PUBLIC ECONOMIC AND THE AMERICAN LEGAL SYSTEM: HISTORICAL PERSPECTIVES

HARRY N. SCHEIBER*

I. INTRODUCTION The extensive scholarly reappraisal of and the economy in American historical development that has occurred in the last quarter century has challenged and largely displaced the classic Progressive interpretation.' Given the leading role that Willard Hurst's scholarship has played in the recent wave of writing by and legal scholars on this topic,2 it is timely on this occasion to revisit the borderland of and eco- nomic -that fascinating, if still untamed, region of inves- tigation that Hurst has traversed and mapped for us-to ap- praise the accomplishments of recent studies and to explore some lines of inquiry that remain to be pursued.' As is widely acknowledged, throughout the nineteenth century and well into the twentieth, though the impact of law was only marginal in many areas of American life, it was far-ranging and deep in the shaping of the economic marketplace, economic and business in- stitutions, and the dynamics of material growth and innovation.

* Professor of Law, University of California, Berkeley (Boalt Hall). Coeditor with Lawrence M. Friedman, AMERICAN LAW AND THE CONSTITUTIONAL ORDER (1978). The author wishes to thank the Rockefeller Foundation for research support through a Fellowship in 1980. Professor Morton Keller, Brandeis University, and the faculty of the Harvard Business School generously arranged for presentation of a preliminary version of this Article to a conference held at Harvard and sponsored by the Rockefeller Foundation. 1. R. HOFSTADTER, THE PROGRESSIVE HISTORIANS (1968); R. HOFSTADTER, THE AMERICAN POLITICAL TRADITION AND THE MEN WHO MADE IT (25th Anniv. Ed., 1973), xxi- xxvi; Scheiber, A Keen Sense of History and the Need to Act, 2 REVIEWS IN AM. HIST. 445 (1974). 2. See Keller, The Varieties of American : Hurst's History, 6 RE- VIEWS IN AM. HIST. 1-6 (1978); Gordon, J. Willard Hurst and the Common Law Tradi- tion in American Legal , 10 LAW & Soc'Y REV. 9-56 (1975); Scheiber, Federalismand the American Economic Order, 1789-1910, 10 LAW & Soc'v REV. 57, 58- 67 (1975); Diamond, Legal Realism and HistoricalMethod: J. Willard Hurst and Amer- ican Legal History, 77 MICH. L. REV. 784-94 (1979). 3. See Scheiber, At the Borderland of Law and : The Contribu- tions of Willard Hurst, 75 AM. HIST. REV. 744-56 (1970). 4. L. M. FRIEDMAN, A HISTORY OF AMERICAN LAW (1973).

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"[T]he core of United States legal history," Hurst has written, is ,the analysis of legal agencies (their structure, capacities, and functions) and "their relative contributions to the body of ."'5 How popularly held values were led by, and also ex- pressed in, law as a formal body of doctrine; how the competing values of possessive individualism and of constitutionalism pro- duced public economic that first fostered private en- trepreneurial effort and later energized government itself, in more autonomous roles; and how policy efforts succeeded or failed to realize the divergent goals of individualism and public values, all have been at the center of Hurst's writings of the last two and a half decades. As political scientists (and that new self-styled breed, "policy scientists") and others have shifted their concerns from a focus narrowly on policy process to a focus more broadly embracing outputs and effects, the relevance of Hurst-style historical investigations becomes manifest.7 The for- mulation of new typologies-both those descriptive of "arenas" or "categories" of policy and policy conflict, and those descrip- tive of "stages" of policy over time-and the blossoming of new historical studies and syntheses, lend further relevance to the hypotheses offered by Hurst over the years. How influential his work and that of fellow scholars have been in displacing the Pro- gressive framework and interpretation of government and the economy, and how much we know about new questions opened up by recent studies, provide windows for perspectives on an in-

5. J. W. HURST, LAW AND SOCIAL ORDER IN THE UNITED STATES 42 (1977) [hereinaf- ter cited as LAW AND SOCIAL ORDER]. 6. See authorities cited supra note 2. 7. See S. N. Nagel, Foreword, in T. J. LowI AND A. STONE, NATIONALIZING GOVERN- MENT: PUBLIC POLICIES IN AMERICA 7-8 (1978). In this connection it is instructive to read once again David Easton's seminal work, THE : AN INQUIRY INTO THE STATE OF (1953), now in a second edition with his 1969 American Political Science Association presidential address, The New Revolution in Political Sci- ence, 63 AMER. POLIT. SCI. REV. 1051 (1969). His 1953 book was the intellectual fountain- head of "process" studies in political science, with much influence on policy studies and considerable effect on the tone and content of historical studies that have stressed "sys- tems" approaches and veered away (as Hurst has never done) from value judgments. The 1969 address indicates the virtual bankruptcy of the value-free approach. Other general works that contain materials highly useful to any consideration of public include: C. LINDBLOM, THE INTELLIGENCE OF (1965); POLITICAL SCIENCE & PUBLIC POLICY (ed. Austin Ranney, 1968); R. MILIBAND, THE STATE IN CAPITALIST SOCIETY (1969), which in my own view represents the best of modern Marxist analysis; Lowi, Party, Policy, and Constitution in America, THE AMERICAN PARTY SYSTEMS (ed. Cham- bers & Burnham, 1967); J. E. ANDERSON, PUBLIC POLICY-MAKING (1975); and Heclo, Pol- icy Dynamics, in THE DYNAMICS OF PUBLIC POLICY: A COMPARATIVE ANALYSIS (R. Rose ed. 1976), an intriguing if somewhat opaque analysis.

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II. THE NINETEENTH CENTURY The classic Progressive historiography portrayed the devel- opment of American society, and especially of political conflict, in Manichean terms, the "good" Jeffersonian tradition (eventu- ally absorbing Hamiltonian preferences for big government) con- fronting the repeated challenges of the competing elitist tradi- tion. Political cleavages corresponded with class lines, or at least with "democratic-agrarian" versus "aristocratic-industrial" alignments. This interpretation offered, as Robert F. Berkhofer has written, "a complete model of the United States' past."' Successive scholarly forays into territory once marked out by the Progressives seriously challenged the established interpretations; but no comprehensive alternative view has emerged to dominate historiography today as the constructs of Beard and Turner once did. Nonetheless, the ongoing reexamination of the record on public economic policy-a subject always at the center of Pro- gressive history-has advanced significantly the state of histori- cal knowledge on this subject; and much of the new work is either written in a framework that Hurst did much to build or else addresses the assumptions and main conclusions of the Hurst view. The most remarkable single feature of scholarship since the 1950s on the history of American public economic policy is the expansion of the area of inquiry. Historians of law, following Hurst's lead, have combined efforts with students of policy and administration to provide a portrayal of the "complex reality"' of legal process that far exceeds in range of institutions ex- amined and dynamics explored what had been studied before. In the 1940s, some studies of individual states by historians and political scientists-most notably the Handlins on Massachu- setts, Hartz on Pennsylvania, and Heath on Georgia'-had shattered the myth of laissez-faire in antebellum economic pol- icy. Each of these studies was based mainly on analysis of stat-

8. Berkhofer, The Organizational Interpretation of American History, 4 PROS- PECTS 611 (1979). 9. LAW AND SOCIAL ORDER, supra note 5, at 25. 10. 0. HANDLIN & M. HANDLIN, COMMONWEALTH: A STUDY OF THE ROLE OF GOVERN- MENT IN THE AMERICAN ECONOMY: MASSACHUSETrS, 1774-1861 (revised ed., 1969); L. HARTZ, ECONOMIC POLICY & DEMOCRATIC THOUGHT: PENNSYLVANIA, 1776-1860 (1948). See also M. HEATH, CONSTRUCTIVE LIBERALISM: THE ROLE OF THE STATE IN THE ECONOMIC DEVELOPMENT OF GEORGIA TO 1860 (1954).

HeinOnline -- 1980 Wis. L. Rev. 1161 1980 1162 WISCONSIN LAW REVIEW utes and of political rhetoric, with some attention to the work of the courts. From them came the view that a "Commonwealth" concept was the validating canon for governmental intervention to promote growth and to regulate economic interests before 1860; they gave close attention to localism and interstate rival- ries; they examined internal-improvements policy as the corner- stone of typical developmental strategies; and they offered at least preliminary analysis of policy regarding corporations." In the 1960s, scholars who explored further the dimensions of state-level policy opened up the administrative history and be- gan to trace more systematically the impact of state programs on the economy. Working in archival records of major state agen- cies, for example, Nathan Miller produced evidence of striking innovativeness on the part of Erie Canal Fund commissioners to promote economic development in New York State." Similarly, my own examination of Ohio government and economy in the canal era' s attempted analysis of "state mercantilism" at its height in an especially active state that mobilized capital on a grand scale and developed for the of public enterprises. Ohio and New York, like Pennsylvania, were what we may term public-enterprise states: each of them undertook major state-sponsored and directed ventures in transportation. They exemplified one, but only one, pattern of state action in the an- tebellum era."' A very different pattern was being delineated by Hurst in his Wisconsin studies, with their focus on a state in which there was no comparable commitment to outright public enterprise yet in which, as Hurst demonstrated, there was a sig- nificant commitment to promotion of economic development through uses of the law." Hurst's great contribution was to show how it was not only through but also through initia-

11. See Scheiber, Government and the Economy: Studies of the 'Commonwealth' Policy in 19th-Century America, 3 J. INTERDISCIPLINARY HIST. 135 (1972). 12. N. MILLER, THE ENTERPRISE OF A FREE PEOPLE: ASPECTS OF ECONOMIC DEVELOP- MENT OF NEW YORK STATE DURING THE CANAL PERIOD, 1792-1838 (1962). 13. See H. SCHEMER, OHIO CANAL ERA: A OF GOVERNMENT AND THE ECONOMY, 1820-1861 (1969). 14. This argument is given in extenso in Scheiber, supra note 2, at 93-96. 15. See J. W. HURST, LAW AND ECONOMIC GROWTH: THE LEGAL HISTORY OF THE LUMBER INDUSTRY IN WISCONSIN, 1836-1915 (1964) [hereinafter cited as LAW AND Eco- NOMIC GROWTH]; LAW AND SOCIAL ORDER, supra note 5, at 236-37. How the 19th-century legal system as a whole functioned "in the name of vested ," Hurst wrote, "had less to do with protecting holdings than it had to do with protecting ventures." J. W. HURST, LAW AND THE CONDITIONS OF FREEDOM IN THE NINETEENTH CENTURY UNITED STATES 24 (1956) [hereinafter cited as LAW AND THE CONDITIONS OF FREEDOM].

HeinOnline -- 1980 Wis. L. Rev. 1162 1980 1980:1159 Historical Perspectives 1163 tives by the courts that antebellum state engaged in the purposeful allocation of resources, the assignment of spe- cial privileges and immunities, the establishment of broad pri- orities for economic development, and the granting of effective or outright subsidy to favored types of enterprise. The courts responded pragmatically to the needs of the emergent early- phase industrial economy, adopting an instrumentalist posture, as Hurst argued, balancing the imperatives of "constitutional- ism" (the ideal that "organized power [must be] useful and... just"' ) with the perceived obligation to open the channels of en- terprise, to "release entrepreneurial energy," and to expedite material growth. 17 Absent in the non-public-enterprise states like Wisconsin was the sort of explicit cost-benefit analysis of projects that engineers and politicans offered in the states that undertook major canal projects or considered state railroads; ab- sent in Wisconsin and other such states was the element of ide- ology that infused debates over major capital commitments, with polarization on questions of planning versus free market, "equal benefits" on the distribution of governmental largesse, and the like. Notable in Wisconsin and other non-public-enterprise states was, instead, the governmental style that lacked auton- omy, that was subject to what Hurst terms "drift and default," and that seldom raised to the level of explicit public debate and consideration the hard questions of long-range costs for the soci- ety of resource policies.1 8 In this manner, Hurst's Wisconsin-oriented studies contrib- uted to an understanding of how diverse policy actually was in the antebellum states. If this finding made it more difficult to generalize about policy and , it also posed a challenge to what was left of the old Progressive interpretations. Hurst fur- ther enriched the literature with his analysis of franchise policy, the police power, and constitutionalism. All were themes that stressed uses of law in the ; they constituted, in effect, the prehistory of the modern regulatory state." Thus,

16. Hurst, Legal Elements in United States History, 5 PERSPECTIVES IN AM. HIST. 1, 14 (1971). 17. LAW AND SOCIAL ORDER, supra note 5, at 55-62; LAW AND THE CONDITIONS. OF FREEDOM, supra note 15, chap. 1. 18. LAW AND SOCIAL ORDER, supra note 5, at 70; LAW AND ECONOMIC GROWTH, supra note 15, at 262-63; Scheiber, supra note 3, at 748-50, 753-54 (comparing Wisconsin and public-enterprise states). On typologies of state action and legal process, see Scheiber, and Legal Process, 14 LAW & Soc. REV. 663, 700-05 (1980). 19. LAW AND ECONOMIC GROWTH, supra note 15; LAW AND SOCIAL ORDER, supra note 5, at 222, 234-39; Hurst, supra note 16, at 77.

HeinOnline -- 1980 Wis. L. Rev. 1163 1980 1164 WISCONSIN LAW REVIEW while indicating how full was the extent and ingenious the means by which the legal system favored "dynamic property" over "static, vested rights," Hurst also raised important ques- tions about social values as expressed in the law. On the one hand, he contended, and he continues to argue, that a large mea- sure of "consensus" existed for giving material growth and de- velopment a high priority in the scheme of legal values and the validation of policies. On the other hand, he explored the extent of continuing commitments to procedural norms, the vitality of individualism as something to be protected through constitu- tionalism as well as nurtured by opening entrepreneurial oppor- tunities, and the beliefs of nineteenth-century Americans in fed- eralism, limited government, and other ideological matters as articles of faith.20 The lines of scholarly inquiry that Hurst pursued so cre- atively served to reinforce the impact of other pioneering schol- arship upon the field of American legal history, especially the important studies of colonial law by Richard B. Morris21 and George Haskins2 2 and of the Massachusetts court under Chief Justice Shaw by Leonard W. Levy.23 Hurst's studies provided the framework for Friedman's innovative book on contract law24 and Horwitz's studies of common-law changes2 5 and my own on 2 eminent domain and on the police power. 1 This work, along

20. But see Scheiber, supra note 3, at 754-55, for analysis and a critique of Hurst's view of consensus in writings to 1970; and Diamond, supra note 2, at 784-94, for an even- handed but penetrating criticism of Hurst's most recent reappraisal of the "consensus" arguments, in LAW AND SOCIAL ORDER, supra note 5, ch. 4 ("Consensus and Conflict"). On "Social Values Defined in Law," see Hurst, supra note 16, at 73-91. See also Scheiber, Law and the Imperatives of : Private Rights and Public Values in American Legal History, forthcoming in 21 NoMos (1981). 21. R. MORRIS, GOVERNMENT AND LABOR IN EARLY AMERICA (1946). 22. G. HASKINS, LAW AND AUTHORITY IN EARLY MASSACHUSETTS: A STUDY IN TRADI- TION AND DESIGN (1960). 23. L. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW (1954). 24. L. M. FRIEDMAN, CONTRACT LAW IN AMERICA (1965). 25. M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 (1977). A highly important monograph augmenting Horwitz's study for the pre-1860 period and dealing well with the neglected period from the Civil War to 1916, is Kurtz, Nineteenth Century Anti-EntrepreneurialNuisance Injunctions-Avoidingthe Chancellor, 17 WM. & MARY L. REV. 621-70 (1976). 26. Scheiber, The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts, in 5 PERSPECTIVES IN AM. HIST. 329 (1971) [hereinafter cited as Scheiber, Road to Munn]; Scheiber, Property Rights and Public Purpose in American Law, PROCEEDINGS OF THE INTERNAT'L ECONOMIC HIST. Assoc., 7TH CONGRESS 1:233-40 (1978). See also the important study by Scott M. Reznick, Empiricism and the Principle of Conditions in the Evolution of the Police Power: A Model for Definitional Scrutiny, 1978 WASH. L. Q. 1 (1978).

HeinOnline -- 1980 Wis. L. Rev. 1164 1980 1980:1159 Historical Perspectives 1165 with other scholarship in legal history in the 1960s, dovetailed with Lauer's highly original reappraisal of riparian law2 7 and new monographic work on major themes such as Friedman and Ladinsky explored in a widely cited article.28 Meanwhile, Stan- ley Kutler's careful study of the Charles River Bridge Case29 and other work by Harold Hyman30 and Charles McCurdy s' accom- plished an integration of classic constitutional themes with some of the newer concerns in legal history that flowed from work in the Hurst mold. More recently, on the question of commercial law's development, Tony Freyer has imaginatively woven the strands from state law into the larger fabric of federal common law and constitutional doctrine.3 2 The specific contributions of these scholars and others have been thoroughly considered else- where and will not be given detailed attention here, except in the course of analysis that cuts across the entire recent literature of legal history.33 What difference has all this recent scholarship made in the historiography of public economic policy? How have Hurst's contributions and the work of other historians and legal scholars altered our view of policy process, output, and effects in the nineteenth century? First of all, one is struck by the absence of some leading actors and prominent ideas that animated Progressive historiog- raphy.3" There is a shift away from the focus upon conflict of major "traditions"-Jeffersonian and Hamiltonian, with their

27. Lauer, The Common Law Background of the Riparian Doctrine, 28 Mo. L. REV. 60 (1963). 28. Friedman and Ladinsky, Social Change and the Law of Industrial Accidents, 67 COLUM. L. REV. 50-82 (1967), reprinted in AMERICAN LAW AND THE CONSTITUTIONAL ORDER (eds. Friedman and Scheiber) 269 (1978). 29. S. KUTLER, PRIVILEGE AND CREATIVE DESTRUCTION: THE CHARLES RIVER BRIDGE CASE (1971). 30. H. HYMAN, A MORE PERFECT UNION: THE IMPACT OF THE CIVIL WAR AND RECON- STRUCTION ON THE CONSTITUTION (1973). 31. McCurdy, Justice Field and the Jurisprudenceof Government-Business Rela- tions: Some Parametersof Laissez Faire Constitutionalism, 1863-1897, 61 J. AM. HIST. 970-1005 (1975), also in AMERICAN LAW (eds. Friedman and Scheiber), supra note 28 at 246. 32. T. FREYER, FORUMS OF ORDER: THE FEDERAL COURTS AND BUSINESS IN AMERICAN HISTORY (1979). 33. See Scheiber, Book Review (W. HOLT, ESSAYS IN NINETEENTH CENTURY AMERI- CAN LEGAL HISTORY), 26 Am. J. Comp. L. 350-64 (1978); Holt, Now and Then: The Un- certain State of Nineteenth-Century American Legal History, 7 IND. L. REV. 615 (1974), also in Holt, ed., ESSAYS IN NINETEENTH CENTURY AMERICAN LEGAL HISTORY 4 (1976). See also Gordon, supra note 2. 34. See McCormick, The Party Period and Public Policy: An Exploratory Hy- pothesis, 66 J. AM. HIST. 279-98 (1979).

HeinOnline -- 1980 Wis. L. Rev. 1165 1980 1166 WISCONSIN LAW REVIEW latter-day variants and mutants, diversely defined-with its con- comitant emphasis upon national politics. The tariff, national banking legislation, and federal aid to internal improvements (to say nothing of foreign affairs and even "Manifest Destiny," which on its face, at least, speaks volumes about American legal values) are largely absent in the new legal history. Instead of the drama of national politics and the quadrennial Presidential con- test, we are given the intriguing incremental process of statute and judge-made law. The relevant image is the metaphor of the glacier, rather than that of the political earthquake; the land- scape changes, but by dint of gradual erosion from the winds of doctrine and the rains of changing interests, not by effect of cat- aclysmic events. Even the "great cases" in the United States Su- preme Court do not always provide the temporal benchmarks or analytical sighting-points that they did in the Progressive ver- sion of American history. Indeed, the newer studies make us keenly aware that great areas of policy, not least economic pol- icy, remain in the hands of state and state judges. The domains which Congress abdicated or in which the Supreme Court left the states with wide latitude-including even the de- marcation of rights of property and the definition of free and slave labor, both central to the definition of American capital- ism-are the most prominent matters of scholarly attention in Hurst-style legal history." Secondly, the modern studies in legal history offer widely varying interpretations as to "consensus" and as to "conflict," but there is consistent attention to the legal system as it re- flected the society's values. In the analysis of economic policy, what is most important is to understand whether played~a role in the policy-making process (and if so, how), be it in establishing the parameters of legitimacy for constitution- writers and legislatures or in influencing the thought of judges. Hurst's writings, clearly, stress the pragmatic strain that pro- moted material growth; his recognition of principled conflict tends to be by way of parenthesis or qualifying rider.36 From his

35. Cf. Gordon, supra note 2. 36. Diamond, Legal Realism, supra note 2, at 789, criticizing Hurst's use of the term "consensus" on grounds that given his terminology "there appears to be no issue so divisive it cannot be described as demonstrating a consensus of a sort." Scheiber, supra note 3, at 754-55, provides a critique from an evidentiary base in 19th-century legal and constitutional debates. See note 20 supra. See also Hurst, Old and New Dimensions of Research in United States Legal History, 23 AM. J. LEGAL HIST. 1, 9-18 (1979), respond- ing to criticism from commentators who subscribe to a "ruling-class explanation" of American legal history.

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harshest critics come charges that he has blocked out the history of radical ideas and the "reality" of purposive exploitation of the 7 downtrodden and dispossessed in American history.1 Without accepting extreme criticisms of that sort, one can still raise some questions as to the degree to which pragmatism characteristically shaped policy process and content. To be sure, the many studies of transport policy, most notably Goodrich's,3 concluded that there was little or no principled, laissez-faire op- position of any weight aligned against transport promotion before 1850; and that even to 1890, in effect the state and local governments moved in to support, subsidize, and promote trans- port schemes whenever capital in the private sector was short in any given region or state.3 9 Along similar lines, careful state-by- state analyses of on economic issues revealed that it was largely in banking policy, and in no other areas, certainly not transport promotion, that the old-style Progressive historians' categories made any sense in explaining political alignments.4 0 All this was consistent with Hurst's emphases and gave credence to his view of dominant pragmatism. Still, two problems remain. On the one hand, there were some major ideo- logical confrontations, even on the basis of evidence taken from law as an autonomous system. Most notably, there was a contin- uing tension in nineteenth-century American law between an emergent concept of "rights of the public" and the better-known judicial preoccupation with property rights (including both "vested rights" in the traditional sense and rights in "ventures," for entrepreneurial change, as stressed by Hurst). This tension embraced not only questions of franchise and police power, as we find in Hurst's Wisconsin lumber study,4' but also a wide range of issues and legal concepts that affected the judicial allo- cation of water resources, the emergence of regulatory law, the definition and reappraisal of nuisance law, and even a nascent doctrine of public trust (placing limits on what government itself

37. With more stridency than soundness of evidence, Holt attacks Hurst's studies for "mirroring 19th-century majoritarian ideological attitudes," so that they "denigrate or at least infantilize radicalism and dissent." Holt, Now and Then: The Uncertain State of Nineteenth-Century American Legal History, supra note 33, at 627. Compare Diamond, supra note 2. 38. C. GOODRICH, GOVERNMENT PROMOTION OF AMERICAN CANALS AND RAILROADS, 1800-1890 (1960). 39. Goodrich, State In, State Out: A Pattern of Development Policy, 2 J. ECON. IssuEs 365-83 (1968); Aitken, Book Review, 35 Bus. HIST. REV. 291-92 (1961). 40. Cf. McCormick, supra note 34, at 279-81. 41. LAW AND ECONOMIC GROWTH, supra note 15.

HeinOnline -- 1980 Wis. L. Rev. 1167 1980 1168 WISCONSIN LAW REVIEW might do with certain vital resources) that would emerge in the twentieth century as a cornerstone of environmental-law pres- sures from conservationists. 42 Withal, the content of judicial de- cisions reveals a "public interest" tradition more diverse, per- haps, and certainly of greater doctrinal richness than has usually been recognized. On the other hand, analysis of law as a reflection of popu- larly held values is an exercise fraught with difficulties. Utter cynicism, empty judicial rhetoric, meaningless pedantry or cant-all can be found, at least on occasion, in the record of the courts; so too can corruption, of the narrowest, most venal sort.43 This is the rawest kind of evidence, but not the only kind, that suggests the legal system may work to filter, to distort, to sup- press; policy content, no less than legislative or judicial rhetoric, may reveal more the triumph of a narrow interest than what "the majority," or "the society," may think. Thus we must be alert not to assume that pragmatic doctrines, "style", or sub- stantive policy are uniformly the product of a system that is working so as to be responsive to a popular will or Volksgeist." It is equally misguided, however, to assume that if a pattern of action is discerned-whether it be innovation of common-law doctrines that tend to reduce private entrepreneurial costs, or any other pattern of that sort-it is because a silent conspiracy exists or even because lawmakers and judges understand with precision the effects of their doctrinal innovations.45

42. Scheiber, Property Rights and Public Purpose in American Law, supra note 26; Scheiber, Law and American Agricultural Development, 52 AGRIC. HIST. 439, 455-57 (1978); Selvin, The Public Trust Doctrine in American Law and Public Policy, 1789- 1920, 1980 Wis. L. REV. 1403 (1980). See also Kurtz, supra note 25. 43. For citations on corruption, see, e.g. Scheiber, supra note 2, at 65 n. 22. See also Diamond, supra note 2, at 788. 44. On methodological problems of a cognate nature, on interpretation of legal evi- dence to illuminate and common assumptions, see generally White, The Appellate Opinion as Material, 1 J. INTERDISCIPLINARY HIsT. (1971). 45. For a thorough and persuasively reasoned critique of Morton Horwitz's recent contentions on this score, arguing that there was purposive (if not to say collusive) trans- formation of the law to effect a revolution conducive to exploitation, cf. McClain, Legal Change and Class Interests:A Review Essay, 68 CAL.L. REV. 382-97 (1980). See also my own critique of Horwitz, in Scheiber, Back to "The Legal Mind'? Doctrinal Analysis and the History of Law, 5 REvIEws IN AM. HIsT. 458-66 (1977). Recently A. W. B. Simp- son has subjected Horwitz's evidence and reasoning on the major subject of change in contract law to what appears to me a devastating attack that leaves little of Horwitz's work on this theme, including his handling of some critical items of evidence, intact: Simpson, The Horwitz Thesis and the History of Contracts, 46 U. CHI. L. REV. 533 (1979).

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Thirdly, the new legal history, with its stress on judicial pol- icy-making at the state level, has reinforced interest in how the legal system was shaped by the postulates and imperatives of a working federalism. Hurst himself opened the inquiry with his imaginative portrayal of various "federal effects," illustrating how because states were part of a federal system they suffered certain policy constraints that had an impact on economic devel- opment."6 Apart from one analysis that provides an overview of "real" versus "formal" power in the American federal system, 7 there have been detailed forays into constitutional, legal, and policy-process history that offer new insights into how federal structure has affected government's economic role. Of signal im- portance was Keller's study of the life insurance industry and its regulation, illustrating how either reformers or the industry that is the object of their reform zeal can engage in a kind of forum- shopping. Reformers, in this instance, concentrated upon ob- taining regulatory legislation from the states; the regulated in- dustry-including components in states considering but not yet adopting regulation-then sought uniform national legislation, to supercede state control, hoping for more benign (or at least predictable) rules.48 In the Roosevelt-Wilson era of political Pro- gressivism, both business leaders and prominent political spokesmen would draw from the insurance industry's experience to advocate uniform state ; uniform codes were, in effect, an alternative to outright centralization of policy responsibilities, hence responsive to enduring faith in -what John Fiske termed in 1880 "the sublime conception of a in which every citizen lives under two complete and well- rounded systems of law. . . moving one within the other, noise- lessly and without friction."' Perhaps the nearest the American reality ever came to such an innocent vision of federalism-in-action was early American- ruled California. Painstaking examination, in the Hurst mode of analysis, of the California Supreme Court's work has been un- dertaken by Charles W. McCurdy. His studies show how the

46. LAW AND ECONOMIC GROWTH, supra note 15, at 52-54. Cf. Scheiber, supra note 2, at 71. 47. Scheiber, supra note 2, at 67-72. 48. M. KELLER, THE LIFE INSURANCE ENTERPRISE, 1885-1910: A STUDY IN THE LIM- ITS OF CORPORATE POWER (1963). 49. Fiske quoted in Graebner, Federalism in the Progressive Era, 64 J. AM. HIST. 331, 345 (1977). Cf. W. GRAEBNER, COAL MINING SAFETY IN THE PROGRESSIVE PERIOD: THE OF REFORM (1976).

HeinOnline -- 1980 Wis. L. Rev. 1169 1980 1170 WISCONSIN LAW REVIEW hand of federal power was stayed, with Congress deferring to the wisdom of the state authorities in the complex and vital area of establishing property rights in mines, water, and uses of farm- land.50 Like the comparable study, on a much larger scale, of the Massachusetts court by Levy, McCurdy's research uncovers a re- markably wide-ranging judicial activism, with a constant balanc- ing of values associated with stability of property rights, on the one hand, and values associated with promotion of rapid growth, on the other.5 Consider the evidence and themes that dominate the story: mining-camp codes, adjudication of claims concerning lodes and percolating water across property boundaries, the rights given to mineral-prospectors to enter on the land of culti- vators and herdsmen, riparian versus appropriator claims in water law, fencing obligations, and the like. We suddenly recog- nize that the new legal history is delineating areas of agreement and of conflict, and is examining real-life struggles that found expression in the legal system's operation, that have precious lit- tle to do with Hamiltonians and Jeffersonians, the old forces of Light and forces of Darkness in the Manichean Progressive drama.52 Moreover, one of the great ironies-indeed, trage- dies-of the California record is that when popular opinion, mo- bilizing the force of the urban laborers, the landless white farm workers, and the small yeoman types, was voiced, it was directed in a particularly vicious way against the Mexican and Chinese minorities. These minorities were denounced-and re- pressed-as competitors in the marketplace and instruments of the large corporate interests. Even the sort of piercing criticism directed against the large corporate railroad, mining, and bank- ing firms by Henry George was combined with a sympathy for the racist side of Kearneyite-Workingmen's Party doctrine. And many of the "reforms" embodied in the 1879 California constitu- tion were designed as much to exclude Asian labor and landown-

50. McCurdy, Stephen J. Field and Public Land Law Development in California, 1850-1866, 10 LAW AND Soc'y REv. 235 (1976). 51. Id.; L. LEVY, supra note 23. 52. Cf. Scheiber & McCurdy, Eminent Domain Law and Western Agriculture, 1849-1900, 49 AGRic. HIST. 112-30 (1975). This is not to deny that there are ideological strains in that can reasonably be termed "Jacksonian" or "Whig"; for ex- ample, apart from such outright political analyses of the role of the in conven- tional party-oriented conflict as R. ELLIS, THE JEPFERSONIAN CRISIS: COURTS AND PoLrr- ICs IN THE YOUNG (1971), students of judicial biography have pursued ideology as an element of continuity from the 1830s and 1840s to the heyday of conservative constitutional thought in the late nineteenth century. See, e.g., McCurdy's forthcoming biographical study of Stephen Field; or Jones, Thomas M. Cooley and "Laissez-Faire" Constitutionalism:A Reconsideration, 53 J. AM. HIST. 751 (1967).

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ership as to accomplish income redistribution by means that would please modern-day historians who romanticize the "radi- cal heritage" in United States history.SAgain, if Hurst can be faulted for insufficient attention to how such conflicts over pub- lic policy and law reflected deep divisions in American society, even a view of the California record that takes full account of the ugly side of "radicalism" hardly comports with the old Pro- gressive view of political cleavages. Hurst himself has said in his recent writings that "law did foster a good deal of injustice" and that to some degree "the country achieved apparent consensus by ruling some major groups out of the calculus of consent, nota- bly the Indians, the blacks, and women" until the late twentieth century.5 4 To recognize exclusion, oppression, and discrimination en passant is no more useful, however, than a romantic retro- •spect on radicalism in comprehending the full range of law's processes and effects in a situation like early American Califor- nia. Only when this darker side of American law is studied, to understand how it related to law and economic policy more di- rectly concerned with "release of energy" in the marketplace, will we have a full picture of the legal system as it shaped insti- .tutions and the dynamics of change. We may well conclude that federalism-in-action was a shifting mosiac-or kaleido- scope-of individual state policies and legal systems that were far more varied in the "mix" of their individual programs and legal cultures than we have imagined until now. Finally, the newer studies in legal history have opened up some important questions on the matter of continuity versus

53. Cf. Taylor, Foundations of California Rural Society, 24 CAL. HIST. SOC. QUAR. 193-228 (1945); S. L. Sharp, Social Criticism in California During the Gilded Age (Ph.D. diss., Univ. of Calif., San Diego, 1979); C. B. SWISHER, MOTIVATION AND POLITICAL TECH- NIQUE IN THE CALIFORNIA CONSTITUTIONAL CONVENTION, 1878-79 (1930). Cf. Scheiber, State's Constitution:The First 100 Years, San Diego Union, July 1, 1979; and pamphlet, LAW AND CALIFORNIA SOCIETY: 100 YEARS OF THE STATE CONSTITUTION (1979), published by the Univ. of Calif., San Diego. 54. LAW AND SOCIAL ORDER, supra note 5, at 227-28. 55. John Wunder of the Texas Tech (Lubbock) faculty has in progress exactly such a study, on treatment of the Chinese in the law of the Far Western states, in relation to the larger fabric of the legal system's interaction with the economy. Similarly, Paul W. Gates has recently called for scholars to give the same degree of serious attention to the manner in which some 69 per cent of Indian lands as of 1875 has come into the hands of whites as they have given to disposal of the U.S. public domain. See P. W. Gates, Intro- duction, in THE RAPE OF INDIAN LANDS (ed. Gates, 1979), not paginated. An exemplary study of the blatantly exploitative side of American law is William Cohen, Negro Invol- untary Servitude in the South, 1865-1940: A Preliminary Analysis, 42 J. SOUTHERN HIST. 31-60, reprintedin AMERICAN LAW AND THE CONSTITUTIONAL ORDER, supra note 28, at 317-30.

HeinOnline -- 1980 Wis. L. Rev. 1171 1980 1172 WISCONSIN LAW REVIEW discontinuity in the area of regulatory law. The classic Progres- sive historiography portrayed modern regulation as beginning, uncertainly, in a few Midwestern states with the Granger Laws of the 1870s. Moreover, Progressive historians quite consistently viewed the successive accomplishments of the late nineteenth century-the Granger legislation, the national regulation of rail- roads undertaken in 1887 when the courts rendered state control ineffective, the antitrust act of 1890-as victories that must be taken seriously, i. e., as triumphs of "the public interest" over "the special interests." All this has been challenged by scholars like Gabriel Kolko, who contend that public regulation was (a) an explicit goal of business interests themselves, who provided some if not most of the political clout to obtain such legislation at the national level, having been frightened by state politics and regulation, and (b) accomplished in effect by the creation of administrative agencies such as the Interstate Commerce Com- mission which were early and quite completely "captured" by the regulated interests themselves." Hurst's and Levy's studies of the police power have shown 7 that "public purpose" doctrine emerged early in American law;5 subsequent research" has indicated that the decision in Munn v. Illinois's that upheld Granger Law regulation had deep roots in the rich prior history of jurisprudence in the states. Moreover, close examination of the contending interests in the cases that produced that jurisprudence makes it impossible to view the doctrinal or political history of regulation as a confrontation of monoliths, posing "agrarian" against "industrial" special inter- ests or ideological Hamiltonians against ideological Jeffersoni- ans. 0 After Munn, the doctrine of public purpose became not only a lodestone of regulatory law but also a test of the legiti- macy of taxation and a key part of the calculus of "compen- sability" in judicial weighing of the "takings" question in police-

56. G. KOLKO, RAILROADS AND REGULATION, 1877-1915 (1965); see also G. KOLKO, THE TRIUMPH OF CONSERVATISM (1963). I have not attempted here to credit all the best of newer work, beginning with the study of railroads regulation prior to 1887 by Lee Benson, see note 136 infra, which fundamentally revised our understanding of the Pro- gressive version, because these matters have been treated at great length in two studies: Scheiber, Public Policy, Constitutional Principle, and the Granger Laws, 23 STAN. L. REV. 1029 (1971); and, much fuller as to the literature, Thomas K. Mc- Craw, Regulation in America: A Review Article, 49 Bus. HIST. REV. 159-83 (1975). 57. L. LEvY, supra note 23; LAW AND ECONOMIC GROWTH, supra note 15. 58. Scheiber, Road to Munn, supra note 26. 59. 94 U.S. 113 (1877). 60. Cf. Scheiber, Road to Munn, supra note 26; Scheiber, Law and American Agri- cultural Development, supra note 42, at 455-57.

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III. THE TWENTIETH CENTURY With a few notable exceptions, the best work in the newer literature of American legal-economic history has concentrated upon nineteenth-century subjects. By contrast, the rise of the administrative state and welfare programs, the high visibility of policy issues in politics, and the availability of archival records all have served to attract historians, political scientists, and legal scholars to the study of the policy process and its impact in the modern period of our history. Recognizing this difference, this section will survey some of the leading features of contemporary scholarship on modern public economic policy; then, a conclud- ing section will suggest some lines of inquiry that offer promise to scholars seeking to integrate the techniques and concerns of Hurst-style legal history with those of investigators from sister disciplines. The framework for many of the recent policy studies is pro- vided by a pluralistic conflict model. There is wide acceptance, in the literature, of the model of policy process formulated by V. 0. Key, Earl Latham and others in political science. An extreme expression was Latham's view that what may be called public policy is the equilibrium reached in this struggle [among interest groups] at any given moment, and it represents a balance which the contending factions of groups constantly strive to weight in their favor.6 2 At the risk of doing some violence to important differences among studies that accept this model of the policy process, the following lines of analysis can be identified as important in works that variously focus on the Progressive era, the World War I period, and the New Deal. First, there is an understanding now that promotion and regulation both can serve as instruments to the same end, for specific interest groups. Thus in the matter of public aid for rail- roads, the same region or locality as in one period of develop- ment prominently favors governmental assistance might, as soon as the railroads are actually built, become prominent in a drive for regulation." (There is also the embittering late-nineteenth-

61. Scheiber, Road to Munn, supra note 26, at 381-98. See also Reznick, supra note 26. 62. E. LATHAM, THE GROUP BASIS OF POLITICS 36 (1952). 63. Cf. G. MILLER, THE RAILROADS AND THE GRANGER LAWS (1971).

HeinOnline -- 1980 Wis. L. Rev. 1173 1980 1174 WISCONSIN LAW REVIEW century variant, of communities in Wisconsin and other states that voted bond-aid for railroads, then tried to default when the lines were never built or went bankrupt-and in the Wisconsin case, when farm families actually faced loss of their homes and livelihood because private property had been mortgaged to back the bond issues. e4) Indeed, the functional relationship between stage of local development and attitude toward promotion or e5 regulation is a theme that carries forward from the canal era through the Granger Law fights" and to the modern day.67 Second, in probing the question of cleavages that appear during policy conflicts, we have become more prone to recognize differences that appear within important economic interest groups-even within the ranks of firms in a given industry, or the varied trades and industrial unions in the labor sector. Thus Robert Wiebe's analysis of business and the Progressive move- ment demonstrated that policy issues caused divisions between small versus large firms. There were also differences over policy attributable to regional interests that diverged, within indus- tries; and there were differences in market orientation that could be as important as differences of size or place." Following this line of inquiry, Arthur Johnson did path-breaking studies of the oil-pipelines industry and public regulation; his work is particu- larly interesting to legal historians because he shows how the fight over policy, pitting Standard Oil against the independents, was fought not only in legislative halls but also in the courts. The law came into play in curious ways, with the independents first invoking the public-purpose principle to obtain regulatory measures by the state against their giant competitor, only to find that legal precedent set the stage for state power to be turned on

64. See F. MERK, AN ECONOMIC HISTORY OF WISCONSIN IN THE CIVIL WAR DECADE 243-44 (1916). Cf. Rees v. Watertown, 19 Wall. 107 (U.S. 1874). The full saga of the bond-aid question in the courts is masterfully chronicled in 6 C. FAIRMAN, HISTORY OF THE SUPREME COURT OF THE UNITED STATES chs. 17-18 (1971). 65. See SCHEIBER, OHIO CANAL ERA: A CASE STUDY OF GOVERNMENT AND THE ECON- OMY 1820-61 (1969); Merk, Eastern Antecedents of the Grangers, 13 AGRIC. HIsT. 1-8 (1949). 66. See G. MILLER, supra note 63. 67. Thus the business press today reports that medium- and small-sized cities once provided with major-line service after pressing hard for public aid for airport construc- tion and for free play to taxi airlines a few years ago, now strenuously oppose the lifting of CAB route regulation that can leave them with vastly reduced or even no airline service. 68. R. H. WIEBE, BUSINESSMEN AND REFORM: A STUDY OF THE PROGRESSIVE MOVE- MENT (1962).

HeinOnline -- 1980 Wis. L. Rev. 1174 1980 1980:1159 Historical Perspectives 1175 themselves as well.6 The intensity of the fight and range of cas- ualties within the industry itself has been well delineated in Charles McArthur Destler's biography of the independent oil firms' attorney, Roger Sherman.I A study totally unsympathetic to Brandeis and his fellow Progressive reformers, Martin's work on railroad regulation in the Roosevelt-Taft years, serves to remind us that reformers were not all non-ideological or drawn from various segments of the same interest-group universe; they could be deadly serious, inflexible, and hostile to business interests.7 1 However, even Martin's work, while in that respect reminiscent of older-style Progressive historiography, does not deny that the milieu of pol- icy decisions in railroad regulation was a complex pattern of par- ticularistic and ideological responses against a troubled eco- nomic background.7' Numerous other works on later periods, such as Cuff's on World War I, indicating the range of differ- ences on policy issues coming from the various businessmen and firms associated with the War Industries Board,73 or Sidney Fine's monumental study of the automobile industry and the NRA in the New Deal years,7' give similar evidence of in- trasectoral cleavages. Withal, there is much evidence in support of Hurst's warning that in appraising policy conflicts in modern industrial society (which in the U.S. certainly I would date from 189076), "the specialization of interests [makes] ...it difficult in a given instance to identify where public interest lay. '76 Third, most of the studies that have been researched in the foregoing framework have concluded that policymaking is incre- mental. They comport with the view of policy process recently set out by George Gordon in a basic textbook on : The policy-making process is characterized by a lack of cen-

69. Cf. Johnson, Public Policy and Concentration in the Petroleum Industry, 1870-1911, in .OIL'S FIRST CENTURY (1960). 70. C. DESTLER, ROGER SHERMAN AND THE INDEPENDENT OIL MEN (1967). 71. A. MARTIN, ENTERPRISE DENIED: ORIGINS OF THE DECLINE OF AMERICAN RAIL- ROADS, 1897-1917 (1971). 72. See Martin, The Troubled Subject of Railroad Regulation in the Gilded Age, 61 J. AM. HIST. 61 (1974). 73. R. CUFF, THE WAR INDUSTRIES BOARD: BUSINESS-GOVERNMENT RELATIONS DUR- ING WORLD WAR I (1973). 74. FINE, THE AUTOMOBILE UNDER THE BLUE EAGLE: LABOR, MANAGEMENT, AND THE AUTOMOBILE MANUFACTURING CODE (1963). 75. See H. SCHEMER, H. VATTER, & H. FAULKNER, AMERICAN ECONOMIC HISTORY 221 (1976). 76. LAW AND SOCIAL ORDER, supra note 5, at 217.

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tralized direction at every level of government; it is complex, very loosely coordinated, highly competitive, fragmented and specialized, . . . and largely incremental.7

Rather than being a "smoothly functioning, ongoing sequence" in which there is a logical progression of phases, the American policy process "responds .. . to pressures placed upon it at many points along the way. This version of the process is con- sistent with studies of federal structure and dynamics that in- sist-mistakenly, in my own view-that there are so many pres- sure points, so many opportunities for diverse interests to seek advantage or to modify or blunt the edge of policy, and so many prerogatives that remain decentralized in state and local govern- ment, that the system must be regarded as "non-centralized. ' ' 79 Either an interpretation that finds incrementalism domi- nant or one that rests on a concept of "noncentralization" can easily support a benign view of the legal system: if power is frag- mented, hard to mobilize, and seldom used to make swift and far-reaching changes, then oppressive uses of power are improb- able. It seems fair to say that this bias characterizes Galambos's interpretation of the economic-policy process in the interwar era. He speaks of "the slow and erratic manner in which such important policies as antitrust have been implemented," and of the bargaining and extended dialogue (in contrast to unequivo- cal, definitive statements of policy goals and uncompromising enforcement) that characterized the federal government's rela- tions with the cotton-textile industry.80 Such incrementalism, Galambos avers, was salutary because it softened and attenuated conflict. It served an educative function on both sides, and it worked to prevent the sort of unyielding confrontation that might easily have "hardened business resistance to any form of social control or welfare system" later on.81 From a different per- spective, Hurst has contended that the Sherman Antitrust Act, just as Mr. Chief Justice Hughes once said, had "a generality and adaptability comparable to that found to be desirable in

77, G. GORDON, PUBLIC ADMINISTRATION IN AMERICA 354 (1978). 78. Id. 79. The "noncentralized power" argument as to American federalism is associated mainly with the work of Daniel Elazar. For a discussion of his work, together with my own alternative view, see Scheiber, Federalism and Legal Progress, supra note 18, at 507-13. 80. Galambos, The Cotton-Textile Institute and the Government, 38 Bus. HIsT. REv. 186-213 (1964). 81. Id.

HeinOnline -- 1980 Wis. L. Rev. 1176 1980 1980:1159 Historical Perspectives 1177 constitutional provisions,"' thus serving perfectly as a charter for a bargaining, or balancing, relationship between government and business, with public policy being left by Congress and by lack of "compelling public opinion" to the discretion of the judi- ciary." Hurst does not find the results benign. How the judiciary opened the way-a way not taken-for the states to play a form- ative role once again in corporate regulation is also the subject of a far-ranging revisionist study recently published by Charles McCurdy. e A leading study of New Deal securities-market regulation, by Michael Parrish, similarly indicates that complexity and competitiveness of the policy process, with compromises forged as the result of pressure and counterpressure, was not necessa- rily benign.8 5 There was remarkable diversity of policy aims and interests evident in the debate of legislation: brokers, regional political spokesmen, bankers, Federal Reserve officers, and Ex- ecutive Branch officials. The compromise and attenuation of previously announced New Deal aims was the result. The pro- cess was neither educative nor particularly constructive: it pro- duced a substantial measure of obeisance to "entrenched eco- nomic power. "86 Fourth among the themes prominent in works that largely accept a pluralist model of policy process is the analysis of frag- mentation and proliferation in governmental structure, espe- cially since 1933.7 Attitudes and values are shared by subgroups of bureaucrats and professionals in government, in industry or private associations, and in reform movements-most often by persons who have professional ties and identify themselves with values that transcend the government/private sector dichotomy or that even overbalance loyalty to a particular firm, agency, or group. We have had studies of how such professionalization

82. Appalachian Coals, Inc. v. United States, 288 U.S. 344, 359-60 (1933) (Hughes, C.J.). See LAW AND SOCIAL ORDER, supra note 5, at 246. 83. LAW AND SOCIAL ORDER, supra note 5, at 259. 84. McCurdy, The Knight Sugar Decision of 1895 and the Modernization of American CorporationLaw, 1869-1903, 53 Bus. HIST. REV. 304-43 (1979). 85. M. PARRISH, SECURITIES REGULATION AND THE NEW DEAL (1970). 86. Id. at 177. Evidence similar to Parrish's on the securities-regulation issue, indi- cating "conflicting , divergent goals, and different sets of values" contending in the policymaking process, is in E. HAWLEY, THE NEW DEAL AND THE PROBLEM OF MONOP- OLY (1966), esp. at 476-77, 492-94. The result was "partial, piecemeal, pressure-group planning and not strong coordination and direction of the economy." Id. at 485. 87. See text accompanying note 79 supra. See also H. SCHEIBER, THE CONDITION OF AMERICAN FEDERALISM: AN 'S VIEW (U.S. Senate, Comm. on Govt. Opns., 1966).

HeinOnline -- 1980 Wis. L. Rev. 1177 1980 1178 WISCONSIN LAW REVIEW changed the terms of policy debate on forest conservation; 8 and we know much, now, of how a complex "agricultural Establish- ment" emerged, involving the Extension Service, the land-grant colleges, the Farm Bureau Federation, and farm-related indus- trial interests, in the tug and haul of agricultural policymaking. 9 At times, there have been parallel cleavages and fragmentation in managerial and engineering subgroups of industry's profes- sional cadres, with each fragmented group having counterparts or allies in the public sector's bureaucracy.' 0 In recent years, es- pecially since the Great Society period of Lyndon Johnson's Presidency, this feature of interest-group politics and the policy process has been reinforced by what Samuel Beer has called "public sector politics": a policy-formation process in Which gov- ernmental specialists and generalists, the "intergovernmental lobby," and so-called public-interest organizations such as the Conference of Mayors or the Council of State Governments take the in shaping legislation and administrative policies.9 1 All these developments have affected profoundly the tasks of the judiciary-itself an intriguing research problem for the legal his- torian.92 But scholars in this field need to accept the new reality, that the history of legal process must now embrace (as Hurst has said) "politics and political parties, lobbies, and the whole range of processes that go into forming public opinion and nerving will to action."" Furthermore, historians ought to give to policy at the state level in the twentieth century the same sort of intense

88. . S. HAYS, CONSERVATION AND THE GOSPEL OF EFFICIENCY: THE PROGRESSIVE CON- SERVATION MOVEMENT 1890-1920 (1959). 89. G. MCCONNELL, THE DECLINE OF AGRARIAN DEMOCRACY (1953); G. MCCONNELL, PRIVATE POWER AND AMERICAN DEMOCRACY (1966); G. FITE, GEORGE N. PEEK AND THE FIGHT FOR FARM PArrY (1954). 90. See R. CUFF, supra note 73. An intriguing subtheme, running through much of the recent literature, involves antitrust policy and law. One finds that the Justice De- partment is in continuous interaction with industry spokesmen, the Commerce Depart- ment, regulatory agencies, and (in the 1933-35 period) the National Recovery Adminis- tration. Industrial spokesmen seeking modifications of policy or seeking to head off potential trouble can negotiate directly with the Antitrust Division or often will enlist allies in other agencies to disarm threats of antitrust prosecution. Cf. M. UROFSKY, BIG STEEL AND THE WILSON ADMINISTRATION 179 (1969); G. NASH, UNITED STATES OIL POLICY, 1890-1964, 102 (1968); Galambos, supra note 80. 91. Beer, Federalism, Nationalism and Democracy in America, 72 AM. POLl. SCI. REV. 9 (1978). Cf. Wright, IntergovernmentalRelations: An Analytic Overview, 416 THE ANNALS 1 (1974); D. WRIGHT1 UNDERSTANDING INTERGOVERNMENTAL RELATIONS (1978). 92. See Scheiber, Federalism and Legal Process, supra note 18, at 707-11; D. HoRowrrz, THE COURTS AND SOCIAL POLICY (1977); Mishkin, Federal Courts as State Reformers, 35 WASH. & LER L. REV. 949 (1978). See also Rizzo v. Goode, 423 U.S. 362 (1976). 93. Hurst, supra note 36, at 6.

HeinOnline -- 1980 Wis. L. Rev. 1178 1980 1980:1159 Historical Perspectives 1179 study that has been devoted to pre-1860 state government and law.94 Fascination with the mutations undergone by federalism, and also absorption with the intriguing issues of state-federal re- lationships that surface in constitutional litigation,95 make it all too easy to forget that "despite the conspicuous weight of the federal government, the states remain important alternative ac- tors in major fields of public policy."" A fifth major substantive theme in the recent literature on history of public economic policy concerns foreign affairs in two dimensions: the relationship of U.S. foreign economic policy to (a) special-interest pressures and ideology in the policy process, and (b) the larger congeries of policy and power relationships traditionally termed "political economy". Unlike the themes previously discussed, this one has not documented or fit into the framework of "pluralism" so much as it has supported the alter- native notion of intimate cooperation between government and the elite interests in the domestic business community.97 So far as process was concerned, there is considerable evidence of what Gerald Nash has called "rapprochement between government and the industry,"" not only in regard to the oil industry (Nash's subject) but respecting other industrial interests as well. The State Department had autonomous concerns-security, strategic thrusts to offset by rival powers, and the like-but often they fed back into the policy process to affect law and the economy. For example, the large American invest- ment-banking houses became involved in international consor-

94. Id. at 8 (the years since 1945 constitute "probably a period of creative and destructive disjunction in the course of roles of law at least as important as any in the prior record"). I have sought to delineate some of the contours of change in policy pro- cess and the legal order in this recent period, in Scheiber, American Federalism and the Diffusion of Power: Historical and Contemporary Perspectives, 9 U. TOL. L. REv. 619, 648-80 (1978). 95. See, e.g., National League of Cities v. Usery, 426 U.S. 833 (1976), which not only invoked the concept of inalienable state powers but also' inspired a good deal of fascinating scholarly concern with state "obligations" to perform certain public services. Cf. Michelman, States' Rights and States' Roles: Permutations of '' in Na- tional League of Cities v. Usery, 86 YALZ L. J. 1165 (1977). 96. Hurst, Commentary: Constitutional Ideals and Private Associations, 11 No- MOS 63, 65 (1969). 97. In fact, much of the writing by diplomatic historians has been in the tradition of work on "business expansionism" as a continuous and dominant feature of both public policy and political economy. See, for the foundations of this view, W. WILLIAMS, THE TRAGEDY oF AMERICAN DIPLOMACY (rev. ed., 1962). See also Parrini, Anglo-American Corporatismand the Economic Diplomacy of Stabilization in the 1920's, 6 REviEws AM. HIsT. 379 (1978). 98. G. NASH, supra note 90, at 239.

HeinOnline -- 1980 Wis. L. Rev. 1179 1980 1180 WISCONSIN LAW REVIEW tium arrangements for loans to China in the Taft Administra- tion years, then some of the same interests obtained modification of long-standing antitrust legislation to expedite a marketing drive abroad during and after World War I, as well as to permit anticompetitive arrangements in the oil industry 9 More recently, the diffusion of regulatory responsibilities vis-a- vis banking has had a major impact on international banking development-and crises.100 As Hurst has pointed out, moreover, an initiative under law such as the Export-Import Bank's pro- gram for the underwriting of foreign sales by U.S. private firms is a modern-day counterpart of nineteenth-century policies such as tariffs and land grants that supported part of the risks of in- vestment. 01 For some commentators, the burden of findings in this area of historical and contemporary investigation is to sup- port the view-at the polar extreme from the pluralist model-that there has been a "fusion of economic and political power" in the United States, making "government by private 102 groups. . . an operational reality" in our society. This notion of powerful private interests monopolizing the levers of public power, using the legal system for their own ends-and the asso- ciated idea that there has been a weakening or disappearance of "distinctions between private and public, business and govern- ment, civilian and military, and ultimately between the individ- ual and the state [sic]"1 03-has been disputed by Hurst. He con- tends it underestimates the reality of pluralism.10 4 Wherever the truth may lie in this dispute, there is no denying that mobilizing a in the public interest, against the opposi-

99. Scheiber, World War I as Entrepreneurial Opportunity, 84 POLL Sc[. Q. 486 (1969); C. VEVIER, THE U.S. AND CHINA, 1906-1913: A STUDY OF FINANCE AND DIPLOMACY (1955); B. KAUFMAN, EFFICIENCY AND EXPANSION: FOREIGN TRADE ORGANIZATION IN THE WILSON ADMINISTRATION 1913-1921 (1974); C. PARRINI, HEIR TO EMPIRE: U.S. ECONOMIC DIPLOMACY 1916-1923 (1969). The Webb-Pomerene Act of 1918 (40 Stat. 516, 15 U.S.C. §§ 61-65) and the Edge Act of 1919 (41 Stat. 378, 12 U.S.C. §§ 611-631) have been of critical importance, the first having exempted certain export associations from antitrust provisions and the latter having permitted chartering, in effect, of investment trusts to engage in financing exports. See note 100 infra. 100. E.g., failure of the nation's 20th largest bank in 1974 has been attributed in part to diffusion of regulatory responsibility and in very large part to operations under the Edge Act (supra note 99). See J. SPERO, THE FAILURE OF THE FRANKLIN NATIONAL BANK 6, 16-24 (1980). 101. LAW AND SOCIAL ORDER, supra note 5, at 120. 102. A.S. MILLER, THE MODERN CORPORATE STATE: PRIVATE GOVERNMENTS AND THE AMERICAN CONSTITUTION 29, 133 (1976). 103. Cuff, An OrganizationalPerspective on the Military-IndustrialComplex, 52 Bus. HIST. REV. 250, 267 (1978). 104. Hurst, supra note 36, at 16.

HeinOnline -- 1980 Wis. L. Rev. 1180 1980 1980:1159 Historical Perspectives 1181 tion of well-organized private interests with much at stake, is at best a difficult matter. In the case of air-pollution control, for example, the "bias" of the legal system in this respect has been well recognized: The costs, to those who advocated the collective good (clean air), were high in terms of research effort and lobby- ing, while "those opposed to control, primarily pollution sources, were organized and able (largely through trade associations) to carry out research in support of their positions, and to hire pub- lic relations experts and lobbyists to promote them. Perhaps more importantly, they also had only the easy job of showing that things were not clear." 10 5 The case of air-pollution control illustrates that modern changes in the legal system have not eliminated "drift and de- fault." Public policy can still lurch from uncertainty to half-con- viction; and there is no question that it took a catastrophe-a smog disaster in a major city-to overcome "inertia and uncer- tainty."10' Still another legacy of the nineteenth century is the abiding "voluntarist motif," as it has been termed in a brilliant study of employment policy, by Selznick and Nonet.10 7 There is heavy reliance upon voluntary compliance with rules; initiative is taken by affected interests, instead of by the government agency; "administration. . . proceed[s] by responding to claims, not by systematic regulation and surveillance." 0e Thus, if unfet- tered administrative discretion and abuse of power, unchecked by the or even by courts is a danger,' 09 so too is the voluntarist mode of regulation: "When government looks to the initiative and participation of affected parties, there is a serious risk that the aims of public policy will be redefined and public

105. J. KRIER & E. URSIN, POLLUTION AND POLICY: A CASE ESSAY ON CALIFORNIA AND FEDERAL EXPERIENCE WITH MOTOR VEHICLE AIR POLLUTION, 1940-1975 at 262, 253 (1977). 106. Id. at 267. I have not dwelt much here on Hurst's use of the "drift and default" theme, as I think, both my understanding of his concept and my critique of it stand up well from my At the Borderland, supra note 3, at 746-50, 754-55. But for an interesting alernative view, contending that the concept "devolves from a neo-Newtonian, post-Nietzsche view of the universe as chaotic, valueless, and impersonal"-a cosmology that, candidly, I find hard to associate in any way with the thought of Willard Hurst-see the provocative review by W. W. Holt, Jr., Hurst: The Legitimacy of the Business Corporationin the Law of the United States, 1780-1970, 1971 WIs. L. REV. 981, 987-89. To give weight to "mindlessness and chaos in experience," or to credit the force of "primitive fears of what lies in the surrounding murk and muddle"-the nearest ideas I can find in Hurst's work to what Holt contends is there-is something else, I think. (Quotations from Hurst, Old & New Dimensions, supra note 36, at 19-20.) 107. P. SELZNICK et al., LAW, SocIErv, AND INDUSTRIAL JUSTICE 225 (1980). 108. Id. at 225. 109. Cf. LAW AND SOCIAL ORDER, supra note 5, at 150-54.

HeinOnline -- 1980 Wis. L. Rev. 1181 1980 1182 WISCONSIN LAW REVIEW purpose attenuated."'' 10 Finally, mention must be made of a recently popular effort at systematizing our knowledge of change in the legal order, es- pecially the relationships of government and business, in terms of an "organizational synthesis." ' In this view, the key to un- derstanding the policy process is identification of points in time at which dominant types of bureaucratic organizations have shifted. "The focal point of modern history," as one proponent writes, "becomes the underlying patterns of social, political, and economic organization- as opposed to particular political events or ideologies."' As I understand this concept, it pro- poses placing organization forms and interactions at the fore- front of analysis; policy "episodes" that have characterized most of the studies that use pluralist models, and that have a place equally as important as analysis of structures and values in the approach championed by Hurst, are to be downplayed. To be sure, "patterns of. . . organization" offer a seductive kind of attraction; as one scholar who subscribes to the organiza- tional synthesis has written, it tends to free historical analysis from undue concern with (or influence of) rhetoric and ideolo- gies. 113 Still, I would contend, there is an ideological bias in such an approach-a conservative bias that creeps in when ideological content of policy debates, values expressed in legal documents and political discourse, and short-term outcomes of policy deci- sions are crowded into the background of study."4 The proposed synthesis is, then, a comprehensive rejection of the Progressive historiographic tradition.

IV. CONCLUSION: BEYOND PROGRESSIVE AND PLURALIST MODELS It is worth recalling that the founding efforts of Progressive scholarship were directed, at least in part, at what was seen as arid abstraction and mythification of law; thus Beard's Eco-

110. P. SELZNICK et al., supra note 107, at 228. Elsewhere, Selznick and Nonet characterize public policy with respect to employment as "inchoate, open-ended, and weakly implemented" (Id. at 239), a view strikingly reminiscent of Hurst's judgements of nineteenth-century public policy and legal process. Cf. Scheiber, supra note 3, at 750. 111. Galambos, The OrganizationalSynthesis, 44 Bus. HIST. REv. 279, 289 (1970). 112. Id. Many of the same objections as Professor Laurence Tribe has directed against policy "science" can be raised against the organizational synthesis in public-pol- icy history. See Tribe, Policy Science: Analysis or Ideology?, 2 PHILOSOPHY AND PUBLIC AFFAIRS 66 (1972). 113. Cuff, supra note 103, at 256. 114. See Tribe, supra note 112.

HeinOnline -- 1980 Wis. L. Rev. 1182 1980 1980:1159 Historical Perspectives 1183 nomic Interpretation'1 5 was an attack on the notion of timeless constitutional ideals, created in a breath-taking moment of crea- tivity and nurtured through the decades by a Supreme Court striving for objectivity. This latter concept had its counterpart, of course, in the study of law and related scholarship in legal history as the evolution of doctrine-the Langdell tradition. In- deed, as one commentator has said,11 the first historical over- view that represented the Langdell tradition-Two Centuries' Growth of American Law (1901)-was "remarkable for the way in which the authors succeeded in describing the evolution of the law as if it had all happened in outer space rather than in 1 17 the real world. All this is much changed. "Langdell [is] out and Hurst in," and the history of the legal system is now seen, at least in the Hurst mode, as "an infinitely complex tapestry of ever-changing values, relationships, and priorities."118 Let it be said candidly that some students have denied that Hurst's own works or those of other scholars that they denominate the "Hurst school" do in fact recognize the realities behind the behavior of courts, the ap- plication of doctrine, and the interaction of law and economic change. One school of criticism finds fault because the Hurst mode of inquiry is too sympathetic to the modern liberal state and its pretentions. This source of criticism, clinging to a defini- tion of sentimentalism that would have pleased William Graham Sumner, refuses on principle to view any evidence of public in- terventionism as constructive in the processes of economic change, and it takes refuge in the comforting scientific rhetoric of profit-maximization theory.1 19 Another school of critics at-

115. C. BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION (1913). 116. Coleman, The New Realism in American Legal History, 3 LAW AND LIBERTY No. 2 (Autumn 1976). 117. Id. at 2. See also Friedman, Some Problems and Possibilities of American Legal History, in THE STATE OF AMERICAN HISTORY 3, 3-9 (H. BASS ed. 1970); G. E. WHITE, PATTERNS OF AMERICAN LEGAL THOUGHT 61-71 (1978). 118. Coleman, supra note 116, at 3. 119. E.g., Max Hartwell's commentary on the essays on property rights, in PRO- CEEDINGS OF THE INTERNAT'L ECON. HIsT. AssoC., 7TH CONG. 1:112-115 (1978). Earlier, my contention that nineteenth-century American eminent-domain law served effectively to subsidize privileged private enterprises (and the related contention that "vested" prop- erty rights were, in the process, often brutally shoved aside), when presented in a lecture, drew a heated reaction from a well-respected "Chicago School" laissez-faire economist. This could not possibly be so, he declared, since it was "axiomatic'. that the great achievements of the 19th-century American economy were attributable to the absence of significant governmental interventions. Ironically, my contention in another lecture pres- entation that "rights of the public" in antebellum legal doctrine represented an impor- tant effort by jurists to develop a public-interest principle in jurisprudence met with

HeinOnline -- 1980 Wis. L. Rev. 1183 1980 1184 WISCONSIN LAW REVIEW tacks Hurst and others for their failure to find unremitting, carefully orchestrated, unerringly effective exploitation of the weak and powerless in the operation of American law, histori- cally. Unfortunately, much of this criticism is misguided because it fails to recognize or understand what seems to me patently obvious marshalling of evidence and argument in Hurst's writ- ings on the very problems he is charged with overlooking: the ordering of priorities by courts, the redistributive effects of often-subtle allocation of privileges and effective subsidies in aid of special interests, and the like.120 Moreover, this school of criti- cism is especially prone to confine attacks to a general frame- work and not come to terms with either interpretations or clearly articulated caveats in works they attack; one critic who has traded heavily in chic radicalism as a posture for his own work managed to omit even Hurst's name from his writings and citations on themes that Hurst had explored for three decades, then draped some old theory in newly furnished rhetoric designed, it would seem, to obscure intellectual debts. Hurst has dealt with some of these arguments in a recent article, and no further attention need be given them here except to indicate that Hurst's fairly steady adherence to the pluralist model has raised storm signals energizing criticism from both sides of the ideological spectrum."" These attacks are instructive, if for no other reason, because they reflect accurately current divisions of 12 opinion in social science and historiography. 2 There are other models that engage scholars today who re- ject the pluralist model as generally used by Hurst. Of special importance is one that was offered sixteen years ago by Theo- dore J. Lowi,128 setting up a typology of policies-distributive, equally strident condemnation from a Marxist legal scholar who dismissed all such doc- trine as a "mere facade" covering the unremitting exploitation of the poor through prop- erty law; he went so far as to say that exploitation was the outcome of every [sic] case decided in every antebellum courtroom. Withal, theory without evidence and untroubled by subtleties continues to have its charms. 120. See my review essay on Horwitz's work, Back to the "Legal Mind," supra note 45, at 460-66. 121. Id.; Hurst, supra note 36, at 9-18. See also the extensive criticism of Horwitz's citation and uses of evidence, together with an overarching critique of the main hypothe- sis, in Simpson, supra note 45. 122. See Scheiber, Federalismand Legal Process, supra note 18, at 509; Trubek & Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law & De- velopment Studies in the U.S., 1974 Wis. L. Rav. 1062, 1070-80, 1083-85, 1091; Dia- mond, supra note 2; McCormick, supra note 34, at 295-98. 123. Lowi, American Business, Public Policy, Case-Studies, and Political Theory, 16 WORLD POLMCs 677 (1964).

HeinOnline -- 1980 Wis. L. Rev. 1184 1980 1980:1159 Historical Perspectives 1185 regulatory, and redistributive-and contending that each type of policy will likely be the outcome of a distinctive type of deci- sion-making process. Hurst's studies of the early- and mid-nine- teenth-century legal process, stressing fragmentation, response to interest-group pressure, heedlessness of long-term costs, "drift and default," and atomization of decisions, is the richest example in the literature of American history of how "distribu- tive" policy worked in fact.12 4 As noted~earlier (page 0004 supra) the public-enterprise states differed in major ways from the Hurst model; and regulatory policy, especially in the fields of control of banking and corporations, deserves much fuller inves- tigation than it has received until now.126 Only when the nine- teenth-century history is understood more fully will fruitful in- tegration of such historical analysis with legal and social- of more modern policy decisions be possible. Three strategies offer great promise, I think, for such inves- tigations. First, there is the strategy of trying to embrace the whole range of public policy and law as they have affected the development of a single industry. Only Hurst himself has under- taken this terribly difficult, labor-costly task in any great depth-in his history of law and the Wisconsin lumber industry during three quarters of a century."" This approach permits the researcher to master some of the intricacies of the industry itself and its entrepreneurial and economic history, affording insights that can be gained in no other way when investigation turns to the "autonomous" development of law as well as law's interac- tion with the sector under study.12 7 Second, it is high time that the geographical boundaries that have limited historical studies be recognized; too much of contending interpretations and the body of evidence in the literature pertain to the northeastern states and one mid-western jurisdiction. How confining (and dis- torting) the effects can be is suggested by what we find when attention to the law of resource allocation is directed to the re- gion west of the Mississippi: the entire concept of dominant

124. Cf. Scheiber, supra note 3, at 753-56; McCormick, supra note 34, at 283n. and 283ff. 125. See the suggestive analysis of Lloyd N. Cutler and David R. Johnson, Regula- tion and the Political Process, 84 YALE L.J. 1395-1418 (1975). 126. LAW AND ECONOMic GROWTH, supra note 15. 127. On the problem of autonomous changes in the legal system and their relation- ship to social change, see the extended and intriguing analysis in Gusfield, Power, Jus- tice, and Sociological Cynicism, 29 STA. L. REV. 371 (1976-1977). A useful and pene- trating analysis of change in law in relation to change in public policy, is in Griffiths, Is Law Important?, 54 N.Y.U. L. REv. 339 (esp. at 357-63) (1979).

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"formalism" crowding out previously dominant "instrumental- ism" becomes utterly anachronistic and clearly place-bound, if it has any validity at all."28 Gordon Bakken's studies 2 ' of western constitution-making and mortgage law in California, and also a series of studies by younger historians of California law embody- ing new approaches in the Hurst tradition,3 0 indicate the beau- ties of transcending parochial geographic perspectives.' 3' Finally, we need studies that focus as intensively on the policy-making process as, say, Haar's study of Model Cities 3 2 or Lowi and Ginsberg's analysis of public policy and political behavior in the Weston accelerator controversy, 15 studies that will reveal how federalism affects policy formation and legal process, that will permit reappraisal of judicial behavior and constitutional doc- trine in the light of real-life conflicts, and that will permit us as close a look at "administrative style" as we have given to "judi- cial style" for the earlier period of American legal and public- 8 4 policy history.

128. See Scheiber, Instrumentalism and Property Rights: A Reconsideration of American "Styles of Judicial Reasoning" in the 19th Century, 1975 Wis. L. REV. 1, 12- 18. A strong attack on the instrumentalism-formalism distinction is made by Nash, Rea- son of Slavery: Understanding the Judicial Role in the Peculiar Institution, 32 VAND. L. REV. 7, 211-16 (1979). For a full, critical analysis, see Paine, Instrumentalism v. For- malism: Dissolving the Dichotomy, 1978 Wis. L. REV. 997. 129. See, e.g., Bakken, The Impact of the Colorado State Constitution on Rocky Mountain Constitution Making, 47 COLO. MAG. HiST. 152 (1970). 130. McEvoy, Economy, Law & Ecology in the California Fisheries to 1925 (Ph.D. diss., Univ. of Calif., San Diego, 1979); Selvin, "This Tender and Delicate Business": The Public Trust Doctrine in American Law and Economic Policy, 1789-1920 chap. 3 (on California) (Ph.D. diss., Univ. of Calif., San Diego, 1978); McCurdy, supra note 50. On constitutional reform, see Sharp, supra note 53; cf. Russell, The Fallbrook Irrigation District Case, 21 J. SAN DIEGO HIST. 23 (1975). 131. Moreover, even within regions, as Nash has indicated for southern law on slav- ery, enormous state-to-state variations and variation by time period can be identified; cf. Nash, Reason of Slavery, supra note 128, at 190-205. An exemplary study is Woodman, Post-Civil War Agriculture and the Law, 53 AGRIc. HIST. 319 (1979). An example famil- iar to all economic historians is the diverse recognition of riparian and appropriative rights in the Far West. See, e.g., Wiel, Fifty Years of Water Law, 50 HARV. L. REV. 252 (1936). 132. C. HAAR, BETWEEN THE IDEA AND THE REALITY: A STUDY IN THE ORIGIN, FATE AND LEGACY OF THE MODEL CrrIs PROGRAM (1975). Haar's account, though by a legal scholar, is also an insider's view. It may be noted that why pluralism, like consensus, can send up storm signals is well illustrated by a passage in this work summalizing "the many lessons of model cities": that in preparing legislation for Congressional considera- tion, goals must be clearly defined, and "[affter the program's hard core is designed, it can be decorated to account for the smorgasbord pluralism of American society. In order to build support, a proposal can be given certain chameleon qualities . "Decorat- ing" programs seems to me a recipe for gross deception. 133. T. Lowi & B. GINSBERG et al., POLISCIDE (1976). 134. On the problem of "judicial style" in the methodology of legal history, see

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Another area of research that can be a meeting-ground for the disciplines is regulatory policy and the problems of resis- tance and of "lag.' 3 5 In critical respects, the private sector of the American economy has typically outrun the capacity (or will) of the political system to exercise effective direction and regulation. Examples are corporations policy, an area in which a "monopoly problem" was popularly perceived decades before centralization of authority was accepted as the only effective route to restoring public control; another notorious instance was railroad regulation-an area of policy in which "self-regulation" was attempted by the railroads themselves as early as the 1850s; and even more extreme was the area of banking policy.' A fo- cus on the mechanisms-including resort to the courts-by which business interests have resisted governmental direction or tried to shape it to their own advantage can teach us much of how law has been used. The phenomenon of "capture" of regula- 3 tory agencies is only one aspect of this area of study. 7 Related problems are the sort of cooptation techniques that Philip Selz- nick discovered in the Tennessee Valley Authority-a compara- ble phenomenon in the public sector' 38-and the problem of changes in the vitality and purposiveness, or in political orienta- tion, of regulatory agencies over time."3 9 As Selznick, Nonet, and Vollmer have shown, moreover, by taking a broad view of public policy and "private government," investigation of a field such as industrial justice can yield high dividends and suggest lines of study for earlier periods until now much neglected by legal historians.4 0 If all the foregoing, as I freely admit, betrays the historian's preference for the concrete particular case, so too will my con- cluding suggestion: that we give close, tightly focused local study to the contention of Grant McConnell, in his Private Power and

Whitb, supra note 44, at 499-500; Nash, supra note 128, at 210fT.; Scheiber, supra note 128. 135. Cutler & Johnson, supra note 125; Scheiber, supra note 2, at 109-10, 116-17. 136. See J. W. HURST, LEGITIMACY OF THE BUSINESS CORPORATION IN THE LAW OF THE U.S. 1780-1970 at 90-145 (1970); W. SHADE, BANKS OR No BANKS: THE MONEY ISSUE IN WESTERN POLITICS 1832-1865 (1972); L. BENSON, MERCHANTS, FARMERS AND RAIL- ROADS: RAI.ROAD REGULATION AND NEW YORK POLITICS 1850-1887 (1955); H. SCHEIBER, supra note 13, at 294-97. 137. See McCraw, Regulation in America: A Review Article, 49 Bus. HIST. REV. 159 (1975). 138. P. SELZNICK, TVA AND THE GRASS ROOTS: A STUDY IN THE OF FOR- MAL ORGANIZATIONS (1949). 139. Cutler & Johnson, supra note 125, at 1407-09. 140. P. SELZNICK et al., supra note 107.

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American Democracy (1960), that "narrowly based and largely autonomous elites" have captured control of a substantial part of the elaborate regulatory and distributive apparatus con- structed under the liberal state's regime in the twentieth cen- tury, especially since the New Deal."" McConnell's book offered uniquely important suggestions as to two major problems in the literature of American legal history, neither of which has been pursued adequately despite the passage of two decades since McConnell wrote. The first has to do with federalism, which, he writes, has been

perhaps the greatest mark of American political genius .... It has been the means whereby local elites that could have turned their leadership to the ends of have instead been induced to give limited commitment to national values. It has provided substantial autonomy to functional groups through geographic decentralization . . . [so that] federalism and the interest group 'pluralism' with which it is associated today are instruments of conservatism and particularism."" The second issue raised by McConnell concerns that hotly de- bated notion of "consensus" in American society, historical and contemporary. 14 8 In an ironic twist that reveals, in a single stroke, the pitfalls of a priori formulae in connection with this touchy issue, McConnell contends that in fact a consensus of a broad sort has prevailed-but to a conservative end, essentially exploitative. It is, he contends, because of classic, widely shared American belief in decentralized power, in voluntarism, and in federalism, that both manipulation of symbols'" and the much more concrete self-interested achievements of local elites in cap- turing and holding power are made possible. " ' It seems to me that here is a challenge similar to that thrown down by Hurst when he formulated his generalizations on drift and default, bas- tard pragmatism, instrumentalist judicial style, and the limita- tions of a governmental process that was in essential respects lacking in autonomy because it was underdeveloped. Like Hurst's provocative constructs, McConnell's can be tested ade- quately only when we pay respect to the need to study concrete

141. G. MCCONNELL, PRIVATE POWER AND AMERICAN DEMOCRACY 339 (1960). 142. Id. at 357. 143. See note 36 supra and accompanying text. 144. This is another theme in itself, in the literature of political behavior. It was opened up by M. EDELMAN, THE SYMBOLIC USES OF POLITICS (1964). See also the brief comments in Gusfield, supra note 127, at 379. 145. G. MCCONNELL, supra note 141, at 88-90, 357-59.

HeinOnline -- 1980 Wis. L. Rev. 1188 1980 1980:1159 Historical Perspectives 1189 historical developments in their unique temporal, geographic, and jurisdictional contexts. Such knowledge of the uniqueness of place and context is a demanding order. It is appropriate here to recognize that Wil- lard Hurst's studies not only have done so in an exemplary and brilliant way, but they also have presented the complexities of legal history and public economic policy from a perspective that reflects mastery of several disciplines. Like only a few others in modern historical scholarship-in the North American tradition, one thinks at once of Charles Beard, Harold Adams Innis, Ed- ward S. Corwin, Paul Wallace Gates, and David Brion Da- vis-Hurst's craftsmanship displays the unique quality that can only come from bringing to the workbench the mysteries of sev- eral scholarly guilds, not only one. It was with extraordinary in- sight that Hurst presented to the scholarly world a penetrating critique of public-policy process and output in the American le- gal system, when it was the fashion more to celebrate the sys- tem's virtues. No less remarkable was his insistence on recogniz- ing what must be confronted and judged in moral-philosophical terms, when it was all the fashion to celebrate "value-free" so- cial-scientific inquiry and the quantification of behavior and in- stitutions. These achievements bespeak the sort of moral cour- age that has consistently informed Hurst's quest for historical understanding. A man of qualities similar to Hurst's, John Bartlet Brebner, once said that the quintessential, though paradoxical, quality of humanistic scholarship is the fusion of that sort of courage-the nerve to see the limits of orthodoxy, of received knowledge, and of trendy movements-with the humility to recognize the limits of one's own understanding and insights, however much they may be celebrated by others or what fame they bring."" It is a gift rarely given to scholars to have these qualities and also to enjoy the energy to apply them to so many important enter- prises-or to have the generosity to share them with fellow scholars so freely-as in the career and contributions of Willard Hurst.

146. Brebner, Address at the 1954 Bicentennial Convocation of Columbia Univer- sity, in St. John's Cathedral, New York, from author's notes.

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