Vol. 11 No. 6 (June 2001) pp. 288-291.

THE LEGALIST REFORMATION: LAW, POLITICS, AND IDEOLOGY IN NEW YORK, 1920-1980 by William E. Nelson. Chapel Hill: University of North Carolina Press:2001. 457pp. Cloth $49.95. ISBN: 0-8078-2591-3 ;

Reviewed by Mark A. Graber, Department of Political Science, University of Maryland.

Law throughout much of American history has been state law. The great legal treatises of the nineteenth century were largely devoted to state legal and constitutional practice. Scholars investigating the diversity of the American legal experience are advised to examine state court reports. They will find opinions which play far more interesting variations on the freedom of economic enterprise than federal opinions, express far more virulent racism than ever expressed by the Supreme Court of the United States, and anticipate federal rulings declaring school segregation inconsistent with constitutional equality by more than three-quarters of a century. Federal constitutional and statutory law gained the place of academic honor in the twentieth century, but state developments still probably have the greater impact on the lives of most people. State police powers still structure the health, safety and morals of state citizens. More often than not, the impact of federal law depends on whether state legal authorities attempt to hinder, support or go beyond national directives.

THE LEGALIST REFORMATION: LAW, POLITICS, AND IDEOLOGY IN NEW YORK, 1920-1980, provides a fascinating account of legal developments in probably the most highly visible state in the Union. Professor Nelson read virtually every published case handed down by New York State and federal courts on matters other than criminal law. His findings will be of interest to scholars and fascinate general readers. The full gamut of the legal experience is surveyed and analyzed, from the abandonment of children to the zoning of suburbia. Undergraduate professors interested in teaching how law structures virtually every human relationship will find THE LEGALIST REFORMATION an excellent text. Human sexuality, fiduciary relations, and torts between complete strangers are all given their due in this remarkably comprehensive work.

The central theme under1ying this dizzying array of cases is New York justices, mostly in state courts, are articulating an ideology that enables diverse people to live together, and that their vision should "become the standard of justice for all those people in the world who, like New Yorkers, are striving to coexist" (p. 1). This legal ideology, Professor Nelson claims, evolved in roughly three states. During the first stage, from 1922 until 1938, reformers representing downstate immigrants struggled to gain control of legal institutions and rules from upstate elites bent on preventing redistribution. Led by Benjamin Cardozo, more liberal justices insisted that law play closer attention to social consequences, but they "lacked a clear commanding ideological vision to which to conform the law" (p. 116). That ideology was articulated in the next stage, from 1930 until 1968. THE LEGALIST REFORMATION maintains that during and

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after the New Deal, New York justices began adopting and elaborating adopted the jurisprudential principles set out in footnote four of UNITED STATES v. CAROLENE PRODUCTS CO (1938). Equality in these years was redefined "as requiring the protection of discrete ethnic, religious, and cultural minorities rather than dictating the redistribution of wealth from rich to poor" (p. 125). That reformist ideology functioned well in the assimilationist 1950s, but it proved less a guide to action after 1968. One fundamental problem with more recent efforts to articulate a liberal jurisprudence is that in cases ranging from affirmative action to fiduciary trusts, legal struggle are between different interests groups rather than a mere effort to bring one interest group into the mainstream of society. Moreover, a concern for efficiency began to permeate many areas of New York laws that weakened previous commitments to more egalitarian norms.

Political scientists will particularly profit from the comprehensive coverage of New York law. Even more so than academic law, public law scholarship with theoretical concerns too often focuses almost exclusively on the sexy issues of constitutional theory, most of which involve sex. THE LEGALIST REFORMATION explores how concerns for minority rights may have ramifications outside of the problems traditionally associated with equal protection or the political process. The First Amendment is a well-known site for theories of assimilation, and Professor Nelson details the legal struggles for immigrant expression. Contract law is a less known, but similar site. Inherited contract law in the early twentieth century, Professor Nelson notes, assumed a heterogeneous community that had common understandings and business practices. A good deal of the difficulty with the contract cases New York justices struggled with, he argues, resulted from the greater activity of downstate Jews and Catholics whose business practices and understandings were different from upstate Protestants (pp. 80-81). Such modern developments in contracts as using objective standards of reasonableness to fill in missing contract terms, THE LEGALIST REFORMATION concludes, resulted from differences in the persons who were making contracts.

The struggle between downstate businesses increasingly run by immigrants and upstate businesses run by established elites suggests a possible alternative, less sanguine, interpretation of legal developments. New York in the twentieth century may have resembled Jacksonian America. The official mantra of Jacksonians was equal protection for all, but that revolution may better be understood as a new elite partly, both economically and socially, displacing an older elite. A similar status revolution was taking place one hundred years later in the Empire State and that revolution had similar legal consequences. Professor Nelson notes that business law during the 1940s may have less reflected Jewish and Catholic values per se than favored newer enterprises over older enterprises (pp. 82-83)--CHARLES RIVER BRIDGE v. WARREN RIVER BRIDGE (1837) redux. Similarly, developments in the 1940s more favored those immigrant groups that had power than persons of color. New York, in THE LEGALIST REFORMATION, is not a leader granting rights to African-Americans (p. 275). Finally, the sympathy New York justices demonstrated for the sexual revolution, most notably in their finding a constitutional right to private homosexual behavior (p. 320), seems better understood as protecting the practices of suburban elites than expressing the values of the former Jewish and Catholic

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underclass.

THE LEGALIST REFORMATION bears marks of legal scholarship that may give political scientists some trouble. Professor Nelson is quite liberal making normative judgments without much analysis. Not much detective work is needed to determine who the good guys are when issues are described as "pitt[ing] claims of deprivation of property rights against efforts to use legislative power to prevent exploitation of the weak and the poor, to redistribute wealth and power, and therefore to achieve social justice" (p. 21). Progressives who accept these evaluative judgments may find other assertions more troubling. Most people would agree that persons opposed to homosexuality are conservatives. They might not say, however, "worst of all in the eyes of CONSERVATIVES, the courts continued to confront instances in which men had sex with boys" (p. 321) (emphasis added). Many claims are made on fairly loose evidence. Professor Nelson claims the second BROWN v. BOARD OF EDUCATION (1955) demonstrates that assimilationalist ideas had been abandoned for multicultural ones on the grounds that immediate orders to desegregate could not have been based on an assimilationalist ideal, which takes time. "The court in BROWN," he writes, "demanded that African American equality be achieved with `all deliberate speed,' not as a long-term goal over an extended period of time" (p. 313). The claim that BROWN II was committed to immediate desegregation can be criticized. Moreover, immediate desegregation might have the effect of putting children of color in classrooms where assimilation to white norms would be easier. At least, this needs more than the one paragraph argument presented in THE LEGALIST REFORMATION. The evidence is even more questionable when Professor Nelson claims that what may have distinguished the result in FEINER v. NEW YORK (1951), where a speech conviction was sustained, from KUNZ v. NEW YORK (1951), where a speech conviction was reversed, "was the content of the speeches." "Kunz," he notes, made scurrilous statements about Catholics and Jews, whereas Feiner attacked the government" (p. 150). The opinions, however, suggest a less malicious distinction. Feiner was convicted for disturbing the peace; Kunz was convicted for not obtaining a permit before he spoke, a requirement that previous cases had already indicated was constitutionally suspect. The majority opinion in KUNZ made quite clear that a conviction probably would have been sustained had the charge been disorderly conduct.

Professor Nelson also shifts from New York state courts to New York federal courts to Supreme Court of New York to more general national developments in ways that may confuse the thesis. Consider only the three dates that are crucial to his narrative, 1922, 1938 and 1968. Few scholars consider 1922 to be of particular importance nationally. That date does, however, seem to mark the permanent progressive control over the New York governorship that lasted until 1994 (p. 19). The years 1938 and 1968 are more nationally important than locally important dates. 1937-38 marks the consolidation of the New Deal regime. 1968 marks the destruction of that regime on a national level. Much political development scholarship, however, highlights that realignments on the national level are often anticipated or delayed on the state level. A very major teacher's strike did take place in New York in 1968 that had lasting consequences for New York City politics. The year 1938 witnessed a constitutional

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convention in New York. Still, whether a scholar writing about New York politics would consider 1938 or 1968 more crucial than some other years is open to question. Indeed, at times, Professor Nelson seems to forget that his subject is New York. The New York City bankruptcy crisis that dominated city politics in the 1970s is never mentioned. Professor Nelson complains about conservatives renewing capital punishment, but the death penalty was never renewed in New York during the time of his study.

THE LEGALIST REFORMATION is likely to be very favorably reviewed by law professors, favorably reviewed by historians, and more critically praised by political scientists. The inferential style will bother even those political scientists who would rather be exiled to Siberia than use a chi-square. Still, the normative confidence and ad hoc assertions are typical of academic law and the wealth of information will impress historians. That information alone makes this a book that will teach political scientists much. Most important Professor Nelson provides scholars not satisfied with his general or specific inferences a strong foundation for more rigorously testing alternative hypotheses about New York law, the law in other nations, or the American legal experience.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 349 U.S. 294 (1955).

CHARLES RIVER BRIDGE v. WARREN BRIDGE, 36 U.S. 420 (1837).

FEINER v. NEW YORK, 340 U.S. 315 (1951).

KUNZ v. NEW YORK, 340 U.S. 290 (1951).

UNITED STATES v. CAROLENE PRODUCTS, 304 U.S. 144 (1938).