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The Revision Thickens

Published online by Cambridge University Press:  28 October 2011

Stephen A. Siegel
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Extract

In the last third of the twentieth century, the Progressive historians' account of Gilded Age law was overthrown by three interrelated strands of revisionist scholarship. One strand, which originated in work by Alan Jones, Charles McCurdy, and Les Benedict, thoroughly revised our understanding of Gilded Age constitutional development. Another strand, led by Robert Gordon, Thomas Grey, and Morton Horwitz, reformed our view of Gilded Age private law. The final strand, first elaborated by Duncan Kennedy, explored the unity of Gilded Age public and private law.

Type
Forum: Comment
Information
Law and History Review , Volume 20 , Issue 3 , Fall 2002 , pp. 631 - 637
Copyright
Copyright © the American Society for Legal History, Inc. 2002

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References

1. See, e.g., Jones, Alan, “Thomas M. Cooley and Laissez-Faire Constitutionalism: A Reconsideration,” Journal of American History 53 (1967): 751CrossRefGoogle Scholar; McCurdy, Charles, “Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism,” Journal of American History 61 (1975): 972CrossRefGoogle Scholar; Benedict, Michael Les, “Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,” Law and History Review 3 (1985): 293–331.CrossRefGoogle Scholar Manuel Cachan and Lewis Grossman discuss this strand. Manuel Cachan, “Justice Stephen Field and ‘Free Soil, Free Labor Constitutionalism’: Reconsidering Revionism,” and Grossman, Lewis, “James Coolidge Carter and Mugwump Jurisprudence,” Law and History Review 20 (2002): 541–76 and 577–629CrossRefGoogle Scholar.

2. See, e.g., Gordon, Robert, “Legal Thought and Legal Practice in the Age of American Enterprise, 1870–1920,” in Professions and Professional Ideologies in America, 1730–1940, ed. Geison, Gerald L. (Chapel Hill: University of North Carolina Press, 1983)Google Scholar; Grey, Thomas, “Langdell's Orthodoxy,” University of Pittsburgh Law Review 45 (1983): 1Google Scholar; Horwitz, Morton, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992).Google Scholar

3. Kennedy, Duncan, “Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850–1940,” Research in Law and Sociology 3 (1980): 3.Google Scholar

4. “Jurists” refers to lawyers, judges, and legal scholars collectively.

5. Langdell, Christopher, “Harvard Celebration Speech,” Law Quarterly Review 3 (1887): 123, 124.Google Scholar

6. Ibid.

7. Kennedy, “Toward an Historical Understanding,” 3.

8. See, e.g., Fiss, Owen, Troubled Beginnings of the Modern State, 1888–1910, vol. 8 of History of the Supreme Court of the United States (New York: Macmillan, 1993)Google Scholar; Wiecek, William, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford University Press, 1998).Google Scholar

9. Some of this literature is discussed in the remainder of this commentary.

10. Cachan, “Justice Stephen Field,” 547, n. 20 (quoting McCurdy, “Justice Field and the Jurisprudence of Government-Business Relations,” 973).

11. See, e.g., McCurdy, “Justice Field and the Jurisprudence of Government-Business Relations”; Gillman, Howard, The Constitution Beseiged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C.: Duke University Press, 1993), 7–8, 64–75.Google Scholar

12. Cachan, “Justice Stephen Field,” 544.

13. Ibid., 544, 559–64, 567–69, 571–73, 576.

14. For example, by setting up historically contingent understandings of ideas and doctrines. See, e.g., Ernst, Daniel, Book Review, “The Critical Tradition in the Writing of American Legal History,” Yale Law Journal 102 (1993): 1019CrossRefGoogle Scholar, 1028–34 (reviewing Morton Horwitz's views); White, G. Edward, Book Review, “Transforming History in the Postmodern Era,” Michigan Law Review 91 (1993): 1315CrossRefGoogle Scholar, 1320–27 (same).

15. See, e.g., McCurdy, Charles, “The ‘Liberty of Contract’ Regime in American Law,” in The State and Freedom of Contract, ed. Scheiber, Harry N. (Stanford: Stanford University Press, 1998), 161, 167–79.Google Scholar Cachan, “Justice Stephen Field,” 547, n. 20, mentions McCurdy's later scholarship.

16. Kens, Paul, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age (Lawrence: University Press of Kansas, 1997), 8.Google Scholar Cachan, “Justice Stephen Field,” 545, n. 13, notes Kens's scholarship.

17. Kens, Justice Stephen Field; McCurdy, “The ‘Liberty of Contract’ Regime.” The following account relies most heavily on Kens, who has written the most detailed analysis. It is consistent with McCurdy's more general remarks.

18. Kens also accounts for Field by modifying another tenet of the new standard history—that Field and other Gilded Age jurists were driven by ideology, not self-interest. In some instances, self-interest does motivate Kens's Field. However, Field's self-interest was not to be a minion of the corporate elite, but to use his judicial position to advance his presidential ambitions. In Kens's analysis, Field crafted his state's rights opinions to promote his presidential ambitions, which required southern support. See Kens, Justice Stephen Field, 181–96. In sum, Kens gives us a textured study of a justice motivated by both ideology and self-interest.

19. See Grossman, “James Coolidge Carter,” 591–95, 602–6.

20. Ibid., 619.

21. See Siegel, Stephen, “John Chipman Gray and the Moral Basis of Classical Legal Thought,” Iowa Law Review 86 (2001): 1513Google Scholar, 1515 (discussing private law historiography).

22. See Grossman, “James Coolidge Carter,” 595, 606–11; Siegel, “John Chipman Gray;” idem, “Historism in Late Nineteenth-Century Constitutional Thought,” Wisconsin Law Review 1990: 1431 (discussing such leading public and private law scholars as John Norton Pomeroy, Thomas Mclntyre Cooley, and Christopher Tiedeman); idem, “Joel Bishop's Orthodoxy,” Law and History Review 13 (1995): 215; LaPiana, William, “Jurisprudence of History and Truth,” Rutgers Law Journal 23 (1992): 519Google Scholar, 537–54 (discussing Philemon Bliss, Edward Phelps, John F. Dillon, and James C. Carter).

23. This is not to say that Carter's version of historical jurisprudence was typical. This point is important in that Grossman, “James Coolidge Carter,” 627, hints that Carter's version of historical jurisprudence was not consistent with the tenets of classical legal thought. I suggest that historical jurisprudence, as it was conceived by most Gilded Age jurists, was consistent with, indeed it was a strand of, classical legal thought. The earliest historical jurists, the German Pandectists, were very systematic and conceptualistic formalists. Historical jurisprudence was one of a variety of distinct jurisprudences that exemplified Gilded Age classical orthodoxy. (Langdell's “law as science” jurisprudence was another.) See, e.g., Wharton, Francis, Commentaries on Law (Philadelphia: Kay and Brother, 1884)Google Scholar; Reimann, Mathias, “Nineteenth-Century German Legal Science,” Boston College Law Review 31 (1990): 837Google Scholar; Siegel, “Historism.” Carter was a late proponent of historical jurisprudence and may illustrate that jurisprudence as it was decaying into modern positvism. It was Carter's late or idiosyncratic take on historical jurisprudence that arguably places him outside the fold of classical legal thought.

24. See Novak, William, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press), 235–48.Google Scholar

25. See Kimball, Bruce, “Warn Students That I Entertain Heretical Opinions, Which They Are Not to Take as Law: The Inception of Case Method Teaching in the Classrooms of the Early C. C. Langdell, 1870–1883,” Law and History Review 17 (1999): 57.CrossRefGoogle Scholar

26. On thick description, see Geertz, Clifford, The Interpretation of Cultures (New York: Basic Books, 1973)Google Scholar; Walters, Ronald, “Signs of the Times: Clifford Geertz and Historians,” Social Research 47 (1980): 537.Google Scholar