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The Legal History of the Twentieth Century

Published online by Cambridge University Press:  28 February 2019

Daniel R. Coquillette
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Extract

All self-respecting legal history is supposed to end by the twentieth century. As we approach our own lives, experience and training — and those events that we have actually witnessed — we allegedly lose that “objectivity” which makes the “science” of history itself possible. Certainly, there is no point in burdening the reader with the “original” materials, including cases and statutes, that make up the bulk of any legal education. But there are good reasons to reflect on our own legal century from an “historical perspective.”

Type
Order from Chaos: Contexts for Global Legal Information IALL 21st Course on International Law Librarianship
Information
International Journal of Legal Information , Volume 31 , Issue 2 , Summer 2003 , pp. 211 - 237
Copyright
Copyright © 2003 the International Association of Law Libraries 

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References

For Further Reading

See the classic articulation of the “New Jurisprudence” in Commager, Henry Steele, The American Mind: An Interpretation of American Thought and Character Since the 1880's (New Haven, 1950) 374-390. There is also a good summary of the historical context in an “Epilogue: American Law in the 20th Century” in Lawrence M. Friedman, A History of America's Law (New York, 2d. ed., 1985) 655–695.Google Scholar
Friedman has called Oliver Wendell Holmes Jr.'s The Common Law (Boston, 1881) “the most important 19th century [law] book.” Id., 545. But, as Commager pointed out, Holmes’ “thought was a generation ahead of his time,” and Holmes only began his thirty years on the Supreme Court in 1902. See Commager, Henry Steele, The American Mind, supra, 376. Thus, Holmes was a genuine figure of the twentieth century. The Common Law remains in print. See the excellent edition by Mark DeWolfe Howe, O.W. Holmes, The Common Law (ed. Howe, M. DeWolfe, London, 1968). Also powerfully impressive are Holmes’ less well known legal addresses, including several on legal scholarship and the legal profession in O.W. Holmes, Speeches (Boston, 1891). See also O.W. Holmes, Collected Legal Papers (Laski, Harold J. ed., New York, 1920). Holmes’ brilliance is also preserved in his great correspondence with Sir Frederick Pollock and with Harold Laski. See Holmes - Pollock Letters (ed. Howe, Mark De Wolfe, Cambridge, 1961); Holmes - Laski Letters 1916-1935 (ed. Howe, Mark DeWolfe, Cambridge, 1923). See also “The Early Critical and Philosophical Writings of Justice Holmes” (ed. with introduction by Michael H. Hoffheimer, 30 Boston College Law Review (1989) 1221). For a modern analysis, see the incomparable Holmes Lectures of 1981 of Benjamin Kaplan, Patrick Atiyah, and Jay Vetter printed in Holmes and The Common Law: A Century Later (Cambridge, 1983). There is also David J. Seipp's brilliant essay on the 125th anniversary of “The Path of the Law.” See David J. Seipp, “Holmes's Path,” 77 Boston Univ. L. Rev. 515 (1997), and the fine work of my valued colleague, Catharine Wells. See Wells, Catharine P., “Old-Fashioned Postmodernism and the Legal Theories of Oliver Wendell Holmes, Jr.,” 63 Brooklyn Law Rev. 63 (1997). Finally, there is Catherine Drinker Bowen's wonderful Yankee from Olympus (Boston, 1944), a biography as insightful as it is accessible.Google Scholar
There are many surviving books and articles of Roscoe Pound (1870-1964), including his monumental five volume Jurisprudence (Cambridge, 1959). By far the most important, however, is the little treatise containing a series of his lectures called The Spirit of the Common Law (Cambridge, 1921). See also Pound's Interpretations of Legal History (Cambridge, 1923), his famous Trinity College, Cambridge, lecture of 1922. The scholarly biography is Paul L. Sayre, Life of Roscoe Pound (Iowa City, 1948). For a guide to the great canon of Supreme Court decisions and articles by Louis Dembitz Brandeis, see Alpheus T. Mason, Brandeis, A Free Man's Life (New York, 1946).Google Scholar
See the classic articulation of the “New Jurisprudence” in Commager, Henry Steele, The American Mind: An Interpretation of American Thought and Character Since the 1880's (New Haven, 1950) 374-390. There is also a good summary of the historical context in an “Epilogue: American Law in the 20th Century” in Lawrence M. Friedman, A History of America's Law (New York, 2d. ed., 1985) 655–695.Google Scholar
Friedman has called Oliver Wendell Holmes Jr.'s The Common Law (Boston, 1881) “the most important 19th century [law] book.” Id., 545. But, as Commager pointed out, Holmes’ “thought was a generation ahead of his time,” and Holmes only began his thirty years on the Supreme Court in 1902. See Commager, Henry Steele, The American Mind, supra, 376. Thus, Holmes was a genuine figure of the twentieth century. The Common Law remains in print. See the excellent edition by Mark DeWolfe Howe, O.W. Holmes, The Common Law (ed. Howe, M. DeWolfe, London, 1968). Also powerfully impressive are Holmes’ less well known legal addresses, including several on legal scholarship and the legal profession in O.W. Holmes, Speeches (Boston, 1891). See also O.W. Holmes, Collected Legal Papers (Laski, Harold J. ed., New York, 1920). Holmes’ brilliance is also preserved in his great correspondence with Sir Frederick Pollock and with Harold Laski. See Holmes - Pollock Letters (ed. Howe, Mark De Wolfe, Cambridge, 1961); Holmes - Laski Letters 1916-1935 (ed. Howe, Mark DeWolfe, Cambridge, 1923). See also “The Early Critical and Philosophical Writings of Justice Holmes” (ed. with introduction by Michael H. Hoffheimer, 30 Boston College Law Review (1989) 1221). For a modern analysis, see the incomparable Holmes Lectures of 1981 of Benjamin Kaplan, Patrick Atiyah, and Jay Vetter printed in Holmes and The Common Law: A Century Later (Cambridge, 1983). There is also David J. Seipp's brilliant essay on the 125th anniversary of “The Path of the Law.” See David J. Seipp, “Holmes's Path,” 77 Boston Univ. L. Rev. 515 (1997), and the fine work of my valued colleague, Catharine Wells. See Wells, Catharine P., “Old-Fashioned Postmodernism and the Legal Theories of Oliver Wendell Holmes, Jr.,” 63 Brooklyn Law Rev. 63 (1997). Finally, there is Catherine Drinker Bowen's wonderful Yankee from Olympus (Boston, 1944), a biography as insightful as it is accessible.Google Scholar
There are many surviving books and articles of Roscoe Pound (1870-1964), including his monumental five volume Jurisprudence (Cambridge, 1959). By far the most important, however, is the little treatise containing a series of his lectures called The Spirit of the Common Law (Cambridge, 1921). See also Pound's Interpretations of Legal History (Cambridge, 1923), his famous Trinity College, Cambridge, lecture of 1922. The scholarly biography is Paul L. Sayre, Life of Roscoe Pound (Iowa City, 1948). For a guide to the great canon of Supreme Court decisions and articles by Louis Dembitz Brandeis, see Alpheus T. Mason, Brandeis, A Free Man's Life (New York, 1946).Google Scholar

II. “Post-Liberal Society”

The patron saint of modern law analysis remains Max Weber (1869-1920). See particularly his Law in Economy and Society (trans. From Wirtschaft and Gesellschaft by Shik) (Rheinstein, ed., Cambridge, Mass. 1969). See also Max Weber, General Economic History (trans. Knight, New York, 1961), 249-258. The leading contemporary commentator on the legal characteristics of “post liberal society” is Roberto Mangaberia Unger who, with other scholars such as Duncan Kennedy and Morton Horwitz, formed the “critical legal studies” group at Harvard in the late 1970s. See Roberto M. Unger's Law in Modern Society (New York, 1976) and Knowledge and Politics (New York, 1975), Morton Horwitz's The Transformation of American Law: 1780-1860 (Cambridge, Mass., 1977), and Duncan Kennedy's, Legal Education and the Reproduction of Hierarchy (Cambridge, Mass., 1983).Google Scholar
For those wishing to complete their overview of English developments up through the aftermath of World War II, see R.M. Jackson's classic The Machinery of Justice in England (Cambridge, 1940), Sir Carleton Kemp Allen's equally distinguished Law and Orders (3d ed., London, 1965) and Robert Stevens’ fascinating Law and Politics: The House of Lords as a Judicial Body, 1800-1976 (Chapel Hill, 1978).Google Scholar

III. “Law and History”

A concise bibliography covering most of the recent controversies about legal history, from Grant Gilmore's “The Age of Antiquarius: On Legal History in the Time of Troubles” to Robert W. Gordon's “Historicism in Legal Scholarship” can be found in the notes to the excerpt from my “Introduction” to Law in Colonial Massachusetts set out below in the Materials. Laura Kalman's The Strange Career of Legal Liberalism (Yale, 1996), published since my “Introduction,” is worth reading from cover to cover. There is also a great new scholarly biography of Cardozo by Andrew Kaufman. See Kaufman, Andrew L., Cardozo (Cambridge, Mass., 1998).Google Scholar