Stanley Kutler, American Legal Historian

Stanley KutlerThe obituaries for Stanley Kutler, a retired University of Wisconsin professor who passed away on April 7, tended to stress Kutler’s large role in obtaining public access to the Nixon Watergate tapes. Only 63 hours of those tapes had been released before Kutler’s lawsuit against the National Archives and Records Administration, but his efforts resulted in the release of more than 3,000 additional hours. Kutler and other scholars were then able to use material on the tapes to detail the Nixon Administration’s frequent and sometimes shocking abuses of political power.

Unfortunately, the obituaries largely overlooked Kutler’s decades of extraordinary work as a legal historian. His numerous books and articles include Judicial Power and Reconstruction Politics (1969), Privilege and Creative Destruction: The Charles River Bridge Case (1971), and American Inquisition: Justice and Injustice in the Cold War (1984). All of these works explored specific cases in the context of broader historical movements. The facts and social complexities of the cases were always more important for Kutler than were the rules and corollaries spouted from one appellate bench or another.

Kutler’s work as a legal historian placed him at the center of the “new legal history” that emerged during the 1960s. Inspired and led by Kutler’s fellow University of Wisconsin historian Willard Hurst, this school of legal history rejected the older idea that the history of legal doctrine could and should be studied unto itself. Kutler and his intellectual compatriots thought law only made sense if its interplay with politics, social change and economic transformation was taken into consideration.

The results of the “new legal history” were often profoundly and quite beneficially revisionist, and in the present the “new legal history” is the norm. Indeed, one would be hard-pressed to find a professional, academic legal historian studying and writing about the history of the law without reference to what goes on all around it and gives it meaning. The late Stanley Kutler was a major force in making the study of American legal history a thoughtful and intellectually sophisticated undertaking.

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