Today’s Read:
Hendrik Hartog, Four Fragments on Doing Legal History, or Thinking with and Against Willard Hurst, Law and History Review, v. 39, issue 4, pp. 835-865 (Nov. 2021) (Open Access: https://doi.org/10.1017/S0738248021000626)

In my last post, I talked about how I still get Harper’s magazine in print in the mail and like to mark it up with a pen. I even showed a picture of the ink-covered article that I was discussing. At the time, I really thought that nothing could match pen-and-ink annotating of printed-out articles.

Reader, I may have been mis-informed.

One of our SJD students is also one of my Twitter mutuals. He tweeted out a link to this article by Hendrik Hartog this morning and said that he “couldn’t get it out of his head.” If that is not a compelling invitation to read and blog about an article, I don’t know what is.

I’ll get to some substance about the article in a minute, but first let me talk about why this experience has shown me that Zotero 6 is, truly, a game-changer.

I have been, at best, a half-hearted Zotero user in the past. I recently had to get a new laptop at work, which meant downloading and installing the newest version of the app, Zotero 6. I have offered Zotero training to our researchers for a few years now, since it is the only CMS that Harvard offers university-wide for free, and some of our LLM and SJD students have reported that it really helped them stay organized and efficient. This is why I forced myself to use it before – so that I knew exactly what it could do and answer questions from students about it.

With the release of Zotero 6 in April 2022, the platform now comes with a built-in PDF Reader and Note Editor.

Y’all, the stuff just got real with this new feature.

Now, when you import an item into Zotero that includes a full-text PDF, and you click the PDF icon in the Zotero collection, it opens the PDF in a new tab in the Zotero app itself.

That tab includes a notepad for reading notes, in which you can bold, underline, italicize, highlight, hyperlink, and search text. You can also search all of your reading notes across Zotero, and assign tags for easier subject-based organization. Additionally, there are options to highlight and add sticky notes to the PDF itself.

All of your annotations are saved with your article to the cloud, and can be viewed and edited by other Zotero users in a shared library.

Here is what this is looking like for me as I work through the Hartog article:

I honestly find this kind of notetaking to be so effortless that I almost don’t want to try to read an article another way.

Pictured above are my notes related to the second of the four fragments in Hartog’s article. In this fragment, Hartog is discussing the 1964 book by legal historian Willard Hurst, Justice Holmes on Legal History. Now, I am not a legal historian. I do not know anything about Willard Hurst, nor do I know much of substance regarding Justice Holmes’ views on legal history. For a reader like me, fragment #2 of this article is, in all honestly, basically a jumble of words and ideas.

I was smart enough, however, to figure out that the the basic framework of the discussion involves what are two “dyads” in Hurst’s writing: sequence and context, and middle-classness and constitutionalism. And those two dyads form the structure of my notes about this fragment (which you can see in the picture above in the paragraph with the purple, yellow, green, and blue highlights on the right side). As I went, I caught concepts that expanded on the explanation of what is meant by sequence, context, middle-classness, and constitutionalism, and added those concepts to the corresponding parenthetical.

I can guarantee that, if I hadn’t done this, I could not have explained what the difference between middle-classness and constitutionalism were in Hurst’s thinking, or why I found Hertog’s observations about Hurst’s writing to be so annoying. I am still not 100% sure that I could explain any of this very well, but at least I can give it a try.

I think Hertog is saying that sequence (the creation of 200 years of American nationhood by white men who represent the “we” in his writing) and context (there was a singular antipathy against anything that seemed socialist in the United States at the time because of the Cold War, especially among white male legal academics) were important lenses through which to view the scholarship of a legal historian like Hurst of that period.

Why? Because they offered a way of explaining how Hurst’s theories of middle-classness and constitutionalism (in which constitutional rights were viewed as “the enemy of democratic processes and majoritarianism”) could not only be intellectually legitimate, but could also be reconciled with one’s personal feelings that favored progressive social reforms, even if his scholarship seemed hostile toward or disdainful of them.

In other words, as Hurst frequently pointed out, the American legal system had operated in the service of a distinct “we” (privileged white men) since the beginning. Accordingly, Hertog argues that Hurst’s work as a legal historian did not require him to be “interested in the ways that rights would be marked and shaped by the language and the activities and the mobilizations of the subordinated classes.” That Hurst wrote in service of the legitimacy of the historical “we” was, for the purpose of a legal historian, acceptable.

To be honest, all of that reeks to me of the most distasteful apologist BS. But, as I said, I am not a legal scholar in the same way that Hurst or Hertog are, so maybe I’m mistaken. And there was a lot of material that probably went over my head. I never took a legal history class in law school, after all, and I am not a great reader of legal history treatises. An article like this certainly isn’t going to compel me to check out any of Hurst’s books from the library, and my own thoughts are clear enough to articulate why that is because I had a tool that allowed me to carefully record my thinking as I read Hertog’s article.