Making Legal History

Making Legal History: Essays in Honor of William E. Nelson

Daniel J. Hulsebosch
R. B. Bernstein
Copyright Date: 2013
Published by: NYU Press
Pages: 325
https://www.jstor.org/stable/j.ctt9qfkn5
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  • Book Info
    Making Legal History
    Book Description:

    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. Hulseboschis Charles Seligson Professor of Law and Professor of History at New York University. He is the author ofConstituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830.R. B. Bernsteinis 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-winningThe Founding Fathers Reconsidered and Thomas Jefferson.

    eISBN: 978-0-8147-0828-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. FOREWORD: Making Legal History
    (pp. vii-x)
    MORTON J. HORWITZ

    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 travel to one or another archive. “I was in the Dedham courthouse today,” he would say, and the next day he was in another courthouse. Each day I would wait for him to come back...

  4. Introduction: Making Legal Historians
    (pp. 1-10)

    The subjects of the essays included inMaking Legal Historyrange 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 new directions. About half focus on private law, the other half on public law. All rest on original research, and each could stand alone as an original contribution to the field. Taken together, they offer a unique and illuminating cross-section of the questions, sources, and narratives used by...

  5. I. CIVIL WARS AND LEGAL RIGHTS

    • 1 The Landscape of Faith: Religious Property and Confiscation in the Early Republic
      (pp. 13-48)
      SARAH BARRINGER GORDON

      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, and a dozen “servants” (undoubtedly, slaves) who were attached to the church as part of the glebe dedicated to the maintenance of the minister, the church building, and any associated graveyards and parsonages.¹ The looting was representative of a new era in religious life in the post-Revolutionary...

    • 2 “It cant be cald stealin’”: Customary Law among Civil War Soldiers
      (pp. 49-74)
      THOMAS C. MACKEY

      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 through his teaching and mentoring of students and scholars, especially as founder of the New York University Law School’s Legal History Colloquium, William E. Nelson has issued a fundamental injunction to “go to the sources, go to the sources, go to the sources” that...

    • 3 Debating the Fourteenth Amendment: The Promise and Perils of Using Congressional Sources
      (pp. 75-88)
      DANIEL W. HAMILTON

      William E. Nelson’s groundbreaking bookThe 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 historical evidence, particularly the congressional debates of the Thirty-eighth, Thirty-ninth, and Fortieth Congresses. Of course, Nelson is one of many historians who have used these debates. His innovation was not that he brought them back but rather that he reframed their use, helping to change the questions that we...

  6. II. LAW AND SOCIAL REGULATION

    • 4 Was the Warning of Strangers Unique to Colonial New England?
      (pp. 91-115)
      CORNELIA H. DAYTON and SHARON V. SALINGER

      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 Englanders called warning strangers (thus, we refer below to Love and other “warners”). The town clerk read aloud Love’s formal orders: “You [are] to make enquiry after all Strangers, and other Persons who shall hereafter come into the Town...

    • 5 Ambiguities of Free Labor Revisited: The Convict Labor Question in Progressive-Era New York
      (pp. 116-139)
      BARRY CUSHMAN

      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 theHarvard Law Reviewin January 1974, back when Nelson was still a young Assistant Professor of Law at the University of Pennsylvania. Professor Nelson showed that the antebellum period’s “jurisprudence of antislavery” was characterized by recognition of rights of property and contract, and of the rights to free trade and to immunity from class legislation, as among “the core rights to which all men were...

    • 6 The Long, Broad, and Deep Civil Rights Movement: The Lessons of a Master Scholar and Teacher
      (pp. 140-161)
      TOMIKO BROWN-NAGIN

      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 movement.

      This account proposed to add depth and breadth to the “long civil rights movement,” a metaphor that rooted the struggle for racial justice in the labor movement’s demands for economic justice in the 1930s and stretched it past...

    • 7 Counting as a Tool of Legal History
      (pp. 162-178)
      JOHN WERTHEIMER

      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 study non-elites. Because such groups as workers, slaves, and the poor often left frustratingly scant paper trails, scholars who tried to study these groups using traditional written sources often came up empty. Numerically minded historians realized, however, that even the most marginalized people—even those who, considered individually, left...

  7. III. COURTS, JUDGES, AND LITIGATORS

    • 8 A Mania for Accumulation: The Plea of Moral Insanity in Gilded Age Will Contests
      (pp. 181-234)
      SUSANNA L. BLUMENTHAL

      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 say that a man who had the capacity to accumulate $100,000,000, and who naturally possessed a vigorous will, had not the capacity to dispose of his estate, or was subject to undue influence, so that the disposition of his property was controlled...

    • 9 The Political Economy of Pain
      (pp. 235-263)
      JOHN FABIAN WITT

      One of the great successes of William E. Nelson’s massiveThe Legalist Reformation: Law, Politics, and Ideology in New York, 1920–1980is 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 of the common law. The second is “the common lawyer’s faith that analysis of judicial opinions is key to understanding law.” Considering that he perused 620 volumes of theNew York Supplement, 400 volumes of theFederal...

    • 10 An Unexpected Antagonist: Courts, Deregulation, and Conservative Judicial Ideology, 1980–94
      (pp. 264-292)
      REUEL SCHILLER

      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, and society, Nelson’s work repeatedly emphasizes the importance of looking not just at constitutions, “blockbuster” cases, and “red-letter” statutes (though, to be sure, he has written compellingly about each). Instead, he has demonstrated how much we can learn by studying the entire fabric of a legal system—the warp and...

  8. BIBLIOGRAPHY OF THE SCHOLARSHIP OF WILLIAM E. NELSON, 1963–2012
    (pp. 293-298)
  9. ACKNOWLEDGMENTS
    (pp. 299-300)
  10. About the Contributors
    (pp. 301-302)
  11. INDEX
    (pp. 303-316)