What causes change in American law?
Many have answered this question over time, so I am not asking anything novel. However, I pose it here to address one particularly irksome yet common refrain to this question among both legal scholars and laity alike today.
The responses to this question usually go something like this: “The law is constantly changing, usually in response to the political economy. The legal profession are mere reactionaries to the Jacobins and monarchists duking it out in the poltical arena. Tools for the masses and ideological whims of those in power.”
Not only has this likely led to a greater distrust in our legal instituions (how many more articles about the “failed” Supreme Court must we read?), but it’s also probably wrong.
To explain why, I will draw on a few examples—but the statement above first needs to be fleshed out.
Admitting simultaneously that (1) American law changes constantly and (2) that those whose profession is in the law are merely reactive suggests that the law changes only at the pace society or electoral politics do (if not slower). This statement, therefore, attempts to prove too much.
While changes in society or at the political level are not necessarily indicative of changes in the law, it is true many reforms in American law appear shortly after social and political revolutions have passed. The explosion of newfound liability for corporations in the twentieth century doesn’t come to be without the intense mass commercialism that preceded it. However, such mass industry arguably doesn’t itself come to be without American law decidedly promoting economic development in the mid-nineteenth century during what James Willard Hurst described as a release of “energies” through the law.
So, there we have a glimpse of the dilemma in arguing for one side or the other of causal order — and why we should be dubious of those who would limit the legal profession to one large knee-jerk. One could return to each legal reform or social movement and find a revolution or ideological court that came just before it.
This essay will argue that the correct view of legal change in American law is neither purely externalist nor internalist, but instead a tapestry of social movements utilizing the legal system instrumentally for change based on both actual lawyering and social politics. That is, lawyers and judges are not merely reactive, but often engage symbiotically with social and political shifts to create change in American law.
To illustrate, let’s delve into three historical examples: (1) The strategies of the Long Civil Rights Movement, (2) the uniqeuly neurotic case of the Charles River Bridge, and (3) a New Deal domino case, West Coast Hotel.
NAACP and Litigation Strategy in the Twentieth Century
Charles Hamilton Houston once stated that “legal arguments mean little unless supported by public opinion.” Indeed, much of Hamilton’s statement can be seen in the NAACP’s work throughout the 1930’s and 1940’s; namely, in utilizing a strategy that made equal protection arguments via representative plaintiffs of upper and professional minority classes.
Moreover, many of the cases that made it into court relied on circumstances that allowed their lawyers to paint vignettes targeting the haute-bourgeoise tastes of upper-class whites — segregated theaters and rooms at Harvard Law School were some of the stages upon which these legal battles began.
Importantly, both of these moves aimed to identify room for class solidarity between the plaintiffs and the white elite often seated or judging the litigation. Of course, unlike the traditional account of unilateral court-achieved equality rights via Brown — nor like the purely externalist view posed in the refrain spawning this essay — this story begins to paint a more complex picture of legal change in America: one where social status and outside politics actively inform the type of legal strategy that should be used such that both items work together to change American law.
Kenneth Mack in his article Rethinking Civil Rights Lawyering and Politics in the Era before Brown advances this point. Mack argues that the civil rights movement can actually find its origin further back than traditionally thought, and that the campaign strategies used by this movement maintained both a non-legal and a legal aspect to it.
More specifically, Mack argues that there was an early distrust in the Plessy-era courts by the Black community which led to the creation of a non-legal ethos made up in part by notions of “race-uplift” (particularly its “voluntarist” strand), and the idea of a self-sustaining community. The law by the post-WWI period, Mack argues, became integrated with this non-legal, socio-political reality which together evolved into the legal strategies we come to know from attorneys like Houston, Marshall, and the rest. That is, Mack sees the use of strategies like the one that focused on class solidarity in legal representation is “representing the race” — both in legal representation, but also as an image of the Black civil rights bar as those who will change current hierarchies.
One portion of Mack’s argument that appears to run up against the one I am presenting here is his criticism of a historiography that holds courts up as the chief “engines of social change.”
Although Mack argues the legal system’s central role is overblown, this does not present any real problem for us; our argument is that both socio-political events and legal professionals are together integrated first movers of American legal change — not that the courts are central. In fact, there is an element of Larry Kramer’s notion of popular constitutionalism to the argument (both Mack’s and my own) in that the strategies in part rejected the notion of judicial supremacy, and did not look only to that branch for change.
Insofar as this example tests the proposition that “courts and lawyers are essentially reactive,” it should show this statement is something we should disagree with, and that consideration of social conditions combined with legal efforts led to change in American law.
Charles River Bridge v. Warren Bridge (1837)
The case of Charles River Bridge is perhaps one of the clearer episodes in America law showing how the legal professionals and the political economy often work together to create change — in this case by way of both a substantive and conceptual move.
The conceptual or academic move came from Legal Realist lawyers and judges seeing the law as a tool for economic development with an “instrumental” use to create industrial growth, as opposed to a realm from which we may only discover the moral and natural rights endowed to us, as Kent, Cook, and Blackstone described the law a century earlier. The substantive move came from political leaders and judges using the law in practice to facilitate markets, often at the expense of old landed individuals and through newfound doctrinal issues like eminent domain.
And in Charles River, both moves came to fruition.
The key point for our purposes (without getting into the petty squabble between bridge companies) is that the Supreme Court held construction of a “no-toll” bridge (Charles) was constitutional, and reasoned that intense economic competition with the toll-dependent Warren Bridge was not problematic here — deferring to market interests in the face of old chartered institutions, and showing how the political economy combined with the legal innovation through instrumentalism led to change in the nineteenth century; without the expansionist regime working externally, the law would not have been motivated to facilitate such development, and the law would have been actually instrumental internally if the political will wasn’t exercising such desires.
To further elaborate this point, I want to situate Charles River within evidence from Morten Horwitz’s work, Transformation in American Law.
Horwitz identifies America as a developmental state at the turn of the century and, in one smaller example, shows that state legislatures in the early 1800’s began shifting away from thinking one held their property at the sufferance of the state and toward a view of just compensation — a principle utilized as a way to subsidize economic growth (taking “old” land to make way for the “new”).
In fact, Horwitz shows that a major part of early turn-of-the-century economic legislation involved regulating the circumstances surrounding eminent domain. However, as the statutory compensation schemes became more regular, legal trends saw appeal in arguments that claimed such schemes were merely gratuitous and not obligatory clauses of state power — an example of how lawyers and judges worked with the politics ongoing to double down on a different conception of what American law was doing: in this circumstance, developing large organizations and the state
This takes us full circle back to Charles River — tough competition was of no moment to a court bound up and working concomitantly with this type of vision of the law; the demand for new infrastructure as supported by the compensation schemes described by Horwitz shows how American legal change occurs—through a new ends-oriented view of American law brought by both external politics and internal judging working simultaneously.
West Coast Hotel v. Parrish (1937)
West Coast Hotel serves as a good last example explaining why a hybrid account of internalist and externalist analysis liekly provides the best explanation of legal change. This time, our case arises out of the New Deal Revolution amid the debate surrounding minimum wage laws.
One lens in which to view West Coast’s holding—that minimum wage laws for women do not violate freedom of contract—is through a backlash thesis (or some form of “constitutional hardball”) contra the Lochner Era. One might be tempted to see this case as a lodestar for change—one that begins with an era of fairly broad laissez -faire thought during the early twentieth century, which sputtered into the Great Depression, and was responded to with the New Deal as a vehicle for change in law, leaving omnce again legal professionals as reactionaries. This is not prima facie an unreasonable view. Importantly, West Coast was seen as a change even by contemporary opponents like Frankfurter — a change of pure politics where jurists reacted as if to a referendum (the so-called “switch-in-time that saved the nine” argument”).
But this account misses something about lawyering and judging, particularly as these tasks relate to West Coast. It does not explain how the courts — who up until that point largely served as an obstacle to federal regulation as recently as Schechter (striking down the NIRA) — by 1937 had very little restrictive effect.
Perhaps a better way to view what’s going on in West Coast is through consideration of the economic depression and Barry Cushman’s revisionist account of the Hughes court — and how they both informed this moment of change.
Language in West Coast’s majority states that “recent economic conditions” were a compelling consideration as to their (at the time) dramatic holding, and even relies on such conditions to explain why the Court walked back earlier claims that time and circumstances do not matter constitutionally. Indeed, this shows again that it is when lawyers and judges engage with social circumstances that their combined influence creates changes in American law — the Schechter precedent was altered.
As Barry Cushman shows in The Jurisprudence of the Hughes Court, West Coast was decided in conference before the release of the court-packing plan, and electoral politics in 1934 were equal to 1936–1937 insofar as FDR’s success was concerned —anyway, the court stood in the way of many New Deal proposals at that earlier time. Instead, Cushman argues (I think mostly correctly) that this decision was simply part of judging and lawyering, and those taking part in this decision as judges and advocates were in contact with legal restraints on their own policy ideas.
The only item that must be added for my argument to be rounded out it is that this actual judging also required the simultaneous consideration of new facts about social life via the Depression — as Roberts explained his change of heart.
So, A Hybrid Account of Legal Change
Each example used above is one occurring on the precipice of, or during, significant changes in American law: The Civil Rights Movement leading up to a rejection of separate but equal, the Age of Transformation corresponding with a change in the way people understood what law was used for, and a case from the New Deal era, signaling a change in how American law treats federal regulation.
In each example, we can see how internal legal shifts and realities blended with external social changes to create a fusionist causal effect — one that each led to a significant change in American law. In so doing, we have seriously tested the proposition “lawyers as essentially reactive,” and ultimately gave reason to disagree with it.
