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THE CAMBRIDGE HISTORY OF LAW IN AMERICA VOL III: THE TWENTIETH CENTURY AND AFTER (1920-). Ed by Michael Grossberg and Christopher Tomlins Cambridge: Cambridge University Press (www.cambridge.org), 2008. xviii + 958 pp. ISBN 9780521803076. £79.

Document Cited authorities 1 Cited in Related
Vincent
DOI10.3366/elr.2010.0307
Date01 September 2010
Pages513-516
Published date01 September 2010
AuthorJoshua Getzler

The dominant themes of this volume, which concludes Cambridge University Press's History of Law in America with a survey of the “short twentieth century”, are threefold. The first is the rise, out of Progressive politics, of the new-fangled Realist models of law in the 1920s, followed by a rupture with “classical” practices of private and public law wrought by the New Deal in the late 1930s. The second is the agonised history of race relations in the interwar and Cold War eras, culminating in the uncertain liberalism of the Warren Court, which concomitantly transformed rights talk from an economic to a social discourse. The third, and perhaps most original, theme of the book is the transformation of America into a law-exporting imperial force. Intertwined with this threefold story are two sub-themes – a view of the role of law in representing and constructing interest groups in America, including the legal profession itself, and an elegiac regret at the rightward trajectory of law and government in America since the collapse of the liberal consensus in the late 1960s.

Maybe only reviewers will read the near one thousand pages of this book through at one go, but to do so is to uncover some weaknesses and lacunae. There is a good deal of unnecessary repetition of material and argument from chapter to chapter, notably in charting the course of New Deal constitutionalism in the 1930s and 1940s and of civil rights law in the 1950s and 1960s. Yet this huge volume accords little or no space to historical analysis of basic categories of the law such as contract, tort, property, or administrative law. This striking lack of curiosity about the evolution of internal legal culture is surely not accidental. It reflects the consciousness of an American legal academy that is now resolutely post-Realist; indeed, there is no longer any awareness of a legal tradition left even to rebel against. Following from acceptance of the Realist revelations that law has no autonomy from politics and that doctrine is nothing but illogical or indeterminate professional mystification, the central doctrines and institutions of the common law are either derided, ignored, or subsumed into more modish categories. For a work of history such a posture is problematic, assuming a dominance of Realist consciousness pervading legal practice from an early date, a reading back of familiar contemporary ideas into a foreign past. This mindset also confines its attention too narrowly to the surface rhetoric of elite appellate courts and legal academies. The editors (e.g. Preface xi-xiii) and many of the contributors are avowedly followers of James Willard Hurst in their historical method, but Hurst himself was far more interested in the grass-roots empirical qualities of law in America, and this echt bottom-up approach is perhaps under-represented in the twenty offered chapters.

Daniel Ernst's introductory essay on “Law and the State, 1920–2000: Institutional Growth and Structural Change” sums up the main lines of argument in much that follows. He points out that a centralising bureaucracy at the federal level, projecting increased confidence in...

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