History 790

American Trials

Fall 2011
Prof. Waldrep
Science 268

Office Hours:
Science 225: 2-4 on Tuesdays and by appointment. E-mail cwaldrep@sfsu.eduhttp://bss.sfsu/edu/waldrep.  The university has not yet made my hall handicap accessible; contact me and we can meet somewhere else if necessary.

Trials serve many purposes. Most legal actions, most of the time, either settle disputes or maintain order by disciplining miscreants. But some trials become famous for attempting a broader social or political purpose. No one imagines, for example, that Dred Scott v. Sandford served only to determine the slave status of one man or that the Scopes trial did not become a cultural battleground between titanic national forces contending for advantage.  Some trials become cultural and political icons – powerful symbols of what can be done or lessons marking what should not be done. It is those we want to study this semester.
At least since 1990, some legal scholars have questioned whether law can “engineer” society. This represents a dramatic reversal from Oliver Wendell Holmes’ 1897 vision of judges “weighing considerations of social advantage.” For most of the twentieth century, judges and legal scholars sought the social advantage Holmes advocated. For historians, this meant legal process became an important variable in American life.  Some always scoffed at social engineering through law, but only at the end of the century did such doubts become prevalent on the Left.  Gerald Rosenberg most famously articulated those reservations with a book entitled The Hollow Hope.
This course aims to test the hypothesis laid out by Rosenberg by looking at the most sensational trials in American history.  Many questions will be considered, here is an important one: How have historians judged the power of law and legal process to change American society, politics, or culture? This historiographical question suggest other areas of inquiry: How important are trials as a force in history? Do trials illustrate conflict or resolve that conflict?

1. Students will closely analyze history texts, identifying the author’s thesis and argument.
2. Students will identify cultural shifts in American history, testing the influence of notorious trials on the national public.
3. Students will formulate their own idea about the power of law and legal process (based on class readings) and test it against a trial or legal process not covered in class or prepare an historiographical essay using all the readings to test the Rosenberg thesis.


1. Each student will serve as a discussion leader one time.  This means preparing a list of questions for the class to consider and writing a comparative review of the book under discussion and one other book from class.  This paper will be due on the date of our discussion of the second book.
2. Students will prepare a written summary of each reading, following the format attached.
3. Students will also complete a research paper testing some hypothesis about a trial or leading proceeding not covered in class. Use primary sources and show an understanding of the appropriate historiography. Or prepare an historiographical essay analyzing all readings assigned. This paper must be typed, double-spaced, footnoted, with numbered pages.  Due final exam week.

            Discussion leader and short paper: 20%
            Research paper: 35%
            Reading summaries: 35%
            Critique: 10%

Schedule of classes.  Recalibrate all dates.

August 23: Introduction to course.

August 30: Law and legal process as an instrument for social change.
            Reading: Gerald Rosenberg, The Hollow Hope.

September 6:  Antebellum Era
            Reading: Steven Lubet, Fugitive Justice.

September 15-16: San Francisco Rights Conference in the Student Center. Attend and write a one-page analysis of at least one session.

September 20: Antebellum Era, continued.
            Reading: Brian McGinty, John Brown’s Trial.

September 27: Can a trial cause a war?
            Reading: Don Fehrenbacher, The Dred Scott Case. Pages 1-304.

October 4: More Dred Scott.
Reading: Don Fehrenbacher, The Dred Scott Case.  Pages 305-595.

October 11:  Can a War change the Constitution? 
            Reading: Linda Przybyszewski, The Republic According to John Marshall Harlan.  

October 18: Juries
            Reading: Christopher Waldrep, Jury Discrimination

October 25: Individual Rights.
            Reading: David Bernstein, Rehabilitating Lochner.

November 1: Battleground in the culture wars.
Reading: Edward J. Larson, Summer for the Gods.

November 8: The New Deal
            Reading: Barry Cushman, Rethinking the New Deal Court.

November 15: Segregation.
            Reading: Michael Klarman, From Jim Crow to Civil Rights.

November 21-25: Fall recess.

November 29: The Right to Work
            Reading: Nancy MacLean, Freedom is Not Enough

December 6:  Segregation on Trial
            Reading: James T. Patterson, Brown v. Board of Education.

December 13: last class. For this class report on a trial of your own choosing.

Final papers due during final exam week.