labor," Wisconsin Law Review 1985: 767-817. (Recommended: Gutman, “The Tompkins Square ‘Riot’ in New York City on January 13, 1874: A Reexamination of its Causes and Its Aftermath,” Labor History 6 (Winter 1965): 44.)

Sources cited in the lecture: Cartwright v. McGown, 121 Ill. 388 (1887); Zeigler, “Wifely Duties: Marriage, Labor and the Common Law in Nineteenth-Century America,” Social Science History 20 (1996): 63-96; Schmidt, “‘Restless Movements Characteristic of Childhood’: The Legal Construction of Child Labor Law in Nineteenth-Century Massachusetts,” Law and History Review 23 (2005): 315-350; Berdos v. Tremont & Suffolk Mills, 209 Mass. 489 (1911); Wolcher, “The Privilege of Idleness: A Case Study of Capitalism and the Common Law in Nineteenth-Century America,” American Journal of Legal History 36 (1992): 237-325.

Seventh week: Feb. 16

Common reading: Mancini, One Dies, Get Another

Supplemental reading: Gildmeister, Prison Labor and Convict Competition with Free Workers in Industrializing America, 1840-1890 (1987); Oshinsky, Worse than Slavery (1996); Taylor, Down on Parchman Farm (1999)

History reading: Miller, “Reinventing the Penitentiary: Punishment in Florida,” American Nineteenth Century History (Great Britain) 1 (2002): 82; Staples, “In the Interests of the Sate: Production Politics in the 19^th Century Prison,” Sociological Perspectives 33 (1990): 375-395.

Sources cited in the lecture: Gary Minda, Postmodern Legal Movements (1995); Ron Harris, “The Encounters of Law and Economic History,” Law and History Review 21 (2001): 297-346; Kevin Shapiro, A New South Rebellion: The Battle Against Convict Labor in the Tennessee Coal Fields (1998); Alex Lichtenstein, Twice the Work of Free Labor: The Political Economy of Labor in the New South (1996) (looking at convict labor in Georgia); Larry Goldsmith, “ ‘To Profit by His Skill and Traffic in His Crime’: Prison Labor in Early Massachusetts,” Labor History 40 (1999): 439; Michael Meranze, Laboratories of Virtue: Punishment, Revolution and Authority in Philadelphia, 1760-1835 (1994); Douglas Fishback, “Debt Peonage in Postbellum Georgia,” Explorations in Economic History 26 (1989): 219-236; Jerrell Shofner, “Postscript to the Martin Talbert Case: Peonage as Usual in the Florida Turpentine Camps,” Florida Historical Quarterly 60 (1981): 161-173; Larian Angelo, “Wage Labor Deferred: The Recreation of Unfree Labour in the South,” Journal of Peasant Studies 22 (1995): 581-644; Ransom and Sutch, “Debt Peonage in the Cotton South After the Civil War,” Journal of Economic History 32 (1972): 641-669; Brown and Reynolds, “Debt Peonage Reexamined,” Journal of Economic History 33 (1973): 862-871; Gavin Wright, “Reflections on One Kind of Freedom and the Southern Economy,” Explorations in Economic History 38 (2001): 40-47; Gavin Wright, Old South, New South: Revolutions in Southern Economy Since the Civil War (1975); Alston and Kauffman, “Competition and Compensation of Sharecroppers by Race,” Explorations in Economic History 38 (2001): 181-194. Also, for those who are interested in exploring the issue of the rise of slavery that came up during class two books to read are: Edmund Sears Morgan, American Freedom, American Slavery (1975) (looking at Virginia); Philip D. Morgan, Slave Counterpoint (1998) (comparing Virginia and South Carolina).

Eighth week: Feb. 23

Common reading: Messer-Kruse, “Eight Hours, Greenbacks, and ‘Chinamen,’” Labor History (Great Britain) 42 (2001): 133 (available online through UF); Mirola, “Asking for Break, Receiving a Stone,” Social Problems 50 (2003): 273 (available online)

Supplemental readings: Avrich, Haymarket Tragedy

History readings: Sklar, “What were the Origins of International Women’s Day, 1886-1920?” Women’s Social Movements in the United States 4 (2000): online journal, no page numbers (access through UF).

Ninth week: March 2

Common reading: Bernstein, Only One Place of Redress

Supplemental reading: Hewitt, Southern Discomfort: Women’s Activism in Tampa, Florida, 1880s-1920s (2001); U.S. Strike Commission, Report on the Chicago Strike of June-July 1894 (excepts)

History readings: Peck, “Reinventing Free Labor,” Journal of American History 83 (1996): 848;

Sources cited in the lecture: Lochner v. New York, 198 U.S. 45 (1905); William Novak, The People’s Welfare (1996); Barron v. Baltimore (1831); Andrew W. Cohen, The Racketeers’ Progress (2004); Brian Kelly, Race, Class and Power in the Alabama Coal Fields, 1908-1921 ; Sundquist, editor, The Atlantic Paradox; Eric Andersen, Brotherhoods of Color: Black Railroad Workers and the Struggle for Equality; Gary Becker, The Economics of Discrimination (1957); “Review of One Place of Redress,” Journal of Economic History 61 (2001): 847-849; William J. Collins, “When the Tide Turned,” Journal of Economic History 57 (1997): 607-632; Majerski, A House Dividing: Economic Development in Pennsylvania and Virginia Before the Civil War (2000); Freeman and Madoff, What Do Unions Do? (1990); Boyer and Smith, “The Development of the Neoclassical Tradition in Labor Economics,” Industrial and Labor Relations Review 54 (2001): 199-223.

Tenth week: March 9

***NOTE: take home exam question posted by today***

***NOTE 2: history students must have seminar paper topics approved by today***

Common reading: Holden v. Hardy, 169 U.S. 366 (1898); Lochner v. New York, 198 U.S. 45 (1905); Muller v. Oregon, 208 U.S. 412 (1908)

Supplemental reading: “The Brandeis Brief”

History reading: None.

Sources cited in the lecture: Slaughterhouse Cases (1873); An Act to Protect the Health of the City of New Orleans (1869); Michael Kent Curtis, “Resurrecting the Privileges and Immunities Clause,” Boston College Law Review 38 (1996): 1-106; Richard L. Ayers, “On Misunderstanding John Bingham and the Fourteenth Amendment,” Yale Law Journal 103 (1993): 57-104; William E. Nelson, The Fourteenth Amendment (1988); Patricia Brandwein, Reconstructing Reconstruction; Hurtado v. California, 110 U.S. 516; Parish v. West Coast Hotel, 300 U.S. 379 (1937); United States v. Carolene Products, 304 U.S. 144, n. 4 (1938).

Eleventh week: March 16: SPRING BREAK

Twelfth week: March 23

***NOTE: law students intending to do a research paper must have my approval for their topic by today***

Common reading: Ernst, Lawyers against Labor

Supplemental readings: Rehmus, “Evolution of Legislation Affecting Collective Bargaining in the Railroad and Airline Industries,” Adair v. United States, 208 U.S. 161 (1908); Coppage v. Kansas, 236 U.S. 1 (1915).

History readings: Wells, “Counterpoint to Reform,” Business History Review 78 (2004): 423

Sources cited in the lecture: Lizabeth Cohen, Making a New Deal: Industrial Workers in Chicago, 1919-1939 (1990);Gerald Berk, “Corporate Liberalism Reconsidered: A Review Essay,” Journal of Policy Studies 3 (1991): 0-84; Randolph Bergstrom, Courting Danger; Barbara Welke, Recasting American Liberty: Gender, Race, Law and the Railroad Revolution, 1865-1920 (2001); William Wiecek, The Lost World of Classical Liberal Thought, 1886-1937.

Thirteenth week: March 30

Common reading: Stein, The Triangle Fire

Supplemental readings: R. Bergstrom, Courting Danger: Injury and Law in New York City, 1870-1910 (1992)

History readings: Fishback and Kantor, “The Adoption of Workers’ Compensation in the United States, 1900-1930,” Journal of Law and Economic 41 (1998): 205 (Jstor); Go, “Accidents and Insurance: Discourse and Workers’ Compensation in the United States, 1880s-1910s,” Social Science History 20 (1996): 405-438 (online); Howard, “Workers’ Compensation, Federalism and the Heavy Hand of History,” Studies in American Political Development 16 (2002): 28-47.

Sources cited in the lecture: Cohen, Racketeers’ Progress; Fishback and Kantor, “The Adoption of Worker’s Compensation in the United States, 1900-1930,” Journal of Law and Economics 41 (1998): 305; Go, “Inventing Industrial Accidents and their Insurance,” Social Science History 20 (1996): 401; Dorothy Ross, The Origins of American Social Science (1991); W.E.B. DuBois, Th Philadelphia Negro (1898);Zuberi, “DuBois’ Sociology: The Philadelphia Negro and Social Science,” Annals of the American Academy of Political and Social Science 595 (2004): 146; W.I. Thomas, Crime in Chicago (1916); Young, et al., “Kimball Young on the Founders of the Chicago School,” Sociological Perspectives 31 (1983): 269; Charles Booth, Life and Labor of London (1903); Jacob Riis, How the Other Half Lives (1890).

Fourteenth week: April 6

Common readings: Goldfield, “Worker Insurgency, Radical Organization, and New Deal Labor Legislation,” American Political Science Review 83 (1989): 1257; Swidorski, “The Courts, The Labor Movement and the Struggle for Freedom of Expression and Association, 1919-1940,” Labor History (Great Britain) 45 (2004): 61.

Supplemental readings: Betten, “The Great Depression and the Activities of the Catholic Workers Movement,” Labor History (Great Britain) 12 (1971): 243.

History readings: Kessler-Harris, “In the Nation’s Image,” Journal of American History 86 (1999): 1257; Bateman, “Clearing the Ground,” History of Political Economy 30 (1998, Supplement): 29.

Sources cited in the lecture: Ellen Dannin, Taking Back the Workers’ Law (2006); Feinman, “The Development of the Employment At Will Doctrine,” American Journal of Legal History 20 (1976): 118; Tapping Reeve, The Law of Baron and Femme (1846); Davis v. Gunther, 16 NY 255 (1857; Charles Smith, Master and Servant (1852); Horace Gray Ward, Master and Servant (1877); Martin v. New York, 148 N.Y. 117 (1895); Epstein, “The Defense of Employment at Will,” University of Chicago Law Review 51 (1984): 947; Payne v. Western Railroad, 81 Tenn. 507 (1884); Summers, “Employment at Will in the United States: The Divine Right of Employers,” University of Pennsylvania Journal of Labor and Employment Law 3 (2000): 65; Polenberg, Fighting Faiths; Robin Kelley, Hammer and Hoe; Clayton Act (1914); Railroad Labor Act; NLRB v. Jones and Laughlin Steel Corp, 301 U.S. 1 (1937).

Fifteenth week: April 13

Common reading: Simon, Fabric of Defeat

Supplemental readings: Marsh v. Alabama 326 U.S. 501 (1946); Mosher, “Something Better than Most,” Annals of the Association of American Geographers 85 (1995): 84-107 (available as an ejournal online through Jstor).

History readings: Drobney, “Company Towns and Social Transformation in the North Florida Timber Industry, 1880-1930,” Florida Historical Quarterly 75 (1996): 121-145 (available online through Special Collections, go to this link, you should find the link to the article); McHugh, “Schooling in Post-Bellum Southern Cotton Mill Villages,” Journal of Social History 20 (1986): 149-161 (available as an e-journal, through Academic Search Premier).

Sources cited in the lecture: Pope, “Worker Lawmaking: Sit-Down Strikes and the Shaping of American Industrial Relations, 1935-1958,” Law and History Review 24 (2006): 45; Klare,”Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Conscienciousness, 1937-1941,” Minnesota Law Review 62 (1978): 265; Finkin, “Traditional Labor Law Scholarship and the Crisis of Collective Bargaining,” Maryland Law Review 44 (1985): 731; Pope, “The Thirteenth Amendment versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957,” Columbia Law Review 102 (2002): 1; NLR v. Fansteel Metallurgcal Corp., 306 US 240 (1939);Anthony Lukas, Big Trouble; Klarman, “How Brown Changed Race Relations: The Backlash Thesis,” Journal of American History 81 (1994): 81; MacLean, “The Leo Frank Case Reconsidered: Gender and Sexual Politics in the Making of Reactionary Populism,” Journal of American History 78 (19991): 917

Sixteenth week: April 20

Common reading: Kenneth W. Mack, “Rethinking Civil Rights Lawyering and Politics in the Era Before Brown,” Yale L. J. 115 (2005): 256 ; Joseph Slater, “Homeland Security vs. Worker’s Rights?” University of Pennylvania Journal of Labor and Employment Law 6 (2004): 295 (available online through Lexis and Hein Online)

Supplemental readings: Comments on Mack; Gath and Sterling, “From Legal Realism to Law and Society,” Law and Society Review 32 (1998): 409 (available online through UF library); Goluboff, “‘Let Economic Equality Take Care of Itself’: The NAACP, Labor Litigation, and the Making of Civil Rights in the 1940s,” UCLA Law Review 52 (2005): 1393.

History readings: Ingersoll, “American Legal Realism and Sociological Jurisprudence,” Journal of the History of Behavioral Sciences 17 (1981): 490; Purcell, “American Jurisprudence Between the Wars,” American Historical Review 75 (1969): 424.

Seventeenth week: April 23: no class

Finals week: papers due on or before Friday, May 5 at noon (email submissions are preferred)

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[1] Consider the Symposium: Critical Use of History, published in the May 1997 (vol. 49) Stanford Law Review. For examples of individual articles published in law reviews, see Earl M. Maltz, “Brown and Tee-Hit-Ton,” 29 Amer. Indian L. Rev. 75 (2004/2005) (examining a second case, decided the year after Brown); Michael Klarman, “The Plessy Era,” 1998 S. Ct. Rev. 303 (1998) (looking at the late nineteenth-century’s jurisprudence).

[2] The two major syntheses are Lawrence M. Friedman, The History of American Law (3d ed. 2005); Kermit Hall, The Magic Mirror: Law in American History (1989). For several recent monographs on different aspects of American legal history, see Norman Thompson, Unreasonable Doubt: Circumstantial Evidence and an Ordinary Murder in New Haven (2006); Mary L. Dudziak, Leti Volpp, editors, Legal Boundaries: Law and the Constitution of American Borders (2006); Gordon M. Bakken, Practicing Law in Frontier California (2006); Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2005).

[3] See, e.g. Han Tie, “Meiguo Fa Lu Shi Yanjiu Lingyu de ‘Hesite Geming’,” Shixue Yuekan 8(2003): 92-100 (recommending Chinese historians of law study the works of American legal historian Willard Hurst).