ISSN 1062-7421
Vol. 12 No. 7 (July 2002) pp. 343-350
AMERICAN LAW IN THE TWENTIETH CENTURY by Lawrence M. Friedman. New Haven: Yale University Press, 2002.
736 pp. Cloth $35.00. ISBN:
0-300-09137-0.
Reviewed by Christopher P. Banks, Department of Political Science, The University of Akron.
One passage in AMERICAN LAW IN THE TWENTIETH CENTURY (AMERICAN LAW) says legal scholarship tends to ignore “the
lessons of legal realism,
and the lessons of social science” (p. 589). However, public law scholars, who are typically preoccupied with
court-centered research methodologies, often over-indulge in realist assumptions about judicial behavior and diminish
the historical contributions that law and lawyers make to society. If the ongoing debate about the influence law
has on judicial outcomes is any measure (e.g., Gillman 2001), probably few would disagree that questions about
what the law “is” are basic and
ought to frame social science research, lest social scientists make the same mistake Friedman attributes to the
legal academy. For those who are inclined to agree, Friedman’s comprehensive account of American law is an excellent
place to begin that type of journey.
Legal historian Friedman contends the United States is “a society of law and of laws” (p. 12). His research is
working toward a historical understanding of legal culture: “people’s ideas, attitudes, values, and expectations
with regard to law” (p. 589). Crucial social changes, such as the invention of the automobile, do not produce
knee-jerk responses creating new highway safety laws. Instead, a “web of [societal] values and norms” are at the
root of “a kind of complicated
chemical reaction” that allows the legal culture to determine, for example, if new highway safety laws are needed
as a reaction to a change in technology such as the automobile (p. 589). Friedman’s object, it seems, is to identify
the dynamic, contextual relationship between law, legal culture and social norms, for “law is a creature of society”
(p. 588).
The author’s examination of New Deal appellate judging practice reflects this premise, but it also shows the difficulty
of specifying which kind of legal or non-legal factors are at work in determining outcomes. After noting the scholarship
is divided on whether “the law,” or something else, drives legal change, Friedman concludes that legal doctrines
are “manufactured out of the cultural stuff of society.” The reason is that judges “live in this society [and]
breathe the same air, read the same books, watch the same programs, think the same thoughts, as other members of
society” (p. 272). Although most cases appear “routine” to judges and are controlled by “the law,” the “judgment
is itself extremely variable [and] in fact, a product of the times,” for “[w]hat seems obvious and routine is itself
culturally determined [as a] function of the society in which judge and judgment are embedded” (p. 273).
Friedman uses this message to explain away why American law is contradictory or morally controversial (e.g. pp.
16-25 [Lochnerism], 108-10 [eugenics],
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126-37 [immigration law, Indian rights and imperialism], 137-47 [criminal syndicalism], 217-23 [death penalty],
237-41 [the war on drugs], 280-302 [racial integration], 326-39 [abortion and McCarthyism], 349-76 [tort liability],
385-89 [bankruptcy], 399-406 [exclusionary zoning] and 430-56 [domestic relations]). In the process he underscores
how important it is to state precisely what some of the cultural attributes of society are to help construct law’s
social meaning. Although it may unreasonable to expect more empirical rigor in a survey of legal history, the
research design must still make it clear from the beginning where the path of historical or sociological insight
lies, and how that direction affects the law’s social purpose. Friedman is modestly successful in nudging us toward
that road.
Although the information he marshals is impressive, Friedman’s thesis about what American law socially represents--or
what cultural attributes are at work--is not always readily! discernible.
Drawing from prior research (1968, 1975, 1985, 1993, 1999), Friedman studies three time periods: 1900-32, 1932-80,
and 1980-2000. The first five chapters examine “The Old Order,” three decades that were culturally elitist, conservative
(i.e. resistant to change), intolerant, and parochial. He describes a white and male-only legal profession that
is undergoing a radical transformation in legal education, where apprenticeship is slowly being replaced by the
casebook method, the rapid institutionalization of the American law school, and the exclusionary inclinations of
the American Bar Association. He portrays a U. S. Supreme Court in the grip of Lochnerism, Social Darwinism and,
increasingly, corporate America and the Wall Street law firm. Criminal laws reflected an old-fashioned Victorian
morality, and the sordid conditions of prison life are rife with corruption, and often mirror harsh social attitudes
that encouraged strict legal limitations on obscenity, vice crimes and alcohol consumption. Relations between
the races were especially abysmal, “the high point of American apartheid” (p. 111) and--sometimes with the high
court’s help during wartime--the nadir of civil liberty for the politically disadvantaged.
Whereas the states were more at the center of political activity up until 1932, the next ten chapters (“The New
Deal and Its Successors”) argue that the New Deal significantly altered American culture. Although not “a total
revolution,” it spawned a “new administrative state,” or “Leviathan” that centralized bureaucratic power in the
nation’s capitol (p. 170). This shift of authority laid the basis for the liberal welfare state and, in the post-war
era, the social and sexual revolution of the 1960s and 1970s. Its most important legacy, though, was the profound
effect it had on cultural post-war attitudes and norms that found expression through law. As Americans ceded more
power to the national government to fight crime, regulate the economy and enact consumer protection laws, they
also discovered that the law, somewhat paradoxically, was a potent tool to promote discrete interests at a time
of increasing cultural diversity.
Friedman describes several alterations in the legal landscape to make his point. In an intriguing chapter (nine)
he surveys the judicial process and civil procedure. Although procedure is “the ugly duckling of the law” (p. 251),
innovations such as the class action and the expansion of federal jurisdiction became powerful, and distinctly
American, methods of securing what Friedman later calls “total justice,” the
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cultural belief that one could be made whole through tort-based compensation (pp. 374-75). The American propensity
to claim and blame in a civil lawsuit thus found a mass audience in an increasingly proceduralized and complex,
court-centered judicial process that seeks liability from a deep pocket, corporate defendant. Similarly “plural
equality” or a heightened sense of rights consciousness that legally exploits cultural differences to gain social
equality (pp. 11-12, 505-10, 542-45) and “expressive individualism” (a process of self-realization that facilitates
success and happiness, p.516) are also responsible for breaking down some, but not all, of the nineteenth century
discrimination barriers oppressing the underclass (p. 516). Notably, the ubiquitous presence of lawyers and a
greater diversity in bar membership was another post-war phenomenon that is more of the effect, rather than the
cause, of legal change (p. 374). Instead, the law’s evolution resulted from a fus!ion of general and internal
legal cultures that produces a social context that is ripe for the continuation or destruction of prevalent legal
norms (pp. 505-6).
The last four chapters (“The Way We Live Now”) explore the last two decades of the century by analyzing the conservative
backlash to the inroads made by liberals in the 1960s and 1970s. The Reagan/Bush years yielded a “limited counterrevolution,”
for many of the liberal successes conservatives targeted, such as Social Security, Medicare and civil rights, were
scaled back, but not eliminated (p. 524). Although the Republican Presidents enjoyed “considerable success” in
packing the federal courts, Friedman opines that “much of what the [U. S. Supreme] Court did in the past seems,
so far, fairly irreversible” (pp. 525-26). In arguing that the conservative backlash is limited, he states that
“American apartheid is dead beyond recall…[and][o]nly a few lunatics, in camps in Montana or sending poisoned messages
on the web, still dream about a republic for the white man only” (p. 528). More significantly, the conservative
retrenchment generated a more
discomfiting backlash of its own, where the politically disaffected have been adamant in having the legal culture
recognize their separate identity within the larger
American community (pp. 318-26, 542-47).
Although he is cautious in making predictions about the future (p. 523), Friedman asserts that rapid technological
changes in transportation and communication are an indication of what lies ahead. Apparently the latter industry
holds more promise or peril (with global implications), as he believes that America has become a “horizontal society,”
or one that is inextricably connected to the powerful imagery of the mass media (p. 571). This will continue to
revolutionize American law not only domestically, but also abroad, and it will continue the inexorable New Deal
trend of strengthening the “imperial presidency” (p. 595) and the “huge, shapeless beast” of the federal government
(p. 599).
At the end of AMERICAN LAW’s “Bibliographical Note” Friedman laments that “the whole business of interpreting the
past…is never signed, sealed, and delivered, it is always incomplete, always inchoate, always a work in progress,
a work that is never done” (p. 689). Clearly that frustration comes through in the main text as Friedman often
seems to wrestle with the sticky problem of trying to synthesize a large amount of thematic material relating to
the contradictory nature of American law and, simultaneously, make sense of it in a single volume. If law is a
function of society, as he suggests, communicating what the law “is” to that society can only be done
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if the messenger clearly conveys what that society “is.”
From this perspective, the book’s analysis might, for some, still be a work in progress because it does not coherently
integrate many of its overlapping themes into a single argument about what America has been culturally transformed
into during the twentieth century or what it is likely to look like in the next. Likewise, there is, at times,
a propensity to omit or under-develop themes (and sometimes social facts) which, had they been included or elaborated
upon, probably would have given the work more congruence. For example, the influence of advances made by medical
science is not a serious topic, and the enduring impact that scandals (such as Watergate) have had on the law is
given little sustained discussion (e.g., pp. 546, 590-91). Also, more treatment of the contemporary trends in
certain areas of the law, such as disabilities law, abortion rights, school funding, and gender and sexual preference
discrimination is arguably warranted (e.g., pp. 325-26, 330, 452, 52!
9-31), especially in light of the author’s view that the Rehnquist Court has had a modest effect on federalism
and other political jurisprudence (pp. 524-32, 597-98). The tendency to understate essential points probably results
from the inherent complexity of trying to cover a lot of ground in one volume, but it also might be a
function of the decision to give the last twenty years of the century less attention (four chapters) than the previous
fifty, from 1932-80 (ten chapters). One could surmise that in (legitimately) trying to be brief the author bypassed
a chance to transmit some important analysis.
In addition, Friedman emphasizes that society--and hence American “law”--has been molded by rapid changes in technology,
the rise of the administrative state and imperial presidency in the New Deal, and the 1960’s civil rights movement.
Clearly these are watershed historical events that fashioned the prevailing legal culture and, presumably, the
author’s assessment about the social meaning of “Americanized law.” What purportedly animates the events and which
give American law its
vibrancy are a set of discrete cultural values and norms that Friedman labels “total justice,” “individualism,”
“plural equality,” and the “horizontal society.” Although most of the ideas mature as jurisprudential or social
constructs in the last half of the twentieth century, on balance they seem crucial to Friedman’s overall cultural
analysis. Yet for the most part the historian chooses to discuss them randomly in the text instead of coherently
from its beginning. Perhaps this occurs because
some are treated in depth in earlier works, e.g. Friedman 1985, 1999.
For example, total justice, which is first mentioned by name but not explained in the introduction in the context
of the rise of the welfare state (p. 3), makes its next appearance in reference to worker’s compensation and the
(tort) liability explosion, in chapter eleven (p. 362). Individualism, which is identified in the introduction
(p. 8) in regard to technology, affluence and the imperial presidency, is not heard of again until chapter six
in association with the impact the New Deal has on the “rugged individual” (p. 167), and then, in chapters eight
(in regard to permissive sex and gun laws, p. 241) and nine (in reference to class action lawsuits, p. 256). Plural
equality, which is conspicuously the most developed theme, is discussed in the introduction when Friedman identifies
the civil rights movement as a key historical event (p. 11). However, it is not until chapter five (with regard
to free speech
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and wartime dissent, p. 141) and then chapter eight (in reference to GIDEON v. WAINRIGHT (1962) and criminal law,
p. 210), that it is given salience. The last paradigm, the horizontal society, is not in the introduction by name;
rather, the phrase is first employed in chapter eighteen in a dialogue about the Internet and the significance
of new technologies (p. 571). The belated use of the metaphor might signal that the concept itself is not a critical
norm. However, Friedman’s emphasis on the power of the media from mid-century on, especially television, to affect
the presidency, popular culture, and the substance of discrete law subjects is a clear sign that it is profoundly
important to the social interpretation of twentieth century law. If so, one can only wonder why it is not given
specific attention in the beginning of the manuscript, if for no other reason than to explain what it is and why
it is critical to appreciating modern American culture.
Happily in the final chapter (and in isolation elsewhere) most of the four concepts are mentioned in relationship
to each other and with a clear purpose (e.g., pp. 602-3). Nonetheless, Friedman does not consistently anchor his
thesis around them, nor does he adequately exploit other notions or themes that crop up or sometimes preoccupy
his thinking at different times in the book (e.g., rights consciousness, racism, nativism, and federal bias).
By not doing so, he cannot
connect any of them to the root of what makes America a legal community of inclusion or exclusion, or separate
the reasons why the nation morally succeeds or fails as a consequence to how the government expands or contracts
in size, or how it exercises its legal authority. Using the ideas more uniformly might explain better why a legal
system that produced BROWN v. BOARD OF EDUCATION (1954) (p. 288) is also responsible for tolerating, through judicial
decision, civil rights’
deprivations associated with the excesses of McCarthyism (pp. 335-36), or why, as the author declares, almost by
fiat, that “the United States is still two nations–and unequal ones at that” in spite of BROWN (p. 302). Saying,
as Friedman does, that U. S. Supreme Court “justices are, after all, creatures of
society themselves” and that they are “not immune to the cold war mind,” with regard to the 1950s Red Scare, is
only part of the answer (pp. 272-73, 338). Although there are certainly other forces at work, another reason might
be that the constitutional values of individual liberty or equality are sometimes, and ironically, incompatible
in a political system actuated by elitist majority rule or wealth. Organizing historical facts and anecdotes around,
say, the concept of individualism and correlating it to a pattern of sociological or institutional behavior might
have brought that possibility to light, as well as others. It thus might have been advantageous for the historian
to borrow insights from sociology, psychology or even economics to zero in on what the relevant cultural attributes
are, why they exist in a specific time period, and how they are conjoined.
Friedman’s emphasis of plural equality comes tantalizingly close to revealing how the author could have been more
successful in matching the overarching themes to his research. His use of the term has an obvious connection to
history and de Tocqueville’s belief that a growing “equality of conditions” and, similarly, “atomization,” might
contribute to the “soft despotism” threat that he feared would destroy democracy. Although he fails to mention
de Tocqueville, Friedman leaves the impression that plural equality might be just as dangerous, as it is leading
to the creation of a false kind of cultural separatism that only serves to balkanize, instead of unify, the
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country. Yet creating an impression is not the same thing as making an argument, and his uneven discussion of
plural equality leads to a sense that Friedman is reluctant to make the kind of association between equality and
democracy that de Tocqueville did. One can only guess if Friedman thinks its wise to link the two at all since
the issue and other cultural contradictions are not consistent analyzed.
This neglect is unfortunate because how particular cultural attributes affect the tension between equality, liberty
and democracy or majority rule is a paramount concern that ought to be considered carefully in a history of American
law. Why is it, for example, that America is pre-occupied with individual wealth and leisure, but not racial harmony
and full equal rights for those with physical or mental disabilities? Early on affluence and technology are associated
with individualism and
leisure (p. 8). However, it is not until victimless crimes and prohibition are discussed in the New Deal era that
Friedman points to “[t]wentieth-century affluence” and “a society with growing amounts of leisure” as cultural
signs of legal change (p. 228), except indirectly or in loose association with “individualism” broadly stated.
Thereafter he does not make either concept or their inter-relationship a sustained part of the analysis, even when
he “takes stock” of how technology affects culture in the final chapter. Furthermore, a variety of different events
or facts make American law extremely vexing and they should have been given more focused consideration.
For example, why does the nation’s highest court sanction capital punishment but yet, simultaneously, afford prisoners,
who forfeit their rights as citizens, constitutional rights? Why are some religious sects treated differently
than others who are similarly situated under the law? What is the cultural answer to why freedom itself sometimes
undermines the “law?” Or what events in history (like, say, the 1980s savings and loan scandal, which is not mentioned)
demonstrate, or
explain, why “scandal and incident” (p. 590) are a pervasive element of the American lifestyle and virtually impossible
to eliminate by law? Perhaps using an illustration highlighting the difficulty of reconciling American democracy
and rights’ principles–such as campaign finance legislation, which is not meaningfully discussed–would clear the
murky haze. Friedman gives us some hints (pp. 61, 546-47), but he does not (nearly often enough) identify corruption
as a consistent
human failing or pattern of cultural behavior that, over time, explains legal flux or stability. Friedman’s only
answers seem to be found in “cultural stuff” (p. 272)
or “chemical reactions” (p. 589).
Manipulating the operative paradigms better surely would have teased out of history more lucid rationales about
what the law culturally “is” and, significantly, be the point of departure for analyzing correlated issues of American
jurisprudence. What, for example, is the true social promise and purpose of law (and justice) in American culture?
This, it seems, is a vital query that strikes at the heart of the matter under review. The retort that AMERICAN
LAW gives us, though, is
pedestrian: because the dominant, governing elites, i.e. the majority, say so, and, culturally, we should not expect
much more any time soon because meaningful social change cannot happen until those in charge consent. Although
Friedman might be right, and only if that is a correct interpretation of the message, the sketchy answers he gives
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would be more convincing if he organized and then juxtaposed the four concepts identified in the preface and linked
them together in a succinct thesis about what makes American law culturally distinctive. Doing so creates a more
illuminating rendition of history, if for no other reason than it first exposes, and then perhaps reconciles, the
maddening contradictions epitomizing twentieth century American law and society.
To be fair, Friedman concedes that American legal culture is replete with contradictions (p. 603), but the failure
to make them a central premise and clearly align the four principles, or others, with the book’s historical data
impedes a full understanding of what is socially significant legal behavior. To illustrate, the concept of
individualism and its relationship to community, which is never mentioned as a theme, is not grasped until the
author declares in chapter sixteen that, “the master change in general culture in the twentieth century [is] the
triumph of the individual” (p. 516). Then, in chapter seventeen, he states that the “whole concept of the
individual” has changed in the post-New Deal years where, in the age of Lochner the individual was “homo economicus.”
But, today, he is a “unique, a single soul struggling to find his or her true vocation in life” (p. 546). Nor
does it become apparent until much later in the book that plural equality–and the irony of employing the law to
secure group rights for individuals in an increasingly multi-cultural society--is intimately tethered to the demise
of exclusionary land use controls (in chapter thirteen, p. 403), the development of “paan-ethnicity” (in chapter
fourteen, relating to adoption law, p. 447) and the growth of “identity politics” (in chapter
seventeen, concerning the litigation efforts of a variety of different groups and interests (pp. 544-45). Total
justice is not fully described as a crucial norm until chapter eleven, where Friedman suggests that it equated
with the belief that justice can only be achieved if money is awarded to tort claimants seeking liability for
deep pocket defendants in civil lawsuits (p. 374). Also, the metaphor of American being a “horizontal society,”
or one that is heavily influenced by the imagery of mass communications, is not disclosed directly until chapter
eighteen (p. 571).
It is possible that Friedman did not intend to give these concepts the magnitude that is suggested here. If so,
then any criticism in this regard has little merit. If they are critical components of American culture; however,
then an otherwise masterful account is unnecessarily diminished because the analysis lacks structural coherence
and a clear argument. More importantly, not explaining or expanding upon the key ideas creates a lost opportunity
to make the book far more compelling,
especially for those who are new to the subject, or perhaps searching for a justification underlying the vexing
inconsistencies of American legal thought and practice. Even so, AMERICAN LAW is still an immensely valuable book
that can be enjoyed by the legal academy or political or social science scholars.
The book has many virtues, including its thorough inspection and somewhat sympathetic treatment of the legal profession.
The sheer breadth of the work is impressive. It sheds a welcome light on the critical role jurisdiction and procedure
plays in American law and, in addition to surveying the broad fields of race relations, crime and civil rights,
it expertly weaves the content of highly technical substantive law, such as business law, property law, taxation,
intellectual property, and the law of estates,
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into a readable format. It is meticulously researched, mostly with literature from law and history, and very informative.
Political science public law scholars might find new insights to old topics, such as (re)discovering the importance
of CLEVELAND BOARD OF EDUCATION v. LAFLEUR (1974), a U. S. Supreme Court ruling that not only “sums up…a whole
series of trends in late-twentieth-century legal culture,” but also helped revolutionize the law of gender equality
(p. 518).
Moreover, the book is a valuable reminder that legal history is intrinsically connected to American political and
judicial behavior. Indeed, the high quality of the scholarship makes it very useful as a reference book across
the disciplines, and professors teaching law and society, legal history, or even constitutional law courses, can
easily adopt it for classroom use since its anecdotal style is not only entertaining, but also quite accessible
for students. On balance, AMERICAN LAW is a worthy addition to the literature and a fine addition to the library
of anyone interested in being introduced to contemporary American law.
REFERENCES:
Friedman, Lawrence M. 1968. GOVERNMENT AND SLUM HOUSING: A CENTURY OF FRUSTRATION. Chicago, Rand McNally.
------. 1975. THE LEGAL SYSTEM: A SOCIAL SCIENCE PERSPECTIVE. New York: Russell Sage Foundation.
------ 1985. TOTAL JUSTICE. New York: Russell Sage Foundation.
------ 1993. CRIME AND PUNISHMENT IN AMERICAN HISTORY. New York: BasicBooks.
------ 1999. THE HORIZONTAL SOCIETY. New Haven: Yale University Press.
------. 2002. AMERICAN LAW IN THE TWENTIENTH CENTURY. New Haven: Yale University Press.
Gillman, Howard. 2001. “What's Law Got to Do with It? Judicial Behavioralists Test the ‘Legal Model’ of Judicial
Decision Making,” LAW AND SOCIAL INQUIRY 26: 465-504.
CASE REFERENCES:
BROWN v. BOARD OF EDUCATION, 347 U. S. 483 (1954).
CLEVELAND BOARD OF EDUCATION v. LAFLEUR, 414 U. S. 632 (1974).
GIDEON v. WAINRIGHT, 372 U. S. 335 (1963).
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Copyright 2002 by the author, Christopher P. Banks.