For more than a generation, students have learned what legal history is or can be by reading the essays of Bob Gordon.
Since I’m older than those students, although younger than Bob, my experience is slightly different. All through the 1970s and 1980s, I can remember — repeatedly — the experience of reading a Bob Gordon essay: of thinking “If only I were smarter, wiser, more learned, cleverer, funnier, I could write something like this.” So, jealousy is not far off the radar. But, also, the sense that Bob is a kindred spirit, who is working through things that I am trying to figure out. And because of his work, my thoughts about legal history, about the “field” to which I had committed myself, became different thoughts. I dare say they became better thoughts. That is, I was learning from him. Profoundly and deeply. Because he is smarter, wiser, more learned, cleverer, funnier than I could ever be.
What is legal history? Perhaps a stupid question here, among this distinguished audience. But I persist. What is the legal history that could become “Critical Legal History”? I suspect that if one looked really hard, one would still not find a single sentence or paragraph framed as an answer to that question throughout the whole Gordonian corpus. And I don’t think that is accidental. Legal history is sometimes nothing more or less than law — legal thought or legal study — done right. And for Gordon legal history was, au fond, a practice
So, I think that the answer for Bob to the question, what is legal history, is, or at least is often, what legal historians do, how they practice their trade. Who are legal historians? For Bob they are primarily those men and women who teach legal history in American law schools. Often, they have been those who burst on to the law school scene in the years after Morty Horwitz won the Bancroft Prize. That is, they are the children of Hurst, Horwitz, and (I would add) Reid. (There is a smaller localized story, which would focus on those who ate and talked together at Harvard Law School between 1967 and 1972. But I will leave that aside for others who were there to talk about.) Bob obviously immersed himself in a much longer and wider genealogy. One crucial part of his contribution to the field — one reason his work is canonical and required for every legal history graduate student — is in providing a genealogy and an ancestry for the post-Hurst and Horwitz generation. And he has taught and mentored women and men with wider and differing career trajectories. But he had and has a core focus, to which he adds a variety of peripheral views. His core focus is on men (and later women) who lived in American law schools and who brought history to bear on academic law.
Let’s call his core group — those he engages with most profoundly and deeply and, one might add, passionately — legal history professionals (Obviously, Bob also writes about a different group of legal professionals, about elite lawyers. But put that aside.). We can understand his legal history professionals as having a calling and a professional mission and a public identity. That is to say they are professionals. How to understand what they did (and do)? (For the purposes of this introduction, I am going to put aside the substantive differences between legal historians that shaped his Linnaean mapping of that world, in Critical Legal Histories and elsewhere. I leave to Reva [Siegel] and our other speakers to rehearse the problems of contingency and of functionalism that shaped much of the Gordonian corpus.)
What I am interested in is how Gordon might be understood as answering the question what it means to be a working, that is, a professional legal historian.
Let’s take two conventional sociological understandings of professionalization. In one, that I identify with Magali Larson, professionalization is all about the construction of a need. In the other, identified with the work of Andrew Abbott, professional identities are constructed in competition with alternative professional groups.
Both understandings help us answer the question what was Bob’s notion of what is legal history. His early essays were about how law schools repressed the need for history and about how that need kept bubbling up. Part of the brilliance of the Magali Larson inflected Gordonian legal history is its skill in showing how the “need” for professionalized legal history was constructed out of the political and legal culture of the law schools in the late nineteenth and early twentieth century. And Bob then detailed the ways his professionals — preeminently Hurst — met that need. But to all that he always added a passionate sense of what that same legal culture lacked and lost because of the repression or denial of that need. In that sense, Gordon is and was a true believer in the enterprise of legal history (within the law schools). And in contrast to his generally dystopian portrayal of lawyering and the legal profession, one feels his profound pleasure in the “rise” or emergence of legal history today. Even with all his ambivalence on display, for Gordon, Willard Hurst’s march was a triumphal one. And Hurst’s march led to those of others, even more triumphant.
But the Abbott version of professionalization is equally salient for understanding what Bob wrought. The struggles between law and economics and legal history, as well as a more negotiated and nuanced sense of the boundaries between critical legal studies and law and society scholars and those who do legal history, were constitutive (that word) of what Bob did in his most famous work. I read Bob as fundamentally engaged with a struggle for law, or better, for what it means to know law. Dueling epistemologies; dueling answers to the question how is it possible to know anything about law. For him, the stakes were and are fundamentally epistemological. He embodied or represented legal history, at least legal history rightly understood, as it struggled for space within the legal academy. Bob was always generous about who may be included within his professional community, who should be recognized as a legal historian. And yet, and at the same time, one senses that those who were most important to him were those legal historians who would fight for — dare I say it — the soul of a legal culture fundamentally identified with legal education.
Obviously, there is an alternative story of legal history professionalization and epistemology that occurred mostly outside of the law schools, as social historians — historians of gender and race and slavery and later on of the market revolution — discovered that they needed to know law, or at least the relevant law for their particular interests. And here too there was, along with the construction of a need, a struggle between legal history and competing professional groups (economists, and public choice scholars, and new political historians and new historicists and psychohistorians, and and and). And then some of those social historians who found law, got sucked deeper into the law, beyond the initial point of realizing that a legal text or case or document was not a clear or unmediated window onto past lives, on into the morass that is legal doctrine and legal thought.
But although Bob reads everything, and he has mentored many of those who participated in that alternative professionalization story, that was not what Bob wrote about, and also not what I believe he cared most about, which were the challenges that legal historians posed for the knowledge that came out of the law schools.
But a coda, before we move on to the real scholars with real things to say: There is a third, non-sociological — more humanistic — understanding of professionalization that is also relevant to the question what is legal history or who is a legal historian.. That is, we know what it is to be a legal historian by studying the morally and professionally exemplary lives of legal historians. Just as one who wanted to become a lawyer might want to engage with Abraham Lincoln or Oliver Wendell Holmes or Thurgood Marshall or Pauli Murray, as exemplary lives, so it is with Bob Gordon. For anyone who is serious about being a legal historian, I recommend they study Bob.
We have four wonderful scholars, who need no introduction. So, I will skip doing so. This crowd doesn’t need me to introduce Chris Tomlins, Sophia Lee, Dean Risa Goluboff (I love saying that.), and Reva Siegel. Bancroft Prizes, chairs, books, and much work that everyone of us will always read. Instead, I’ll save time so that we can have more of it for discussion and conversation.