It's my great pleasure to announce that Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz has been printed (even though it's not being shipped until February 9). The volume, which Dan Hamilton and I edited, has essays by nineteen of Horwitz' students and colleagues.
Horwitz' first book, The Transformation of American Law, 1780-1860 (1977) said a lot about the relationship of law to the economy; his second, The Transformation of American Law, 1870-1960 (1992) focused on jurisprudence. So not surprisingly a lot of the essays relate to one of those broad areas (more to the latter than the former). Yet, Transformations in American Legal Historyis somewhat different from the usual festschrift volume because a lot of the essays go in different directions from Horwitz' work. Why is that? I think that's characteristic of the freedom that Horwitz gives his students, to pursue topics that interest them, rather than only those on which he is most interested.
This also means that, like most edited volumes, the essays do not always directly relate to one another. So we have essays on legal practice in the eighteenth century, on James Kent's jurisprudence, on the place of American law in British empire, on legal practice in the gilded age, labor policy during the New Deal, legal pluralism during the New Deal era, Justice Black's ideas of civil rights, the future of legal history as a discipline, even two on intellectual property that take the story right up to the day before yesterday--along with a very affectionate foreword by Dean Elena Kagan.
The book review editor in me wonders, what does this tell us about the state of legal history? At a pretty obvious level, the diversity of topics suggests just how broad legal history is as a field these days: we're interested in all sorts of topics, from legal practice, to constitutionalism, to jurisprudence. The legal history of just about every substantive area is under examination and I think that's because we think there's good reason to explore those histories. First, that may tell us more about where we are today; second, it may expand our knowledge of legal evolution and the interaction of legal and cultural ideas.
The impressionistic picture the volume creates of the field is likely more important than the connections between individual essays; for that picture suggests that the field is--like our country--very broad. There continues to be a lot of attention to the Constitution, particularly the early federal Constitution. There's some on the legal profession, on slavery (though mostly from the perspective of slaveholders, which is less common these days), on the Gilded Age, pluralism and the progressives, free speech, and intellectual property, too.
There are, of course, some really interesting questions about what's not in here. There is little on the American Revolution or Civil War. Issues of gender are noticeable by their absence. That has been a concern of mine for the field of legal history, though the second festchrift volume will address this, in part with an important essay by Felice Batlan. And one thing that's surprising to me is the lack of emphasis on critical legal studies. Horwitz' students' interests have gone in rather different directions, as have his own in recent years, of course. (I had a few thoughts on my relationship with Horwitz' work and with him back in September, around the time of the conference in his honor.)
The contents are:
Elena Kagan, Foreword
Daniel J. Hulsebosch, Debating the Transformation of American Law: James Kent, Joseph Story, and the Legacy of the Revolution
Mary Sarah Bilder, Colonial Constitutionalism and Constitutional Law
Alison LaCroix, Drawing and Redrawing the Line: The Pre-Revolutionary Origins of Federal Ideas of Sovereignty
Sally E. Hadden, DeSaussure and Ford: A Charleston Law Firm of the 1790s
Alfred L. Brophy, Utility, History, and the Rule of Law: The Fugitive Slave Act of 1850 in Antebellum Jurisprudence
Polly J. Price, Stability and Change in Antebellum Property Law: Stare Decisis in Judicial Rhetoric
Lewis A. Grossman, ‘‘The Benefits and Evils of Competition’’: James Coolidge Carter’s Supreme Court Advocacy
Gregory Mark, On Limited Liability: A Speculative Essay on Evolution and Justification
Dalia Tsuk Mitchell, Transformations: Pluralism, Individualism, and Democracy
Stephen A. Siegel, The Death and Rebirth of the Clear and Present Danger Test
Christopher Schmidt, Hugo Black’s Civil Rights Movement
Elizabeth Blackmar, Peregrinations of the Free Rider: The Changing Logics of Collective Obligation
Assaf Likhovski, Two Horwitzian Journeys
William Michael Treanor, Morton Horwitz: Legal Historian as Lawyer and Historian
Charles Donahue Jr., Whither Legal History?
Steven Wilf, The Moral Lives of Intellectual Properties
Oren Bracha, Geniuses and Owners: The Construction of Inventors and the Emergence of American Intellectual Property
Daniel W. Hamilton, Morton Horwitz and the Teaching of American Legal History
I hope that you'll encourage your library to buy the book--it's listed at $45, though Amazon's offering it for about $32.