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Book Review
| Michael Grossberg and Christopher Tomlins, eds., The Cambridge History of Law in America, vol. 3, The Twentieth Century and After (1920–), New York: Cambridge University Press, 2008. Pp. 958. $120 (ISBN 978-0-521-80307-6).
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| The third and last volume of the Cambridge History of Law in America includes twenty essays, each by a different author or group of authors. With the exception of Barry Cushman's chapter on the Great Depression and the New Deal, the volume is organized thematically rather than chronologically. Each essay covers a particular topic over a long period of time. In keeping with the overall structure of the three-volume set, most of the chapters begin approximately in 1920, but a few stretch farther back, including Betsy Mendelsohn's on law and the environment, and Leslie Reagan's on law and medicine, which go all the way back to the late eighteenth and early nineteenth centuries. |
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The editors have assembled an all-star cast of authors, so it is no surprise that the overall quality of the essays is very high. All of them should be useful to their multiple intended audiences. Much of this material will be familiar to legal historians, who will recognize the many places where the contributors are summarizing their earlier work, but specialists will nevertheless find it convenient to have all this information in a single place. For historians who do not specialize in the law, the volume is a wonderful survey of what legal historians have been up to for the past few decades. And the volume is an ideal introduction to the topic for students. The editors suggest in a preface that they intend the book to be read by practicing lawyers and members of the general public as well. I hope they're right, but by charging $120 (or $300 for the three-volume set), Cambridge University Press is not helping. |
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The bibliographic essays at the end of the book are likely to prove even more useful than the chapters themselves. Each of the authors has provided extended coverage of the literature in his or her field. These essays add up to a nearly 150–page survey of the state of the art that is now the best place to begin research in any of the topics covered in this volume. |
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Perhaps because the Cambridge History is intended for a wide readership, and no doubt also because space is so scarce, the authors mostly avoid critiquing prior scholarship and reflecting on the role of law or the purpose of legal history. There are occasional bits of inside baseball, which are all the more noticeable because of their rarity. Victoria Saker Woeste begins her essay on law and agriculture by criticizing James Willard Hurst for failing to pay enough attention to farmers. John Henry Schlegel dwells at length on the relationship between law and the rest of life, and concludes, in an idiosyncratic chapter on law and economic change, that law actually had very little to do with economic change, and that law is less important than legal historians think it is. But most of the authors simply tell their stories without devoting explicit attention to whether the stories are worth telling or how they may have been wrongly told before. |
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The volume is a good indicator of how our conception of legal history has expanded over the years. Some of the chapters, like William Fisher's essay on legal theory and legal education, Michael Willrich's on criminal justice, or Lawrence Friedman's on the supposed litigation explosion, take up topics that have long been understood as parts of something called "legal history." Others suggest a more expansive definition of the field. Yves Dezalay and Bryant Garth, for example, contribute an essay on the role played by lawyers in foreign policy and international trade. Mary Dudziak provides a sobering account of the relationship between law and war. Daniel Ernst's chapter on law and the state is very nearly a history of American government. One message of this book is that law is almost everywhere, and thus that just about any aspect of the past can be viewed as a facet of legal history. |
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With any compilation of this kind, one can quibble about gaps in coverage and overlap between chapters. Unlike the first two volumes, for example, this one includes no sustained coverage of court structures or personnel. Readers hoping to learn about the staffing of the judiciary or the influence of prominent judges like William Brennan or Antonin Scalia will be disappointed. None of the essays discusses intellectual property or the relationship between law and technological change, topics covered in volume two but just as important in the twentieth century as in the nineteenth. The first two volumes have chapters on American Indians that run from the onset of colonization through 1920, but this volume does not take up the rest of the story. This volume has a chapter on sexual orientation but not one on gender. Meanwhile the New Deal and the Supreme Court's response to it get covered three times, first by Daniel Ernst, then in Edward Purcell's chapter on federalism, then yet again by Barry Cushman. The Supreme Court's midcentury desegregation cases feature prominently in Mark Tushnet's essay on the rights revolution and Michael Klarman's chapter on race. Gwendolyn Mink, writing about poverty law, and Eileen Boris, covering labor law, both devote substantial attention to Social Security and the Aid to Dependent Children program. Unlike the subjects of some of the other multiauthor Cambridge and Oxford Histories, the legal history of the twentieth-century United States is not easy to chop into chronological, geographical, or even topical units. No doubt every reader will have his or her own candidates for important topics missed or unimportant topics included. |
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This volume and the two that precede it should nevertheless end up playing the same roles for American legal history that the other Cambridge and Oxford histories play for their fields—a declaration of what eminent specialists consider worth writing about, a reference guide for beginners, and no doubt, after enough time has passed, a convenient punching bag for new generations of historians eager to point out just where their elders went wrong. |
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