American Law in the Twentieth Century.

AuthorParrish, Michael E.
PositionBook Review

American Law in the Twentieth Century. By Lawrence M. Friedman. * New Haven: Yale University Press, 2002. Pp. 722. $35.00.

In this appraisal of Lawrence M. Friedman's American Law in the Twentieth Century, I begin in Part I with a survey of the several "schools" of American legal history that have risen to prominence in the years since World War II, utilizing a suggestive framework first offered by Professor Stephen Presser two decades ago. In Part II, I discuss Professor Friedman's intellectual debt to Willard Hurst, as well as his previous scholarly efforts to synthesize major developments in American law over the last century. Part III assesses the organizational framework, methodology, and interpretations of evidence offered by Friedman in the present book, while Part IV provides a critical discussion of these strategies. Part V raises the question of the relationship of American legal history to what has been characterized, and criticized, by some historians as "Whig" history, and offers a final assessment of Friedman's newest volume.

  1. LEGAL HISTORY AND LEGAL HISTORIANS

    Two decades ago, as the second wave of post-World War II American legal history crested, (1) Professor Stephen B. Presser of Northwestern University School of Law surveyed its impact, categorized its major practitioners, and suggested how such historical studies might contribute to the traditional law school curriculum. (2) Presser began his inquiry with a sketch of what he called "the core values" of American legal history, and proceeded to analyze the works of four contemporary groups of legal historians whose general interpretative approach exhibited a commitment to one or more of those values.

    Presser ranked the core value of the "rule of law" first on his list, and defined it as the belief that "any compulsion in the society must not take place arbitrarily, but must be subject to some restraints." (3) This is an idea embodied in the concept of due process and those limitations upon official power enshrined in written constitutions and bills of rights, guarded by an independent judiciary.

    Presser listed "popular sovereignty" second among the core values. This he defined as the belief that "the best way to prevent the exercise of arbitrary power is to disperse political power as widely as possible and to lodge ultimate sovereignty in the citizenry." (4) Rooted in republican ideas of representative government and the structure of American federalism, popular sovereignty emphasized, in addition to limitations upon arbitrary power, the necessity for law to reflect closely the dominant social opinions. It tended therefore to privilege the role of legislatures and statutory law as the authoritative expression of the people's will.

    In the nineteenth century, beginning in the pre-Civil War era of universal male suffrage, American lawmakers forged a third enduring core value, which Presser described as the commitment to the "maintenance of maximum economic opportunity and social mobility." (5) Echoing President Jackson's attack on the Second Bank of the United States (6) and Chief Justice Taney's opinion in the Charles River Bridge case, (7) legislators and judges attacked special legal privileges, rejected social deference as a remnant of arbitrary power, and encouraged "individuals to accumulate wealth and rise in social standing and commercial power." (8)

    Finally, according to Presser, nineteenth- and twentieth-century lawmakers promoted a fourth core value as a further restraint upon arbitrary power and a source of social mobility: "maximum protection and promotion of private interests and initiatives," (9) an ideal with roots in the eighteenth-century struggles over religious liberty in Virginia, (10) and which reached its zenith in the freedom-of-contract doctrine around the turn of the last century (11) and the right-to-privacy debate during the 1960s and 1970s. (12)

    Presser's most important insight stressed the enduring historical conflict among the core values. The rule of law, for instance, often warred with popular sovereignty, especially when juries engaged in nullification (13) and courts invalidated legislative acts on constitutional grounds. (14) A strong presumption in favor of "maximum protection and promotion of private interest and private ordering" could clash with an equally powerful devotion to "maximizing economic opportunity and social mobility." Under the common law and antitrust statutes, "freedom of contract" ended where "restraint of trade" began. (15) And private ordering, rooted in religious belief and practice, could tromp laws designed to promote economic opportunity and social mobility through mandatory school attendance. (16)

    After this sketch of core values, Presser analyzed the scholarship of many legal historians by placing them into four corresponding interpretative clusters, which he labeled the "conservative school," the "Wisconsin school," the "radical transformation school," and the "heroic school." (17) Members of the conservative school, according to Presser, stressed the continuity and stability of the American legal system--above all the belief that, from their perspective, American law "followed an orderly evolution according to fixed intellectual principles," with its development "predominantly ... proceed[ing] according to certain neutral principles." (18) So although the substance of law changed over time, "the basic principles ... have not changed." (19)

    Presser pointed to Oliver Wendell Holmes, Jr., and Roscoe Pound (20) as the founding fathers of the "conservative school," while G. Edward White had become its "latest proponent" as a scholar who contended that "certain legal principles--mostly procedural ones--circumscribe the role of judges and ensure that they adhere to a coherent `American judicial tradition.'" (21) These scholars, who stressed the rule of law, placed "primary emphasis on intellectual judging paradigms" and relegated "economic, political, and social influences to a secondary level." (22)

    If Holmes's The Common Law and Pound's The Formative Era of American Law represented foundational texts of the conservative/rule-of-law school, J. Willard Hurst's Law and the Conditions of Freedom in the Nineteenth-Century United States (23) occupied a similar status for the "Wisconsin school," so named because Hurst and scholars influenced by him, notably Lawrence Friedman, either studied or taught at Madison's state university. Instead of placing an emphasis upon the intellectual structures that shaped and gave consistency to judicial behavior, for example, the Hurstians, according to Presser, viewed "economic needs as the primary determinants of law" and rested their interpretations "primarily on the third core value ... of maintaining maximum economic progress and social mobility." (24)

    Hurst and his followers argued that American lawmakers had seldom displayed strict adherence to doctrinal consistency or the rule of law. Instead, they had been willing to bend or abolish "even the most fundamental principles or tenets of legal doctrines in the promotion of economic progress," (25) as they pursued what Hurst labeled "the release of energy." (26) At least in the first half of the nineteenth century, Hurst claimed, American law privileged "dynamic" property rather than passive, rentier interests. (27) In place of a conservative consensus rooted in immutable legal principles, Hurst suggested that the promotion of economic progress and social mobility sprang from popular sovereignty and a "societal consensus" on appropriate values. (28)

    Morton J. Horwitz, the most vigorous proponent of the "radical transformation school," agreed with the Hurstians that American lawmakers crafted legal roles to promote economic development, but he spurned the belief that these profound changes in doctrine rested upon a broad societal consensus. Rather, an elite of strategically placed lawyers, judges, legislators, and treatise writers, all responsive to the claims of commercially minded entrepreneurs, forged new rules of tort, contract, and property that overwhelmed the claims of farmers, artisans, and small shopkeepers. (29) This legal coup d'etat in the first half of the nineteenth century advanced economic inequalities soon confirmed by the post-Civil War triumph of legal formalism. In Horwitz's legal history, Presser argued, the ceaseless quest for development maintained social privileges and usually trumped popular sovereignty.

    Presser identified a fourth "heroic school" of legal historians, represented by Grant Gilmore, (30) Leonard Levy, (31) and Robert Cover, (32) whose writings emphasized the impact of individual personalities upon legal development and how the "psychological and philosophical problems of the human condition determine their subjects' legal behavior more than do the means of production or economic development." (33) Often employing the method of biography, "heroic school" scholars probed how particular legal actors sought to reconcile conflicting aspects of both personal and legal values. They shared with the conservative school a preoccupation with the internal intellectual and emotional world of their subjects, but their focus upon conflict made them "better equipped to account ... for all the inconsistent core values in American law." (34)

    Professor Presser's suggestive framework of core values and interpretative schools did not exhaust, either in 1982 or in the decades since, the possibilities of conceptualizing the many approaches to American legal history. With a heavy emphasis upon scholarship that focused on the nineteenth-century transformation to capitalism, his survey paid little attention to either the colonial period or the twentieth century. And apart from Horwitz, it ignored virtually all of the legal history research then associated with the Critical Legal Studies movement. (35) While he recognized that American legal history had become a mansion of...

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