The Twentieth Century

The history of American legal culture in the twentieth century is only beginning to be written. Even the second edition of Lawrence M. Friedman A History of American Law ( 1985) gives only passing attention to the period. There is no single legal history of the century, although students of American public law have lavished great attention on the Supreme Court and developments surrounding it. Paul L. Murphy, The Constitution in Crisis Times 1918-1969 ( 1972), offers a good introduction to basic developments in constitutional law set against Murphy's fine understanding of the social and cultural context of the period. Murphy World War I and the Origin of Civil Liberties in the United States ( 1979) is particularly good at connecting the experiences of the war with the development of interest in the preservation of civil liberties. In a somewhat related vein, Norman Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel ( 1986), brings shape to twentieth-century developments in another important area of First Amendment law.

Scholars have only begun to explore the history of contemporary criminal justice, but Mark H. Haller , "Urban Crime and Criminal Justice: The Chicago Case," Journal of American History 57 ( 1960), provides an excellent example of the ways in which professional policing, crime control, and social upheaval in the cities shaped the behavior of the criminal justice system. On the growth of the federal criminal enforcement machinery, see Richard G. Powers, Secrecy and Power: The Life of J. Edgar Hoover ( 1987), and Kenneth O'Reilly, Hoover and the Un-Americans: The FBI, HUAC, and the Red Menace ( 1983).

Civil rights have been an important theme during the century, one that grew in significance after the Supreme Court began in the early 1940s to give greater attention to it and the NAACP developed a coherent litigation strategy. For a critical assessment of the relationship of the bar to these developments, see Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America ( 1976). On the early development of the NAACP's litigation strategy, see William B. Hixson Jr., "Moorfield Storey and the Struggle for Equality," Journal of American History 60 ( 1968). The role of the black bar and the Communist party is discussed in Charles H. Martin , The Angelo Herndon Case and Southern Justice ( 1976). Yet another vantage point on these matters is William H. Harbaugh, Lawyer's Lawyer: The Life of John W. Davis ( 1973), a fine biography of the man who represented segregationist interests in Brown v. Board of Education ( 1954). The most authoritative (and critical) treatment of the NAACP's Legal Defense Fund lawyers is Mark V. Tushnet, The NAACP's Legal Strategy against Segregated Education, 1925-1950 ( 1987). On the difficulties of implementing the Brown decision, see Tony A. Freyer, The Little Rock Crisis: A Constitutional Interpretation ( 1984).

Twentieth-century legal thought is another area that has received considerable attention, especially the rise of the legal realist movement. Interpretations vary considerably, however. Wilfred E. Rumble Jr., American Legal Realism: Skepticism, Reform, and the Judicial Process ( 1968), is good at connecting the movement in law schools to larger philosophical developments. G. Edward White, Patterns of American Legal Thought ( 1978), is also valuable, as are John W. Johnson, American Legal Culture, 1908-1940 ( 1981) and Laura Kalman, Legal Realism at Yale 1927-1960 ( 1986). Edward A. Purcell Jr., "American Jurisprudence between the Wars: Legal Realism and the Crisis of Democratic Theory," The American Historical Review 75 ( 1969), does a good job of showing how legal realism crumbled before the twin challenges of nazism and Catholic natural law theology. The connections between legal realism and critical legal studies (with some attention to the policy science and law and economic approaches) is examined in G. Edward White, "From Realism to Critical Legal Studies: A Truncated Intellectual History," Southwestern Law Journal 40 ( 1986).

The extent to which legal realism penetrated the New Deal remains in dispute. Christopher Tomlins , The State and the Unions: Labor Relations, Law, and the Organized Labor Movement, 1880-1960 ( 1985), argues that the labor reforms wrought by the New Deal had little real

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consequence for workers and that, on balance, they were probably of greater value to corporate managers. Peter H. Irons, The New Deal Lawyers ( 1982), has fashioned an insightful study of lawyers as litigators and administrators in the New Deal. It is in this group of lawyers that Irons locates the beginnings of contemporary legal liberalism.

There has been considerable debate about the extent to which legal culture after World War II differed from earlier generations. The "law explosion" is addressed in Marc Galanter, "Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about Our Allegedly Contentious and Litigious Society," UCLA Law Review 31 ( 1983). Substantive legal developments have attracted some attention, although much remains to be done. The concept of the "new property" (e.g., entitlements) is examined in Charles A. Reich, "The New Property," Yale Law Journal 73 ( 1964). The evolution of landlord-tenant relations is the subject of Mary Ann Glendon "The Transformation of American Landlord-Tenant Law," Boston College Law Review 23 ( 1982). The increasing importance of zoning law is discussed in Seymour I. Toll, Zoned America ( 1969). Contract law has received serious attention, especially when taken in comparison with the spread of tort and tortlike concepts. Grant Gilmore, The Death of Contract ( 1974), argues that classical contract law had given way before increasingly powerful tort concepts. Edward J. Murphy and Richard E. Speidel, eds., Studies in Contract Law, 3rd Ed. ( 1984), insist that contract law retained considerable vitality. G. Edward White, Tort Law in America ( 1980), places the debate in its intellectual context and shows why tort has captured this century's legal imagination, just as contract did in the nineteenth.

These and other areas require more scholarly attention. Historians know more about the origins of the regulatory state than they do about its operation in this century, especially in the era after World War II. The best (and only) general survey is Robert L. Rabin, "Federal Regulation in Historical Perspective," Stanford Law Review 38 ( 1986). One part of the regulatory apparatus, that involving nuclear power, is treated in John W. Johnson, Insuring against Disaster: The Nuclear Industry on Trial ( 1986), although most of Johnson's attention is devoted to litigation surrounding the Price-Anderson Act rather than day-to-day regulation.

Scholars of every ideological stripe and in numerous scholarly disciplines have lavished attention on the Supreme Court and contemporary American constitutional development. Often what scholars believe the justices should do in the future has informed their analyses of what they did in the past. Some conservatives have argued that the federal courts generally, and the Supreme Court specifically, have composed an "imperial" force that has overridden the wishes of the popularly elected branches. Raoul Berger, for example, has argued that federal judges should be bound by the concept of original intent (what the framers said goes, and if they were silent then the matter belongs to the legislature and not the courts), while liberals believe that judges ought to measure the framers' intentions against present realities and that judges have the duty to protect minority rights from majority encroachment. The debate is nicely summarized in Raoul Berger, "Paul Brest' s Brief for an Imperial Judiciary," Maryland Law Review 40 ( 1981). Berger's historical reasoning, however, is effectively challenged in H. Jefferson Powell, "The Original Understanding of Original Intent," Harvard Law Review 98 ( 1985). That the Supreme Court has been far from accepting of all minorities, however, is ably demonstrated in Michal Belknap , Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties ( 1977). The propensities of the federal legal system to mete out harsh penalties to dissenters and oddballs is discussed in Stanley I. Kutler, The American Inquisition: Justice and Injustice in the Cold War ( 1982). Finally, for an able study of the Court's history in brief compass, see William M. Wiecek, Liberty and the Law: The Supreme Court in American Life ( 1988).

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Table of Cases

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Index

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Date: 2015-01-29; view: 1274