Blackwell is to be commended for commissioning this fine anthology of bibliographical essays on American legal history, although the pricing is not commendable, as it puts the volume beyond the reach of graduate students and most instructors. This is not to criticize the editors, Hadden and Brophy, who have done a superb job of gathering contributors and unifying their efforts (a task often compared to herding prairie chickens), not to mention bringing the project to fruition within the lifetime of this reviewer.
Over all the essays in the present volume falls the shadow of Cambridge University Press's three volume History of the Law in America (2008), sharing a number of contributors with the Companion. The former work has an essay carrying the story up to 2000, which makes one wonder why the chronological essays of Part I of the Companion end with 1970. The period 1970–2013 has been the most fruitful and exciting for American legal history, as the contributors to Parts II and III amply demonstrate in their essays.
I will refrain from reviewing each of the essays, space not permitting anything more than a sentence or two, to my mind of little more use to the reader than perusing the volume's table of contents on Amazon. All of the essays are able bibliographical summaries. Some do little more than list references, others are more synthetic, grouping the works cited into useful categories for graduate students preparing their comprehensive examinations, and offering suggestions for further study, but some of the essays offer gems of critical acumen. These latter, surmounting the inherent difficulties of the genre, deserve more attention. At the risk of alienating those not included in the latter category, the contributions of Alfred Brophy on the antebellum era through the Civil War, Felice Batlan on women's legal history, David Tanenhaus on law and the family, Elizabeth Hillman on legal history and the military, and Stephen Wilf on intellectual property, have tackled demanding subjects with elan and insight. John Henry Schlegel's piece on critical legal studies is a rare and delightful combination of personal recollection and scholarly commentary.
Brophy's essay shows the command of someone deeply immersed in the topic. It gives a foretaste of his long awaited treatise on Southern judges and jurists in the pre-Civil War era. The language is firm and confident, and the judgments are sound. Brophy locates the changing arguments of scholars in the changing context of their times, something that elevates the many citations above the ordinary “one damn [book] after another” one finds in such anthologies. If there is one cavil, it is the short shrift given the legal history of the Civil War itself: a fascinating topic that has attracted and will continue to attract scholars.
Batlan's essay captures the complexity—and the inherent tensions—in the field of women's legal history, because just as scholars divide over gender studies and the history of women, so also do legal historians have to determine how women's legal history is different from and yet intertwined with the rest of the field, all this while bearing in mind that for most of the period, women's contribution to law and legal institutions was from the bottom up rather than the top down. In her navigation of these rocky shores and whirlpools, Batlan takes her time. She gives key works more critical attention than do other contributors, in effect turning the essay into a history of women's legal history. It is a bravura performance.
Tanenhaus's study of the legal histories of family ties the American scholarship to European theoretical and monographic work. In his hands, the comparative approach works, tying theory to practice. The hero of his tale (if legal historiography can have heroes) is Michael Grossberg with his pioneering study of the family and law in the nineteenth century. Tanenhaus has chosen well; Grossberg's work is an enduring classic.
Hillman's contribution is a welcome synthesis of a subject long under-studied by traditional legal historians. In part because military law derives from non-common law sources, and in part because most historians are unfamiliar with courts martial, this essay more than others fills a gap in the literature. Graduate students and instructors will appreciate Hillman's lucid and straightforward explanations. Like Batlan's essay on women in the law, Hillman's is as much about military law as about the history of military law.
Stephen Wilf is one of the most original and sophisticated students of American law, and his essay on intellectual property bears this out. There is no topic in law that is more important to historians as writers than this, and yet historical accounts have been “missing” until quite recently (443). Wilf seizes the opportunity here presented to both survey the existing literature and add a substantive addition to it. This, of all the essays in the book, is most clearly that of a law professor, making the case for clearer definitions of authorship and copyright.
Schlegel's is a true declension narrative, the tale of a once-vibrant and now almost still critical voice. But even as he documents the rise and fall of the “crits” he proves how valuable their insights were, and how those insights such as “indeterminacy” have become part of our vocabulary. Whether we concede the fact or not, one cannot do legal history without overtly or implicitly taking critical legal studies into account. The same is true of this lively and informative anthology.
