Frank Stein's Reviews > The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy

The Transformation of American Law, 1870-1960 by Morton J. Horwitz
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Jan 04, 11

Read in January, 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.
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