Un-making Law: the Classical Revival in the Common Law
| Publication year | 2004 |
| Citation | Vol. 28 No. 01 |
The common law-the law of contracts, torts, and property-is in the throes of a potentially remarkable transformation.(fn1) The transformation is pervasive; many changes already have been adopted, more are in process, and still more have been proposed. If they all come to pass, the law will have experienced a once-in-a-century remaking. More precisely, we may be observing the "un-making" of law, to use Stephen Sugarman's phrase,(fn2) as the principal common-law developments of the twentieth century are rolled back. In this sense, the changes are both radical and regressive, representing a classical revival, instituting in the twenty-first century common law a barely updated version of the classical law that reigned in the Gilded Age at the end of the nineteenth century. Even more broadly, the changes in the law and the vision that animates them are part of a more general transformation of American government and society.
This article describes the possibility of a classical revival in the common law and situates the revival in its historical context. Part I sets the stage by briefly summarizing a century and a half of common-law development. At the end of the Nineteenth Century, classical legal thought envisioned a highly systematic body of law through which courts could mechanically apply abstract legal concepts to reach determinate results, producing limited liability in contract and tort law and expansive property rights. Critics beginning with Holmes and notably including Progressives and legal realists attacked classical law as incomplete and incoherent. Their critique was absorbed into the mainstream of the law, and by the 1970s a new body of neoclassical law was dominant.
Part II describes the changes already adopted and currently proposed in contract, tort, and property law-the un-making of neoclassical law-and the distinctive structure and method of the classical revival. In contract law, the classical revival aims to reinstate the principle that courts should simply enforce the contracts people make, through formalistic rules of formation and interpretation, and should not impose terms or evaluate the fairness of bargains. In tort, the revival seeks to restore corrective justice based on fault as the prime objective by rolling back the generalization of liability for negligence, narrowing products liability, and reducing the scope of compensatory and punitive damages. In property, the revival focuses on expanding the law of takings to limit the ability of the government to regulate property owners in pursuit of the common good. All the individual changes fit within a broader structure in which the boundaries among contract, tort, and property are sharply defined, the market-focused subjects (contract and property) are primary, and a revived formalist method is prescribed for judicial decision.
The conclusion synthesizes the ideology of law, market, and society that animates the classical revival, and situates the common-law changes in their contemporary political context. The classical revival represents an attempt to resuscitate the long-discredited ideas of classical legal thought. This remarkable fact is best understood in this context: The unmaking of the common law is part of the effort by conservatives and business interests to elevate the market and diminish the government.
I. Origins: Classical Legal Thought and Critique
Contracts, torts, and property have ancient origins, but most of their history is barely relevant to understanding modern law. The story really begins with classical legal thought, the body of law usually seen as dominant from 1870 to 1920. Thomas Grey writes that "classical orthodoxy is the thesis to which modern American legal thought has been the antithesis,"(fn3) but there is a better way to put it. Classical legal thought is the thesis, and the combination of sociological jurisprudence, legal realism, and related Progressive ideas comprise a critique that is the antithesis of classicism. Thesis and antithesis are resolved to a considerable extent in the synthesis of modern law, the law that begins to take shape after World War II and achieves its mature form in the 1970s. Because in this resolution the critique supplemented and modified classical law but did not supplant it altogether, this modern body of law is often called "neoclassical law."(fn4)
Classical legal thought once was seen as the age of
Grey defines the three essential characteristics of classical legal thought:
The substantive vision of classical legal thought is a world of independent individuals, each of whom acts within a broad sphere of legal autonomy to pursue his own self-interest. The role of government is precisely defined and narrowly circumscribed. The legislature has limited authority to regulate narrowly and traditionally defined harmful activities. The courts, applying a complete, coherent, and formal body of law, police the boundaries of legislative authority and define the ground rules for interaction among private individuals, namely, the rules of contract, tort, and property.
Classical contract law described a broad realm in which individuals could exercise their autonomy by consenting to agreements with other autonomous individuals. Individuals could accept the liability of an enforceable contract by exercising consent and could be free from liability unless consent had been exercised. The entire body of contract doctrine flowed from this single principle. Grant Gilmore's characterization that it was almost impossible to get into a contract and, once a contract had been created, almost impossible to get out of, is exaggerated but suggestive.(fn9) Formation rules required that there be an identifiable moment at which the parties' consent matched to create a contract; the metaphor of a trap being set and sprung is still used in contract classes. Prior to the moment when the contractual trap was sprung, the individual had no contractual liability. To spring the trap, agreement had to be clear and definite. Because the model for consent was the market transaction, the doctrine of consideration-"the balance-wheel of the great machine"(fn10)-required that the agreement contain the expression of an exchange. This requirement limited potential liability by rendering gratuitous promises unenforceable. At the moment the trap was sprung, liability attached and excuses for nonperformance were limited. The agreement presentiated the terms of performance and the events of breach, so interpretation questions could be resolved by adverting to the plain meaning of the contract. When a breach occurred, it violated the expectation created by the agreement and damages could be quantified by referring to that expectation. Because of the paradigm of the market transaction, expectation damages for the economic equivalent of loss was the ordinary remedy and specific performance was rare. The binary nature of liability (either a contract had been consented to or it had not) precluded the award of alternative measures such as reliance or restitution damages.
While contract law defined a broad scope of individual autonomy, tort law encompassed a much narrower realm in which the law recognized liability for harm wrongfully committed.(fn11) Tort liability, unlike contract liability, was not created by the consent of the parties, but neither was it imposed by the courts. Instead, tort law was corrective justice through which the law provided recompense when one person caused injury by invading the preexisting right to bodily security held by another person. For liability to be imposed, corrective justice required that the defendant must have been at fault and must have caused the injury. In classical tort law, each of these elements had a fixed meaning. Fault quickly became identified with negligence, and negligence with the failure to adhere to objective standards of conduct. The widespread American rejection of
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