The revision thickens

Law and History Review

Volumn 20, Issue 3, 2002, Pages 631-637

  Siegel, Stephen A ^a  

^a DEPAUL UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 2442506513     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.2307/1556321     Document Type: Review

References (36)

1. See, e. g. , Alan Jones, "Thomas M. Cooley and Laissez-Faire Constitutionalism: A Reconsideration," Journal of American History 53 (1967): 751
2. Charles McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism," Journal of American History 61 (1975): 972
3. Michael Les Benedict, "Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism," Law and History Review 3 (1985): 293-331.
4. Manuel Cachán and Lewis Grossman discuss this strand. Manuel Cachán, "Justice Stephen Field and 'Free Soil, Free Labor Constitutionalism': Reconsidering Revionism," and Lewis Grossman, "James Coolidge Carter and Mugwump Jurisprudence," Law and History Review 20 (2002): 541-76 and 577-629.
5. See, e. g. , Robert Gordon, "Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920," in Professions and Professional Ideologies in America, 1730-1940, ed. Gerald L. Geison (Chapel Hill: University of North Carolina Press, 1983)
6. Thomas Grey, "Langdell's Orthodoxy," University of Pittsburgh Law Review 45 (1983): 1
7. Morton Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992).
8. Duncan Kennedy, "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.
9. "Jurists" refers to lawyers, judges, and legal scholars collectively.
10. Christopher Langdell, "Harvard Celebration Speech," Law Quarterly Review 3 (1887): 123, 124.
11. Kennedy, "Toward an Historical Understanding," 3.
12. See, e. g. , Owen Fiss, Troubled Beginnings of the Modern State, 1888-1910, vol. 8 of History of the Supreme Court of the United States (New York: Macmillan, 1993)
13. William Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886-1937 (New York: Oxford University Press, 1998).
14. Some of this literature is discussed in the remainder of this commentary.
15. Cachán, "Justice Stephen Field," 547, n. 20
16. (quoting McCurdy, "Justice Field and the Jurisprudence of Government-Business Relations," 973).
17. Howard Gillman, The Constitution Beseiged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N. C. : Duke University Press, 1993), 7-8, 64-75.
18. Cachán, "Justice Stephen Field," 544.
19. For example, by setting up historically contingent understandings of ideas and doctrines. See, e. g. , Daniel Ernst, Book Review, "The Critical Tradition in the Writing of American Legal History," Yale Law Journal 102 (1993): 1019, 1028-34 (reviewing Morton Horwitz's views)
20. G. Edward White, Book Review, "Transforming History in the Postmodern Era," Michigan Law Review 91 (1993): 1315, 1320-27 (same).
21. See, e. g. , Charles McCurdy, "The 'Liberty of Contract' Regime in American Law," in Vie State and Freedom of Contract, ed. Harry N. Scheiber (Stanford: Stanford University Press, 1998), 161, 167-79. Cachán, "Justice Stephen Field," 547, n. 20, mentions McCurdy's later scholarship.
22. Paul Kens, Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age (Lawrence: University Press of Kansas, 1997), 8. Cachán, "Justice Stephen Field," 545, n. 13, notes Kens's scholarship.
23. 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.
24. See Grossman, "James Coolidge Carter," 591-95, 602-6.
25. See Stephen Siegel, "John Chipman Gray and the Moral Basis of Classical Legal Thought," Iowa Law Review 86 (2001): 1513, 1515 (discussing private law historiography).
26. Siegel, "John Chipman Gray;"
27. 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 McIntyre Cooley, and Christopher Tiedeman)
28. idem, "Joel Bishop's Orthodoxy," Law and History Review 13 (1995): 215
29. William LaPiana, "Jurisprudence of History and Truth," Rutgers Law Journal 23 (1992): 519, 537-54 (discussing Philemon Bliss, Edward Phelps, John F. Dillon, and James C. Carter).
30. 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. , Francis Wharton, Commentaries on Law (Philadelphia: Kay and Brother, 1884)
31. Mathias Reimann, "Nineteenth-Century German Legal Science," Boston College Law Review 31 (1990): 837
32. 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.
33. See William Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press), 235-48.
34. See Bruce Kimball, "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.
35. On thick description, see Clifford Geertz, The Interpretation of Cultures (New York: Basic Books, 1973)
36. Ronald Walters, "Signs of the Times: Clifford Geertz and Historians," Social Research 47 (1980): 537.