In Spring 2014, my second year as assistant professor of history at University of Nebraska, I volunteered to teach HIST 340: American Legal History with a fool’s confidence. The class had not been taught at our campus in nearly a decade, but I looked forward to formalizing my approach to legal history, a method increasingly more important to my scholarly development, but one I had been inconsistently trained in. I also hoped the class would attract more pre-law students to our history major since, at that time, there were more pre-law students with an undeclared major than there were in history. With such grand hopes, I built a syllabus around The Magic Mirror: Law in American History, adding Linda Kerber’s No Constitutional Right to Be Ladies and a few other readings on the legal history of slavery and debates over free labor, a bit of federal Indian law, along with some classic introductions to legal history methodologies. Add some quizzes, discussion exercises, a case brief, and a research paper, and I was ready to go.
Early in the semester, something felt off. Quiz scores were terrible and discussion questions went unanswered. How could students not have been intrigued by Kathleen Brown’s discussion of colonial Virginians’ legal investigations of cross-dressing? Why weren’t they linking Kerber’s discussion of women’s jury service to Hall and Karsten’s coverage of the standardization of legal practice and expanding interpretations of the Bill of Rights? By mid-semester, students were in open rebellion. They refused to discuss the readings in class. They complained that a workshop on writing case briefs wasted their time when they could just find briefs online. They reported no progress on their research projects during in-class workshops. Feeling very green, I had no idea what to do. I hunkered down, trudged through the semester, and awaited the evaluations.
To no one’s surprise, the evaluations were horrible. Admittedly, some students found value in the class (bless their dear hearts), but others used curse words. It hurt, you guys. Thankfully, my colleagues offered kind support and my institution’s intensive teaching portfolio program helped me to assess the course I had built, filter student evaluations, and revise strategically.[1]
Between the swears, two clear messages emerged from the evaluations. First, I had not given students an opportunity to comprehend for themselves what legal history is, so they imagined that I had presented an extremist view when I asked them to think about gender or people of color. Second, students had not gained legal-historical analytical or research skills through the readings and assignments I required. The kindest expression of the former concern came in a student’s complaint that the readings were “like a fart in a skillet,” a Midwestern phrase new to me then and still not fully clear to me now, but which I took to mean that the readings and themes shared no obvious logic and in fact were sometimes downright obnoxious. The harshest expression of both concerns came in hostile rejections of minorities’ and women’s legal history as central components of American legal history, although some students also shared dissatisfaction with our coverage of topics germane to white men’s legal history. These reactions helped me to realize that for my students, the law had remained a universal and symbolic pillar of justice that decades of legal historical scholarship had done little to contextualize or complicate. Critical legal history, now ordinary to most legal scholars, shocked my students’ sensibilities.
Thoroughly disappointed, but nonetheless committed to the work of improving undergraduate legal history instruction, I rolled up my sleeves and prepared for another semester. I dug in deep, reading the 2012 Law & Social Inquiry “Symposium on Gordon’s ‘Critical Legal Histories,’” over and over, convinced that I could bring the critical turn in legal history, so clearly iterated in legal and historical conferences, journals, and prize-winning publications, into the undergraduate classroom.[2] Four years into that effort now, a handful of strategies seem to have dramatically improved my students’ engagement with legal history.
My first step was to crosslist the course with ethnic studies and revise its title to “Rights & Wrongs in American Legal History.” Such moves signal to students the centrality of race in our discussions of citizenship and the long history of denied and expanded rights in the United States. Enrollment has grown since crosslisting the course, but the majority of students continue to enroll in the history section. So far, none have complained in class or in evaluations about the consistent integration of race and gender in legal history.
Perhaps this is because students generate their own definitions of legal history in the first week of the semester. After reviewing recent volumes of the American Historical Review, American Journal of Legal History, the Journal of American History, and Law & Society Review, students search JSTOR and HeinOnline, linking themes noted in the syllabus to current scholarship (and learning firsthand the relationship between print and online journal publication). In week two, we discuss Gordon’s and Friedman’s articles defining critical legal and law and society schools of thought as well as introductions to critical race theory from Kimberlé Crenshaw, Richard Delgado, and Jean Stefancic. Giving students the opportunity to review the legal history field and determine on their own that historians make race, gender, and class central concerns with a critical view of the law as a socially constructed and historically contingent mechanism has helped to foster their own healthy skepticism toward the law as a universal and objective structure. Since introducing this series of exercises into the first two weeks of class, evaluations have both applauded and complained about the level of difficulty in the readings, but none have characterized them as polemical or compared them to flatulence.
Our profession seems equally split between those who are evangelical or cynical about textbooks, and I am the latter. No longer required to gaze into The Magic Mirror, students instead read a course packet, and the last three weeks of the semester feature legal histories in higher education and the historical roots of trending legal debates. Highlighting legal history on college campuses through topics like affirmative action, campus activism, DACA (Deferred Action for Childhood Arrivals), free speech debates and confrontations, Title IX, and travel bans affecting campus communities has proven tremendously rewarding. It doesn’t hurt that my own campus has made recent contributions to such concerns.[3] Rather than hiding the political undercurrents of critical and structuralist views of the law, we illuminate them, noting that our ever-accruing personal experiences and viewpoints will shape our individual critiques of the law throughout the course of our lifetimes. Some students will cling to a sincere belief in the sanctity of the black robe, expecting the law to correct itself wherever inequity or contradiction appear. Others will insist on unveiling the flawed humanity—and history—behind the black robe, pushing for legal shifts in response to diverse constituents and critics.
Finally, to impart upon students the rich composition of our legal history archive—the beautifully messy stuff that attracts all of us to the past—we make use of the remarkable online collections in HathiTrust, HeinOnline, LexisNexis, and Making of Modern Law through research workshops throughout the semester. Students link assigned readings to texts that are the foundation of legal historical analysis, reading historical statutes and stump speeches, political tracts and personal testimony, as well as judicial opinions and congressional reports. Through such evidence, students observe firsthand the varied and often contradictory constructions of right and wrong, law and order, self-evident and sometimes self-serving iterations of the law, and its machinations. Evaluations demonstrate students’ appreciation for this opportunity to sift through the minutiae of our legal archive and their work demonstrates much finer articulations of historical analysis and interrogations of the law as a result.
In short, but probably not short enough, staying the course to embed the critical legal tenets that Gordon espoused and many us have demonstrated in our scholarship within the undergraduate legal history curriculum has paid off. In the close of my fourth year teaching legal history at the undergraduate and graduate level, I am confident my students can navigate the treacherous terrain of our current legal climate. At the very least, my evaluations are no longer vulgar. If my too many words on the subject haven’t convinced you, perhaps their memes can speak for themselves.
A student submitted this meme as their assessment of the law and society movement after reading Friedman and Gordon’s essays in our Fall 2017 legal history class. The same student prepared an excellent research portfolio examining anti-abortionists’ rhetorical strategies from Roe v Wade to the Carhart cases decided in 2009. Student’s work used with permission.
Katrina Jagodinsky is associate professor of History at University of Nebraska Lincoln and author of the prize-winning book Legal Codes & Talking Trees: Indigenous Women’s Sovereignty in the Sonoran and Puget Sound Borderlands, 1854-1946 (New Haven: Yale University Press, 2016). She has an anthology of legal histories of the North American West co-edited with Pablo Mitchell that is due out from University Press of Kansas later this year, and she is working on a comparative study of nineteenth-century women’s habeas corpus petitions.
[1] Readers can learn more about this program and review my syllabi through my teaching portfolio: http://digitalcommons.unl.edu/prtunl/16/
[2] “Symposium on Gordon’s ‘Critical Legal Histories,’” Law & Social Inquiry, vol. 37, no. 1 (Winter 2012); 147-215. “Teaching Legal History in U.S. Law Schools: A Symposium,” American Journal of Legal History, vol. 53, no. 4 (October 2013), 363-511; and “Ferguson and Its Impact on Legal Education Symposium,” Journal of Legal Education, vol. 65, no. 2 (November 2015), 261-413, proved useful and motivating, but both concentrate on law school curricula specifically, which is less helpful for those of us teaching in History at the undergraduate level.
[3] The Chronicle of Higher Education has covered the free speech issues emerging from an event taking place on UNL’s campus in August, 2017: Eric Kelderman, “Quarrel at a Flagship Ignites a Battle With State Legislators,” The Chronicle of Higher Education (November 30, 2017).
