- The Washington Times - Sunday, August 11, 2002

By Lawrence M. Friedman
Yale University Press, $35, 722 pages

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.
But then the Civil Rights revolution came in the 1960s. Bull Connor and his dogs in Montgomery, Alabama, and Jim Clark with his cattle prods in Selma were popularly reviled for their viciousness towards nonviolent demonstrators demanding equal voting rights and nondiscrimination in education, employment, housing, and public accommodations. The United States Supreme Court hears the message of Martin Luther King from the Lincoln Memorial.
In Jones vs. Mayer (1968), the Court resurrected the anti-KKK law from its grave, and declared illegal racist refusals to sell or lease private property. Soon it interpreted a companion section of the Reconstruction law to prohibit racial discrimination in private contracts, such as refusals to admit black students to private "white academies" in Runyon vs. McCrary (1976).
The language of the civil rights law, however, was identical throughout its interpretive odyssey. What changed were cultural, moral, and intellectual orthodoxies, which invariably find expression in the law whether enacted by legislatures or "discovered" by interpreting courts.
In 1873, the Supreme Court denied that female exclusion from the practice of law violated the equal protection clause of the Fourteenth Amendment. According to the High Court, women were destined by the heavens for more maternal and domestic occupations. In 1906, the Court sustained the disfranchisement of the female sex. By the 1970s, however, women had made Olympian strides in public esteem and stature. Gender equality had captured the moral and academic high ground. Although the words of the Fourteenth Amendment had stood still, they now were brandished by the Supreme Court to slay gender-based distinctions unless substantially related to an important government interest. Under that banner, with two women Justices sitting on the Court, a state-sponsored military academy, the Virginia Military Institute, was required to open its doors to female applicants.
The equal protection clause transformation from the "separate but equal" doctrine of Plessy vs. Ferguson (1896) to the condemnation of segregation in Brown vs. Board of Education (1954), with no alteration in constitutional text or intent, is too commonplace to warrant elaboration. What predominates in explaining why Brown trumped Plessy was the strengthening moral repugnancy of the nation towards racism. The text of the equal protection clause was no more decisive than an extra in a Cecil B. De Mille cinematic extravaganza.
Legal evolution eludes algorithms and straight line explanations. But Darwin-like examinations of legal change without any parallel change in authoritative texts can open up vistas of understanding. Mr. Friedman, however, contributes but crumbs to that urgent academic task.

Bruce Fein is a founding partner of Fein & Fein headquartered in Washington, D.C. with a website at www.feinandfein.com.

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