The unrecognized importance of legal historians

Recalling my experience as Chair of the Board of Directors of the Historical Society of the United States Courts in the Eighth Circuit, and otherwise, here are a few quick thoughts about the importance of legal historians:

  • With the exception of Judge Buzz Arnold, there are few if any legitimate legal historians in the federal judiciary.  That is certainly true on the Supreme Court.  Since originalism is all the rage, it is curious that the Supreme Court does not rely more upon true legal history scholars.  This failure is nowhere more evident than in the Court’s current Sixth Amendment and sentencing jurisprudence.  For example, the assertion that juries not judges were uniformly responsible for sentencing at the time of the Founding is flatly wrong as a historical matter.  See Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 Georgetown Law Review, 183, 196 n. 90 (2005) (stating that “in the late eighteenth century, . . . judges gained wide discretion to sentence defendants within broad ranges of years” and citing, as an example,  An Act for the Punishment of Certain Crimes Against the United States, ch. 9, Stat. 112, 112-9 (1790) (creating thirteen crimes with sentencing ranges from up to one year to up to seven years’ imprisonment and one punishable by unlimited imprisonment and fines at the judge’s discretion, as well as six capital crimes)).  It may not be a stretch to say that the whole of the Court’s sentencing jurisprudence as it regards fact-finding by judges is built upon a demonstrably incorrect reading of legal history.  In short, 13 years (and  counting) of chaos in the federal criminal justice system could have been avoided had the Court looked to real legal historians for help.
  • Because the Justices are not real legal historians, they should not base their decisions on disputed or uncertain legal history unless they have input from true legal historians. The Justices should act affirmatively and regularly call upon recognized legal historians to submit amicus briefs when the Justices have reason to believe that the correct reading of disputed or unclear legal history may be crucial to the proper resolution of a case.  For example, the American Society for Legal History (ASLH) might be induced to create a standing amicus committee that would provide the Court with an unbiased exposition of legal history if called upon by the Supreme Court to do so.
  • Opinion-making news media such as the New York Times ought to solicit the input of legal historians on a regular basis when covering the Supreme Court.  I have all that I will ever need from Linda Greenhouse.  It would be far more enlightening to have reputable legal historians place the Court and its decisions in context.  For example, there is much gnashing of teeth about the current Court and its alleged pro-business stance.  It would be interesting then to have a real legal historian compare the Lochner era Court to this one.


6 responses

  1. Great post.

    I am fascinated by the Lochner era. I recently read Howard Gillman’s “The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence.”
    Gillman presents a good case that the court’s decisions may be better viewed in light of its aversion to factions–giving deference to congress but opposing “class legislation.” Interesting research and respectable position. Also worth noting is G. Edward White’s “Constitution and the New Deal.” Good stuff. For some reason the Lochner era is one of the periods I could read countless books about–regardless of their bias or positioning. In fact, I enjoy the revisionist arguments and debates. I find Charles Evan Hughes interesting but I’d love a solid biography on Justice Sutherland.

    I’ve always enjoyed going back and reading Holmes’ “The Common Law.” There is still rich language to be read in his lectures. The same can be said for Karl Llewellyn’s Bramble Bush lectures.

    For readable legal history, I like “A March of Liberty: A Constitutional History of the U.S.” – Volumes I and II. The pages are saturated in historical nuances and case law, but understandable and a worthwhile macro-history. I understand there are arguments to be made for and against the author’s apparent biases, but they do not ruin the works (for me).

    Also, I read Linda Greenhouse’s recent op-ed in the NY Times. I did not come away with anything revelatory. The title of the piece of was very misleading and I was disappointed that there was no actual attempt to couch the court’s impact on the overall jurisprudence of SCOTUS.

    Thanks again.


  2. Matt,

    Thanks for the great reading list. I appreciate it.

    And with regard to Ms. Greenhouse, her recent piece about the Voting Rights Act case, the DOMA case and the Texas affirmative action case is a poorly written and confusing polemic. I can write my own incoherent rants, but I might be willing to pay the NYT’s fees to read what a real legal historian thought.

    All the best.


  3. Dear Judge Kopf: Once again we find ourselves in agreement. This could be bad for your reputation. Of course, the Court has an excellent excuse, which is that legal history is hard to do. At least well, that is. I have engaged in two rather lengthy efforts myself, which were actually quite well received by legal historians, though mostly ignored in the upper rungs of the judiciary, perhaps because of their inconvenient conclusions.

    At embarrassing length (91 pages and 600 footnotes) as a young professor in 1990, I proved to my satisfaction (and really, what else counts?) that the whole idea that the due process clause limits the territorial reach of courts was based on a giant mistake, which was the notion that Pennoyer v. Neff said so. Actually in all likelihood all Pennoyer said was that due process gives a judgment debtor the right to challenge the judgment against him, either directly or collaterally. In fact, it really would be quite remarkable if Pennoyer held anything else seeing as the judgment in question was entered in 1866, but the 14th Amendment wasn’t ratified until the hot summer of 1868 (with federal troops encircling the Mississippi legislative chambers just in case anyone on the inside were inclined to do something foolish like to vote “no”). In fact, it wasn’t until World War I that the Supreme Court actually started to expressly invalidate assertions of jurisdiction. Of course, the problem with that is that it would topple the whole “minimum contacts” house of cards and deprive everyone the fun of the Court’s Delphic musings about “sovereignty” and “interstate federalism” (whatever that is) and deciding which 2, 3 or 4 vote opinion to follow. Meanwhile, some poor guy in New Jersey who got his fingers cut off by a machine at his New Jersey place of employment gets (in 2011) the remarkable news that his only redress against the manufacturer of the machine would be to sue in a court in the north of England, where the statute of limitations had surely already run. But why let some triviality like that bother us?

    In not quite such a long article (this one weighing in at a trim 60 pages), I argued that the Court’s famous Erie Railroad decision (in which the Court actually tried some amateur history) was bunk as a matter of history. The Court’s assertion Congress had meant all along for diversity courts to apply state law was based on the a mistaken belief that the printing press had not been invented by 1789. The Court based its guess work on what were likely the sponsor of the First Judiciary Act’s handwritten notes, rather than those nice, neat 350 printed copies of the bill. Moreover, some poor soul of a research assistant of mine (for which he was justly rewarded with a perfunctory “thanks” in the sword note) managed to find newspaper articles from that era which made clear that the whole rationale for diversity jurisdiction was to avoid wacky state laws in the South that were making it impossible to collect debts, and imperiling our 1783 peace treaty with the British, in which we promised to honor British debts. The idea that the Federalist proponents of diversity jurisdiction wanted state law to apply would make about as much sense as suggesting that we find all the Republican candidates campaigning on a platform of strengthening the Affordable Care Act, or lining up all the rowdy Democrats who’d like to see the corporate income tax abolished. But where would the fun be in toppling the Erie doctrine? What would replace it in the second semester of Civil Procedure? Something useless like learning the e-discovery rules or mastering appellate jurisdiction?

    Of course, the Court did actually rely on the brief of legal historians in the Guantanamo habeas corpus cases, though the opinions devolved into a shouting match. So we have that going for us. Which is nice. Your faithful and overwrought correspondent, PJB.

  4. Dear Dean Borchers,

    Three things.

    Point One: I agree. We can’t be seen together.

    Point Two: On the subject of legal history, and as I suspect you understand, I don’t think legal historians will necessarily resolve cases for the Justices. Real historians are simply better at providing a thorough historical background than 12 year old kids just out of Yale, no matter how brilliant those kids might happen to be.

    Point Three: As for writing lengthy stuff that nobody gives a shit about, I feel your pain. My last partial-birth abortion opinion went something like 400 pages exclusive of the appendices. Given Justice Kennedy’s wave of the hand, I would have been better off had I followed Posner’s judicial effort aversion thesis and simply written: “See the earlier partial-birth abortion decision. Same. Same. Injunction granted.” But, oh hell no, I had to run off at the mouth. What a waste of perfectly good paper.

    All the best.


  5. Posner is a smart guy, but sometimes I get the feeling that his opinions are written in about 20 minutes. Perhaps this is a good idea, as you point out. Quite right on legal history not being dispositive; I just object to the pretense. On the Yale prodigies, I am reminded of the bumper sticker that read: “Hire teenagers while they still know everything.”

  6. The scary thing is that sometimes Posner can write really good opinions in 20 minutes, even with the help of teenagers.

    All the best.


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