In 1977, Morton Horwitz published his astonishing first book, The Transformation of American Law, 1780-1860. Looking back, two things could be said of the reception of the Transformation: the book was subjected to extremely searching and ultimately quite successful criticism, while at the same time it dominated the field of American legal history for more than a decade, as no book had before, or has since. Like almost all other historians of American law trained in the years following 1977, my education in the craft of legal history was decisively affected by the Transformation. My first published work was a callow attempt at criticism of some of its factual and interpretive conclusions; its categories and conceptions guided my own research in colonial legal history for ten years, even as I rejected an increasing number of its premises. In this I was not alone. The extraordinary distinction of Horwitz' work rested on its capacity to organize the debate, shaping the issues and questions to which all historians of antebellum American law responded in their own work, however oppositionally.
Now, after a decade and a half, we have before us Horwitz' second book, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy. By its nature, this is an occasion of the greatest significance, and on such occasions the reviewer bargains with the devil. In exchange for an opportunity to speak an early word comes the likelihood of being ludicrously wrong in judgment of the event. But the risk must be run, and the lesser virtue of candor may be some defense even when posterity will show one to have read shallowly, or to have missed what turned out to be the point. I believe that The Crisis of Legal Orthodoxy (for in this case it is the subtitle that conveys the sense of the work) is in every respect a stronger book than the first Transformation-better argued, more spaciously conceived, wiser. Paradoxically, perhaps, I also think it will be less influential in setting the terms of the debate in which it is engaged. The following essay is directed at establishing the basis for those two conclusions.
Law | Legal History
The Transformation of Morton Horwitz,
Colum. L. Rev.
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