LEGAL HISTORY/HISTORY OF LAW AT BERKELEY
1870-2024
© Christopher Tomlins (26 August 2024)
Preface: History and Law, History of Law
As a field of study and practice in the modern university, history has always balanced, somewhat uneasily, between the humanities and the social sciences. The same is true of law. Is law art or science? Is it formed in the cloister of knowledge or the forensics of action?
Now put these two fields together. Legal history. Legal history purports to study the history of law – of legal discourse, and legal institutions, and legal cultures, and of the circumstances in and by which they are formed. Is this art studying art, or science studying science? Both?
At Berkeley, history and law have been entangled in one fashion or another virtually since the creation of the University of California in 1868, so this question – what is the connotation of “legal history”? – should always have been ripe for a response at the university, whether from among the academic lawyers of the law school or the scholarly historians of the history department Instead, despite (or more likely because of) their original entanglement, each party mostly preferred to go its own way.
But developments at the law school in the 1960s and 1970s made their encounter unavoidable. First came the creation of an interdisciplinary “Center for the Study of Law and Society ” (CSLS); then a PhD program called “Jurisprudence and Social Policy ” (JSP), followed by an undergraduate “Legal Studies” program Separately, but parallel to these developments, the law school became host to an extraordinary manuscript and rare book archive, the Robbins Collection, which made it a home (whether or not it wished to be) for ancient and medieval legal history, and the history of law and religion.
All of these new additions found themselves in much the same relationship to the law school. The Robbins Collection, the new center (CSLS), and the new graduate program (JSP) were all in but not exactly of the law school The center was a center not for law alone, but for law and society. JSP explicitly enfolded the school’s original name, the Berkeley School of Jurisprudence, within its own, which was a claim of heritage, while simultaneously exposing law’s substance to the interrogatories of social policy and the discipline of social science, a claim of innovation. And like the Robbins Collection, although in their case less in intellect and spirit than in critical perspective, both the center and the program counted history among the means of inquiry available to interrogate law.
Thus, from the 1960s onward, social science at Berkeley would scrutinize law and legal practice. It would aspire to teach others how to do so as well. How would historians participate in that programmatic mission? What would history add to these new forms of legal study ? At Berkeley, these were the questions around which the formation of “legal history” has occurred ever since.
This is an account of the entanglement of history with law at Berkeley, both before and after the arrival of “law and society.” The account describes a long and rich relationship, complete with multiple centers and colorful personalities, but also a certain absence of communication and coordination among the disparate institutional campus locales where legal history was to be found. So although the story is a positive one of slow constructive change, it is also studded with instances of mutual incomprehension and lost opportunities.
We will see that legal history at Berkeley was incubated in the law school. This came about despite the law school’s central institutional imperatives (its pedagogical and professional emphasis on training lawyers), but also partly in reputational tandem with those imperatives (the scholarly achievements of various high-profile faculty members, the development of its world-renowned rare book and manuscript archive). In substance, these roots meant that as it developed, legal history at Berkeley Law sprawled widely – beyond the history of the United States and beyond the practical context of “recent” history.
The creation of JSP did not mean any sudden new departure from these tendencies. Still, we will see that much would change in the fifty years following the program’s inception. JSP added a new and valuable center of orientation, with its own problems and possibilities to work out. Most important, it added graduate students. In the field of legal history it added emphasis on the United States where before there had been little, while simultaneously helping to ensure that Berkeley’s legal history would be deeply interdisciplinary – as one can tell from the dissertations written and from the careers pursued. We will see that this essential plurality of purpose would eventually become the character of legal history elsewhere on campus, in the History Department and beyond.
Over time, trends in legal scholarship, trends in historical scholarship, and the temptations and rewards of interdisciplinarity have slowly created a contemporary intellectual world at Berkeley in which legal history – the history of law and legal institutions, of legal discourse, and legal cultures, and legalities – has never been better served by a greater range of Berkeley scholars, campus-wide, than it is now. Here we tell the story of how this came to be.
1. 1870-1970: the First Hundred Years
At first they were joined at the hip, then they were cleft apart. Law and History, that is. On August 17th, 1894, the regents of the University of California resolved “That the branch of study now in charge of Professor Jones and constituting a part of the courses in the Department of History and Political Science, be separated from that department and formed into a new department embracing: (1) Constitutional Law of the United States, (2) International Law, (3) Roman Law, and (4) Jurisprudence.”
The newly- created department was the Department of Jurisprudence, eventually to become the University of California, Berkeley, School of Law. “Professor Jones” was William Carey Jones. He, with Professor Bernard Moses, had comprised the entirety of the Department of History and Political Science since its creation in 1882
Jones and Moses had both started out under the banner of the university’s “Letters or Classical” course of study: Jones taught Roman Law, Moses taught most of the rest: courses in history, political economy, and political science, the latter with an inclination toward jurisprudence and civics. Then, in 1882, Moses led a reorganization of the schedule of studies to produce a Course in Letters and Political Science, and a Department of History and Political Science to teach it. He would be its head, Jones would be an instructor in United States history and constitutional law. The new department offered courses in English, U.S., and European history, Roman law and jurisprudence, U.S. constitutional history, political economy, and advanced political theories. In 1886 it added U.S. constitutional law. In 1887 Jones became assistant professor of history
Hastings College of the Law had been founded in 1878, so in 1894, when the regents created the Department of Jurisprudence, the university already had the law school envisaged in its founding legislation. The Department of Jurisprudence was to be quite different, “strictly scientific” in character, its purpose to study law as a science for its own sake, provide prospective professional students with instruction in concepts and principles essential to their rational comprehension of the law they would encounter in practice, and furnish the general education in jurisprudence required to prepare responsible citizens for life in a democratic country. Jones taught everything: courses on the federal constitution and its formation, and on U.S. constitutional law; courses on the principles and history of international law; courses on Roman law, comparative law, and jurisprudence.
Moses, meanwhile, devoted himself to the development of the social sciences at Berkeley. When History, Economics, and Political Science became separate departments in 1902-03, Moses associated principally with political science. But his pioneering research on the history of imperial Spain and Latin America would echo years later in the work of Berkeley historians such as Herbert Bolton, and in the distinctive approach to American history that Bolton would build into the History Department.
The Institutional separation of law from history on display in Berkeley’s late-nineteenth and early-twentieth century reorganizations was not unusual. The same disciplinary revolution had been underway for years in American universities, as legal education professionalized and differentiated itself, and as history followed the same path of institutional self- definition and specialization as the social science disciplines.
What was interesting in Berkeley ’s case was the possibility that the “Department of Jurisprudence” might become something other than a dedicated law-teaching enterprise. After all, Hastings’ role as the university’s law school relieved it of that pressure. William
1 See Appendix 1, p. 40.
2 See Appendix 1, p. 41.
Carey Jones wrote of law not as fixed principles or rules but as a social process “of constant becoming.”
It was not to be. Despite the department’s classical provenance and scholarly expertise in civil law and jurisprudence, both Jones and university president Benjamin Ide Wheeler saw its future in training lawyers. Though located in the College of Social Sciences, its “strictly scientific” character was not to be social in nature. What “strictly scientific” meant was academic excellence in professional instruction in law, in contrast to the purely forensic “practitioner teaching ” to be found at Hastings. Once equipped with its own building (“Boalt Hall,” now Durant Hall), the department became its own college (1911) and then a year later the college became Berkeley’s “School of Jurisprudence,” the name by which it would be known until 1950, when it became the “School of Law.”
At Berkeley, legal education came to be dedicated, as elsewhere, to case method. It was both rigid and exacting. Entering classes had an attrition rate of 50% or more. “It was a twelveman faculty, something like that, at that time, to a student body of maybe three hundred or so.” This was Arthur Sherry, professor of law and criminology, recalling his days as a Berkeley law student at the beginning of the 1930s. “You just went through this institution and if you passed your examinations, okay, and if you didn't, out you went. That was all.”
The school was not without distinction “They were a good strong faculty,” says Sherry. “They were very, very bright, very strong teachers.” In 1919, Barbara Nachtrieb Armstrong was appointed to a joint position in the Department of Economics and the School of Jurisprudence as lecturer in social economics and law. That was certainly distinctive, because when she joined the law faculty full-time in 1923, she became the first woman to occupy a full-time faculty position at an accredited American law school
The same year the school appointed Max Radin, an ebullient classicist whose erudition in common law, civil law, Roman law, and any number of other fields, knew few bounds. In the 1920s and 1930s, a time when legal history attracted little interest in American law schools Radin was one of two Berkeley law faculty members who identified legal history as a subject
3 See Appendix 1, p. 42.
4 See Appendix 1, p. 42-43.
of interest. The other was Orrin Kip McMurray, who had succeeded William Carey Jones as dean in 1923.
Elsewhere on the Berkeley campus, European refugees from Nazism – Carl Landauer (Economics), Walter Friedlander (Social Welfare), and perhaps Hans Kelsen (Political Science) – might be thought of broadly as “legal historians” of the genus produced (like Max Weber) from the German historical school of economics and political science and political theory that had earlier bred Bernard Moses. No Berkeley law faculty member would so identify until the arrival of another refugee, Stefan Riesenfeld, in 1955. Indeed, when Kelsen had been presented to the School of Jurisprudence as a prospective appointee, he had been turned away!
Across the way at Wheeler Hall, there was little interest in the history of law. The History Department had its medievalist, Jacob Bowman (1875-1968), who presumably had to know some canon law to do his job. But Bowman’s research interest was seventeenth- century English history. He taught medieval history because that was what he had been hired to teach.
[Interestingly enough, in the 1920s Jacob Bowman would become utterly captivated by the history of California land grants. Researching the land grant records was such a formidable task that Bowman undertook a comprehensive revision of the index to the Reports of Land Cases Determined in the United States District Court, Northern District of California (1862) compiled by District Judge Ogden Hoffman, which was the only real guide to the grants. To undertake his revision Bowman conducted a full survey of all the land grant papers dispersed amongst the Board of Land Commissioners’ case files (then in the U.S. District Court in San Francisco, now in the Bancroft Library) and amongst the original Spanish and Mexican government land records (then in the office of the Surveyor General in San Francisco, subsequently removed to the National Archives in Washington D.C.). Hired in 1906 to teach medieval history, Bowman ended up as Historian at the California State Archives in Sacramento, and wrote widely in California history.]
Bowman apart, the History Department was strong in European (seven faculty members) and Latin American history (three), with three U.S. teachers. It was distinctive because the baronial department chair, Herbert Bolton, required that the Americas be taught as one field, in the manner pioneered by Bernard Moses.
At the time, the department had no research tradition to speak of. It was a pleasant place to teach and to be taught. It was provincial, like the university itself; not especially demanding. Between 1939 and 1950, it was stirred by the presence of the great medievalist Ernst Kantorowicz, who certainly did know his canon law, and a lot more besides. Yet another
5 See Appendix 1, p. 43-44.
refugee, Kantorowicz, a Jew, had been forced out of the University of Frankfurt. Ironically, his decade in Berkeley was ended by a new round of political persecution, the second Red Scare, when he refused to sign a loyalty oath. Uprooted once more, Kantorowicz left for the Institute of Advanced Study at Princeton, and the History Department relapsed into parochial mediocrity.
But not for long. The 1950s were transformative: Gene Brucker, William Bouwsma, and Richard Herr (all cultural historians), Thomas Kuhn (history of science), David Landes (economic history), Hans Rosenberg (social history) Nicholas Riasanovsky and Martin Malia (both Russian history), Carl Schorske (another cultural historian) – an extraordinary influx that, with many other appointments during the thirty years after World War Two (Kenneth Stampp, Robert Brentano, Charles Sellers, Henry May, Adrienne Koch, Richard Abrams, Lawrence Levine, Robert Middlekauff, Winthrop Jordan, Leon Litwack, Ira Lapidus, and on and on) established the great age of Berkeley’s History Department. Collectively, they recreated history in method, and meaning. Out went politics, diplomacy, institutions, and elites. In came society and culture – new fields, new subjects, new people, new places. “A good upper-mediocre department was transformed into a first-rate one.”
In all of this, however, there was little “legal” history. If social and cultural historians engaged with legal archives they did so as record or data, not as expression of technique, or ideology, or doctrine, or story, or constitutive disposition. One of the few proponents of the legal archive as such, Natalie Zemon Davis, would – like Kantorowicz – have a comparatively fleeting (1971-1976) relationship with Berkeley’s History Department. In 2016, she was elected an Honorary Fellow of the American Society for Legal History, the society’s highest honor. It is unlikely that Natalie Davis thought of herself as a legal historian in the first half of the 1970s, but if she did it is highly unlikely that was the reason she was hired.
In fact, of the seventy-three men, and one woman, appointed to Berkeley ’s History Department between 1946 and 1969, the only identifiable “legal historian” was Thomas Barnes, tersely described by the department in typical fashion by region and temporal span: “Britain since 1509, Tudor-Stuart England, English legal history to 1700.”
Barnes, who joined the History Department in 1960, began teaching classes in the law school in 1965. He would join the law faculty as a joint appointee in 1968. He had no law degree but in English fashion he had read for the bar, in pupillage, at Lincoln’s Inn, London. In the History Department Barnes overlapped with Lawrence
TOM BARNES 6 Averell Harper, 7 a historian of early America who was a lawyer, and indeed for much of his Berkeley teaching career ran a law practice as well.
6 See Appendix 1, p. 44-45.
7 See Appendix 1, p. 45-46.
Harper taught a department course on constitutional history until his retirement in 1968. Barnes also overlapped with James Kettner, appointed in 1973, who was in effect Harper’s replacement. This very conventional Anglo -American dynasty comprised the entirety of identifiable legal history in the History Department into the early 21st century.
2. Change at the Law School: Growth, Robbins, CSLS, and JSP
The law faculty that Barnes joined in 1968 had nearly tripled in size since the end of World War Two, from fourteen to forty. In the early 1970s it would pass 60, and keep growing. Besides Barnes, the faculty included John T. Noonan, a polymathic scholar standing at the intersection of law with religion and with medieval and early-modern history. It also included Michael Smith, 9 who taught constitutional and legal history, and who also had a strong interest in law and religion. Both had joined the faculty in 1967. With Stefan Riesenfeld, another polymath interested in legal history, and Richard Buxbaum, an international and comparative law scholar with his own distinctive leanings toward history, the group had become quite large and varied.
8 See Appendix 1, p. 46.
9 See Appendix 1, p. 47.
10 See Appendix 1, p. 47-48.
11 See Appendix 1, p. 48-49.
As such, the group represented a comparatively unusual concentration for an American law school During the 1960s the number of American law school academics identifying legal history as a subject of interest tripled, from approximately thirty to approximately ninety. But the number itself remained tiny. At the end of the 1960s the annual directory of the American Association of Law Schools listed some 4,800 law teachers spread across its 149 member schools.
By this time, Berkeley’s School of Jurisprudence had long since ceased to be. In 1950 it had become the University of California School of Law, Berkeley, and it had moved uphill to the southeast corner of the campus, where it remains today, now named Berkeley Law. The move meant the law faculty became spatially isolated, quite far from the central (“lower ”) campus area where the original Boalt Hall had stood.
Some on the faculty thought the separation entirely appropriate. Desirably, law students would develop a sense of group commonality, away from distractions Campus research projects and institutes offered faculty channels for collaboration, if they were interested; the law school’s contribution was its own Earl Warren Legal Institute (now the Institute for Legal Research) established in 1967, a major addition to the school’s fabric. But in general, opportunities for integrated interdisciplinary law-related research remained quite few on the Berkeley campus. In the law school, legal history as a field of study would remain somewhat turned in upon itself.
Yet those internal possibilities were to prove immensely important.
First, in 1970, the school welcomed two of the finest European legal scholars of the twentieth century, David Daube and Stephan Kuttner. Each German by birth, each originally a refugee from Nazism, Daube and Kuttner joined the law faculty, from Oxford and Yale respectively, as titular co -directors of The Robbins Collection
12
13
Lloyd Robbins was a wealthy San Francisco lawyer, a collector of rare books and manuscripts with a particular interest in canon law. In 1950 he donated his canon law
12 See Appendix 1, p. 49-50.
13 See Appendix 1, p. 50-51.
collection to the law school library. Further gifts followed, endowing a fund to be devoted to the development of collections in canon law, medieval and Roman law, and the law as expressed in and related to Christianity and other religions. Robbins died in 1955, leaving his estate to his wife, Beatrice Clayton Robbins. On her death, in 1969, the Robbins Library Fund was the recipient of another very substantial gift.
The Robbins Collection was established and, initially, managed by the law school’s librarian, Vernon Smith (1905-1959) After Smith’s untimely death, responsibility for the Collection fell to the law library’s foreign law librarian, Thomas Reynolds (1933-2021), until the appointment of Daube and Kuttner. Daube became Director of the Robbins Hebraic and Roman Law Collection, Kuttner became Director of the Robbins Collection of Canon law, and Berkeley became home for the Institute of Medieval Canon Law that Kuttner had established fifteen years earlier (Since 1991 based at the University of Munich, and now, since 2013, at Yale Law School, the institute has been known since his death as the Stephan Kuttner Institute of Medieval Canon Law.) Their presence attracted medieval legal history and comparative law scholars such as James Gordley, who came to Berkeley in 1977, initially as a Fellow of the Institute of Medieval Canon Law, and would stay on as a member of the faculty for the next thirty years. Meanwhile, much of the actual work of collection development continued to be the responsibility of the law school’s librarians, notably Tom Reynolds, and later Nanette Stahl (currently Joseph and Ceil Mazer Librarian for Judaic Studies at Yale).
Daube and Kuttner remained co - directors until 1988, when they both retired, to be succeeded by
14 Laurent Mayali as Director of a unified Robbins Collection. Mayali oversaw a modernization of the management of the collection’s holdings, the creation of a catalog, and the refocusing of its endowment. With the law library’s Tom Reynolds, and the Robbins Collection’s own collection development librarian Lucia Diamond, he began expanding the Collection’s holdings toward the hundreds of rare manuscripts and tens of thousands of incunabula, rare books, and other items that comprise the Robbins Collection today. In 1997 the collection moved into a greatly enlarged and dedicated facility in Berkeley Law’s new “North Addition,” where Robbins became today’s internationally renowned special collections library and research center for the history of Roman and ancient law, Jewish law, medieval law, and law and religion
14 See Appendix 1, p. 51-52.
15 See Appendix 2, p. 67.
The impact of the Robbins gifts was felt not only in the Robbins Collection itself but in the general development of Berkeley Law as a major center for international and comparative law research. A second and smaller amount of money – a quarter share in a $1m funding program developed by the Russell Sage Foundation to encourage the melding of law with social science – would eventually have as important an impact on the law school as the multiple Robbins bequests. By creating a “Center for the Study of Law and Society” (CSLS) at Berkeley in 1961, followed by centers at Wisconsin (1962), Northwestern (1964), and Denver (1964), the Russell Sage program encouraged a sea- change in research on law. At Berkeley, CSLS would eventually bring about something of a transformation in the character of the law faculty that would include a significant expansion in the realm of legal history as a field of study. CSLS did this by spawning the interdisciplinary graduate program called Jurisprudence and Social Policy (JSP) JSP in turn identified legal history as one of its core disciplinary components.
Initially, the disciplinary orientation of CSLS was predominantly toward sociology, and later criminology. Philip Selznick, then chair of the Sociology Department, was instrumental in obtaining the Russell Sage funding. As chair of the center he recruited a former student, Sheldon Messinger (a sociologist and critic of orthodox criminology), as a full-time vice- chair. In 1962, Jerome Skolnick joined the sociology department with a CSLS affiliation, as did Jerome Carlin a year later. Philippe Nonet, then a doctoral student in sociology, became another adherent. So did Caleb Foote, a criminal and family lawyer famous for his conscientious objection during World War Two, who joined the Berkeley law faculty in 1965. Sanford Kadish and several other law faculty recruits from the law school’s steady 1960s growth took an interest: Kadish listed “Law and Society ” amongst his subjects – one of just 85 law teachers nationally to do so in the late 1960s, and one of four at Berkeley (the others were Foote, John Coons, and Herma Hill Kay).
By the end of the decade CSLS had built critical mass. But although administratively the center was located in the law school, as a research endeavor it drew almost entirely from criminology and sociology. Its proponents’ sociology of law was quite respectful of law’s juridical autonomy. For them, law was as much jurisprudence as data. They were, one might say, closer to Weber than Durkheim. Still, what Selznick wanted was to be closer to law.
Selznick’s opportunity arose amid the repercussions of Berkeley’s decision to discontinue its School of Criminology. Chronic internal disagreements over method, theory, and purpose rendered the school vulnerable to the administrative fiat of central campus at a time when the radical criminology espoused by some faculty members had also made the school politically notorious. The school was finally killed off in 1976, its faculty distributed to other parts of campus, or sacked. With the close cooperation of Kadish, who had become the law school’s dean in 1975, those of the School of Criminology ’s faculty who were closely affiliated with CSLS and politically acceptable (Messinger, Skolnick) joined the law faculty So did Selznick and Nonet, both of whom, however, retained an affiliation with Sociology
Since 1974, CSLS affiliates had been formulating a plan for a new sociolegal studies graduate program – Jurisprudence & Social Policy – to be housed in the law school and focused on law and society, and on criminal justice. By absorbing what Kadish called the “sad remains” of the School of Criminology, plus Selznick and Nonet, the law school acquired the faculty who would launch the program Uniquely for an American law school, Berkeley had
acquired a PhD program, and a bevy of sociolegal scholars to teach in it, whose research commitments were quite distinct from most of their law faculty colleagues. It had also acquired an undergraduate program in Legal Studies, taught by those same sociolegal scholars. Although not exactly a fait accompli, for an accomplished but relatively orthodox provincial law school, these – just like the Robbins Collection but much more immediate because they involved faculty appointments and graduate admissions – were major changes in profile and commitment. Some faculty bristled at the possibility that JSP would open “a backdoor ” into legal education for unwanted ideas, and unwanted people.
As JSP matured, it began to fill the faculty gaps that its mooted curriculum in both undergraduate and graduate programs required. Planning documents referred to “Historical and Comparative Studies” as a key element in the undergraduate program, although confined to an Anglo -American field of study. They would include “the common law tradition” and “studies in American legal history.” In the graduate program, appreciation of “law in context” would require, amongst other things, examination of the “historical … foundations of legal rules and policies”; it would require an understanding of “the legal order and socioeconomic change”; it would require “studies in socio -legal history.”
HARRY SCHEIBER 16
DAVID LIEBERMAN 17
Among the new faculty lines earmarked for JSP and Legal Studies, two were to be devoted to this “comparative/historical” realm. The first was filled in 1980, and at a senior level, when Harry Scheiber joined the law faculty from the History Department at the University of California, San Diego, where he had been Professor of American History. Scheiber’s research in American legal, constitutional, and economic history made him an obvious choice for both new programs. The second appointment was made at a junior level. David Lieberman joined Berkeley Law in 1984 from Christ’s College, Cambridge, where he was college fellow and Director of Studies in History. This too was an outstanding choice, for Lieberman, who had written his dissertation on Jeremy Bentham, was a brilliant student of the history of the
16 See Appendix 1, p. 52-53.
17 See Appendix 1, p. 53-54.
common law, of English constitutionalism, and of eighteenth- century British legal thought. In addition, JSP hired Charles McClain, well known for his work on the legal history of Asian Americans, as vice- chair of the program, lecturer in residence in the law school, and a significant teacher in the Legal Studies program.
It is not surprising that JSP’s planners identified history as an essential component of the program. The 1970s and 1980s, after all, were the takeoff years for historical study of law in the United States, at least if law teachers’ interest is any guide. From fewer than 100 law teachers identifying legal history as a subject of interest at the end of the 1960s, the number leaped to 250 at the end of the 1970s, and to 370 over the following ten years, eventually reaching 500 in 2010.
CHARLES J. MCCLAIN 18
History was an influential strand in “law and society” as a result of the work of Wisconsin’s James Willard Hurst “at the borderland of law and economic history,” as Scheiber had described it in 1970. History also played a distinctive role in one of the most exciting movements then underway in legal scholarship, Critical Legal Studies. Neither Scheiber nor Lieberman were “Crits” (Berkeley was not a bastion) but together in JSP they created a viable “modern” nexus for legal history at Berkeley alongside the Ancient and Medieval European orientation of the Robbins Collection.
3. Trends in the History Department
So we might ask, at this point in the 1980s, with the wealth of materials at the Robbins Collection attracting visitors, with legal history “in the air,” with historians in place in the JSP Program and graduate students entering the program intent on studying with them, what impact – if any – did all this activity at the law school have on the History Department?
Certainly there were occasions for institutional cooperation. History’s Tom Laqueur, for example, was a member of JSP graduate student David Neal’s dissertation committee, alongside Messinger (chair) and Selznick; some years later he would serve on Shai Lavi’s committee, chaired by Philippe Nonet. James Gregory was a member of Victoria Saker Woeste’s committee, and Richard Abrams a member of Amy Lynn Toro’s committee, both chaired by Scheiber. James Kettner was a member of Lucy Salyer’s committee, alongside Scheiber and Lieberman. Salyer remembers Kettner’s participation as important and meaningful to her. His Development of American Citizenship, 1608-1870, was “a foundational text for those of us who study the history of citizenship.”
But in the History Department, Kettner was remembered less as a scholar than as a teacher popular with graduate students. And judging by the dissertations they wrote, not many of those graduate students fancied themselves legal historians During the 1970s, when the History Department was averaging 27-28 completed dissertations each year, no more than eleven dissertations during the entire decade are identifiable as legal history, broadly defined, mostly on topics that suggest Tom Barnes’ influence. In the 1980s, when the
18 See Appendix 1, p. 54.
total number of completions drops to an average of 17-18 each year, just three during the decade are identifiable as legal history.
Richard Helmholz, who finished his Berkeley dissertation in 1970 and would enjoy a long and illustrious career as a medieval legal historian, identifies Robert Brentano and Gene Brucker as history faculty members interested in legal history because “their research intersected with the law.” He remembers being drawn to medieval legal history by Peter Herde “a medievalist from Germany who knew a lot about the history of canon law,” who was a visitor to the History Department, and very likely also to Kuttner’s Institute and to the Robbins Collection’s canon law collection. “I took two courses (at least) with him and got started on the subject.” Another would have been the medievalist Gerard Caspary, who arrived at Berkeley the year Helmholz departed for Washington University, St. Louis. Michael Steven Hindus, whose well-known Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767-1878 (1980) is a revision of his 1975 Berkeley history dissertation, remembers much less interest in the History Department. “There really was no legal history at all at Berkeley, other than Tom Barnes … I found a more interdisciplinary home at the Center for the Study of Law and Society … but still I was the only historian.”
Michael Meranze completed the dissertation that would become Laboratories of Virtue in 1987, with James Kettner as his principal advisor. Like Hindus, he remembers little legal history in the department, did not consider himself a legal historian, and chose Kettner as his advisor not for Kettner’s expertise in legal history but because Kettner considered himself primarily an early Americanist and was tolerant of Meranze’s theoretical interest in Marx and Foucault (“I had the honor of being redbaited by Winthrop Jordan my first year in graduate school”).
At the end of the 1980s, legal history was booming in the United States, and not just in law schools. The measures of its professionalization and academic standing – membership in a dedicated association, submissions to a dedicated peer-review journal – were strong, and would strengthen further in the coming decade. Both measures revealed significant numbers of legal historians in history departments. But not, or at least not obviously, at Berkeley Anne MacLachlan remembers the History Department in the 1970s and 1980s as “a collection of duchies based on field area.” Graduate students in one field had little contact with students in other fields, which meant that innovations did not spread.
Berkeley History remained the first-rate department it had been for thirty years, powerful in the social and cultural realms into which it had expanded in the 1950s and 1960s. But intellectually Berkeley History was not particularly adventurous. “Someone like Leon Litwak who was radical politically,” says Meranze, “was about as conventional a social historian as you could find.” Legal history was a field the department offered to incoming students, but apart from Barnes in his joint appointment, and perhaps Kettner, who was there to teach it?
During the 1990s, the department’s graduate students completed 252 dissertations, but as before only a tiny fraction of these (no more than ten) conformed to even a generous definition of legal history.
In one important respect, however, those ten dissertations are highly informative, for what is interesting and significant about them is their geographic diversity. The dissertators of the 1990s included Melissa Macaulay, “The Civil Reprobate: Pettifoggers, Property, and Litigation
in Late Imperial China, 1723-1850” (1993); William Meehan, “Family Conflict and the Construction of Legal Narrative in France at the End of the Old Regime” (1994); Girish Bhat, “Trial by Jury in the Reign of Alexander II: A Study in the Legal Culture of Late Imperial Russia, 1864-1881” (1995); Ann Blum, “Children without Parents: Law, Charity, and Social Practice, Mexico City, 1870-1940”; Janet Theiss, “Dealing with Disgrace: The Negotiation of Female Virtue in 18th-Century China” (1998). They also include the incomparable Nasser Hussain, “The Jurisprudence of Emergency: Sovereignty and the Rule of Law in British India” (1996).
Barnes and Kettner – and for that matter Scheiber and Lieberman – all represented legal history in its traditional (for the United States) Anglo -American heartland. Here were fragmentary indications of a much broader interest – in European history, in Chinese history, in South Asian history. Legal history “was never a structured ‘field’ in Indian history as I taught it,” writes Thomas Metcalf. But “law is of course central to any study especially that of colonial history. I always let my students pick their own research topics within my larger interests. Apart from Nasser Husain, I don’t think any one of them specifically chose legal history, but it could not be avoided – even, say, in my own research on rural land tenure.”
For Mark McNicholas, who began graduate study in the History Department in 1992, “legal history per se was not ‘a thing’ in the History department.” Just as MacLachlan remembers the 1970s and 1980s, so for McNicholas, “the large Ph.D. cohorts of the 1990s seemed fairly siloed along geographic lines ... There was no legal history circle and no systemic links to the Law School, at least not that I was aware of from my little perch in the Chinese history community. And yet, for a few of us the long arm of the law proved inescapable once we chose our dissertation topics, and trends in the field were conducive to including legal history in our research.” Janet Thiess confirms that “none of the faculty in Chinese Studies at that time had an interest in legal studies per se.” But they were encouraging. “The archival trove of legal cases from Qing Dynasty China (18th – 19th centuries primarily) was newly available to researchers and there was so much foundational work to do situating these sources within the institutional context of the late imperial Chinese judicial system.” Thiess saw herself working in Chinese history rather than legal history: “I never took a legal history course, nor did I seek out conversations with others doing legal history in other countries.” But although her field was firmly Chinese history, the particulars of her research required “an understanding of legal institutions and processes. Legal cases are far from ‘transparent’ representations of ‘reality.’” 19
Legal history, then, was slowly seeping into the History Department through the bottom boards of graduate student interest.
19The sheer scale of graduate study in the History Department spells difficulty for any particular line of expertise to gain visibility as such. In the 1970s and 1980s, incoming cohorts of graduate students averaged 50 per annum. With PhDs awarded averaging 21 per annum, there was clearly considerable burnout. In succeeding decades the admissions cohort size declined steadily to roughly 28 (2004/052013/14), while PhDs awarded remained steady in the low 20s. Reduction in overall scale and a less drastic burnout rate may have allowed subgroup interests room to emerge.
4. Trends in the Law School
In the law school, the field lost its most senior monuments to the inevitabilities of time. The 1990s saw the end of the era of the great European scholars. Stephan Kuttner died in 1996. Stefan Riesenfeld and David Daube both died in 1999. As figures in the school’s intellectual landscape, they were irreplaceable. Michael Smith retired in 1994. Robert Post joined the faculty in 1983 and stayed for 20 years but eventually left for Yale in 2003. Reva Siegel joined in 1988 but left for Yale in 1994. For both, history of law was a significant component of both their intellectual and their scholarly self- definition, T ROBERT POST 20 particularly for Siegel, REVA SIEGEL 21 although, Siegel writes, “it did not nest easily with what anyone was doing at Boalt at the time.” Throughout the 1980s (1978-1991), the Marxist historian Herbert Aptheker was a frequent visiting lecturer at the law school, where he taught courses on Race and Racism and the Law.
Still, deaths, retirements and departures meant the ranks were thinning throughout the 1990s and beyond. Mayali was a vibrant and engaged director for the Robbins Collection; Michael Smith was still teaching in the undergraduate Legal Studies program when Ashley Rubin (future JSP graduate student) was an undergraduate. “I took as many history classes as I could,” she writes, with Chuck McClain, and also with Smith. “He taught a philosophy of punishment class that was pretty historical.” Barnes and Gordley remained active. But Barnes retired from the faculty in 2006, and in 2007 Gordley departed for Tulane. HERBERT APTHEKER 22 Michael Smith died in 2009, Barnes in 2010.
Within JSP, Scheiber and Lieberman remained the legal historians in situ. Scheiber continued to supervise dissertations in American legal history: Barbara Leibhardt Wester, “Law, Environment, and Social Change in the Columbia River Basin: The Yakima Indian Nation as a Case Study, 1840-1933” (1990); Amy Lynn Toro, “Standing Up for Listener ’' Rights:
20 See Appendix 1, p. 54-55.
21 See Appendix 1, p. 55.
22 See Appendix 1, p. 55-56.
A History of Public Participation at the Federal Communications Commission” (1990); Stephen Gillespie, “The Transformation of American Public Law: Promotion and Regulation in California, 1950 to 1990” (1995); Donna Schuele, “A Robbery to the Wife: Culture, Gender and Marital Property in California Law and Politics, 1850-1890” (1999), and Lyndsay Campbell, “Truths and Consequences: The Legal and Extralegal Regulation of Expression in Massachusetts and Nova Scotia, 1820-1840” (2008). Lieberman concentrated on English legal history but his interests ranged into the history of sociolegal theory. He supervised John Sither, “Form, Substance, and History in Max Weber 's Sociology of Law ” (1995); Robert Tennyson, “Private Legislation: Function and Procedure in the Eighteenth Century” (2009); Willow Meyer, “Beyond the Seas: Eighteenth-Century Convict Transportation and the Widening Net of Penal Sanctions” (2011); Megan Wachspress, “The Criminal and the Enemy in Seventeenth Century English Thought” (2018)
But as in the History Department, legal-historical work was no Anglo -American monopoly. David Lieberman chaired a committee of Jonathan Sheehan (History), Winnifred Fallers Sullivan (Religious Studies, Indiana) and Christopher Tomlins (JSP), in supervising Sarah Ludin, “The Reformation Suits: Litigation as Constitution-Making in a German Imperial Court, 1521-1555” (2019). Elsewhere in JSP, students of Philippe Nonet, in particular, wrote a series of exceptional dissertations that were indubitably historical in their intellectual inflection: Marianne Constable, “The Jury ‘de Medietate Linguae’: Changing Conceptions of Law and Citizenship” (1989); Roger Berkowitz, “The Gift of Science: Leibniz's Legal Code and the Advent of Positive Law” (2001, Laurent Mayali co - chair); Shai Lavi, “The Modern Art of Dying: The History of Euthanasia in the United States” (2001). Karl Shoemaker ’s dissertation committee for his “Sanctuary Law: Changing Conceptions of Wrongdoing and Punishment” (2001) epitomized the diversity of legal-historical talents in the JSP orbit. Shoemaker had Nonet and Tom Barnes as co - chairs, with David Lieberman, Laurent Mayali, and, from the Rhetoric Department, Marianne Constable, as committee members.
Other JSP dissertations with a historical inflection included Jonathan Simon, “From Discipline to Management: Strategies of Control in Parole Supervision 1890-1990” (1990, Sheldon Messinger chair); Brian Gill, “The Jurisprudence of Good Parenting: The Selection of Adoptive Parents, 1894-1964” (1997, Frank Zimring chair); Chrysanthi Leon, “Compulsion and Control: Sex Crime and Criminal Justice Policy in California, 1930-2007” (2007, Frank Zimring chair); Ashley Rubin “Institutionalizing the Pennsylvania System: Organizational Exceptionalism, Administrative Support, and Eastern State Penitentiary ” (2013, Malcolm Feeley chair); Genevieve Painter, “Partial Histories: Constituting a Conflict between Women’s Equality Rights and Indigenous Sovereignty in Canada” (2016, Calvin Morrill chair); and Johann Koehler, “Making Crime a Science: The Rise of Evidence-Based Criminal Justice Policy ” (2019, Frank Zimring and Jonathan Simon, co - chairs).
Koehler writes of his JSP experience, “I’d arrived at Berkeley committed to a policy sensibility ‘evidence-based’ criminal justice reform.” He was convinced otherwise by his fellow graduate student, Chase Burton, and by a seminar taught by Jon Simon and Tony Platt, the latter returning as visitor to the Berkeley that had denied him tenure in 1976 during the final demise of the School of Criminology. “Chase convinced me of legal history’s centrality to what I sought to do in the study of criminal justice; Platt’s and Simon’s seminar sensitized me to (especially criminal) legal history’s pedigree at Berkeley.”
In the first years of the twenty-first century, then, the outlook for legal history in both JSP and the History Department seemed promising, but simultaneously unclear. Promising, because graduate student research was ongoing in both locations. Unclear, because faculty of record were aging, because new appointments meant uncertainties and potential discontinuities, because competition from other priorities meant appointments might not be made at all. And throughout, chronic placement crises in the discipline of history meant spiraling credential competition and questions about graduate student prospects Where were JSP graduates with “history” dissertations to go? Could JSP historians find their niche in an American law school universe searching more and more clearly for legal scholars with real research training? To gain entry they would need JDs. Could Berkeley’s JD gain recognition as a law teacher’s degree? Should they go elsewhere?
In the wider U.S. academic world, the history of law had attracted the attention of hundreds of dedicated teachers spread across law schools and history departments. The American Society for Legal History, and its journal, the Law and History Review, were both booming. As interest spiked, sheer quantity meant an inevitable diversification and pluralization of the field that has continued ever since. In all this, what was Berkeley’s contribution to be? Was “legal history” becoming the prime field of study Koehler imagined? What forms would it take?
5. The Current Scene
(a) Jurisprudence & Social Policy
We should begin with those who have recently completed dissertations. They include Alexandra Havrylyshyn, “Free for a Moment in France: How Enslaved Women and Girls Claimed Liberty in the Courts of New Orleans (1835-1857)” (2018, Chris Tomlins chair); Chase Burton, “Republican Monsters: The Cultural Construction of American Positivist Criminology, 1767-1920” (2019, Chris Tomlins chair); Kyle DeLand, “Land Monopoly, Property Law, and the Crises of California Settler Society, 1841-1880” (2023, Chris Tomlins chair); Doug Sangster, “Defining Disability in California State Law During the Twentieth Century ” (2024, Chris Tomlins chair); and Eduardo Bautista Duran, “The Roots of Police Violence in California: Towards a Geography of Policing ” (2024, Jonathan Simon chair).
In an important way, Havrylyshyn speaks for all of them in describing the experience of legal history in JSP in the current moment. She writes: “The Jurisprudence and Social Policy Program was a gateway to studying legal history at U.C. Berkeley. I remember floating freely and easily between East and West campus; the seminar rooms at 2240 Piedmont and in Dwinelle Hall; Berkeley Law Library and Doe Library; the Robbins Collection and the Bancroft Archives. My favorite space was the light-filled Dissertation Writers’ Room in Doe Library, which provided me the “room of one’s own” I needed to complete my dissertation in my final year. My home base was certainly JSP, with Christopher Tomlins as my chair and anchor in the program. Because I knew I wanted to research and write on the history of law and slavery, I was delighted when two experts in the field, Chris and Dylan [Penningroth], joined the JSP faculty just as I was beginning the transition from coursework to dissertation-writing, from student to scholar. Together, they pushed me to expand my thinking and sharpen my arguments. My peer Ph.D. candidates were an eclectic group, studying different periods and channeling different approaches to history – from the history of ideas to economic history, to
socio - cultural history – but united in our passion for legal history. Outside of JSP, our intellectual homes included the American Society for Legal History and the Law and Society Association. After graduating, I had the privilege of serving as a postdoctoral research fellow in the Robbins Collection, with Laurent Mayali as my supervisor. During this time, I published in California Legal History, The William and Mary Quarterly, and Canada’s Legal Pasts. I also developed an interdisciplinary course on Access to Justice: Comparative and Historical Perspectives, which I still regularly teach in the Legal Studies Program. The interdisciplinary nature and long temporal scope of this class would likely not fly in a traditional History Department. For example, I include on the same syllabus sources on the practice of law in medieval France and contemporary policy papers on the civil justice gap. I appreciate having the freedom to challenge disciplinary norms, something JSP has always encouraged.”
Havrylyshyn’s depiction is one of plural points of contact, and interactions with multiple resource centers, easily combined across Berkeley’s campus. This is what has grown up for legal history at Berkeley in the fifty years since JSP began. A meaning inherent in this depiction is rendered explicit by an observation from Victoria Saker Woeste reflecting on an earlier moment in JSP’s development: “we the students had to take responsibility for defining legal history in JSP.” But for Woeste, thirty years earlier, this was a much harder task than for Havrylyshyn. For Woeste “the benchmark for the program” was whether legal history as defined in JSP would be acceptable to the discipline of history. “We all did empirical work in the Hurst tradition and connected our stories to the larger philosophical and theoretical frame that was JSP to us.” Acceptance of this approach was “essential to our marketability as historians.” Woeste’s conclusion is that this acceptance was never won. JSP’s legal history students “were encouraged to take courses in the history department, but some professors didn’t want us there … Even today there is much more acceptance of JSP PhDs in political science, sociology, and law than there is in history.” Now “JSP historians are more likely to pair their PhDs with JDs, which gives them a completely different job market.”
When the Jurisprudence and Social Policy Program opened its doors in the fall of 1978, three of the initial cohort of eight graduate students were inclined toward history – David Neal, who would work with Shelly Messinger on his study of the rule of law in early New South Wales, later published as The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (1991); Tina Stevens, who found the program unready to accommodate a historian, and so left for the History Department after taking an M.A., where she wrote the dissertation that became Bioethics in America: Origins and Cultural Politics (2003); and George Wright, whose dissertation on “The Protestant Hobbes” was written for a committee chaired by Tom Barnes. Wright remembers that Barnes, who was not part of JSP’s founding faculty, generously filled the role of historian-advisor “for those of us whose interests at the time were more historically oriented than fit with the predominant JSP mindset, which was sociological.” Stevens agrees. “There was the expectation that a historian would arrive to fill out the faculty roster,” but all students were expected to pursue what they were told were JSP’s foundational concerns. “I recollect the chief focus being on two sources/lines of inquiry: Nonet and Selznick’s, Law and Society in Transition: Toward Responsive Law, and the Hart-Fuller debate about the relation between law and ethics.” Beyond this, everything was a work in progress. Woeste remembers “a running joke among us about what the core of JSP actually was; the answer was that it ‘would reveal itself to you.’” Was JSP to be interdisciplinary or multidisciplinar y? Was there to be a common methodology? What was
that methodology? Was history part of that methodology? Did history even have a methodology? “This was a problem for those seeking to work on a history dissertation topic” observes Stevens “and, in retrospect, was one reason why JSP and I were not good fits.”
History became more fully part of the program with the arrival of Harry Scheiber, and later Davd Lieberman. “Harry was part of the founding generation” writes Lucy Salyer, “who did so much in the 1960s and 1970s to redirect the study of legal history, following in the wake of J. Willard Hurst, to liberate the study of legal history from its traditional focus on legal doctrine, divorced from its social and cultural context.” Lieberman was an intellectual historian molded in part by the Cambridge School’s emphasis on the context of ideas. It was a fine combination.
But history of all sorts has always balanced, uneasily, between the humanities and the social sciences, between art and science. For a program like JSP that sought to bring social science discipline to bear on law, another field of study that was obstinately undisciplined, history was something of a paradox. A perspective, undoubtedly; a body of knowledge, certainly; perhaps even a philosophy; but not a method recognizable by social science. Throughout JSP’s life, the question of what programmatic or pedagogical role “history ” should play has remained open.
You might say the question was only ever resolved in practice. Amongst early JSP students, three who came to work with Harry Scheiber served to define the Berkeley legal history of that era: Lucy Salyer, whose 1989 dissertation became Laws Harsh as Tigers : Chinese Immigrants and the Shaping of Modern Immigration Law (1995); Victoria Saker Woeste, who published her revised 1990 dissertation in 1998 as The Farmer’s Benevolent Trust: Law and Agricultural Cooperation in Industrial America, 1865-1945 (1998); and Barbara Leibhardt Wester, whose 1990 dissertation on “Law, Environment, and Social Change in the Columbia River Basin” led her to a career as a lawyer specializing in federal Indian law at the U.S. Environmental Protection Agency, where she has been ever since. “JSP gave me the opportunity to study with the best minds of legal and environmental history,” says Wester, referring to Harry Scheiber and her outside reader, Carolyn Merchant. Scheiber himself remembers fondly how each of the three dissertations went on to win major awards: Wester’s dissertation won the 1993 Rachel Carson Prize of the American Society for Environmental History; Salyer won the 1996 Theodore Saloutos Book Award of the Immigration and Ethnic History Society; and Woeste won the 2000 James Willard Hurst Prize of the Law & Society Association.
But this was never the whole of “history” at JSP, nor was it intended to be We need only look at other work that began as historically-inclined JSP dissertations, and which also won awards, to see the conceptual and substantive breadth that legal history was assuming in the program. Marianne Constable won the 1996 Hurst Prize of the Law & Society Association for The Law of the Other: The Mixed Jury and the Changing Conceptions of Citizenship, Law and Knowledge (1994); Shai Lavi won the 2006 Distinguished Book Award of the American Sociological Association, Section on Sociology of Law, for The Modern Art of Dying: A History of Euthanasia in the United States (2005); Karl Shoemaker won the 2015 John Nicholas Brown book prize from the Medieval Academy of America for Sanctuary and Crime in the Middle Ages, 400-1500 (2011). Shoemaker recalls a particularly wide spectrum of scholars as teachers and mentors from his years (1996-2001) in JSP – Tom Barnes and Philippe Nonet, his co - chairs; but also Laurent Mayali, and David Lieberman, and a constant traffic of
scholars in medieval legal history brough to Berkeley by the Robbins Collection – Alan Watson, Knut Knorr, Anne Dugan, Antonio Padua-Scioppa – as well as then- early career scholars like Lindsay Farmer. Shoemaker also worked as a research assistant with Scheiber, whom he found “immensely helpful … He seemed to understand how universities worked at a practical level. This wasn’t something likely to come up with a conversation with Tom or Philippe.”
Despite the successes of the 1980s, JSP never became the natural and obvious destination for students of American legal histor y to undertake graduate work. It was instead one of a number of possibilities across the country, distinctive as the place where legal history was pursued cheek-by-jowl with law and the social sciences, rather than with other fields of history. During the 1990s and after, JSP’s faculty historians became used to working across disciplines with students who would specialize in other fields of research, and they developed other interests. Scheiber, for example, put increasing energy into research on the law of the sea.
There would always be the exceptional students for whom legal history was central. Lyndsay Campbell (2001-2008) was one such. Her revised JSP dissertation in comparative legal history was published as Truth and Privilege: Libel Law in Massachusetts and Nova Scotia, 1820-1840 (2022), the first ever joint imprint of the Osgoode Society for Canadian Legal History and the American Society for Legal History’s “Studies in Legal History ” series. Campbell – now jointly appointed between the Faculty of Law and the Department of History at the University of Calgary, where she teaches Canadian and American history, Canadian legal history, legal theory and methodology, and courses in the undergraduate Law and Society program – worked with Scheiber. She remembers him in the same way as Shoemaker, as someone who “opened doors” both intellectual and professional “and introduced me to people who have become important to me in all kinds of ways.”
Harry Scheiber’s retirement in 2012 resulted in the eventual appointment of Christopher Tomlins (2014) and Dylan Penningroth (2015) Penningroth jointly with the History Department. From his vantage point in the graduate student cohort of 2012, Johann Koehler
23 See Appendix 2, p. 70-71.
24 See Appendix 2, p. 68.
observed “a sense that JSP (or the law school) was keen to make a concerted push to reinforce our presence in legal history. My recollection on the details are dim, and I couldn’t even pretend to know whether such a concerted push was ever as real as the students in JSP were led to believe, but that moment resulted in the arrival of Tomlins and Penningroth. A similarly unsubstantiated impression I harbored was that JSP’s incoming cohorts began to include at least one historically-inclined student apiece from that point onward. In visible ways, JSP started hosting legal history from that point onward, too: CSLS presentations included one or two presenters in each cycle.” Legal historians from beyond the JSP faculty –Karen Tani, Rebecca McLennan – were in attendance. Koehler felt his own “familiarity with historical reasoning … was forming a more prominent part of my own contributions to JSP and to my research.”
This was, in its way, the ideal, or at least it was the goal: a core group of students with primary interests in legal history; a more generalized influence that could percolate through the program alongside its other disciplinary orientations; and, as Woeste observes, a growing emphasis on pairing the PhD with a JD and on the law school job market.
Nor would this be by any means the responsibility of Penningroth and Tomlins alone. David Lieberman remained, of course. A serious accident in 2016 sidelined him for some considerable time, but his wisdom in the ways of Berkeley was always invaluable. David retired in 2022, but we thought he would be with us indefinitely. Then, only two months later, came his death in another accident. But there were others. Jonathan Simon’s work in criminology and criminal justice, both as graduate student in the program and later (since 2003) as faculty member, had always been influenced by history. Kinch Hoekstra joined JSP
in 2012 in a joint appointment with the Department of Political Science specializing in the history of political, legal, and moral philosophy. David Grewal joined the program full time in 2019, with interests (among others) in intellectual history, particularly the history of economic thought. Veronica Aoki Santarosa joined JSP full time in 2023, with interests in law and economics that included financial and legal history. Together, Hoekstra and Grewal offer enviable knowledge of the intersection of legal, political, and critical theory with intellectual
25 See Appendix 2, p. 70-71.
26 See Appendix 2, p. 64.
27 See Appendix 2, p. 62.
history; Santarosa offers legal- economic history; Simon offers social theory, penality, and criminological history; Penningroth offers social and cultural history of law, and American and African American legal history with a particular interest in common law rights; and Tomlins emphasizes Anglophone legal history in the long term, both social and cultural, and political and economic, along with interests in the philosophy of history, critical theory, and classical social theory. Between them, this group has overseen much of the work currently undertaken by the program’s graduate students who are inclined toward legal history.
VERONICA AOKI SANTAROSA 28 But the names of JSP dissertation committee members, actual and potential, reach far outside JSP, not only to our colleagues on the Berkeley Law faculty and in the History Department, but also elsewhere, to the Rhetoric Department, 29 to the English Department, 30 and beyond. Summaries of current graduate students’ work speaks to the sheer plurality that Havrylyshyn’s impressions evoke. They are all busy “defining legal history in JSP.”
Michael Banerjee is studying the interrelated histories of state, university, and corporation. American law places state and corporation on opposite sides of the public-private distinction. While universities generally straddle this distinction, the constitutional universities collapse it. In 1850, the People of Michigan established the world’s first constitutional university by transforming the University of Michigan into, according to a 1911 Michigan Supreme Court opinion, “the highest form of juristic person known to the law, a constitutional corporation of independent authority.” Through chapters on constitutional corporations, constitutional universities, and constitutional corporate states, his dissertation argues that state and corporation form a single species.
Sean Becker’s scholarly interests lie at the intersection of legal history and urban sociology. His research interrogates the manner in which legal change and social change occur in a manner that is often beyond the control or prediction of human actors, such as through restrictions in the spatial arrangements of cities. Utilizing actor-network theory, his dissertation explores the rise of urban planning and zoning in early twentieth century Los Angeles as novel spatial techniques of governance, and their relationship with evolving sociospatial patterns in that city.
Griffin Brunk is a comparative legal historian of slavery and coerced labor, from antebellum slavery to the modern prison system, from the United States to the Ottoman Empire. Under this broad umbrella, most of his current work focuses on how enslaved, incarcerated, and similarly situated persons carved out lives for themselves within the boundaries of bondage.
28 See Appendix 2, p. 69.
29 Department of Rhetoric faculty who are or have been engaged in legal-historical work, broadly defined, include David Bates, Marianne Constable, and Samera Esmeir See Appendix 2, pp. 58, 59, 60-61
30 Department of English faculty who are or have been engaged in legal-historical work, broadly defined, include Stephen Best, Celeste Langan, Beth Piatote, and Bryan Wagner. See Appendix 2, p. 71-72.
Usually this means working with court filings and appellate records. However, some elements involve digging into more niche materials like indentures, industrial account books, or sukuk (legal instruction manuals for Ottoman judges).
Molly Culhane is interested in how the law treats informal economic activity – informal street vending, subsistence hunting and foraging, and other ways of making a living that do not rely on the formal labor market. How, why, and in what contexts have such activities been criminalized” How, that is, and under what conditions, have governments used the law to discipline people into waged work? What does this phenomenon tell us about the relationship(s) between the state and capital?
Brianne Felsher is writing a legal history of queer relationships in the United States from the early 1800s through the early 1900s. Brianne challenges the common assumptions that trans lives and families could survive only through gender “passing,” secrecy and anonymity. Instead they find trans and queer people deeply embedded in their communities, and locate queer relationships as integral to local communities and families, and as a prominent part of American legal culture. How did queer people form lasting relationships, and how did their communities, families, and legal institutions respond? Bridging multiple fields, Brianne seeks to widen queer history beyond the history of sexuality, and to bring queerness more fully into the legal history of the family and legal history writ large.
Rahel Fischer is focused on cases of the European Court of Human Rights dealing with socalled ‘pushbacks’ of persons on the move, as well as the shifting doctrines of legal and forensic truth production to establish culpability and injury in the context of border violence. She analyzes the ECHR’s determinations in the context of historical narratives of migration in the Mediterranean (particularly in the region around Ceuta and Melilla, Spain, and in the Aegean region of Greece) and the gradual juridification of the border and seascape. She is also interested in how (legal) temporalities are produced, disrupted, undone and renewed by these discourses.
Matthew Hamilton is pursuing the legal history of globalization. This involves three inquiries: First, exploration of the laws that shaped the global economy, particularly during the second half of the twentieth century; second, use of developments in law to track how new economic interrelations shifted perceived obligations to new places and times; third, examination of the intersections of law, ideas about law, and globalization – specifically, how did ideas about the relationship between political and economic change travel through legal reform, and how did ideas about law frame the relationship between the political and the economic to facilitate globalization?
Kavitha Iyengar is writing a history of the Farmers Alliance and the Colored Farmers Alliance in Texas between 1877 and 1900, focused in particular on their vision of governance, what they called “Cooperation.” She wants to know what was the Alliances’ legal and political vision of “Cooperation” and how did they imagine cooperation would redress economic hardship and inequality in the post-Reconstruction South? How did their vision evolve over time? How did they imagine the relationship between cooperation and the state? When and why did the Alliances disband and what did they leave behind them? Her principal sources are contemporary histories, organizational records, meeting minutes, state laws, newspapers, court cases, and Populist Party records.
Margot Lipin’s research lies at the intersection of legal history, policing, and fashion. What role has fashion played in how people, particularly women and Black Americans, were constructed and understood as legal subjects from the middle of the nineteenth century to the early twentieth century. Through the regulation of enslaved people’s clothing, to laws banning crossdressing, to policing of vice and sexuality, fashion has served as a form of knowledge about legality and criminality. Margot’s project will examine how the state fashioned people visually and materially, and in turn how people fashioned themselves.
Sage Luna’s research addresses the history of criminal law, notably the history of personhood and culpability. Classically, mens rea stands for the requirement in criminal proceedings that an apparently unlawful act be accompanied by a culpable mental state if the accused is to face criminal liability. But mens rea is a comparatively recent (thirteenth century) addition to the criminal law canon, one whose imputation of individual blameworthiness in a moral sense rises to a nineteenth century crescendo – and then, notwithstanding the subsequent disintegration of classical legal thought remains with us intact. Luna makes her argument by deploying two counterpoints: the counter-influence of psychoanalytic conceptions of guilt as an emanation of the unconscious mind, largely rejected in criminal law; and the vast overdetermination of individual guilt that the “burdened individuality” inherent in abolitionist conceptions of freedom imposed upon formerly enslaved Black Southerners.
Lucas Osborne is interested in the development of public utility and financial regulation, beginning towards the end of the nineteenth until the early twentieth century, as the modern administrative state took shape within the United States. His principal interest lies in the intellectual history of this development, the transformations in political and economic thought to which various American and European thinkers contributed, in response to the rise of corporate capitalism, to justify government’s regulatory actions and expansions.
Laura Ramirez focuses on islands as sites of legal pluralism and creativity in colonial and expansionist contexts. She is interested in fictional islands and their capacity to furnish opportunities for legal experimentation in texts like More’s Utopia and Kafka’s “In the Penal Colony,” and in real islands in the history of U.S. expansionism from guano islands to the management of insular territories. Within these fictional and real islands, She examines legal justifications for capture, rule, and conquest in relation to land, property, labor, and resource extraction.
Daimeon Shanks-Dumont’s research focuses on the contested histories of sovereign equality and international hierarchy in international law, and on the relationship between historical energy regimes, world economic systems, and inter-sovereign relations, conceptualized through the framework of private contract law theory. He has published on a range of substantive areas, including the self-funding structures of U.S. administrative agencies, the aesthetic dimensions of law and legal order, the early histories of international humanitarian law, international environmental law and the criminalization of ecocide, and other topics.
Sid Schlafman’s work regards queer activist histories and the regulation of sex in twentiethcentury America. In particular, he is concerned with the role of the child, considered both literally and metaphysically, in discourses and litigation around sex. He is also interested in
psychoanalysis, fantasy, history-making as social practice, socio -legal temporalities, and both figurative and ontological identity.
Cristina Violante’s research interest is the history of water law in settler colonial contexts. She examines how varying ways of using water create differing property relations and social hierarchies, and how the law facilitates the commodification of the natural world. She is also engaged in understanding the work of legal interpretation. Here she seeks to bring Gadamerian hermeneutics into the field of statutory interpretation, and to examine how various techniques of legal interpretation have furthered U.S. conservatism and empire, for example in the field of federal Indian law.
(b) Legal Studies
Begun in the late 1970s alongside JSP as a constituent element in the study of “law and society” at Berkeley, the undergraduate program in Legal Studies has grown into an interdisciplinary, liberal arts major that engages the meanings, values, practices, and institutions of law and legality. Concretely, courses in the Legal Studies curriculum examine how law shapes and is shaped by political, economic, and cultural forces. The major is intended and designed to stimulate the critical understanding of and inquiry about the theoretical frameworks, historical dynamics, and cultural embeddedness of law. Courses in the Legal Studies curriculum are taught by JSP faculty, by other Berkeley Law faculty members, by faculty from elsewhere on campus, and by a staff of Legal Studies lecturers.
The major’s course offerings examine law and legality from both humanist and empirical perspectives. Courses are organized into interdisciplinary topical areas that transcend disciplinary boundaries in the interest of collaborative inquiry. Legal Studies faculty and students grapple with important questions of social policy within the framework of significant concerns in jurisprudence and theories of justice: individual liberty, privacy, and autonomy; political and social equality; the just distribution of resources and opportunities within society; the relationship between citizens and the state; democratic participation and representation; the moral commitments of the community; and the preservation of human dignity.
Since the program’s inception, led by the example of Charles McClain, historical perspectives in general and legal history as a mode of study have become well integrated elements of Legal Studies at Berkeley. Generalist introductory courses such as “Foundations of Legal Studies” offer a comparative and historical introduction to forms, ideas, institutions, and systems of law and social. “Theories of Law and Society” – taught for many years by David Lieberman, and more recently by Chris Tomlins – provides a historical examination of major interpretations of law, morals and social development, with special emphasis on the social thought of the 18th and 19th centuries. The course covers Marx, Maine, Durkheim, Weber, and other theorists. “The Making of Modern Constitutionalism,” originally designed and taught by David Lieberman, is a historical examination of the emergence of constitutionalism as an authoritative approach to the study of law and politics; coverage from the 16th to the 18th centuries concludes with discussion of the ratification of the U.S. Constitution.
“American Legal and Constitutional History,” designed and taught by Ben Brown, and more recently by Kyle DeLand, is a Legal Studies core course that introduces students to historical perspectives on American legal culture. “Legal Discourse: 1500 – 1700,” taught by Barbara Shapiro, focused on the history of legal thought and discourse from the late medieval period to the Enlightenment. “Conceptions of Punishment: Ancient & Modern,” created by Michael Smith, was a comparison of the understanding of punishment prevailing in modern AngloAmerican thought and in former cultures such as Medieval Europe, Ancient Israel, and Ancient Greece.
The Legal Studies program offers invaluable opportunities for graduate student employees to develop their teaching skills as instructors in lecture courses. It also offers senior graduate students and recent PhDs opportunities to design BEN BROWN 31 and teach their own courses as special topics seminars or full-fledged lecture courses. Recently, Doug Sangster 32 has taught courses on “Civil Rights and Civil Liberties,” focusing on American law related to the First Amendment, and “American Legal and Constitutional History,” which aims to give students a broad understanding of the foundations of the legal system and constitutional order, and how these have changed over the course of the history of the United States from the eighteenth century until the present. Another recent PhD, Kyle DeLand, 33 is teaching “Law and American Pacific Empire, 1836-1945,” a seminar focusing on the fields of Criminal, Property, Constitutional, Civil Rights, Indigenous, Immigration, and International Law across case studies of the major sites of American Pacific Empire: the Oregon Territory, California, Hawai’i, Alaska, and the Philippines. The scope of the class also includes transimperial and comparative studies of the British Empire in Australia, British Columbia, and New Zealand, the Empire of Japan, Indigenous North American and Polynesian States like the Kingdom of Hawai’i, and the Chinese Pacific Diaspora. The course explores and examines the transformation from the “First” American continental empire to the “Second” American overseas empire through the lenses of race, indigeneity, capitalism, legal pluralism, and power.
Another example of an undergraduate Legal Studies course exploring a general topic through specific historical case studies is “Anti-Semitism and the Law,” taught by Steven Davidoff Solomon. Focused on the history of law as a vehicle both for institutionalizing and combating antisemitism, the class engages with particular “case” histories: the Damascus blood libel trial of 1840, the Dreyfus case, the 1913 blood libel trial of Mendel Beilis, the lynching the same year of Leo Frank, and the Holocaust denial trial of Irving v. Lipstadt. The course also reviews discriminatory laws in the United States and other areas and countries against Jews, including in Nazi Germany. Other topics covered will include the intersection of legal antisemitism definitions and anti-Zionism, the intersection of free speech laws and
31 See Appendix 1, p. 56-57.
32 See Appendix 2, p. 69.
33 See Appendix 2, p. 59-60.
antisemitism (for example, the Skokie march of 1977), the historical discrimination of college and university campuses against Jews through admission quotas as well as the modern day application of Title VI of the Higher Education Act to issues of antisemitism on college and university campuses.
Legal Studies courses on migration, immigration, and citizenship taught by Leti Volpp, 34 and by lecturers Carrie Rosenbaum, Lisa Knox, and Christina Lee routinely integrate historical and contemporary data and perspectives. So do courses with a “political development bent, such as “Law, Judicial Politics, and Rights in Latin America” taught by Monica Castillejos-Aragon, and “Law and Rights in Authoritarian States,” taught by Rachel Stern. A series of courses that dwell broadly on economic concepts, such as “Property and Liberty” – another of Ben Brown’s innovations – “Wall Street to Main Street,” taught jointly by Mark Brilliant and Steven Davidoff Solomon, “Monetary Law and Regulation,” taught by Bruno Salama, and Law and the Economics of Innovation,” taught by Suzanne Scotchmer, all use historical context to temper ostensibly time-transcendent phenomena like “property” and “money.” The same goes for courses on criminal law, criminology, and penality, like “Punishment, Culture, & Society,” taught by Jon Simon and lecturers Richard Perry and Kristin Sangren, “Juvenile Justice & the Color of Law: The Historical Treatment of Children of Color in the Judicial System” taught by Judge Trina Thompson, and “Criminal Justice in the United States: Policing, Mass Incarceration, and Paths to Reform,” taught by Rebecca Goldstein. Although many of these teachers would not think of themselves as “legal historians,” historical example and argumentation is of considerable significance in the way that they teach.
Finally, the Legal Studies program has its share of courses that are more or less explicitly “historical” in their conception, design, and philosophy. As its title suggests, “European Legal History,” taught by Chuck McClain, is a survey of main themes in European legal history –classical Roman law, Justinian’s codification (6th century A.D.), the medieval revival of Roman law in Italy and elsewhere, medieval canon law (the law practiced in the ecclesiastical courts), the jus commune (amalgam of Roman, canon and indigenous law that prevailed in Europe until the modern period), the law merchant, the beginnings of the English common law, early modern developments in continental Europe and England, nineteenthcentury codification, twentieth century developments. “Making Empire: Law & the Colonization of America,” taught by Chris Tomlins, surveys the origins, development, and expansion of European settlement on the North American mainland. The course concentrates on the impulses – commercial, ideological, and racial – that drove European colonizing; the migrations (voluntary and forced) that sustained it; and the political and legal “technologies” that supplied it with definition, explanation, and institutional capacity. “Decolonizing UC Berkeley,” taught by lecturer Nazune Menka seeks to engage students in a critical investigation of the origins of the University of California through a settler colonial lens, and with the aim of decolonizing the University’s narrative history of itself.
The Legal Studies program has been blessed with dedicated teachers, none more so than the late Lauren Edelman, who both taught and oversaw a superb honors program that has produced substantial numbers of successful graduate school candidates, not least for
34 See Appendix 2, p. 71.
graduate programs (including JSP) at Berkeley itself. Not a few of these have written honors theses that show the influence of legal history within the Legal Studies program, and have carried that influence forward into their graduate school research.
(c) Berkeley Law
The appointment of Karen Tani to an entry-level position in 2011 meant that several years after the retirement of Tom Barnes in 2006 and the departure of James Gordley in 2007 the law faculty had reaffirmed its commitment to legal history, distinct from JSP. The product of a dedicated JD/PhD program in American Legal History at the University of Pennsylvania, Tani was hardly a “replacement” for either of those predecessors; she was neither the medieval/comparatist Gordley nor the Anglophile common lawyer Barnes. And like all law appointments, her particular expertise in the history of social welfare law, administrative agencies, and the role of rights in the modern American state was just one card in a deck of capacities to teach one or other of the sorely-needed “service” subjects – torts (in her case), or contracts, or criminal law – that populated the first year of the JD.
Still, Tani was hired with the understanding that legal
TANI 35 history was to be her single most important contribution as a faculty member. She made good on it by teaching legal history in the JD curriculum, by advising JD students interested in pursuing PhDs in history, and by serving on doctoral dissertation committees in JSP and in the History Department. Tani modeled excellence in scholarship for her JD -teaching colleagues, and helped encourage more than one – John Yoo, Melissa Murray – to take their own interests in history to new levels. And by co -teaching a course with History’s Rececca McLennan, Tani helped erode the isolation of the law school from the History Department.
Amid great sadness among her faculty colleagues, Tani left Berkeley in 2020 to return to Penn, this time as Seaman Family University Professor. She has been succeeded by José Argueta Funes who came to Berkeley in 2023 with a PhD in history from Princeton University and a JD from Yale Law School. At Berkeley, Funes teaches courses in American legal history and property. His research focuses on the intersection between the history of American law and the history of American empire.
35 See Appendix 1, p. 57.
36 See Appendix 2, p. 62.
Two other appointments have reinforced Berkeley Law’s capacities in the field of legal history. Amanda Tyler joined the faculty from George Washington University Law School in 2012, with interests in constitutional law, civil procedure, statutory interpretation, federal courts, and legal history. Tyler is an authority on the history of Habeas Corpus, and the author of Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (2017).
In 2017 Catherine Fisk joined Berkeley Law from the University of California, Irvine, School of Law. Fisk is a widely published legal historian and labor lawyer. Two recent books – Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 18001930 (2009) and Writing for Hire: Unions, Hollywood, and Madison Avenue (2016) –investigate the terms on which intellect has been commodified. She is currently at work on a third book, this one examining the professional identities of lawyers who represented activist, multi-racial, and politically progressive unions in the mid-twentieth century.
Together with their colleagues in JSP, the historians who are currently members of Berkeley Law’s “doctrinal” faculty offer greater depth and breadth in Anglo -American legal history than at any point since the establishment of legal education on the University of California’s Berkeley campus. What of the classical and early-modern European tradition, the other great research strength of Berkeley’s engagement with the history of law?
(d) The Robbins Collection
The mission of the Robbins Collection at Berkeley Law is to promote and sponsor comparative research and study in the fields encompassed by the of religious and civil law, including Jewish and Islamic law and the various Christian traditions. The Robbins Collection organizes workshops, public conferences, lectures, and joint research ventures. It hosts scholars and fellows throughout the year. Since the year 2000, the Robbins Collection has sponsored some two hundred legal scholars through research fellowships and partnered with numerous legal institutions around the globe to host programs and workshops.
Since 1997, the Robbins Collection has been housed in a dedicated facility that consists of both a special collections library and a research center. The Collection’s library is
37 See Appendix 2, pp. 71.
38 See Appendix 2, pp. 61-62.
dedicated to civil law, religious law encompassing the canon law of the Roman and Greek churches, and the Protestant churches; Jewish and Islamic law; and secular law, including classical Roman law, and ius commune. As a research center, the Collection is actively engaged in many areas of scholarly inquiry that reflect the most significant aspects of past and present legal cultures.
i. The Library
The Robbins Collection is among the finest research libraries in the world in the fields of religious and civil law. The Collection acquires books, manuscripts, incunabula, microfilms, and periodicals on an ongoing basis. Its goal is to provide a working library for scholarly legal research with access to the range of materials that might have existed in law libraries at any time between the thirteenth and the nineteenth centuries.
The Robbins Collection has been fortunate to acquire significant portions of libraries of other scholars or institutions, such as the library of the Royal Faculty of Procurators of Glasgow, Scotland. Robbins maintains a separate Glasgow Collection catalog that lists the holdings of the original library together in one place, thus serving as a record of a working library used by Scottish lawyers.
All told, the Robbins Collection holds over 340,000 titles distributed into several categories: civil law, religious law encompassing the canon law of the Roman and Greek churches and the Church of England, Jewish and Islamic law and secular law. Among these
titles are extensive collections in comparative law, École Pratique des Hautes Études jurisprudence, and legal history in general with an Robbins Associate Research Fellow emphasis on continental Europe. The Collection includes over 275 manuscripts, the majority of which are medieval, over 200 incunabula, and another 2,300 titles printed before 1600. Holdings also include more than 100 single-folio manuscript legal documents from France, England, and the Papal Court, and 544 Catalan consilia printed between 1620 and 1756.
Robbins has created a digital portal that allows researchers to access detailed manuscript information – including chronology, watermarks, authors, languages, subjects, and more –without requiring their physical presence in the Robbins Collection Reading Room. Once a manuscript has been added to the portal, students and scholars are able to explore manuscript data through a vast network of links that show historical connections through lists, graphs, and interactive charts.
In addition to print materials, the Collection includes microfilms and microfiche of thousands of manuscripts, including all the medieval canon and Roman law manuscripts in the Vatican Library. It also provides access to database collections such as In Principio; incipit index of Latin texts from the Institut de recherche et d’histoire des textes (CNRS); the electronic Monumenta Germaniae Historica; and the Digital Scriptorium, a collaborative effort of several institutions (including the Robbins Collection) to offer a database of manuscript images for scholarly research and teaching.
ii. The Research Center
Details of Robbins lectures, symposia, and other events in the history of law, comparative law and legal traditions, and issues on current legal cultures can be found, since 2018, in the annual Robbins Collection Digest, which serves as a means to publicize the Robbins Collection’s news and events, its scholars and their latest books and essays, and the Collection’s ongoing acquisitions. The most recent issue includes features on “Courts and Social Changes: Comparative Perspectives in Ibero -American and Asian Legal Systems”; the “Annual Robbins Collection Lecture in Jewish Law, Thought, and Identity”; and “Gendered Islamophobia.” It also includes news of current and former Robbins Fellows; news of the Collection; and reviews of fellows’ books.
TYLER LANGE
In addition, the Robbins Collection publishes scholarly volumes in the areas of civil and religious law, and comparative law Recent publications include the next volume in a series of David Daube’s collected works on Roman Law, comprising essays on contracts and family law; and a volume on current legal issues in Taiwan and in the United States, part of the Robbins Collection’s comparative legal studies series that has also included books published on Japanese law and Korean legal issues. The Taiwan/US essays grow out of a series of workshops that took place over a period of four years at National Taiwan University College of Law and at Berkeley Law under the auspices of the Robbins Collection
To illustrate the importance of the Robbins Collection to University of Washington the pursuit of legal history as a field of study at Berkeley,
DRecent Robbins Center Fellow consider the story told by Matthew Gerber, Professor of History at the University of Colorado, Boulder. A student of Peter Sahlins, Gerber completed his Berkeley History Ph.D. in 2004. “I cannot disentangle the Robbins from the richness of my Berkeley experience,” he says, starting from the moment when the idea for his dissertation –
“The End of Bastardy: Illegitimacy in France from the Reformation through the French Revolution,” which became Bastards: Politics, Family and the Law in Early Modern France (2012) – crystallized in an encounter with Chancellor Daguesseau’s Dissertation sur les bâtards in the stacks at Boalt Hall:
I suddenly realized that the doctrinal exclusion of extramarital offspring from inheritance offered me a circumscribed opportunity to explore the relationship between property and identity. What justified the exclusion of “bastards” from inheritance? Did the justification change over time? How and why were they called “bastards” at law, and when and why did this term eventually become archaic? The Robbins Collections proved to be an outstanding resource for seeking answers to those questions.
“While the Robbins Collection is perhaps best known for its outstanding holdings on medieval canon law, it also possesses a robust number of early modern publications on continental civil law Able to consult multiple editions of homologated customs, case reports, and legal treatises, I soon
came to understand the cumulative nature of many of these publications as they accreted commentaries and updates each time they were reissued The commentaries at times were as useful as the main body of the text, because they helped to signal changes in legal thinking or in the jurisprudence of case law. Perhaps because of my personal intellectual inclinations as the son of a research mathematician with a strong background in science, I appreciated the rigor and precision of legal thought, whatever the cynicism of many writers, and the general public, regarding lawyers. Among students enrolled in the Sahlins seminar, I was definitely the one who spent the most time in the Robbins, poring over as many texts as I could consult. I believe my perspectives on legal history were profoundly shaped by this early exposure to a vast corpus of early modern texts This was 1996, after all, before the advent of google.books.com and gallica.bnf.fr, so access to old legal texts was still comparatively difficult.”
Gerber notes that at the end of the 1990s “I seemed to be the only member of my Berkeley cohort in the History Department to be pursuing questions related to legal history.” We have seen that, in fact, this was not quite the case. Gerber’s advisor, Peter Sahlins, notes that “over the years” he pointed quite a few students in the direction of the Robbins Collection. But in the large graduate admission cohorts of the 1990s, when between 40 and 50 new students would enter each year, with well over 200 active in the program, it was entirely understandable that the few interested in legal history would be isolated from each other. At that time, says Sahlins, there was no trend toward legal history in the field or the department. “I think that if I were teaching today, I would definitely encourage students to explore legal history as one of many options that might lead to future employment, given the ever dismal state of the academic job market.”
(e) The History Department
In 1998, the History Department ceased listing its sole “self- declared” legal historian, Tom Barnes, as a full faculty member. Thereafter, Barnes became officially a joint appointee with law. The untimely death of Jim Kettner four years later meant the department’s admission field of legal history had no obvious faculty member responsible for it. Although it remained in the department’s formal graduate application structure, one would-be legal historian from that era writes that “History Department faculty and administrators discouraged me from choosing ‘legal history’ as a field of study and informed me that they planned to shut it down.” For most faculty who had any interest at all in the field – not many – it was incidental to their primary areas of expertise. Amongst themselves, the Americanists debated whether to recreate Lawrence Harper’s constitutional history course, but without resolution.
What eventually transpired was the appointment in 2003 of Rebecca McLennan, and in 2004 of Mark Brilliant (jointly with American Studies). McLennan was a U.S. historian whose work focused at the time on the history of incarceration; Brilliant was a U.S. historian of civil rights. Neither, one might say, was a “legal” historian as such. But both were working in that direction, and both complemented Robin Einhorn (appointed in 1988), whose work in political and policy history, and the political economy of taxation, sat, like theirs, adjacent to legal histor y.
As to whether “legal history ” would continue to be a field of study for admission purposes, that seemed beside the point. In hiring faculty, or admitting students to fields of study, History was ruled first and foremost by geography and period – the where and the when – not subject. For a history department, this was routine. And geography was a way of remaining relevant in a pluralizing world. In 2000 the department’s fields of specialization were “early and late modem Europe, East Asia, U.S., Medieval, Latin America.” By 2024 this listing had grown to include Africa; the Greek and Roman Empires; Byzantium; Europe (Medieval, Early Modern, Late Modern); North America; Latin America and the Caribbean; the Middle East; South Asia; and Southeast Asia. “Our faculty's research covers almost the entirety of recorded history and spans most of the globe.” Adding regions meant growth; subtracting them would signify decline. (It was rather like an empire’s relationship with its colonies.)
Still, within those regional fields, specialisms – areas of research expertise – might make their mark. Legal history was one of those. Slowly, quietly, during the first two decades of the twenty-first century, it emerged.
Dissertations provide an indicator. In the 2000-2009 decade, 16 completed History Department dissertations were identifiably inflected by “legal history” – still a small number but a growing percentage of the total of 222. In 2010-19, the number was 26 of 231. Paul Sabin completed his in 2000, working with Robin Einhorn and Harry Scheiber. It would become
39 See Appendix 2, pp. 66.
40 See Appendix 2, pp. 58-59.
41 See Appendix 1, p. 57.
Crude Politics: The California Oil Market, 1900-1940 (2004). Sabin writes that he “was not heavily involved with either JSP or the law school at Berkeley. Harry and legal history were pretty synonymous for me, and he introduced me to the field. I came to it through an interest in Western history and the history of infrastructure, economic development, and the environment.” But while writing his dissertation, Sabin was motivated to take property law and tax law classes at Yale, where his wife was in law school. They proved very helpful “I surely would not have thought to do that except for my Berkeley experience.”
In general, the history dissertators of the 2000-2009 decade still did not consider themselves “legal” historians. None was akin to Nasser Hussain ten years earlier, or to Lena Salaymeh, whose 2012 Berkeley dissertation became her critical discourse on how Islamic law had been studied, The Beginnings of Islamic Law: Late Antique Islamicate Legal Traditions (2016). They describe working with legal materials to write social history, or cultural history, without any scholarly input or direction from legal historians or legal academics. Nita Prasad, who completed her dissertation, “Defensive Widow, Litigious Widows, Imagined Widows: Inheritance Disputes in the Courts of the Raj, 1875-1911,” in 2006, writes that “I didn't really think of my project as a legal history project per se; I felt that I was writing more of a social history, using legal sources.” However, she adds that “since the dissertation, I have focused more on the legal infrastructure of the Raj, making statements and arguments about that as well as contributing to the dialogue on the history of women in nineteenth- century India. So now, I feel my work does border both fields – social and legal history.”
Among the dissertators of the following decade there is a slight but nevertheless important difference. Sungyun Lim, who completed her dissertation “Enemies of Lineage: Widows and Customary Rights in Colonial Korea, 1910-45” in 2011 writes, “I came to my research topic through my interest in the legal debates in South Korea unfolding at the time and also in postcolonialism, which many history faculty were interested in. What I ended up doing was something that falls in-between legal, social, and cultural history. I look at legal sources but try to read social and cultural transformations through them.” As in Prasad’s description of post- dissertation interests, one finds the distance between History Department research using legal sources and the research on law that many legal historians conduct diminishing. So, at least, it would seem from the description of Lim’s current research “on the history of property rights over burial sites in modern Korea, which highlights the murky clash of traditional land rights and the modern concept of land ownership.”
Lim was not aware of anyone in the law school at the time with whom she might have worked; “neither was there anyone in the history department who considered themselves legal historians.” Both observations illustrate how sorely communication has been needed, given the Robbins Collection’s efforts to create opportunities for East Asian and comparative scholarship on legal cultures and, closer at hand, the presence of Rebecca McLennan, who by 2010, if not before, counted herself a legal historian
In an attempt to test the communications gap, in Spring 2010 McLennan teamed with Huri Islamoğlu, a visiting professor from Boğaziçi University in Türkiye, to offer “The Rule of Law in International Historical Perspective” as a graduate seminar. To create another focal point for the development of the field, McLennan would later join with Karen Tani to teach a seminar on recent work in legal history.
Also in 2010, McLennan launched a “Berkeley Legal History Workshop,” with funding from the History Department and from JSP. What was important about the workshop was that it was not field-bound. “I think the real service was that it operated as a workshop for graduate students who wanted to present their work to a wide, inter-field audience of readers” says McLennan. “We broke bread at events, got to know each other, spoke across our areas of expertise.”
Much of the History Department graduate research in legal history at this time centered on North America. Giuliana Perrone’s “Post-Emancipation Slave Cases” (2015), which became Nothing More than Freedom: The Failure of Abolition in American Law (2023); Brendan Shanahan, “Making Modern American Citizenship: Citizens, Aliens, and Rights in the United States, 1865-1965” (2018); Aaron Hall, “Claiming the Founding: Slavery and Constitutional History in Antebellum America” (2019); Julia Lewandoski, “Real Properties: Imperial Treaties, Land Surveys, and Indigenous Territories in North America” (2019); Franklin Sammons, “Yazoo’s Settlement: Finance, Law, and Dispossession in the Southeastern Borderlands, 1789-1820” (2020). But indicative of the workshop’s inter-field intentions, the founding student organizer was Faiz Ahmed, who worked with Beshara Doumani (now at Brown) and who wrote his dissertation on “A Rule of Law Project for Afghanistan: The Nizamnama Codes of Shah Amanullah and the Indo -Turkish Juridical Nexus, 1919-29,” which would become Afghanistan Rising: Islamic Law and Statecraft between the Ottoman and British Empires (2017).
The workshop became a focal point in a pluralizing trend. History graduate students found themselves crossing as easily to JSP seminars and law faculty members as Alexandra Havrylyshyn had described as her experience going in the other direction. Brendan Shanahan observes, “it was sometimes hard for me to distinguish who was a JSP student and who was formally in History.”
A second indicator has been the trend among History Department faculty to identify “legal history” among their areas of expertise. We are already familiar with Robin Einhorn (who retired in 2018), Dylan Penningroth, who is jointly appointed with JSP, Rebecca McLennan, and Mark Brilliant. But alongside them another ten of the department of 51 members in 2024 list themselves as historians with expertise or interest in legal history – in all, fully a quarter. Of course, anyone may have a thumb in multiple pies, but this is still a major shift in the History Department’s collective self- definition over the past twenty years. 42 Nor do these numbers include department members like Janaki Bakhle, Margaret Chowning, Brian DeLay, Puck Engman, David Henkin, Trevor Jackson, or Daniel Sargent, all of whom could well make that claim from dissertation research they have supervised or courses taught, or work they have themselves undertaken, should they wish to do so. As Jackson has put it, “if it turns out
42 The full faculty list is: Mark Brilliant, Rebecca Herman, Carla Hesse, Hidetaka Hirota, Stephanie JonesRogers, Rebecca McLennan, Emily Mackil, Carlos Noreña, Michael Nylan, Dylan Penningroth, Rebekah Ramsay, Ronit Stahl, Peter Zinoman. For biographies, see Appendix 2. The History Department currently identifies 22 “clusters” of research expertise amongst which legal history is fifth largest, tied with economic history. The four largest are cultural history, intellectual history, empires, and religion.
that legal history is, or wants to be, a big tent where a thousand flowers bloom, I could imagine being interested in joining such a thing.” 43
As in JSP, McLennan’s own recent and current students – Anthony Gregory, Alejandro Garcia, Sarah Lee, Elizabeth Hargrett - are creating their own legal histories: of incarceration and carceral landscapes, of police and policing, of race and space. These are all distinctive elements in what is, indubitably, becoming a big tent. As another very recent History graduate student, Elena Kempf puts it, “I think of my work as legal history, but probably in a very ‘Berkeley History’ way. My work is shaped both by Tom Laqueur’s interest in cultural history and Stefan Hoffmann’s connection to German conceptual history. My manuscript is not a history of law as an undertaking separate from other spheres of human activity, but rather as one integrally embedded with medicine, politics, science, and art. But despite this broad purview, it is important to me to get the law-ness of law right, both in terms of doctrine and the stories law tells about itself.” Kempf writes of the encouragement she received from History faculty in “entwining ” herself with faculty in JSP, and from law faculty who have embraced her. “My interest in legal history pushed me to create connections with entities beyond the history department early on … Legal history at Berkeley, for me, was an institutionally interdisciplinary undertaking.”
44
CARLA HESSE
Historians, writes Carla Hesse, are “engaging with the law school.”
Let us give the last word in this account of recent trends in legal history in Berkeley’s History Department to another current Berkeley historian, one who comes not from the Anglophone heartland of the field but from Roman Law, and thus speaks to the plurality of legal history’s current vitality while also reminding us of local resources and traditions. “My own story” writes Carlos Noreña, “will only be a foot note … but I'll share it, nevertheless. I work on the political and cultural history of the Roman empire. My major current project is a monograph on law and empire in the Roman Republic (An Empire of Laws: Legislation and Imperialism in the Roman Republic). The book investigates the role of legal mechanisms in general, and statutory law in particular, in structuring Roman imperialism during the main period of overseas expansion (the last two centuries BCE). Its central thesis is that the conquest, annexation, and material exploitation of overseas territories during this period were all propelled by a distinctively republican form of ordering
43 See Appendix 2, pp. 59, 60, 60, 632, 64-65, 69-70.
44 See Appendix 2, p. 63.
45 See Appendix 2, p. 67.
45
the work, a form reflected and constituted above all (so I argue) in the legal apparatus of empire. The book also investigates the historical and normative connections between republicanism, as a social and political form, and empire, as a particular configuration of power. The making of laws (again, so I argue) was essential to that nexus. In working on this project, I have drawn regularly on the resources of the Robbins Collection, which is an essential resource for this sort of work. Indeed, there is nothing quite like it in the rest of the United States, and Roman legal historians routinely visit Berkeley to make use of it. I feel very fortunate, in this regard, to have it right here, at my disposal.”
6. Conclusion
For Carlos Noreña, the Robbins Collection, its prestige and its history, are central and essential to the study of Roman law at Berkeley. “PS” he adds, “the study of Roman law (the juristic tradition) and more the study of Roman legal history is currently BOOMING.”
Indeed, all the different centers where study of the history of law can be found on the Berkeley campus – Berkeley Law, JSP, the Robbins Collection, the History Department, and also beyond, in the Rhetoric and English Departments, in Political Science– contribute to the plurality and vitality of legal history at Berkeley. It is a pleasure to provide a guide to the three dozen current scholars across campus who count themselves either fully or, in some measure, partly legal historians. 46
Legal history at Berkeley is an ongoing endeavor, one that has not been without its interruptions and frustrations, but that over time has accumulated a deep well of experience and expertise. We look forward to its continued growth, and the continued strength that lies in its diversity.
Acknowledgments
The story told here could not have been constructed without considerable reliance upon Sandra P. Epstein, Law at Berkeley: The History of Boalt Hall (Berkeley: Institute of Governmental Studies Press, 1997), and on Gene A. Brucker, Henry F. May, and David A. Hollinger, History at Berkeley: A Dialog in Three Parts (Berkeley: Center for Studies in Higher Education and Institute of Governmental Studies, 1998). Other published work of importance includes Bryant Garth and Joyce Sterling, “From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State,” Law & Society Review, 32, 2 (1998), 409472; Alexander M. Kidd, “Orrin Kip McMurray: His Work in the School of Jurisprudence,” California Law Review, 33, 4 (December 1945), 473-475; Johann Koehler, “Development and Fracture of a Discipline: Legacies of the School of Criminology at Berkeley,” Criminology, 53, 4 (November 2015), 513-544; Susanne Lepsius, “Taking the Institutional Context Seriously: A Comment on James Gordley,” The American Journal of Comparative Law, 56, 3 (Summer, 2008), 655-665; and Christopher Tomlins, “Law’s Disciplinary Encounters: A Historical Narrative,” Law & Society Review, 34, 4 (Fall 2000), 911-72. Obituaries and appraisals contributing to the biographies of key figures included in this account can be found in printed
46 See Appendix 2
sources such as the New York Times, and online archives such as the “In Memoriam” archive of the Academic Senate of the University of California, and the California Digital Library
The story told here also relies on data extracted from the American Historical Association, Directory of History Departments and Organizations (title varies) (Washington, DC: American Historical Association, 1975-2024), available in part on-line, and the extremely useful Directory of History Dissertations (Washington, DC: American Historical Association, 2024) available in full on-line. It also relies upon data extracted from the Association of American Law Schools, Directory of Law Teachers (title and publisher varies) (Association of American Law Schools: Washington, DC, 1922-2024, available most conveniently at Hein Online.
In largest part, however, this story has been constructed from conversations and communications with Berkeley campus teachers and students, past and present, as well as with others further afield Many of these conversation are referenced in the text; all have contributed to the work presented here In alphabetical order, they are: Faiz Ahmed, Mark Antaki, Bettina Aptheker, Janaki Bakhle, Roger Berkowitz, Ben Brown, Dick Buxbaum, Lyndsay Campbell, Christopher Casey, Marianne Constable, Brian DeLay, Beshara Doumani, Rhiannon Dowling, Robin Einhorn, Samera Esmeir, Malcolm Feeley, Lawrence Friedman, Kate Fullagar, Alejandro Garcia, Matthew Dean Gerber, Jeff Goldsworthy, Bob Gordon, Rosann Greenspan, Anthony Gregory, Aaron Hall, Alexandra Havrylyshyn, Dick Helmholz, Carla Hesse, Michael Steven Hindus, Hidetaka Hirota, Stefan Ludwig Hoffman, David Hollinger, Trevor Jackson, Stephanie Jones-Rogers, Abhishek Kaicker, Elena Kempf, Johann Koehler, Riyad Koya, Tom Laqueur, Norma Landau, David Large, Daniel Lee, Julia Lewandoski, Sungyun Lim, Melissa Macauley, Emily Mackil, Laurent Mayali, Charles McClain, Rebecca McLennan, Mark McNicholas, Michael Meranze, Thomas Metcalf, David Neal, Rob Nelson, Carlos Noreña, Michael Nylan, Dylan Penningroth, Giuliana Perrone, Mark Peterson, Tony Platt, Robert Post, Nita Prasad, Keramet Reiter, Ashley Rubin, Paul Sabin, Peter Sahlins, Douglas Sangster, Lena Salaymeh, Lucy Salyer, Franklin Sammons, Daniel Sargent, Shalini Pradeepa Satkunanandan, Harry Scheiber, Donna Schuele, Reva Siegel, Ethan Shagan, Brendan Shanahan, Karl Shoemaker, John Sither, Lynsey Skiba, Yuri Slezkine, Tina Stevens, Karen Tani, Cristian Villalonga Torrijo, Janet Thiess, Kathleen Vanden Heuvel, James Vernon, Bryan Wagner, Barbara Leibhardt Wester, Nancy Weston, Bill Wiecek, John Williams, Victoria Saker Woeste, George Wright, and Zhaoyang Zhang.
The efforts of all of the above notwithstanding, errors whether of fact or explanation have undoubtedly been made. Another writer might tell the story differently, include other people, and other experiences. This is one person’s impression. More are welcome!
Cover photograph and historic faculty photographs appear Courtesy of the Law School Archives, University of California, Berkeley, and the “In Memoriam” archive of the Academic Senate of the University of California. Contemporary Faculty Photographs appear Courtesy of Berkeley Law, of the Robbins Collection at Berkeley Law, and of the History Department, University of California, Berkeley. Ben Brown’s photograph appears Courtesy of Ben Brown.
Many thanks to Liz Townsend for her assistance in retrieving (and scanning) extracts from the print copies of the 1975-2014 AHA Directory of History Departments. Thanks also to Jon Marshall, Assistant Dean for JSP and Legal Studies, for his assistance with my description of the Legal Studies program, to Laurent Mayali, for his assistance with my description of the Robbins Collection, and to Kathleen Vanden Heuvel, Dean Rowan, Tallulah Costa, and Sid
Schlafman for their help with the photographs. Finally, many thanks to Laurie Frasier and Alex Shapiro of the Berkeley Law Communications Team for their help and support, and to Gretchen Bedell for her advice.
Christopher Tomlins Berkeley, August 2024
Appendix 1
Notable Contributors to the Tradition of Legal History at Berkeley (Chronological Order)
William Carey Jones (1854-1923)
Berkeley Professor of Law 1894-1923
William Carey Jones was born in Washington, D.C. the grandson of Senator Thomas Hart Benton (Missouri, 1821-51). His mother, Eliza Benton Jones, was the sister of Jessie Benton Frémont, married to General John Charles Frémont. His father, also William Carey Jones, was a United States Land Commissioner, who in 1849 headed the government's investigation into land titles in California. The son grew up in California and entered the state’s three-year old university in 1871. He pursued an interest in law, notwithstanding the absence of a formal program of legal education on the Berkeley campus, by supplementing coursework in political theory and history with his own course of reading on the theory and practice of law in California.
After graduating in 1875, Jones became an assistant to the university’s new president John LeConte in the position of Recorder of Faculties, and later an instructor in Latin, while he read for the bar. Jones passed the bar examination in 1879 and expected to enter law practice in San Francisco, but never managed to escape Berkeley. From 1882-1894 he taught courses in Roman law, constitutional law, international law, and jurisprudence, as an Instructor in United States History and Constitutional Law in the Department of History and Political Science. In 1894, the President and Board of Regents created the new Department of Jurisprudence with Jones as chair.
The Department of Jurisprudence launched a program of legal education intended to dwell on legal science rather than simply practice, and to engage with the other academic departments and resources of the Berkeley campus. Eventually (1912), the Department of Jurisprudence was transformed into the School of Jurisprudence, with its own new home at Boalt Hall, named for Elizabeth Boalt, who contributed $100,000 towards the construction of the law school building. Jones was appointed the school’s founding dean, a position he held until his death in 1923.
Throughout his career, Jones served as a de facto legal advisor to the University, a successful recruiter of faculty, and a talented fundraiser. He served as dean of the Graduate Division from 1918 to 1920, and in 1919 as chairman of the administrative board that presided over the University in the nine-month interim between President Benjamin Ide Wheeler's resignation and the inauguration of David S. Barrows. He was twice considered for the post of president himself. Jones was an active citizen of the city of Berkeley, and of the state, as an expert in municipal law.
Jones married Alice Harriet Whitcomb, of Berkeley, in October 1880. They had one daughter, Alice Benton. In November 1893 he married a second time, to Ada M. Butterfield, of San Francisco. Together they had two daughters, Frances Carey, and Elsie. Jones died in Beijing while visiting his daughter Alice and her husband, Willys Ruggles Peck, a Career Foreign Service Officer in East Asia.
Bernard Moses (1846-1931)
Berkeley Professor 1875-1911
Bernard Moses was born in 1846, in Burlington, CT. He obtained his BA from the University of Michigan in 1870, then undertook studies in Germany at the Universities of Berlin and Leipzig, culminating in a PhD at the University of Heidelberg (1873). Moses returned to the United States to take up a position at Albion College, MI. He was hired by the University of California, Berkeley, in 1875, where he took charge of the social science courses that had been abandoned in Daniel Coit Gilman’s abrupt departure from the university presidency. Moses ended up teaching most of the economics, history and jurisprudence curriculum himself. With the assistance of William Carey Jones (q.v.) he founded the Department of History and Political Science in 1882, from which sprang, successively, the Department of Jurisprudence (1894), Economics (1902), Political Science (1903), and History (1903).
Moses was prominent and influential in the university’s leadership, particularly in the shaping of the social sciences. One of his most important recruits was Carl Plehn, another German-trained American (PhD Göttingen 1891) as professor of history and political science. Together they taught a variety of courses in history, law and economics. After the establishment of the Department of Economics under Adolph Miller, Plehn gradually specialized, and became a leading authority on public finance and taxation. Moses turned to economic history, becoming a major figure in the history of imperial Spain and Latin America. His teaching and research were instrumental in giving the early Berkeley social sciences their historicist-institutionalist orientation.
Moses’ publications stressed the importance of treating “the Americas” as a whole, one continent, which meant starting with the study of Spanish colonization and its encounter with the earliest civilization of South and Central Americas, and only then continuing to “the two great and contrasted systems of colonization and government that have been organized and carried out in the English and Spanish colonies and in the independent nations that have arisen out of these colonies.”
From 1900-1903, under William Howard Taft, then civil governor of the Philippines, Moses served on the Philippine Commission, which was the sole legislative body of the Philippines and under U.S. control. In 1908, Moses was a delegate to the Pan American S cientific Congress in Chile, then in 1910, a member of the Fourth International Conference of American States in Buenos Aires. He also was assigned in 1910 as a minister plenipotentiary a diplomatic agent given full powers to sign treaties or conventions on a special mission to Chile.
Moses retired from the university in 1911. He died in 1931. In 1965, the Eshleman Memorial Publications Building was renamed Moses Hall in honor of Moses’ contributions as founder and former chair of the campus department of history and political Science, as well as his studies of imperial Spain and Latin America. In 2022 the building was renamed Philosophy Hall in light of the racist and colonialist views woven into the fabric of Moses’ work.
Max Radin (1880-1950)
Berkeley Professor of Law 1919-1948; emeritus 1948
Max Radin was born into a rabbinical family in Kępno [ˈkɛmpnɔ], Poland. His family emigrated to the United States in 1884. Early acquainted with Hebrew, Greek, and Latin, and with classical literature, Radin studied at the City College of New York (BA 1899) and Columbia Law School (LLB 1902). After graduation, he worked as a lawyer and public school teacher in New York while completing a PhD at Columbia (1909) with a thesis on ancient associations, published as The Legislation of the Greeks and Romans on Corporations. In 1909 he married Rose Jaffe (d 1918). In 1922 he married Dorothea Prall (d. 1948).
Between 1909 and 1917 Radin continued to teach in the New York public schools, then became Lecturer on Roman Civil Law at the College of the City of New York, 1917-1918, and Instructor at Columbia University, 1918-1919. At the University of California he was Professor of Law from 1919-1940, and John Henry Boalt Professor from 1940-1948, continuing as Boalt Professor Emeritus from 1948. Radin was Storrs Lecturer at Yale Law School in 1940, a visiting professor at Pacific University in Oregon (1946), Columbia University (1947), Hastings Law School (1948), and Duke University (1949), and a member of the Institute for Advanced Study at Princeton (1949).
Radin’s published research – books, articles and book reviews – totaled more than 700 works. His correspondence was equally voluminous. His interests ranged widely: philology, law, and history, both ancient and modern; logic, philosophy, psychology, and anthropology. His pervasive interest in legal history found expression in his Handbook of Roman Law (1927) and his Handbook of Anglo -American Legal History (1936), and in numerous works on Jewish law and history. But his publications also included many popular titles, such as The Law and Mr. Smith (1938) and The Law and You (1947), for his forté lay not simply in exposition of the origins and the rational structure of the materials he explained, but also in exploration of their bearings upon enduring human values, and thus on the present. “Little as it impinges on our consciousness” he wrote as the concluding sentence of his “A Glimpse of Roman Law” (1949) “the Roman law has colored and moulded our civilization, perhaps more than any single element we have derived from those ancient societies out of which we have constructed most of our social and intellectual life.” Justice William O. Douglas observed of Radin that he was “part of the tradition of Holmes and Cardozo in his influence on the Law.”
Orrin Kip McMurray (1869-1945)
Berkeley Professor of Law 1907-1940; emeritus 1940
Orrin Kip McMurray was born in San Francisco just twenty years after the Gold Rush. Educated at the Urban School of San Francisco, he graduated from the University of California (Berkeley) in 1890, and from Hastings Law School in 1893. He practiced law in San Francisco from 1893 to 1904, teaching part-time at Hastings and at Berkeley in 1902. McMurray joined the Berkeley faculty in 1907, and spent his entire career at Berkeley, serving as Dean from 1923 to 1936. He was also President of the Association of American Law Schools (1925), member of the Board of Freeholders Charter for Alameda County, member of the State Constitutional Committee, and member of the American Law Institute. Legal history was among the subjects of interest he identified as a law teacher. “Our laws ‘are not
otherwise than the ship that by often mending had no piece of its first materials … yet (by the civil law) is to be accounted the same still,’” he observed in 1927. “John Selden's description despite its figurativeness is by no means an untrue characterization of our present law. One clearly cannot claim even a bowing acquaintance with such a system unless he has some smack of history.” This was no mere matter of idle scholarly curiosity. “Men have been hanged” he observed, citing the 1916 trial and execution of Roger Casement, “on points of legal bibliography.”
McMurray did not learn his law from great thinkers. He was steeped in the provincial law, and the history, of the bench and bar of California. He was not a famous scholar. His métier was that of “a real lawyer” skeptical of representations of law as some forbidding combination of “theoretical abstract science” with “mystic forms.” Still, the articles he wrote in various legal periodicals, notably the California Law Review, held out as an ideal the enrichment of that tough provincial common law with the cultural humanism of classics in literature, history, and jurisprudence, such that the best of the past would be fused with the needs of the present in proper understanding of the elementary “call in each human being for justice.” Here lay the mission of the law school of his day, to become “a vital source of power” that would “contribute more largely and effectively than any other American law school ever has done to the advancement of law in this country,” and to do so not by distanced contemplation of its times but by direct engagement in life itself, in service of “the needs of mankind struggling for utterance.”
Stefan Albrecht Riesenfeld (1908-1999)
Berkeley Professor of Law 1952-1976; emeritus 1976
Stefan Riesenfeld was born in Breslau, Germany (now Wrocław, Poland). He studied at the University of Breslau, receiving a Dr. Iur. Degree summa cum laude (1930) for his dissertation on the law of mutual insurance companies. Riesenfeld then practiced briefly with a Berlin commercial firm, and became a research associate of the Kaiser-Wilhelm Institute, founded by Ernst Rabel. Apprehensive at the Nazi rise to power in Germany, Riesenfeld moved to the University of Milan, where he received a J.U.D. (doctorate in civil and canon law - doctor juris utriusque, meaning “doctor of both laws”) in 1934. Whilst In Milan, he met Berkeley’s famous comparative law scholar, Max Radin (q.v.), who recommended him to Dean Edwin Dickinson as a research associate in comparative law. Riesenfeld was appointed to the position but, feeling a need for knowledge of American law he enrolled simultaneously as a J.D. student, receiving his degree with distinction in 1937.
Riesenfeld subsequently taught at Harvard (where he acquired a JSD) and at the University of Minnesota (where he also earned a degree, this one in electrical engineering) before joining the US Navy during World War II. In 1944 he married Phyllis Thorgrimson who survived him, as did two sons, Peter and Stefan. After the war he rejoined the faculty at Minnesota. In 1952, Dean William Prosser invited Riesenfeld to return to Berkeley, where he would remain until his death in 1999.
Riesenfeld was a central figure at the Law School for decades, teaching both first-year courses, advanced seminars, and practical commercial law courses, acting as mentor to generations of international law scholars, renowned for his erudition and his wit. Though mandatory retirement required him to take emeritus status in 1976, Riesenfeld remained a
fixture on the faculty as a professor “on recall” and continued to teach with little pause, both at Boalt and at UC Hastings College of Law, until the day of his death.
Riesenfeld not only taught a wide variety of subjects, he published prolifically in an equally wide range of fields. He was the author of texts and monographs on bankruptcy, property, secured transactions, patent law, international law, and the law of the sea. He wrote on social legislation, comparative administrative law, and the treaty-making power. He was one of the world's leading authorities on private international law, and he wrote important articles on legal history. All told, Riesenfeld wrote (or edited) 32 books and 140 articles.
Riesenfeld’s intellectual scope within the legal academy, and his activities beyond it (on the postwar judicial organization for Germany, for example, and as a State Department counselor on issues of international law and policy, such as the governance of the Trust Territories in the Pacific) made him one of the most important members of the Berkeley law faculty in the twentieth century. Dean Herma Hill Kay remarked on his death that “to many people, especially in Europe, he personified our law school.” As the late David Caron put it, to be a scholar in Riesenfeld’s estimation, one must “believe in the importance and urgency of more fully understanding our world. Law and politics were important, and simplistic theoretical filters on such complex phenomena were potentially dangerous.”
Thomas Garden Barnes
(1930-2010)
Berkeley Professor 1961-2006; emeritus 2006
Tom Barnes was born and grew up in Pittsburgh, Pennsylvania. After graduating from Harvard in 1952, he undertook a DPhil (1955) at Oxford, where he attended Corpus Christi College, specializing in Tudor-Stuart history. Concurrently, he read law for the English bar at Lincoln’s Inn, London. He took to English life and manners as only an American can. One of his closest Berkeley friends described him as a combination of hearty eighteenth- century English country squire and muscular Anglican clergyman, to which Barnes himself added “Whig lawyer” – he meant, of the eighteenth century radical variety. In 1955 he married Jeanne-Marie Dubus.
Barnes began his academic career in 1956 at Lycoming College in Williamsport, Pennsylvania, where he taught history and political science. In 1961 he joined the Department of History at Berkeley, and from 1965 onward taught classes in the law school, joining the faculty formally as “Professor of History and Law” in 1968. He taught courses on Tudor-Stuart England and English legal history in the History Department, and the history of the common law in the law school. He also had a keen interest in historical method, in military history and the history of warfare, and in Canadian Studies, leading to the creation of Berkeley’s Canadian Studies Program. Off campus, Barnes taught ecclesiastical history at the St. Joseph of Arimathea Anglican Theological College near the Berkeley campus, a schismatic establishment of which he was cofounder and vice provost. His theological interests extended to liturgy and the Hebrew Bible.
Barnes’ scholarship concentrated at first on the English civil war and the English legal system, publishing Somerset 1625-1640: A County’s Government During the Personal Rule in 1961. He compiled a Public Record Office (London) handbook to Star Chamber documents, 1558-1641, and contemplated a book on the history of Star Chamber. Although the book was
never finished, he published articles on the topic, and added research on a French counterpart institution, the Conseil Privé. Other publications considered Magna Carta, American colonial law, Franco -Canadian affairs, other aspects of Canadian history, and the current condition of the Church of England. Barnes’ interest in American law led him to write a history of the University of California’s law school in San Francisco, Hastings College of Law: The First Century (1978). He was a prolific editor of books, including (with Gerald Feldman) several volumes of a documentary history of Europe, and he wrote chapters for a history of western civilization. He also wrote multiple introductory essays for The Legal Classics Library, a collection of facsimile editions, including essays on Oliver Wendell Holmes, Henry Sumner Maine, Benjamin Cardozo, William Blackstone, Cesare Beccaria, Plato, John Milton, The Laws and Liberties of Massachusetts (1648), and Maxime Kovalevsky. One of his last essays was an account of the trial of the Holocaust denier David Irving. A selection of Barnes’ essays was published by Stanford University Press (2008).
In 1960 Barnes was elected a fellow of the Royal Historical Society. During the course of his career he also received fellowships from the Huntington Library, the American Council of Learned Societies, and the Guggenheim Foundation. In 2007, his doctoral students organized a Festschrift published as Law and Authority in Early Modern England: Essays Presented to Thomas Garden Barnes
Lawrence Averell Harper (1901-1989)
Berkeley Professor of History 1922-1989
Lawrence Harper was born in Oakland, California, and spent his early life, indeed most of his life, in the Bay Area. He was educated at Fremont High School (1914-18) and the University of California, Berkeley, earning a BA (1922) and an MA (1924). Harper studied law as well as history, and earned his J.D. (1925) with a thesis, Comments on Recent Cases Decided by the Supreme Court of the United States.
Harper was appointed a teaching fellow in history (1922-1923) and became an assistant in 1924. In 1925-26 he studied at King's College of the University of London, where he began his research on British trade and in particular the Navigation Acts. In 1925, he married Anna McCune, and then after King’s College moved to Columbia University as a PhD candidate. Harper returned to the Berkeley in 1928 as an Instructor in History. Simultaneously he began a law practice specializing in customs law. He would remain in practice until 1954.
Harper’s proposed Columbia thesis on the English Navigation Laws became a comprehensive exploration of the laws, administrative history, shipping, and trade of the United Kingdom. His research took advantage of new methods of photo reproduction on repeated visits to the U.K. and American archives seeking details of ships' registers and port records Harper was also able to employ research assistants whose cost was underwritten by the Works Progress Administration and the National Youth Administration as well as by his own resources. The finished work, The English Navigation Laws: A Seventeenth-Century Experiment in Social Engineering (1939) earned Harper his Columbia PhD, widespread praise from historians of colonial America, and promotion to assistant professor at Berkeley. The thesis was published by Columbia University Press.
Harper’s research furnished additional publications in article and book form, notably pioneering work in colonial- era statistics published in the Historical Statistics of the United States, Colonial Times to 1957. His research record saw him advance to associate professor of history (1943) and professor (1947). His abiding interest in research methods saw him assist in the formation of the Computer Center, serving on the Central Services Advisory Committee from 1950 to 1954. He was involved in the Audio -Visual Committee from 1951 to 1956. He chaired the committee to draft the report on educational television (1953) for the Commonwealth Club of San Francisco. He attracted a large number of graduate students who developed their familiarity with new methods of archival and statistical research in history through association with him.
Harped also served on the state bar committee for the history of law in California, In 1956 he published the Introduction and Guide to the Legal History of California, and in 1965-1966 developed a new course in United States constitutional history, planned so that “students would primarily be responsible for learning the subject themselves and would be rewarded for endeavoring to help their fellow students.”
After retirement in 1968, Harper continued accumulation of materials for the study of colonial America’s economic history. At the time of his death he was still actively engaged on his project. His colleagues remembered him as a quiet, courteous, and patient man who excelled in conciliation.
James H. Kettner 1944-2002
Berkeley Professor of History 1973-2002
James Kettner was born in Greenville, Ohio, where he attended local schools, then Harvard. After graduating in 1966 he won a Marshall Scholarship and studied for a second bachelor’s degree at the University of Sussex, England, where he won First Class Honors. He returned to Harvard for graduate work in early American history with Bernard Bailyn. He received his PhD in 1973, and was appointed to the History Department at Berkeley, where he taught until his death.
Kettner was a careful and committed scholar. His publications were not numerous, but his work was subtle, and probing. His doctoral thesis, “The Development of American Citizenship 1608-1870,” was awarded the 1975 Jamestown Prize, given by the Omohundro Institute of Early American History and Culture in Williamsburg, Va. This was a major honor. Revised, the manuscript was published with the same title in 1978 in the Institute’s own series. The book was widely reviewed, and its central argument, that Americans in the Revolutionary era conceived of citizenship as “volitional,” was widely praised.
Kettner came to Berkeley as a lecturer and worked his way to professor mainly on the strength of devotion to the campus, superb teaching, and committed mentoring of both undergraduate and graduate students. Students loved him for his devotion to learning not in the abstract, but learning defined by the intellectual and moral growth of those who took his classes and seminars. As a serious scholar of the history of the Constitution, he was of major importance in attempts of his era to advance legal history in cooperation with the law school.
John T. Noonan (1926-2017)
Berkeley Professor of Law 1967-1985; emeritus 1985
John T. Noonan Jr. was born in Boston, Massachusetts, and grew up in Brookline. After graduating from Harvard (1944) and a year at the University of Cambridge, he undertook a PhD in philosophy at Catholic University of America (1951). A JD followed at Harvard Law School (1954). Noonan served for a year on the staff of the U.S. National Security Council, then practiced law for six years at his father's Boston firm. He joined the law faculty at the University of Notre Dame in 1961, and became professor of law at Berkeley in 1967 after a visit. The same year he married the art historian, Mary Lee Bennett.
For the next eighteen years Noonan taught courses on professional responsibility, jurisprudence, and legal history, and chaired the Program in Religious Studies and the Committee on Medieval Studies. In 1985, he took emeritus status after President Ronald Reagan appointed him to the United States Court of Appeals for the Ninth Circuit, sitting in San Francisco. While emeritus, he continued to write in the areas he had made his own over the previous thirty years.
Noonan was a prodigious scholar, wide-ranging in interests and accessible in expression. His work was driven by his beliefs in the importance of history, in the significance of the subject to hand, and in the moral relation between scholar and reader in developing understanding. His first book was The Scholastic Analysis of Usury (1957), treating the process of development of moral, legal, and Church doctrine over time. His 1965 book, Contraception: A History of Its Treatment by the Catholic Theologians and Canonists, found contraception doctrine to be older, more nuanced, and less stringent than generally thought at the time. It led to his appointment by Pope Paul VI as a consultant to the Papal Commission on Birth Control.
Persons and Masks of the Law (1976) is the book for which Noonan is perhaps best known. Intensively concerned with the human beings behind formal systems of rules the book underscores the importance of the individuals who make and apply law as judges, help make it as lawyers, and are affected by it as litigants. It takes place in a never- ending history of jurisprudential thought and judicial decisions, and explores the tensions between on the one hand formal rules, abstract principles, and structured roles - all considered necessary – and, on the other, the essential demands of humanity and the effects of laws on individuals in a context of social and moral realities. Noonan held that the legal and social constructs that mask the humanity of participants are unduly dominant in legal thinking and legal education, a point he examined further in The Antelope: The Ordeal of the Recaptured Africans in the Administrations of James Monroe and John Quincy Adams (1977), a case study of how the American legal system used the mask of property to conceal and obliterate the humanity of enslaved Africans and their descendants. Finally, Bribes: The Intellectual History of a Moral Ideal (1984) was a subtle demonstration that in early society the aim of giving gifts to powerful strangers was to elicit reciprocity and create social coherence. There was no crime of bribery. The wrongdoer was the person who accepted gifts but did not reciprocate with the favors they obliged. Once “office” had become a facet of a bureaucratic state, bribery became a breach of the fidelity to rule that distinguishes public authority from raw power.
Michael Smith (1935-2009)
Berkeley Professor of Law 1967-1994; emeritus 1994
Michael Smith was born in Great Neck, New York, and grew up in Great Neck and in Gloucester, Massachusetts. He earned his BA at Haverford College (1956), majoring in history and government. He spent two years as a community service worker for the American Friends’ Service Committee and then as an instructor in world history at Cheshire Academy in Connecticut, before postgraduate study in government at Harvard where he earned his MA (1963), followed by law school at Michigan where he earned his JD (1964). Smith then served a year as a law clerk to Judge Sterry Waterman of the U.S. Court of Appeals in New York City, and for a second year as a law clerk to Chief Justice Earl Warren of the U.S. Supreme Court. In 1966 Smith married Martha Julia Barnes.
Smith joined the law faculty at the University of California, Berkeley, in 1967. Apart from a period of public service in 1976-77 as chief staff counsel to the U.S. Court of Appeals in the District of Columbia and co -author of the Court’s Handbook of Practice and Internal Procedures, Smith taught at Berkeley for 40 years. He was a versatile teacher; his subjects included criminal law, constitutional law, legal history, trusts and estates, federal courts, corporate law, and conflict of laws. As a scholar he demonstrated the same versatility, engaging first in an exhaustive narrative account of the labor troubles in California’s central valley in the early twentieth century, then in a study of federal judges and federal courts concentrating on Second Circuit Federal Court of Appeals. His projected history of the Court was never completed, but the work furnished articles, notably “Judge Charles E. Clark and the Rules of Civil Procedure,” Yale Law Journal (1976), and “Justice on Appeal,” University of Michigan Journal of Law Reform (1978). Subsequently, Smith became interested in religion, earning an M.A. in moral theology from the Graduate Theological Union in Berkeley (1982). He went on to publish “The Special Place of Religion in the Constitution,” Supreme Court Review (1984), “Religious Activism: The Historical Record,” William and Mary Law Review (1986), and “Relations between Church and State in the United States,” American Journal of Comparative Law (1987). Smith subsequently developed a course on concepts of punishment, taught first to law students and later to both law students and undergraduates through the Legal Studies Program, that merged his interests in criminal law, history and religion.
Smith became an emeritus professor in 1994, but he continued to pursue his teaching and scholarly interests. In addition to the concepts of punishment course, Smith developed a very popular course on law in the Bible that he taught for several years to undergraduates through the Legal Studies Program. He published “Punishment in the Divine Comedy,” Cumberland Law Review, 1995) and completed two manuscripts that remained unpublished: “Two Kinds of Divine Law in Genesis 1-3” and “The Old Law and the New, According to Thomas Aquinas.”
Richard Buxbaum (1930- )
Berkeley Professor of Law 1961-2011; emeritus 2011
Dick Buxbaum was born in Friedberg, north of Frankfurt, in Germany. His father was Jewish, and a doctor. His mother was nominally a Catholic. He and his family were able to leave Germany in late 1938, and eventually would settle in upstate New York. Buxbaum
attended Cornell University as an undergraduate, where he studied economics, but also classics, history and literature with many of the émigré generation of scholars. Upon graduation in 1950 he entered Cornell Law School, earning his LLB (1952), and then undertook an LLM (1953) at Berkeley, where he came under the influence of Albert Ehrenzweig, Stefan Riesenfeld, and Richard Jennings. Their collective mentorship and collegial support “were essential to my training as a future academic.”
Buxbaum returned to Berkeley to join the faculty in 1961. He came to specialize in the law of corporations, and of international trade and transactions. But what this meant was a scholar and teacher in the grand style of comparative and international law, to whom history was an essential component of how he thought and what he wrote. Buxbaum was also involved throughout in periods of practice, of “weaving in and out of the traditional academic track,” whether as a defender of Berkeley Free Speech Movement campaigners or as a participant in training programs for southeast Asian (Indonesian, Korean) legal officials, and finally as a Berkeley Dean for International and Area Studies.
His was an academic life full of activity that covered most of the globe. But in its later years it has come to be a life that has returned to reflect on its past. “One theme concerns the treatment of real and personal property owned by Jews,” a second is one of “fascination with postwar Allied and German treatment of claims of property losses in contrast with human losses of life and liberty,” for example, the millions of forced laborers and prisoners of war, all of whom were owed wages, properly documented by the Reich, but who were refused payment by the Reich’s successors. Ever active, Buxbaum has turned to documenting the past through which he lived, and the lives of others with whom he has lived. He has become a writer of festschriften, and thus a contributor to and celebrant of the great continuities of mentorship and collegiality that frame the lives of all academics, as they characterize his own.
David Daube (1909-1999)
Berkeley Professor of Law 1970-1988; emeritus 1988
David Daube was born in Freiburg im Breisgau, Germany, into an Orthodox Jewish family. He attended the Berthold Gymnasium in Freiburg, and then the University of Freiburg, where he studied Roman Law with Otto Lenel, followed by doctoral work on Old Testament law at Göttingen, where he began to apply modern critical methods of study to Biblical law. He passed his Göttingen Dr. Iur. examination in 1932 with the highest honors. But his thesis could not be published in the Third Reich. Daube’s distinguished pass was expunged from university records. His Göttingen degree was not awarded until 1962.
In 1933 Daube left Germany for the University of Cambridge. Whilst a research fellow at Gonville and Caius College he undertook a second doctorate in Roman Law with the Roman Law historian William Warwick Buckland. He was also active in arranging the escape of his own family and other German Jewish refugees from Nazi Germany, notably Leo Strauss. In 1936, Daube married Herta Babette Affseesser; they had three sons, but were divorced in 1964. In 1986 he married his longtime companion Helen Smelser.
During World War 2, Daube was briefly interned as a German alien, then worked in London on school and hospital evacuation. After the war, and the acquisition of British citizenship,
he returned to Cambridge to teach law. In 1951 he was appointed to his first Chair as Professor of Jurisprudence at the University of Aberdeen. In 1955 he became Regius Professor of Civil Law at Oxford, and Fellow of All Souls College. He also renewed ties with Germany as Visiting Professor of History at the University of Constanz. In 1970 he moved to Berkeley to become Professor-in-Residence at the law school and Director of the Robbins Hebraic and Roman Law Collections. Mandatory retirement required him to take emeritus status in 1976, but he remained Director of the Robbins Hebraic and Roman Law Collections until 1988, and continued to teach courses on Ancient Law, Roman Law, and the Law of the Bible and Talmud, until 1994. “He was an omnipresent figure in the law library's old Robbins reading room until 1996, when failing health prevented him from coming to the law school.”
David Daube was the twentieth century's greatest scholar of ancient law. He was also the century’s greatest Talmudic and Biblical scholar. He was no saint. But he was a brilliant, committed scholar who for three decades brought his prestige, integrity, honor, and sense of intellectual adventure (and fun) to Berkeley’s law school. “He had vast knowledge of the texts upon which western-raised people have founded their lives for more than two thousand years.” His scholarship – particularly his essays – in Biblical, Greek, Roman, and Talmudic law and literature, and so many other areas, defies enumeration.
Daube assisted in the creation of Oxford University’s Centre for Hebrew and Jewish Studies, which then made him and Isaiah Berlin its first Honorary Fellows. With the Robbins Collection, the Centre has sponsored publication of Daube’s Collected Works: volumes on Talmudic Law, on New Testament Judaism, on Biblical Law, and also a volume of what Daube called his Varia - on Shakespeare, medical ethics, suicide, Arthurian legend, and nursery rhymes, to cite just a few examples. It is appropriate to say of him, as Daube himself once said of a late colleague of his at Berkeley, that “he was the glory of our law school.”
Stephan George Kuttner (1907-1996)
Berkeley Professor of Law 1970-1988; emeritus 1988
Stephan Kuttner was born in Bonn, Germany to an assimilated Jewish family of Lutheran faith. He studied law in Frankfurt, receiving his first degree in 1928 at the age of 21, and then in Berlin, where he earned a J.U.D. (doctorate in civil and canon law - doctor juris utriusque, meaning “doctor of both laws”) in 1930. In his case the often nominal second part, canon law, became the dominant reality.
Kuttner began his teaching career in Berlin. In 1932 he left Germany, in part to undertake postdoctoral research in Rome, in part to escape the Nazi rise to power. In 1933 he married Eva Ilich. Remaining in Rome as a research fellow at the Vatican Library, he became a convert to Catholicism, and a leading expert on medieval canon law. His research on the meaning and importance of the period’s texts established their authenticity, authorship, and relationship. In 1937 he published the Repertorium der Kanonistik, a fundamental account of the location, provenance, and authorship of a substantial body of canonical material. The same year he was appointed to an assistant professorship at the Lateran University.
In 1940, Kuttner and his family emigrated to the United States, his wife and three children narrowly avoiding deportation en route, from Lisbon back to Germany. In the US, Kuttner joined the faculty of the Catholic University of America, where he remained until 1964, then
became the inaugural occupant of the T. Lawrason Riggs Chair of Catholic Studies at Yale. In 1970, Kuttner retired from Yale and came to Berkeley as Director of the Robbins Collection in Roman and Canon Law and Professor of Law. He held these positions until 1988, then continued as Emeritus Professor of Law until his death. At Berkeley his main project was the creation of a catalogue of the legal manuscripts of the Vatican Library, which were microfilmed and added to the Robbins Collection. Two volumes have been published.
Stanley Chodorow of UC San Diego has written that Stephan Kuttner was “part of the migration of medievalists from fascist Europe who transformed American medieval studies from the 1940s on.” They “brought the highest standards of research to our programs and, in many cases, added new subjects to our field.” Kuttner quite literally created medieval canon law studies in America. He was mentor to the field’s students, and showed generations of medieval historians how canon law was essential to their work. He founded Seminar, a journal of legal history, he co -founded Traditio, a journal of humanistic medieval studies, and later the Bulletin of Medieval Canon Law. In 1955 he founded the Institute of Medieval Canon Law, over which he presided for 25 years. The Institute, now affiliated to the University of Munich, bears his name. He launched a series of international congresses in medieval canon law, and founded the publishing series Monumenta Iuris Canonici. Kuttner came to hold eighteen honorary degrees, including those of Salamanca, Louvain, Bologna, Cambridge, and Paris, and membership of nineteen learned societies, including the American Academy of Arts and Sciences, the Academie Française, and the German Order Pour la Merite. His best known book is Harmony from Dissonance, an Interpretation of Medieval Canon Law (1960).
James Russell Gordley (1946- ) Berkeley Professor of Law 1978-2007
James Gordley earned his BA from the University of Chicago (1967) an M.B.A. from Chicago’s Graduate School of Business (1968) and a JD from Harvard (1970). After his JD, he became a fellow at the Institute of Comparative Law at the University of Florence, then Ezra Ripley Thayer Fellow in Comparative Law at Harvard (1972-78) before coming to Berkeley in 1977 as a Fellow of the Institute of Medieval Canon Law. He joined the law faculty in 1978, and would remain a member of the faculty for nearly thirty years. In 2007, he was appointed W.R. Irby Distinguished University Professor at Tulane Law School, New Orleans, where he continues to teach contracts, comparative private law, and property law.
Gordley is an internationally recognized scholar of comparative law, contract law and legal history. He has been a visiting professor at the Universities of Fribourg, Regensburg, Munich, Milan and Universita Commerciale Luigi Bocconi; a visiting scholar at the Max Planck Institute for Comparative Law in Hamburg, the European University Institute in Fiesole and the University of Cologne; and the Jean Monnet Distinguished Professor in Comparative Law at the University of Trent. He is the author of a dozen books and more than 100 scholarly articles on a broad range of topics relating to the history and philosophy of contract, tort, and other private law in societies around the globe. His style is sweeping and synthetic, intellectual and doctrinal. In his work, Gordley has argued for a return to the “traditional methods of jurists,” by which he means the neglected “intellectual tradition that began with the Romans” that furnishes “the main foundation of the ‘Western legal tradition’.” He believes traditional methods endangered whether in the pedagogy of American Law Schools or
continental European legal science at large. Taking a long-term view, Gordley holds that modern legal science is the shabby result of a history of decay that began shortly after Hugo Grotius.
Amongst his books are Foundations of American Contract Law (2023), The Eclipse of Classical Thought in China and the West (2022), The Jurists: A Critical History (2013), Foundations of Private Law (2006), and The Philosophical Origins of Modern Contract Doctrine (1991). He has written on “Comparative Law and Legal History” (2019), The Architecture of the Common and Civil Law of Torts: An Historical Survey” (2015), “The Universalist Heritage” (2003), “Contract, Property and the Will The Civil Law and Common Law Traditions” (1998), and “Law and Religion: An Imaginary Conversation with a Medieval Jurist” (1986). Gordley is a member of The Society of Bartolus, a fellow of The American Academy of Arts and Sciences, a corresponding fellow of The British Academy, and Membre titulaire, Académie internationale de droit comparé.
Harry N. Scheiber (1935- )
Berkeley Professor of Law 1980-2012; emeritus 2012
Harry Scheiber was born in New York in 1935, and grew up in White Plains. He attended Columbia University, earning a BA (1955), and then Cornell University for an MA (1957) and PhD (1961) in history, studying with Paul W. Gates. In 1960 he joined the faculty of Dartmouth College. He spent 1966-67 studying law a fellow in the Center for Advanced Study in the Behavioral Sciences, Stanford University.
Scheiber’s publications in the1960s included The Wilson Administration and Civil Liberties, 1917-21 (1960) and articles in the Political Science Quarterly, Journal of Economic History, Cornell Law Review, Stanford Law Review and other journals, on land law and banking policy in western US economic development, slavery and the Constitution, and the history of pre-1860 state transportation enterprises. His book Ohio Canal Era: A Case Study of Government and the Economy, 1821-1860 (1970) combined archives-based research with the material and methodologies of political, legal, financial, and administrative history, and helped to establish “legal- economic history” as a distinctive category of historical research. These studies led Scheiber to focus on what he termed “federalism as a working system,” in contrast to portrayals of federalism that stressed constitutional doctrines.
In 1971, Scheiber became professor of history at UC San Diego, where several of his doctoral students wrote on aspects of California and national constitutional history, others pursuing topics in the legal- economic history mode. In 1980 he was recruited to UC Berkeley as professor of law, and within a year was named as chair of the recently established JSP Program. In three terms as chair, over more than eight years in total, he led the program’s growth from five core faculty to twelve. With Charles McClain he oversaw development of the innovative undergraduate Legal Studies Program.
During the 1980s Scheiber’s research agenda broadened to include a new focus on the history of international law, notably the law of the sea. His work has shown how scientific management and conservation concepts have been incorporated into customary and treaty law. From 2001 until his retirement, he co - directed (with Prof. David Caron) and then directed
the School’s Law of the Sea Institute, serving as editor and contributing author for a series of twelve volumes on ocean law and policy, published by Brill.
His latest major research project was in collaboration with his late wife, Jane L. Scheiber, a series of journal articles on civil liberties and civil rights culminating in their book, Bayonets in Paradise: Army Rule and the Crisis of Civil Liberties in Hawaii during World War II (2016).
In 1988 Scheiber became Stefan Riesenfeld Distinguished Professor of Law and History, in 2012 he became Chancellor’s Distinguished Emeritus Professor. Whilst at Berkeley, Scheiber became prominent in campus governance, serving as chair of several major Faculty Senate committees, and in 1994-95 as chair of the Senate. He was for 25 years on the board of directors of the California Supreme Court Historical Society, and was the founding editor of its journal, California Legal History. In 2016 he edited Constitutional Governance and Judicial Power: The History of the California Supreme Court
Scheiber served as president of the American Society for Legal History for 2003-05.
David
Lieberman (1953-2022)
Berkeley Professor of Law 1984-2022; emeritus 2022
David Lieberman was born in Ohio, and grew up on Long Island, where his father was a rabbi at the Central Synagogue of Nassau County. After accompanying his parents to England on a paternal sabbatical, he attended Saint Paul’s School in London, and then stayed on as an undergraduate to read history at the University of Cambridge, graduating in 1974 with firstclass honours. After a brief interval back in the United States he returned to England, this time to University College London, where he was to take on Jeremy Bentham. In 1978 he resumed life at St. Catharine’s College, as a research fellow (1978-82). In 1980, half way through that fellowship, he completed his London University PhD, and in 1982, he became college fellow and Director of Studies in Histor y at Christ’s College, Cambridge. In 1984 he was appointed to the Berkeley Law faculty, where his primary affiliation was with the Jurisprudence & Social Policy Program (JSP). He would never leave.
From the outset, at Berkeley, Lieberman played a foundational role in JSP, and later in his career chaired the program for several years. He was an outstanding administrator – patient, thoughtful, and collegial. He was an outstanding teacher as well. His JSP seminars on the history of legal and social thought and on the history of punishment drew students from across a range of campus departments, helping to underpin not just legal history at Berkeley but sociology of law and criminology as well. And he was an outstanding mentor – kind, wise, and selfless.
As a scholar, Lieberman was known internationally for his meticulous research on Jeremy Bentham, the history of the common law, English constitutionalism, and eighteenth- century British legal thought. He lectured and taught all over the world: not only North America and England, but Australia, China, France, Israel. His first book, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (1989) was joined by annotated editions of works by Henry Home (Lord Kames), and Jean Louis Delolme, in 1988 and 2007. His research on Bentham continued throughout his life, resulting in a stream of articles. He was a consummate essayist. His study, in progress, of the program for democratic statecraft set out in Jeremy Bentham’s Constitutional Code and related writings would have been a tour-
de-force, had it not been interrupted first by ill-health, then sad misadventure, and finally the fatal hiking accident that took David’s life only two months after his retirement, when all finally seemed well again.
David Lieberman was a crucial figure in the history of JSP and the wider history of Berkeley Law and Berkeley itself. We join his beloved wife and partner, Carol Brownstein, and their children, in continuing to mourn his death.
Charles J. McClain (1943- )
Berkeley
Law Lecturer in Residence 1977-2010; emeritus 2010
Chuck McClain earned his BA from Xavier University in Cincinnati, his MA (1966) from Columbia University, his PhD in History from Stanford (1972), and his JD from Hastings College of Law (1974). After three years as a staff attorney for the American Association of University Professors (1974-77), McClain came to Berkeley as Vice-Chair of the Jurisprudence & Social Policy Program and Lecturer in Residence in the law school, positions that he filled from 1977 until 2010. At Berkeley, outside JSP, he has been, and remains, a stalwart of the Legal Studies program. He has also been a visiting lecturer in law at Santa Clara Law School (1980-81) and was for many years a member of the faculty of the Master of Judicial Studies Program, University of Nevada, Reno. He has been an American Bar Foundation fellow (1982-83) and an NEH fellow (1988-89). In 2003 he was the recipient of Berkeley’s Distinguished Research Mentoring Award (2003). In 2006 he was a consultant and instructor on American Studies and law in Vietnam and China. McClain served for many years as an arbitrator and mediator for the U.S. District Court, Northern District of California.
As a legal historian, Chuck McClain is best known for his pioneering work on Asian Americans, notably his book In Search of Equality: The Chinese Struggle Against Discrimination in Nineteenth Century America (1994) and his editorship of the four-volume collection, Asian Americans and the Law: Historical and Contemporary Perspectives (1994). His articles and commentaries have been published in the California Law Review, Reviews in American History, the Journal of the Legal Profession, the Law and History Review, Law & Social Inquiry, Western Legal History, the Asian Law Journal, California Legal History, and numbers of encyclopedias and collections. He contributed “Pioneers on the Bench: The California Supreme Court, 1849-1879,” and “The Gibson Era, 1940-1964,” to Constitutional Governance and Judicial Power: the History of the California Supreme Court (2014) edited by Harry Scheiber.
Robert Post (1947Berkeley Professor of Law 1983-2003
Robert Post was born in New York City. His BA is from Harvard (1969) and his JD from Yale (1977). After law school Post clerked for Judge David L. Bazelon of the D.C. Circuit Court of Appeals, and then Supreme Court Justice William J. Brennan, Jr. He returned to graduate school at Harvard, where he earned a Ph.D. in History of American Civilization (1980), then worked briefly in private practice, before beginning his career in law teaching at Berkeley Law in 1983. He became Alexander F. and May T. Morrison Professor of Law in 1994.
Post moved from Berkeley to Yale in 2003, where he was dean (2009-2017) and is now Sterling Professor of Law. He was elected to the American Philosophical Society in 2011.
Post's academic interests include constitutional law, First Amendment, legal history, and affirmative action. His most recent book is The Taft Court: Making Law for a Divided Nation, 1921-1930 (1924), which is Volume 10 of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. During his Berkeley years, Post was at work on the Taft Court volume, and also undertook research on the history of defamation and on the First Amendment.
Reva Beth Siegel (1956- )
Berkeley Professor of Law 1988-94
Reva Siegel holds a BA (1978), MPhil in American Studies (1982) and JD (1986) all from Yale. After completing her JD she clerked for Judge Spottswood W. Robinson III of the D.C. Circuit Court of Appeals. She joined the Berkeley Law faculty in 1988 and gained tenure in 1994. After visiting at Yale in 1993-94, Siegel joined the Yale faculty in 1994, where she is now the Nicholas db. Katzenbach Professor of Law.
Siegel's writing draws on legal history to explore questions of law and inequality, and to analyze how courts interact with representative government and popular movements in interpreting the Constitution. During her years at Berkeley, Siegel researched and published three of her early, major articles, “Reasoning From the Body: An Historical Perspective on Abortion Regulation and Questions of Equal Protection” (1992), “Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850 – 1880” (1994), and “Modernization of Marital Status Law: Adjudicating Wives’ Rights to Earnings, 1860-1930” (1995). She is currently writing on the role of social movement conflict in guiding constitutional change, addressing this question in recent articles on reproductive rights, originalism and the Second Amendment, the “de facto ERA,” and the enforcement of Brown.
Siegel is a member of the American Philosophical Society, and the American Academy of Arts and Sciences, and an honorary fellow of the American Society for Legal History.
Herbert Aptheker (1915-2003)
Berkeley Law Lecturer 1978-1991
Herbert Aptheker was born and grew up in Brooklyn, New York, where he attended Erasmus Hall High School. He was admitted by Columbia University, where quotas regulating enrollment of Jewish students placed him initially at Seth Low Junior College, Columbia’s “satellite” campus in Brooklyn Heights, and them limited him to the undergraduate cohort for the BSc degree (1936) rather than BA. Subsequently he earned both his Master’s degree (1937) and his PhD in History (1943) from Columbia. He would become one of the best known Marxist historians in the twentieth- century United States, an expert on African American history, critic of Columbia’s revisionist “Dunning” school of the history of slavery and Reconstruction, compiler of the seven-volume Documentary History of the Negro People (1951-94), literary executor and editor of the works and correspondence of W.E.B. DuBois, author of American Negro Slave Revolts (his Ph.D. dissertation) published in 1943 by
Columbia University Press, and a wide variety of works of history and politics written during the second half of the twentieth century.
In 1942, Aptheker married Fay Philippa Aptheker, his first cousin. Their daughter, Bettina Aptheker, was a leader of the Berkeley Free Speech Movement and subsequently professor and chair of Women's Studies at the University of California at Santa Cruz, where she remains as Distinguished Professor and UC Presidential Co -Chair, Feminist Critical Race & Ethnic Studies.
In September 1939, Aptheker became a member of the U.S. Communist Party. That decision deprived him of an academic career. Returning to the United States following army service during World War Two, he was blacklisted from a teaching position at Columbia. Subsequent encounters with HUAC meant federal surveillance, while public hostility toward his politics meant subjection to threats of violence. Aptheker remained excluded from academic appointments until 1969, when Bryn Mawr College hired him (1969-73) to teach a course on African American history demanded by students. He was also DuBois lecturer at the University of Massachusetts at Amherst (1971-72), a professor at Hostos Community College of the City University of New York (1971-77) and a visiting lecturer at Yale and at Humboldt University in Berlin.
In 1978, Herbert and Fay Aptheker moved to the Bay Area (San Jose) and between 1978 and 1991 Aptheker was frequently a visiting lecturer at Berkeley’s law school, where he taught courses on Racism and the Law in the United States, and Race and American Law. His students found him a very effective teacher. On his retirement from teaching in 1991 he received a card from students in his final class, inscribed “Professor Aptheker – We have all been enriched and have grown from your guidance and teaching. On behalf of all the students who have come before us, we thank you.” He died in 2003, in Mountain View, California.
Ben Brown (1952- )
Berkeley Lecturer in Legal Studies 2002-2021
Ben Brown holds a BA from Centenary College (1974) and a JD from Vanderbilt (1979). After practicing law for several years, Brown turned to graduate school in History at the University of Michigan, where he earned his MA (1989) and PhD (1993). While working on his dissertation, he was a doctoral fellow at the American Bar Foundation and connected with law and society scholars throughout the country. After receiving his PhD, he worked with Art McEvoy as the Legal History Fellow at the University of Wisconsin and made more contacts with law and society scholars there, including Lauren Edelman. Upon moving to California for personal reasons in 2001, Brown became a visiting scholar at the Center for the Study of Law and Society. In 2002 David Lieberman, who at the time was head of the Legal Studies program, invited Brown to teach courses in Property and Liberty, and U.S. Legal and Constitutional History. Brown developed a series of courses for the program and taught as part of the Legal Studies faculty for the next 20 years. After Malcolm Feeley retired, he added the program’s Supreme Court and Public Policy course, but with a decidedly historical emphasis.
During his time at CSLS and in the Legal Studies program, Brown enjoyed working with an impressive group of graduate students who shared his interest in the historical aspects of
Law and Society scholarship. Many of these graduated with a PhD. from the Jurisprudence and Social Policy program and went on to teach legal history or historically-oriented courses in their careers.
Karen Tani (1980- )
Berkeley Professor of Law 2011-2020
Karen Tani earned her BA from Dartmouth College (2002), and her JD (2007) and PhD (2011) from the University of Pennsylvania, where she was the first graduate of the University of Pennsylvania’s JD/PhD program in American Legal History. Following her law school graduation, she clerked for Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit. Tani joined Berkeley Law in 2011. In 2020 she returned to the University of Pennsylvania where she is Seaman Family University Professor, jointly appointed in the History Department and the Law School.
Tani studies U.S. legal history, with a focus on poverty law and policy, administrative agencies, rights language, federalism, and the modern American state. Her scholarship focuses on the twentieth century. During her years at Berkeley, Tani revised and published her first book, States of Dependency: Welfare Rights and American Governance, 1935-1972 (2016). The book explores legal contests over welfare benefits and administration between the New Deal and the modern welfare rights movement. It discusses contests between different levels of government; between competing interests at the federal level; and between everyday people and the welfare administrators who controlled the benefits they sought. Tani aims to refine legal historians’ understanding of the nature of modern American governance by showcasing the evolving tactics of federal “state builders,” as well as the endurance of non- centralized, discretionary modes of regulation.
Tani’s current research focuses on disability rights and administrative agencies in the late twentieth century. She is planning a new book, entitled Costed Out: Disabled Citizens and American Governance.
Robin Einhorn (1960- )
Berkeley Professor of History 1988-2018; emeritus 2018
Robin Einhorn received her BA (1982) and PhD (1988) from the University of Chicago, where she trained as an economic and political historian. A Berkeley Professor for thirty years, famed undergraduate and graduate teacher, and forerunner in the contemporary revival of interest in political economy, Einhorn retired as Preston Hotchkis Professor in the History of the United States in 2018. Einhorn’s career research interests include United States Political Economy, Taxation, Cities, Slavery, the Civil War and the Nineteenth Century. She is the author of Property Rules: Political Economy in Chicago 1833-1872 (1991), American Taxation, American Slavery (2006), and a number of significant articles.
Appendix 2
Current Berkeley Faculty with Teaching and Research Expertise and/or Interest in History of Law/Legal History (Alphabetical Order)
David Bates (1964-)
Berkeley Rhetoric Professor 1999-
David W. Bates is an Intellectual historian in the Department of Rhetoric at UC Berkeley. His special areas of research and teaching include the history and theory of the constitutional state in Europe and America, alongside the history of cognition and technology. He is especially interested in emergency law, the legal concept of sovereignty, and the relation between political identity and constitutional laws. His publications in this area range from a book on constitutional foundation in the natural law tradition – States of War: Enlightenment Origins of the Political (2011) – through analyses of debates over sovereignty and law in the French Revolution - his first book Enlightenment Aberrations: Error and Revolution in France (2002) – to studies of interwar and postwar legal thought in France and Germany, with a special focus on the work of Carl Schmitt and Hannah Arendt. His new book project involves the relationship between law, politics, and technology in 20th and 21stcentury cybernetics and critical theory.
Robert Berring (1949- )
Berkeley Law Professor 1982-2017; emeritus 2017
Robert Berring was born in Canton, Ohio. He holds a B.A. from Harvard (1971) a J.D. from Berkeley Law (1974) and a Master’s in Library Science, which is also from Berkeley (1974). Between 1974 and 1982 Berring worked at the University of Washington, Harvard University, the University of Texas and the University of Illinois. In 1982 he came to Berkeley Law to serve as a professor and the director of the law library. From 1986 to 1989 he held a joint appointment as dean of the School of Library and Information Studies. In 1997 Berring was named to the Walter Perry Johnson Professor of Law. In 2003-04 Berring served as interim dean of the law school. He stepped down as director of the library in 2005. At Berkeley Law, Berring’s research interests have extended beyond library science to Chinese law and legal history. He has taught contracts, advanced legal research and courses covering Chinese law. He has also taught an undergraduate course on China for the Legal Studies Program.
Mark Brilliant (1967- )
Berkeley History Professor 2004-
Mark Brilliant was born in New York City and raised in Denver, Colorado. He received his BA from Brown University in 1989, then taught social studies at Lafayette High School in Brooklyn for five years before entering graduate school at Stanford, where he earned his PhD in history (2002). After two years at Yale Brilliant joined Berkeley in 2004 as an assistant professor in history and American studies. Brilliant’s first book, The Color of America Has Changed: How Racial Diversity Shaped Civil Rights Reform in California, 1941-1978 won the Cromwell Book Prize from the American Society for Legal History. Currently he is at work on
a second book entitled From School Bus to Google Bus: A New Politics, a New Economy, and the Rise of a New Gilded Age. The book examines the relationship in the second half of the twentieth century between the emergence of a post-industrial high technology economy, and of a post-New Deal post-Great Society bipartisan neoliberal politics, and the resultant flowering of what would come to be known as the New (or Second) Gilded Age.
Margaret Chowning (1953- )
Berkeley History Professor 1992-
Margaret Chowning holds a BA from Duke University (1974) and a PhD from Stanford (1985). After beginning her career at California State University, East Bay (1986-1992) she joined the Berkeley History Department in 1992, where she is currently the Muriel McKevitt Sonne Chair Professor of Latin American History. Chowning’s scholarship has concentrated on the intersection of gender, religion, and politics in late colonial and nineteenth century Mexico. Her most recent book is Catholic Women and Mexican Politics (2023). She is now at work on gender and the liberal city in nineteenth-century Mexico, an examination of the impact of liberal politics and the absorption (or not) of liberal culture in Morelia, Mexico City, and Guadalajara.
Marianne Constable (1957- )
Berkeley Rhetoric Professor 1988-
Marianne Constable earned both her JD (1987) and her PhD in Jurisprudence and Social Policy (1989) at Berkeley, where she is currently Professor in the Department of Rhetoric. Constable’s research interests combine expertise in law and language with legal rhetoric and philosophy, social and political thought, Anglo -American legal history, continental philosophy, and law and society. She is the author of The Law of the Other: The Mixed Jury and Changes in Conceptions of Citizenship, Law and Knowledge (1994), winner of the Law and Society Association's J. Willard Hurst Prize in Legal History); Just Silences: the Limits and Possibilities of Modern Law (2005), and Our Word is Our Bond: How Legal Speech Acts (2014). She is also co - editor, with Leti Volpp and Bryan Wagner, of Looking for Law in All the Wrong Places (2019). She is currently completing a history of the “new unwritten law” that ostensibly exonerated women who killed their husbands in Chicago a hundred years ago.
Kyle DeLand (1993- )
Lecturer in Legal Studies 2023-
Kyle DeLand is a legal historian of American Empire. Originally from New Hampshire, he received his BA in economics and history from Vanderbilt University (2015). He received his PhD (2023) from UC Berkeley in Jurisprudence and Social Policy for his dissertation on property law and politics during the early American settler colonization of California. He is currently turning this work into a book. His research interests have grown to include the Pacific World more broadly, particularly forms of American colonization and property dispossession in Hawai'i and the Philippines. Prior to working as a Lecturer, Kyle worked as a Research Fellow at the Huntington Library. In Legal Studies, he teaches courses on the US
Supreme Court, American Empire in the Pacific World, American Legal History, and the Foundations of Legal Studies.
Brian DeLay (1971- )
Berkeley History Professor 2009-
Brian DeLay was born and raised in Colorado Springs, Colorado. He earned his B.A. from CU Boulder in 1994, and his M.A. and Ph.D. from Harvard (1998 and 2004). He was on the history faculty at CU Boulder from 2004-2009, then moved to the History Department at UC Berkeley where he is now Professor and Preston Hotchkis Chair in the History of the United States. DeLay’s early scholarship, including his first book War of a Thousand Deserts (2008), concerned Indigenous history and legal/political borderland regions. More recently he has been writing about the history of the international arms trade and is now finishing a book called Aim at Empire: A History of American Revolutions through the Barrel of a Gun. This research interest in firearms history has drawn him toward legal history and legal practice. He has drafted declarations and served as an expert witness for states across the country defending firearms laws against Second Amendment challenges. His article, “The Myth of Continuity in American Gun Culture,” will be published by the California Law Review in 2025.
Puck Engman (1988- )
Berkeley History Professor 2021-
Puck Engman holds a BA from Lund University, Sweden (2012), an MA from the École des Hautes Études en Sciences Sociales in Paris (2014), and a PhD from the University of Freiburg (2020). He joined the Department of History at Berkeley in 2021. As a historian specializing in the history of the People’s Republic of China, his research spans the half- century that began with the socialist reorganization of state and society in the 1950s and ended with the transition from socialism to capitalism towards the end of the twentieth century. He is currently working on a book-length study of the human and administrative consequences of China’s socialist transition. The book argues that China’s program to expropriate the private economy shaped urban socialism and is key to explaining the country’s trajectory through revolution and reform.
Engman is co - editor of Victims, Perpetrators and the Role of Law in Maoist China: A CaseStudy Approach (2018). In this volume, contributors analyze original case files from the grassroots to bring new insight into the everyday administration of justice in Mao’s China. As a member of the Maoist Legacy project, he helped build a digital archive that collects, curates, and translates documents on criminal justice and political movements from the People’s Republic of China.
Samera Esmeir (1973- )
Berkeley Rhetoric Professor 2005-
Samera Esmeir is Associate Professor of Rhetoric at UC Berkeley. Her research and teaching are at the intersection of legal and political thought, Middle Eastern history, Palestine studies, and postcolonial and anticolonial thought. Her scholarship examines how
late-modern colonialism introduced juridical logics that propelled distinct modalities of political praxis in the Arab World. Persisting into the present, such modalities inhibit the practice of politics otherwise. The concrete terms of this closure and the possibilities that remain uncaptured by it are the two motivating threads of her work. Esmeir is currently completing a book titled The Struggle that Remains: Between the World and the International. Thinking from Palestine's revolutions during the nineteenth and twentieth centuries, the book tracks the modern juridical entry of the word “international” into the English language and theorizes its emergence as a contending signifier of the world, as well as its reconfiguration of horizons of revolutionary struggle. Her first book, Juridical Humanity: A Colonial History (2012), is a historical and theoretical study of how colonial juridical powers reconfigured the figure and the concept of the human during the late-modern colonial era by bonding the human to state law. She is also at work on a third project, titled The Path of the Dead (in Arabic, shari'at al-amwat) which considers the place of the dead in modern politics and law.
Malcolm M. Feeley (1942- )
Berkeley Law Professor 1984-2019; emeritus 2019-
Malcolm Feeley was born in North Conway, New Hampshire, and lived variously in Colorado, Idaho, Oregon, and Texas. He graduated from Austin College (Texas), and received his Ph.D. in political science from the University of Minnesota in 1969. He is married to Rivka Amado, and has three children and five grandchildren. He was an assistant professor in the Departments of Politics at NYU (1968-72), and then at the Yale Law School, where he remained for five years as a post doc and lecturer connected with the Guggenheim Criminal Justice Program (1972-77). He joined the faculty of the University of Wisconsin in 1977, and was appointed to Berkeley’s Jurisprudence and Social Policy Program in 1984, where he held the Claire Sanders Clements Chair, and taught until 2019.
Feeley’s work explores legal institutions in comparative and historical perspective. In all his work, he seeks to get beneath the surface of contemporary issues, and explore structures that shape path dependent practices over time. Topics he has treated in this way include the lower criminal courts, prosecutorial discretion and plea-bargaining, judges as policy makers, and federalism. He is the author, co -author or editor of a dozen books, and numerous articles, often written with colleagues or students. He is currently working on a book that traces the origins of the modern Anglo -American criminal process to innovations introduced by private entrepreneurs.
Catherine Laura Fisk (1961- )
Berkeley Law Professor 2017-
Catherine Fisk received her A.B. summa cum laude from Princeton (1983), where she wrote a prize-winning thesis on the history of the concept of privacy in western legal and political thought. She moved to Berkeley in the fall of 1983, intending to pursue a J.D. in law and a Ph.D. in Jurisprudence and Social Policy. Unable to decide whether to focus her graduate work on legal history or theory, she completed her J.D. in 1986 and took what turned out to be a very long leave of absence from the JSP program during which she worked as a
judicial clerk, practiced law, and then taught as a lecturer at the University of Wisconsin, Madison, while doing graduate work focusing on the history of labor law and social insurance, ultimately receiving an LL.M. Fisk taught at Loyola Law School of Los Angeles (1992-2003), the University of Southern California (2003-2004), Duke University (2004-2008) and the new University of California School of Law at UC Irvine (2008-17), before returning to Berkeley in 2017 where she is currently Barbara Nachtrieb Armstrong Professor of Law and Faculty Director of the Berkeley Center for Law and Work.
Fisk is widely published both as a legal historian and a labor lawyer. Her first two books –Working Knowledge: Employee Innovation and the Rise of Corporate Intellectual Property, 1800-1930 (2009) and Writing for Hire: Unions, Hollywood, and Madison Avenue (2016) deal with the terms on which intellect has been commodified. She is currently at work on There Are No Neutrals There: Lawyers for the Labor Movement, 1935-1975, which examines the work and professional identities of lawyers who represented activist, multi-racial, and politically progressive unions.
José Argueta Funes (1991- )
Berkeley Law Assistant Professor 2023-
José Argueta Funes was born and raised in San Salvador, El Salvador. He moved to the United States in 2009 to attend the University of Virginia as a Jefferson Scholar, where he obtained a B.A. in history and philosophy (2013). He holds an MA (2015) and PhD (2024) in history from Princeton University and a JD (2019) from Yale Law School. Before joining the faculty at Berkeley Law in 2023, he was a clerk for the Honorable Guido Calabresi on the U.S. Court of Appeals for the Second Circuit, and an Academic Fellow at Columbia Law School. His research focuses on the history of American law in the context of empire, and his dissertation offers a new history of the common law by exploring controversies in Hawaiian courts over adopted children’s inheritance claims. At Berkeley, José teaches courses in American legal history and property.
David Grewal (1976- )
Berkeley Law Professor 2019-
David Singh Grewal has teaching and research interests that include intellectual history, particularly the history of economic, political, and legal thought; the history of global economic governance and international trade law; and the relation of law to political economy. He holds a BA in Economics (1998) and PhD in Political Science (2010) from Harvard, where he focused on intellectual history and political theory, and a JD (2002) from Yale Law School. From 2011 to 2019 he was a member of the faculty of Yale Law School, before joining Berkeley Law, where his primary affiliation is with JSP. His first book was Network Power: The Social Dynamics of Globalization (2008). His second book, The Invention of the Economy: A History of Economic Thought is forthcoming from Harvard University Press. He has published on a variety of intellectual-historical topics, including the political theology of French Jansenism, the social contract theory of Samuel Pufendorf, the conceptualization of natural rights in the editions of Jean Barbeyrac, and the history of twentieth- century law-and- economics.
David Henkin (1965- )
Berkeley History Professor 1997-
David Henkin holds a BA from Yale and a PhD in History from UC Berkeley (1995). He is currently the Margaret Byrne Professor in American History at Berkeley, where his work concentrates on culture and communication. His most recent book is The Week: A History of the Unnatural Rhythms That Made Us Who We Are (2021). Earlier books include City Reading: Written Words and Public Spaces in Antebellum New York (1998); The Postal Age: The Emergence of Modern Communications in Nineteenth-Century America (2006); and, with Rebecca McLennan, Becoming America: A History for the 21st Century (2015).
Carla Alison Hesse (1956-)
Berkeley History Professor 1989-
Carla Hesse is the Peder Sather Professor of History at Berkeley. Born and raised in Berkeley, California, and a graduate of Berkeley High School, she holds a BA in History and French Literature from the University of California, Santa Cruz (1978), and an MA (1982) and PhD (1986) from Princeton University. Hesse is a cultural and legal historian of France from 1700 to the present, with specialized interests in the history of human rights, intellectual property law, and criminal jurisprudence and practice in the era of the French Revolution (1750-1800). Her books include Publishing and Cultural Politics in Revolutionary Paris (1991), The Other Enlightenment: How French Women Became Modern (2010), and The Republic on Trial: Criminal Law and the Constitution of Sovereignty in the French Revolution (forthcoming). Her work on intellectual property law has appeared in Daedalus (2001) and Representations (1994) and has been recognized by the award of the William Koren Jr. prize by the Society for French Historical Studies. She has been an active collaborator with members of the faculty at Berkeley Law: with Robert Post, she is the editor of Human Rights in Political Transitions (1999); with Pamela Samuelson, she is the co -founder of the 501(c)3, Authors Alliance (2014) which advocates for copyright reform and open access, and educates the public on emerging legal issues in publishing, writing, and accessing creative and scientific work in the digital age and beyond.
Hidetaka Hirota (1981- )
Berkeley History Professor 2022-
Hidetaka Hirota holds a BA (2005) in Foreign Studies from Sophia University, Japan, and an MA (2008) and PhD (2012) in History from Boston College. His dissertation received the 2013 Cromwell Dissertation Prize from the American Society for Legal History. Hirota is a social and legal historian of the United States specializing in the nineteenth-century United States; American immigration law and policy; the U.S. and the World; and transnational history. Hirota’s first book, Expelling the Poor: Atlantic Seaboard States and the NineteenthCentury Origins of American Immigration Policy (2017), examines the origins of immigration restriction in the United States, especially deportation policy, based on a study of state passenger laws in the nineteenth century. He is currently at work on The American Dilemma:
Foreign Contract Labor and the Making of U.S. Immigration Policy, which examines the tension between nativism against foreigners and demand for their labor. By locating the origins of this dilemma in the federal government’s attempts and failure to implement alien contract labor laws to restrict the importation of contract workers from Asia, Mexico, Canada, and Europe in the Gilded Age and Progressive Era, the book reveals how the debate over imported labor gave rise to a national immigration regime in the United States. Before joining Berkeley in 2022, Hirota served as a Mellon Research Fellow in the Society of Fellows in the Humanities at Columbia University and taught at the City University of New York-City College and Sophia University. At Berkeley, he teaches the history of U.S. immigration law and policy and is affiliated with the Center for the Study of Law and Society.
Kinch Hoekstra (1965- )
Berkeley Law Professor 2008-
Kinch Hoekstra is a historian of political, legal, and moral thought. Hoekstra trained as a philosopher and a classicist at Brown University (BA) and the University of Oxford (DPhil). He taught philosophy and classics at Oxford from 1992 to 2007, when he joined Berkeley's Jurisprudence and Social Policy Program and Department of Political Science. He is an affiliate professor in the Departments of Philosophy and Ancient Greek and Roman Studies. He has held fellowships from All Souls College and Nuffield College, Oxford; the University Center for Human Values, Princeton; and the Institute for Advanced Study.
The focus of Hoekstra's work is the intellectual history of Renaissance and early modern Europe, and of ancient Greece. He combines methods of textual, philosophical, and historical analysis, and writes on topics including constitutionalism, democracy, tyranny, sovereignty, war, liberty, equality, and the political use of historiography. Works in progress include The Thucydidean Renaissance (based on his Carlyle Lectures), Thomas Hobbes and the Politics of Philosophy (based on his Benedict Lectures), and an edition of Hobbes’s Thucydides (the 1629 Eight Bookes of the Peloponnesian Warre), for Oxford University Press.
Trevor Jackson (1985- )
Berkeley History Professor 2023-
Trevor Jackson holds a BA from Cal State Sacramento (2009), an MSc from the London School of Economics (2010), and a PhD in History from Berkeley (2017). After beginning his career at George Washington University, he returned to Berkeley in 2023 in a joint appointment between History and the program in Political Economy. Jackson is an economic historian who researches inequality and crisis, mostly but not exclusively in early modern Europe. His first book, Impunity and Capitalism: the Afterlives of European Financial Crises, 1690-1830 (2022) examines how impunity has gradually shifted since the seventeenth century from the sole possession of a legally-immune sovereign to a functional characteristic of technically-skilled professional managers of capital, to an imagined quality of markets themselves, such that a constituent element of the modern economic sphere is that within it, great harm can and will happen to a great many people, and nobody will be at fault. Currently, Jackson is focusing on the problem of gluts, overproduction, and overaccumulation since the seventeenth century; the problems of temporality and finitude
in economic thought; and problems in the historical measurement and meaning of capital. He also has ongoing research interests in the histories of extinction and catastrophe, as well as early modern occupational health.
Stephanie Jones-Rogers (1976- )
Berkeley History Professor 2014-
Stephanie Jones-Rogers holds a BA in Psychology (2003), and an MA (2007) and PhD (2012) in History all from Rutgers, The State University of New Jersey. In 2013 her dissertation won the Lerner-Scott Prize of the Organization of American Historians for the best doctoral dissertation in U.S. women’s history. Jones-Rogers joined the Department of History at Berkeley as a specialist in African-American history, the history of American slavery, and women’s and gender history. Her first book, They Were Her Property: White Women as Slave Owners in the American South (2019), placed the testimony of enslaved and formerly enslaved people in conversation with other narrative sources, legal documents, and financial records in order to show how white women's pecuniary investments in the institution of slavery shaped their gender identities and situated them not on the periphery but at the center of nineteenth century America's most significant and devastating system of economic exchange. The book won numerous awards. Currently Jones-Rogers is at work on Women of the Trade, which focuses on the lives and experiences of women, free and captive, in the British Atlantic slave trade, and on Women, American Slavery, and the Law, envisaged as the first book to examine the relationship between gender and the evolution of American slave/property law in both the North and the South from the colonial period to slavery’s legal end.
Daniel Lee (1979- )
Berkeley Political Science Professor 2015-
Daniel Lee holds a BA in Philosophy and Political Science from Columbia University (2001), an MPhil from Oxford (2003) and an MA (2006) and PhD (2010) from Princeton. After four years at the University of Toronto, Scarborough, he joined Berkeley in 2015, and is currently Professor of Political Science. Lee specializes in political theory, the history of political thought, and jurisprudence. His research concerns the reception of Roman and canon law in modern political thought and their continuing influence on modern doctrines of statehood, sovereignty, rights, and international law. He has also explored the relationship between legal science and social science in the history of ideas, as well as the foundations of deontic logic in early modern jurisprudence and social science. Wider interests in political theory include the foundations of democratic theory, the theory of rights, constitutional theory, republicanism, and the philosophy of the social sciences. Lee is the author of Popular Sovereignty in Early Modern Constitutional Thought (2016), which traces the juridical origins of modern popular sovereignty doctrines in the legal science of the Roman law tradition, and of The Right of Sovereignty: Jean Bodin on the Sovereign State and the Law of Nations (2021) which examines the origins of sovereignty as the vital organizing principle of modern international law. Lee is currently engaged in research on both the early modern origins and the development of concepts of legal science.
Rebecca McLennan (1967- )
Berkeley History Professor 2003-
Rebecca M. McLennan received her PhD from Columbia University and was on the faculty of Harvard University before joining the History Department at Berkeley in 2003, where she is currently Preston Hotchkis Professor in the History of the United States and affiliated faculty of Berkeley Law’s JSP program. McLennan’s research engages North American legal, political, environmental, and economic history in a global context and with a multidisciplinary emphasis. Her 2008 book, The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776-1941 (Cambridge), explored the role of forced labor and private enterprise in the making of U.S. state penal systems, and won several major legal history awards, including the ASLH’s best book and best first book prizes and the American Historical Association's Littleton-Griswold Prize. Subsequently she co -authored, with the Berkeley cultural historian David Henkin, Becoming America: A History for the 21st Century (McGraw Hill, 2015, 2022), a fresh synthesis of North American history that places cultural and environmental questions at the center of the narrative, from Indigenous precolonial worlds through the events of January 6, 2021. Currently she is at work on a book project entitled “The Wild Life of Law,” an eco -social history of the so - called Fur Seal Trial (Paris Arbitration of 1893). The book explores legalities’ role in the making of eco -social history in the crisis-ridden age of advanced extractive capitalism. Related publications have appeared in journals such as Diplomatic History and the Journal of Urban History and in several anthologies and public-facing media (including Public Books). Reflecting her research interests, McLennan’s teaching includes courses on the history of crime and punishment; environmental history; histories and theories of the Anthropocene; foodways since 1400; and histories of place, space, and property-making. She has also served as principal advisor for dozens of theses and several doctoral dissertations in legal history, broadly construed, and as a consultant and interviewee for documentary films and a forthcoming PBS series on incarceration.
Emily Mackil (1973- )
Berkeley History Professor 2005-
Emily Mackil holds a BA in Liberal Arts from St. John’s College (Santa Fe, 1990), a BA in Ancient History and Philosophy (Literae Humaniores) from the University of Oxford (1997), and a PhD in Classics from Princeton University (2003). Mackil joined the Department of History at the University of California, Berkeley in 2005. She is currently Professor of History and Director of the Graduate Group in Ancient History and Mediterranean Archaeology. Mackil’s research focus is on the economic and legal history of Greek antiquity (ca. 800-150 BCE). Her first book, Creating a Common Polity: Religion, Economy, and Politics in the Making of the Greek Koinon (2013) won the Goodwin Award of Merit from the Society for Classical Studies. She is currently working on a book on the meanings, practices, and laws that constructed the experience of property ownership in Archaic and Classical Greece. She is the author of numerous articles, chapters and reviews, mostly focused on the economic history of the Greek world.
Laurent Mayali (1956- )
Berkeley Law Professor 1988-
Laurent Mayali completed his Baccalauréat in 1973, and his Diplôme d'Études Approfondies in 1978. He obtained his Doctorat d'Etat from the University of Montpellier (1985) and completed his Habilitation the same year. He also holds an LL.M (1976). Before coming to Berkeley, Mayali held positions as a tenured research scholar at the Max Planck Institute for European Legal History in Frankfurt, Germany, and at France’s Center for National Research (CNRS). He joined the faculty of Berkeley’s Rhetoric Department in 1985, and became a member of the law faculty in 1988. Since his appointment, Mayali has been the Director of the Robbins Religious and Civil Law Collection, which combines in one administration the formerly distinct Hebraic and Roman Law Collection, and the Roman and Canon Law Collection. In 1996 Mayali became Berkeley Law’s Lloyd M. Robbins Professor. In 1997 he was elected to a chair in Roman Christianity and sources of modern law at the Ecole Pratique des Hautes Etudes, at the Sorbonne in Paris.
Laurent Mayali studies Medieval Canon & Roman Law, Medieval education, the History of History, and Jurisprudence. He has been a visiting professor and has lectured extensively throughout Europe, Africa, and Asia in the areas of legal history and comparative law. His publications in these areas are extensive. His more recent books include A Cultural History of Law in the Middle Ages, with Emanuele Conte (2019); Roman Law and Language: Collected Works of David Daube, Volume 6, with C. Carmichael (2019); La Culture Juridique des Balkans, with Lisa Benou (2015); Emerging Concepts of Rights in Japanese Law, with Harry Scheiber (2007); Staatsanwaltschaft: Europäische und Amerikanische Geschichten, with B. Durand, A. Padoa-Schioppa and D. Simon (2005); Officium Advocati, with Antonio Padoa Schioppa, and Dieter Simon (2000); and Rare Law Books and the Language of Catalogues (with Mario Ascheri), 1999.
Carlos F. Noreña (1970- )
Berkeley History Professor 2005-
Carlos Noreña (PhD, Ancient History, University of Pennsylvania, 2001) is Goldman Distinguished Chair of Social Sciences, Professor of History and Ancient History and Mediterranean Archaeology, and (from 2025) Director of the Ancient Worlds Center at the University of California, Berkeley. Noreña has published widely in Roman history, literary and material cultures in the Roman empire, the topography of Rome, historical geography, and comparative empires He is the author of Imperial Ideals in the Roman West (Cambridge 2011), editor of A Cultural History of Western Empires: Antiquity (Bloomsbury 2018), and coeditor of From Document to History: Epigraphic Insights into the Graeco -Roman World (Brill 2019) and The Emperor and Rome: Space, Representation, and Ritual (Cambridge 2010). His major current project is a monograph on law and empire in the Roman Republic (An Empire of Laws: Legislation and Imperialism in the Roman Republic, forthcoming from Princeton University)
Michael Nylan (1950- )
Berkeley History Professor 2001-
Michael Nylan is the Jane K. Sather Chair of History at Berkeley. After her BA at Berkeley, graduate study at SUNY Buffalo, and periods of study at Cambridge and Harvard, she completed her PhD in East Asian Studies at Princeton (1983). A prolific scholar, Nylan generally writes in three disciplines: the early empires in China; philosophy; and art and archaeology. Her current work includes a reconstruction of a Han- era Documents classic; a general-interest study of the “Four Fathers of History” (Herodotus, Thucydides, Sima Qian, and Ban Gu), and a study of the politics of the common good in early China tentatively entitled The Air We Breathe.
Dylan C. Penningroth (1971- )
Berkeley Law Professor 2015 -
Dylan C. Penningroth holds a bachelor’s degree in history from Yale (1993) and a Ph.D. in history from Johns Hopkins University (2000). After three years at the University of Virginia, he moved to Northwestern University in 2002. In 2007, he became jointly appointed at the American Bar Foundation as a Research Professor. In 2015, he came to Berkeley jointly appointed in the History Department and the Program in Jurisprudence and Social Policy at Berkeley Law. He currently serves as Associate Dean of JSP.
Penningroth specializes in African American history and legal history. His first book was The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (2003). His articles have appeared in the University of Pennsylvania Law Review, the Journal of American History, and the American Historical Review. Penningroth’s most recent book is entitled Before the Movement: The Hidden History of Civil Rights (2023). Combining legal and social history, and drawing from a large sample of trial court records, the book explores how ordinary Black people used and thought about law in their everyday lives, and how Black legal activity and Black legal thought helped shape American law and Black social movements since the 1830s, long before the marches of the 1960s.
Tony Platt (1942- )
Tony Platt is a Distinguished Affiliated Scholar at UC Berkeley’s Center for the Study of Law and Society and co -founder of the Berkeley Truth and Justice Project. He is the author of thirteen books, including most recently The Scandal of Cal: Land Grabs, White Supremacy, and Miseducation at UC Berkeley (2023). His work has been translated into German, Spanish, German, French, 19Italian, and Japanese. Platt has also written for the Los Angeles Times, San Francisco Chronicle, Berkeleyside, Truthdig, The Nation, Salon, and The Guardian and his commentaries have aired on NPR. Platt’s dissertation, The Child Savers: The Invention of Delinquency, was written at CSLS in 1965-6. It was first published by the University of Chicago Press in 1969 and is still in print, the latest version published by Rutgers University Press.
Douglas Sangster (1990- )
Berkeley Legal Studies Lecturer 2024-
Douglas Sangster was born and raised in California. He earned a BA from the University of California, San Diego, where he graduated magna cum laude and with highest distinction in the field of history. He holds an MPhil from the University of Cambridge, as well as a JD and PhD from UC Berkeley. His work has been supported by the Arthur J. Quinn Memorial Fellowship at Bancroft Library, the Berkeley Empirical Legal Studies Graduate Fellowship, the Selznick Scholarship, the Law Regents Summer Fellowship, the Gottenberg Scholarship, and the Selznick-Dinkelspiel Stipend. His research focuses on how, in California during the twentieth century, legal conceptions of disability have been shaped and redefined by both activists and state actors. He is the author of “The Codification of Independent Living in California State Law,” forthcoming in California Legal History, 19 (2024).
Veronica Aoki Santarosa (1980- )
Berkeley Law Professor 2023-
Veronica Santarosa was born and grew up in São Paulo, Brazil. She holds an LL.B. from the University of São Paulo (2002), a B.A. in Economics from Insper Business School (2003), an M.A. in Law and Economics from the University of Hamburg (2004), an LL.M. from Yale Law School (2005), and a Ph.D. in Economics from Yale University (2012). Before joining Berkeley in 2023, she was a Professor of Law at the University of Michigan Law School (2011 – 2023) where she taught Contracts, Economic Analysis of Law, Empirical Law and Economics, U.S. Financial Regulation, International Finance, and Law and the History of Economic Institutions of Capitalism. At Berkeley, she is affiliated with and teaches at the Law School, the Jurisprudence and Social Policy program and the undergraduate Legal Studies program.
Santarosa’s areas of interest include economic history and legal history, institutional economics, law and development, and law and economics. Her research combines original archival research and empirical analysis to study how the law creates and supports markets, with a focus on the role of legal innovations in the rise of financial capitalism and the spread of global trade. Her work has been published in peer-reviewed journals, such as The Quarterly Journal of Economics, the Journal of Economic History, and The Economic History Review.
Daniel Sargent (1979- )
Berkeley History Professor 2008-
Daniel Sargent holds a BA (with double-first class honors) from Cambridge University (2001), and an MA(2003) And PhD (2008) from Harvard. He joined the History Department at Berkeley in 2008, and has taught in the Goldman School of Public Policy since 2019. He is currently Associate Professor of History & Public Policy, and Co -Director of the Institute of International Studies. Sargent’s fields of expertise are U.S. foreign policy and the history of international relations. His research explores how states and decision makers adapt to longterm changes in their international environments, including the historical advance of globalization. His first book, A Superpower Transformed: The Remaking of American Foreign Relations in the 1970s (2015) shows how decision makers across three administrations
(Nixon, Ford, and Carter) adapted, and failed to adapt, to changes in their international environment – from the breakdown of the Bretton Woods monetary system, to the oil shocks of the 1970s, to the rise of an organized transnational movement for human rights. Currently, he is concentrating on how the United States has striven, over the long arc of its history, to constitute and sustain international order, a book entitled Pax Americana: A History of the American World Order
Jonathan Simon (1959-)
Berkeley Law Professor 2003-
Jonathan Simon is a second generation academic whose father was a sociologist of sexualities and mother was a survey research expert and teacher. After fleeing his native Midwest, Simon received his A.B. (social science), J.D. and Ph.D. in Jurisprudence and Social Policy at UC Berkeley between 1977 and 1990. Simon was not trained primarily as a historian but entered the fields of critical criminology and punishment and society at a moment when both were being infused with a historical attention to the political economy of punishment through influential works by E. P. Thompson, Michel Foucault, Dario Melissa and Massimo Pavarini, Lawrence Friedman, and David Rothman, among others. He is the author of three monographs which in different ways cover the arc of mass incarceration in the United States through studies of the practice of parole, the politics of law and order, and California’s epic overcrowding in prison crisis. Each takes off from a historical examination of the relevant institutions.
Simon joined the JSP faculty at Berkeley Law in 2003, where he is a professor of criminal justice and criminal law. He offers courses on the history of punishment and policing. He also regularly teaches in the legal studies program, including Foundations of Legal Studies (LS 100) and Punishment, Culture and Society (LS 160) which include substantial historical coverage.
Christopher Tomlins (1951- )
Berkeley Law Professor 2014-
Christopher Tomlins was born in Beaconsfield, England. He holds a BA and MA from Oxford (1973, 1977), an MA in American Studies from the University of Sussex (1974), and an MA and PhD from The Johns Hopkins University (1980). Tomlins and his partner, Ann Douglas, married in 1980. Tomlins joined the Legal Studies Department at La Trobe University in Melbourne in 1980, remaining until 1992,when he became a research professor on the faculty of the American Bar Foundation in Chicago. In 2009, Tomlins was recruited to the faculty of the new University of California law school at UC Irvine. In 2014 he joined Berkeley Law, where he is currently James W. and Isabel Coffroth Distinguished Professor of Jurisprudence. At Berkeley his primary affiliation is with JSP. He also teaches theories of law and society and courses on colonization and empire in the undergraduate Legal Studies Program.
Tomlins is a legal historian with interests that range widely across half a millennium of anglophone history and deeply into the theory and philosophy of history. He is the author of several books, and has been an active editor of essay collections, book series, and journals – notably the Law and History Review, and Law & Social Inquiry. Other publications comprise
some 200 chapters, articles, editorial essays, reviews, and working papers. He is currently at work on a book about the American modernist writer John Dos Passos.
Amanda Tyler (1973- )
Berkeley Law Professor 2012-
Amanda Tyler earned her B.A. from Stanford and her J.D. from Harvard (1998). She clerked for Guido Calabresi on the Second Circuit Court of Appeals (1998-1999) and for Justice Ruth Bader Ginsburg on the U.S. Supreme Court (1999-2000). After four years in practice at Sidley & Austin in Washington DC, Tyler joined the faculty of the George Washington University Law School (2004-2012), then came to Berkeley Law in 2012.
Tyler’s research and teaching interests include the Supreme Court, federal courts, constitutional law, civil procedure, statutory interpretation, and legal history. She is the author of Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay (2017) and of Habeas Corpus: A Very Short Introduction (2021) She is also co -author, with Ruth Bader Ginsburg, of Justice, Justice Thou Shalt Pursue: A Life’s Work Fighting for a More Perfect Union (2021). Her recent articles have included “Courts and the Executive in Wartime: A Comparative Study of the American and British Approaches to the Internment of Citizens During World War II and Their Lessons for Today” (2019); “Habeas Corpus in Wartime and Larger Lessons for Constitutional Law” (2019); and “Judicial Review in Times of Emergency: From the Founding Through the COVID -19 Pandemic (2023).
Leti Volpp (1965- )
Berkeley Law Professor 2005-
Leti Volpp was born and raised in Princeton, NJ. She received her BA from Princeton University in 1986, and earned a JD from Columbia Law School in 1993. After teaching at American University, Washington College of Law, and UCLA, Volpp joined Berkeley in 2005 as a professor in law. Her legal historical research focuses on Asian American racialization, immigration and citizenship, with publications on the history of anti-miscegenation laws impacting Filipinos, and the intersection of race and gender in shaping Asian American access to citizenship.
Bryan Wagner (1971- )
Berkeley English Professor 2002-
Bryan Wagner is Professor in the English Department at Berkeley. His research focuses on African American expression in the context of slavery and its aftermath, and he has specific interests in legal history, vernacular culture, urban studies, and digital humanities. His books include Disturbing the Peace: Black Culture and the Police Power after Slavery (2009), The Tar Baby: A Global History (2017), The Wild Tchoupitoulas (2019), and The Life and Legend of Bras-Coupé: The Fugitive Slave Who Fought the Law, Ruled the Swamp, Danced at Congo Square, Invented Jazz, and Died for Love (2019). In addition, he has co - edited a collection of critical essays, Looking for Law in All the Wrong Places (2019, with Marianne Constable and Leti Volpp). He is Principal Investigator for two projects in the digital humanities: Louisiana
Slave Conspiracies (lsc.berkeley.edu), an interactive archive of trial manuscripts related to slave conspiracies organized at the Pointe Coupée Post in the Spanish territory of Louisiana in 1791 and 1795; and Tremé 1908, which tells the story of one year in the everyday life of an extraordinary neighborhood that was a crucible for civil rights activism, cultural fusion, and musical innovation.