IN THE PAST TWO DECADES, American law schools have strengthened their legal history curricula and faculty. Columbia Law School, which offered legal history long before its peers, is renewing its commitment to this endeavor.
The study of legal history evokes images of wizened scholars thumbing through dusty books and crumbling papers in dark library niches, a specialty of those who prefer the past to the present and future.
But the truth is, legal history is one of the fastest growing disciplines in law schools today. It is seen increasingly as a necessary ingredient for a first-rate legal education - a notion Columbia Law School acknowledged decades ago.
Legal history was part of the Columbia curriculum even before the late 1920s, when Professor Julius Goebel Jr. '23 took over the teaching of Development of Legal Institutions (DLI). The course was reconceived by Professor Goebel, who believed that a broad grounding in the history of law was essential to a well-rounded education - a rare idea at the time.
"Columbia was doing legal history and supporting legal history years before other leading law schools were doing it," according to Morton J. Horwitz, the Charles Warren Professor of American Legal History at Harvard Law School. "When I began teaching 30 years ago, there were only a handful of legal historians on law school faculties. Today there are dozens. Legal history has become a subject the brightest students want to study."
At Columbia, Professor Goebel was followed by Professor Joseph Smith '38 and then Professor Barbara Aronstein Black '55, who joined the faculty in 1984, and held the George Welwood Murray Professorship of Legal History until 2008. Current faculty working in legal history include Professors Eben Moglen, Robert Ferguson, Philip Hamburger, Ariela Dubler, and Christina Duffy Burnett.
"If you're looking for today's talented, promising scholars, they're likely to think of themselves as legal historians," says Professor Black.
PASSING THE BATON
Both Professor Smith and Professor Black were students of Professor Goebel, who taught DLI - a required course for 1Ls - for more than 30 years. The class changed over time. When the faculty modified the first-year curriculum in 1944 to integrate into DLI the historical underpinnings of civil procedure and property law, Professor Goebel revised and produced a seventh edition of his casebook on the subject.
By the time of Professor Black's arrival in the mid-1980s, DLI was no longer a required course. Her approach to teaching differed from Professor Goebel's in that the work was aimed at second- and third-year students, as well as graduate students.
"A student will benefit more from the study of legal history once she has a good sense of one legal culture — namely her own," Professor Black explains.
Another distinction was in the breadth of history covered. "My course tended to come up a little further into American history," Professor Black says. "I had my own ideas about the lessons that should be imparted to law students through legal history."
Before she could implement many of those ideas, Professor Black was named dean which, in her words, "changed my relationship to the institution. [During my tenure], it wasn't possible or appropriate for me to push my own specialty. Ironically, legal history got neglected."
While Professor Black focused on managing the school, "That left one person teaching legal history, and that was me," says Professor Moglen, a specialist in Anglo-American legal history. "The scope of what we could do then was very small. The ability to provide a range of offerings by legal experts in a wide variety of specializations is much greater now."
A RENAISSANCE IN LEGAL HISTORY EDUCATION
The importance of legal history education and its place in law school curricula has waxed and waned over much of the past century.
"That's part of the normal ebb and flow of academia," notes Alan Brinkley, Provost and the Allan Nevins Professor of History.
"The old antiquarian approach thought of legal history as culture making, as turning out cultured lawyers," says Harvard's Professor Horwitz. "Legal history as an intellectual apparatus to understand the law [is a newer concept]."
Also influential in legal history education in the 20th century was the work of J. Willard Hurst of the University of Wisconsin, who focused on law's relationship to social change, and Colonial legal historian George Haskins of the University of Pennsylvania Law School, according to Professor Black. For years, the field had focused on ancient history, with few scholars writing about anything beyond the 18th century. Increasingly, legal history covers the 19th and 20th centuries and the new fields of law that have emerged during the modern era.
The U.S. economy had its own hand in the evolution of legal history, as a serious shortage of jobs in the arts and sciences in the 1960s and '70s drew many liberal arts graduates to law school.
Adds Professor Brinkley, "In a period of new methodology and theory, history got wrung out of many fields, including law, political science, sociology, and even economics."
The 1960s also saw the formation of the American Society for Legal History, which brought together people interested in the field.
"When this small inner circle came in contact with each other, legal history really began to take off," says Professor Black, who served two terms as the group's president.
COLUMBIA SPREADS ITS WINGS
By the early 1990s, Columbia had three faculty members who specialized in legal history. Professor Ferguson, the George Edward Woodberry Professor in Law, Literature, and Criticism, focuses on the relationship of law and legal institutions to American writing. Professor Moglen teaches legal history and also specializes in intellectual property. With the addition of Professors Hamburger, Dubler, and Burnett, Columbia now has a cadre of scholars moving the field forward in many areas.
"We're offering a very rich and palpably diverse program," says Professor Moglen.
Courses range from Professor Moglen’s lectures in American Legal History and English Legal History to Professor Burnett’s seminar on the constitutional history of American empire.
In addition, the Law and History Workshop, convened by Professors Dubler and Burnett, brings scholars from around the country to speak on a variety of topics. Speakers have included Jenny Martínez of Stanford (on nineteenth century antislavery courts); Daniel Kevles of Yale (on the history of patent law); and Rebecca Scott of the University of Michigan (on comparative slave emancipations).
Also, the Law School, together with the Columbia University History Department, offers a joint-degree program with an integrated curriculum leading to a doctorate in history and a J.D.
"The joint-degree program will help graduates move more easily between the two fields and academic worlds," says Professor Brinkley.
"When I first came to Columbia, I wanted to establish close contact with the history department," says Professor Black. "At Yale, I had been liaison between the history department and the law school. I knew everyone in both departments very well. My young colleagues are doing the same thing here."
THE RELEVANCE OF HISTORY TO OTHER LEGAL CURRICULA
In addition to its legal historians, the Law School also is home to faculty who have substantial knowledge in the field and integrate it into their teaching.
"It's an intellectual interest that has a lot of devotees," explains Henry Monaghan, the Harlan Fiske Stone Professor of Constitutional Law. "To understand the current status of doctrine, you have to know what forks in the road were taken to get there. As Oliver Wendell Holmes said, ‘A page of history is worth a volume of logic.'"
Professor Vincent Blasi, who specializes in the history of ideas and free speech, cites as one of his proudest achievements the course he developed at Columbia called Ideas of the First Amendment. In it, he assigns works by John Milton, John Locke, and John Stuart Mill, along with opinions by Learned Hand and Louis Brandeis. He devotes a week of critical study to each of these key thinkers.
"I used to teach a fairly traditional course with a law school casebook. It didn't give students an appreciation for where our ideas about the First Amendment come from," explains Professor Blasi, the Corliss Lamont Professor of Civil Liberties.
Professor Katherine Franke, whose writing focuses on the intersection of critical race and post modern theory, has worked on U.S. Reconstruction as a form of domestic colonialism. She is interested in showing how rights for African-Americans in the immediate post-Civil War period enabled marvelous new forms of freedom for the freed men and women, while at the same time creating new opportunities to discipline and punish them. She has taught a legal history seminar, and relies heavily on the history of civil rights movements in her Federal Civil Rights class.
In an age where the eyes of the masses seem glued to the future, the study of history has a special relevance.
"We're in an age where everybody is increasingly skeptical," says Professor Blasi. "Studying how ideas have mattered through time is an antidote to cynicism."
And it matters a great deal when educating women and men to be lawyers.
"One of the great challenges in teaching law is how to teach good judgment," he adds. "A historical perspective tends to make you more cautious in your claims about the present."
For Professor Black, legal history is a form of comparative law, "Only you're comparing across time, not across the ocean," she says.