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The Line Between History and Casenote

Published online by Cambridge University Press:  01 July 2024

John Henry Schlegel
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Extract

When Kermit requested that I write an essay for this Review, an ambiguity in his letter led me to inquire whether he wanted me to write about legal history written in the twentieth century or legal history written of the twentieth century. Unraveling that ambiguity had the queer effect of deflecting my attention from the fact that I was in the process of agreeing to write about a subject that seemed to me to be close to nonexistent. To check out that perception, I sent my super-diligent research assistant out to search the relevant periodical literature published during the last fifteen years. A bit to my surprise he came back with a longer bibliography than I had expected and the observation, “I had a difficult time deciding where to draw the line between history and casenote.” It seems to me that this observation just about sums up the problem and perhaps it is important to discuss that problem as we look at this largely nonexistent field in the hope that by the time there is a field there may no longer be a problem.

Type
Research Article
Information
Law & Society Review , Volume 22 , Issue 5 , 1988 , pp. 969 - 985
Copyright
Copyright © 1988 The Law and Society Association.

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Footnotes

This essay is written for Willard Hurst who has led us all, even those who have chosen another way. Thanks are due to Fred and to the rest of the usual cast of characters, Rob and Guyora, as well as my research assistant Bruce Ikefugi.

References

References

ACKERMAN, Bruce A. (1983) Reconstructing American Law. Cambridge, Mass.: Harvard University Press.Google Scholar
AUBERBACH, Jerold S. (1976) Unequal Justice: Lawyers and Social Change in Modern America. New York: Oxford University Press.Google Scholar
AUBERBACH, Jerold S. (1973) “Born to an Era of Insecurity: Career Patterns of Law Review Editors 1918–1941,” 17 American Journal of Legal History 3.Google Scholar
AYER, Douglas (1971) “In Quest of Efficiency: The Ideological Journey of Thurman Arnold in the Interwar Period,” 23 Stanford Law Review 1049.Google Scholar
BALL, Howard (1986) Justice Downwind. America's Atomic Testing Program in the 1950's, New York: Oxford University Press.Google Scholar
BASS, Jack (1981) Unlikely Heros. New York: Simon and Schuster.Google Scholar
BELKNAP, Michal R. (1987) Federal Law and Southern Order: Racial Violence and Constitutional Conflict in the Post-Brown South. Athens: University of Georgia Press.Google Scholar
BICKEL, Alexander (1969) “Mr. Taft Rehabilitates the Court,” 79 Yale Law Journal.CrossRefGoogle Scholar
BRAND, Donald R. (1983) “Corporativism, the NRA and the Oil Industry,” 98 Political Science Quarterly 99.Google Scholar
BREIMYER, Harold F. (1983) “Agricultural Philosophies and Policies in the New Deal,” 68 Minnesota Law Review 333.Google Scholar
BUROKER, R.L. (1970) “From Voluntary Association to Welfare Star: The Illinois Immigrant's Protective League, 1908–1926,” 58 Journal of American History 643.Google Scholar
CAPECI, Dominic J. Jr. (1986) “The Lynching of Cleo Wright: Federal Protection of Constitutional Rights During World War II,” 72 Journal of American History 859.Google Scholar
COHEN, Wilbur J. (1983) “The Development of the Social Security Act of 1935: Reflections Some Fifty Years Later,” 68 Minnesota Law Review 379.Google Scholar
DOUGLAS, William O. (1974) Go East, Young Man. New York: Random House.Google Scholar
DUBROFF, Harold (1978a) “United States Tax Court: An Historical Analysis,” 42 Albany Law Review 161.Google Scholar
DUBROFF, Harold (1978b) “United States Tax Court: An Historical Analysis,” 42 Albany Law Review 191.Google Scholar
DUBROFF, Harold (1978c) “United States Tax Court: An Historical Analysis,” 42 Albany Law Review 353.Google Scholar
DUBROFF, Harold (1977a) “United States Tax Court: An Historical Analysis,” 41 Albany Law Review 1.Google Scholar
DUBROFF, Harold (1977b) “United States Tax Court: An Historical Analysis,” 41 Albany Law Review 639.Google Scholar
DUBROFF, Harold (1976) “United States Tax Court: An Historical Analysis,” 40 Albany Law Review 253.Google Scholar
DUBROFF, Harold (1975) “United States Tax Court: An Historical Analysis,” 40 Albany Law Review 7.Google Scholar
ELIFFE, John T. (1971) Crime, Dissent and the Attorney General: The Justice Department in the 1960's. Beverly Hills: Sage Publications.Google Scholar
ELMAN, Philip (1987) “The Solicitor General's Office, Justice Frankfurter, and Civil Rights Litigation, 1946–1960: An Oral History,” 100 Harvard Law Review 817.Google Scholar
ELY, James (1976) The Crisis of Conservative Virginia: The Byrd Organization and the Politics of Massive Resistance. Knoxville: University of Tennessee Press.Google Scholar
FETNER, Gerald (1977) “Public Power and Professional Responsibility: Julius Henry Cohen and the Origin of the Public Authority,” 21 American Journal of Legal History 15.Google Scholar
FRUG, Gerald E. (1980) “The City as a Legal Concept,” 93 Harvard Law Review 1057.Google Scholar
GAL, Allon (1980) Brandeis of Boston. Cambridge, MA: Harvard University Press.CrossRefGoogle Scholar
GARRATY, John Arthur (1986) The Great Depression: An Inquiry into the Causes, Course and Consequences of the Worldwide Depression of the Nineteen-Thirties, as Seen by Contemporaries and in the Light of History. San Diego: Harcourt, Brace, Jovanovich.Google Scholar
GARROTT, M. Browning (1983) “Prejudice Goes to Court: The Japanese and the Supreme Court in the 1920's,” 62 California History 122.Google Scholar
GARROW, David J. (1978) Protest at Selma: Martin Luther King, Jr. and the Voting Rights Act of 1965. New Haven: Yale University Press.Google Scholar
GJERDINGEN, Donald (1986) “The Future of Legal Scholarship and the Search for a Modern Theory of Law,” 35 Buffalo Law Review 381.Google Scholar
GLENNON, Robert J. (1985) The Iconoclast as Reformer: Jerome Frank's Impact on American Law. Ithaca: Cornell University Press.Google Scholar
GOLDMAN, Eliot (1982) “Justice William O. Douglas: The 1944 Vice Presidential Nomination and His Relationship with Roosevelt, an Historical Perspective,” 12 Presidential Studies Quarterly 377.Google Scholar
GORDON, Robert W. (1984) “The Ideal and the Actual in Law: Fantasies and Practices of New York City Lawyers, 1870–1910,” in Gawalt, Gerard W. (ed.) The New High Priests: Lawyers in Post Civil War America. Westport, Conn.: Greenwood Press.Google Scholar
GOSSETT, E.H. (1976) “My Father the Chief Justice,” Yearbook of the Supreme Court Historical Society.Google Scholar
GRAEBNER, William (1980) A History of Retirement: The Meaning and Function of an American Institution, 1885–1978. New Haven: Yale University Press.Google Scholar
GRAEBNER, William (1976) Coal Mining Safety in the Progressive Period: The Political Economy of Reform. Lexington: University Press of Kentucky.Google Scholar
GRESSLEY, Eugene (1977) Voltaire and the Cowboy. Boulder: Colorado Associated University Press.Google Scholar
GROSS, James A. (1974) The Making of the National Labor Relations Board: A Study in Economics, Politics and the Law. Albany: State University of New York Press.Google Scholar
GUY, G.F. (1981) “The Defense of General Yamashita,” Yearbook of the Supreme Court Historical Society.Google Scholar
HALLER, M.H. (1970) “Urban Crime and Criminal Justice: The Chicago Case,” 57 Journal of American History 619.Google Scholar
HARBAUGH, William H. (1973) Lawyer's Lawyer: The Life of John Davis. New York: Oxford University Press.Google Scholar
HIRSCH, Harry N. (1981). The Enigma of Felix Frankfurter. New York: Basic Books.Google Scholar
HYMAN, Harold (1986) American Singularity. Athens: University of Georgia Press.Google Scholar
IRONS, Peter (1984) “Politics and Principle: An Assessment of the Roosevelt Record on Civil Rights and Liberties,” 59 Washington Law Review 693.Google Scholar
IRONS, Peter (1983) Justice at War. New York: Oxford University Press.Google Scholar
IRONS, Peter (1982) New Deal Lawyers. Princeton: Princeton University Press.CrossRefGoogle Scholar
JONES, William K. (1979) “Origins of the Certificate of Public Convenience and Necessity: Developments in the States 1870–1920,” 79 Columbia Law Review 426.Google Scholar
KALMAN, Laura (1986) Legal Realism at Yale, 1927–1960. Chapel Hill: University of North Carolina Press.Google Scholar
KATZ, Al (1979) “Studies in Boundary Theory: Three Essays in Adjudication and Politics,” 28 Buffalo Law Review 383.Google Scholar
KAYLOR, Dan (1983) “Orders that Wouldn't Wash: Historical Background of Yick Wo v. Hopkins,” 11 Lincoln Law Review 205.Google Scholar
KENNEDY, Duncan (1980) “Toward an Historical Understanding of Legal Consciousness,” 3 Research in Law and Sociology.Google Scholar
KLUGER, Richard (1975) Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality. New York: Knopf.Google Scholar
KNOX, J. (1984) “Some Comments on Chief Justice Hughes,” Yearbook of the Supreme Court Historical Society.Google Scholar
KONEFSKY, Alfred (ed.) (1982) The Legal Papers of Daniel Webster, Vol. 1. Hannover: University Press of New England.Google Scholar
LASH, Joseph (1975) From the Diaries of Felix Frankfurter. New York: Norton.Google Scholar
LINDGREN, Janet (1983) “Beyond Cases: Reconsidering Judicial Review,” Wisconsin Law Review 583.Google Scholar
LOFGREN, Charles A. (1987) The Plessy Case: A Legal-Historical Interpretation. New York: Oxford University Press.Google Scholar
LURIE, Jonathan (1972) “Private Associations, Internal Regulation and Progressivism: The Chicago Board of Trade 1880–1923 as a Case Study,” 16 American Journal of Legal History 215.Google Scholar
McEVOY, Arthur (1986) The Fisherman's Problem: Ecology and the Law in the California Fisheries 1850–1980. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
MARKOWITZ, Gerald E. (1980) “The ‘Crime of the Century’ Revisited: David Greenglass' Scientific Evidence in the Rosenberg Case,” 44 Science and Society 1.Google Scholar
MARTIN, Charles H. (1985) “Race, Gender and Southern Justice: The Rosalee Ingram Case,” 29 American Journal of Legal History 251.Google Scholar
MEIER, August (1976) “Attorneys Black and White: A Case Study of Race Relations within the NAACP,” 62 Journal of American History 913.Google Scholar
MISCAMBLE, W.D. (1982) “Thurman Arnold Goes to Washington: A Look at Antitrust Policy in the Later New Deal,” 61 Business History Review 1.Google Scholar
MONTGOMERY, David (1987) The Fall of the House of Labor: The Workplace, the State and American Labor Activism 1865–1925. New York: Cambridge University Press.CrossRefGoogle Scholar
MURPHY, Bruce Allen (1982) The Brandeis® Frankfurter Connection: The Secret Political Activities of Two Supreme Court Justices. New York: Oxford University Press.Google Scholar
MURPHY, Bruce Allen (1977) “A Supreme Court Justice as Politicians: Felix Frankfurter and Federal Court Appointments,” 21 American Journal of Legal History 316.Google Scholar
NOLAN, Dennis R. (1983) “American Labor Arbitration: The Maturing Years,” 35 Florida Law Review 558.Google Scholar
O'REILLY, Kenneth (1982) “A New Deal for the FBI: The Roosevelt Administration, Crime Control and National Security,” 69 Journal of American History 638.Google Scholar
PARRISH, M.E. (1984) “The Great Depression, the New Deal, and the American Legal Order,” 59 Washington Law Review 723.Google Scholar
PISCIOTTA, Alexander W. (1985) “Treatment on Trial: The Rhetoric and Reality of the New York House of Refuge, 1857–1935,” 29 American Journal of Legal History 151.Google Scholar
PUSEY, M.J. (1983) “Justice Roberts' 1937 Turnaround,” Yearbook of the Supreme Court Historical Society 103.Google Scholar
RASSMUSSEN, Wayne D. (1983) “New Deal Agricultural Policies after Fifty Years,” 68 Minnesota Law Review 353.Google Scholar
REEDY, George (1982) “The True Dawn of Civil Rights,” 14(3) Washington Monthly 46.Google Scholar
REEVES, William D. (1973) “The PWA and Competitive Administration in the New Deal,” 60 Journal of American History 357.Google Scholar
REITMAN, Alan (ed.), (1975) The Pulse of Freedom: American Civil Liberties: 1920–1970. New York: Norton.Google Scholar
RITCHIE, Donald (1980) James M. Landis. Cambridge, Mass.: Harvard University Press.CrossRefGoogle Scholar
SCHICK, Marvin (1970) Learned Hand's Court. Baltimore: Johns Hopkins University Press.CrossRefGoogle Scholar
SCHLEGEL, John Henry (forthcoming) “The Ten Thousand Dollar Question,” Stanford Law Review.Google Scholar
SCHRECKER, Ellen (1986) No Ivory Tower: McCarthyism and the Universities. New York: Oxford University Press.Google Scholar
SCHWARTZ, Bernard (1986) Swann's Way: The School Busing Case and the Supreme Court. New York: Oxford University Press.Google Scholar
SCHWARTZ, Bernard (1983) Super Chief: Earl Warren and His Supreme Court. New York: New York University Press.Google Scholar
SCHWEBER, Claudine (1981) “Criminalization and Incarceration: The Federal Response to Drug Addiction among Women, 1914–1934,” 4 George Mason University Law Review 71.Google Scholar
SHAFFER, B.D. (1978) “Responses to Competition in the Steel Industry 1918–1935,” 32 Southwestern University Law Review 835.Google Scholar
SIMON, James F. (1980) Independent Journey: The Life of William O. Douglas. New York: Harper & Row.Google Scholar
SMITH, Donald L. (1986) Zechariah Chaffee Jr., Defender of Liberty and Law. Cambridge, Mass.: Harvard University Press.CrossRefGoogle Scholar
STONE, L.H. (1978) “My Father the Chief Justice,” Yearbook of the Supreme Court Historical Society.Google Scholar
STRUM, Philippa (1984) Louis D. Louis D: Justice for the People. Cambridge, Mass.: Harvard University Press.Google Scholar
TAFT, C.P. (1976) “William Howard Taft, My Father the Chief Justice,” Yearbook of the Supreme Court Historical Society.Google Scholar
TEAFORD, John C. (1986) The Twentieth Century American City: Problem, Promise and Reality. Baltimore: Johns Hopkins University Press.Google Scholar
TEAFORD, John C. (1984) The Unheralded Triumph: City Government in America, 1870–1900. Baltimore: Johns Hopkins University Press.CrossRefGoogle Scholar
TEAFORD, John C. (1980) “State Administrative Agencies and the Cities 1890–1920,” 25 American Journal of Legal History 225.Google Scholar
TEAFORD, John C. (1979a) “Special Legislation and the Cities 1865–1900,” 23 American Journal of Legal History 189.Google Scholar
TEAFORD, John C. (1979b) City and Suburb: The Political Fragmentation of Metropolitan America. Baltimore: Johns Hopkins University Press.Google Scholar
THEOHARIS, A. (1978) “The Truman Administration and the Decline of Civil Liberties: The FBI's Success in Securing Authorization for a Preventative Detention Program” 64 Journal of American History 1010.Google Scholar
TOMLINS, Christopher (1985) The State and the Unions: Labor Relations, Law and the Organized Labor Movement in America, 1880–1960. Cambridge, Mass.: Harvard University Press.Google Scholar
TUSHNET, Mark (1987) The NAACP's Legal Strategy against Segregated Education, 1925–1950. Chapel Hill: University of North Carolina Press.CrossRefGoogle Scholar
UROFSKY, Melvin I. (1982) “Proposed Federal Incorporation in the Progressive Era,” 26 American Journal of Legal History 160.Google Scholar
VAUGHN, Stephen (1979) “First Amendment Liberties and the Committee on Public Information,” 23 American Journal of Legal History 95.Google Scholar
WALLIS, John Joseph (1984) “The Birth of the Old Federalism: Financing the New Deal 1932–1940,” 44 Journal of Economic History 139.Google Scholar
WHITE, G. Edward (1982) Earl Warren, a Public Life. New York: Oxford University Press.Google Scholar
WILLIAMS, David (1981) “The Bureau of Investigation and its Critics, 1918–1921: The Origins of Federal Political Surveillance,” 68 Journal of American History 560.Google Scholar
WITTE, John F. (1985) The Politics and Development of the Federal Income Tax. Madison: University of Wisconsin Press.Google Scholar
YAMAMOTO, Erick (1986) “Korematsu Revisited—Correcting the Injustice of Extraordinary Government Excess and Lax Judicial Review,” 26 Santa Clara Law Review 1.Google Scholar

Case Cited

Brown v. Board of Education, 349 U.S. 294 (1954).Google Scholar