Patterns of American Legal Thought

PATTERNS OF AMERICAN LEGAL THOUGHT

_____

G. Edward White

New Orleans, Louisiana

Patterns of American Legal Thought

Smashwords edition. Copyright © 1978, 2010 by G. Edward White. All rights reserved. No material in this book may be reproduced, copied or retransmitted in any manner without the written consent of the publisher.

Originally published in print in 1978 by The Bobbs-Merrill Company, Inc., Charlottesville, Virginia.

Published in the 2010 digital edition by Quid Pro Books.

ISBN-10:  1610270177

ISBN-13:  9781610270175

Quid Pro, LLC

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Publisher’s Cataloging-in-Publication

White, G. Edward.

  Patterns of American legal thought / by G. Edward White.

    p. cm.

    Includes index.

ISBN:  1610270177 (ePub edition, 2010)

ISBN-13:  9781610270175 (ePub edition, 2010)

ISBN:  0672834170 (original hardback edition)

1. Legal history—United States.  2. Law—United States—contract law.  3. Law—United States—constitutional law.  4. Law—United States—tort law. I. Title.

Table of Contents

Foreword

Introduction

About the Author

Chapter 1: Some Central Themes of American Law

Book Review of Lawrence M. Friedman, A History of American Law

The Path of American Jurisprudence

The Appellate Opinion as Historical Source Material

Chapter 2: Scholarly Thought

From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America

The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change

The Intellectual Origins of Torts in America

Chapter 3: The Judiciary

The Rise and Fall of Justice Holmes

Allocating Power Between Agencies and Courts: The Legacy of Justice Brandeis

Chapter 4: Constitutional Law

The Supreme Court’s Public and the Public’s Supreme Court

Constitutional Protection for Personal Lifestyles

Conclusion

Index

For John F. Davis

in memory of Valre T. Davis

ACKNOWLEDGMENTS

This book is unusual in that it did not originate with the author, but with others who persuaded me to group some of my essays and to issue them as a unit. I assume, as the persuaders have argued, that a number of readers may not have had access to the essays before; and I hope that those persons may find something of value in them.

I am indebted, as I have been on several previous occasions, to my friends and colleagues William H. Harbaugh, Charles W. McCurdy, and J. Harvie Wilkinson, III. I am also grateful for the interest in the book of Charles Huxsaw and Ward Sims of Michie/Bobbs-Merrill, and for the editorial help of Frances Warren and Richard Thiele.

My family, Susan Davis White, Alexandra V. White, and Elisabeth McC. D. White, provides the emotional base from which my work emanates. That I admire and respect John F. Davis and shall miss Valre T. Davis is vouchsafed in the dedication. George L. White and Frances McC. White are a continuing source of pride for me.

G.E.W.

Charlottesville

August, 1978

FOREWORD

There is absolutely no point in setting up a separate category of legal writing (or law teaching) to be known as ‘legal history,’ Yale Law School’s Professor Grant Gilmore wrote (p. 146) in his recent, interesting and lively The Ages of American Law (1977). Too late, Professor Gilmore, Legal History exists. Gilmore’s own Ages attests to its presence, and the compiler of Patterns in American Legal Thought, Professor G. Edward White of the University of Virginia Law School, agrees.

Legal historians’ sophisticated, vigorous, and useful inquiries into the history of American law, including legal thought and concepts, currently exhibit a broad-swinging relevance and sparkle that, ten or fifteen years ago, hardly seemed likely to develop. Indeed, it seems clear that, to paraphrase a recent ex-President of the United States, soon no one will be able justifiably to kick American Legal History around any more. To be kicked around, in the sense of not being considered a respectable area for research and teaching was the fate and condition of American Legal History for a very long time.

Two decades ago, Daniel J. Boorstin, now the Librarian of Congress, characterized American Legal History as a dark continent. He speculated gloomily that it would remain dim for at least half a century. In 1962 New York University Law Professor John Reid noted unhappily that editors of the nation’s major legal periodicals refused to allot review space to what soon became recognized as one of the decade’s — indeed, the century’s — most important Legal History analyses, James Willard Hurst’s Law and Social Process in United States History (1960). Reid complained further that when the American Society for Legal History, the only professional association of law-focused historians and history-centered lawyers, wished to honor preeminent legal scholar Roscoe Pound, it could not find a volume of essays in legal History worthy to present to him. White in 1973 echoed this dour refrain noting that an outstanding characteristic of American legal history in the twentieth century has been the relative absence of scholarship.

Nevertheless, the condition and practice of Legal History and Legal Studies have drastically improved. The three factors primarily responsible — the tenacity of legal historians, the outpouring of their research in quality publications, and the fruition of their calls for curricular reform — are the themes of this Foreword.

The first theme is a tribute to White and other scholars of History and Law who kept the Legal History faith. Even though the scholarly quality of legal history was largely unrecognized, these stubborn, dedicated practitioners continued in their almost defunct specialty. The problems they encountered were legion. With the exception of the decisions and personalities of the United States Supreme Court, other historians studiously ignored the law and its institutions. Simultaneously, the presentist bias of legal training seemed to belittle the importance of history to lawyers.

A further impediment was the division between law and history that had grown up on campuses nationwide. This chasm separated even the small number of law school faculty interested in history from History Department colleagues concerned with the law; general university libraries (and library budgets) from law libraries, to the detriment of both; courses in Constitutional History from political science courses in high court decisional Constitutional Law. Legal History rarely found welcome in any academic departments — History, Law or Political Science — where logic would place it; legal historians were rarely welcomed if they strayed outside their department of formal affiliation.

Happily, reports of Legal History’s final or total demise proved to be exaggerated, and the separations are diminishing. In large part resuscitation occurred and is occurring because legal historians, including some premature mourners, worked diligently in terms of research, writing and innovative inter-disciplinary law-history curricula development. Had these busy lawyers and historians merely complained about the need for Legal History research and curriculum innovation, odds are that their peers would have continued indifferent to Legal History or, at best, maintained their view of it as an immature or senile sub-discipline, worthy only of dilettantes’ attention. Instead, their achievements transformed complaints into programs and concerns into scholarly adventures.

The second theme is, then, the praiseworthy body of major books, essays, and articles in Legal History, broadly defined, that in the last decade and a half have enriched the field. This outpouring of talent, research skills and persistence, and blessedly often, high literary quality, would score well on any qualitative scale.

As examples of the volume and the quality, in 1971, Perspectives in American History, the annual compendium publication of Harvard’s Charles Warren Center for Studies in American History, dedicated that issue to the theme Law in American History. Two years later, Bernard Schwartz’ Law in America: A History and Lawrence M. Friedman’s A History of American Law came into print. Both books attended to the law as a profession, to legal education, and to public policy effects on the law as well as the law’s impacts on society. In short, as White notes in his review of Friedman’s book that forms the first essay in Patterns, American Legal History was moving toward healthy maturity.

Interest in the history of the American legal profession and of legal thought proved to be durable; the scholarship, impressive. The bicentennial year was graced by Maxwell Bloomfield’s American Lawyers in a Changing Society, 1776-1876 and Jerold S. Auerbach’s Unequal Justice: Lawyers and Social Change in Modern America. As noted earlier, Grant Gilmore’s Ages of American Law appeared in 1977, and journals were sensitive to the merits, and failings, of this concise, effective and iconoclastic consideration of its complex subject. James Willard Hurst’s 1960 book could not find law review space; Hurst’s 1977 Law and Social Order in the United States faced no such bland rejection. And Morton Keller’s Affairs of State: Public Life in Late Nineteenth Century America takes public law history to frontiers of social and institutional analysis that a de Tocqueville, Bryce, or Beard would have recognized and applauded.

These able, literate, and informative considerations received impressive reinforcement in White’s 1976 book, The American Judicial Tradition: Profiles of Leading American Judges. In harmony with present broad ideas of what constitutes Legal History, White’s American Judicial Tradition attends to the judicial function and property rights in the chapter on Kent, Story, and Shaw; to state judges as well as national; to judges’ concepts of freedom in addition to their decisions and opinions in civil liberties cases.

White has exhibited similar concerns in his periodical scholarship from 1971 to 1977. His Evolution of Reasoned Elaboration and From Sociological Jurisprudence to Realism, both appearing in Patterns, are effective arguments in favor of the need to know the historical contexts of significant judicial decisions and opinions. The peril in ignoring context — history — is that the several approaches toward the appellate judicial function, including the twentieth century’s Realism and Reasoned Elaboration, are unlikely to be understandable save as slogans, without gauges supplied by Legal History.

White’s essays on Oliver W. Holmes, Jr. and Louis Brandeis, in Patterns, speak again to this essential point. In addition to the biographical insights he offers on the men, White illuminates also the judicial, legislative and administrative interventions designed to cope with modern entrepreneurships. How we allot decisional power between courts and administrative agencies is a delicate and highly significant question. Of comparable significance is one of White’s subjects in the area of civil rights and liberties. White (with J. H. Wilkinson) in Constitutional Protection for Personal Lifestyles, also in Patterns, attends, as few commentators have, to intimate discordances-become-constitutional issues, such as hair and/or dress codes, homosexual relationships, and other unconventional lifestyles touched by state laws, but imperfectly accommodated by constitutional law.

Legal History scholars have also analyzed technical aspects of substantive law. In this arena the impressive oeuvre of Lawrence M. Friedman requires special note. Friedman’s 1965 Contract Law in America: A Social and Economic Case Study was succeeded by his History of American Law and by a pride of scholarly periodical articles (in both law and history journals), on legal culture and social development and on the history of law reform, tenement house legislation, testamentary instruments and industrial accidents. White’s Intellectual Origins of Torts in America, reprinted in Patterns, Bruce Ackerman’s Private Property and the Constitution (1977), and William B. Scott’s In Pursuit of Happiness: American Conceptions of Property from the Seventeenth to the Twentieth Century (1977) are other examples of this increasingly engaging arena of Legal History. Furthermore Morton Horwitz’s The Transformation of American Law, 1780-1860 (1917) received this year’s Bancroft Prize, a preeminent mark of professional historians’ esteem. What a contrast to 1960! Legal History may not yet have come fully of age. But it has clearly come a very long way.

The third theme in which White’s Patterns of American Legal Thought is likely to play a prominent role — is curricular innovation and the supply of derivative teaching materials. Increasingly across the academic nation, historians are enriching undergraduate Constitutional History courses with Legal History content, History Departments are offering separate Legal History courses, and full-fleshed interdisciplinary Legal Studies efforts are coming into being. The Legal Studies programs are not designed as pre-law curricula. The philosophical, pedagogical justification of the non-prelaw stress in Legal Studies curricula is that, in Legal History, a viable humanistic-social science discipline exists that is not merely a pre-professional skill accumulation. In short, the scholarly literature of Legal Studies, including Legal History, is more than merely adequate or respectable on its own terms.

On the graduate level, in addition to orthodox MA/PhD offerings in Legal History, several impressive interdisciplinary joint programs have developed recently involving a Humanities and/or Social Science discipline and Law. These joint programs lead commonly to JD degrees, and a Humanities or Social Science advanced degree (MA or PhD) in Anthropology, Economics, History, Management, Philosophy, Political Science, or Sociology. There are great rewards to be won from such joint graduate programs. Done well, they can enrich the law student and widen greatly the horizons of the non-lawyer participant. The weights, wear, and strains involved in the conception and administration of these joint programs are not light or minor. But the benefits to persons, institutions, and scholarship are worth the costs.

One of the most difficult tasks in creating a viable under-graduate or graduate interdisciplinary Legal Studies program has proved to be the absence of appropriate classroom teaching materials. Until recently there were virtually no courses in Legal History or Legal Studies. Law publishers paid no attention to non-Law parts of campuses. Unsurprisingly, non-Law publishers did not invest funds for preparation of texts or compendia, in the absence of a buying public represented by Legal History-Legal Studies courses.

This hesitation is lessening. The American Bar Association has created a Commission on Undergraduate Education in Law and the Humanities. The primary initial goal of this most promising office is to encourage development of appropriate curricular materials. What is important, and exciting, is that Legal History and Legal Studies courses should, in a reasonably quick pace, enjoy unprecedentedly rich teaching materials; these courses are already enjoying substantial enrollments.

Scholars and publishers are also demonstrating an interest in producing new books suitable for class use. Wythe Holt’s 1976 compendium, Essays in Nineteenth-Century Legal History (Greenwood) led the way. It is a useful assembly of articles of diverse authorship, drawn from both Law and History journals. These essays attended to historical dimensions of four major arenas of Legal History: schools of Legal History thought, substantive and procedural law, constitutional issues, and the legal profession. An interesting and iconoclastic introductory essay by Professor Holt, Now and Then: The Uncertain State of Nineteenth-Century American Legal History, offers ideas and insights on the people, institutions, and prospects involved in the included research and writing.

Another, larger compendium of articles of diverse authorship, assembled by Lawrence M. Friedman and Harry N. Scheiber, American Law and the Constitutional Order: Historical Essays came into print in 1978. Unlike the Holt compendium, it covers all of American history, not only the nineteenth century. The Friedman-Scheiber volume’s author roster is a Who’s Who among eminent practitioners in Law and History; the articles are proved founts of ideas and correctives.

It may be, however, that both the Holt and the Friedman-Scheiber compendia will prove to be too ambitious in the number of themes embraced, too costly for students, and, by reason of multiple contributors, too uneven in literary style, pace, and emphases, for continuing use as classroom textbooks. By contrast, White’s Patterns of American Legal Thought is a compilation in which all the constituent articles are by one author, the compiler. After an introductory thematic section, White’s three themes on major schools of Legal History scholarship, aspects of judicial and jurisprudential history, including administrative agencies, and constitutional law history, are examined in ten article reprints.

Patterns offers to the swiftly-growing Legal History and Legal Studies audiences these splendid articles plus connective analytical headnotes by White. The articles were conceived and composed during the years that White conducted the research for, and wrote, The American Judicial Tradition; years when he also participated vigorously in developing the University of Virginia’s eminent interdisciplinary Law and History programs. White has therefore brought to Patterns the insights that original research sometimes provides, the experience that classroom utilization of original research too infrequently allows, and, blessedly, the humility and good humor that permit him to applaud Gilmore’s view (p. 11 in Ages)’. In Heaven there will be no law, and the lion will lie down with the lamb... In Hell there will be nothing but law, and due process will be meticulously observed.

To return to the comment with which this Foreword began—There is absolutely no point in setting up a separate category of legal writing (or law teaching) to be known as ‘legal history’—I repeat my conviction. Gilmore is not only too late, but incorrect. Legal History exists because some historians are incurably law-minded and some lawyers and judges are history-minded. The fact that all legal materials were created in the past, as Gilmore noted, has not, with rare exceptions, imbued jurisprudents with the historian’s sense of disciplinary limitations. White’s Patterns of American Legal Thought adds a necessary dimension, the recreation of thought about significant legal subjects.

May 1, 1978

Harold M. Hyman

William P. Hobby Professor of History

Rice University

Houston, Texas

INTRODUCTION

The essays reprinted in this volume represent nearly a decade’s work in legal history, jurisprudence, and constitutional law, and I appreciate the opportunity to gather them together under one roof. It is one thing to have portions of one’s scholarship assembled, however, and another thing to explain its unities and continuities. It is pleasant to imagine that one’s work has an overarching purpose, and with the advantage of hindsight I have been able to identify what seem to me to be some controlling themes. But I confess that to some extent my decisions to explore one or another area of scholarship have not been fully conscious. I have written about subjects and topics that seemed important to me at the time; in retrospect, several still do, although I would not now agree with everything I have said.

Three themes in the history of American legal thought are touched upon in this book. One is the importance of the community of legal scholars in shaping the course of substantive law. I have found that throughout most of American legal history the tacit convictions of groups of scholars have exercised a powerful influence on the direction of scholarly research, and the directions taken by legal scholarship have in turn influenced the doctrinal content of American law. My thinking about the nature and significance of scholarly writing has altered somewhat over the years spanned by this volume, but my conviction remains that legal scholarship is a fertile, though underemphasized, source of insights about the history of law in America.

A second theme of the essays is the significance of the judiciary in American jurisprudence. Edwin Patterson, nearly forty years ago, argued that in the American view judges are perceived of as the center of the juristic universe,* and I am inclined to agree. To say that judges have occupied a prominent place in the history of American legal thought is not to minimize the contributions of other entities, such as groups of scholars or legislatures or administrative agencies. It is rather to suggest that Americans have regularly regarded judges as significant oracles, shapers or makers of law, and have cloaked them with the special sort of heroism or villainy we reserve for officials who are thought to be capable of affecting all our lives.

Finally, these essays stress the importance for American legal thought of a Constitution with a large accompanying body of interpreted case law. From a comparative perspective, the American Constitution gives our jurisprudence a distinctive character. No other nation has had a history of competing and complementary spheres of law similar to that of the United States. Since the origins of the Constitution one sphere of law, constitutional law, has been designated as supreme, but its boundaries have never been fixed. Other nonconstitutional spheres of law, such as common (judge-made) law, legislative law, executive and administrative law, and even the unofficial laws of private groups have coexisted with constitutional law, and the capacity of any of these nonconstitutional spheres to become constitutionalized has varied dramatically with time. The presence of a Constitution as a nebulous but fundamental source of law has thus significantly affected the course of American legal thought.

The structure of this volume reflects its thematic emphasis. The first chapter of essays presents a brief overview of each of the themes subsequently discussed. Chapters Two, Three, and Four then explore, in more detail, various patterns of American legal thought. Chapter Two focuses on scholarly writing; Chapter Three on the judiciary; and Chapter Four on constitutional law.

The patterns and themes discussed in this volume should not be regarded as defining the major features of American legal thought. Willard Hurst, the most influential legal historian of his generation, called in 1960 for research on legislative, executive, and administrative processes; and on law’s operational significance for the institution of the market.*  While Hurst and others** have shown that ideas about the formulation of policy and the distribution of power and economic resources have affected American legal thought, this volume does not stress such themes. Its emphasis is in part a product of my own scholarly interests. I also seek, however, to suggest that American legal thought has been derived from some sources that cannot easily be linked to the legislative session or the economic marketplace. Understanding the history of American legal thought requires, in my view, appreciating its social, intellectual, economic, and political dimensions; and if those of us writing in legal history and jurisprudence are temperamentally or philosophically inclined to emphasize different dimensions, so much the better.

G. Edward White

About the Author

G. Edward White is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia, where he teaches legal history, torts, and constitutional law. He holds his law degree from Harvard, his Ph.D. and M.A. in history from Yale, and a B.A. from Amherst College. He joined the Virginia law faculty in 1972 after a clerkship with Chief Justice Earl Warren of the Supreme Court of the United States and a year as visiting scholar at the American Bar Foundation.  He has held visiting appointments at New York Law School, William & Mary School of Law, Brooklyn Law School, Arizona College of Law, the London School of Economics and Political Science, and Harvard Law School.  He has been a Guggenheim Fellow, and twice a senior fellow of the National Endowment for the Humanities. He is a fellow of the American Academy of Arts & Sciences, a fellow of the Society of American Historians, and a member of the American Law Institute.  He received the Roger and Madeleine Traynor Faculty Achievement Award in 2008.

Dr. White’s fourteen published books have won numerous honors and awards.  These include final listing for the Pulitzer Prize in history, the Silver Gavel Award from the American Bar Association, the James Willard Hurst Prize from the Law & Society Association, the Littleton-Griswold Prize from the American Historical Association, the Scribes Award, and the Association of American Law Schools’ Triennial Coif Award.  In fact, his books have garnered fifteen such honors and awards since 1976. In addition to Patterns of American Legal Thought, these books include such internationally recognized works as The American Judicial Tradition: Profiles of Leading American Judges, Justice Oliver Wendell Holmes: Law and the Inner Self, and Tort Law in America.  Dr. White has also written books on such diverse topics as Alger Hiss, Earl Warren, the tradition of baseball, and the expansion of the western frontier. He frequently gives endowed lectures at law schools and at seminars for lawyers and historians.

PATTERNS OF

AMERICAN LEGAL THOUGHT

CHAPTER 1. SOME CENTRAL THEMES OF AMERICAN LAW

This chapter of essays presents, in microcosm, the basic themes of the volume. The book review of Lawrence Friedman’s A History of American Law emphasizes the extent to which legal scholars, like those in other professions and disciplines, conduct their research from starting perspectives which amount to tacit value judgments. These perspectives, when shared by groups of scholars, create schools of thought. The value orientations of such schools serve as filters through which data is assessed and analyzed, creating, in less sophisticated presentations than that of Friedman, self-conforming research prophesies. Legal thought in America has been affected, at least since the late nineteenth century, by the presence of shared research perspectives among scholars. Current scholarship in legal history and other areas is only beginning to explore the sociological and philosophical dimensions of schools of thought.

The Path of American Jurisprudence gives a more detailed account of the remaining themes emphasized in this study, arguing that a conception of judges as lawmaking officials and a dialectical relationship between constitutional and nonconstitutional law have served to define the cast of jurisprudence in America.

The Appellate Opinion as Historical Source Material, the remaining essay in this chapter, presents a methodology for exploring legal materials as elements of social and intellectual history. Although I would write the essay somewhat differently today, I am including it because it offers some potential researchers a model against which their own techniques can be juxtaposed.

BOOK REVIEW OF LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW

Virginia Law Review, Vol. 59, No. 6 (1973)

It is too much to say that American legal history has come of age with the publication of Lawrence Friedman’s A History of American Law, the first attempt to do anything remotely like a general history¹ of law and legal institutions in America. But the appearance of Friedman’s work indicates that a sufficient amount of monographic literature in American legal history exists to allow some form of synthetic treatment. That in itself is an accomplishment, for American legal history has been one of the most unfortunate step-children of the academic profession, disdained by historians and lawyers alike, struggling to establish itself in curricula and to disengage itself from antiquarianism, largely bereft of distinctive or distinguished scholarship.

That Friedman has been the first to attempt a general treatment of American legal history is not without personal significance. He has been a pioneering and innovative contributor to the monographic literature of the field;² he has emphasized the historical antecedents of substantive areas of American law;³ he has attempted to modernize the discipline of legal history by introducing to it the analytical techniques of the social sciences;⁴ and he is a charter member of the school of thought currently dominant among American legal historians. His History illustrates his functions in each of these capacities. Accordingly, it provides a starting point for an analysis of the present state of American legal history.

* * *

An outstanding characteristic of American legal history in the twentieth century has been the relative absence of scholarship. While American legal philosophy and jurisprudence were passing through at least four academic phases since 1900, complete with intellectual controversies and polemics,⁵ and while other sub-branches of American history, such as economic history or social history, were exhibiting distinctive patterns of growth and change, American legal history before 1950 produced only isolated studies: treatments of historical periods⁶ or particular institutions⁷ reflecting the idiosyncratic interests of the scholars involved.

The sporadic nature of intellectual contributions to the discipline can be partially explained by its peculiar methodological problems. Analyzing legal source material requires the technical skills imparted by a legal education: the majority of historians are deterred from doing research in legal materials by their inability to read the relevant sources. Taking the time to acquire the necessary skills, for an historian, is in many instances far more costly than simply choosing a less formidable area of specialization. Other deterrents exist for American lawyers interested in legal history. The methodological techniques of the legal profession, perhaps because of their proven success in analyzing cases and statutes, tend to become the central focus of legal education: substance, on balance, is subordinated to methodology. But history is not so easily reduced to concrete problems of analysis: descriptions of the now of change and syntheses of large masses of data are important in rendering it intelligible, and the standard techniques of legal analysis are less helpful in those tasks. Further, modern American legal education, with its emphasis on the contrary uses to which data can be put and the ambivalent nature of reality, may serve as a philosophical deterrent to historical scholarship, which until recently has been seen by its practitioners as an objective search for truth.⁸

These deterrents contributed to the depressed state of scholarly activity in American legal history during the first half of the twentieth century. The one major exception was study of the Supreme Court of the United States. In contrast to the reluctance with which nonlawyers approached most areas of legal research, historians and political scientists enthusiastically analyzed the Supreme Court. However, the result was an unfortunate amalgam of diverse and sometimes opposing perspectives. Political scientists found an interest in the Court as an institution of American government, historians as a repository of socially significant issues. None of the concerns of one group particularly excited the other; indeed, basic assumptions about the proper way to study the Court remained unresolved. As a consequence the Court’s work was over-evaluated but seldom illuminated.

Beginning in the 1950’s a group of scholars, primarily lawyers some of whom were trained in the social sciences, began a reorientation of the focus of American legal history. Led by Willard Hurst, the most prolific legal historian of his generation, and using the University of Wisconsin as its common intellectual base, the group advocated a twofold shift in the primary concern of American legal historians: from national themes to predominantly local issues and from public (constitutional and administrative) to private (business and commercial) law. Hurst himself began a massive empirical study of the legal history of the lumber industry in Wisconsin, and on the basis of his exploratory research wrote essays⁹ suggesting that fruitful connections could be drawn between the growth of private law in America and changing patterns of economic development.

Following Hurst, a Wisconsin School of legal historians embarked on a series of monographic studies involving the relationship of private law to economic development. As their focus came to coincide with one previously identified by economic and business historians, a measure of interdisciplinary cooperation began to emerge. At the same time the social sciences developed distinctive methodologies which gave more attention to analysis of empirical data; the Wisconsin School enthusiastically seized upon these methodologies. The result was both an outpouring of monographs and the advancement of a new set of generalizations about the development of law and legal institutions in America. The first was the observation that law in America had functioned not as a divine body of rules but as a rational tool¹⁰ which interest groups used to secure particular goals. Private law was the creation of private parties and groups with distinct aims in mind; its purpose was to ensure certainty and predictability for these groups.

Following from this generalization was a second: since economic or commercial interest groups were relatively easy to identify, and since the ordinary function of law was to accommodate the needs of those groups, the central focus of scholarship in legal history should be on economic issues and their relationship to the normal workings of legal institutions. Issues in high politics, as Hurst called them,¹¹ were to be eschewed for the more mundane affairs of the free enterprise system and its legal appendages. Legal history came to be identified in economic terms; its phases were correlated to the waves of entrepreneurial innovation and consolidation that marked the nineteenth and early twentieth centuries in America.

Implicit in the economic and commercial orientation of the Wisconsin School was a deemphasis of the ideological themes of American legal history except insofar as they touched upon those particular areas. Although the school was responsive to the empirical innovations in social science methodology of the 1950’s and sixties, it ignored the formation of an increasingly sophisticated vocabulary for addressing nonempirical data, such as the concepts of national myths, ideals, and symbols developed by the American Studies movement to analyze ideological developments. The result was a juxtaposition in the Wisconsin School of painstaking empirical research with unrefined and simplistic generalizations about historical trends.¹²

* * *

Friedman is a product of the Wisconsin School and shares its assumptions. He cites the work, personality, and spirit of Hurst as a major influence;¹³ he credits the atmosphere of ferment¹⁴ at Wisconsin as generating his interest in legal history and the relation of law to the social sciences; he admits to having surrendered [him]self wholeheartedly to some of the central insights of social science;¹⁵ he emphasizes in his History the separate histories of the law of the fifty states and the more mundane workings of the system¹⁶ rather than constitutional law and the Supreme Court. He sees law as an instrument used by the people in power to push or pull toward some definite goal.¹⁷ In short, he offers not so much a general history of American law as a history which attempts to redress the balance¹⁸ by focusing on the particular levels of the American legal system that have received attention from the Wisconsin School. His work is ultimately an argument for the proposition that American legal history can derive its identity as a discipline from the concerns and assumptions of the Wisconsin scholars: that it can center its focus on the reaction of private law to economic trends. Friedman has deliberately deemphasized constitutional law and jurisprudence in his History. There is relatively little on the history of the Bill of Rights; the Alien and Sedition Acts receive only a cursory mention; Leonard Levy’s recent study of the origins of the Fifth Amendment¹⁹ is not cited; the relationship between religion and law in colonial America is not emphasized; the Zenger trial and free speech problems in the eighteenth century are not discussed. Nor do the major constitutional issues of the early nineteenth century receive much attention. Some of Marshall’s decisions articulating the power of the national government in a federal system are alluded to, but others, such as McCulloch v. Maryland,²⁰ are not; the Taney Court’s modification of Marshall’s theories in such cases as Cooley v. Board of Wardens²¹ is not mentioned. The early nineteenth-century constitutional cases that Friedman treats are those which have an impact on economic themes: Dartmouth College²² and its effect on the status of corporations; Charles River Bridge²³ and its implications for state-supported economic expansion. With certain exceptions, such as a minor treatment of civil rights in the context of the Reconstruction Amendments,²⁴ the pattern after the Civil War is the same. The main themes in the law are the uses of land, the regulations of business, the emergent role of labor unions, changes in the law of corporations, and the interaction between social welfare legislation and the economic theory of laissez-faire.

Developments in jurisprudence receive a similar deemphasis. Friedman devotes some attention to the great treatise writers of the early nineteenth century, Kent, Story, Simon Greenleaf and Theophilus Parsons, and to their post-Civil War counterparts, Thomas Cooley, Christopher Tiedeman, and John Forrest Dillon, and brings the history of juristic scholarship into the twentieth century. He has a brief treatment of legal realism and its impact on twentieth-century legal education. But he ignores such developments as the influence of an instrumentalist conception of law on judicial decision-making in the early nineteenth century²⁵ and its manifestation in the opinions of such judges as Lemuel Shaw. Nor does he treat the rise of mechanical jurisprudence, an artificial method of inductive reasoning common to the late nineteenth century by which judges reasoned syllogistically downward from initial premises to results. Similarly omitted is the counter-movement of sociological jurisprudence, conceived by Roscoe Pound and others in the early twentieth century as a protest against the mechanical school; and the decline of realism in the years immediately preceding World War II, with the consequent rise of a new school of jurisprudence that emphasized the obligation of judges to give detailed and coherent reasons for the results they reached.²⁶

In the face of his stated attempts to provide a social history of American law in which law is seen not as a kingdom unto itself... but as a mirror of society,²⁷ Friedman’s failure to include these areas of American legal history is significant. Insofar as ideological change is an important facet of a civilization’s development, this omission is a serious one. We have no help from Friedman in attempting to analyze such historical phenomena as the relationship between the social assumptions of the Enlightenment and the framing of the Constitution; the parallels between the early nineteenth century reform literature concept of an organic community and the emergence of a community welfare standard by which judges tested the validity of legislation; the connections between social Darwinism, a prevalent ideology of the late nineteenth century, and the doctrine of substantive due process, developed by judges after the Civil War; or the validity of the theory advanced by Alexander Bickel²⁸ that Warren Court activism was stimulated by early twentieth century assumptions about the inevitability of progress.

But all of this is not to say that there is not a good deal of interesting information and rewarding analysis in Friedman’s History. He gives us an excellent guide to the development of substantive law in the states. We can determine the status of civil procedure in early nineteenth century North Carolina,²⁹ the division of the crime of murder into degrees in early nineteenth century Missouri³⁰ and the contrasting treatments of the insanity defense after the Civil War in Iowa and New Hampshire.³¹ We can explore the status of married women as property holders in Mississippi in the 1830’s;³² the legal techniques employed by Illinois and Nebraska to regulate railroads during the late nineteenth century;³³ Michigan’s treatment of mortgages at the turn of the last century;³⁴ the growth of the doctrine of charitable immunities in Massachusetts and Maryland;³⁵ or the gradual efforts to achieve uniformity in state laws governing sales and negotiable instruments.³⁶ These pieces of information do more than satisfy an antiquarian curiosity. They provide us the antecedent reference points to which the law, in its process of change, is continually recurring, and thereby help to explain its anomalies and irregularities. They lend persuasive weight to Friedman’s thesis that law is inevitably molded by economy and society.³⁷ Each of these local laws is a microcosm of social attitudes of a distinct time and place. The conception of women in antebellum Mississippi affects their very limited autonomy as property holders; agrarian hostility to the symbols of an advancing urban and industrial civilization helps generate the Granger legislation regulating railroads. In these examples we can see law in an instrumentalist capacity, as Friedman would like us to see it.

Friedman’s work is also a full demonstration of the pervasive relationship in America between law and economic development. He documents, in a chapter on law and the economy from 1776 to 1847, the active role of government in promoting entrepreneurial ventures and the supervisory powers it enacted as a condition of its promoter role. Although this revisionist approach to a period in American economic history once inaccurately characterized as dominated by theories of laissez-faire is not new,³⁸ Friedman’s is the first attempt to popularize it on a wide scale.

Other chapters pursue the same theme. One ties shifts in the legal doctrines governing the use of property and commercial transactions to the expanded meaning of property rights and the outgrowth of commerce in the early nineteenth century. Another deals with the modification of land use concepts in the face of the increasingly industrial character of post-Civil War America. Another traces the growth of regulation of business enterprise in the later nineteenth century, during which American government changed its stance toward business enterprise from sponsor to sometimes reluctant regulator and trustee. Another deals with the rise of the corporate form of business enterprise and the consequent growth of the