The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy

Description

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. Preface Contents Introduction 1. The Structure of Classical Legal Thought, 1870-1905 Legal Architecture The Distinction between Public and Private Law The Creation of Increasingly Abstract and General Classifications The Structure of Legal Reasoning The Categorical Mind The Neutral State and Classical Legal Thought Taxation and the Idea of Neutrality The Uses of the State Taxation Decisions The Federalization of Taxation Doctrine Police Power Doctrine: Categorical Thought and Neutrality 2. The Progressive Attack on Freedom of Contract and Objective Causation Freedom of Contract The Development of the Progressive Critique of Classical Contract Theory Objectivism and the Law of Contract The Law of Agency and the Growth of Organizational Society Objectivism and the Law of Agency The Doctrine of Objective Causation Causation and Ideology 3. Santa Clara Revisited: The Development of Corporate Theory The Santa Clara Case and Corporate Theory The Santa Clara Case in Context: The Real Meaning of the Santa Clara Decision Corporate Theory in the Late Nineteenth and Early Twentieth Centuries The Concept of Corporate Personality and Its Determinate Legal Significance Corporate Personality Ultra Vires Foreign Corporations The "Inevitability" of Concentration Consolidation and Majority Rule Attack on the Entity Theory The Demise of the Trust Fund Doctrine: The New Relationship of the Shareholder to the Corporation The Corporate Entity and the Power of Directors The Natural Entity Theory Conclusion 4. The Place of Justice Holmes in American Legal Thought Subjective versus Objective Standards Moralism versus Amoralism in Private Law Codification Custom as a Mediator Between Legislative Supremacy and Natural Rights Individualism Strict Liability versus Negligence 5. The Progressive Transformation in the Conception of Property Redefining the Nature of Property Eminent Domain Property and Expectations Hohfeld's Influence on Legal Thought The Higher Law Basis of Classical Legal Thought Rate Regulation Property as Public Law 6. Defining Legal Realism The Emergence of Realism The Controversy Llewellyn's List Who Were the Realists? Legal Realism and Iconoclasm The Significance of Realism 7. The Legacy of Legal Realism The Realist Critique of the Naturalness of the Market The Critique of Orthodox Legal Reasoning Categorical Thinking The Public-Private Distinction Realism: Critical or Scientific? 8. Legal Realism, The Bureaucratic State, and The Rule of Law The Delegation Theory Pound's About-Face Pound and Landis: Two Traditions Collide The Scientific Tradition The Legalist Tradition The Renewed Struggle Over the Regulatory State The Re-emergence of Proceduralism Frankfurter and the Changed "Mood" in Congress Louis Jaffe's Pilgrimage "One Man's Delay Is Another Man's Due Process" 9. Post-War Legal Thought 1945-1960 Llewellyn's Retreat The Pattern of Post-War Thought: An Overview Constitutional Politics: 1937-1962 Legal Process and Neutral Principles Learned Hand's Bill of Rights Conclusion Notes Introduction Chapter 1 Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Name Index A B C D E F G H I J K L M N O P R S T V W Y Case Index A B C D E F G H I L M N O P R S T U V W Y Subject Index A B C D E F G I J L M N O P R S T U V W