The Faculty Lounge: My Morty

Well, I'm sitting here working over the text of my talk (on ideas of progress and the rule of law in antebellum literary addresses) for the conference honoring Morton Horwitz, which is this Friday and Saturday. I'm thinking a lot about his work and his influence on me this afternoon. He is, in addition to a keen interpreter of legal thought, a most humane and kind person. So I thought that I'd post a little bit on this. (The illustration is of Charles Demuth's 1927 painting "My Egypt," which is of a grain elevator in Lancaster, Pennsylvania. I suppose that's Demuth's statement about what the modern pyramids look like. And it's the inspiration for the title of my post. The idea is that this is my interpretation of Horwitz; I completely understand others have different takes on his work. Hi Nate!)

My relationship–-my many year love affair, really--with Morton Horwitz’ work began in the stacks of the Columbia Law Library sometime around the third week of September 1987. Just about twenty-one years ago. I was about a month into law studies and was–in addition to trying to read everything for class and a bunch of hornbooks, too–looking for something that would help me make sense of all the cases I was reading. There was still talk of the way the common law evolves, particularly in my legal method and tort classes but also in contracts; and much talk also of the role of economic considerations, though not so much moral ones, in that evolution. As to moral considerations, the one discussion I recall was my torts professor saying that he thought calling someone a communist was defamation per se. So I began reading Transformation of American Law, 1780-1860, which I had heard a lot about but had not quite known what to do with when I’d opened it a few times as an undergraduate.

The chapters were magical; I took Transformation over to the green out front of Low Memorial Library and sat in the fall afternoon sun to read it. After just a few weeks of law school I was ready for some framework to help me understand what judges were doing and why they were doing it–in essence, what was the nature of legal thought. Transformation (what was subsequently known as Transformation I, though back in those days there was only a single volume) provided it in three ways. First, it told of the role of judges’ consideration of the economy; second, it decoded the judges’ disposition to promote economic growth at the expense of the less affluent; third, it implied that the judges’ decisions were not neutral “law” but at least partly politics. In essence, instead of deciding cases the way they had, other judges might have a different decision. These are all important insights, though as a student I think I only appreciated the first two. And while I quickly learned that a lot of people, including my sparkling property teacher Eben Moglen, had taken shots at Transformation–and some rather effectively demonstrated that pieces of it needed modification–there was a core truth to Transformation. For what Morty found was just like what I was learning in my classes, first in torts and contracts and in later years in law and economics: judges remake the law to promote economic growth–and they ought to do that.

I went from someone who felt a certain moral indignity when reading about a cement plant that located itself next to some old folks living and started dropping dust on their home and disturbing their peace (as a first year student) to someone who thought, “ah, what the heck! Give ‘em some money and keep running the plant. This is progress!” I guess I’m more or less still in the later category, even though every year my first year property students come into class and look at me like I’m some heartless tool of corporate interests. I know that look; I used to look at my professors that way! They stared back at me as though I was naive; I suppose (fear maybe the right word) that’s the look I use with my students now.

Anyway, as law school was subtly reshaping (I might now say refining) my understanding of law and of the morality of the role of economics in judicial reasoning, I was becoming more convinced that Horwitz had identified key elements of the common law process–and as I read Justice Cardozo’s Nature of the Judicial Process, it seemed to me that his evidence endorsed this gradual coincidence between society’s values and judicial decisions. Then came reading in the, shall I say, less “exciting” legal historians like Willard Hurst. Hurst’s work was deep, meticulous, and, ... umm ... boring–but he disclosed a similar trend among judges. (It’s just that, as Moglen pointed out, Hurst talked about the judges and legislators as “us” and Horwitz talked about the judges as “them.” I talk about “us,” too. I’m not sure what that says, other than my affinity for our American ancestors.)

But why so popular? And why so controversial? It came at just the right moment–as there was dispute about the nature of legal thought; and even though the L&E people disagreed with some of his evidence (witness than Professor, now Judge Steven F. Williams’ review of it in the UCLA Law Review), that set the stage for debate. Was the book too ideological? Too iconoclastic? (John Reid said as much in the Texas Law Review.) Or–as Horwitz now says–too simple a model? Pieces of Transformation are now acknowledged to be, if not wrong, then simplistic (the explanation for the origins of formalism and the “conspiracy between bench and bar,” are the two chapters that come to mind). But the core argument I take to be more or less correct: judges sought a law that promoted economic growth. Sometimes they remade the law; at other times, the confirmed a law that had existed since time out of mind.

So I eagerly awaited the arrival of Transformation II, which carries the story from 1870 to 1960, in my office at 919 Third Avenue in New York, where I was practicing in 1992. And I remember well my first reaction: what had happened to the judges in the intervening 15 years? Where the Transformation I judges had been pro-business, by the time of Transformation II, they were (in some cases) more pro-consumer–or at least to the extent that they were pro-business, that was no longer so bad. Where had those judges gone, I wondered? And what, I’m led to ask now, of the judges who implemented Jim Crow? Transformation II had a very, very different feel to it. It was not so common law focused. Instead, it had gone to jurisprudence, to treatises, even to psycho-analysis of Holmes. Horwitz had shifted his area of interest to jurisprudence and intellectual rather than economic history.

This was, again, brilliant history–but it didn’t generate the animosity of Transformation I. Perhaps that’s a sign that it was more mainstream? That critical legal history was itself more accepted; or that it did not have the same bite? I can not quite figure that out. Stephen Williams, who had (rather ineffectually in my mind) argued against Horwitz in the pages of the UCLA Law Review was by 1992 sitting on the DC Circuit, putting his ideas into practice. Perhaps he no longer saw the need to rebut this new Transformation or perhaps the ideas had become accepted or maybe it's just that this one fought different battles. I’m not sure, but I find this most interesting. For Horwitz was not just writing about history--he was part of the history of legal thought, beginning in the 1970s. Horwitz' shift in methods and questions illustrated part of a larger movement, of course. The left had moved in the 1980s into deconstruction and post-modernism; it was conservatives who inhabited law and economics and who advanced ideas like originalism. Still, conservatives were also the people of ideas, of political ideology–and so Morty moved into their terrain.

Shortly after I read Transformation II I became in a formal sense Morty’s student; and soon he began running the History of American Civilization Program, in which I was taking a, shall we say, while to finish a dissertation on legal thought (and therefore conservative thought) in the old South. As a person who came to adulthood during the Age of Reagan, I was, of course, impressed (awed might be the right term) by the power of conservative ideas and, necessarily, brought into orbit around a lot of them. I saw the power, the elegance really, of both the market and of the common law. (Though, boy, has the idea of the market taken a beating this last week.) And so I wanted to understand more about those ideas and to look at them in a place where they held sway–perhaps where they even controlled the minds of their adherents. My work sought to go back and take doctrine seriously, but also to analyze it in its cultural context. To see how the system of legal thought functioned, at the same time I saw it as related to conservative thought from Burke to Carlyle to southern politicians like John C. Calhoun and obscure southern academics like Albert Taylor Bledsoe, William A. Smith, to academics and lawyers who put their ideas into practice, like Thomas R.R. Cobb–a man who died at the battlefield at Fredericksburg fighting for the cause of slavery and who wrote a major treatise on slave law.

Legal history is about exploring the connections of law to politics; but it’s also about learning about other things as well-–the internal doctrine of law; how ideas are transmitted; how they grew, their relationship to and origins in social thought. The process Horwitz described in Transformation I can be seen outside of cases–-in the fictional literature of the day, in the literary addresses, in the halls of Congress. Some people at the time saw the unfairness of the law that Horwitz saw and pointed it out. While others saw the dedication to economic (and I might add moral) progress and praised it. So Horwitz provided a framework, a way of categorizing what was happening in social and cultural history. He also, clearly, identified some unifying ideas.

There are, of course, lots of stories and people who aren’t in either volume of Transformation. There is very little on slavery or Jim Crow. We could have an important volume on WEB DuBois' legal ideas, which run parallel to those of the realist law professors that Horwitz discusses, for instance. But you have to stop a book somewhere. And we’re increasingly learning, however, that there are parallel stories to be told there. That volumes give us a framework and a language for interpreting the sweeping changes in legal thought over two hundred years. And for a really long time we'll be working through those themes.

Alfred Brophy

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