Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES
Stanford law professor Lawrence M. Friedman stumbles badly in his attempt to document and explain a century of American law in a single book. He attempts both too much and too little. Too much commonplace sociological, economic, and cultural data is plowed without any edifying connection to parallel legal developments. And too little is attempted in seeking to trace and explain 20th-century legal transformations through example and exacting analysis.
Moreover, the commentary Mr. Friedman intermittently sprinkles on the reader throughout is virtually indistinguishable from the prejudices of The New York Times.
Mr. Friedman would have performed higher service by employing the 20th century to unravel the many mysteries of legal evolution. The pace of change was predictably pedestrian. The law is backward looking, mesmerized by the doctrine of stare decisis, i.e., the binding force of judicial precedents. The legal mind is trained to venerate stability and to deprecate the novel or pioneering. The law also pivots on the intellectual orthodoxies of the times, no matter how ill-conceived. Legal syllogisms bow to a mixture of tradition, prudence and prevailing ideological fads or preoccupations. As Justice Oliver Wendell Holmes taught in The Common Law:
"The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed."
Consider the following as illustrative. Enacted in 1890, the Sherman Antitrust Act salutes free enterprise and open competition by prohibiting price fixing and comparable unreasonable restraints of trade. With the Great Depression of the 1930s, however, competition falls into popular and academic disrepute. Collective action, heavy-handed government regulation, and artificial depressants on supply to prop up plunging prices became honored elixirs. President Franklin D. Roosevelt's National Recovery Act displaces the Sherman Act as economic gospel. The United States Supreme Court endorses the displacement in sustaining the legality of naked price fixing among coal producers in Appalachian Coals, Inc. vs. United States (1933), despite a Sherman Act challenge.
Today, after competition recaptured its acclaim as the best engine of prosperity ever devised or conceived, what evoked judicial hymns in Appalachian Coals would be punished under the Sherman Act as a felony and expose the perpetrators to treble damages and three years of imprisonment. Yet the pertinent antitrust language section 1 of the Sherman Act remained as unchanged as a petrified forest between 1933 and 2002.
Enacted in 1866 and reenacted in 1870 during Reconstruction, the Ku Klux Klan Enforcement Act facially prohibited racial discrimination in transactions concerning property or contracts. But Reconstruction ended in 1876; Jim Crow became culturally and legally ascendant in both North and South; and, the statutory prohibitions became virtual dead letters, understood as confined to property or contract arrangements implicating state action, but not to the ubiquitous private discrimination which held blacks in bondage. …