THE MAGIC MIRROR Law in American History

KERMIT L. HALL

New York Oxford OXFORD UNIVERSITY PRESS 1989

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Oxford University Press

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Copyright © 1989 by Oxford University Press, Inc.

Published by Oxford University Press, Inc., 198 Madison Avenue, New York, New York 10016-4314

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All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press

Library of Congress Cataloging-in-Publication Data

Hall Kermit L. The magic mirror.

Includes index.

1. Law-- United States--History and criticism. I. Title. KF352.H35 1989 349.73 88-15138

ISBN 0-19-504459-2 347.3

ISBN 0-19-504460-6 (pbk.)

12 14 16 18 19 17 15 13 11

Printed in the United States of America on acid-free paper

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For Phyllis

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Preface

This book is about the history of American legal culture and the law in action. It is not a technical history of substantive law, nor is it an intensive study of case law development in either private or public law. That important task remains to be done, and surely we would know a good deal more about American legal culture if we had a better understanding of the law's technical interstices. This book, however, has a different purpose: to elucidate the interaction of law and society as revealed over time through the main lines of development in American legal culture. Thus, much of what follows seeks to fit legal change with social, economic, and political developments from the first English settlement to the present.

This is a book of synthesis and interpretation. What follows expresses, I hope, our best current understanding about the evolution of American legal culture. One of the reasons it is possible to write such a book is that since World War II, and especially since the early 1960s, research and writing in legal history--of both private and public law, of legal and judicial institutions, and of attitudes and values toward the law--have exploded. Yet much remains to be done. There are huge gaps in our knowledge about the nation's legal past. We have no history of substantive criminal law, and only the beginnings of work in contract, tort, and procedure. We know far more about the functioning of the Supreme Court than we do about the day-to-day business in the thousands of lower state and local courts that mete out justice in matters such as medical malpractice, homicide, and speeding automobiles. Moreover, although legal historians have lavished attention on courts and judges, we still have no good history of the rise and impact of regulatory bodies and of administrative law. American historians have preferred, despite the repeated admonitions of James Willard Hurst, to treat legislatures--one of the greatest sources of lawmaking authority in the American system--as political rather than legal entities. We know the most about nineteenth- century legal culture; we know far less about the beginnings of American law in the seventeenth and eighteenth centuries, and its more recent manifestations in the twen

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tieth century. A good deal more attention has been given in the past decade or so to the history of the civil law in Louisiana especially and the Southwest more generally, but we still have only a vague appreciation of the contributions of civil law to our common law traditions. Important new work has appeared dealing with legal developments in the South and West; however, much of the best research has focused on New England, the Middle Atlantic states, and one Middle Western state Wisconsin. In short, attempting to write a synthesis of American legal culture is a huge presumption, not just because of the scope of the subject but because so much remains to be done before historians can reveal that past with authority.

If we are to make progress, we must have works that attempt to sum up our legal past. We must pause occasionally to try to synthesize and integrate into a larger body of knowledge that which we do know, and, in so doing, press future scholars to cast a revisionist eye on its assumptions. This book, of course, is not the first effort at such integration. Lawrence M. Friedman A History of American Law, which first appeared in 1973 and was issued in a somewhat revised second edition in 1985, audaciously summarized what was then known about the history of American legal culture. Legal historians of all stripes owe Friedman an enormous debt; he played the vital role of constructing a broad-gauged sociolegal history of American law. This book, of course, is fashioned along the same lines; it, too, is about law and society. Moreover, whatever its limitations, this book is that much better because of Friedman's pioneering efforts. While similar in approach to Friedman's study, though, this book is fundamentally different in its organization, which is fitted much more closely to the main lines of the historiography of American history, and in its more systematic treatment of the twentieth century. On the whole, as the title suggests, this is a book about law in American history rather than strictly a history of American law. The book also combines themes of private and public law, of criminal justice and social control, of minority rights and majority control, and of political power and legal legitimacy far more explicitly than does Friedman.

I have no qualms about having written this book. But I do have considerably more humility than when I began it--humility based on admiration for Friedman's synthesizing efforts, for social historians who seek to extract generalizations from legal materials, and for legal historians who have accomplished so much in so short a time, but who have, it is now clear to me, so much left to do.

I tackled this project with a good number of friends. Over the several years that were required to complete it, many of them have surely grown weary of seeing me at their doors with a handful of manuscript. Nancy Lane of Oxford University Press, who originally proposed this project to me, probably wishes I had shown up at her door earlier. She has shown remarkable patience and great kindness, but she has been, when necessary, a demanding yet supportive editor. I have learned a great deal from several friends who doubtless concluded long ago that I was too early and too often at their doors with some or all of the manuscript. John W. Johnson, Paul L. Murphy, and James W. Ely, Jr., read the entire manuscript and provided valuable interpretive insights while spotting many egregious errors of fact. David Colburn, Augustus Burns III, and Jeffrey Adler read and commented on various parts of the manuscript, and Burns was especially helpful in breathing life into often-limp prose. Laura Kalman read and commented on all of the twentieth-century chapters, and she forced me to rethink and reorganize much of that material. Mel Leffler was supportive as always.

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Without institutional support, this book would still be a glimmer in my mind's eye. Dean Jeffrey Lewis of the University of Florida College of Law provided a place and resources to get this project under way, and Rick Donnelly, Bob Munro, and Pam Williams of the University of Florida Legal Information Center were unstinting in locating materials. David Colburn, chair of the department of history at the University of Florida, has created the kind of atmosphere that respects scholarship in general and the study of legal history in particular. Most of the rewriting for this book was carried out during a year as a visiting scholar at the American Bar Foundation. I am indebted to Jack Heinz and Bill Felstiner for the opportunity to draw on their fine resources. While at the Bar Foundation, I benefited from the wonderful intellectual support of Ray Solomon (who unselfishly shared his considerable knowledge of twentieth-century legal history with me), Stephen Daniels, Lori Andrews, Bob Nelson, and David Rabban. John Flood was a relentless (and therefore therapeutic) squash partner during the year in Chicago.

To all of these persons and institutions I express my greatest appreciation and admiration. They are in the well-deserved position of deserving credit for whatever is of value in this book while bearing no responsibility for any errors of fact and interpretation that may follow.

Gainesville, Florida K. L. H.

March 1988

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Contents

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The Magic Mirror

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Introduction

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