How the Law Reflects the World We Create

It took guts plain and simple for Lawrence M. Friedman to write “American Law in the 20th Century.” This is a topic of monumental scope, encompassing revolutionary changes in every aspect of law, from the rules regulating marriage to the basic structure of the U.S. government. Fortunately for those who seek an enlightening guide to this country’s modern legal history, Friedman, a professor at Stanford Law School, has erudition and style as well as guts. His achievement is stunning and definitive.

Friedman combines three talents, all essential to his enterprise of describing the transformation of American law from a relatively modest system for dispute resolution in the 19th century into the judicial leviathan we live with today. He has an astonishing breadth of knowledge, a gift for choosing historical exemplars and, most important, a keen sense of the relationship between changes in our legal culture and changes in society as a whole.

The landscape of American law covers a complex and varied topography. Any serious history of the subject must analyze federal and state law, statutes and court-made law, civil and criminal law, legal procedure and the laws themselves, law practice and its teaching and the effect of our laws both at home and abroad.

Given this challenge, Friedman could have been forgiven some inconsistency. Yet whether the issue is the derivation of the term “ambulance chaser” (plaintiff’s lawyers had to be quick to the scene of accidents to prevent insurance adjusters from convincing victims to sign claims releases) or the inner workings of the U.S. Supreme Court (where each justice acts not collegially but as a “separate sovereignty”), Friedman seems equally at home.

Each of Friedman’s chapters is jampacked with information and perspective. Say you’re interested in the travails of US Airways or WorldCom and want to know about bankruptcy law. True, you won’t come away from Friedman’s five pages on the subject knowing how to file a bankruptcy petition. But you will get an overview of the system, including a history of Congress’ loosening and tightening of the requirements for bankruptcy and a thumbnail on how modern corporations have filed for bankruptcy protection to get out of labor contracts (Continental Airlines) or avoid massive tort liability (Manville Corp., a main producer of asbestos). Most interesting, Friedman has explained the vital role of bankruptcy law in fostering a society of entrepreneurs by providing a legal safety net--in essence a second chance--for the risk-takers who fuel the engine of social innovation.

Other keys to Friedman’s success are his abilities to identify the seminal case, the vital personae, the meaningful statistic, the watershed moment and to accompany these choices with a lively and insightful narrative description. Naturally, some selections are pre-ordained. Every analysis of law in wartime is going to discuss the Japanese internment cases, just as a section on product safety must feature Ralph Nader and his crusades.

Friedman’s book, however, includes obscure surprises. Gabrielle Darley is hardly a household name, but this prostitute-turned-society wife pioneered the tort of invasion of privacy--a favorite legal claim of celebrities--after her colorful life became the subject of the 1925 movie, “The Red Kimono.”

And outside of the legal academy, not many people know Karl Llewellyn, whom Friedman describes with a characteristic mix of fact and judgment as “a man of extraordinary breadth and intelligence, an amateur poet (and not half bad), a much-married man, a heavy drinker (perhaps an alcoholic), and a distinguished professor of law, mostly at Columbia, then in his later years at the University of Chicago.” In the 1940s, Llewellyn drafted the Uniform Commercial Code--a set of rules that still governs the sale and delivery of goods between merchants--and was a pioneer of the still-influential legal realist movement, a loose collection of skeptics who exposed the political roots of judicial decision-making.

Admirably, Friedman never forgets that these characters and stories that color our legal history--the giants like Oliver Wendell Holmes, who dominated legal thinking for a generation, or a tragedy like the Birmingham church bombing, which shamed a nation--are part of a larger social context. Indeed, Friedman’s greatest accomplishment may well be that, despite his obvious passion for the law, he repeatedly instructs (and illustrates) that the power of law to change society is dwarfed by the power of society to change the law.

In this vein, Friedman ties many of the great transformations in law during the last century to forces external to the law. For example, one of the most dramatic changes of that period was the exponential increase in the legal power wielded by the federal government. The Supreme Court paved the way for this federalization of the law when, in belated response to the Great Depression, it changed its view of the Constitution to permit the federal government to oversee a wide range of economic matters--such as wages and hours--that previously had been considered an exclusively state or local concern. Thus, the modern administrative state, with is vast web of agencies and regulations, was born.

As Friedman emphasizes, however, the transformation of law that allowed for the emergence of a centralized and government-regulated economy was the product (and not the cause) of changing social conditions. A host of centripetal forces was unifying and shrinking the vast expanse of America in the early 20th century. Railroads, steamships and trucks in the hands of ever-larger corporations were nationalizing the economy. Radio, especially as used by an orator like Franklin Roosevelt, was drawing the country together, establishing an ever more powerful role for national leadership.

In short, the federal government was bound to grow, driven by technology and population growth. As a matter of legal history, the salient question was simply when the courts, conservative by nature, would yield to this inevitability.

Friedman makes much the same point in his treatment of civil rights and race relations. In the early part of the century, the U.S. Supreme Court handed down several progressive civil rights decisions. In 1915, for example, it struck down the use of grandfather clauses, a devious method of depriving blacks of their voting rights by unfairly subjecting them to literacy and property requirements. Other decisions of similar vintage recognized the rights of blacks to serve on juries and partially protected blacks against the abusive system of debt peonage, under which blacks were forced by white land-owners to work their fields to pay off financial debts.

Yet as Friedman astutely observes, these decisions, for all their theoretical beneficence, were worthless as practical matters. They changed nothing on the ground because, as Friedman writes, “there was no follow-through; no will to follow through.” In the absence of any larger social momentum for reform, the Supreme Court’s decisions were limited to the facts of individual cases and the sys- tem remained essentially untouched.

This is not to say that judicial decisions are unimportant. Brown v. Board of Education, in which the Supreme Court ordered the desegregation of public schools, provided both a legal and a moral catalyst for racial progress. But even before Brown in 1954, in the optimistic glow of the post-World War II era, the idea of racial equality under law was begin- ning to gain currency outside the South.

Moreover, the eventual (if still incomplete) success of Brown depended not only on the court’s continued demand for racial equality but also on such outside factors as the advent of television, which beamed the depravity of Jim Crow life into the homes of millions of Americans, nurturing a belated national commitment to racial justice.

For Friedman, then, the central lesson of a century of meteoric legal change is that the law does not so much shape us as reflect us--and the world we create. And, accordingly, if we want to anticipate how the law will look in the years ahead, the best crystal ball is not the court system but the technological and demographic forces that ultimately shape our collective self.