Law, Politics, and the New Deal(S)
Law, Politics, and the New Deal(s) Laura Kalman I. INTRODUCTION The metaphor of fatigue permeates the debate over the constitutional history of the New Deal. Prior to the publication of Bruce Ackerman's We the People: Transformations, the disagreement pitted "internalist" law professors, such as Barry Cushman and Richard Friedman,1 against "externalist" historians, such as William E. Leuchtenburg and myself.2 Now comes Ackerman, who, picking up on the metaphor of fatigue used by some of the participants,3 urges us to drop "the old and tired debate." 4 t Professor of History, University of California, Santa Barbara. I am very grateful to Bruce Ackerman, John Morton Blum, W. Elliot Brownlee, Barry Cushman, James Fleming, Barry Friedman, W. Randall Garr, John Jordan, Pnina Lahav, John Henry Schlegel, Gregory Silbert, and G. Edward White for their help with this Article. I also appreciate the opportunity to have presented it at Yale and the University of Texas Law Schools and the comments I received on those occasions. 1. See BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998); Barry Cushman, Doctrinal Synergies and Liberal Dilemmas: The Case of the Yellow-Dog Contract, 1992 SUP. CT. REV. 235; Barry Cushman, Rethinking the New Deal Court, 80 VA. L. REV. 201 (1994) [hereinafter Cushman, Rethinking the New Deal Court]; Barry Cushman, The Secret Lives of the Four Horsemen, 83 VA. L. REV. 559 (1997) [hereinafter Cushman, The Secret Lives]; Barry Cushman, A Stream of Legal Consciousness: The Current of Commerce Doctrine from Swift to Jones & Laughlin, 61 FORDHAM L.
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