Professors Dig Into Forgotten Legal History on ‘Common Law,’ Yielding New Insights

Two professors at the University of Virginia School of Law join the “Common Law” podcast to discuss how their differing approaches to researching the past, from the Civil War to the civil rights eras, have uncovered forgotten stories that help us understand today’s legal landscape.

In the season’s fifth episode, released Tuesday, Professors Cynthia Nicoletti and Joy Milligan talk with host Dean Risa Goluboff, who is also a legal historian, about two of their articles that share something in common: both show instances of people and institutions using the law to preserve the status quo against movements that were trying to improve conditions for Black Americans.

Yet the professors took distinctly different paths during the process of researching and writing about legal history. The trio discuss their decisions to focus on institutions versus people, “historical forgetting,” how the present affects our ideas of the past and the pitfalls of bringing historical work to bear on today’s concerns.

Nicoletti, the Paul G. Mahoney Research Professor of Law and a professor of history at UVA, discusses her paper “William Henry Trescot: Pardon Broker,” which was published in The Journal of the Civil War Era. The paper won the 2021 George and Ann Richards Prize for the best article published in the journal that year. Trescot, a lawyer and lobbyist for the South Carolina Lowcountry elite whites, helped his clients obtain pardons after the Civil War to avoid having their land redistributed to formerly enslaved people.

Milligan, the Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, discusses her paper “Subsidizing Segregation,” published in the Virginia Law Review. The article exposes how the federal government played a role in extending racial segregation and discrimination by funding segregated schools up to 10 years after the Brown v. Board of Education decision outlawed “separate but equal” education.

Nicoletti, who earned her Ph.D. in history at UVA in addition to her J.D. from Harvard, is a legal historian focused on the Civil War era. She teaches classes on that subject, and on federalism and property. Her book, “Secession on Trial: The Treason Prosecution of Jefferson Davis,” won the Cromwell Book Prize, which is given each year to an early career scholar in the field of American legal history.

Milligan, who earned her Ph.D. in jurisprudence and social policy at Berkeley, studies the intersection of law and inequality, especially race-based economic inequality. Before becoming a law professor, Milligan practiced civil rights law at the NAACP Legal Defense and Educational Fund as a Skadden Fellow and earned her law degree at New York University.

The podcast’s sixth season, called “Free Exchange,” features guests debating and discussing timely legal topics. The show is available on Apple Podcasts, Stitcher, YouTube, Spotify and other popular podcast platforms. “Common Law” is produced by Emily Richardson-Lorente.

Past seasons have focused on “The Future of Law,” “When Law Changed the World,” “Law and Equity,” and “Co-Counsel” on seasons four and five.

You can follow the show on the website CommonLawPodcast.com or Twitter at @CommonLawUVA.