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The first seven chapters of this book present a detailed story of the battle of Progressive and Realist thinkers against the orthodoxy of the old order. They include a focused study of the history of corporate theory in chapter 3 as well as a close examination of the significance of the legal thought of justice Oliver Wendell Holmes, Jr., in chapter 4. Every discussion of specialized areas of the law, such as torts and contracts or taxation and regulation, has been designed to illustrate my conviction that there has always been a close connection in legal history between practical and theoretical discourse, between social struggle and jurisprudential controversy. I hope that the readers will bear this in mind as they find themselves in the midst of one or another difficult or unfamiliar legal discussion.
Chapter 8 demonstrates the close connection between the Legal Realist cri tique and the emergence during the New Deal of administrative law in the regulatory welfare state. Neither the intimate relationship between Realists and New Dealers nor the influence of the New Deal in blunting the critical edge of Realism has been fully appreciated. Finally, chapter 9 assesses the fate of Realism after World War II. I offer an overview-not a complete account-of the state of postwar legal culture, focusing on the effects of totalitarianism, McCarthyism, and the astonishingly hostile academic reactions to the monumental decision of the U.S. Supreme Court in Brown v. Board of Education.
What became of Legal Realism after World War II? Here I differ from previous accounts that treat Realism not only as having expired in the postwar period but, in fact, as having self-destructed due to its alliance with value-free social science..I suggest that Realism-at least its critical dimension-continued to be an intellectual force in the postwar period. Where it did retreat, it did so primarily because its heirs had lost all connection to the Progressive politics that originally gave it meaning and inspiration.
One of my most fundamental goals in this book is to challenge what continues to be the dominant form of legal historiography of the Gilded Age. Although in every other field of American history, Progressive historiography, premised on a conflict between the "people" and the "interests," has been overthrown as simplistic, in the constitutional history of the Lochner era it has continued to be the standard mode of explanation. This, I have suggested elsewhere, has as much to do with the legitimating needs of the New Deal as with the realities of Classical Legal Thought. The New Deal's constitutional revolution of 1937 was justified not as a powerful break with the old order but as a conservative restoration of neutral constitutional principles that had supposedly been thrown overboard by the Lochner Court. The result has been to buttress historical intepretations that, for example, continue to treat the late-nineteenth-century judiciary as having capitulated to big business. In fact, it is quite clear, as I hope to show, that the Lochner Court was strongly representative of the old conservative view that big business was unnatural and illegitimate. Indeed, by seeking to stigmatize the Lochner era, Progressive historians lost sight of the basic continuity in American constitutional history before the New Deal. The constitutional revolution of 1937 was itself the culmination of a generational revolt against a structure of legal thought that had crystallized over more than a century since the American Revolution.
The separation between law and politics has always been a central aspiration of American legal thinkers. Operating uncomfortably within a democratic political culture that has been obsessed with the threat of "tyranny of the majority," American jurists since the Revolution have striven to embody "a government of laws and not of men" in a conception of an autonomous system of law untainted by politics.
The conflict between law and politics has taken many different forms in American history. Its most prominent expression during the antebellum period was in the debate over codification of the law.' The underlying argument between Jacksonian proponents of codification and the orthodox defenders of the common law system turned on whether judges "make" or "declare" law.2 The question of whether law is "political"-and, hence, to be appropriately determined by democratic legislators enacting codes-or, instead, is "scientific," and thus capable of being expounded by judges, was at the heart of the codification controversy.
The law-politics controversy was itself an expression of the fear of tyranny of the majority that has been a persistent theme in American legal and political thought. Throughout the revolutionary period and for a time thereafter, the problem of tyranny of the majority expressed as much the fear of religious as of cultural, political, or economic domination. Yet already in The Federalist, its central future meaning had been propounded: It stood for the paramount dangers of redistribution of wealth and of leveling. As Madison declared, "the most common and durable source of factions has been the various and unequal distribution of property."' The fundamental issue of American political thought was how this most politically democratic country in the world could avoid the threat of coerced economic equality.
Law carried an unusual burden in this conception. It was hoped that it could provide a non-political cushion or buffer between state and society. Unless law could be rendered non-political, how could it avoid becoming simply an instrument of democratic politics?
At precisely the moment that the codification movement of the 1820S and 183os produced the first sustained challenge to the democratic legitimacy of the common law, there arose a countervailing movement to defend the non-political character of judge-made law. Beginning with the first volume of James Kent's Commentaries,4 published in 1826, the treatise tradition continued for the next century to propound the orthodox view that law is a science and that legal reasoning is inherently different from political reasoning.5 Replicating similar debates that had resonated throughout modern English constitutional historysymbolized by the early-seventeenth-century confrontation between James I and Sir Edward Coke over whether law depended on "natural" or "artificial" reasonb- the treatise writers sought, above all, to establish a non-political oasis through law.
After the trauma of the American Civil War, amid heightening social conflict produced by immigration, urbanization, and industrialization, orthodox legal thinkers and judges sought ever more fervently to create an autonomous legal culture as part of their "search for order."' Through a process of systemization, integration, and abstraction of legal doctrine, they refined and tightened up what had previously been a loosely arranged, ad hoc system of legal classification. To understand late-nineteenth-century Classical Legal Thought, one must first appreciate the significance of that process of systemization.
Legal Architecture
Every complex legal system presents a structure of classification and categorization that reveals many of its dominant concerns and points of tension and contradiction. For example, Eugene Genovese has focused on the structure of the law of slavery to understand how Southern society sought to resolve the contradiction between the wish to conceive of slaves as property and the reality of slaves exercising will.' He has emphasized how the universal problem of generality versus particularity of legal classification was especially evident in the contradictory efforts of Southern judges to assimilate slaves to property while recognizing the impossibility of applying inanimate property concepts generally to human beings with will. Mark Tushnet also shows how slave law was structured according to the contradictory principles of interest and humanity.'
Similarly, the effort of late-nineteenth-century legal thinkers to create a system of legal thought free from politics produced a structure of classification that sought to depoliticize law by mediating a series of basic contradictions in antebellum legal thought. It is to that structure of classification that we now turn.
The Distinction between Public and Private Law
One of the most powerful tendencies in late-nineteenth-century law was the move to create a sharp distinction between what was thought to be a coercive public law-mainly criminal and regulatory law-and a non-coercive private law of tort, contract, property, and commercial law, designed to be resistant to the dangers of
political interference.
The distinction between public and private law was in part a culmination of more long-standing efforts of conservative legal thinkers to separate the public and private realms in American political and legal thought. 10 One of the earliest efforts to create an oasis of private rights free from state interference was the distinction between public and private corporations first elaborated in the Dartmouth College Case (1819).11 It was soon to be incorporated into a more general antebellum constitutional doctrine of "vested rights," 12 whose function was to posit the existence of a private realm immune from political coercion.
Beginning in the 1840s, the public-private distinction was further developed in state constitutional cases that created a sharp distinction between legitimate public and illegitimate private purposes for state exercise of its power of eminent domain." In the eminent domain cases, the public purpose doctrine was explicitly designed to prevent state redistribution of wealth. By the 1870s, this idea was extended to the taxing power.14 Cases dealing with the constitutionality of municipal sales of bonds to support railroad development invoked the public-private distinction to invalidate taxation for mere private purposes.15
Standing behind the widening public-private distinction in law were developments in nineteenth-century political, social, and economic thought that posited basic dichotomies between state and society, between the market and the family, and between politics and the market.16 All of these conceptualizations sought to establish a separate, "natural" realm of non-coercive and non-political transactions free from the dangers of state interference and redistribution. 17
The more formal and systematic distinction between public and private law that began to be articulated in the 1870s was in one sense a logical outgrowth of these earlier developments. The private law of tort, contract, and property, legal writers regularly maintained, was concerned only with meum and tuum, with private transactions between private individuals vindicating their pre-political natural rights. 18 In these matters, it was insisted, the state had no independent interest beyond ensuring that the legal order was impartial and non-political. An independent realm of private law was thus conceived of as the perfect analogue to an increasingly dominant conception of a self-regulating market, whose "invisible hand" reflected natural and impartial economic laws that needed to remain uncorrupted by political interference.
The Creation of Increasingly Abstract and General Classifications
While the creation of a public law-private law distinction owes much to developments outside of the law, it should also be understood in terms of important internal changes in the structure of legal ideas. At the beginning of the nineteenth century, American law was still dominated by the system of common law writs or forms of action. 19 The common lawyers' practical understanding of the writ system as remedies provided by the state stood in sharp contrast to the efforts of liberal social contract theorists after Locke to establish the pre-political origins of individual rights. Despite Blackstone's attempt to integrate the lawyers' history of the forms of action with the liberal theorists' ideas of natural rights,20 it was only with the demise of the writ system between 1825 and 185021 that any fundamental restructuring of the architecture of the legal system became possible. Perhaps the best place to see this change is in the common law treatise literature itself.
In virtually every field of law, late-nineteenth-century legal literature became more integrated, systematic, general, and abstract. At the beginning of the century, a handful of published American law texts were supplemented by widely circulated handwritten manuscript "precedent books," as well as English law books. The systematic and "scientific" Commentaries of Blackstone remained very much the exception compared to the still more widely used eighteenth-century English "abridgements." Joseph Story's 18o5 book of pleadings22 and Nathan Dane's Abridgement,23 begun in 1823, were the typical source books for practicing American lawyers. The dominant purpose of these texts was to offer a useful catalogue of the appropriate forms of pleadings for bringing and defending different kinds of common law actions.
As the old forms of action disintegrated, successive legal writers began to attack the "fragmentary and disconnected" ,24 structure of legal classification. In his treatise on The Law of Torts (1859)-the first effort at writing a systematic treatise on the subject-Francis Hilliard wrote that under the traditional forms of action, "the natural order of things" was "reverse[d]," presenting "a false view of the law, as a system of forms rather than principles."25
Hilliard criticized the typical legal treatise of the day for arranging its subject matter with "no scientific basis" and for failure "to present a connected, systematic, or complete view of any one of the somewhat heterogeneous topics of which they promiscuously treat." "I have never been able to understand upon what principle, in treatises of this description, some subjects are selected, and others wholly omitted," he concluded.26
When Hilliard published his treatise on Torts, negligence still played a modest role in his scheme of classification. Shearman and Redfield also noted in 1869 that although it had been part of the "original plan" of their treatise on torts to make negligence the organizing concept, they had been forced to yield to "the present chaotic state of legal literature."Z7 "'Phis plan was modified, however, for the sake of the convenience and advantage of the profession, by adding chapters upon the law of negligence with reference to Attorneys, Bankers, Passenger Carriers, Physicians and Telegraphs. . . ."28
By the middle of the century, a burgeoning number of American law books had begun to be similarly organized according to functional categories useful to practicing lawyers. A typical treatise on contracts, for example, contained separate chapters on the law of sales, insurance, negotiable instruments, agents, railroads, and so forth. This new organizational structure was itself symptomatic of the demise of the forms of action as the dominant mode of legal classification.
Yet further generalization continued to be hindered not only by conservative attachment to an already disintegrating system of common law forms of action but, more important, by professional resistance to any move away from organizing the law according to particular statuses and functional relationships-for example, attorneys, bankers, passengers, doctors, and telegraphs. Practicing lawyers feared that such a move would not yield sufficiently usable general principles, and might therefore only encourage the development of abstract and integrated fields of law that sacrificed professional utility.
By the 1870s, nevertheless, legal thinkers began to call for a more "philosophical" or "scientific" arrangement of the law while heaping scorn on the practical and functional classifications still in vogue.29 In contract law, the effort centered on attempts to subsume all rules and doctrines under the heading of "will."30 In tort law, there were various attempts to unite all sub-categories under the heading of duty.31 But the most prominent efforts at generalization focused on making "negligence" and "fault" the organizing concepts of the law of torts. 32 Consequently, between 1870 and 1900, the architecture of law was once more rearranged, this time around general concepts that submerged the concrete particularity of the previous organizing schemes. For rxample, legal writers sought to subsume the different branches of contract law under general and abstract headings such as "offer and acceptance" and "consideration." The modern categorization of intentional, negligent, and strict liability torts also appeared for the first time, providing a new organizational structure based on general principles.
In 1873 Oliver Wendell Holmes, Jr., wrote "The Theory of Torts,"' 33 which represented one of his most influential early efforts to establish a general theory. He accomplished this by ignoring traditional status or functional relationships while searching for more abstract and transcendent principles of liability. For the next twenty years, Holmes and other writers sought to make the negligence principle the normal and ordinary rule of tort liability. In the process, it was necessary to attack contradictory and competing legal principles as "anomalous."
&n
bsp; Everywhere after 1870, negligence was proclaimed to be the general rule of the common law. In case law, the most powerful recognition of the triumph of the negligence principle can be seen in two leading cases decided in 1872.-1873 rejecting strict liability principles laid down in the English case of Rylands v. Fletcher (1868). Under strict liability, enterprises, especially railroads, would be held liable for all injuries regardless of fault. Many jurists, including Holmes, devoted themselves to marginalizing this feared authority for redistribution in torts.34
Two other areas of tort law stood out as most resistant to recasting according to principles of negligence, and each became a famous battleground in the legal literature. The first was the rule that shippers and other common carriers were strictly liable to their customers. If there is a sound rule of public policy which ought to impose a special responsibility upon common carriers . . . and upon no others," Holmes declared in The Common Law, "it has never been stated." He proceeded to trace the history of strict liability of common carriers for the purpose of showing that it was a latecomer to the common law-a "public policy invented by Chief Justice Holt" early in the eighteenth century and "part of a protective system which has passed away." Any attempt generally to apply Holt's paternalistic and regulatory premises "at the present day," Holmes wrote, "would be thought monstrous." So, Holmes concluded, strict liability of common carriers was an anomaly-"a merely empirical exception from general doctrine"-for which there was "no common rule of policy." Hence, "courts may well hesitate to extend the significance" of any supposed principle of strict liability derived from this area. Indeed, Holmes endorsed the recent strong tendency of American courts to allow common carriers-especially railroads-to "contract out" of strict liability, since "notions of public policy which would not leave parties free to make their own bargains are somewhat discredited in most departments of the law."35