Pragmatism, Statesmanship, and the Supreme Court (original) (raw)
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Review of “The Transformation of American Law, 1780—1860,” by Morton J. Horwitz
1977
This is a complex and absorbing book that should be of considerable importance to courts and lawyers as well as to historians. Professor Horwitz opens a realm of common law that few could enter without the assistance of his extraordinarily extensive research. He reviews the state and federal court decisions in which modem property, tort, contract, and commercial law were born; he assembles this great mass of law in lucid chapters that allow the reader to follow the development of case law in individual decisions. Much of this formative law is here available to the ordinary reader for the first time. Horwitz sees a pattern in this law that was first described by Sir Henry Maine: "the movement of the progressive societies has hitherto been a movement from Status to Contract." ' By "status" Maine means the place of an individual in the group-originally the family-that defines his rights and obligations. In primitive societies the family's interests are all, and there is no conception of individual freedom. The slow progress of morality has broken down the old rigid status relationships and created instead a system of voluntary agreements among free individuals. The transition from status to contract occurred with considerable speed in the English-speaking world at the beginning of the nineteenth century. The elaborate social relationships of the eighteenth century were built on the land tenure systems of the Middle Ages; every person's rank was determined in descending order from the King. Dress, manner, and education were all determined by status: Appearances on the streets of London and Paris two centuries ago were manipulated so as to be more precise indicators of social stand-1. H. MAmnr, ANCiENT LAw 100 (Morgan ed. 1917) (1st ed. London 1861).
Transformations in American Legal History II - Essays in Honor of Morton J. Horwitz. Daniel W. Hamilton and Alfred L. Brophy (eds). Cambridge. Mass.: Harvard University Press pp. 504-542., 2011
In this essay I examine the extent to which the scholarship of Morton J. Horwitz contributed to enriching legal education and scholarship in England, Canada, and Australia. My thesis is that Horwitz’s work (principally The Transformation of American Law, 1780–1860) provided an important stimulus at a critical time in the late 1970s and 1980s when legal education, legal scholarship, and legal history avowedly oriented toward anti-formalism and law and society were struggling to be legitimized beyond the United States. For a short but crucial period that subsequently appears as law’s tipping point—manifested in the move from an obsession with legal doctrine and legal institutions to the treatment of law in its larger socioeconomic context—Horwitz was an inspiration to those seeking to treat law as part of society, to transcend both the traditional chasm between law and justice and the dominant ahistorical tendencies in law schools, and to challenge legal history’s almost exclusive preoccupation with the law and legal institutions of medieval England. The reasons for Horwitz’s limited influence in England, Canada, and Australia are considered. It is argued that the questions that Horwitz asked have in some ways increased rather than diminished in importance since they were first posed in the 1970s and 1980s. In Transformations in American Legal History II - Essays in Honor of Morton J. Horwitz. Daniel W. Hamilton and Alfred L. Brophy (eds). Cambridge. Mass.: Harvard University Press. ch. 30. pp. 504-542.
Transformation of American Legal History: Ideology, Politics and Law (Daniel Hamilton and Alfred Brophy eds., Cambridge: Harvard University Press), 2008
Law and History Review, 2010
There is an interesting section on the transition to the job-the heavy learning curve, the problems of getting an office running, and the remarkable variety of cases federal judges confront. The chapter on the nature of the job holds few surprises. Most judges like the job with its broad range of subjects and conflicts, although there are complaints about the isolation. It is, though, disturbing to see such distinguished judges and ex-judges as Abner Mikva, Robert Bork, and James Buckley agreeing, at least on their notable Court of Appeals (D.C. Cir.), that after the conference on a case, the judge will go back and likely never speak again in person with his colleagues about it. When coupled with the "revelation" in another chapter that the law clerks are chiefly responsible for opinions (183), one cannot help wondering what creative, thoughtful, and analytical work federal judges are actually doing. A chapter partially named "Getting Along with Others" encompasses Alfred Goodwin's (9th Cir.) discussion of political trials. There is an interesting, though troubling, discussion of past tensions on the Seventh Circuit Court of Appeals and two pages allotted to Andrew Hauk's (C.D. Cal.) oral history demonstrating his "outrageous rudeness." Finally, Joyce Hens Green sums up what makes a good judge: "A judge has to have courage and express the way it is in her opinions, whether oral or written, not just to ride with the waves of the time, economically, politically, emotionally" (212). Both specialists and nonspecialists will learn from Domnarski's book. Nonspecialists will receive a painless introduction to the lives of federal judges and the conditions under which they work. The scholar will pick up a variety of interesting tidbits with a reminder of what a valuable resource for research on the courts oral histories can be.
The Problems of Jurisprudence by Richard A. Posner
1990
Reviewed by Raymond B. Marcin* Dust off those old copies of William James.' Pragmatism is "in." 2 Richard A. Posner's newest book, THE PROBLEMS OF JURISPRUDENCE, may well signal the vocabulary of Pragmatism as the lingua franca of jurisprudence in the 1990's. Those who are looking for a "unified field theory" to encompass all of the insights of the great jurisprudential movements of today will find something to chew on in Posner's new book. He does not announce such a theory; in fact, he all but discounts it in his treatment of literary, feminist, and criticalist jurisprudence. In his endorsement of philosophical pragmatism, however, he provides a vocabulary and a set of concepts that render communication among the various contemporary schools, especially the law-and-economics and so-called new-legal-process schools, possible and even efficient. There is a surprise or two in the book for doctrinaire law-and-economics disciples. Posner actually modifies some of his previously published views on wealth maximization, which he now sees as playing only a "limited role" in his theory. 3 Indeed, he spends a goodly portion of the book recasting the wealth-maximization approach to law in pragmatic terms. 4 In reading the * Judge of the United States Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School.