‘Common Law’ S6 E5: Digging Into Our Forgotten Legal History

Podcast guests
April 9, 2024

UVA Law professors Cynthia Nicoletti and Joy Milligan join host Risa Goluboff for a discussion on how divergent approaches to digging into the past can reveal some surprising truths about law and history.



Risa Goluboff: When legal historians explore the past, they not only offer insight into what the law looked like in prior eras and how it has changed, they also enable us to better understand the present. On this episode of Common Law, two UVA law professors join us for a conversation about their historical research and methods. We'll examine their recent work on land redistribution in the Reconstruction era and Civil Rights in the 1960s that reveals how lawyers and legal structures can function to preserve the status quo as much as change it.

Cynthia Nicoletti: It was certainly not in my head when I wrote a book about secession and potential disqualification from office this would become a live question anytime soon.

Joy Milligan: For me it's kind of a realpolitik of how little political rupture actually occurred by way of the Civil War.


Risa Goluboff: Welcome back to Common Law. I'm Risa Goluboff, the dean of UVA Law School. In our sixth season, we have been focusing on having a free exchange of ideas in each episode by hosting rousing discussions among faculty of different views on a particular issue. These are just like our weekly faculty workshops at the Law School, where we share and test new ideas, just on a podcast. For this episode, we're talking to UVA Law professors Joy Milligan and Cynthia Nicoletti. Thanks so much to both of you for joining us today.

Joy Milligan: Thank you.

Cynthia Nicoletti: Thank you for having me.

Risa Goluboff: Before we get started, maybe you could each tell us a little bit about the other. So maybe Joy, you first, and then Cynthia.

Joy Milligan: OK. Professor Cynthia Nicoletti earned her Ph.D. in history at UVA, in addition to a J.D. from Harvard Law. Her research focuses on the Civil War era, and she teaches classes on that subject, federalism, and property law. Her book, “Secession on Trial: the Treason Prosecution of Jefferson Davis,” won the prestigious Cromwell Book Prize, which is given each year to an early career scholar in the field of American legal history.

Cynthia Nicoletti: And Joy Milligan earned her Ph.D. in jurisprudence and social policy at Berkeley, where she also served on the law school faculty before coming to UVA in 2021. Her recent research focuses on how the government has played a role in extending racial segregation and discrimination. Before becoming a law professor, Joy practiced civil cights law at the NAACP Legal Defense and Educational Fund as a Skadden Fellow and earned her law degree at NYU.


Risa Goluboff: Well, I am a legal historian myself, as you both obviously know, and I have so been looking forward to this show. I'm really excited. So we will be right back with Joy Milligan and Cynthia Nicoletti.


Risa Goluboff: Before we start talking about, you know, where you all might differ in your methods or in the way you think about history, let's talk a little bit about your recent work, so our listeners can hear what your history is about, and then we can talk about how you create that history and the choices that you make. Joy, your article, “Subsidizing Segregation,” looks at how and why federal education officials helped fund segregated schools a decade after Brown versus Board of Education, when most people, I think, “Oh, that must have been finished by then,” right? You show how that's not at all finished. And Cynthia, in your paper, “William Henry Trescot: Pardon Broker,” which was published in The Journal of the Civil War Era, we learn about how Trescot, who is this South Carolina lawyer and executive agent, cut off a path to land redistribution to the formerly enslaved by using the pardon process for Lowcountry elites in South Carolina. And it is striking for me, personally, I am often writing about how legal change happens and people who are pushing for change in my work and in both of your work, you're examining how people use law against change, so I'm curious for both of you as an initial question, how did you come across these stories? Did you immediately know you wanted to write them? Where did these projects come from?

Cynthia Nicoletti: It took me a while to find this story, right? So I was interested in land redistribution and I was looking at the papers of the planter class. And so, I spent some time mucking …


Cynthia Nicoletti: … and really trying to find a story. And so I had a lot of threads, but, um, I was doing secondary reading. I had done some work in the archives and I was in South Carolina and then I got home, and, um, I went through the secondary sources and somebody cited Trescot's correspondence and said something like, “There might be a story here,” but they hadn't done that work. And, um, I found his papers and indeed there was a story and then I took it all home and unraveled it. So your question makes me think about whether I believe that there is always a story like this, um, that's waiting for me to discover it, and in some sense I think yes, right? So I feel like I spend time sort of nibbling at the edges of something and it's always a process of looking for a pattern and, I think in some sense I am looking for key movers, where I can sort of think about how am I going to put the pieces together? And for me, a lot of those pieces are, well, who are the primary actors?

Risa Goluboff: Can you put this Trescot story into the larger context of the larger story about land redistribution that you're doing and say a little bit more maybe about how you came to that project too?

Cynthia Nicoletti: That's a great question. I feel like I just leapt in in the middle.


Risa Goluboff: My question invited you to leap in, so now we can step back a little.

Cynthia Nicoletti: Yeah, so, um, the larger project is about land redistribution, during and after the Civil War. And as you said, um, there's this project to take land from, um, former Confederates, and the government to distribute it to formerly enslaved people. And we have thought of this as an idea that never got off the ground, because there was really no impetus for it. I'm arguing instead that, indeed, there was an impetus for it and that it actively, um, gets unraveled by lawyers.

Risa Goluboff: Like Trescot.

Cynthia Nicoletti: Like Trescot. He's my central lawyer, but some others as well. A lot of the project is to recover some contingency in this story, to suggest that the outcome that we know – which is that land redistribution largely did not happen – that that's not sort of a, a natural process, that it actually took some human ingenuity to make that happen. And to recover the story, um, by which that process happens. And to your question about how I came to this as the story, um, that was also not automatic and maybe the product of contingency …


Cynthia Nicoletti: … because I was interested in emancipation and stumbled on this. And for a long time I found a ton of sources that were talking about land, um, and I sort of hadn’t – it took me a long time to sort of pay attention to those voices, um, because I thought, 'Oh, I'm looking for something else.'


Cynthia Nicoletti: By now I should have learned that I should listen to the sources, but eventually I did. Um, you know, it’s exciting when you sort of put your finger on, “Oh, um, this sort of lines up in my head as a story and I hadn’t seen a pattern” and eventually you do.

Risa Goluboff: Yes! Yes. That’s really interesting, Cynthia.

Cynthia Nicoletti: Yeah.

Risa Goluboff: How about you, Joy?

Joy Milligan: So I also didn't know that this was the story I was looking for. I was in the National Archives. My intent was to study how various federal agencies interpreted the 1964 Civil Rights Act and some of the other statutes like the Fair Housing Act that came through in that, kind of, revolutionary mid-to-late 1960s era. And, you know, I was thinking about agencies as driving forces of change and how they brought these laws into life, really, and implemented them in relatively progressive ways often. But, uh, someone had said, “Well, you should look a little to see what they were doing before the Civil Rights Act.” And so …

Risa Goluboff: Because the Civil Rights Act was 10 years after Brown.

Joy Milligan: Right. And so after spending a lot of time kind of with the Equal Employment Opportunity Commission files, thinking about Title VII spending, you know, a fair amount of time on that first project, which still remains in the background, has not been realized for me, I came across a memo written in June 1954 in the Office of Education's files.

Risa Goluboff: And Brown came down in May.

Joy Milligan: Yeah. And the subject of the memo was “What should we do about Brown?” Should we keep funding segregated universities and segregated elementary and secondary schools through what was called an impact aid program? You know, we have vocational education where we give grants to states for that. Um, a whole plethora of programs that were, without question, funding all sorts of segregated institutions in the South. And the answer in the memo was, “Well, yeah, the Constitution – we have a strong constitutional argument that we shouldn't, but we think we should just maintain the status quo for now.”


Joy Milligan: And it laid out a few potential paths, but I just found it, you know, wow, what a thing to have on paper! Um, and so that led me into kind of, across, uh, several agencies, kind of, searching out what they were thinking about in that kind of pre-Brown and then the period between Brown and the Civil Rights Act of 1964 – how they understood the Constitution to shape their role, if at all.

Risa Goluboff: And how did they? Tell us.

Joy Milligan: So, in the specific case in the Office of Education, I found a really conservative agency, an agency that really resisted implementing any kind of desegregation effort, even when, at times, they were getting orders from the White House itself and, kind of, in the face of both some statutory ambiguity and some constitutional ambiguity, reacting to the real incentives that surrounded them, which were kind of political incentives, pressure from Congress, pressure from their constituents, who they saw as kind of state and local education officials. And so to them, Brown and the abstract Constitution was really far outside of their, of their mission and their responsibilities.

Risa Goluboff: And so were you able to identify specific people who really drove that effort?

Joy Milligan: I don't have people like Cynthia has people. There's no one figure for me that I, I kind of zoomed in on, but possibly I could find those people. Part of it is just, you know, I started with the mindset that I was going to look at agencies as institutions. But I love, I love the human level of the story that comes across in Cynthia's work by focusing on Trescot.

Risa Goluboff: Cynthia, for you, do you feel like you made a choice between institutions and people and what would your project look like if you were to do institutions or how do you think about that question?

Cynthia Nicoletti: Yeah. So it's, it's really such a great question, and one of the reasons that I was really excited to do this podcast is, um, it really has started me thinking about what I have framed in my head as a non-choice, but is actually a choice.


Cynthia Nicoletti: Um, cause I, you know, when I think about my research, I, I tend to think, “Oh, the story just laid itself out. There it was. And I put the pieces together, but the pieces were all there and they were just, you know, looking for me to attach A to B.” But I'm thinking about the ways in which I constructed the story, um, and, uh, how exciting it must have been to find and read that memo.

Risa Goluboff: I was thinking that too!

Cynthia Nicoletti: Her story is just so rich. Um, I feel like she's got about 80 pages just chock full of – dare I say it – there are people in that story.


Cynthia Nicoletti: I, I should say I also spent some time in the National Archives looking at the IRS records. Um, so I, I have spent some time with agencies as well. But I didn't really conceive of it as a central actor, I think, in my story, the way that Joy did. I probably spent some time thinking, “Oh, this guy keeps writing a lot of letters,” right? I want to know more about that guy. Um, and, uh, I, I do think that, um, I, I have institutions in my story, but I think I deliberately made choices, um, not to play up the institutional structure. And I, I suppose that this does come from a place of thinking that individuals matter. I have been asking myself the question, um, just because the two of us are talking about this and because I read Joy's article and I thought, “Ooh, I could be that type of historian.”


Cynthia Nicoletti: I do think that the method is, to some extent, sort of wrapped up in, um, the way I want to tell the story, right? So I end, I end up thinking that the type of story I want to tell, because I kind of like gossip, kind of like historical gossip. I'm a big fan of individuals who are flawed. But I do think that that's also essentially a choice about the type of argument I'm going to make as well. And I want to make the decision more consciously than I have in the past.

Risa Goluboff: I'm curious for both of you, to what extent your training led you to those choices, right? To what extent, Cynthia, did your training lead you to put people first? And to what extent, Joy, do you think your training led you to think in more institutional terms?

Joy Milligan: Definitely for me. Um, I did an interdisciplinary law and social science Ph.D. I only had one historian on my committee and three political scientists and a sociologist. So, to the extent I think of myself as doing legal history, I do kind of situate myself in kind of ideas of historical institutionalism. Sociologists might call it that, or American political development, if you're a political scientist. But at any rate, you know, I was really trained to think, I'm going to look at structure and I'm going to look at institutions. But this is so fun for me, because I just love the people story, and I wasn't led to think about centering people to such a heavy degree, other than thinking of them in the abstract as kind of individual agents versus structure, you know, in a kind of social science schematic. I also love the gossip and the humanity of these stories. These could be movies!

Cynthia Nicoletti: This may be a little bit of a cop-out, um, but, I guess I think that the institution matters less. And I don't think that's an accident. But I wonder to what extent that is, um, a product of the historical time I'm writing about. So I could tell the story in the sense of institutional failure, right? So here I've got a person who manages to succeed in a sense because there is institutional failure. I'm also writing about the 19th century and I think it's something like seven employees in this part of the Treasury Department and they worked – and I think there's one guy who sort of works on the particular stuff I'm talking about. So I, I think that there isn't the depth of institution. I think that is part of the story. The, the question that you asked, Risa, about the training, I'm actually not sure about this cause I think this is maybe, maybe goes further back in my history than my historical training. By the time I went to graduate school, it was very much, you know, not in vogue to emphasize people, right? You're risking being sort of pigeonholed as, I don't know, somebody who's very old fashioned, who thinks about the great man theory of history or something like this, um, and I, I, I don't think that I was encouraged to do this, but I think it was more – it comes from a deeper love for history and why I wanted to be a historian in the first place. When I was a kid, I loved reading history and I loved sort of the stories, and that's what drew me to this in the first place. And, um, the narrative was something I really always loved, and I don't know that that was necessarily emphasized in training so much as, when I think about the historians I really admire – some of whom are on this podcast …


Cynthia Nicoletti: … um, I think about people who are able to have analytical depth and to be really good storytellers. So that was something I, I wanted to do, but it's a little bit against the grain in terms of the way legal history tends to be written.

Risa Goluboff: I totally agree with you. But I think of you as doing something slightly different from that, right? I mean …

Cynthia Nicoletti: Oh, tell me.

Risa Goluboff: … doing something different in lots of ways, but even just the people who you're talking about, right? I mean, Trescot is not a, a household name.

Cynthia Nicoletti: Yeah.

Risa Goluboff: You had to find him and, yes, he was an elite and a lawyer and Southern planter and all those things, so that makes him not the traditional character of, of social history, which I think is the thing in contrast to the history from above is more the history from below or social history. But at the same time, he's pretty obscure and you're identifying him as an actor who we didn't yet know about. So I, I'm curious, you know, where you do situate yourself in the from above/from below kind of world. And I think maybe this book is different from your first book where you were writing about Jefferson Davis, you know, a well-known historical figure, although even there, you were still writing about lawyers who were involved in his ultimately, withdrawn prosecution, who were also obscure.

Cynthia Nicoletti: Yeah, I guess I do think about my two projects as actually quite similar. I am always sort of looking for a story and I, I probably do start with the hunch of there's somebody behind this, right, that I feel like a lot of the, the stories that we tell ourselves about legal history and legal change that gets made, um, is probably made by some lawyer somewhere or, some legal actor, or legal actors, right?

Risa Goluboff: Yup.

Cynthia Nicoletti: One of the things that I'm actually really interested in is historical forgetting, uh, not just historical memory, but historical forgetting. And, and actually Joy's piece really is about this too, right?  We just assume that this was the decade of just full Brown implementation, full speed ahead, or at least after Brown II, right, that we have a path of how it's going to look. And she's recovering a story that has largely dropped out of our picture, and makes it easier to see how we got from A to B. It wasn't just an automatic development. And so I tend to think that there is somebody behind these stories, and I probably start with, there's a story out there, I'm looking to find it, but I guess I just don't believe in automaticness. Is that a word?


Cynthia Nicoletti: I tend to believe that there is human agency behind a lot of the stories that we think we know, but we don't actually really know, um, how it happened.

Joy Milligan: I do think so much of it is kind of choosing where to zoom in and at what level because, you know, the story of Trescot, like, we have a weak, early version of a civil rights agency here acting and being foiled. You know, we have the Freedmen's Bureau, in the background, ineffectual. And I might understand Trescot as kind of personifying, um, standing in for a white planter elite in South Carolina that hasn't been divested of power after the war. And so, you know, I feel like I'm seeing like pitting great political forces, and, um, particular political choices in the way that agencies are set up, against kind of backdrops of who are the power holders. Clearly, um, Black people are such a large part of the South Carolina population, but they are not wielding significant power in this story for what I see as structural reasons. And I think it's just that wanting to pull forward different threads, like, I love the story of Trescot, but for me it's a kind of failures of an institution and kind of a realpolitik of how little political rupture actually occurred by way of the Civil War at the national level.

Risa Goluboff: I was curious, do you think that audience or genre also affects these choices, or is it that these choices then affect audience or genre. So, you know, I can't help but notice Joy’s, uh, article is in a law review. Cynthia's is in a history journal. You know, Cynthia's is part of a book project. How do you think about who your main audience is? And does that affect how much you're thinking about narrative and telling stories versus how much you're thinking about, you know, an analytical point, or a, a legal institutional point.

Cynthia Nicoletti: I think that that makes a, a big difference. And I think, um, one of the reasons that I am choosing to write a book is that it allows me to have the room to really talk about individuals and to have stories where you really see, um, how something actually unfolded and you're in the room, which I think, um, a law review probably, um, gives you less room to do.

Risa Goluboff: Right.

Cynthia Nicoletti: Um, so I was thinking about Joy's article and, um, Ribicoff is a major figure. He – at one point he goes to testify before Congress and Adam Clayton Powell gives him, kind of, nudges him in a direction. He seems pretty passive, right? But I might have chosen to tell a whole story about Ribicoff being pushed and pulled, um, in, in particular directions, right? When does it become easier for him to go to path A – path A being the path where he says, “Oh, yeah we'll subsidize segregation because it seems harder to move,” and then after some nudging, it becomes actually harder to stay in the place they are, right? So that's why they end up being moved in one direction. But I feel like, you know, you end up telling a story where Ribicoff is pretty passive. And so I, I, I was thinking, um, I might want to tell a story like that, but I don't know that there's a place for that in a law review article.

Joy Milligan: So in some ways, I think it's just Joy learning to write a particular kind of article and sell it to law reviews and

Risa Goluboff: Virginia Law Review? [Laughing]

Joy Milligan: … right, to do multiple things, you know, just sort of that. And obviously a law review wants an argument-driven piece, so, of course, that played in. But, I don't know if the genre itself had that much of a, a kind of causal role. And I do think that eventually, I'll pull together a book about various agencies and their role in this kind of the prehistory of the Civil Rights Act. Um, so … you know, as I sit here, I'm like, you know, Ribicoff to me is not as interesting. He's just kind of a stand-in for a northern liberal, a democratic elite who's under kind of cross pressures. You know, there's White House pressure a bit. There's Adam Clay – you know, the vivid figure is Adam Clayton Powell, but he's already got, you know, a biography, his memoirs.

Cynthia Nicoletti: Right.


Cynthia Nicoletti: Can I just say something in response to this point, and actually something you brought up earlier? The fact that Trescot has the power, and, uh, you know, Black South Carolinians are not empowered, um, the way he is. And that there's structures rather than individuals at the center of that story. I guess I think that it matters that it's Trescot in that role rather than somebody else, right? So I think you need the structures in place for this to be the story. There aren't a whole bunch of Black lawyers sitting in Andrew Johnson's office, right? The way that Trescot sits there all day, every day. That makes a big difference, right? But I think it does take somebody like Trescot who is able to maneuver within that situation, right? So, um, he's smart and he's cunning and he has really thought through the whole strategy and I don't think that we could just slot somebody else in.

Joy Milligan: I mean, I agree with you. That sounds right to me. And to me, Trescot is like, you know, a policy entrepreneur or a legal entrepreneur, right? You know, to borrow, uh, some of the kind of social sciencey jargon. Um, he's making use of opportunity structures, right? Um, and it also occurs to me, you know, I said we're both telling stories of kind of the failure of racial repair, but your story is narrated as kind of like, it's a success for Trescot, right? So you have this active mover successfully manipulating the political context – political and legal possibilities that lay before him. But my story is about stasis until 1964. So I guess I would say, yeah, maybe, maybe when you, looking for these pivotal figures, perhaps, those kinds of talents and personal agency are most likely to come through when we see them triumph, right?

Cynthia Nicoletti: Yeah, that's interesting. I … I think maybe I disagree with that.


Joy Milligan: Ha!

Risa Goluboff: Go for it.

Cynthia Nicoletti: Yeah, because I think, um, this sort of goes back to Risa's initial framing, right, which was that you're telling a story of a  legal conservatism, right, and why it triumphs. And I think in my story, it takes some doing to make that conservatism actually happen, right? Particularly in my story, of course, I'm telling a story where there's a moment of real rupture, right? And to make things go back, at least to a large degree, um, the way they were, although, you know, not completely, that actually takes some doing, but because it ends up where we, we go back to something that looks more like the status quo, I think that this, this sort of goes to my point about, um, historical forgetting, right? That, that actually, that's a big movement, um, and we could have had a different outcome. But because it's going back to a status quo, it ends up looking more natural and less purposeful than I think it actually was. And your story could be something similar, right? Brown is, is a big rupture, and it could have been, a quicker and bigger rupture than it was. And it takes some people who are unwilling to move to ensure that that stays in place.

Joy Milligan: Yeah, I mean, it, it’s very interesting. I think it does bring forth where you and I kind of see, you know, we look at inkblots and we're seeing different things because, I can only think about my story in terms of how I think it through, but my story, the surprising part of my story is just that the federal government and the executive branch was so much a part of the story of stasis because we think of DOJ Civil Rights lawyers as kind of riding in on white horses eventually and enforcing Brown. And, you know, even being there on the side of, of the NAACP Legal Defense Fund at Brown itself. Um, but yeah, I, I, I guess I feel like if there were a number of figures who did what Trescot did inside the agency, the various agencies really, and the White House, that there were a lot of those people doing that work to keep things the same.

Cynthia Nicoletti: Yeah.

Risa Goluboff: So this seems to implicate questions of contingency and, you know, Cynthia, I think one of the things you're saying is because the status quo continues, it's hard for people to see that there was contingency and you're highlighting the contingency and saying, no, it could have been otherwise, but these people, you know, worked really hard to make sure it wasn't. And so, Joy, I'm curious, you know, how much contingency do you think is in your story or maybe more broadly when you're thinking about the other agencies and your larger body of work, does there have to be a kind of one to one relationship with a focus on people leads to contingency, a focus on institutions leads to less contingency, or is it – dare I say, contingent, that maybe Cynthia's landed where she has? And, and maybe I've prejudged the question, but I'm curious, you know, what is your take on contingency?

Joy Milligan: Um, I think I believe certainly in contingency and how things play out, at a relatively granular level. You know, the choreography of events, who says what and when it happens. I definitely believe in contingency, and because I also believe in the power of institutions and legal rules, I think that the way, perhaps contingently, at the outset, they get crafted, it sets us down paths, historical paths. I guess I just assign a lot of causal weight to those. And so when there's a lot of institutions and underlying, kind of, political forces lined up in one direction, it's unlikely I find that one person that's kind of the, the straw that breaks the camel's back in one direction or the other and pushes us onto the path at the level of the individual, but that's certainly possible, right?

Risa Goluboff: But there's some amount of over-determinedness that you're finding.

Joy Milligan: There's a lot of over-determinedness in my sense of things. But I don't foreclose the possibility that, um, I mean, I guess Cynthia, can I ask you a question, like, absent Trescot, do you have like a counterfactual world that you kind of think was viable? Maybe no state agent gets set up to do this pardon work and stop land redistribution in this way? Like, how do you think about his role and how much he matters?

Cynthia Nicoletti: So first of all, I'll say he's, um, he's got a little, evil group. So it's not just him.


Cynthia Nicoletti: But, uh, but I think he’s the prime mover in the group because he stays with this land redistribution thing for 30 years. But I do think that we would have had a different outcome, and yeah, I think that's bold, but I'll say it.


Cynthia Nicoletti: We would have a different outcome because I, I do think that he's really clever in terms of, you know, um – the piece really highlights his work with, with the executive, right, with, within the executive branch and the Attorney General's Office and the president, but, um, he’s simultaneously lobbying Congress, he's thinking about the courts, and he really thinks about strategizing, at the very beginning. And I think that he's, he's clever about it. Yeah, I think he matters.

Risa Goluboff: So I'm curious, given the differences that you have both in your training and in your kind of methodological approaches and in these questions of institutions versus people, how do you think about the relationship between past and present? How do you think about presentism? To what extent are you motivated by contemporary issues? Presentism has been a bad word for historians, though, some people are trying to reclaim it today. There are different ways to define it and think about it, so I’m, I’m curious what your thoughts are.

Joy Milligan: Well, I've made Cynthia go first so often. I mean, I think that part of not being kind of trained within a history department is perhaps it frees me to commit sins like presentism. So I hope it doesn't lead me to just like historical misunderstanding, but I value studying the past. Um, I worked as a civil rights lawyer before, um, going back and getting a Ph.D., so I'm deeply interested in how the past got us to kind of the racial present that we have, and how – how we live in kind of the, the ongoing conflict between large-scale historical forces. That's how I think of the world. That's how I teach law, as kind of outcomes in long-term ideological and deep fundamental, um, conflicts over both resources and ideas. I don't know, I have no, um, I have no kind of, uh, professional historian credential to weigh in and like revive presentism as that's okay. But I do think, it behooves all of us as a moral responsibility to think about how what we teach about the past shapes our understanding of why and how we end up, um, where we are as individuals and as a people now.

Cynthia Nicoletti: I do think of presentism as a sin.


Cynthia Nicoletti: Um, but, but I guess I think about it as a problem in a particular way, right? So I think if I wrote a history in a way that was me, you know, taking present structures and, imposing them on the past, that I think would be a problem, right? If I assumed that the structures and the individuals and the lawyers, right, worked the way that we think about, I think that's a big problem because then I'm telling a distorted story. And so I think I have to take them on their own terms and I really have to understand their world. And so that's where I think the main problem with presentism, um, comes in.

Risa Goluboff: Right.

Cynthia Nicoletti: I guess the second problem that might come in is if you're telling a distorted story about the past for the present. So I do think that we don’t really know this story and so we think one story about the past and that sort of informs how we think about the present. I guess I think that's a distortion as well. And I think it's important to have sort of a full understanding of this thing didn't just come into place automatically and that there's actually some human agency behind it. I think that that's actually something important to know about the present and particularly I think in teaching law students, that actually, you know, their actions matter and it's not as though, you know, things are just going to go some way and you don't really have power to affect it. I do think that knowing history can actually inform the present and the choices that we make in the present in important ways. But I guess what I struggle against is thinking that there's a one-to-one comparison because usually there is not. Um, you need work, I think, um, to draw analogies because they're often quite imperfect because the past does not really look like the present.

Risa Goluboff: So that brings me to another question for you, Cynthia, which is I know you are often asked to comment upon the present, in particular, in conversations about politicians’ threats to secede or states' discussions of secession, given your first book. How do you think about those requests? Do you weigh in? Do you not weigh in? Are you uncomfortable, but you do. You know, how do you engage in that desire for you to play a really contemporary role because of the history that you've written?

Cynthia Nicoletti: Great question. And I think it's something I do struggle with. I will talk about things that I know about. Um, I'm, I'm less willing to weigh in on something where particularly if it seems like somebody wants me to have a particular answer and it's something that I'm not really that deeply steeped in, you know, where I know things, I'm willing to share, um, my thoughts on the present, and it's interesting because it was not – it was certainly not in my head when I wrote a book about secession and that touched on section three of the 14th amendment, um, and potential disqualification from office, as a result of engaging in insurrection. I was not anticipating that this would become a live question anytime soon.

Risa Goluboff: There's that too. Yep.

Cynthia Nicoletti: So I do think that the history informs how we think about those questions today. But again, I don't think that it offers a complete answer, which sometimes, people who are interested in questions about today are frustrated by that answer, that I have partial answers, but not a full one.

Risa Goluboff: I totally get that. So Joy, what about you? How do you think about how you bring your historical work into contemporary issues?

Joy Milligan: Just as Cynthia pointed out, you know, there's these choices we make in how we, uh, do history. There are always kind of legal and political actors that want to draw upon historical work for their own choices, their own ends. And I think it's kind of a difficult and interesting question to think about what the author of the work owes in terms of, kind of pushing back when their, when their work might be misused. I guess I'm thinking also about, you know, the current court is heavily into history, but, you know, history for particular purposes, choices about how to interpret the Constitution. So I can be a huge fan of history but disagree with kind of the, the uses to which it's put.

Risa Goluboff: I could continue this conversation all day. It's just fascinating. And I love hearing the two of you talk about your work and your craft and have this conversation together. So thank you so much for being here.

Cynthia Nicoletti: Thank you for having us, Risa.

Joy Milligan: Thank you, Risa. This was really fun.


Risa Goluboff: That wraps up this episode of Common Law. If you want to find out more about Joy Milligan and Cynthia Nicoletti and their work, visit our website, Common Law Podcast dot com. There you'll also find all of our previous episodes and more. We hope you'll join us next time to hear another free exchange and more explorations of how law shapes our lives. I'm Risa Goluboff. Thank you for listening.


Credits: Do you enjoy Common Law? If so, please leave us a review on Apple Podcasts, Stitcher, or wherever you listen to the show. That helps other listeners find us. Common Law is a production of the University of Virginia School of Law and is produced by Emily Richardson-Lorente and Mary Wood.