[The previous essays in this series are here, here, here, and here.]
Anyone in search of a well-written, informative, friendly, and even entertaining overview of American legal history might appreciate one of Stanford law professor Lawrence M. Friedman’s three different treatments of the topic.
Law in America: A Short History (2002) is the shortest (192 pages, not counting the index).
A History of American Law (4th ed. 2019) is the most comprehensive and the longest (at 796 pages).
But the most rewarding and engaging choice for law and pre-law students could be American Law in the 20th Century (2002) (607 pages).
Its major themes are “the rise of the welfare-regulatory state”; the increased use of judicial review; the tensions between federal and state laws and courts; “the shift of power and authority to Washington—to the national government”; the enormous growth in “the size and scale of the legal system” (including in the number, and the diversity, of lawyers); and the dramatic rise in cases concerning products liability, civil rights, and immigation and citizenship.
As the book illustrates, law not only permeates American society, but “is a product of society.” In particular, “The immediate source of law is not social change but what we can call legal culture. By this I mean people’s ideas, attitudes, values, and expectations with regard to law,” themselves “a complicated, existing system, a system of crosscurrents and interrelations, a web of values and norms.”
The longest of Friedman’s three histories compares law to “the reflection of a face in a slowly moving river, that is, somewhat refracted and distorted”; the briefest concludes that “Law, in short, is a mirror held up against life.”
Indeed, each of these books moves beyond courts, commissions, and agencies to illuminate the interdependence and interplay of legal developments with those in global, national and local politics, economics, and demographics; in technology (especially in transportation and communication); and in the public’s perspectives and moods (including popular reactions to rulings and regulations).
About one-quarter of the main text of American Law in the 20th Century concerns “The Old Order” (from the late 19th century through 1932); the next two-thirds examines the history and implications of “The New Deal and Its Successors” (1933-1979); and the concluding 85 pages summarize, “The Way We Live Now: The Reagan and Post-Reagan Years.”
Particularly useful to students will be the book’s introductions to, and contextualization of, such traditional course areas as contracts and corporate law (Chapters 3 and 12), torts (Chapter 11), criminal law (Chapters 4 and 8), property (Chapter 13), family law (Chapter 14), and constitutional law (throughout). It includes detailed discussions of legal issues of racial and gender equity (Chapters Five and Ten); as well as “freedom of speech and what we might call political justice,” especially during the era of McCarthyism and the Cold War (Chapter 10).
Friedman reviews a number of decisions traditionally included in first-year casebooks, and begins one chapter by warning, “Civil procedure is the ugly duckling of law. It is a field only a lawyer can love; and even most lawyers find loving it a struggle.”
His survey of the superstructure and infrastructure of American law captures complexities, rejects casual simplifications, and focuses at times on the history-shaping roles of individual lawyers and litigants.
The book begins with the notorious 1905 decision of Lochner v. New York, in which the Supreme Court struck down as unconstitutional a state statute that restricted the number of hours that bakery employees could work each week and each day.
However, Friedman quickly clarifies that in “much more obscure” decisions, the Court actually upheld state legislation, including several laws on workers’ rights. He concludes that, in the early part of the century, the Justices “were not so much reactionary, as soundly upper middle class”; and that they, “and judges in general, were cautious and incremental. They did not consistently adhere to any economic philosophy,” although judges “were much more likely to sympathize with professional people, and skilled artisans, than with laborers and unskilled workers, and their unions.”
After devoting a chapter to the century’s changes in the composition, education, and (bar) organizations of lawyers, Friedman chronicles the rise of the “uniform laws” movement, and changes in bankruptcy, corporate, antitrust, tax, and labor law.
“On the whole, regulation that appealed to the middle class was much more likely to get enacted than programs pushed by the labor unions.” In particular, the 1906 federal Food and Drug Act was sparked in part by the deeply disturbing (and disgusting) depictions of meatpacking plants in Upton Sinclair’s The Jungle, published that year.
“In an age of mass media, and mass communication, the role of scandal and incident in lawmaking was bound to multiply”—if not always predictably. Sinclair, who had intended his novel as a sweeping indictment of capitalism, concluded, “I aimed at the public’s heart, and by accident I hit it in the stomach.”
In 1935, the Supreme Court’s Schechter Poultry Corp. v. United States decision struck down the National Industrial Recovery Act as an unconstitutional Congressional intrusion upon commerce. Yet only a few years later (after the failure of President Roosevelt’s “court-packing” plan to enlarge the number of Justices), the Court “renounced its economic activism [and] gave its stamp of approval to all the programs of the New Deal. It simply abandoned the whole line of thought that Lochner v. New York epitomized.”
Friedman contends that the New Deal, which included the creation of the Securities and Exchange Commission (1934) (among other agencies), as well as the passage of the Social Security Act of 1935, “was not. . . a total revolution. . . ; but it was a dramatic quickening, a ratcheting upward. . . ,” spurred not just by the Great Depression but by such developments as radio, newsreels, and movies “that pulled national attention away from the neighborhoods and into Washington, D.C.”
He discusses also the “second wave,” under the “War on Poverty” and “Great Society” initiatives of the Johnson Administration in the 1960s; and a “third wave,” devoted to protecting the environment, and also “social justice, rights, health and safety, [and] style of life.”
Friedman devotes a later chapter to the changing demographics and dynamics of the legal profession, and of legal education. Students, especially, might appreciate his brief discussions and assessments of the emergence (in the 1980s) of the critical legal studies (CLS), critical race theory, and “law and economics” movements, and the increasing tendency of legal scholarship to cite non-law sources (including “everything in the current intellectual circus world from diamond-hard to mushy-soft”). He reports that “In 1900 law reviews were much concerned with expounding the law. In 2000 they were most concerned with criticizing it—or suggesting changes.”
Friedman observes that “competition between [big law] firms became more intense in the last part of the twentieth century. . . . They were more ruthless in pruning out deadwood, even when the deadwood held a partnership interest. A partner’s income depended on how much business he brought in: as the phrase went, you ‘eat what you kill.’ . . . [These] firms now began to hunt business more actively, prowling about the business world like leopards on the plains. They made presentations to clients like advertising agencies, they concerned themselves with public relations.”
The business of practicing law also changed dramatically for smaller firms. In 1975, the Supreme Court prevented state bars from forcing their members to adhere to minimum fee schedules (thereby accelerating the shift to charging clients by the number of “billable hours” expended on their matters). Two years later, the Court allowed attorneys to advertise their services.
Yet the profession was already losing some of its mystique and its popular respect, which some commentators considered to have peaked in the 1950s and 1960s. Friedman notes the rise of (anti-)lawyer jokes, and the reportage of American Lawyer and National Law Journal, which were “breezy, gossipy, full of inside dope and human interest.”
As an abbreviated substitute for parts of, or as an adjunct to, American Law in the 20th Century, one might read Law in America: A Short History.
Its initial chapter introduces and explains federalism, judicial review, and the basic differences between common law and civil law systems (although observing that the roles of their judges have tended to converge); the second chapter summarizes “American Law in the Colonial Period”; and the third reviews “Economy and Law in the Nineteenth Century.”
Of the remaining two-thirds of Law in America, parts of the fourth chapter (“Family, Race, and the Law”), fifth chapter (“Crime and Punishment in the Republic”), and much of the sixth (“The Twentieth Century and the Modern Administrative-Welfare State”) and seventh (“American Law at the Dawn of the Twenty-First Century”) chapters recap some of Friedman’s discussions in the 20th Century volume.
Although the author’s extensive A History of American Law (4th ed. 2019) covers the subject from colonial times onwards, approximately 82 percent of its almost 800 pages are devoted to pre-20th century developments. In its preface, Friedman notes, “I have expanded somewhat the treatment of the twentieth century, but it is still, I must confess, something of a poor relation” to the book’s examination of earlier eras.
On a broader level, one might compare the evolution of American law, and of its structures and strictures, to those of the subjects of The Whole Earth Catalog creator Stewart Brand’s How Buildings Learn: What Happens After They’re Built (1994).
Chronicling the types of transformations in the forms and functions of particular buildings, Brand (who, according to a biography, wrote in his 1986 journal, with regard to the so-called KISS principle, “Keep it simple stupid, is a good way to keep it stupid”) observes that “Buildings keep being pushed around by three irresistible forces—technology, money, and fashion.”
He concludes, “an adapted state is not an end state. A successful building has to be periodically challenged and refreshed. . . . The scaffolding was never taken completely down around Europe’s medieval cathedrals because that would imply that they were finished and perfect, and that would be an insult to God.”
