Historians’ Amicus Briefs

This chapter seeks to understand why historians often find amicus brief writing so vexed and how they have navigated the challenges it poses. It starts with a conceptual analysis of the historians’ amicus brief, in two parts, focused on the problem of expertise. Courts permit historians to participate as friends of the court because they believe that scholars’ knowledge of the past and its relationship to the present are valuable to their juridical work. Yet there are two troublesome questions about expertise that threaten this cross-disciplinary collaboration. One is the nature of historians’ expertise. The second is that the courts’ expertise also concern relating the past to the present, especially where precedent is concerned. The chapter then explores high-profile amicus briefs by historians since the Second World War and considers what these analyses tell us about the prospects for future amicus briefs.

Rhetoric and The Possibilities of Legal History

This chapter shows how rhetorically inflected legal histories may integrate questions about sources and archives, destruction and silences, and the many temporalities of law. It argues that rhetorically oriented legal histories foreground issues that today’s legal histories sometimes forego. Rhetorically inflected legal histories make explicit and render problematic the ways in which law is an object of study for the scholar of history—a subject who draws on and interprets legal records to recount how law has changed over time. Rather than aiming to reverse this subject-object relation and to make history the object of law, rhetoric dwells on the ways in which legal historians’ assumptions as to the sources, silences, and temporalities of legal history correspond to knowledge of the positivist law of the modern state.

Doing Things with Legal History

This chapter discusses the role of historical analysis in property law. The history of property has been used to offer support for property rights. Their long history makes the distribution of property look normal, indeed natural and something that cannot or should not be challenged. However, historically in the U.S there have been competing visions of property. From the Progressive era onward especially, the history of property has been used to show the unequal distribution of property and to offer an alternative vision that expands the rights of non-owners of property. In the late twentieth and early twenty-first century, the history of opposition to feudalism and protection of the rights of non-owners was used to protect the rights of non-owners. Thus, the history of property has been a tool of judges and legislators to support property rights and it has also been, less frequently, a tool of critique.

Femininities and Masculinities

This chapter first reviews the foundational works and thinking that put the criminal legal history of gender on the academic map, setting an ambitious research agenda that remains inspirational. The second section explores the topic of fatal femininities and masculinities by considering how feminist scholars and masculinity researchers have shaped our analysis of men and women who murder intimates. The third section examines how historians, beginning in the 1970s, came to consider the enduring and historically variable contexts of the crime’s perpetration, policing, and punishment. The last section discusses American exceptionalism—among Western advanced democracies the most murderous, and the nation in which race is held out to explain its unique history of rape. The conclusion identifies the challenges that remain and the need to review researchers’ reliance on the now-standard intersectional model of gender analysis.

Adjudication of Indigenous-Settler Relations

This chapter examines the connections between the field of legal history and the various ways in which claims against states by indigenous groups are adjudicated and resolved. It focuses on ‘indigenous’ and ‘settler’ relationships, and on redress mechanisms in Australia and New Zealand. In both cases, the establishment of such mechanisms arose out of political and legal conjunctures within each country, and owed little to developments in international law. The Waitangi Tribunal in New Zealand and the Native Title Tribunal in Australia have very different functions, utilize different kinds of expert evidence, and operate in very different political and constitutional settings. While both bodies require expert evidence typically provided by non-indigenous specialist researchers, the required expertise in each case is different: anthropology in the Australian case, and history in New Zealand.

Imperial Law

This chapter attempts to situate imperial law in terms of legal historical research today. It argues that the new-style imperial legal studies have shed the historiography of reception’s fixation upon imperial law as inherently imperative without discarding the interest in institutional culture and its generation of legal meaning. Today’s historian of imperial law will encounter terms such as ‘governmentality’, ‘police’, and ‘subaltern’. They will be seeing law as process and imbricated with other socially constructed activity rather than as fixed and closed. They will be finding a travelling imperium, an ocean-going legalism with nodes and networks rather than one set sedentarily inside a series of fragmenting and territorialized proto-nationial peripheries.

Literary Analysis of Law

This chapter shows what digital resources can reveal about the prehistory of the Miranda warning. The first part of the chapter offers an extensive, database-driven survey that takes novelistic representation as its focus. Conversely, by studying a particular work, and focusing not only on its content but also on how it uses plot and character, we can ask about its animating logic, posing questions about how a text works rather than what it says or shows overtly. The second part takes a more intensive approach, asking how Oscar Wilde’s novel The Picture of Dorian Gray (1890–1891) uses various techniques of representation to explore the logic of obscenity law—a logic that also applies to the legal regulation of language in other contexts, such as libel and sedition.

Historical Analysis in Environmental Law

The general view of environmental law’s history is that prior to explosion of environmental legislation in the 1970s, environmental regulation as we think of it today—a branch of public law in which the regulator sets standards for activities with environmental impacts—was insignificant. Environmental law lacks a historical anchor, a back story, which is unfortunate for the historical ignorance it perpetuates. Environmental law also lacks history as a mode of argument or analysis. For these reasons, environmental law needs both heightened historical analysis and a sense of its own historical roots. This chapter sketches current, possible, and desirable directions for future research into the history of environmental law. It also offers some thoughts on why the exploration of environmental law matters.

Historical Analysis in Criminal Law

This chapter offers a counter-history of criminal trial verdicts, restoring special verdicts to the story typically told about trial verdicts. According to this typical story, the dominance of the general verdict (‘guilty’ or ‘not guilty’, a determination of both the factual and legal issues at trial) is thought to be both inevitable and right. While special verdicts are now virtually unknown in the English trial process, during the period of the development of the modern criminal trial, they played a greater role in criminal process, functioning as a means by which the seismic changes associated with the appearance of the modern criminal trial were negotiated in the courtroom. Bringing to light the all-but-forgotten past of trial verdicts opens the way to think again about verdicts in the current era, considering the possibilities for the restoration of a meaningful role for special verdicts.

Law as Social History

This chapter explores two related themes embedded within the relationship between legal history and social history, focusing on the nineteenth century to highlight conceptual points that also apply more generally to other periods. First, it argues the field of legal history takes a broader understanding of the law than other historical fields. Moving beyond the written records, legal officials, and designated institutions usually associated with the law’s presence and influence, legal historians extend law into the realm of social history. As that scholarship shows, law flourished in many institutional contexts and even in rural byways and city streets, where it structured broad-reaching economic and cultural dynamics as well as the ordinary relationships of daily life. Second, the chapter argues that legal history changes our view of social history by exposing the law’s presence in places and relationships that most historians imagine to be far from remotely legal.