TRANSFORMATIONS IN AMERICAN LEGAL HISTORY

Vol. 19 No. 7 (July, 2009) pp.502-504

TRANSFORMATIONS IN AMERICAN LEGAL HISTORY: ESSAYS IN HONOR OF PROFESSOR MORTON J. HORWITZ, by Daniel W. Hamilton and Alfred L. Brophy (eds). Cambridge: Harvard University Press, 2009. 408pp. Hardcover. $45.00/£33.95/€40.50. ISBN: 9780674033467.

Reviewed by Stuart Banner, UCLA School of Law. Email: banner [at] law.ucla.edu.

This book is the first of two planned festschrift volumes in honor of the legal historian Morton Horwitz, who has been teaching at Harvard Law School since 1970. Horwitz’s most well known books are both called THE TRANSFORMATION OF AMERICAN LAW (Horwitz 1977 and 1992), which explains the title of this volume. Seventeen of the eighteen contributors are former students who are now law professors or historians themselves. The eighteenth is Horwitz’s longtime colleague Charles Donahue. As is often true in collections like these, there is no common theme to the chapters. Most of the authors have contributed substantive historical essays within their various fields of expertise. The exceptions are William Treanor and Daniel Hamilton, who offer short appreciations of Horwitz himself, and Donahue, who appraises the state of legal history generally. The authors of the substantive historical pieces make varying degrees of effort to connect their work to Horwitz. On one end of the spectrum, Daniel Hulsebosch prefaces his discussion of the early American judges James Kent and Joseph Story with a few pages analyzing what Horwitz had to say about them, and Assaf Likhovski frames his research in the law of British Palestine as “Horwitzian journeys.” On the other end, a few of the authors do not mention Horwitz at all.

Some of the essays suggest the influence of Horwitz’s own work. Polly Price’s chapter on “Stability and Change in Antebellum Property Law” is reminiscent of Horwitz’s first Transformation book, both in its subject and in the way Price amasses early reported court opinions to build up a sense of what judges believed they were doing. Dalia Tsuk’s essay on “Pluralism, Individualism, and Democracy” in the twentieth century recalls Horwitz’s second Transformation book, which was more of a high-level intellectual history of legal thought. But the chapters are in a wide variety of styles, most of which are very different from Horwitz’s. Stephen Siegel traces the doctrinal origins of “strict scrutiny,” an important concept in constitutional law in the second half of the twentieth century. Alfred Brophy examines the role of utilitarian thinking in debates over the Fugitive Slave Act of 1850. Elizabeth Blackmar contributes a history of the “free rider,” who has played a leading role in the economic analysis of law. Gregory Mark offers what he calls a “speculative essay” on the shifting purposes served by the limited liability of corporate shareholders. Mary Bilder and Alison LaCroix each explore the colonial origins of different aspects of early republican constitutionalism. It is hard to draw any conclusion from these diverse essays, other than that Horwitz’s former students evidently do not [*503] constitute any particular school. They span the full range of approaches to legal history.

As with many festschriften, most of the chapters read like small parts of larger works in progress or already published. The contributors are all very good at what they do, so the essays are all interesting and well crafted, but few would likely have been published on their own. For example, Sally Hadden’s close study of the account books of a two-man Charleston law firm in the 1790s would make a fascinating part of a chapter of a book, as would Lewis Grossman’s account of the arguments made by James Coolidge Carter in three Supreme Court cases of the 1890s. But neither would feel complete as a journal article in its own right. Not that there’s anything wrong with that, as Jerry Seinfeld would say. It is good to have a forum for shorter papers. That is, it’s good so long as people will read them, which brings up a perennial problem.

Festschriften for law professors were once very rare, but they are becoming much more common. This may be a function of the turn toward interdisciplinarity in legal scholarship. The normal vehicle for honoring a law professor was once a special issue of a law review, and that is probably still the most common way, but the legal academy has shifted toward the norms of disciplines like history and philosophy, and the festschrift is one of them. There are still relatively few American law professors, compared with professors in other disciplines, who send enough students on to academic careers to populate a festschrift. The ones that do are usually the ones, like Morton Horwitz, with one foot in another discipline, so it is not surprising that most of these recent volumes have honored law professors in interdisciplinary fields like legal history, jurisprudence, and international law.

The problem is that the papers published in these books can be nearly impossible for researchers to find. The articles in a special issue of a law review are indexed just like regular articles, and they are word-searchable in the same electronic databases. There is no comparable research infrastructure for essays in books, with one exception – Michael Taggart’s index of common law festschriften (Taggart 2006) – but even that index is not widely known. As a result, very few of the papers published in festschriften get much notice. Someone interested in Hugo Black, for instance, would learn a lot by reading Christopher Schmidt’s chapter in this volume on Black’s changing views of the civil rights movement, but first he or she would have to find it, and that would be no easy task. Students of the history of intellectual property will want to read Oren Bracha’s essay on early republican conceptions of the inventor, as well as Steven Wilf’s chapter on the role of morality in the nineteenth-century law of copyrights, patents, and trademarks. Unless students hear of these essays by word of mouth, however, they are not likely to hear of them at all. A festschrift can be like a witness protection program for scholarship.

One obvious solution would be to publish festschriften online. Harvard University Press has not done so with this book, nor, to my knowledge, have any of the other publishers of festschriften in recent years. If the reason is that publishers need to sell [*504] enough copies to recoup printing costs, perhaps the ultimate answer is to dispense with physical books and move toward the virtual festschrift. Maybe one day Google Books will rescue festschrift chapters from oblivion; even if you cannot read the full text, at least you can find out that a given search term is in the book somewhere. An intermediate solution would be for the authors to post pre-prints of their contributions online themselves. The Social Science Research Network would be a natural location for the chapters in this book, but when I checked in June 2009, only four of the eighteen authors had posted their chapters there. It is a shame, because all of these essays are worth reading.

REFERENCES:

Horwitz, Morton J. 1977. THE TRANSFORMATION OF AMERICAN LAW, 1780-1860. Cambridge: Harvard University Press.

Horwitz, Morton J. 1992. THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: THE CRISIS OF LEGAL ORTHODOXY. New York: Oxford University Press.

Taggart, Michael, ed. 2006. AN INDEX TO COMMON LAW FESTCHRIFTEN: FROM THE BEGINNING OF THE GENRE UP TO 2005. Oxford: Hart Publishing.

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