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Transformation of American Law #2
The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy
When the first volume of Morton Horwitz's monumental history of American law appeared in 1977, it was universally acclaimed as one of the most significant works ever published in American legal history. The New Republic called it an "extremely valuable book." Library Journal praised it as "brilliant" and "convincing." And Eric Foner, in The New York Review of Books , wrote that "the issues it raises are indispensable for understanding nineteenth-century America." It won the coveted Bancroft Prize in American History and has since become the standard source on American law for the period between 1780 and 1860. Now, Horwitz presents The Transformation of American Law, 1870 to 1960 , the long-awaited sequel that brings his sweeping history to completion.
In his pathbreaking first volume, Horwitz showed how economic conflicts helped transform law in antebellum America. Here, Horwitz picks up where he left off, tracing the struggle in American law between the entrenched legal orthodoxy and the Progressive movement, which arose in response to ever-increasing social and economic inequality. Horwitz introduces us to the people and events that fueled this contest between the Old Order and the New. We sit in on Lochner v. New York in 1905--where the new thinkers sought to undermine orthodox claims for the autonomy of law--and watch as Progressive thought first crystallized. We meet Oliver Wendell Holmes, Jr. and recognize the influence of his incisive ideas on the transformation of law in America. We witness the culmination of the Progressive challenge to orthodoxy with the emergence of Legal Realism in the 1920s and '30s, a movement closely allied with other intellectual trends of the day. And as postwar events unfold--the rise of
totalitarianism abroad, the McCarthyism rampant in our own country, the astonishingly hostile academic reaction to Brown v. Board of Education --we come to understand that, rather than self-destructing as some historians have asserted, the Progressive movement was alive and well and forming the roots of the legal debates that still confront us today.
The Progressive legacy that this volume brings to life is an enduring one, one which continues to speak to us eloquently across nearly a century of American life. In telling its story, Horwitz strikes a balance between a traditional interpretation of history on the one hand, and an approach informed by the latest historical theory on the other. Indeed, Horwitz's rich view of American history--as seen from a variety of perspectives--is undertaken in the same spirit as the Progressive attacks on an orthodoxy that believed law an objective, neutral entity.
The Transformation of American Law is a book certain to revise past thinking on the origins and evolution of law in our country. For anyone hoping to understand the structure of American law--or of America itself--this volume is indispensable.
In his pathbreaking first volume, Horwitz showed how economic conflicts helped transform law in antebellum America. Here, Horwitz picks up where he left off, tracing the struggle in American law between the entrenched legal orthodoxy and the Progressive movement, which arose in response to ever-increasing social and economic inequality. Horwitz introduces us to the people and events that fueled this contest between the Old Order and the New. We sit in on Lochner v. New York in 1905--where the new thinkers sought to undermine orthodox claims for the autonomy of law--and watch as Progressive thought first crystallized. We meet Oliver Wendell Holmes, Jr. and recognize the influence of his incisive ideas on the transformation of law in America. We witness the culmination of the Progressive challenge to orthodoxy with the emergence of Legal Realism in the 1920s and '30s, a movement closely allied with other intellectual trends of the day. And as postwar events unfold--the rise of
totalitarianism abroad, the McCarthyism rampant in our own country, the astonishingly hostile academic reaction to Brown v. Board of Education --we come to understand that, rather than self-destructing as some historians have asserted, the Progressive movement was alive and well and forming the roots of the legal debates that still confront us today.
The Progressive legacy that this volume brings to life is an enduring one, one which continues to speak to us eloquently across nearly a century of American life. In telling its story, Horwitz strikes a balance between a traditional interpretation of history on the one hand, and an approach informed by the latest historical theory on the other. Indeed, Horwitz's rich view of American history--as seen from a variety of perspectives--is undertaken in the same spirit as the Progressive attacks on an orthodoxy that believed law an objective, neutral entity.
The Transformation of American Law is a book certain to revise past thinking on the origins and evolution of law in our country. For anyone hoping to understand the structure of American law--or of America itself--this volume is indispensable.
384 pages, Paperback
First published November 30, 1991
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About the author
Morton J. Horwitz
12 books3 followersMorton J. Horwitz is a legal scholar specializing in the history of American law. Horwitz obtained an A.B. from the City College of New York (1959), an A.M. and Ph.D. from Harvard University (1962 and 1964), and an LL.B. from Harvard Law School (1967). He has taught at Harvard Law School since 1970, where since 1981 he has served as the the Charles Warren Professor of American Legal History.
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Displaying 1 - 6 of 6 reviews
January 4, 2011
There are a couple things which make this book not quite as good as Horwitz's first, which traced the transformation of American law from 1790-1860. The earlier period studied was certainly more manageable, with fewer cases, fewer writers, and certainly fewer intellectuals pontificating on the law. This allowed Horwitz to draw a clearer story, with just a few notable characters (say Justice Story and Nathaniel Chipman), and, most importantly perhaps, it allowed him to extrapolate from the cases to find a few general trends that were seemingly unrecognized even by the practioners of the time. It was truly a great book of historical discovery. In this later period, though, law has become more professionalized, and therefore much of the book is taken up with glosses on already prominent legal thinkers who theorized about the changes going on around them, most notably, Oliver Wendell Holmes and Roscoe Pound. It mainly seeks to contrast "Classical Legal Thought" with the emergent "Progressive Legal Thought" or "Legal Realism." So the story here is less surprising, and sometimes plodding, but there are still some fascinating parts.
The book is at its best when it looks at the broad intellectual background of the law, and the surprisingly concrete ramifications of philosophical theories. For instance, Horwitz finds that the antebellum conception of abstract legal categories, derived from German Idealism through Kant and Hegel, was challenged by the new theory of "causation," promulgated by John Stuart Mills (in his "System of Logic" 1843) and others, which said that any event was "the sum of all its antecedents." This broke down the old division between "proximate" and "remote" causes, which limited tort liability to things caused only "immediately" by someone's action. One orthodox legal thinker, Francis Wharton, even claimed that the inevitable result of the new Mills' theory was total "communism," since everyone would be equally liable for everything. Holmes, in "The Common Law" in 1881, worried that it would make the state "a mutual insurance company" against all accidents. Yet by 1927, as exemplified by Judge Cardozo's decision in Palsgraff v. LIRR, this was the law of the land. In that case Cardozo said that the decision of where to assign liability in a complex series of events was ultimately impossible, and in the end could only be the result of a public policy decision. It is not coincidental that this was the same year the Heisenberg uncertainty principal finally blew up the old categories of causation once and for all.
Similary, Horwitz's discussion of corporate personhood does a fascinating job of connecting German philosophy with concerte economic realities. He shows that the older Jacksonian conception of a corporation, as basically no more than a partnership of all its shareholders (they all had to approve of any sale of assets, they could be held personally liable for lack of funds), gave way to an organic theory of the corporation coming out of the German "natural entity" theory, which was tied up with a resurgent German medieval romanticism for medieval corporations (exemplified by Otto Gierke). Yet this supposedly conservative idea allowed shareholders to be replaced as the defining "interest" in corporate law by the corporate directors who actually ran the company, and it insulated shareholders from liability for "watered stock" and other activities, and allowed them to merge easily with other corporations. In the hands of Progressives this theory was also useful for making the corporation appear as a creature of the state, instead of a mere contractual invention of its establishers.
Some of the other chapters are certainly stodgy and repetitive, but I learned more from the remainder than I have from just about any other book. It's certainly a worthwhile though spotty read.
The book is at its best when it looks at the broad intellectual background of the law, and the surprisingly concrete ramifications of philosophical theories. For instance, Horwitz finds that the antebellum conception of abstract legal categories, derived from German Idealism through Kant and Hegel, was challenged by the new theory of "causation," promulgated by John Stuart Mills (in his "System of Logic" 1843) and others, which said that any event was "the sum of all its antecedents." This broke down the old division between "proximate" and "remote" causes, which limited tort liability to things caused only "immediately" by someone's action. One orthodox legal thinker, Francis Wharton, even claimed that the inevitable result of the new Mills' theory was total "communism," since everyone would be equally liable for everything. Holmes, in "The Common Law" in 1881, worried that it would make the state "a mutual insurance company" against all accidents. Yet by 1927, as exemplified by Judge Cardozo's decision in Palsgraff v. LIRR, this was the law of the land. In that case Cardozo said that the decision of where to assign liability in a complex series of events was ultimately impossible, and in the end could only be the result of a public policy decision. It is not coincidental that this was the same year the Heisenberg uncertainty principal finally blew up the old categories of causation once and for all.
Similary, Horwitz's discussion of corporate personhood does a fascinating job of connecting German philosophy with concerte economic realities. He shows that the older Jacksonian conception of a corporation, as basically no more than a partnership of all its shareholders (they all had to approve of any sale of assets, they could be held personally liable for lack of funds), gave way to an organic theory of the corporation coming out of the German "natural entity" theory, which was tied up with a resurgent German medieval romanticism for medieval corporations (exemplified by Otto Gierke). Yet this supposedly conservative idea allowed shareholders to be replaced as the defining "interest" in corporate law by the corporate directors who actually ran the company, and it insulated shareholders from liability for "watered stock" and other activities, and allowed them to merge easily with other corporations. In the hands of Progressives this theory was also useful for making the corporation appear as a creature of the state, instead of a mere contractual invention of its establishers.
Some of the other chapters are certainly stodgy and repetitive, but I learned more from the remainder than I have from just about any other book. It's certainly a worthwhile though spotty read.
June 1, 2020
It is easy for the non-lawyers among us to assume that "the law" is today very much as it was in the past. Sure, the laws themselves have changed over time, but the law itself must surely have been pretty constant in its appearance and function, yes? On the other hand, why would the law be any different from other fields: science, economics, engineering, and so on?
This book (and its predecessor volume) does a pretty good job of shattering my misconceptions.
I'll admit that I struggled a bit with this one. I had to read many passages more than once to make sense. I'm assuming that's because I'm not a lawyer and have never studied law. It's also partly because the author assumes some basic background knowledge. There are a number of cases that are referenced but not explained.
As with any good book, it makes my "to read" list longer, not shorter. I found a number of topics and personalities interesting enough to seek out further reading.
The book includes extensive notes and three indexes: cases, names, and subjects. There is no bibliography, sadly, which just means I need to peruse the notes to find other interesting books.
This book (and its predecessor volume) does a pretty good job of shattering my misconceptions.
I'll admit that I struggled a bit with this one. I had to read many passages more than once to make sense. I'm assuming that's because I'm not a lawyer and have never studied law. It's also partly because the author assumes some basic background knowledge. There are a number of cases that are referenced but not explained.
As with any good book, it makes my "to read" list longer, not shorter. I found a number of topics and personalities interesting enough to seek out further reading.
The book includes extensive notes and three indexes: cases, names, and subjects. There is no bibliography, sadly, which just means I need to peruse the notes to find other interesting books.
January 27, 2022
Honestly probably the most difficult book I’ve ever read- on the chapter level it’s fascinating But very difficult on the paragraph level. It tracks the Evolution of US legal thinkers throughout these time periods. The book really focuses on the relationship between law and politics and the various theory’s that attempt to either separate or merge the two. This can be seen through the change from the law and judges as being completely separate from politics in the 1870-1900, to the progressive movements response and the emergence of the new deal that law and politics cannot and should not ever be separated. Finally it touches on the current response to both the progressive legal movement and the rise of the admin state through the emergence of proceduralism. Interesting but challenging book
February 9, 2014
Very, very interesting. This is a rich mine.
Probably the only problem is that the title is misleading. The author is really interested in realism. So the pre-1920s stuff and post 1940s stuff is just a background and reaction to realism. I'd be very interested to see what people say about our era decades from now. Forest can't be treed just for seeing, you know.
Probably the only problem is that the title is misleading. The author is really interested in realism. So the pre-1920s stuff and post 1940s stuff is just a background and reaction to realism. I'd be very interested to see what people say about our era decades from now. Forest can't be treed just for seeing, you know.
May 6, 2012
fascinating to explore the devloopment of American intellectual thought, law, democracy--"the tyranny of the majority" and particularly the concern over a "threat of coerced economic equality." Wonderful context for work with taxes and estate planning.
February 14, 2015
Fascinating at the level of the chapter, if a bit dry at the level of the paragraph. Probably a different experience for those in law school, but I found it an interesting way to approach societal and political history.
Displaying 1 - 6 of 6 reviews