G. Edward White’s Final ‘Law in American History’ Volume Focuses on Modernist Era
To truly understand law today, look at how it rapidly changed in the 20th century, University of Virginia law professor G. Edward White says in his new book, the third and final installment in his “Law in American History” series.
Published this week by Oxford University Press, “Law in American History, Volume III: 1930 to 2000” covers how law and legal education evolved in the modernist age.
The 20th century saw more Americans gaining suffrage rights, the increase of industrialization and capitalist economies, shifts in both higher education and legal education, all-out war, a growing federal bureaucracy and changing attitudes about causal agency. All of these changes affected legal thinking to various degrees.
“Humans are thought of as controlling their destinies in a fashion they were not previously thought of doing,” White said.
Modernist views reject the idea that the law is a collection of timeless, set principles, he said. Instead, the law is viewed as changing over time, and changeable by legal interpreters. A related shift toward “legal realism” changed how judges were viewed, he added, from impartial legal scientists to impressionable lawmakers.
“Legal realism suggested that the law is what people in power mean it to be,” White said.
World War II changed that, he argued. Law school faculty and students who served in the military sought to draw distinctions between free democracies like the Allies and totalitarian regimes like the Axis powers and Soviet Union. Realism’s emphasis on the capacity of human actors to “make” law in accordance with their own ideologies seemed uncomfortably close to a justification for totalitarian regimes.
What emerged in response was “process theory” — the idea that legal institutions worked together toward common values while keeping each other in check.
“To really understand the legal process, you have to get into the weeds to determine exactly what these institutions are doing, what they do well and what they don’t do well,” White said. “All of that together creates a kind of morality of the process. If the process works well, if it truly checks institutions, then it protects the rights of individuals and it harmonizes with democracy.”
Another 20th-century development was that legislation increasingly supplanted common law doctrines — what White calls “statutorification.” The process resulted in uniform model laws for commercial transactions, criminal enforcement and civil procedure.
“It’s a phenomenon that stretches from the first workers’ compensation statutes right down through the adoption of the Uniform Commercial Code in the 1960s,” he said. “Statutorification of common law subjects extended over the course of the 20th century and has had a major impact.”
The U.S. Supreme Court changed, too, said White, noting how over a century the justices swayed from judicial guardianship of constitutional rights against legislative interference with them, to deference to other branches of government, to a review stance, which he calls “bifurcated review,” which alternated deferential and aggressive review of other-branch decisions, depending on the subject matter they affected.
The book’s final chapter examines how contrasting political and judicial questions came to a head in Bush v. Gore, which halted the 2000 presidential ballot recount in Florida.
Several commentators have argued that the Supreme Court should have deferred to decisions by the Florida Supreme Court and legislature under the “political question” doctrine, which cautions courts from deciding cases where state courts or legislatures have decided issues that seem peculiarly suited for the political process. White reviews the 20th-century history of the political question doctrine to suggest that the Rehnquist Court’s intervention in Bush v. Gore was neither unprecedented nor inappropriate.
White, a David and Mary Harrison Distinguished Professor of Law, has published 17 previous books and has won numerous accolades, including final listing for the Pulitzer Prize in history, the Silver Gavel Award from the American Bar Association, the James Willard Hurst Prize from the Law & Society Association, the Littleton-Griswold Prize from the American Historical Association, the Scribes Award and the Association of American Law Schools’ Triennial Coif Award.
His first two volumes in the “Law in American History” series, covering from the colonial era to the Civil War and from Reconstruction through the 1920s, were published in 2012 and 2016, respectively.