The History of “Law Office History”

We at the Center for Judicial Engagement at the Institute for Justice are excited to share a new podcast with you! It’s called “Law Office History.” Its purpose is to engage with scholars of legal history and relate their scholarship to our efforts at IJ and with the broader classical liberal tradition. From the crafting of the Constitution to the mysteries of the common law to the convulsions of the twentieth century, we will explore the work of today’s legal historians by engaging them in conversation about their latest scholarship. And, as part of that exploration, we will try to bridge divides between—and among—professors, lawyers, and judges.

Our first episode just dropped. We welcome on University of Chicago law professor (and former IJ clerk!) Will Baude. Hopefully you can already find it on your favorite podcast app but if it’s not there yet you can listen here.

Stay tuned for future episodes with more fascinating content from other scholars. In the meantime, though, you might ask, what’s up with the name “Law Office History”?

As you may have guessed, it’s a bit of tongue-in-cheek. But there’s a serious side to it as well.

Cherry-picking the past

Most importantly, why did we pick it as the title? Well, it just kind of worked. We were already planning the podcast. We had a meeting to discuss various logistical issues and then it turned to always the most anticipated subject when either starting a podcast or forming a band: the name.  After a couple feeble attempts someone said “how about law office history?” And the rest of us were, like, “that’s it!”

In my experience “law office history” has a couple of different, overlapping, meanings. It can literally mean history written in a law office or it can mean legal history that’s one-sided, where the author cherry-picks facts they like and leaves out those that go against the preferred narrative. Although the two senses are often lumped together, cherry-picking can happen anywhere. One of the most notorious examples of shoddy history in recent decades (and which directly applied to contemporary legal debates) was the work of a tenured historian with an award-winning book.

IJ is, of course, a law office, so in one sense everything we produce about history is law office history! But we also strive to do history well and tell the whole story. That’s, for example, what my colleague John Ross has done for years with the Bound By Oath podcast.

Trees and Forest

You see the term “law office history” in all kinds of places these days, from the Supreme Court to all over the lower courts to the academic literature. From what I can tell, it was first used in the sense of lawyers writing history without the objectivity expected of historians by Howard Jay Graham, a pioneering historian of the Fourteenth Amendment who also worked with the NAACP in the lead up to Brown v. Board of Education. Months before the Court’s ruling in that famous set of cases (which Graham collectively called the School Segregation Cases) he wrote about how history can inform, and fail to inform, our understanding of the Constitution. He stated: “Law office history, willy-nilly, is a confining, proscriptive enterprise.” The Fourteenth Amendment and School Segregation, 3 Buffalo L. Rev. 1, 23 (1953). By that he meant a history that fails to see the forest for the trees, that gets too caught up in specific facts about, say, the Fourteenth Amendment’s adoption and not its larger purpose.

A few years later a congressman was raising a ruckus about what he claimed were “contrived or distorted historical facts by NAACP lawyers and their consultants.” Dr. Alfred H. Kelly, a professor of history at Wayne State who had also assisted the NAACP, defended their efforts in desegregation litigation, stating “each side submitted what may be called ‘law office history,’ the best facts they could put on the matter from their point of view.” He continued “‘As a professional historian, I engaged in no falsification of history, I prepared a paper which pointed out perfectly honestly some of the difficulties the NAACP had to face in its interpretation. Later, I helped work out a counter-interpretation which . . . had a great deal of merit in it.’” (This is taken from Samuel Hoskins, “Historian refutes slur on Thurgood,” The Afro-American 7 (Apr. 14, 1962).)

Here, Kelly used a much more neutral meaning of “law office history”; history done carefully but pursued in the context of trying to win a lawsuit. (Although he did later express some misgivings about his historical work in the case.)

Today the term is a pejorative. And that’s fine. We’re not here to defend “law office history.” We think it’s a catchy phrase that might get you to check out a podcast.

History and the law are for all of us

It does, however, raise a more serious point that some of the uses of “law office history” dance around. History is important in law. No court interpreting the Constitution—or, indeed, an old statute or an old legal doctrine—would be acting responsibly if it didn’t look at history. And yet history can be misused. And—clearly—trained, professional, historians have a leg up on researching and contextualizing history over lawyers or even judges who aren’t familiar with the history they are looking at.

However, as we discuss on our first episode, courts have a job to do. They’re in the business of providing answers. “History is complicated” without more doesn’t let a judge interpret an old law and rule for one side or the other. And if history doesn’t provide the answer in a case something else needs to.

So what do we do? The best we can. Legal history is a collaborative enterprise between historians, law professors, lawyers, judges, and others. And it also belongs to the general public, as we all have to live with how history influences the law and vice versa.

We hope you enjoy some “law office history” in coming episodes. At the very least you’ll learn that, in both law and history, a great many things keep happening, some good, some bad.