The Elusive Transformation, 6 Yale Journal of Law & the Humanities 137 (1994)
Morton Horwitz's new book is the sequel to his 1977 Bancroft Prize-winning The Transformation of American Law, 1780-1860. But as his Preface observes, "it is a very different book." Transformation I tells a story in the populist spirit of Charles Beard. It shows how ante-bellum judges and elite lawyers fashioned an "instrumental" view of law that recruited traditional common law doctrines of property, contract, tort and commercial law to the service of promoting commercial development. By such means the legal elites helped business interests to accumulate wealth, property and power at the expense of workers, farmers, and consumers. Transformation 1 ends with the legal establishment beginning to construct a novel orthodoxy, "legal formalism," to protect the wealth thus accumulated from new threats to redistribute it.
This brings us to the central narrative of Transformation II: the crisis and downfall of the late-nineteenth-century way of looking at law, which Horwitz still at times describes as "formalism" but now prefers to call "Classical Legal Thought" ("CLT"), and its critique and displacement by a rival paradigm-"Progressive Legal Thought" ("PLT"). Although others have, of course, written parallel histories of the constitutional law of this period, those are but bits and pieces of the story Horwitz tells-of the "Classical" worldview, of Legal Realism, and of post-World War II legal thought. Transformation II is the first full-scale account of this great shift in legal thought.
Date of Authorship for this Version
Gordon, Robert W., "The Elusive Transformation" (1994). Faculty Scholarship Series. Paper 1352.