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Making Legal History

Essays in Honor of William E. Nelson

Daniel Hulsebosch

Publication Year: 2013

One of the academy’s leading legal historians, William E. Nelson is the Edward Weinfeld Professor of Law at New York University School of Law. For more than four decades, Nelson has produced some of the most original and creative work on American constitutional and legal history. His prize-winning books have blazed new trails for historians with their substantive arguments and the scope and depth of Nelson’s exploration of primary sources. Nelson was the first legal scholar to use early American county court records as sources of legal and social history, and his work (on legal history in England, colonial America, and New York) has been a model for generations of legal historians. 
This book collects ten essays exemplifying and explaining the process of identifying and interpreting archival sources—the foundation of an array of methods of writing American legal history. The essays presented here span the full range of American history from the colonial era to the 1980s.Each historian has either identified a body of sources not previously explored or devised a new method of interrogating sources already known.The result is a kaleidoscopic examination of the historian’s task and of the research methods and interpretative strategies that characterize the rich, complex field of American constitutional and legal history.
Daniel J. Hulsebosch is Charles Seligson Professor of Law and Professor of History at New York University. He is the author of Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830.
R. B. Bernstein is Distinguished Adjunct Professor of Law at New York Law School and Adjunct Professor of Political Science in the Skadden, Arps Honors Program in Legal Studies at the City College of New York.He has written, edited, or co-edited over 20 books in the fields of American constitutional and legal history, including the prize-winning The Founding Fathers Reconsidered and Thomas Jefferson.

Published by: NYU Press

Title Page, Copyright

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pp. 2-5


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pp. v-vi

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Foreword: Making Legal History

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pp. vii-x

It is a pleasure to offer a foreword to this volume of essays in honor of Bill Nelson—one of the most generous scholars working in the field of legal history. I’ve known Bill from the beginning, when we were both Charles Warren Fellows at Harvard Law School some forty years ago. At that time we were researching our first books. Every day Bill would...

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Introduction: Making Legal Historians

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pp. 1-10

The subjects of the essays included in Making Legal History range from local government in seventeenth-century New England to executive power in the Reagan administration and illustrate the variety of subjects and methods now being pursued by historians of American law. Some cast new light on perennial questions; others move in entirely...

I. Civil Wars and Legal Rights

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1. The Landscape of Faith: Religious Property and Confiscation in the Early Republic

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pp. 13-48

In 1805, Hungars Church was looted by local residents. The small structure, situated on the eastern shore of Virginia, was a holdover from pre-Revolutionary days. The parish included the church and valuable holdings, including a 1,600-acre farm in one of the most fertile areas of Northampton County, complete with houses and farm buildings...

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2. “It cant be cald stealin’”: Customary Law among Civil War Soldiers

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pp. 49-74

Scholars of the history of the law in the nineteenth-century United States have argued that a “legal culture,” a remembered and applied customary law, exists embedded in the general culture and society.1 To unearth and recover this customary law, legal scholars must immerse themselves in the rich archival resources. In his own work and by example...

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3. Debating the Fourteenth Amendment: The Promise and Perils of Using Congressional Sources

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pp. 75-88

William E. Nelson’s groundbreaking book The Fourteenth Amendment1 is important on two main fronts. First, the book’s value lies in the new historical findings that Nelson uncovers after exhaustive archival research into the politics and the antebellum precedents for the Fourteenth Amendment. Second, the book remains innovative in its use of...

II. Law and Social Regulation

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4. Was the Warning of Strangers Unique to Colonial New England?

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pp. 91-115

Our story begins with the wintry day in 1765 on which an obscure Bostonian, Robert Love, entered the ranks of minor officialdom. The setting was the Selectmen’s Chamber on the second floor of Faneuil Hall. At the age of sixty-five, Love was sworn in to a part-time position that had no name. He would be remunerated for the activity that New...

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5. Ambiguities of Free Labor Revisited: The Convict Labor Question in Progressive-Era New York

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pp. 116-139

Professor William E. Nelson was among the first scholars to identify the connections between antebellum free-labor ideology and late-nineteenth- and early-twentieth-century substantive due process. The article in which he did so was published in the Harvard Law Review in January 1974, back when Nelson was still a young Assistant Professor...

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6. The Long, Broad, and Deep Civil Rights Movement: The Lessons of a Master Scholar and Teacher

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pp. 140-161

How would the legal history of the civil rights movement change if the doctrine of the U.S. Supreme Court and the lawyering of Thurgood Marshall did not dominate analysis? What if the work of local lawyers and activists took center stage? In a recent work, I set out to answer these questions and provide a richer account of the civil rights...

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7. Counting as a Tool of Legal History

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pp. 162-178

In the 1960s and 1970s, historical writing in the United States passed through a golden age of quantification. Two developments underlay this trend: advances in computer technology, which enabled scholars to analyze previously unmanageable amounts of data, and the rise of social history, which prompted scholars to seek new ways to...

III. Courts, Judges, and Litigators

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8. A Mania for Accumulation: The Plea of Moral Insanity in Gilded Age Will Contests

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pp. 181-234

Rising to address the New York Surrogate’s Court on behalf of the disappointed heirs of “Commodore” Cornelius J. Vanderbilt on November 12, 1877, attorney Scott Lord acknowledged the formidable task that lay before him, mindful that his audience included many luminaries of the bench and bar as well as members of the press and the general public: “To...

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9. The Political Economy of Pain

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pp. 235-263

One of the great successes of William E. Nelson’s massive The Legalist Reformation: Law, Politics, and Ideology in New York, 1920–1980 is its expert doctrinal unpacking of the dense case law in the New York law of personal injury.1 As Nelson notes, he starts with a couple of assumptions. The first is that New York was the leading jurisdiction in the recreation...

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10. An Unexpected Antagonist: Courts, Deregulation, and Conservative Judicial Ideology, 1980–94

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pp. 264-292

Generalizing about the work of a historian as prolific as William E. Nelson is a daunting and perhaps futile task. However, Nelson’s works have certain methodological and substantive characteristics in common. Methodologically, Nelson’s scholarship demonstrates a deep commitment to the importance of detail. In examining the relationship among law, ideology, ...

Bibliography of the Scholarship of William E. Nelson, 1963–2012

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pp. 293-298


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pp. 299-300

About the Contributors

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pp. 301-302


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pp. 303-316

E-ISBN-13: 9780814708286
E-ISBN-10: 0814725260
Print-ISBN-13: 9780814725269
Print-ISBN-10: 0814725260

Page Count: 336
Publication Year: 2013