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Chiseling Legal Tradition

By Sarah Baringer Gordon, Professor of Law and History

 

Until the turn of the twentieth century, the Law Department of the University of Pennsylvania (as it was then known) was in a physical sense a rootless institution. In 1879, the law school had 141 students enrolled in its two year program, almost all of them from Philadelphia.(2) The school migrated from one set of cramped quarters to another in the 1880s and 1890s, ranging from the new Philadelphia City Hall, to the Girard Life Insurance Building at Broad and Chestnut, and Independence Hall. Although the university administration attempted repeatedly in the second half of the nineteenth century to attach the law school to the new West Philadelphia campus,(3) the gravitational pull of courts and private law offices drew the school back to the city, where students spent their days as apprentices, faculty as practitioners.(4) As William Draper Lewis put it, “The normal concept of a law school was that of a place where in the late afternoon lawyers, harassed with their own business, read lectures to sleepy office students.” (6)

Through the construction of a physical space that redefined the scope of legal training for students and the responsibilities of legal academics, Penn Law swelled the growth of university-based Law Schools dedicated to professional training,(7) and at the same time added a perspective unique to Penn, and to Lewis. The central role of legal history in this transformation is evident not only in the new Law School curriculum (which included a course in the history of the common law, taught by Dean Lewis himself and based on Lewis’s recently published edition of Blackstone’s Commentaries (8)) but in the entire structure. The design of the building consciously echoes the seventeenth-century designs of English architect Sir Christopher Wren.(9) In order to present to you the complete history of the events, people, and our buildings, we have divided it into several parts.

The most important, most visible connection of the new Law School with an ancient and venerable legal tradition is the collection of medallions that circle the building. The very concept of a university-based Law School reflected a profound change in legal education; the medallions anchored the change in the accomplishments of the legal past.

When Lewis Hall (now Silverman Hall, then known simply as the “Law School Building”) opened in February of 1900, the Law School had grown exponentially — 246 students from many states were registered, half of whom intended to practice law outside of Philadelphia, and many of whom had earned bachelor’s degrees before admittance. Although the School still allowed admission from non-college graduates with degrees from “advanced” public high schools or upon a rigorous examination, the catalogue warned applicants that “A large number of those who study law are college graduates; and those who are not cannot hope, except in rare instances, to compete successfully with the college man.” (10) 

Faculty, too, were affected by the change. When Lewis joined the faculty in 1896, senior lawyers warned him that teaching law was best considered not a profession, but a hobby.(11) Lewis made sure that the new school was a place of the utmost dedication, for professors as well as students. No longer were faculty primarily identified as practitioners. Instead, law professors were required to devote themselves full-time to teaching, research, and writing. The Law School was integrated into the university, which was itself now systematized according to district new academic disciplines such as political science, economics, anthropology and history. (12) Lawyers, and law teachers, had been “men of letters” in general sense; now they would be trained in a long tradition of legal thought, collected together for the first time into a formal and distinctly jurisprudential curriculu rather than in imitation of particular lawyers.(13)

Each day as students and faculty approached the new Law School, the building spoke to them, presenting not a local vision of apprenticeship in a law office, but a catalogue of legal history that was international in scope, reaching back to the Roman origins of code law and forward to the recent past of nineteenth-century America. The official description of the building and the medallions encircling it made the expectation clear: “Circled so by greatness the student of these days to come will be untrue to all that his eyes behold if he makes no effort to emulate their example.”(14)

In 1995, however, the inspirational voice of Lewis Hall has been muted, not just by the architectural obstruction that houses the “Goat,” but by changes in the understanding of the legal past, of the relative importance of the figures whose names are carved on the building’s exterior, and indeed the relative importance of legal “heroes” in general. What vision of legal institutions and legal history did the building present for students’ emulation in 1900?

Most important, central to the relocation of legal training in a university setting, was the construction of an intellectual tradition in which to house the Law School. The envelope of the building memorializes the role of the legal past in the production of the legal future. The medallions, in other words, create a bridge between legal thought in the distant as well as the recent past, and the training of young lawyers — the future, this view implies, would be conditioned by the grand tradition of the past.(15)

The scope of this tradition, the sense that law and lawyers had a past worthy of memorialization and emulation, stabilized what was, after all, a revolution in legal pedagogy. The presence of the past, one might say, gave the construction of the new law department an aura of reformation and reconstruction, rather than of radical departure from tradition. (16)

Historical consciousness — the idea that words and meanings in time can best be understood by exploring social and historical contexts — was itself a concept of relatively recent vintage in the late nineteenth century, (17) but one that has been extraordinarily useful for lawyers.(18) Especially important at the turn of the century, but still vital in much legal thought today, historicism has been a valuable and effective critique of formalism (the idea, that is, that legal rules are timeless) and often of originalism (the idea, that is, that legal rules are fixed by their articulation at a given moment, and do not change from that point on). (19) Historical analysis in legal thought has often flowed into a somewhat self-congratulatory, evolutionary model of linear progress over time. Especially in the Anglo-American legal context, such evolutionary histories are, as one scholar put it, dedicated to answering the question “How did our marvelous liberal and representative institutions develop?”(20) The medallions that ring Lewis Hall are in one sense a study in this progressive theory of legal history.

The primary theme governing the selection and distribution of names was, as one might expect, progress over time, with the back of the building representing the earliest and most primitive legal thought, and improvement and increased sophistication leading up the Sansom and Chestnut Street sides, to their apogee in American legal thought on 34th Street. On both sides, European thought flowed into English law, where (we are meant clearly to understand), it was both refined and improved by the common law mind. On the back of the building, for example, are Caius, Ulpean, and Papinian, second century Roman jurists, whom the official description of the building called “the great beginners of Law as we know it … makers of the greatest code formulated by man, if the least human.”(21)

On the Sansom Street side of the building, we find Justinian, sixth-century Emporer of Rome and codifier of Roman law.(22) Moving toward the front of the building, and forward in moral development as well as in time, are collected the group of the great of the common law tradition: King Edward I of England, the man who both codified English law and beat the Scots into submission; Henry de Bracton, a 13th-century English ecclesiastic and jurist, author of the first systematic collection of English law - an early treatise; and finally, Sir Edward Coke. The building committee called Coke “the first of the great English lawyers, the quaint, the patriotic.”(23) In addition to being a great practicing lawyer during his long career in the late sixteenth and early seventeenth centuries, Coke compiled and edited an influential treatise on the law of property, Coke’s Littleton. He also published a series of important Law Reports; however, the remainder of his planned Institutes were suppressed and remained in manuscript at his death because of his controversial stand against the absolute authority of the Crown.(24) 

On the Chestnut Street front, non-American jurists and scholars again imply progress from Europe westward to England, and ultimate fulfillment in the trip across the Atlantic to America. Grotius is perhaps the most remarkable and colorful figure; in 1613, he was imprisoned for his support of a controversial religious sect. He eventually escaped (fittingly enough) in a box of books. In 1625, he published his greatest legal work, De Jura Belli et Pacis (On the Law of War and Peace), which appealed to natural law and social contract as a basis for rational principles on which a system of public, international law could be founded.(25) Grotius was a favorite of Thomas Jefferson and other elite lawyers of the early republic, all men of letters who could read him in the original Latin. (26)

Together, these medallions from early Roman code law through European public law and finally to the English common law tradition present a narrative of legal progress. This celebration of England was typical not only in literature and architecture in the late nineteenth century, it was also an essential component of American legal theory, and law school pedagogy, when Lewis Hall was built. Blackstone’s Commentaries, of course, remained a staple of American legal education through the nineteenth century. (27)

The pinacle of legal thought, according to the architectural scheme of the medallions, was in America, where English tradition blended with the American landscape to reach its highest and best form. The 34th Street side, the front entrance of the Law School, is studded with American lawyers and judges. John Marshall, Joseph Story, Daniel Webster — judicial and political giants of the Revolution and early Republic, combine with more local heroes — Horace Binney, John Bannister Gibson, William Tilghman; guiding the visitor through massive oak doors to the choreographed bustle and debate of life inside. All were given extensive biographies in Lewis’s Great American Lawyers series. (28) The first major history of the American legal profession, the eight-volumes were driven, as were the medallions, by the notion that biography of past lawyers is the single best and most efficacious means to capture the spirit of greatness.(29) The treatment of Chief Justice Marshall, written by Lewis himself, is the longest and most detailed of the essays.(30) The biography includes significant amounts of detail about Marshall’s upbringing, marriage, and gentle character, as well as his experiences in the Revolutionary War and his reading habits.(31) Lawyers and law students, Lewis believed, should learn as much about the social context of legal actors as about the substantive content of legal doctrine. 

This emphasis on the importance of context, the role of society in the formation of law and lawyers, does not conform to our traditional understanding of legal education at the turn of the twentieth century. The “case method,” after all, hardly allows a student time to consider who wrote an opinion, and what the social circumstances were behind the promulgation of a given doctrine.(32) Indeed, Lewis’s belief in social fact as determinative at some level of legal rules and legal thought, was part of a growing sense of the value of interdisciplinary work in law.(33) Legal history played a vital role in the articulation of the benefits of looking beyond doctrine in the search for meaning.

The address delivered by Dean Lewis at the opening of the building provides interesting clues to interpreting this expansive vision of the role of legal history in legal education. In his talk, Lewis discussed the importance of “efficient” training for lawyers, and the role of what he called “character.” (34) A person of character, Lewis believed, was also committed to a political vision. This was no dessicated theory of the lawyer as technocrat,(35) but a full-blooded moral theory, one in which lawyers are moral actors in a world in need of change.

The keys to working change, Lewis maintained, were interdisciplinary research, and active involvement in the world. In addition to being Penn Law’s first legal historian, Lewis was also its first economist.(36) His training in economics and his commitment to history explain his desire to train “efficient” lawyers, and his belief that emulation of great legal thinkers of the past was the key to such training. As Lewis put it, he and every legal academic worth his salt knew that law was a “living science,” one that is applied every day “to decide real controversies.” Law, Lewis maintained, was the “result of the facts which make-up our history.”(37) Practice and theory, he claimed, were thus united in legal training.

Technical and theoretical expertise were not enough. Lewis believed deeply in a moral component of efficiency. Included in moral efficiency were independence of thought, perseverance, respect for law, honesty, moderacy, and kindness. These qualities were as important sharp wits or oratorical skill. These were the qualities that Lewis sought in faculty, and sought to instill in students.(38) The medallions that ring Lewis Hall are a constellation of such independent and moral legal minds of the past. The outer shell of greatness was designed to inspire students to action themselves. 

Lewis himself answered this call to action; he also believed that law professors were particularly well situated to effect reform. Although his political career consisted largely of one unsuccessful run for governor of Pennsylvania on the Progressive Party ticket in 1912, (39) Lewis’s dedication to reform went far beyond traditional politics. It was Lewis, of course, who founded the American Law Institute in the early 1920s.(40) The ALI, as one scholar has demonstrated, was conceived by “a group of ‘progressive-pragmatic’ legal academics, who wished to reform law and promote the influence of law professors in the wider world of legal practice.”(41) Lewis believed, as he put it, that the professoriate must lead the way in reform, because the private bar had failed to work substantial justice. (42)

Our legal pantheon has changed; for example, we might well question the inclusion of Roger Brooke Taney, third chief justice of the United States Supreme Court, author of the infamous majority opinion in the Dred Scott case.(43) The very concept of “greatness” seems in fundamental doubt, much less attributable to a collection of elite men from the legal past. Yet even in this age of the anti-hero, there can be little doubt that the emulation of kind, honest and independent-minded legal actors is an ambition worth imparting to law students. For individuals, as William Draper Lewis understood, and as the architecture of the University of Pennsylvania Law School proclaims, have made a difference in the past; we study the lives of the legal past, as one eminent legal historian put it, “to learn the gestures a committed person makes.”(44)

The medallions are not the final word on legal greatness, however. The final focus of progressive development over time, the architectural celebration of legal figures surrounding the building and leading up to the entrance, occurs inside the building itself. Opposite the front entrance, in full view straight ahead on the massive staircase leading up to the library from the Great Hall, stands a statue of Abraham Lincoln. Lincoln, who led the most massive legal and political reform the United States has ever known,(45) is a superb example of legal greatness as Lewis Hall has memorialized it — of revolution in the interest of tradition.(46) For Lincoln avowedly fought to realize the ideals of the Declaration of Independence, even as he fundamentally restructured the legal landscape in the interests of fundamental justice.(47) 

 

Footnotes

1. SWORDNOTE: Assistant Professor of Law, University of Pennsylvania Law School. The author wishes to thank Dean Colin Diver, Acting Dean Stephen Burbank, and Associate Director of Development Carol Weener, for their interest and generous support of this project; Professors A. Leo Levin and Susan Sturm for helpful suggestions; and University Archives Director Mark F. Lloyd, Lecturer in Historic Preservation & Urban Studies George Thomas, Biddle Law Library’s Rare Books Librarian Cynthia Arkin, and Reference Librarian Catharine Krieps, and Melissa J. Homestead for research assistance.

2. “The Law Department,” Catalogue of the University of Pennsylvania, 1879-1880 96-99 (1879).

3. For the movements of the law school, including its stay in College Hall in the 1870s and 1880s, see Margaret Center Klingelsmith, “History of the Department of Law of the University of Pennsylvania,” The Proceedings at the Dediction of the New Building of the Department of Law, Febuary 21st and 22nd, 1900, 213-49 (George Erasmus Nitzsche, comp. 1901) [hereinafter Proceedings].

4. Although in 1888, the course of study was extended to three years, Klingelsmith, “History of the Law School,” supra note 3, at 233, the law school was still a local institution, an adjunct to the training students received under their “preceptors” in law offices. See William R. Johnson, “Apprenticeship and the Law School: A Harmonious Arrangement,” in Schooled Lawyers: A Study in the Clash of Professional Cultures 42 (1978). Conservative lawyers in Philadelphia opposed even such limited outside training as provided by the “law department,” as it was known. The school was re-opened in response to the demands of law clerks in 1850, part of a gradual transition of legal practice, according to some scholars, from a more aristocratic to a solidly middle-class profession. Gary B. Nash, “The Phildelphia Bench and Bar, 1800-1861,” 8 Comparative Studies in Society and History 203, 207-08 (1965); Lawrence Friedman, A History of American Law, 606-08 (2d ed., 1985).

5. “Remarks of Mr. William Draper Lewis,” Law Department of the University of Pennsylvania, A Very Pleasant Evening, 33 (1934).

6. For basic biographical information on Lewis, see Stephen Botein, “William Draper Lewis,” supplement 4 Dictionary of American Biography 490 (1974); Obituary, New York Times, 3 September 1949, p. 13, col. 1; Owen J. Roberts, “William Draper Lewis,” 98 Penn. L. Rev. 1 (1949); George Wharton Pepper, “William Draper Lewis,” 98 Penn. L. Rev. 4 (1949); Augustus N. Hand, “William Draper Lewis,” 98 Penn. L. Rev. 8 (1949).

7. On the professionalization of legal education at the end of the nineteenth century, see Robert Stevens, Law School: Legal Education in America from the 1850’s to the 1980’s (1983); John Henry Schlegel, “Langdell’s Legacy; or The Case of the Empty Envelope,” 36 Stan. L. Rev. 1517 (1984), and “Between the Harvard Founders and the Legal Realists: The Professionalization of the American Law Professor,” 35 J. Legal Ed. 311 (1985); James Bradley Thayer, “The Teaching of English Law at Universities,” 9 Harv. L. Rev. 169 (1895); Oliver Wendell Holmes, Jr., The Use of Law Schools (1886).

8. William Draper Lewis, ed., Blackstone’s Commentaries on the Laws of England, 4 vols. (1897).

9. On the English focus of the design, see Evening Telegraph, 20 December 1898; Public Ledger, 9 December 1898.

10. “Department of Law,” Catalogue of the University of Pennsylvania, 1899-1900 234 begin_of_the_skype_highlighting            1899-1900 234      end_of_the_skype_highlighting (1899).

11. Botein, Dictionary of American Biography, supra note 6, at 490.

12. On the division of learning into distinct academic departments in the second half of the nineteenth century, see Dorothy Ross, The Origins of American Social Science (1991); Edward Potts Cheyney, The History of the University of Pennsylvania, 1740-1940 (1940).

13. On the perceived importance in both England and America of relocating legal education to university settings from practitioner-focused night schools, see “Letter of Frederic William Maitland,” Proceedings, supra note 3, 89-92. On the liberal education of lawyers before the advent of professional law schools, see Robert A. Ferguson, Law and Letters in American Culture (1984).

14. “Final Report on Proceedings of the Dedication of the New Building,” in 5 Record Book, University of Pennsylvania Law School 5 (1899-1900).

15. For other aspects of the role of tradition in Philadelphia at the turn of the century, see David Glassberg, “Public Ritual and Cultural Hierarchy: Philadelphia’s Civic Celebrations at the Turn of the Century,” 107 Penn. Mag. of Hist. and Biog. 421 (1983); Max Page, “From ‘Miserable Dens’ to the ‘Marble Monster’: Historical Memory and the Design of Courthouses in Nineteenth-Century Philadelphia,” 119 Penn. Mag. of Hist. and Biog. 299 (1995). For general treatments of the role of invented tradition in American society, see Michael Kammen, Mystic Chords of Memory: The Transformation of Tradition in American Culture (1991); David Glassberg, American Historical Pageantry: The Uses of Tradition in the Early Twentieth Century (1990).

16. This emphasis on tradition as the justification for even revolutionary retooling of institutional structures has a venerable hertiage in American legal and political thought. See, for example, John M. Murrin, “The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts,” in Stanley N. Katz & John M. Murrin, eds., Colonial America: Essays in Politics and Social Development 540 (3d ed., 1983).

17. For analyses of the evolution of historical consciousness, see Dorothy Ross, “Historical Consciousness in Nineteenth-Century America,” 89 Am. Hist. Rev. 909 (1984); Hayden V. White, “On History and Historicisms,” From History to Sociology: The Transition in German Historical Thinking, Carlo Antoni, ed., xv (1959).

18. See Robert W. Gordon, “Historicism in Legal Scholarship,” 90 Yale L.J. 1017 (1981); Morton J. Horwitz, “The Conservative Tradition in the Writing of American Legal History,” 17 Am. J. Legal Hist. 275 (1973).

19. See Gordon, “Historicism in Legal Scholarship,” supra note 17, at 1028-30. Originalism is, of course, conditioned in some sense by historicism. If legal meaning is fixed by a particular moment in time, that moment becomes by definition worthy of historical investigation. Yet the corollary of such a theory — that meaning is cemented as if by supra-historical superglue — is a violation of historical consciousness (which is premised on the difference of the past from the present). For the originalist, the legal past not only conditions (even dictates to) the legal present, but is at base identical to the legal present, because meaning is static.

20. Peter Novick, That Noble Dream: The “Objectivity Question” and the American Historical Profession 99 (1988). For a study in presentist legal analysis by an early legal historian, see James Barr Ames, “Law and Morals,” 22 Harv. L. Rev. 97 (1908) (arguing that legal development has progressed over centuries “in harmony with moral principles”). Ames, Dean of Harvard Law School, also gave a speech at the opening of Lewis Hall, predicting the law professors’ power would grow through the building of schools like Penn’s, which would attract the most able lawyers to teaching. James Barr Ames, Proceedings, at 25-44.

21. “Final Report,” in 5 Record Book, supra note 14, at 573.

22. For the role of Justinian and the Roman law code, see J.A.C. Thomas, The Institutes of Justinian: Text, Translation, and Commentary (1975); J.B. Bury, 2 History of the Roman Empire from the Death of Theodosius I to the Death of Justinian (1923).

23. See 6 Record Book, supra note 14, at 6.

24. Anna M.D.W. Stirling, Coke of Norfolk and His Friends (1908); James R. Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (1992); Stephen D. White, Sir Edward Coke and “The Grievances of the Commonwealth,” 1621-28 (1979); John H. Baker, “Sir Edward Coke,” in A.W.B. Simpson, ed., Biographical Dictionary of the Common Law, 117 (1984).

25. Hedley Bull, et al., eds., Hugo Grotius and International Relations (1990); Gerahrd Reintanz, “Hugo Grotius und seine Zeit — Ein datenmassiger Ueberblick,” in Friedrich Elchlepp et al., eds., Hugo Grotius, 1583-1645, 7 (1983); “Hugo Grotius,” 5 Encyclopaedia Britannica 514 (1990).

26. Ferguson, supra note 13, at 4.

27. It is fair to say that Blackstone was probably more important in America than in England. For biographical and substantive treatments of Blackstone, see Daniel J. Boorstin, The Mysterious Science of the Law (1941); “Sir William Blackstone,” 2 Dictionary of National Biography 595-602 (1908).

28. William Draper Lewis, ed., Great American Lawyers: A History of the American Legal Profession (1907-1909). For biographies of the figures on the medallions mentioned above, see Horace Stern, “William Tilghman,” 2 Great American Lawyers 145; William Schofield, “Joseph Story,” 3 Great American Lawyers 121; Everett Pepperrell Wheeler, “Daniel Webster,” 3 Great American Lawyers 287; Charles Chauncey Binney, “Horace Binney,” 4 Great American Lawyers 195

29. For an analysis of such traditional notions of the value of biography, see Eric Homberger and John Charmley, Introduction to The Troubled Face of Biography, ix (Eric Homberger and John Charmley, eds., 1988), Janet Malcolm, Annals of Biography: The Silent Woman, New Yorker, 23 August 1993, at 84; Virginia Woolf, The Art of Biography, in The Death of the Moth and Other Essays 187 (1942).

30. William Draper Lewis, “John Marshall,” in 2 Great American Lawyers, supra note 27, at 311.

31. Id., at 313-351.

32. On the case method as developed by Dean Christopher Columbus Langdell at Harvard, and its popularity at the turn of the twentieth century, see sources cited in note 7, supra.

33. On the movement to integrate social science research into legal theory and scholarship, see Roscoe Pound, “The Scope and Purpose of Sociological Jurisprudence,” 24 Harv. L. Rev. 591 (1911); Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (1992); Edward A. Purcell, The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value 77-94 (1973); Sarah Barringer Gordon, “The Creation of a Usable Judicial Past: Max Lerner, Class Conflict and the Propagation of Judicial Titans,” 70 N.Y.U.L. Rev. 262, 272-76 (1995).

34. “Address of Mr. William Draper Lewis,” Proceedings, supra note 3, at 17.

35. For such a technocratic vision, see Oliver Wendell Holmes’s essay, “The Path of the Law,” in Max Lerner, ed., The Mind and Faith of Mr. Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions (1943).

36. Lewis received a Ph.D in economics from Penn in 1891, at the same time that he earned his law degree. Obituary, supra note 5. Lewis’s dissertation, entitled Our Sheep and the Tariff, blended (according to his protege and colleague, George Wharton Pepper) political economics and sociology in ways that Lewis employed throughout his legal career. “William Draper Lewis,” supra note 5, at 4.

37. William Draper Lewis, Proceedings, supra note 3, at 18.

38. Id., at 19-21. For Lewis’s emphasis on kindness, and the great fondness with which he was regarded by his peers and proteges, see the collection of eulogies at 98 Penn. L. Rev. 1 (1949).

39. For details of the unsuccessful campaign, and the meeting with Theodore Roosevelt, who persuaded Lewis to withdraw in favor of the Democratic candidate, see Botein, “William Draper Lewis,” supra note 5.

40. Herbert F. Goodrich & Paul A. Wolkin, The Story of the American Law Institute, 1923-1961, 3-5 (1961).

41. N.E.H. Hull, “Restatement and Reform: A New Perspective on the Origins of the American Law Institute,” 8 Law and History Review 55, 56 (Spring 1990).

42. Lewis did not hesitate to condemn practitioners: “If, as a profession, we are awake to our failure to perform our public duties, it is the small class of men who are devoting their lives to the legal teaching who must point the way.” Quoted in Jerold L. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 82 (1976). Lewis’s theory that intellectual acumen would lead to progressive reform, of course, seems as naive as his theory that the example of greatness in the past would produce greatness in the future.

43. Scott v. Sandford, 60 U.S. (19 How.) 393 (1957). See Don E. Fehrenbacher, The Dred Scott Case: Its Signficance in American Law and Politics (1978); Edwin S. Corwin, “The Dred Scott Decision, in the Light of Contemporary Legal Doctrines,” 8 Am. Hist. Rev. 52 (1911). For biographical information on Taney, see Carl Brent Swisher, Roger B. Taney (1935); Samuel Tyler, Memoir of Roger Broooke Taney (1872). The biography of Taney in Great American Lawyers, written by Professor William E. Mikell of the Law School, is an ardent defense of Taney, and an attack on his detractors. “Roger Brooke Taney, ” 4 Great American Lawyers 77 (1908).

44. The quote is from Robert M. Cover. For an analysis of Cover’s theory of the values of legal biography, as well as for the above quote, see Tanina Rostain, “Tribute to Robert Cover,” 96 Yale L.J. 1713, 1715 (1987).

45. Recent biographies of Lincoln include David Herbert Donald, Lincoln (1995) and Mark E. Neely, Jr., The Last Best Hope of Earth: Abraham Lincoln and the Promise of America (1993).

46. The single most comprehensive treatment of all aspects of the Civil War era is James M. McPherson, Battle Cry of Freedom: The Civil War Era (1988). For a treatment of constitutional change, see Harold Hyman and William Wiecek, Equal Justice Under Law: Constitutional Development, 1835-1875 (1982). For Lincoln’s career as a lawyer, see William Eleroy Curtis, “Abraham Lincoln,” 5 Great American Lawyers 459 (1908).

47. The most poignant example of Lincoln’s use of the past to explain the present is his Gettyburg address, delivered at the battlefield in Pennsylvania. For analysis of Lincoln’s transformative address, see Garry Wills, Lincoln at Gettysburg: The Words That Remade America (1992).

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