All Those Cases

William E. Nelson. The Legalist Reformation: Law, Politics, and Ideology in New York, 1920-1980. Chapel Hill: University of North Carolina Press, 2001. 457 pp. Notes and index. $49.95

Sometime in the 1980s, William Nelson arranged to obtain a complete set of the New York Supplement, both first and second series, and had it delivered to his home office. The arrival of so many thick (and no doubt dusty) volumes of cases prompted the author's father to express "his concerns that the house would collapse under the weight" (p. 446). Reading "widely" in the 620 volumes was a considerable task, but that was only part of Nelson's research (p. 2). In addition, with the help of "a small army of research assistants," he acquired "nearly fifty thousand cases" from state and federal trial courts in the state, which he subjected to statistical analysis (p. 443). Added to that were "mountains of" other "legal source material," including federal appellate cases from the Second Circuit Court of Appeals and the New York District Courts, as well as hundreds of books and articles (p. 443). Despite the mountains of other materials, Nelson, who has "the common lawyer's faith that analysis of judicial opinions is key to understanding law," has relied most heavily on the cases as his primary sources (p. 2). This reliance on analysis of judges' opinions in cases is both the strength and weakness of Nelson's work.

Nelson's labor in the fields of New York judicial opinions has born much fruit. Much of this volume has been previously presented in fourteen different articles published in law reviews and in a chapter in a festschrift (p. 444). His work has been directed at filling "an enormous gap" in the "literature of American Legal history": twentieth-century state constitutional and private law developments, ranging across topics as diverse as contract litigation, civil procedure, sexual morality, suburbanization, and constitutional equality (p. 1). In this work Nelson attempts to tie together these (and many other topics) in a grand synthesis. Thus, his book explores "how private and public law, politics, and ideology changed" in the state during the sixty years that were the heart of the twentieth century (p. 3).

Nelson has chosen to explore twentieth-century state constitutional and common law developments through the example of the nation's most important state. As he argues, "For most of the century, New York was the most populous state and the economic and cultural leader of the nation" (p. 1). The major political parties recognized the state's importance and routinely chose men associated with New York to run for the presidency. The preeminence of New Yorkers in the presidential election cycle was strongest from 1924 to 1948, when every election had at least one man associated with New York as a standard bearer of a major party. That period coincides with the very time of the emerging changes in law that Nelson calls the legalist reformation. ¹

By legalist reformation Nelson means an ideology that began in New York in the 1920s, which transformed law to meet the needs of its changing society. The ideology was born of struggle. Nelson portrays New York in the early decades of the century as "the scene of virulent struggle between a mainly upstate, White Anglo-Saxon Protestant (WASP) upper and middle class and an impoverished New York City-centered, mainly Jewish and Roman Catholic, immigrant underclass" (p. 3). Through a commitment to localism grounded in "small homogeneous, participatory communities," upstate New York "constructed a conservative coalition to govern themselves and the state as a whole from the mid-nineteenth well into the twentieth century" (p. 3). Central to governing were ideas of ethnic and religious hierarchy that privileged WASPs. But immigration, urban growth, and demographic change worked against this system, as the center of political and economic power shifted to ethnically, racially, and religiously heterogeneous New York City. As the previously excluded gained power in the judiciary, they...