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The Cambridge History of Law in America

Book description

Volume 3 of The Cambridge History of Law in America covers the period from 1920 to the present, 'the American Century'. It charts a century of legal transformations, and shows how, politically, socially and culturally, the twentieth century was when law became ubiquitous in American life. Among the themes discussed are innovation in the disciplinary and regulatory use of law, changes wrought by the intersection of law with explosive struggles around race, gender, class and sexuality, the emergence and development of the particularly American legal discourse of 'rights', and the expansion of this discourse to the international arena. The main focus of this last volume of The Cambridge History of Law in America is the accelerating pace of change, change which we can be confident will continue. The Cambridge History of Law in America has been made possible by the generous support of the American Bar Foundation.

Reviews

'This volume offers much legal-historical scholarship of a high order. The extended bibliographical essays that conclude the work show the depth of learning underpinning the enterprise … This is a volume that amply repays close reading and reflection, and at its best escapes the bounds of a reference work and offers a powerful historical vision.'

Source: Edinburgh Law Review

‘Grossberg and Tomlin present this fine edited collection of essays on the law in the US...The chapter authors, leading experts in their fields, present lively, well-written pieces...Of great value is each volume's long, comprehensive bibliographic essay, which is over 120 pages in each book. A very good and enriching treatment of the topics covered, as well as a good general survey.'

Source: Choice

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  • 1 - Law and the State, 1920–2000: Institutional Growth and Structural Change
    pp 1-33
  • https://doi.org/10.1017/CHOL9780521803076.002
  • View abstract
    Summary
    Belief that the United States occupies an exceptional place in world history has been a persistent element of the American creed. As the United States proceeded through the Progressive, New Deal, and public interest cycles of state-building and consolidation, centralized administration became inextricably bound up in American political life. This chapter begins with the consolidation of the 1920s, in which the new bureaucracies managed to acquire a subordinate place within a state dominated by courts and political parties. Courts issued final decrees in discrete cases; administrators could continuously review prior decisions and engaged in rulemaking based on knowledge acquired by their own staffs. When Congress returned to the subject of federal administrative procedure after the war, it showed more interest in bolstering the rule of lawyers within the administrative process than the rule of law through the courts.
  • 2 - Legal Theory And Legal Education, 1920–2000
    pp 34-72
  • https://doi.org/10.1017/CHOL9780521803076.003
  • View abstract
    Summary
    This chapter traces the development of these two aspects of twentieth-century American law, legal theory and legal education, identifying, when appropriate, connections between them. In the last quarter of the twentieth century, a growing group of scholars began to examine closely the relationships among law, gender, and sexuality. In the 1970s and early 1980s, more and more feminist legal theorists repudiated the liberal vision and strategy. The central event in the history of American legal education was the establishment and dissemination of the Harvard model. In the last two decades of the twentieth century, the dramatic increase in the diversity of law school student bodies helped fuel another round of calls for reform of the character and content of legal education. In the judgment of the critics, the (reformed) Harvard model remained inexcusably sexist, racist, and conservative.
  • 3 - The American Legal Profession, 1870–2000
    pp 73-126
  • https://doi.org/10.1017/CHOL9780521803076.004
  • View abstract
    Summary
    The chapter begins with the founding of professional organizations and institutions around 1870 and their growth and development up to 1970. It tells the story of the mixed motives powering the professional reform movements and of their mixed achievements. The history of lawyers is of course much more than the history of their guilds and professional projects. Four major new developments dominated this period: the founding of big-city law firms to service the nation's large corporations, the rise of a plaintiff's personal injury bar, the bar's increasing specialization and segmentation by clienteles as well as by subject matter, and the emergence of public interest lawyering. Traces of the older ideals survived and continued to attract some students, if only a small minority, to the profession of law, having migrated from elite business lawyers to public interest and international human rights lawyers and non-governmental organizations.
  • 4 - The Courts, Federalism, and The Federal Constitution, 1920–2000
    pp 127-174
  • https://doi.org/10.1017/CHOL9780521803076.005
  • View abstract
    Summary
    With a de facto default rule favoring decentralization, American federalism is a governmental system based on the existence of independent political power at both state and national levels. When 1920 dawned, American federalism seemed on the verge of even more substantial change. The year 1929 witnessed the onset of the decade-long and world-wide Great Depression. Causing massive disruptions and hardships, the Depression challenged the capacities of democratic governments throughout the world. The resulting turmoil paved the way for Adolph Hitler to seize power in Germany, energized the forces of international Communism, and ultimately helped bring on a second and far more destructive world war. In the United States it gave birth to the New Deal and, together with the war and Cold War that followed, transformed American federalism. The New Deal altered the way the system functioned. Centralizing many areas of American life, a dozen path-breaking measures asserted new or expanded federal authority over the nation's economy and financial system.
  • 5 - The Litigation Revolution
    pp 175-194
  • https://doi.org/10.1017/CHOL9780521803076.006
  • View abstract
    Summary
    This chapter examines myths and realities in the recent history of litigation in the United States. The country spends a lot more time and money on legal services, including litigation, than at the beginning of the century. Though evidence of a litigation explosion is slim, there is plenty of evidence of what we might call a liability explosion, particularly in tort law. Adversarial legalism is a reality in administrative law. Courts are powerful and exercise their power when they wish to and when litigants press them to. The early twentieth century never dreamed of so-called mass toxic torts. Many states have passed laws to try to curb litigation or to put a ceiling on the amounts plaintiffs can collect. And judges, scholars, and policymakers have led a search for detours around the court system. Alternative dispute resolution (ADR) has flourished in the late twentieth century. The idea is to save time and money and to avoid litigation.
  • 6 - Criminal Justice in the United States
    pp 195-231
  • https://doi.org/10.1017/CHOL9780521803076.007
  • View abstract
    Summary
    The twentieth century opened with a dramatic transformation in the ideas and institutions of American criminal justice. This chapter offers an interpretive history of American criminal justice since 1920. It first examines the decades between the world wars when Americans grappled with the progressive legacy of socialized criminal justice in an era of political conservatism and crime wave scares. Then, the chapter traces the trends in the post-World War II era that culminated in the liberal moment of criminal justice policy in the 1960s. The Model Penal Code, a distinctive product of Cold War legal culture, promoted an unprecedented level of uniformity in the substantive criminal law for the states and attempted to resolve long-standing tensions between sociological and legal understandings of criminal responsibility. Finally, the chapter examines the severity revolution that transformed American criminal justice in the last quarter of the century.
  • 7 - Law and Medicine
    pp 232-267
  • https://doi.org/10.1017/CHOL9780521803076.008
  • View abstract
    Summary
    The historical relationship between law and medicine in the United States has been both collaborative and combative. Rather than sticking to a narrow formulation of the legal history of medicine focused on medical jurisprudence, this chapter expands the definition of the field and recasts it to include public health, health-related legislation, and the regulatory apparatuses of administrative law. The chapter examines how law and medicine create, enforce, or dismantle class, race, gender, sexualities, hierarchical medical arrangements, and corporate power. It adopts a chronological and thematic framework to highlight the ways in which traditional medico-legal issues, public health, and criminal law come together. In addition to the medico-legal questions regarding end-of-life decisions, patient rights, and privacy that became a focus of law school textbooks in the late twentieth century, the chapter considers the incorporation of the medical system into the state's policing systems over the century as a whole.
  • 8 - The Great Depression and the New Deal
    pp 268-318
  • https://doi.org/10.1017/CHOL9780521803076.009
  • View abstract
    Summary
    The New Deal era was the principal watershed in twentieth-century American constitutional development. The mechanisms through which the New Deal order ultimately secured the Court's constitutional sanction are readily discernible. This chapter describes the economic conditions of the Great Depression and details the executive and legislative responses produced under the Hoover and Roosevelt administrations. Though the Depression would linger throughout the 1930s until dispatched by the stimulus of wartime production, the precipitous economic decline of its first four years was particularly staggering. The chapter also examines contemporary controversies over the growth of federal executive authority and the elaboration of the administrative state. Just as political process theory helped to rationalize the Court's withdrawal from enforcing federalism limitations on Congressional exercises of the Commerce Power, so it also explained the persistence of judicial enforcement of the Dormant Commerce Clause. The chapter also explores the growth of protections for civil rights, civil liberties, and democratic processes.
  • 9 - Labor’s Welfare State: Defining Workers, Constructing Citizens
    pp 319-358
  • https://doi.org/10.1017/CHOL9780521803076.010
  • View abstract
    Summary
    During the twentieth century and into the twenty-first, the expansion of the welfare state around a citizen's relation to employment defined the meaning of citizenship itself. This chapter analyzes the emergence of labor law as a distinct field. It examines the discursive and political struggles that gave birth to state regulation of collective bargaining, the passage of employment standards legislation, and the growth of social provision during the first half of the twentieth century. The standard story told by generations of historians since the 1940s celebrates the New Deal and the labor law regime that nourished and was made possible by the rise of industrial unionism. The chapter discusses key New Deal measures including the National Recovery Administration, the National Labor Relation Board, the Fair Labor Standards Act, and Social Security, central to the standard story. Work associated with home and family, presumably distinguished by relations of intimacy or familialism within the household, stood outside of the labor law.
  • 10 - Poverty law and income Support: From the Progressive Era to the War on Welfare
    pp 359-376
  • https://doi.org/10.1017/CHOL9780521803076.011
  • View abstract
    Summary
    The roots of poverty law stretch back to the late nineteenth century, when privately funded organizations arose to provide legal assistance to poor immigrants. First in the Progressive era and then in the New Deal, anti-poverty reformers promoted policies to mitigate income insecurity. Responding to the income and employment effects of the Great Depression, the New Deal administration of President Franklin Roosevelt embraced the mothers' pension concept by including federal financial support for state-run mothers' pension programs in the Social Security Act of 1935. Jacobus tenBroek laid the foundations for welfare rights law more than a decade before it was seen as a field of legal research and activism. In his analysis, tenBroek focused on the state of California to show how the welfare systems in the states created dual systems of aid to the poor, which, in turn, also created dual systems of family law.
  • 11 - The Rights Revolution in the Twentieth Century
    pp 377-402
  • https://doi.org/10.1017/CHOL9780521803076.012
  • View abstract
    Summary
    For most of U.S. history, Americans sought to vindicate their rights through legislative action. The rights revolution of the twentieth century expanded the number and nature of the claims that could be presented as claims about rights and added the courts to legislatures as important venues for appeals to rights. This chapter takes up the institutions of the rights revolution first, because those institutions were the preconditions for creating and, perhaps more important, for sustaining a rights revolution concerned with substance. But, of course, those institutions were inserted into a political and intellectual universe with its own features. The chapter also addresses a tension that became more apparent as the rights revolution advanced, the tension between individualist and collectivist understandings of rights. At the turn of the twentieth century constitutional rights were primarily property rights. Social welfare rights or entitlements, as they came to be called in the late twentieth century had a significant place in the rights revolution.
  • 12 - Race and Rights
    pp 403-441
  • https://doi.org/10.1017/CHOL9780521803076.013
  • View abstract
    Summary
    Profound changes in American racial attitudes and practices occurred during the second half of the twentieth century. This chapter examines the social and political conditions that enabled the modern civil rights revolution and situates the Court's racial rulings in their historical context. Several decisions in the 1960s expanded the concept of state action, enabling the justices to strike at instances of race discrimination that previously were thought beyond the reach of the Fourteenth Amendment. The Court began to revolutionize First Amendment doctrine, criminal procedure, the law of federal courts, and habeas corpus rules, based largely on the justices' conviction that Southern states could not be trusted to deal fairly with matters involving race. Changing social and political circumstances halted civil rights progress just as the movement reached its zenith. As civil rights leaders shifted their focus to the North and broadened their objectives to include economic redistribution, many previously sympathetic whites became alienated from the movement.
  • 13 - Heterosexuality as a Legal Regime
    pp 442-471
  • https://doi.org/10.1017/CHOL9780521803076.014
  • View abstract
    Summary
    The author uses heterosexuality to designate the regime not because she wants to privilege the term but to suggest the way that state regulation privileged it, making heterosexuality a legally persuasive institution in part by burdening homosexuality with stigma and penalty. At mid-twentieth century, a homo/heterosexual binary was being inscribed in government policy. It is evident in two of the specific policy arenas in which policing homosexuality and provisioning heterosexuality were tightly fused at mid-twentieth century: veterans benefits and immigration policy. As with veterans benefits, mid-century immigration policy not only penalized homosexuality but also heaped rewards on heterosexuality. By the 1960s, the legal regime of heterosexuality was well established. So far, one has mapped out the most important of the arenas in which it took hold in roughly the middle third of the twentieth century: in vice and criminal law, public employment, Social Security, taxation, benefits policy, and immigration law.
  • 14 - Law and the Environment
    pp 472-521
  • https://doi.org/10.1017/CHOL9780521803076.015
  • View abstract
    Summary
    Two essential categories of environmental law and litigation, nuisance and natural resources, are ancient and capacious: they have occupied courts, legislatures, and other governmental authority for centuries. To resolve environmental problems, Anglo-Americans have continuously developed or recognized new kinds of nuisances. Since the turn of the twentieth century environmental law has been based largely on non-legal, fact-based disciplinary inquiry into the environment and society's usage of common resources. Even as firms grew in the Gilded Age, state governments also grew, and they asserted and extended their authority into those areas of the environment in which the law did not recognize private property. Charles Francis Adams demonstrated in the 1870s that sunshine laws helped regulators manage the interests of powerful actors to serve public welfare; conversely, the necessary secrecy of military projects may enhance national security, but it risks camouflaging threats to the public health of neighborhoods living near military sites.
  • 15 - Agriculture and the State, 1789–2000
    pp 522-562
  • https://doi.org/10.1017/CHOL9780521803076.016
  • View abstract
    Summary
    This chapter relates a broad survey of American agricultural development to trenchant and formative moments of legal change. During the period before the Civil War, markets were primarily local and regional in scope, and as a result, the states and not the federal government assumed primary responsibility for preserving and expanding agricultural economic exchange. During and after the Civil War, the federal government paid greater attention to the physical and legal expansion of markets, transportation networks, and agricultural production. Many of the economic issues and trends in American agriculture that first surfaced in the 1930s and 1940s, including subsidy programs, farm credit, and antitrust, continued to influence policy debates throughout the twentieth century and into the twenty-first. Other issues such as environmental harm and deregulation, arose for the first time in the 1960s and 1970s, as policymakers, lobbyists, and interest groups sought to diagnose and solve agriculture's continuing problems.
  • 16 - Law and Economic Change During the Short Twentieth Century
    pp 563-612
  • https://doi.org/10.1017/CHOL9780521803076.017
  • View abstract
    Summary
    The brief recounting of the American economy in the twenties and thirties raises obvious questions about law and economic change. Economic change is the shift from one enacted, in both senses, understanding of economic life to another, in the case of the short twentieth century, from an associationalist economy to an impatient economy. This chapter explicates this economic change, and interrogates it in order to understand the role of law in its occurrence. Despite the essential indeterminacy of law's reaction to smaller scale economic change, a few underlying attitudes can be teased out, one can identify law's general attitude toward change, its attitude toward technological as opposed to cost-driven change, and its attitude toward system-wide change. First, with respect to law's general attitude toward smaller scale economic change, it is important to remember that there are three possible answers that law might regularly give when economic actors seek its aid stonewall change, support it indiscriminately, or slow it down somewhat.
  • 17 - The Corporate Economy: Ideologies of Regulation and Antitrust, 1920–2000
    pp 613-652
  • https://doi.org/10.1017/CHOL9780521803076.018
  • View abstract
    Summary
    As Willard Hurst noted, the American legal structure reflected a tension between law that regulated an economic institution's power to exploit and law that facilitated the entrepreneur's ambitions, sometimes through direct subsidy but more often by creating the pre-conditions for growth and then stepping back to leave the entrepreneur a relatively free hand. That tension defines the corporate economy of the twentieth century. The radical alterations in the normal pattern of the industrial and commercial economy might have had a legitimating effect on the role of the federal government's participation in the economy. The last quarter of the twentieth century witnessed a transformation of the corporate economy. Some observers dubbed it the liquefaction of the economy. Once a thriving part of the practice of corporate law, by the 1980s antitrust was in many ways reduced to an obstacle to be overcome, a delaying tactic deployed by incumbent managers trying to fend off hostile takeovers in the market for corporate control.
  • 18 - Law and Commercial Popular Culture in the Twentieth-Century United States
    pp 653-679
  • https://doi.org/10.1017/CHOL9780521803076.019
  • View abstract
    Summary
    Over the course of the twentieth century, the commercial culture industry scanned nearly every nook and cranny of the U.S. legal system. At the beginning of the twentieth century, the law school professors who were coming to dominate legal scholarship claimed to find no reason for considering the (mis)representations of law in commercial culture. Adapting the research tradition of English common law scholarship, the early twentieth-century's professional legal writers carefully restricted their vision. The law-and-economics framework helped shape both legal practice and theory, particularly in antitrust and administrative law, during the last third of the twentieth century. The various trials of the century, such as those of Harry Thaw and O. J. Simpson, suggested the overlap between the formal legal field and the world of commercial popular culture. Official legal understandings, as research projects involving the interaction of law and culture have begun to argue, unfolded in complex conversations with discourses and imagery produced by the lexitainment industry.
  • 19 - Making Law, Making War, Making America
    pp 680-717
  • https://doi.org/10.1017/CHOL9780521803076.020
  • View abstract
    Summary
    This chapter explores the different functions that law plays in relation to war: as a means to control war, as an aspect of war-related state-building, and as a way to manage American society during war. American constitutional scholars tend to focus inward when examining great debates about the scope of government power in the first decades of the twentieth century, but global events, especially war, had an important impact on the expansion of federal government power. Tanks and submarines are war material, but wars are fought also with other kinds of implements. Strategy is a weapon, information is a weapon. Another tool used in wartime, especially to manage the environment on the home front, is law. The chapter sees this in the context of World War I civil liberties. It ends with a discussion of war and law in the wake of the terrorist attacks of September 11, 2001, and Cold War rights.
  • 20 - Law, Lawyers, and Empire
    pp 718-758
  • https://doi.org/10.1017/CHOL9780521803076.021
  • View abstract
    Summary
    At the end of the twentieth century, scholars from many disciplines noted the rise of "norms" or even "legalization" in U.S. foreign policy and in the practice of international relations more generally. This chapter examines the process of legalization, and its celebration. By tracing current institutional developments to their geneses a century ago, one argues that the current situation in international relations reflects a relative success in "Americanization" abroad that also reinforces the power of lawyers and the clients they serve domestically. Our analysis reveals the contrasts and continuities between the grand notables of the foreign policy establishment (FPE) and the legal enterprises and technologies that they helped construct, from huge law firms to law schools competing to legitimate the law to legal specialties that serve as custodians of an area of practice and its orientation. Indeed, each of the case studies discussed in the chapter illustrates perfectly the process of institutionalization and autonomization.
  • Bibliographic Essays
    pp 759-902
  • https://doi.org/10.1017/CHOL9780521803076.022
  • View abstract
    Summary
    This bibliography contains a list of reference materials and works related to the history of law in America. The book emphasizes the central importance of institutions to criminal justice history and the role of criminal justice ideas and institutions in the development of American liberalism and the modern liberal state. The question whether affirmative action is defensible, in general, as applied to law school admissions, or as applied to the hiring and promotion of law school faculty, has been addressed by legal scholars in many books and articles. Law firm histories are generally an uninspiring genre of in-house commissioned coffee-table books chronicling firms' founders and expansions, but they contain valuable clues to the symbiosis of firms and business clienteles. An understanding of American federalism requires an understanding of the ways in which states, localities, and the three branches of the national government interacted and changed over time.

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