For precise schedule of offerings see department catalog during pre-enrollment week each semester.

American Legal History (Law 267.4) is The Law & History Foundation Seminar for the Jurisprudence & Social Policy Graduate Program at Berkeley Law. It is a reading and discussion seminar taught under the auspices of the JSP Program, cross-listed with the Program in Critical Theory and with the History Department. The course is open to all JSP graduate students, Berkeley Law JD, LLM, and JSD students, graduate students from the History Department (History 280D) and the Critical Theory Program (Critical Theory 290), and graduate students from other campus programs and from other Bay Area institutions. As in previous years, Law 267.4 will explore the central themes of American legal development, while also investigating the way legal history has matured as a field of study or “discipline.” But we are living in interesting times, in which the varied exploitations of colonialism, racism, and capitalism have been made the subject of intense examination and argument. So this semester I want to give explicit attention to the question of how history – as theory, as philosophy, as method, or simply as narrative – can help us understand the role that law has played, and plays, in the construction of our times. The course will concentrate on the legal history of the United States, but it will begin and end with pointed glances at two other Anglophone common law jurisdictions – England and Australia. And, to set our discussion of theory and method in legal history off with a bang, we will begin with work by Louis Althusser, one of the most famous Marxist philosophers of the twentieth century, which poses the issue of how we should think about law as a phenomenon. In other words, what is law? Considered as a field of study, legal history is as much history as it is law, and history is primarily a discipline of the book. For this reason I have chosen to make Law 267.4 a course that focuses on books. Over the course of the semester our goal will be to develop a thorough grounding in American legal history’s formative literatures by reading a wide selection of the field’s best work, ranging from classics that have structured the field, stirred controversy, and inspired generations of scholars (like James Willard Hurst’s Law and the Conditions of Freedom and Morton Horwitz’s Transformation of American Law, 1780-1860), to the best work of the current generation of field leaders (like Laura Edwards’ The People and their Peace and Kunal Parker’s Legal Thought Before Modernism), to notable recent work by rising scholars (like Karen Tani’s States of Dependency and Ken Mack’s Representing the Race). We will accumulate considerable knowledge of the empirical substance of American legal history, but we will also give close critical attention to the very different ways in which scholars have chosen to write the history of American law (and the very different subjects about which they have considered it appropriate to write).

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