Ryan Poe
Law & Society
Reading List
Adviser: Jedediah Purdy
This field is a broad survey of the methodologies, historiography, and history of law and its
relation to society. It focuses primarily on Anglo-American law, but also on historical continuity,
discontinuity, and contingency. Property law is my area of focus in order to better understand
key aspects of my dissertation topic.
Textbooks
Friedman, Lawrence M. A History of American law. New York: Simon & Schuster, 2005.
Hall, Kermit L. American Legal History: Cases and Material. Edited by Paul Finkelman and
William M. Wiecek. New York: Oxford University Press, 1996.
Hall, Kermit L. The Magic Mirror: Law in American History. Second edition. Edited by Peter
Karsten. New York: Oxford University Press, 2009.
Law & Society
Legal Historiography & Methodology
This section surveys the broad terrain of methodological approaches to legal history employed
by historians. This first list is of historiographical articles I am or plan to draw from in the
construction of this list.
Edwards, Laura F. "The History in “Critical Legal Histories”" Law & Social Inquiry 37, no. 1
(2012): 187-199.
Fisher, William W. "Texts and Contexts: The Application to American Legal History of the
Methodologies of Intellectual History." Stanford Law Review 49, no. 5 (1997): pp. 1065-1110.
Fisk, Catherine L. and Gordon, Robert W. “Forward: 'Law as . . .': Theory and Method in Legal
History.” UCI Law Review 1.3 (2011): 519-541.
Friedman, Lawrence M. "The State of American Legal History." The History Teacher 17
(November, 1983): 103-119.
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Law & Society Reading List
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Gordon, Robert W. "Critical Legal Histories." Stanford Law Review 36, no. 1/2 (1984): 57-125.
Hall, Kermit L. "The 'Magic Mirror' and the Promise of Western Legal History at the
Bicentennial of the Constitution." The Western Historical Quarterly 18.4 (October, 1987): 429435.
Hartog, Hendrik. "Introduction to Symposium on “Critical Legal Histories”" Law & Social
Inquiry 37, no. 1 (2012): 147-154.
Tanenhaus, David S. "Legal History Dialogues." Law and History Review 27, no. 3 (2009): p.
627.
Tomlins, Christopher. "After Critical Legal History." Annual Review of Law and Social Science
8, no. 1 (2012).
Doctrinal Legal History
Legal historians in the late-nineteenth and early-twentieth centuries. They were typically
associated with doctrinalism and formalism. This brand was an import from England, centering
on common law and focusing on internal debates, legal materials, doctrines, and rules. It largely
treated law as autonomous from society. Also known as lawyer's legal history.
Wash, William F. A History of Anglo-American Law. Indianapolis: Bobbs-Merrill, 1932.
Functionalism: The Wisconsin School
Initiated by J. Willard Hurst and Lawrence Friedman in the 1950s. They explored law in living
relation with a society and its values and processes. They are typically described as externalist
functionalists, arguing that there is a causal relationship between law and society (they are
separate realms, but directly affected each other).
Friedman, Lawrence M. A History of American Law. New York: Simon & Schuster, 1975.
Hurst, James Willard. The Growth of American Law: The Lawmakers. Boston: Little, Brown,
1950.
Hurst, James Willard. Law and Economic Growth: The Legal History of the Lumber Industry in
Wisconsin, 1836-1915. Cambridge: Belknap Press of Harvard University Press, 1964.
Scheiber, Harry N. Ohio Canal Era: A Case Study of Government and the Economy, 1820-1861.
Athens, OH: Ohio University Press, 1968.
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Functionalism: Marxist Legal History
Orthodox Marxists have treated law as a means of repression of the proletariat by the elite. They
are purely functionalists. For socialist humanists, (the New Left), such as E.P. Thompson, law
and its effects on society can only be understood when discussed in terms of human experience.
They generally find that law serves the ruling classes, but is often relatively autonomous in doing
so—that is, the ruling class may not have absolute control over law and the legal structure.
Finally, the neo-Marxist legal historians are even less functionalist in that they believe that the
class structure is somewhat stable compared to the legal regime which defines it. Law, for them,
creates class.
Brenner, Robert. "Agrarian Class Structure and Economic Development in Pre-Industrial
Europe." Past & Present 70 (1976): 30-75.
Cohen, G. A. Karl Marx's Theory of History: A Defence. Princeton: Princeton University Press,
2001.
Hay, Douglas and Linebaugh, Peter, eds. Albion's Fatal Tree: Crime and Society in EighteenthCentury England. New York: Pantheon Books, 1975.
Horwitz, Morton J. The Transformation of American Law, 1780-1860. Cambridge: Harvard
University Press, 1977.
Horwitz, Morton J. "The Rule of Law: An Unqualified Human Good?" The Yale Law Journal 86
(January,1977): 561-566.
Thompson, E.P. Whigs and Hunters: The Origin of the Black Act. New York: Pantheon Books,
1975.
Evolutionary Functionalism
Economic legal history focuses on juridical behavior in search of sweeping trends, identifying
those trends as legal and economic efficiencies that naturally arise through history's testbed.
They sample judicial opinion to find patterns of survival of precedent and rules, finding that
common law develops largely independently from individual judges, but along an evolutionary
pathway favoring economic efficiency. In this way, they are functionalists (law functions to
maximize wealth and economic efficiency), but downplay the extent of individual agency in
crafting the legal system.
Clark, Robert C. "The Four Stages of Capitalism: Reflections on Investment Management
Treatises." Harvard Law Review 94, no. 3 (1981): 561-582.
Posner, Richard A. "A Reply to Some Recent Criticisms of the Efficiency Theory of the
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Common Law." Hofstra Law Review 9 (1980-1981): 775-794.
Priest, George L. "The Common Law Process and the Selection of Efficient Rules." The Journal
of Legal Studies 6, no. 1 (1977): 65-82.
Smith, Henry E. “Semicommon Property Rights and Scattering in the Open Fields.” The Journal
of Legal Studies 29.1 (January 2000): 131-169.
Critical Legal History
Critical Legal Historians reject an evolutionary view of legal history while also loosening the
relationship between law and society. Law, for them, is relatively autonomous. Legal forms and
concepts are political products shaped by social conflict, but once embedded in a legal
consciousness, they create and perpetuate structures that transcend their original context. These
structures, in turn, shape social and economic forces.
Gordon, Robert W. "Critical Legal Histories." Stanford Law Review 36, no. 1/2 (1984): 57-125.
Harris, Cheryl I. "Whiteness as Property." Harvard Law Review 106.8 (1993): 1707-1091.
Horwitz, Morton J. The Transformation of American Law, 1780-1860. Cambridge: Harvard
University Press, 1977.
Kennedy, Duncan. The Rise & Fall of Classical Legal Thought. Washington, DC: Beard Books,
1975.
Yngvesson, B. 1997. "Negotiating Motherhood: Identity and Difference in 'Open' Adoptions.
Law and Society Review 31 (1): 31–80.
Pluralism
Drawing from the latter, legal pluralists examine the lived experience of law through particular
court cases and legal statutes. They examine the contingency of law and the legal system as a
body of authoritative rule making, posing it next to custom and tradition. For these legal
historians, law is, methodologically, all of the above, but its relationship to society must be
contextualized properly. Law may often shape society in the neo-Marxist of Critical Legal
Historical sense, but that must not be taken for granted. Law is generally construed as an arena of
contestation, and lawsuits and the legal doctrine are seen as moments in longer conflicts, rather
than the mere beginnings or end of conflicts.
Catherine Fisk and Robert Gordon, "'Law As . . .': Theory and Method in Legal History," UC
Irvine Law Review 1, no. 3 (2012): 519-541.
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Hartog, Hendrik, William Forbath and Minnow, Martha. "Introduction: Legal Histories from
Below." Wisconsin Law Review 1985 (1985): 759-766.
Hartog, Hendrik. "Pigs and Positivism." Wisconsin Law Review 1985 (1985): 899-935.
Mensch, Elizabeth. "The Colonial Origins of Liberal Property Rights." Buffalo Law Review 31
(1983): 635-735.
Peller, Gary. "The Metaphysics of American Law." California Law Review 73, no. 4 (1985):
1151-1290.
Premo, Bianca. "Before the Law: Women's Petitions in the Eighteenth-Century Spanish Empire."
Comparative Studies in Society and History 53, no. 2 (2011): 261-289.
Tamanaha, Brian Z. "A Non-Essentialist Version of Legal Pluralism." Journal of Law and
Society 27, no. 2 (2000): 296-321.
Property Law
Alexander, Gregory. Commodity & Propriety: Competing Visions of Property in American Legal
Thought, 1776-1970. Chicago, Ill: University of Chicago Press, 1999.
Banner, Stuart. How the Indians Lost their Land: Law and Power on the Frontier. Cambridge:
Belknap Press of Harvard University Press, 2005.
Bynum, Victoria E. Unruly Women: The Politics of Social and Sexual Control in the Old South.
Chapel Hill: University of North Carolina Press, 1992.
Edwards, Laura. The People and their Peace: Legal Culture and the Transformation of
Inequality in the Post-Revolutionary South Chapel Hill: University of North Carolina Press,
2009.
Ellickson, Robert C. Order Without Law: How Neighbors Settle Disputes. Cambridge: Harvard
University Press, 1991.
___. “Property in Land.” Yale Law Journal 102.6 (April, 1994): 1315-1400.
Fisher, William W. "Ideology, Religion, and the Constitutional Protection of Private Property:
1760-1860." Emory Law Journal 39, no. 65 (1990): 65-134.
Fox-Genovese, Elizabeth. "Property and Patriarchy in Classical Bourgeois Political Theory."
Radical History Review 1977, no. 14-15 (1977): 36-59.
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Law & Society Reading List
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Harris, Cheryl I. "Whiteness as Property." Harvard Law Review 106.8 (1993): 1707-1091.
Hayek, Friedrich A. von. Law, Legislation, and Liberty: A New Statement of the Liberal
Principles of Justice and Political Economy. Chicago: University of Chicago Press, 1973-1979.
Hume, David. A Treatise on Human Nature: Being an Attempt to Introduce the Experimental
Method of Reasoning into Moral Subject. London, 1739.
<http://www.gutenberg.org/ebooks/4705>
McCurry, Stephanie. Masters of Small Worlds: Yeoman Households, Gender Relations, and the
Political Culture of the Antebellum South Carolina Low Country. New York: Oxford University
Press, 1995.
Mensch, Elizabeth. "The Colonial Origins of Liberal Property Rights." Buffalo Law Review 31
(1983): 635-735.
Moises Penalver, Eduardo. Property Outlaws: How Squatters, Pirates, and Protestors Improve
the Law of Ownership. New Haven: Yale University Press, 2010.
Nedelsky, Jennifer. Private Property and the Limits of American Constitutionalism: The
Madisonian Framework and Its Legacy. Chicago: University of Chicago Press, 1990.
Pateman, Carole. The Sexual Contract. Stanford: Stanford University Press, 1988.
Penningroth, Dylan C. The Claims of Kinfolk: African American Property and Community in the
Nineteenth-Century South. Chapel Hill: University of North Carolina Press, 2003.
Polar, Hernando de Soto. The Other Path: The Invisible Revolution in the Third World. New
York: Harper & Row, 1989.
Purdy, Jedediah. "Property and Empire: The Law of Imperialism in Johnson v. M'Intosh." The
George Washington Law Review 75 (February, 2007): 329-371.
___. The Meaning of Property: Freedom, Community, and the Legal Imagination. New Haven:
Yale University Press, 2010.
Rose, Carol M. Property and Persuasion: Essays on the History, Theory, and Rhetoric of
Ownership. Boulder: Westview Press, 1994.
___. "Canons of Property Talk, or, Blackstone's Anxiety." Yale Law Journal 1998-1999, no. 108
(1998): 601-632.
Scott, Rebecca J. and Zeuske, Michael. "Property in Writing, Property on the Ground: Pigs,
Horses, Land, and Citizenship in the Aftermath of Slavery, Cuba, 1880-1909." Comparative
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Studies in Society and History 44, no. 4 (2002): pp. 669-699.
Smith, Henry E. “Semicommon Property Rights and Scattering in the Open Fields.” The Journal
of Legal Studies 29.1 (January 2000): 131-169.
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Law & Society Reading List
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