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Book Review
| William E. Nelson, The Legalist Reformation: Law, Politics, and Ideology in New York, 1920–1980, Chapel Hill: University of North Carolina Press, 2001. Pp. 457. $49.95 cloth (ISBN 0-8078-2591-3); $19.95 paper (0-8078-5504-9).
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| At a time when legal history books are increasingly attempts at exquisite miniatures, William Nelson's The Legalist Reformation is a confident and successful attempt to paint on a broad canvas. Nelson's book ranges across decades to depict the transformation of the common law of New York in the twentieth century. There, a conservative legal regime was supplanted by a new cadre of legal reformers who came to power in the second and third quarter of the century. These reformers used law to articulate and put in place an "ideology of liberty, equality, human dignity and entrepreneurial opportunity." The ascendance and ultimate triumph of this ideology amounted to a "legalist reformation" that reflected "a cluster of values that remain at the core of American legal and political thinking even today" (9). |
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Nelson tells this story in three parts, beginning in 1922 with the election of Al Smith as governor of New York. Smith's election, and the election of Benjamin Cardozo as Chief Judge of the Court of Appeals in 1927, represented a shift in the balance of power in a "virulent class conflict between the poor, largely of Catholic and Jewish ancestry, who lived in urban ghettos, and wealthier, mainly upstate WASP New Yorkers determined to use law to preserve traditional moral values and their own wealth and power." In the 1920s and early 1930s, Smith, Cardozo, and their allies ultimately "gained control of the political and judicial branches" and then "used that control to remedy injustice and provide opportunity to the poor" (271). |
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Yet their victory remained incomplete when put in terms of class conflict, because legalist reformers were unable to articulate a broadly popular argument why "wealth and power should be redistributed from the rich to the poor." Only when the United States entered World War II was the argument framed "not as one of class but of ethnicity and religion." In the face of fascism, New Yorkers began to "reconceptualize social conflict in terms of the power of majorities and the rights of minorities" (8), and a new ideology emerged, "declaring that people of all religious and ethnic backgrounds should be free, equal, and protected from discrimination" (271). With this ideological frame in place, the legalist reformation hit its high-water mark in the 1950s and 1960s. Judges were free, largely unnoticed, to fundamentally transform legal doctrine across a wide spectrum. In the process they "remade New York's economy, society and culture" (272). |
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The third part of the book details the partial fall of the legalist reformation. While the language of equality, liberty, and opportunity remained potent, sharp differences emerged over their definition and application. Nelson notes "the legalist reformation did not treat all groups equally well" and, in particular, did not adequately address the needs of African Americans, newer immigrant groups, and women. Ultimately, "the unity of social and political vision that had enabled judges to stage a legal revolution in the aftermath of World War II broke apart into fragments in the closing years of the 1960s" (275). |
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Even though his story is populated with famous judges, including Irving Lehman, Henry Friendly, Harlan Stone, and Learned Hand, Nelson brings to light a great deal that is new. He accomplishes this through wide reading in 620 volumes of state appellate cases in the New York Supplement, federal appellate cases, and a statistical analysis of some 50,000 trial cases. Nelson details how the legalist ideology, whatever its lofty ambitions, took shape less through great constitutional challenges and more through a steady stream of disputes over contracts, torts, the application of zoning law, the law of fiduciaries and changes in the rules of civil procedure. Given the relative absence of galvanizing cases, the legalist reformation was not recognized as a fully coherent ideological movement, but instead emerged one case at a time as judges continued to extend equality and economic opportunity across decades and across the common law. These cases amounted, in their continuous accretion, to a powerful new ideology only half-perceived by its creators. One of Nelson's signal accomplishments is his ability to give coherence to a legal reformation that has no easily identifiable markers and can be discerned only when taken as a whole. |
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Nelson is primarily interested in how broad historical change played out in the common law. In his attention to New York politics in the 1920s, to the role of World War II, and to the divisive events of 1968, he identifies the social and political changes driving doctrinal change. Yet, perhaps inevitably, given the scope of the book, there are points where the historical forest becomes somewhat detached from the doctrinal trees. |
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This book is a major contribution to twentieth-century American legal history. It goes into extraordinary depth into New York common law across the century and considers how one influential state legal system, for a time at least, successfully met the legal demands of religious and ethnic diversity. Nelson persuasively argues that mid-twentieth-century legalist reformers in New York articulated a still-powerful ideology of human dignity through law and a social vision of accommodating diversity "that today has matured into the hope of the progressive world" (8). |
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| Daniel W. Hamilton
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| Chicago-Kent College of Law |
Errata
Matthew W. Finkin's review of Jack Beatson and Reinhard Zimmermann, Jurists Uprooted: German-Speaking Émigré Lawyers in Twentieth-Century Britain (LHR 24 [2006]: 459–62), mispelled the names of Jack Beatson, Barry Nicholas, Gerhard Leibholz, and Wolfgang Friedmann. The book review editor regrets these errors.
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