Blog CXXXII (132): Legal History

Felice Batlan, an associate professor at the Chicago-Kent College of Law at the Illinois Institute of Technology, is the next contributor to the Eight Questions series.  After graduating summa cum laude in history from Smith College, Professor Batlan received her J.D. magna cum laude from Harvard Law School, where she served as executive editor of the Harvard Women's Law Journal. She clerked for the Honorable Constance Baker Motley of the U.S. District Court for the Southern District of New York and then worked at a law firm specializing in securities law and financial markets. She then joined Greenwich NatWest, an international securities firm, as associate general counsel and head of global compliance. She returned to the academic world, completing a Ph.D. in U.S. history from New York University.  Batlan has received awards for both teaching and service at Chicago-Kent.  Before teaching at Chicago-Kent she was at the Tulane University Law School in New Orleans.  She is associate editor and book review editor for the Law and History Review. She is currently finishing her book Gendering Legal Aid: Lawyers, Social Workers, and the Poor, 1863–1960, which explores the history of the development of legal aid in the United States and the significant and unknown role that women played as both providers and clients of legal aid. Here is her essay.

What is the greatest strength of your field? In the history profession?

As I studied the Eight Questions Series and contemplated my responses, it became clear to me that I am unqualified to discuss the state of the history profession generally. Like many (although certainly not all) legal historians, I am on a law school faculty. In the past, one could be a legal historian possessing only a law degree, but the current standard is that legal historians possess a J.D. and a PhD. One of the wonderful but perplexing factors about being a legal historian is knowing in what field one actually belongs. Legal historians are a strange combination of historian and legal scholar. This is especially the case when one is located in a law school. To be a legal historian in a law school provides significant freedom in determining what one writes about and what methodology to use. The law school legal historian can easily span time periods and geographies and can broadly define what law is and where we even locate law. It also provides one with the ability to write about the past or the present or to do both simultaneously. Yet, there are also tensions and pitfalls. As a historian, one is warned against being too presentist. As a legal scholar, one is asked continually to answer the question of what present norms should be. An even deeper conflict involves how some historians think about law quite differently than legal scholars. For example, I understand law as a particularly powerful discourse which has real and material consequences. I do not, however, believe that there is any objectivity to law or that law or courts somehow stand outside of historical forces. At times, I have been accused of simply writing unquantifiable stories as opposed to doing the real empirical work of the legal scholar. Yet from my training and perspective, I find such empirical work and even legal doctrine to be just another type of story that we tell. What is so wonderful about legal history is how big and encompassing the umbrella can be.

What is the biggest issue facing your field? The history profession?

Obviously, the university is in a period of transition, which reflects larger economic problems and ideological commitments. The question that we all face is what is the value of higher education, who should pay for it, should universities be producers of knowledge, and what makes knowledge valuable? From the perspective of the law school, legal education always has been pulled between seeing itself as part of a broad liberal arts education or as a trade school. In part (the loaded question is) should we be producing citizen lawyers or simply skilled practitioners. As the market for lawyers contracts, law schools are downsizing. Few law schools are willing to have more than one or two legal historians on faculty and very few legal historians teach only legal history. There are some commentators writing about the future of law schools who believe that a small number of elite law schools will have faculty who produce scholarship and the remainder of law schools will have primarily practitioners as faculty. Like the field of history more generally, legal historians are continually asked to justify the value of teaching legal history to students who will be practitioners.

What is the most interesting work being done in your field? Why?

I define myself as a women's legal historian and some truly fascinating and groundbreaking work is being done in this area, especially in connection with the very sophisticated ways in which legal historians are able to combine an analysis of race, class, and gender. Although this may sound like yesterday's news to some historians, this analysis has really come much later to legal history. Some of the most imaginative recent works have been able to blend intellectual, cultural, and social history. I also find it incredibly exciting when scholars are able to find gender in topics that appear to be ungendered such as the history of patent law.

How valuable is teaching in the professional development of a career?

My experience within law schools and the wider university is that teaching is not as central as it should be to hiring, tenure, and promotion decisions. That universities formally undervalue teaching does not mean that teaching is unimportant to one's own definition of success or how one feel about his or her self on a daily basis. Although my own tenure and promotion is based primarily on my scholarship, having an excellent reputation as a teacher among my colleagues and students is crucial to my sense of success and my own identity. While I prepare for class, I often think of myself as an actor and it is always my job to give the very best performance possible. I believe this to be a sacred duty to my students. Although it is wonderful to have one's scholarship appreciated, meeting former students who can say that I opened up their world to new ideas and ways of thinking is the real reward for me.

What direction or type of publishing would you advise a new Ph.D. to conduct?

Legal scholars primarily write for law reviews. The unique aspect of law reviews is that they are student run and students choose the articles that will be accepted. Most submissions to law reviews are not anonymous. If you want to be a legal historian in a law school, publish in the highest ranked law review possible. A number of top peer review journals also exist including Law and History Review. After you have published enough articles to meet tenure guidelines, then turn to a book.

What issues affect most the development of a career: family, school resources, popularity of field, reputation of alma matter, etc.?

Two main factors in terms of early career development are where your doctorate comes from and whom your advisers are. Within the field of legal history, there are a handful of institutions which produce the majority of legal historians. As your career developments, questions of resources (including funding) and the ability to take sabbaticals greatly impacts one's ability to produce scholarship. This is especially true in history where archival work requires funding and the ability to travel. I would also urge new legal historians to begin attending the annual conference of the American Society for Legal History. It is at the ASLH that legal historians physically manifest themselves as a visible community. I would also warn junior faculty not to take on too many committee assignments or outside projects. In other words, be selfish in terms of the time you need for scholarship. It is a real balancing act to build your reputation, be a good citizen of the university and profession, and leave time for research and writing.

What advice would you give to an undergrad interested in working on a Ph.D. in history?

Like the advice to an actor, dancer, or musician, only enter the profession if you truly love history and if you have a passion for teaching and writing. There is really no other reason to do it. If you are in a program and you are not enjoying it, then seriously think about leaving the program. This does not make you a failure. As with most of life, it has to be about the process and not the endpoint.

What advice would you give to a new Ph.D. unable to find employment in a history department?

For legal historians, the law school market has traditionally been better than the history market. In the law school market, it is often useful to market oneself as something other than a legal historian.