Law as a Character of Society: Legal Change in Twentieth-Century America

Lawrence M. Friedman. American Law in the Twentieth Century. New Haven: Yale University Press, 2002. xii + 722 pp. Notes and index.$35.00.

In 1976, Ralph Ellison, author of Invisible Man, wrote an essay, "The Perspective of Literature," for a bicentennial volume on American law. His theme was what American literature has to contribute to our understanding of law. Why, Ellison asked, were there so few lawyers and judges as characters in American literature? Wasn't that lack particularly surprising given the importance of law to American society—given that the United States' foundational documents, the Declaration of Independence and the Constitution, were about law? Ellison concluded: "law ensures the conditions, the stage upon which we act; the rest is up to us." ¹ It was a wonderful statement—particularly revealing for the author of a novel that emphasized the struggle of the individual to be seen as a person, rather than as a member of a despised group. But is law's role that limited? Does law set only the stage? Friedman's magisterial work allows us to evaluate Ellison's statement and to assess what it means to write the history of law.

How does one write—or even conceptualize—a history of American law in the last century? The problems seem so large as to be almost overwhelming. What is "law"—one wonders even what that word means—and how does it relate to American culture? Those questions underlie Lawrence Friedman's masterpiece. His encyclopedic work retells the major changes in American law in the twentieth century—ranging from civil rights, business law, government regulation of business, and criminal law to legal thought. At the same time he links those changes to shifting societal attitudes, wrought by such events as the world wars, the Great Depression, and the civil rights movement. So this becomes not just a history of American law—it becomes a history of America, measured by legal changes.

Friedman has several meta-themes that provide the framework for explorations of American history: growth of the administrative state at the state and local level; centralization of law-making and enforcement from the states to the federal government; growth in amount of law, number of lawyers and lawsuits; the increasing importance of the public in decisions about law, which results in part from the growth in communications. The rise in public influence on the law results in the rise of pluralism. The largest theme is the triumph of the self. In addition to those meta-themes, Friedman emphasizes on-going changes in American culture that drive legal change. There is the technological revolution—mostly in transportation and communications—that results in increased interaction (and therefore increased democracy), as well as increased need for regulation. So there are structuring themes (the changes in legal framework), as well as structuring events (like the automobile).

This discussion leads to the question of what we think legal history ought to do. What lessons (or are we now calling them stories) do we want to hear from legal history? We can conceptualize legal history in many ways: as lessons about the influence of law by society and vice versa (the ways that law reflects social values); the ways that the fit between law and society is imperfect or the ways that gap between society and law is mediated by the legal profession; or as a history of Supreme Court cases, the legal profession, or doctrine, such as business, criminal, property, and civil rights law. Friedman's book invites speculation about the purposes of legal history and how one achieves those purposes.

So what is the theory of legal history motivating this massive work, a successor to his wildly successful History of American Law (2^nd ed., 1985)? Much of Friedman's scholarship over the last forty years has been devoted to showing the connections between "law"—statutes, common law...