The Legalist Reformation: Law, Politics, and Ideology in New York, 1920-1980

The Legalist Reformation: Law, Politics, and Ideology in New York, 1920-1980

The Legalist Reformation: Law, Politics, and Ideology in New York, 1920-1980

The Legalist Reformation: Law, Politics, and Ideology in New York, 1920-1980


Based on a detailed examination of New York case law, this pathbreaking book shows how law, politics, and ideology in the state changed in tandem between 1920 and 1980. Early twentieth-century New York was the scene of intense struggle between white, Anglo-Saxon, Protestant upper and middle classes located primarily in the upstate region and the impoverished, mainly Jewish and Roman Catholic, immigrant underclass centered in New York City. Beginning in the 1920s, however, judges such as Benjamin N. Cardozo, Henry J. Friendly, Learned Hand, and Harlan Fiske Stone used law to facilitate the entry of the underclass into the economic and social mainstream and to promote tolerance among all New Yorkers.

Ultimately, says William Nelson, a new legal ideology was created. By the late 1930s, New Yorkers had begun to reconceptualize social conflict not along class lines but in terms of the power of majorities and the rights of minorities. In the process, they constructed a new approach to law and politics. Though doctrinal change began to slow by the 1960s, the main ambitions of the legalist reformation--liberty, equality, human dignity, and entrepreneurial opportunity--remain the aspirations of nearly all Americans, and of much of the rest of the world, today.


In the words of one commentator, the city of New York during the past century has witnessed “the coarse, yet closest, attempt of … [people] of all colors, skins, faiths and tongues to live together in community.” the thesis of this book is that the law of New York—law proclaimed largely by state court judges rather than by legislators or federal officials—has been the principal instrument facilitating this attempt. a further hypothesis, which this book will suggest but not document, is that the legal ideology adumbrated by New York judges has, at the threshold of a new millennium, become the standard of justice for all those people in the world who, like New Yorkers, are striving to coexist.

I did not begin my research on this book with my present thesis, or indeed with any hypotheses whatever, in mind. I decided to write the book, not because I knew what I wanted to say but because the literature of American legal history contained an enormous gap. While books and articles had been written about twentieth-century federal constitutional and regulatory law, no one had written a monographic, historical synthesis of the century’s developments in state constitutional law or in the common law.

This book offers such a synthesis. But it also aims to do more. Resting on a foundational assumption that historians should rediscover forgotten data rather than rehash what is already familiar, I opted against generating my synthesis out of materials included for pedagogical and argumentative reasons in leading casebooks. Instead, I decided to reconstruct in all its detail and complexity the law, both public and private, of a single jurisdiction. By focusing on one state, I could give attention to the often highly revealing secondary opinions of the state’s highest court, as well as the opinions of intermediate and trial court judges. Statistical analysis of the work of trial courts also became possible. Ultimately, my decision to focus on a single state enabled me, and I hope will enable my readers, to delight in the discovery of new knowledge and insight.

New York was the obvious state to investigate. It was home to many key twentieth-century legal players, such as Benjamin N. Cardozo and Karl Llewellyn. For most of the century, New York was the most populous state and the economic and cultural leader of the nation. It was in one important respect . . .

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