Law and American Political Development, 1877-1938

For some time now, the study of institutions has been a low priority among leading historians of American law. When the field professionalized in the late 1960s, the study of legal institutions had long been the near-exclusive preoccupation of the lawyers and legal academics who dominated the field. ¹ Some of the work in this “law school tradition” aimed at revealing the historical contingency of legal institutions and at suggesting lost alternatives to our own, goals many professionally trained historians have for their work. ² Too often, however, the rare historian who dared study the law confronted lawyers who thought of historical work as the production of “something a future court may need or use” rather than as a contribution to the larger historical discipline. ³

By the mid-1970s, however, a cohort of professional historians had established a permanent presence in the field by studying legal institutions in the context of political behavior and political structures. ⁴ Over the next decade a new generation of professional historians introduced “the new-style social history” to the field. Their writings started to redirect the field from courts, judges, and lawyers to the social context in which they functioned. ⁵ As social historians in the history departments turned to the study of mentalities, popular beliefs, customs, and other intellectual constructs, legal historians embarked upon a complementary investigation of legal “texts,” until at last a seamless collaboration was effected in time for the bicentennial of the U.S. Constitution. ⁶ By 1990 studies of the “law as an arena of struggle” between an official and subaltern cultures had become so good and so salient that they became a powerful beacon for junior scholars in search of a safe disciplinary harbor as they wrote their dissertations. ⁷

Legal history as written by law professors in law schools changed as well. An alternative to the law school tradition had already formed around James Willard Hurst (1910–1997), a professor at the University of Wisconsin Law School, whose published lectures and monographs in the 1950s and 1960s showed how legal history could draw from and contribute to sociological theory. Several of Hurst’s colleagues and students continued the “Wisconsin School” into the 1970s and 1980s, including Lawrence Friedman, whose History of American Law (1973) was widely adopted in courses taught by historians and lawyers alike.

As long as most leading legal academics conceived of the law as an “autonomous discipline,” the law school tradition kept the professional historians and the Wisconsin School at bay. ⁸ A more immediate threat arose in the 1970s in a group of brilliant student radicals who ransacked the armory of continental social theory for means of dissent. Several members of the “Critical Legal Studies” (CLS) movement, including Morton Horwitz, Duncan Kennedy, Mark Tushnet, and Robert W. Gordon, turned to history to debunk the putative universals of mainstream legal scholarship. Gordon, for example, found “a perpetual threat to the aims of our legal scholarship as conventionally practiced” in “the recognition of the historical and cultural contingency of law.” ⁹ From the first, the pluralist and functionalist assumptions of the Wisconsin School made the CLS historians reluctant to embrace Hurst as an ally, although their respect for his intellectual ambition tempered their criticism of his work. ¹⁰

After leading CLS scholars embraced a postmodern critique of social theory—including the implicit social theory of a historical narrative—critical legal historians drew apart from the Wisconsin school but closer to the new cultural historians of law, many of whom were also investigating “structures of legal thought,” legal discourses, and legal narratives. ¹¹ In the 1990s, thanks in part to this convergence, gender has emerged as a favorite historical construct, ¹² the historical contingency of common-sense notions of causation has been demonstrated, ¹³ and stern rebukes have been visited upon unconverted functionalists in the Hurstian tradition. ¹⁴

Amidst all this study of law as a cultural or intellectual text, the history of legal institutions has been largely overlooked, when it was not dismissed as a backwater for scholars who could not bring themselves to acknowledge the politics of legal...