Note, The Tradition of History at Harvard Law School, 138 Harv. L. Rev. 775 (2025):
There has been a noticeable trend at the Supreme Court in the last half-century toward using history to determine constitutional meaning. In New York State Rifle & Pistol Ass’n v. Bruen, Justice Thomas’s majority opinion announced a new methodology for Second Amendment jurisprudence, which rejected the old “means-end scrutiny” test in favor of comparison to “historical tradition.” The upshot of this new test is that “judges . . . are supposed to analogize modern laws directly to historical sources, unmediated by a legal rule or standard like the tiers of scrutiny.” Using this method, judges would no longer be asked to judge in the traditional sense, but rather to engage in historical analysis. To the Court, this method is preferable because “reliance on history to inform the meaning of constitutional text . . . is . . . more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘. . . costs and benefits . . .’ especially given their ‘lack [of] expertise’ in the field [of firearms regulation].”
Given the increased emphasis on history in constitutional jurisprudence, law schools may naturally consider incorporating history into their required curricula. Over sixty years ago, Harvard Law School (HLS) did just that: It created a required first-year course in legal history. From 1963 until 1970, first-year students at HLS were required to take a course in legal history called Development of Law and Legal Institutions (DLI). DLI was conceived as a course to provide students with an understanding of the Anglo-American legal tradition and evolved into a perspective course on the development of the American judiciary as an institution in our democratic system. Embattled from its inception, the class was deeply unpopular with students and was frequently the subject of administrative consternation until, in 1970, the school quietly removed the course from the first-year curriculum.
This Note examines the available archival documents to recount the evolution of the DLI course and reflect on the issues that law schools would have to consider in adding a similar legal history requirement today. HLS’s experience with DLI demonstrates that schools may face two major challenges: unpopularity among students and difficulties in optimizing a required history class syllabus for law schools — especially if the goal of such a class is to help budding lawyers apply tests like Bruen’s. Furthermore, fundamental tensions between historical practice and a legal test like “history and tradition” would make it difficult for even a perfectly designed course to meet the goal of training students to apply the test.
This Note proceeds in three Parts: In Part I, it describes the development of the legal history requirement at HLS from the late 1950s until 1962. It then describes the history of the course from 1962, when it was first taught, until 1969, the final year it was required. Part II discusses student and faculty responses to the course. Part III compares the various iterations of the course and their fit, or lack thereof, with a “history and tradition” inquiry. It seeks to understand what lessons the historical example of one law school’s attempt at incorporating history into the required curriculum can teach us in the post-Bruen world.
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