Introduction: The Rise of Historical Tests and the Required Legal History Course at Harvard Law School
There has been a noticeable trend at the Supreme Court in the last half-century toward using history to determine constitutional meaning.1 In New York State Rifle & Pistol Ass’n v. Bruen,2 Justice Thomas’s majority opinion announced a new methodology for Second Amendment jurisprudence, which rejected the old “means-end scrutiny” test in favor of comparison to “historical tradition.”3 The upshot of this new test is that “judges . . . are supposed to analogize modern laws directly to historical sources, unmediated by a legal rule or standard like the tiers of scrutiny.”4 Using this method, judges would no longer be asked to judge in the traditional sense, but rather to engage in historical analysis. To the Court, this method is preferable because “reliance on history to inform the meaning of constitutional text . . . is . . . more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘. . . costs and benefits . . .’ especially given their ‘lack [of] expertise’ in the field [of firearms regulation].”5
Given the increased emphasis on history in constitutional jurisprudence, law schools may naturally consider incorporating history into their required curricula. Over sixty years ago, Harvard Law School (HLS) did just that: It created a required first-year course in legal history. From 1963 until 1970, first-year students at HLS were required to take a course in legal history called Development of Law and Legal Institutions (DLI). DLI was conceived as a course to provide students with an understanding of the Anglo-American legal tradition and evolved into a perspective course on the development of the American judiciary as an institution in our democratic system. Embattled from its inception, the class was deeply unpopular with students and was frequently the subject of administrative consternation until, in 1970, the school quietly removed the course from the first-year curriculum.
This Note examines the available archival documents to recount the evolution of the DLI course and reflect on the issues that law schools would have to consider in adding a similar legal history requirement today. HLS’s experience with DLI demonstrates that schools may face two major challenges: unpopularity among students and difficulties in optimizing a required history class syllabus for law schools — especially if the goal of such a class is to help budding lawyers apply tests like Bruen’s. Furthermore, fundamental tensions between historical practice and a legal test like “history and tradition” would make it difficult for even a perfectly designed course to meet the goal of training students to apply the test.
This Note proceeds in three Parts: In Part I, it describes the development of the legal history requirement at HLS from the late 1950s until 1962. It then describes the history of the course from 1962, when it was first taught, until 1969, the final year it was required. Part II discusses student and faculty responses to the course. Part III compares the various iterations of the course and their fit, or lack thereof, with a “history and tradition” inquiry. It seeks to understand what lessons the historical example of one law school’s attempt at incorporating history into the required curriculum can teach us in the post-Bruen world.
I. The History of DLI at HLS
A. The Committee’s Report and Proposal
The required legal history course at HLS traces its origins to a 1960 report by the Committee on Legal Education. Harvard University President Nathan Marsh Pusey assembled the Committee in early 1959 to evaluate the curriculum at the law school.6 The school previously considered requiring a course like DLI in 1938, anticipating criticism of the curriculum for its lack of emphasis on legal history.7 However, the 1938 committee decided not to recommend the course and hoped that “the introduction of adequate historical material into the regular substantive law courses . . . [would] supply in part what is a real lack.”8 Yet by the late 1950s, there was a “not uncommon feeling” that HLS had become “essentially a trade school” for corporate lawyers.9
In the spring of 1959, the newly formed committee sent out questionnaires on the first-year curriculum to first-, second-, and third-year HLS students.10 Over half of the students responding to the survey indicated that they were not satisfied with the narrow view of the law provided by the first-year curriculum.11 Out of the 625 students who filled out the questionnaire, 150 students said they thought the first year would be improved by a course in legal history and 189 students thought that insufficient attention was paid to legal history in their education.12
On June 10, 1960, the Committee on Legal Education presented its final report to the faculty identifying potential changes to the law school curriculum.13 Among their recommendations was the addition to the first-year curriculum of “a new course designed to convey to students a more comprehending . . . view of the role of law and lawyers in society.”14 The Committee identified several elements this course would necessarily cover, including “[l]egal history” and “[a]n understanding of legal institutions other than the appellate court.”15 Professors Jack Dawson and Mark DeWolfe Howe provided a concept for a course that would satisfy those aims16: a first-year course in legal history that would come to be known as “Development of Law and Legal Institutions.”17
B. Response and the Faculty Vote
The proposal was not without detractors. After seeing the report, Judge Henry J. Friendly expressed his “deep scepticism” of the required course in legal history.18 The Committee itself recognized that adding a new required course might increase the burden on first-year students in terms of additional workload and that a legal history course would be substantively different from the traditional first-year courses.19 It also noted that there would be a concomitant burden on faculty such as increased teaching load20 and the need for development of new teaching materials for the legal history course.21 And in 1959, Professor Howe himself voiced misgivings about a required legal history course. On June 3 of that year, he sent a memo to the Committee on Legal Education arguing against such a course, saying “it would not cure the ill” of lack of perspective among the students.22 Howe predicted that students would demand that any required history course replace their second-year perspective course requirements, obviating any gains in perspective,23 and worried that most students would “look upon [a required history course] as a needless and somewhat pretentious venture.”24
Despite these reservations, the faculty ultimately voted to add DLI as a required course in the 1962–1963 academic year on an experimental basis.25 To counteract the additional burden on students, the Committee recommended removing Agency as a first-year requirement.26 After extensive debate, the faculty voted to offer the course in two of the four first-year sections — one section taught by Professor Dawson and the other taught by Professor Howe — while the other two first-year sections continued to require Agency.27 The purported benefit of the experiment (offering half of the students DLI and half of the students Agency) would be to better determine the student response to the new DLI course and its burden relative to the existing courses.28 The experiment would also allow the school to assess whether first-year Agency was a necessary prerequisite to upper-level Corporations.29 After running the experiment, the faculty would then decide if DLI should replace Agency entirely in the first-year curriculum.30
C. The DLI Course in Operation
The architects of the original DLI course were Jack Dawson and Mark DeWolfe Howe. In the 1960 Report of the Committee on Legal Education, Dawson and Howe offered two competing yet largely aligned visions for the new course. While Professor Dawson’s planned course focused mostly on English legal history and private law, Professor Howe’s course paid comparatively greater attention to American legal history and public law.31 However, both courses devoted considerable contemplation to the influence of English history and English thought on the American legal experience, topics which in 1960 were “no longer offered in any appreciable amount in first-year courses.”32
The experiment in dividing the first-year curriculum did not last long. In November 1962, just a few months into the experiment, the Committee on Legal Education unanimously recommended dropping Agency in the 1963–1964 academic year and having all first-year students take DLI.33 This recommendation was not based on the experiment’s success but rather its failure — per the Committee, “The first-year students [were] apparently mystified and to some extent disturbed by the . . . arrangement.”34 The Committee also identified that “[t]he diversity in first-year programs pose[d] some problems for teachers of Corporations in the second year,” which would require segregating those students who studied Agency from those who did not.35 The Committee realized that this would lead to less scheduling flexibility in the upper-level courses and “reduce the opportunities for exposing students to wide numbers of their classmates.”36 The Committee was emphatic that DLI itself “remain[ed] experimental,”37 but for the foreseeable future, all first-year HLS students would have to take the required course in legal history.38 However, the course was deeply unpopular from the beginning.39
Recognizing the limitations of the existing DLI course, the HLS faculty set out to modify it. When the faculty instituted DLI, their intention was that, after a period of experimentation, the course would undergo a review to determine if it should be kept permanently in the first-year curriculum; beginning in 1966, the Continuing Committee on Legal Education undertook this review.40 The Committee “consulted with Professors Howe and Dawson together with various other members of the faculty[,] . . . considered proposals . . . for other courses to be given in place of DLI[,] . . . [and] distributed a detailed questionnaire to elicit student reactions to DLI.”41 In December 1966, the Committee presented their recommendations to the faculty for voting.42
In its memo from December 12, 1966, the Continuing Committee on Legal Education ultimately recommended keeping Dawson and Howe’s DLI but adding additional DLI courses with a different scope and focus — while DLI would still be a requirement, students would be able to choose which DLI course to take.43 The Committee first acknowledged that the initial justifications for the DLI course were still worth pursuing because “[b]y themselves, . . . the traditional first year courses may lead to . . . ‘a lack of breadth and purpose of the first year students’ view of and feeling about law.’”44 Therefore, the Committee strongly supported a course in the first-year curriculum that provided “the wider perspectives [of the law] envisaged in establishing DLI.”45 In addition, though many students advocated modifying Dawson and Howe’s DLI courses, the fact that a substantial number of students favored the retention of the courses in “substantially their present form” led the Committee to recommend keeping their courses available to interested students.46 The Committee also noted the overall “negative” reaction to DLI and identified the “lack of an obvious relation to the kind of current social and economic problems with which the students feel the law should deal” as the cause.47 Thus, the Committee thought it would be beneficial to “add to the existing courses in DLI alternatives which give greater emphasis to more obviously current issues.”48 If the Committee’s proposal was accepted, beginning in academic year 1968–1969, students could pick between the additional DLI courses and the existing course to satisfy a DLI elective.49
Another factor behind the Continuing Committee on Legal Education’s recommendations was staffing concerns. The Committee acknowledged that if new courses were not added, there may have been serious problems finding qualified professors to teach Dawson’s and Howe’s DLI courses.50 Both Dawson and Howe were senior members of the faculty at the time, and the Committee concluded that once they retired it would be extremely difficult to find new professors to teach their courses51 — a reality the faculty had to face earlier than they had anticipated due to Howe’s declining health. In 1966, the university announced that one of the four sections of DLI would be taught by Professor Harold J. Berman.52 Berman, the Ames Professor of Law and an expert on Western history and Russian law,53 taught his DLI course as a “study of major transformations of Western law from the 11th to the 20th centuries, with emphasis upon the relationship of English and American legal development to the great revolutions which have periodically engulfed Western society.”54 Berman’s course was not received any more warmly than the original DLI, even coming in last place in a humorous ranking of the first-year courses in the Harvard Law Record.55 In the 1966–1967 academic year, Professor Dawson taught two DLI sections, and Professors Berman and Howe taught the other two sections.56 Then on February 28, 1967, Mark Howe died in his home in Cambridge.57 The following academic year, Professor Berman picked up Professor Howe’s DLI section.58 But DLI had lost one of its architects, and HLS one of its foremost legal historians.59 Professor Howe’s death made the need to add alternative DLI offerings all the more pressing.
In the 1968–1969 academic year, HLS added a third DLI course developed by then–Assistant Professors Charles Nesson and Stephen Breyer that looked nothing like the earlier DLI courses.60 Nesson and Breyer, both former government lawyers who joined the HLS faculty in the 1960s,61 taught a DLI course that was, unlike the existing courses, incredibly popular with students,62 perhaps because of how little it resembled a legal history course.63 Their course was described as “[a] study of selected episodes in American history with a view to exploring the potentials and limitations of the law as an instrument of social control.”64 The course was generally well received by the law students because it spoke to contemporary issues — like desegregation and the presidential war powers65 — that surely felt more relevant to them than Edward Coke or the development of the writ system.
In the 1969–1970 academic year, a fifth section of DLI was added to the course catalog, taught by Professor Jerome Cohen and William Nelson.66 Cohen and Nelson’s course was described as a “study of changes in Anglo-American law during three epochs of revolutionary struggle between Henry VIII and the papacy in the sixteenth century, Parliament and the Stuart kings in the seventeenth, and England and her American colonies in the eighteenth.”67 The course focused on the development of modern legal concepts such as “constitutional liberty, property, contract, corporation and criminal law.”68 Based on the description, this new version of DLI was closer to the Dawson-Howe conception than the Breyer-Nesson course, and may have been introduced to remedy the staffing issues identified in the December 1966 memo. But this version of DLI would not have long to make an impression.
D. DLI’s Inauspicious End
By January of 1969, the Continuing Committee on Legal Education was considering dropping the DLI requirement from the first-year curriculum.69 At the same time, the Committee was considering an innovation to the first year then called “small section[]” courses,70 which would be required in the first-year spring semester.71 While it wasn’t officially stated, this carried the implication that these small sections might take the place of DLI in the first year. However, when the temporary limited edition of the law school’s 1970–1971 course catalog was released in February, there was mention of neither DLI nor small sections in the first-year requirements.72 This conspicuous absence was a precursor to the announcement of a massive overhaul of the first-year curriculum.
In September 1970, Harvard published the official course catalog for the school year with a curriculum that officially replaced DLI with what were now called “Small Group Courses.”73 The Small Group Courses were spring elective courses that would operate as an extension of the Legal Practice and Methods course and the Ames Moot Court Competition. The incoming first-year students would be divided into subsections of sixteen to twenty students based on their expressed Small Group preference and would participate in Legal Practice and Methods and Ames with their subsection in the fall.74 Then in the spring, they would meet for an eleven-week course on one of a variety of topics ranging from agency law and commercial transactions to jurisprudential philosophy and the history of race relations.75 The “instructor who [taught] the course [would] also act in a general advisory capacity for the group, as well as . . . arranging informal meetings or gatherings.”76 Thus, the Small Group Courses innovation would serve the dual purposes of broadening the perspective of first-year law students, a goal that traced back to the report of the 1960 Committee on Legal Education, and providing the students with some amount of academic advising, something the Continuing Committee on Legal Education had been considering since at least 1967 to guide students through the increasingly elective coursework at the law school.77 This shift brought the law school closer to today’s section model where “Faculty Leaders guide and support students through their first year . . . and promot[e] community within the section.”78
At this point, DLI was on life support but not yet dead. Among the Small Group Courses in the spring of 1971 was an elective called “Constitutional History–Legal Process: Development of Legal Institutions” with a course description almost identical to the Breyer-Nesson DLI course.79 Also offered were two Small Group Courses in “Legal History”: one course called “Constitutional Law: Origins of Judicial Review” and another called “Race Relations: The Law of Slavery and Current Racial Issues.”80 However, neither course remotely resembled the Dawson-Howe DLI course. In October of 1970, the Harvard Law Record reported that the future of the “[n]ow dormant” DLI lay “in the hands of two committees, the Committee on Legal Education and the Committee on the First Year, both of which [were] to present reports on the subject to the faculty by November 1.”81 The Harvard University archives have no available records of either the reports or the faculty votes thereon, and the Harvard Law Record never reported on their outcome. But DLI did not appear in the HLS course catalogs for 1971–197282 or 1972–1973.83 The experiment was over.
II. Course Popularity
Law schools considering adding a legal history requirement should also consider whether the course would be popular with students. Though student satisfaction is not the be-all and end-all of a course’s success, schools may find — based on HLS’s experience with DLI — that adding a requirement that students do not like is an uphill battle. DLI was unpopular at its inception and only became popular when it began to give students what they wanted, which wasn’t English legal history.
A. Student Response to DLI
After reviewing the proposal for the DLI requirement, Judge Friendly identified that the course, if designed for students “with a fairly good knowledge of history and a deep interest in it” — students like Judge Friendly himself — would “be way beyond the capacities of equally good students who have majored in the natural sciences and have had only the required minima in history and government.”84 If the course were for the students without a robust historical background, Judge Friendly believed it would “utterly bore [the students] who came with a fair quantity of historical and political baggage.”85 Judge Friendly also posited that “first year law students don’t want to spend substantially a full course in what is really history,”86 a hypothesis that would prove true over the next ten years.
The student reaction to Professors Dawson and Howe’s DLI was immediately and decidedly unenthusiastic. A 1966 Harvard Law Record survey of student opinion reported that DLI was the least popular course in the first-year curriculum.87 Of the students surveyed, 64% of third-year students and 57% of second-year students identified DLI as the one course in the first year that they would have opted not to take if given the choice.88 DLI’s reputation was so negative that several first-year students said they would choose not to take DLI before having stepped foot in the class.89 Presented with this survey data, neither Dawson nor Howe expressed surprise and Dawson “observed that it is ‘difficult to teach history as a case law course’” and that “a large number of early cases are hard to read and some students find them not worth the effort.”90 It is likely true that the focus on early English history was a driving force behind DLI’s unpopularity, given the relative popularity of the Nesson-Breyer DLI.
The Nesson-Breyer DLI course was a product of the tumultuous time in which it was introduced. In the fall of 1968, Black student leaders called attention to various grievances which were presented to then-Dean-designate Derek Bok.91 The grievances included that “[t]he curriculum should be made more relevant to the social conditions of [the] time.”92 Though the school did not publicly announce a response to that grievance,93 it is difficult to imagine that the slate of courses in 1968 addressing contemporary societal problems94 was unrelated. The Nesson-Breyer DLI was far more popular than the original DLI course had ever been. The first year it was offered, approximately 380 students were enrolled95 out of a first-year class of about 600.96 The second year it was offered, the 1969–1970 academic year,97 the course was “tremendously oversubscribed” and “wound up being in Langdell South, which [was] a huge classroom with 252 students” per class.98 According to Professor Nesson, the oversized class “was more than [they] could handle” and “wasn’t as enjoyable as it had been the first year,” leading Professors Nesson and Breyer to opt not to teach the class again after 1970.99 While the new DLI course was a success, it “bore no resemblance to the course [Dawson and Howe] taught.”100
B. “Semesterization” and Student Choice
A major factor in DLI’s ultimate demise was the modernization of the law school curriculum, offering students more choices in their course schedule. Just after DLI made way for the Small Group Courses, by late fall of 1971, the Small Group Courses were already on their way to abandonment. In December of that year, the Faculty considered replacing the Small Group Courses with spring electives as part of a “semesterization” proposal for the first-year curriculum.101 In the 1972–1973 academic year, first-year students could select up to two electives in the spring semester from an eclectic mix of courses, including black-letter subjects like Administrative Law and seminars in topics like Television and the Law.102 This diverse menu more closely resembles today’s course offerings than those offered in 1961,103 and the move toward increasing choice in the law students’ courses of study reflects a more modern sensibility.
Adding any new required course would cut against the trend in legal education toward adding increased electivity in course selection.104 Thus, any school considering adding legal history would likely face the further hurdle of requiring students to take legal history at the expense of choosing to take something else. In 1979, amidst renewed consternation about the first-year electives, then–Associate Dean James Vorenberg traced the concept of first-year electives back to DLI, which he called a “perspective course.”105 He remarked that the school’s experience with DLI motivated the school to offer a variety of perspective courses both to give “a loosening up or a breadth” to the first-year curriculum and to give students some choice in what courses they enrolled in.106 Unspoken in Vorenberg’s quote is that the DLI course demonstrated just how difficult and complicated it is to add a required course that law students do not like. In part it is difficult and complicated because it reduces students’ time to take courses they do like.
HLS has continued to offer courses like DLI, but it has not required them of students. Among the 1972–1973 elective options was a course called “The Western Legal Tradition” taught by Professor Harold Berman.107 Though it wasn’t explicitly listed as a legal history course, it was likely related in some way to Berman’s DLI section.108 Thus, by the early 1970s, legal history had found its niche as one of a variety of elective offerings for law students to take, if they were so inclined — a niche it still holds in today’s curriculum.109 That most law students might not want to take a course in legal history was one of the criticisms of the DLI requirement in the first instance,110 and students’ frustration with such a course was evident from the beginning in the reviews that Dawson and Howe’s DLI course received.111 In fact, some legal historians in the years since have voiced a desire not to teach a required legal history course for this very reason.112 Legal historians “want to teach courses on English legal history to people that are interested in English legal history,” not to students who don’t want to be in their classroom.113
C. Responsiveness to Student Preferences
How much should law schools base their curricular requirements on the preferences of students? Harvard’s experiment with DLI demonstrated how difficult it is to make curricular changes that students do not like. DLI received consistent negative reviews and was a source of student frustration from its outset. But to the extent that history or historical methodology has become paramount to the practice of public law, shouldn’t schools’ decisions to implement history into their curricula be made independent of students’ desires?
The question of whether law schools should be responsive to student preferences is complex and multifaceted. Professor Robert Lloyd argues that blindly catering to student demands could lead to a degradation of educational quality and the value of law degrees.114 As Lloyd points out, excessive focus on student evaluations has led many law school professors to abandon the Socratic method in favor of less demanding approaches.115 Ultimately, Lloyd argues that law schools may need to exercise some “paternalism” in order to preserve the long-term value and rigor of legal education.116 As Professor Howe remarked in response to the negative student reaction to DLI: “A student needs to get some generality and perspective, and the only standard should not be that he enjoy the course.”117 But ignoring student input can also be problematic. Especially for schools closely attuned to the need to maintain their U.S. News rankings,118 student unhappiness could lead to a death spiral, where student dissatisfaction leads to decreased student interest, which in turn leads to decreased applications and ranking.119
Of course, student preferences may well have changed since the 1960s. Consider how over the course of its run DLI was shaped into a study of the dominant legal paradigm of its era, Legal Process, in large part because of student preferences.120 This episode may indicate that law school curricula will naturally incorporate more legal history as students recognize the salience of legal history in jurisprudence and desire to understand it better. Indeed, it would be unusual for a constitutional law class today to ignore the historical methodology of Bruen. As “history and tradition” comes to govern more and more public law issues, students may have no choice but to learn history.
Although this may mean that DLI’s unpopularity is not a clear sign that a contemporary equivalent would be unpopular, the overwhelming scale of DLI’s unpopularity is certainly striking. And indeed, some of the critiques of the course from the time (Friendly’s and Dawson’s in particular) still hold true today. As a result, while not the most critical factor, it is important for those planning law school curricula today to consider just how unpopular DLI was before trying to implement a similar requirement.
III. How to Shape a Legal History Course
The rise of history and tradition as a focus of judicial methodology begs the question: Can judges do history? Some early results arising out of history and tradition suggest that they cannot.121 That the Court’s occasional forays into history are below par is a familiar and long-standing criticism.122 In 1965, Professor Alfred H. Kelly demarcated two categories of bad Supreme Court history: creating its own history a priori or engaging in “law-office” history.123 Law-office history refers to “the selection of data favorable to the position being advanced without regard to or concern for contradictory data or proper evaluation of the relevance of the data proffered.”124 Justice Sotomayor voiced a similar criticism in last Term’s Vidal v. Elster,125 writing that “one might aptly describe [the Court’s historical methodology] as the equivalent of entering a crowded cocktail party and looking over everyone’s heads to find your friends.”126
A test like history and tradition raises the costs of relying on law-office history. If history and tradition is “the direct source of constitutional construction,”127 it is more important that judges and lawyers understand the complexities and contingencies underlying that history. In this Part, this Note compares the content of various DLI offerings over the years and asks whether they might prepare students to apply a methodology like “history and tradition” in their legal careers. It also discusses the considerations law schools will have to make regarding the content and methodology of a required legal history course.
A. Dawson’s and Howe’s DLI
Professor Dawson aimed to assemble a series of readings (both original documents and discussion thereof) on Anglo-American legal history in roughly chronological order, covering topics including “(1) the control of private violence . . . , (2) the pressure toward unanimity of jury verdicts . . . , (3) the writ system and the growth of trespass . . . , (4) the role of contract and the development of contract remedies in the local and royal courts . . . , [and] (5) the early use and the reasons for flight into equity.”128 Dawson’s ultimate goal was to teach fifteen topics beginning in twelfth-century England and including at least five topics in American legal history.129 Dawson conceived that the course would examine “a series of situations in which major decisions had to be made” and focus “on the resources available, the solutions reached and the reasons why alternative solutions were not adopted.”130
Professor Howe’s proposed DLI course aimed to “present the constitutional history of Anglo-American law”131 and “concentrate . . . on the development of certain themes over several centuries.”132 In his materials on English legal history, Howe planned to “emphasize . . . pluralistic aspects of legal institutions” and how “through local, ecclesiastical, prerogative, ‘private,’ and parliamentary authority, law, not derived from the decisions of the courts of common law, was being made.”133 To teach American legal history, Howe intended to discuss the colonial legal project as a part of English legal history — “an effort, however unsuccessful, to bring an English scheme of order to a new continent” — and post-Revolution history in terms of “the processes by which the States and the Nation received, adapted, and rejected the law of England.”134 But Howe also believed that attention to English law reform in the nineteenth century and the influence of Jeremy Bentham on the legal philosophy of that period would be justified in discussion of American legal history.135
Though both courses offered law students a broader perspective on the English origins of American legal institutions, neither course was intended to instruct students in the historical method. The DLI course provided students with background information about where their legal system came from, but it was not a traditional history course.136 This stood in contrast to a similar course offered at Columbia at the time, which was designed “to give the student a grounding in the history of the common law and to instruct him in the elements of historical method.”137 In short, students of Dawson’s or Howe’s classes would learn about history, but they would not learn how to research and produce it themselves.
Dawson’s class, at least, did give students some grounding in the idea of historical contingency.138 This is the idea that historical development is not inevitable and is governed by a complex web of prior conditions.139 When historians look at a series of events like the westward expansion of the United States, they don’t see “Manifest Destiny” but rather “a series of contingent results possessing other possibilities.”140 Contingency is necessary to avoid an over-narrativization of history and also offers a corrective to presentism, the “tendency to interpret the past in present[] terms.”141 It’s understandable why presentism is problematic, especially when using history for legal analysis. If judges and lawyers examine historical facts through a lens of present values, they may reach improper conclusions about isolated facts and incidents that are not warranted when examined in their larger context. One example of this kind of conclusion is a fallacy identified by Solicitor General Elizabeth Prelogar when arguing United States v. Rahimi142: “[I]n many instances, courts are placing dispositive weight on the absence of regulation in a circumstance where there’s no reason to think that that was due to constitutional concerns.”143 Contingency helps resolve this fallacy by demonstrating that the present was in no way predictable in the past. Thus, modern values and concepts would have been foreign in the past because modernity was not inevitable. Any legal history course must, therefore, impart an understanding of historical contingency if it is to be useful for legal analysis.
B. The Nesson-Breyer Course
Professors Nesson and Breyer modeled their course on the Legal Process School framework developed by Professors Henry M. Hart and Albert Sacks,144 and centered their teachings on the role of the Supreme Court in institutional settlement.145 The course began the semester with the Cherokee removal and the related Supreme Court decisions,146 included discussion of the Steel Seizure Case147 and Brown v. Board of Education,148 and was generally focused on “the conflict between principle and power” and the “real world forces that . . . judges have no choice but to relate to.”149 Though the Nesson-Breyer DLI was nominally a course in legal history, it had little in common with the earlier DLI offerings.150
The Nesson-Breyer DLI reflects another consequence of presentism identified by Professor Lynn Hunt: “[T]he shift of general historical interest toward the contemporary period and away from the more distant past.”151 The problem with a narrow, contemporary focus is that it obviates the need for historical thinking. Law schools may be tempted to focus on more recent history to address student concerns about relevance and the opacity of pre-twentieth-century legal materials. But recent history risks “becom[ing] the short-term history of various kinds of identity politics defined by present concerns and might therefore be better approached via sociology, political science, or ethnic studies.”152 In the legal context, focusing on more accessible recent developments may be indistinguishable from the rest of the law school curriculum. Indeed, this is what happened to the Nesson-Breyer course, where what was intended as a legal history class ultimately adopted the methodology of Legal Process, the dominant mode of legal thought at the school in that era.
C. Historical Methods or Historical Knowledge
It is worth noting the inherent limitations of a legal history requirement within a J.D. program. For law schools looking to implement a legal history requirement, there will inevitably be a need to choose how much to focus on teaching historical methodology and how much to focus on imparting historical knowledge. Consider, for example, the difference between Dawson’s and Howe’s courses and the DLI course required at Columbia.153 While the course at Columbia “acquaint[ed] first-year students with the factors which . . . contributed to the development of the common law and . . . [gave] students some preliminary training in the use of historical data,”154 neither course at HLS was as comprehensive. It is likely, however, that if a program were designed to address the requirements of history and tradition, it would have to encompass both historical knowledge and historical methodology.
A required legal history course focused on legal knowledge would likely have a scope problem. The course could, like Professor Dawson’s DLI, cover a range of historical episodes from the 12th century to the present. Or it could, like Professors Breyer’s and Nesson’s course, focus more narrowly on recent history. However, it is unlikely a single course could provide students with sufficient breadth of knowledge to comfortably apply a test like history and tradition given the variety of historical sources and eras from which the Court’s recent history and tradition decisions have drawn.155 And while a course on legal history may help lawyers grasp the complexity and contingency of historical developments, such a course alone would not be likely to adequately prepare lawyers to address the historical questions that arise when using “history and tradition” approaches in legal interpretation. To effectively employ these approaches, lawyers would need to develop specialized knowledge of both early American legal systems and the English common law tradition from which they derived, as well as a more extensive training in historical research methods.
A course focused on historical methods, on the other hand, likely would have problems of rigor and of fit. First, the time and courseload limitations of existing full-time J.D. programs156 likely would preclude students from concurrently receiving a sufficient historical methods education to replicate a Ph.D. in history.157 So, a historical methodology course would have to be less rigorous than a graduate history degree by some levels of magnitude. Nonetheless, there are competing views over whether a law school course in legal history can produce “proficiency in techniques of historical research and analysis.”158 Regardless, there may be an inherent fit problem between history and tradition and a legal history education that is not resolvable, even with sufficiently rigorous study of historical methods.
Namely, it may not be possible to reconcile historical methodology with the methodology contemplated in Bruen. The kind of inquiry Justice Thomas articulated in Bruen is anathema to the historical method because it assumes an ability not only to locate the origin of an idea, such as the right to bear arms, but also to evaluate its scope and meaning at the time it originated.159 “[H]istory is neither watchmaking nor cabinet construction. It is an endeavor toward better understanding and, consequently, a thing in movement.”160 Thus, many historians have bristled at how jurists have attempted to use history to provide definitive answers to difficult constitutional questions.161 History cannot possibly offer a single clear answer to a question like what the Second Amendment meant in 1791,162 nor would it even be preferable if it could. In his discussion of the virtues of legal history, Justice Holmes cautioned that “[w]e must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present.”163 In 1976, then-Justice Rehnquist remarked that it was “almost impossible . . . to conclude that [the Founders] intended the Constitution itself to suggest answers to the manifold problems they knew would confront succeeding generations.”164
If schools do attempt to add historical methodology to their curriculum for the purpose of better conducting a “history and tradition” test, there is also a concern that it will decrease the emphasis on history qua history. As originalism came to prominence “[h]istorians protested ‘that the cottage industry of original intent scholarship and analysis’ diverted scholars’ attention ‘from exploring the history of the Founding Period on its own terms.’”165 Schools would therefore need to consider what purpose a legal history requirement is intended to serve. There is undoubtedly a normative value to having lawyers who learn and understand the history of their profession, regardless of if it prepares them to use legal history in their legal career. But it seems unlikely that a required course in legal history could ever meet the needs of a test like “history and tradition.”
However, there are important benefits to teaching legal history, especially when not done for the narrow and instrumental purpose of making students better at applying Bruen and similar tests. When the Committee on Legal Education introduced the idea of a required course in legal history, it was borne out of the recognition that English legal history was an important part of the cultural heritage of American law. In the early- to mid-twentieth century, the halls of the law school were decorated with portraits of English judges and Lord Chancellors.166 There was a sense that it was important that students knew where the law came from in order to better understand the common law tradition they were joining.167 As Justice Holmes remarked, “The rational study of law is still to a large extent the study of history . . . because without it we cannot know the precise scope of rules which it is our business to know.”168 Simply put, a lawyer cannot understand the common law without understanding how it developed. Furthermore, there is a certain amount of cultural knowledge about our legal institutions which it is normatively valuable for lawyers to have. On the façade of Langdell Hall at HLS is carved “non sub homine sed sub Deo et lege.”169 But virtually no Harvard Law student knows that it was spoken by Edward Coke to challenge King James I’s usurpation of power from the judiciary.170 It is important for law students to understand the history of Coke and King James I in the same way it is important for Americans to understand the story of the Revolution — someday those law students will be entrusted with custodianship over our legal institutions, and it is good for them to understand those institutions.
Conclusion
The history of Harvard Law School’s DLI course serves as an important case study for schools motivated to require legal history in their curricula because of the rise of “history and tradition.” This Note has sought to outline the challenges such law schools would have to face: unpopularity among students, difficulties in optimizing the syllabus for contemporary legal analysis, and the inherent tension between historical scholarship and the history and tradition inquiry. While a required legal history course might equip students with a better understanding of the legal system and its origins, it is unlikely to fully prepare them to apply the Supreme Court’s “history and tradition” approach.
Despite these challenges, there are still compelling reasons to include legal history in the curriculum. Learning about the historical development of legal institutions provides valuable context that enhances a lawyer’s understanding of the common law tradition. It can also impart cultural knowledge crucial for custodianship over legal institutions. However, requiring such a course should not be done solely to meet the instrumental demands of modern jurisprudence; rather, it should aim to foster a broader appreciation for the history and evolution of law as a cultural and intellectual tradition.