History 399, U.S. Legal History, 1750-Present

Course Description:

This course will explore of the concept of rights, a fundamental building block of both U.S. history and U.S. law. We will examine three major moments in which rights were created and changed – the American Revolution (1771-1789); the Civil War and Reconstruction (1861-1877); and the civil rights era of the twentieth century (1954-1973). In particular we will examine these three rights revolutions as moments in which the privileges and responsibilities of citizenship shifted dramatically. In the American Revolution, we will see the beginning of individual civil rights and their connection to property rights through the Bill of Rights and the Constitution. In the aftermath of the Civil War, we will trace the development in law of political and contractual rights and the reversal of many of these rights in practice after Reconstruction . And, in the civil rights era of the 20 th century, we will study the emergence of privacy rights and protections from governmental discrimination. Throughout, we will see how the emphasis on rights from the beginning of U.S. history has left out the connection between rights and responsibilities , while the emphasis on individuals has left communities without remedies, and the strict interpretation of rights has left many of the most disenfranchised without protection.

In addition, we will analyze how various groups have claimed rights in order to gain privileges or justify inequalities . We will look at the way, in particular, rights have been claimed in the courts, and how both claimants and courts have used different languages of rights to justify their strategies and decisions. We will examine the experiences of Native Americans, African Americans, immigrant groups, laborers, women, and other dispossessed groups, from the earliest discussions on property and contracts to more recent legal conversations on civil rights, human rights and corporate law. Along the way we will trace what rights people believe they have and how these beliefs shape their ability to use and access the legal system . We will study changing notions of equality, definitions of race, privacy rights, and ideas of gender and the family. Finally, we will trace the consumer rights revolution of the 20 th century and its implications in a legal system in which corporations are often the ultimate rights-bearers. The course is geared toward advanced undergraduates. It assumes no knowledge of the law although it does assume some knowledge of general U.S. history.

Course Themes:

The course will examine certain major themes through discussions, lectures, reading and response papers . These themes include the shift from laws on status to laws on contract during the nineteenth century; the shift from the sanctity of individual contract and property rights to the focus on individual constitutional rights by the twentieth century; the ongoing tension as well as overlap between rights and responsibilities throughout U.S. history; the recognition of rights as an individual entitlement and the lack of a language to ask for community or group rights; and the way in which the distribution of rights and protections based on categories has sometimes had negative consequences for those that appear to need rights and protections the most.

Course Readings :

Eric Foner. The Story of American Freedom . New York : W.W. Norton & Company, 1998.

Mary Ann Glendon. Rights Talk: The Impoverishment of Political Discourse . New York : Free Press, 1991.

Mary Dudziak. Cold War Civil Rights: Race and the Image of American Democracy . Princeton : Princeton University Press, 2000.

Coursepack (available at the UO Bookstore)

Online readings

Course Requirements:

Legal history is the both the factual record of legislation and litigation as well as the way in which these laws and lawsuits are both generated from, and have an impact on, social, political and economic circumstances. The required reading for this course includes a textbook offering a history of U.S. society through the language of freedom. In addition, we will examine numerous legal documents – statues, briefs, and in particular, court opinions, as well as on occasion listening to oral arguments. In our first class we will discuss different approaches to reading a legal case – the lawyers' approach, and the historians' approach, in the hope that you will be able to place each document in both contexts. Finally, we will be reading key articles and excerpts from monographs on both history and law, in order to formulate critical questions to ask of the dramatic changes over time that we will be examining. There will be a number of web-linked readings that will be accessible on the course website. Finally, I will use the course website to communicate with you outside of class and I will set up a discussion board for you to continue some of the conversations we will begin in our class sessions.

Students are responsible for completing the assigned readings by the assigned class session; regular class attendance; timely completion of written work; and active participation and engagement in class discussions and online discussion assignments. Each class session will be a combination of discussion and lecture – you should bring your assigned readings to class in order to refer to them during discussion.

Course grades will be calculated according to the following system:

25% -- Weekly Response Papers

These writing assignments are intended to allow you to choose a case, article, or topic of discussion raised in either the class or the readings that week and think it through in the context of what you have learned thus far. Much of the material we will be reading will be provocative or disturbing – by the same token, much may seem dull or tedious – and the split between the two will be different for each of you. The main requirement of this assignment is that you choose something each week that captures your interest, whether that is corporate shareholder litigation or the rights of criminal defendants. You can argue for a particular point of view, continue a conversation or debate that began in class discussion, or respond to an open-ended question raised either in class or in the readings. Each paper should be brief, 1-2 pages, and should indicate an active engagement with the subject you have selected. This is not a research assignment, a test of writing flourishes, or a lawyerly brief, it is an exercise in engaged thinking and will be evaluated as such with either a plus (indicating an advanced level of critical analysis and thinking), a check (indicating the expected level of written engagement), or a minus (indicating unsatisfactory effort). Also, please make sure you clearly indicate to me the subject you have chosen to examine. Engagement in this context refers to a willingness to examine complications or contradictions, whether in your opinion or the text, asking questions of the sources and responding to the questions the sources ask of you. These papers will be due on the first class session of each week (with the exception of the first week), and late papers will not be accepted.

25% -- Class Participation and Discussion

We will spend a portion of every class session discussing the readings, the questions raised by lecture, and your questions in response to both. You will also each be assigned to small groups in the first class session, and within these groups you will sometimes have the opportunity to perform tasks in a given class discussion. I will also on occasion ask you to do very short (no more than five minutes) writing responses in class. Again, writing technique is not as crucial as evidence of attendance and attention to the assigned readings, lecture topics, or discussion questions that were under consideration in that particular class session. If you have done the reading and paid attention during lecture and discussion, you will have no problem with these assignments. Additionally, I ask that each of you make a good-faith effort to post on the discussion board in whatever degree and on whatever topics are comfortable for you. I do not want to set a floor (which usually also means a ceiling) on the minimum number of posts – I simply ask that you each be reasonably present in the online discussions over the course of the quarter.

20% -- Short Essay

This assignment (4-6 pages) allows you to choose two events, topics or questions and contextualize them in relation to each other. You can choose two topics that you have already addressed or touched upon in your response papers (though I expect this piece of writing to be different from those assignments), choose one topic that you have not yet written on and one that you have, or choose two subjects that are completely distinct from the topics you have previously engaged. Whatever topics you choose to write on, this assignment will ask you to make an argument that contextualizes them in the historical narrative you have constructed from readings and lecture, as well as connects them to one another. You can draw support for your thesis from any reputable source, but no additional research is required for this assignment – you should be able to construct numerous arguments out of our readings and lecture material. This paper can be completed at any time during the term, provided that you must have completed all readings related to the paper before writing it. It must be turned in no later than the last week of class, however I encourage you to submit it earlier in order to gain feedback that may be useful in writing your final exam. More information will be given in class on specific expectations for this paper in terms of citations, format and the appropriate construction of a thesis statement.

30% -- Take-Home Final Exam

This assignment (5-7 pages) will be handed out one week before the end of class and will ask you to respond to a specific question or questions that will tie together many different strands of thought we have examined in the class. You will be expected to discuss specific events and argument from the readings and lecture topics in your answer, as well as raise any of the questions or critical issues that are raised by the topic of the assignment and that we have discussed in class or on the discussion board.

Tentative Schedule:

Week 1: The First Rights Revolution

Day 1 – Introduction: Rights-Bearing Individuals & Entitlements to the Americas

Day 2 – The First Rights Revolution: Property and Liberty

Day 3 – Laws on Status: Paupers, Wives, Slaves and Others

Day 4 – Reconstruction and the Beginning of the Second Rights Revolution

Week 2: The Second Rights Revolution

Day 1 – Corporate Personhood and the Rights of Laborers

Day 2 – Rights of Access and Exclusion: Jim Crow

Day 3 – Race and Immigration Law in the American Empire

Day 4 – Gender and Family in Privacy Rights

Week 3: The Third Rights Revolution

Day 1 – The Road to the New Deal in Labor and Contract

Day 2 – Race and Poverty in the New Deal

Day 3 – Civil and Criminal Rights in the Cold War

Day 4 – Reinterpreting the Fourteenth Amendment

Week 4: Rights Past and Present

Day 1 – Race, Poverty and Tribal Rights

Day 2 – Torts, Corporations and Consumer Rights

Day 3 – Review: Human Rights – Disability, Sexuality and Immigration Rights