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The Struggle over the Past, 44 Cleveland State Law Review 123 (1996)


In the last twenty years there has been a remarkable revival of historical modes of argument and justification in the legal practices of the United States. In a country often accused of lacking any consciousness of its past, lawyers, judges and legal scholars have been engaged in a series of epic struggles to dominate the interpretation of history in order to make it serve their present agendas. In part, of course, these legal debates are echoes of general political controversies; primarily between, on the one hand, left- and center-liberals (Progressive Liberals, for short) who would like to preserve or even extend the policies of the 20th-eentury regulatorywelfare stateand Rights Revolution and, on the other hand, neo-liberals and cultural conservatives (the New Right, for short) who believe that precisely those policies have been the main cause of economic and cultural decline and must therefore be rescinded. One party believes it has been following a path of progress which, if continued, will lead to fulfillment of the nation's traditional ideals. The other party believes that the Progressive, New Deal, Great Society, and cultural trends of the 20th century represent a betrayal of those ideals, and that to be true to the traditions of its Founders the society must restore the principles it foolishly abandoned and return to an earlier and uncorrupted state.

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