Legal History Seminar/Workshop
Law _____
Spring 2013
F. 10:10-12:15
Prof. Barbara Y. Welke
Off. Hrs. ________________
welke004@umn.edu
Course description
This seminar brings in leading scholars engaged in projects at the intersection of law
and history. The goal of the seminar is to provide students with an introduction to the field
of legal history and an opportunity to engage with scholars working on innovative projects
ranging across both time and space. Workshop sessions in the opening weeks will be
devoted to giving students a grounding in approaches to legal history, with the remaining
weeks in the term devoted to the presentation and discussion of works-in-progress by the
guest scholars. No previous knowledge of legal history is assumed. An interest in history
though is important.
Course mechanics and requirements
Most of the readings for the term will be those produced by our guest speakers. I
have asked the speakers to send me their papers one week in advance of their presentation;
they will be made available to the seminar participants electronically. In the first weeks of
the course, we will meet without a speaker to discuss shared readings intended to orient
ourselves to the field of legal history. These readings will also be available electronically.
Students enrolled in the course for credit are expected to attend all class sessions, complete
short (3-5 pages, double-spaced) response papers addressing the weekly readings, and
actively engage in class discussions. Although such engagement may take many forms, all
students should aim to contribute regularly during weekly sessions in ways that reflect
thorough preparation and serve to advance the discussion. This can be accomplished by
raising questions, building on points raised by others in the class, and generally exhibiting
critical thinking about the works under consideration this semester.
Law students may elect to take the course for two or three credits; those electing the
latter option should register for 1-credit Independent Research (Law 7608) with me. This
will effectively make the seminar a 3-credit course for law school purposes. The differing
requirements for two versus three credits are as follows:
Two-credit option: (1) seven 3-4 page papers with discussion questions for the guest
speakers (70%)(we are having 8 guest presenters; the paper requirement allows you to not
write a paper for one of those weeks; you are still expected to have read the circulated paper
and participate in discussion); (2) class participation (30%). There is no final paper required.
Three-credit option (which also meets the senior writing requirement): (1) seven 3-4
page response papers with discussion questions for the guest speakers (70%)(we are having 8
guest presenters; the paper requirement allows you to not write a paper for one of those
weeks; you are still expected to have read the circulated paper and participate in discussion);
(2) class participation (30%); and (3) an original research paper on a topic in legal history
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with instructor’s approval (20-25 pages). The three credit option meets the Law School’s
writing requirement.
Weekly papers in weeks with guest presenters. These are intended to be serious,
engaged reflections on the assigned reading including questions you would like to raise in
discussion. Each week’s response paper will be due by Thursday 8:00 p.m. submitted
electronically to me via email the day preceding discussion of a given reading. No late
response papers accepted.
The purpose of response papers is to get you to engage fully and thoughtfully with
an author’s work. You might consider these as the beginning of conversations that will be
continued in our discussion with the authors. Bear in mind that the vast majority of the
work we are reading for the term is work-in-progress. Questions to consider include: What
is the author’s argument (in your own words, please)? What kinds of sources does the
author use? Are you persuaded by the argument as the author has developed it at this point
and why or why not? What problems do you see in the argument (analytical, source-based,
organizational)? Are there parts of the argument you would like to see further developed
and why? What intrigues, puzzles, or excites you about the author’s work and why? If you
don’t like a piece or find it hard to read, reflect on why and how the author might address
the problem. What additional lines of inquiry does the author’s work raise? What debates
do you see the author engaging in? The final section of your response should be questions
you wish to raise in conversation with the author. This list is suggestive, not exhaustive.
These papers give you the opportunity to practice individually constructive engagement with
scholarly work. We will continue the conversation you begin in your response papers in our
seminar discussion with the authors. Although questions you intend to raise in discussion
with an author should be limited to that author’s work, I encourage you in your papers to
think about the readings for a given week in conversation with other materials we have read
during the term.
Office hours will be held during the spring semester on ___________ and by
appointment. My faculty assistant is Morgan Gooch (Room _________________).
Schedule
January 25
Legal History: Theory and Practice I
Reading Assignment: Hendrik Hartog, “Pigs and Positivism” (1985).
February 1
Legal History: Theory and Practice II
Reading Assignment: Robert W. Gordon, “Critical Legal Histories” Stanford Law Review
36:57-125 (1984) and selected portions of Symposium on Critical Legal Histories, Law &
Social Inquiry (Winter 2012).
February 8 Legal History: Theory and Practice III
Reading Assignment: TBA
February 15
Law School Winter Break – No Class
February 22 Binyamin Blum, Lecturer (Assistant Professor), Hebrew University,
Faculty of Law
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Title: "Forensic Technology in the Age of Empire: Expert Testimony in Mandate Palestine
During the 1930s"
Abstract: The paper is part of a broader research project that explores the rise and
development of forensic technologies in the British Empire during the late nineteenth and
early twentieth century. The question at the heart of the research is why did many of the
forensic technologies of that period (fingerprinting, ballistics, dog tracking, bone aging)
develop in the colonies, mainly by colonial administrators with little or no scientific training,
rather than in the laboratories and universities of the imperial metropole? The answer, I
argue, lies in forensic science and technology's role in creating the semblance of objectivity
and precision, thus legitimizing judicial fact-finding by transplanted colonial legal systems.
To satisfy legitimacy deficits, such novel forensic technologies often sacrificed the soundness
of the forensic "science" being applied. Rather than developing independently, based on
sound scientific principles and experimentation, and only later being adopted by colonial
governments, I show that forensic technologies often took the reverse tack, developing to
meet colonial governmental necessities (real or perceived). When reintroduced into the
imperial metropole as methods of proof, some such technologies met fierce opposition and
were rejected by the English legal system. The chapter I will present focuses on Mandate
Palestine and is based on parts of my dissertation. It focuses on dog tracking, bone aging and
handwriting identification.
March 1 Christine Desan, Professor of Law, Harvard Law School
Title: “Home-Grown Credit or the Silver of Sea-faring Traders: The Struggle over Money in
the Modern Imagination”
Abstract: At the end of the 17th century, the English transformed their monetary system. For
centuries, they had used “commodity money” -- coin made of silver or gold -- as the basic
currency. In the 1690s, they added a new kind of cash – paper money issued by the Bank of
England – to the money supply. During the same decade, debate in the country raged about
what “money” really was. The controversy swept in the biggest thinkers of the times,
including John Locke and Isaac Newton. It posed those who understood money as credit
against those who argued that it was a natural product of exchange. The resolution of the
controversy shaped ideas of rights, approaches to monetary policy, and the evolving
discipline of economics.
March 8 Ellen Herman, Professor of History, University of Oregon
Title: “Autism, Between Rights and Risks”
Abstract: Adjudicating rights and managing risks have been two of the most important
responsibilities of government in modem U.S. history. Since 1945, the expansion of rights
claims and the multiplication of risk designations have coincided. This project probes that
coincidence by considering the case of autism. Today designated as a developmental
disability, autism’s key characteristic—aloneness—challenges the sociability that grounds
secure personhood and civic belonging. Autism therefore illuminates the boundaries of the
human as well as the rights of citizens. This research project explores the following themes:
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autism and the campaign to measure, predict, and control developmental risks; autism as a
controversial and increasingly prevalent clinical entity; autism as the basis for advocacy
movements; autism and the right to education and early intervention; and neurodiversity and
democracy. Autism illustrates how risk itself became a legitimate basis for political
mobilization, collective identification, and rights claims.
March 15 Fahad Ahmad Bishara, Prize Fellow in Economics, History and Politics,
Joint Center for History and Economics, Harvard University
Title: “For Allah, Mammon, and Empire: Law and Plantation Society in Early-19th century
Muscat and Zanzibar”
Abstract: This paper forms part of a current project in which I explore the legal
transformation of the Indian Ocean during the nineteenth century, an era of emerging
modern capitalism. Here, I examine the structure and dynamics of Islamic legal authority in
the plantations of Muscat and Zanzibar, two staging grounds for Omani expansion in the
Western Indian Ocean. In the midst of a regional commercial boom, plantation owners and
merchants began experimenting with contractual forms and practices not previously
recognized by Muslim jurists. As the market for their goods expanded, these economic
actors manipulated the time horizons of different agrarian contracts, traded shares in
different date palms, and engaged in a brisk trade in promissory notes and hypothecated
properties. I draw on a cache of land transaction deeds from both ports’ hinterlands and a
corpus of legal opinions issued by muftis (jurisconsults) responding to questions from
planters and merchants. I use these to examine the agents who gave shape to the new
contracts and the process by which the contracts were given legal validation. In doing so, I
trace out the contours of legal authority within these plantation societies and in the Western
Indian Ocean more broadly – a commercial and legal world shaped less by soldiers and
sultans than by merchants, planters, scribes, muftis, and jurists.
March 18-22 Spring Break
March 29 William E. Forbath, Lloyd M. Bentsen Chair in Law, Associate Dean of
Research, School of Law & Professor of History, UT Austin
Title: “Jews, Law and Identity Politics”
Abstract: The fundamental tension for American Jews has been one between assimilating
into the larger national community and keeping a separate identity. Not rabbis but lawyers
produced the most important responses to this tension. A century ago, the first generation
of nationally prominent Jewish attorneys fashioned an enduring vocabulary of Jewish
membership in and apartness from the national community - and with it, key features of
American Jewish identity - out of the materials of constitutional law. The context was the
mass immigration of two million “poor Russian Jews” around the turn of the last century.
Singled out as “un-American” racial others, these newcomers produced a crisis for the small,
established Jewish community. The crisis was practical: How to keep the gates open for
these fellow Jews, while safeguarding one’s own welcome? It was also existential: What was
it to be an American and a Jew? Must Jewishness be recast as a private religious faith and
nothing more – publicly invisible, with no distinctive social identity and no group claims on
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the law or polity; or could Jews publicly remain a “people apart,” a distinct “nation” and
even a separate “race,” while participating fully and equally in American life? This handful
of elite attorneys crafted the Jewish community’s competing answers, fashioning key terms
of American Jewish identity for the next century. In the process, the resources and
constraints of U.S. constitutionalism shaped their rival accounts of American Jewishness.
Scholars have left this history largely unstudied. Examining it reveals much about law’s part
in the creation of ethnic and cultural identities and how to study it.
April 5 Lucy Salyer, Associate Professor of History, University of New Hampshire
Title: “The Forgotten Right of Expatriation: Allegiance and Sovereignty in Modern
America"
Abstract: Within days of the ratification of the Fourteenth Amendment, Congress passed the
Expatriation Act of 1868, declaring the right of expatriation to be “a natural and inherent
right of all people” and obligating the government to protect its adopted, as well as its native,
citizens when they traveled outside of the United States. Between 1868 and 1872, the
United States signed treaties with twelve different countries which acknowledged the right of
voluntary expatriation, diplomatic accomplishments that contemporaries described as
“revolutionary” and “radical.” Yet, in standard histories of the “revolution in civil rights”
during Reconstruction – and even in contemporary discussions of immigration policy--, the
expatriation act and treaties rarely register as significant aspects of citizenship law. In this
book, I highlight the importance of “rules of exit” that governed individuals’ ability to
emigrate and expatriate in the nineteenth century and analyze why expatriation finally
became a protected right during the era of Reconstruction, focusing in particular on the
provocative role played by the Fenians, an organization of Irish American nationalists, but
also on the contributions of a more staid group of international law reformers. But by the
early 20th century, expatriation would more often be thought of as the process of losing
rather than choosing citizenship, a shift galvanized by changing notions of allegiance and
sovereignty that accompanied the rise of modern nation states.
April 12 Ariela R. Dubler, George Welwood Murray Professor of Legal History,
Columbia Law School
Title: “The Maternal Difficulty"
Abstract: For much of our history, people assumed that women's biology--specifically, a
woman's ability to get pregnant and give birth--was incompatible with public roles outside of
the home. The so-called "maternal difficulty" was thought to explain why women were illsuited for work and politics. My project is about the history of the law's construction of the
maternal difficulty -- that is, the ways in which the law has fostered the idea that men and
women are destined to play different roles at home and at work by virtue of their different
roles in procreation.
April 26 Christopher Tomlins, Chancellor’s Professor of Law, University of
California, Irvine
Title: “Jerusalem, Jerusalem: The Turner Rebellion”
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Abstract: The slave rebellion known as the Turner Rebellion, which occurred in August 1831
in Southampton County, Virginia, is well known to American historians. They have told its
history by resort to the normal array of archival sources but much of their attention has been
focused ony one document, a 24 page pamphlet entitled The Confessions of Nat Turner written
by a local attorney named Thomas Ruffin Gray, purportedly based on jailhouse
conversations with the rebellion’s leader awaiting trial. The research on which I am engaged
will investigate the whole history of the rebellion and through it the history of antebellum
slavery, but I too have chosen to begin with an interrogation of Gray’s pamphlet. Thus far I
have written three overlapping papers about the Rebellion and The Confessions. The first
experiments with intertextual readings of the Confessions, employing Max Weber and Walter
Benjamin as alternate “interlocutors.” This paper treats Gray as the embodiment of a
“disenchanting” positivist rationality that sets itself in opposition to Turner’s
metaphysical/religious account of his motivation. The second argues that the conflict of
revelation with rationality at the heart of the Confessions’ dueling accounts of the rebellion
allows us a glimpse of the cosmology of capitalism. The third paper deals further with the
contrast between the rational “social” account championed by Gray and the revelatory
“soterial” (pertaining to salvation) account offered by Turner, and enquires into the origins
of Turner’s eschatology. A planned fourth paper will switch attention to William Styron’s
reinvention of Turner in his fictionalized “realistic” autobiography, The Confessions of Nat
Turner. For the workshop I will present the fourth paper (entitled “Styron’s Confessions”) if
I manage to finish it in time. If not I will present the third, which is entitled “Debt, Death,
and Redemption: Toward a Soterial-Legal History of the Turner Rebellion.”
April 30 [No Guest - need to reschedule this class for another day]
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