Delgado on The Utopian Liberal: Continuity and Change in the Thought of Charles Sumner

Sebastian Delgado, Cambridge University, is publishing The Utopian Liberal: Continuity and Change in the Thought of Charles Sumner in volume 6 of the Law and History Review (July 2023). Here is the abstract.

Charles Sumner cannot be accused of having an unwarranted consideration for the virtues of consistency. The New Englander Sumner of the 1840s advocated for sectionalist interests so long as they provided a strong counter to the Southern warmongering and slave-owning desires, while the nationalist Sumner of the 1850s championed the federal government as far as it committed itself to limiting slavery’s growth and then eradicating it. The strict constructionist Sumner of 1855 advocated for a narrow construction of the Constitution in discrediting the Fugitive Slave Act, while the Sumner of the 1860s and 1870s demanded an elastic construction for carrying out Reconstruction and ensuring equal rights. Despite these swings in his interpretive philosophy and party switches, Sumner’s thought was consistent, founded on an integral idealism that remained constant despite politics’ vicissitudes. “His partisanship … served as a means to advance moral ends."

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Davis on Property, Wills, & Estates in The Count of Monte Cristo: A Comparison Between the Napoleonic Code & Mississippi Law

William Davis has published Property, Wills, & Estates in The Count of Monte Cristo: A Comparison Between the Napoleonic Code & Mississippi Law. Here is the abstract.

In the literary classic The Count of Monte Cristo, the hero inherits a treasure after escaping the prison in which he was wrongly confined. The central question this comment seeks to answer is, “Was this inheritance transfer legal?” From this starting point, two different legal regimes are analyzed. Beginning with a discussion of the Napoleonic Code in force at the time of both the novel’s setting and publication, this comment then looks to modern Mississippi property law. In the end, the two legal systems are used individually to determine whether the treasure in Monte Cristo was legally transferred and possessed.

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Sherwin on Chorological Jurisprudence and Liberal Democratic Flourishing @RKSherwin @NYLawSchool

Richard K. Sherwin, New York Law School, has published Chorological Jurisprudence and Liberal Democratic Flourishing as NYLS Legal Studies Research Paper No. 4764287. Here is the abstract.

These days, it is difficult not to be preoccupied with calamity. Profound crises surround us on many fronts: climate change and ecological catastrophe, the dark shadow of viral pandemics, and dire threats to liberal democracy and the rule of law. In dark times, paralysis and despair can pull us further into the dark. To make our way back to the light we need to marshal every cultural, cognitive, affective, and spiritual resource at our disposal. Global challenges call for global responses. But are our resources sufficient? Is our collective moral imagination up to the task of renewing state and global institutions? Do we have the intellectual as well as the moral resources to build societies where governance is for the benefit of the governed, not the governors? Legal theory, doctrine, and practice presuppose basic assumptions about human nature as well as the nature of the social and natural world around us. We can only resolve conflicts within the horizon of our perception and knowledge, which is to say, within a universe of familiar categories and tools for thinking, feeling, and communicating with others. We create everyday tools for thinking and our tools, in turn, create us. Locked into habituated patterns of thought and feeling, we often forget not only that we can know more, but also that we can know differently.

The full text is not available for download from SSRN.

Sichelman on The Mathematical Structure of the Law @tedsichelman @USanDiegoLaw

Ted M. Sichelman, University of San Diego School of Law, has published The Mathematical Structure of the Law. Here is the abstract.

Scientific “law” and human-made law (“social law”) are both “laws” in a very general sense—scientific laws “govern” the workings of the material world and social laws govern the behavior of people. Beyond this superficial resemblance, do social laws partake of the same sorts of mathematical structures as scientific laws? Many theorists have proposed formal deontic-oriented logical models of legal rights and other entitlements. Here, leveraging the formalism of Wesley Hohfeld and related work, this article proposes a novel, mathematical model of legal entitlements. This model allows for physical and mathematical properties—such as entropy, indeterminacy, temperature, and modularity—to be adapted to provide for quantitative measures of the properties of legal systems. Moreover, previous logical models exhibit an important feature: if all relevant information is known, legal actors hold determinate sets of legal entitlements. Although theorists have modeled legal entitlements under conditions of incomplete information, which can effectively lead to indeterminacy, this article proposes a model in which—even with complete information—legal entitlements can exhibit indeterminacy. Unlike classical indeterminacy, which is of a stochastic nature, this sort of “inherent” indeterminacy is akin to—and can be readily modeled by—the notion of “indeterminacy” in quantum mechanical formalism. These results have important implications for the nature of legal rules, legal artificial intelligence, game theory and the law, and the ontology of rule-based systems more generally. Of particular note, the formalism suggests a novel approach to the quantum measurement problem, which proposes that measurement is a “second-order” physical process—fundamentally different from ordinary, “first-order” physical processes.

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Ryu on How Reasons Make Law

Angelo Ryu, University of Oxford, Saint John's College, is publishing How Reasons Make Law in the Oxford Journal of Legal Studies. Here is the abstract.

According to legal anti-positivism, legal duties are just a subset of our moral duties. Not every moral duty, though, is legal. So what else is needed? This article develops a theory of how moral duties come to be law, which I call the constitutive reasons account. Among our moral reasons are legal reasons—and those reasons make moral duties into legal duties. So the law consists of moral duties which have, as one of their underlying reasons, a legal reason. Such legal reasons arise from a relationship with the body for which it is the law of. The legal reasons in America, then, are the moral reasons flowing from a relationship with the United States. These reasons include consent, democracy, association and fair play. They are law’s constitutive reasons. By looking for them, we can better explain why some moral duties form part of the law, while others do not.

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Bonadio and Khan on Remix, Reuse, and Reggae: Creativity and Copyright in Jamaican Music @CityUniLondon

Enrico Bonadio, City University, London, City Law School, and Bryan Khan, University of the West Indies, have published Remix, Reuse and Reggae: Creativity and Copyright in Jamaican Music in Enrico Bonadio - Chen Zhu (eds.), Music Borrowing and Copyright Law (Enrico Bonadio and Chen Zhu eds., Hart Publishing 2023. Here is the abstract.

What makes the story of the rise of reggae music so fascinating are the circumstances in which the genre evolved. It seems to have been birthed by a cosmic alignment of the right social and cultural factors, rather than an anticipatable evolution of existing cultural institutions. Unlike neighbouring islands, which had hosted vibrant creole musical cultures since the nineteenth century, a formal music scene was not a major component of the Jamaican cultural landscape until the mid-twentieth century. And the contributions to global culture made by the Caribbean Island of Jamaica are remarkable given the country’s size. The country has birthed many musical genres which have made a mark on popular culture, including mento, ska, rocksteady, reggae, and dancehall, and these genres have in turn influenced a wide range of musical subcultures from American hip-hop to British drum and bass, and beyond. Against this broad history, this chapter explores the factors that facilitated the creative processes of Jamaican music scene, and its remarkable rise as global cultural force. Specifically, it provides a discussion on the history of Jamaican music, with a focus on the social and creative norms of remix and reuse. In doing so, the chapter features numerous examples of Jamaican songs.

The text of the essay is not available from SSRN.

Brooks and Gamage on The Original Meaning of the Sixteenth Amendment @FordhamLawNYC @davidsgamage

John R. Brooks, Fordham University School of Law, and David Gamage, University of Missouri School of Law, are publishing The Original Meaning of the Sixteenth Amendment in the Washington University Law Review. Here is the abstract.

The Sixteenth Amendment to the United States Constitution enshrines Congress’s “power to lay and collect taxes on incomes, from whatever source derived.” Challenges to the exercise of that power have typically turned on whether the thing being taxed is “income” or not. In the most recent example, the 2023 Supreme Court case of Moore v. United States, taxpayers have argued that the Sixteenth Amendment only authorizes taxation of realized income—this is, that gain from appreciated property can only be taxed as “income” when there has been a sale or conversion of that property. In this Article we argue—based on the original meaning of the Sixteenth Amendment—that this approach to constitutional tax questions is wrong. The focus of the Sixteenth Amendment and of the Congressional income tax power is not “income” per se, but rather “taxes on incomes, from whatever source derived.” Thus, the question should not be whether the thing being taxed satisfies some isolated definition of “income,” but rather whether that tax in question comports with the original meaning of “taxes on incomes.” This is because, as we show here, the explicit and well-understood original meaning of the Sixteenth Amendment was to overrule the Supreme Court case of Pollock v. Farmers’ Loan & Trust Co. and restore the “complete and plenary power of income taxation” as it was understood at the time. The Amendment did not create Congress’s power to tax income, a power which it had been exercising since the Civil War; rather, it merely removed the impediment Pollock had introduced. This original meaning of the Amendment was communicated clearly at that time both in Congress and in the press. Thus, to understand the power the Sixteenth Amendment authorized, we should look at the practice and experience of income taxation at that time. Our examination shows that federal (and state) income taxes explicitly included many items of “unrealized” income, such as shareholders’ shares of undistributed corporate earnings (the issue in Moore). We also show—for the first time in the modern literature—that the federal corporate income tax law at the time of the Sixteenth Amendment’s ratification incorporated elements of “mark-to-market” taxation—treating unrealized gain from the appreciation of assets as gross income for tax purposes. This historical review thus reveals that Congress’s power to tax income is broad and should not be limited by appeals to constrained definitions of “income” isolated from the historical context.

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Ristuccia on "Dangerous to the Liberties of a Free People": Secret Societies and the Right to Assemble

Nathan Ristuccia, Institute for Free Speech, is publishing 'Dangerous to the Liberties of a Free People': Secret Societies and the Right to Assemble in volume 4 of the Journal of Free Speech Law. Here is the abstract.

Americans in the eighteenth and nineteenth centuries often feared that secret assembly threatened republican government. Oath-bound secret societies were allegedly elitist cabals that would establish an imperium in imperio oppressive to ordinary citizens. Yet despite this hostility, many early Americans also insisted that freedom of assembly included the right to gather anonymously. According to this view, laws could not prohibit or excessively burden secrecy. This article, therefore, examines the discourse around secret societies both at America’s founding and at the time the Fourteenth Amendment was ratified. It demonstrates that—although there were voices on both sides of the debate—the weight of the evidence indicates that the First Amendment’s Assembly Clause originally protected the right to assemble in secret.

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Keay, Inwood, and Long on Institutional Change and Criminal Sentencing on the Frontier: Evidence from British Columbia's Jails, 1864-1913 @kris_inwood

Ian Keay, Queen's University, Department of Economics, Kris Inwood, University of Guelph, Department of Economics, and Blair Long, Cape Breton University have published Institutional Change and Criminal Sentencing on the Frontier: Evidence from British Columbia's Jails, 1864-1913. Here is the abstract.

In this paper we document the effect of transformative institutional change on criminal sentencing in a frontier environment. New historical evidence digitized from British Columbia’s (BC) prison admission ledgers allows us to track changes in sentencing distributions from 1864 to 1913. We find that as BC's criminal justice system moved from informal and locally independent colonial institutions, toward a set of institutions that closely resemble the system in place today, average sentences got longer and sentence dispersion fell. We isolate the increase in sentence length and decrease in sentence dispersion that can be attributed to changes in judicial decision-making by controlling for changes in the observable characteristics of the province's prison population. We also show that changes in the sentencing distribution were coincident with a reduction in judicial discretion, an increase in sentence predictability, and an expansion in the criminal justice system along the extensive margin.

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Syed on Legal Realism and CLS from an LPE Perspective @BerkeleyLaw

Talha Syed, University of California, Berkeley, Law, has published Legal Realism and CLS from an LPE Perspective. Here is the abstract.

What is the role of law in political economy? And what is the role of political economy in law? And in both cases, when we speak of “law” and “political economy,” are we speaking of academic disciplines or social realities? This tangle of questions constitutes, I take it, the orienting research agenda of the emerging “law and political economy” movement in legal academia. Questions concerning not so much the interaction as the interrelation of law and political economy, with each of these understood simultaneously as fields of study and areas of social life. And within that agenda the legacy of two prior efforts at grappling with these questions—Legal Realism and Critical Legal Studies (CLS)—looms large. This Article seeks to take stock of that legacy, and to advance a critique of central aspects of the received traditions of Realism and CLS, for the sake of developing new foundations for the analysis of both law and political economy. The best way to understand Legal Realism and CLS, this Article contends, is along two dimensions: (1) the first concerns the critique of legal reasoning; (2) the second the role of law in society. After setting out the central Realist and CLS claims on both these fronts, I offer critiques on each, ones that seek to push further in the same direction as the Realist/Crit views but in ways that ultimately repudiate the premises underlying these views. The main lines of Realism and CLS are, I contend, hostage to formalist premises in legal theory and liberal ones in social theory. This owes to the posture of internal critique that both adopted as their dominant strategy. Yet a central claim of the present Article is that the method of critique is always already a method of construction, both in the critique of law and the critique of political economy. To think the two may be separated is perhaps the fundamental flaw in the dominant strands of Legal Realism and CLS. And so in that vein, the Article offers a set of contrasting ideas for the development of legal, political, and social theory.

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Feigenson on Saying It With Pictures: Image and Text in Andy Warhol Foundation for the Visual Arts v. Goldsmith

Neal Feigenson, Ouinnipiac University School of Law, has published Say It With Pictures: Image and Text in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith. Here is the abstract.

The majority and dissenting opinions in the Supreme Court’s recent case on fair use, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, feature an unprecedented number of pictures: seventeen separate illustrations, almost all color photographs, and all but one embedded in the opinions instead of being relegated to an appendix. Images have appeared in SCOTUS opinions before, but never like this. This paper explores the functions and deeper significance of this outburst of visuality. In the two opinions, Justice Sotomayor’s for the majority and Justice Kagan’s dissent, the selections and sequences of the images tell very different stories of the dispute. The Justices also use their pictures to present their divergent theories of the case. No SCOTUS opinions have come close to using pictures this purposefully before, so it’s worth examining how the Justices did it here. Those pictures, of course, are surrounded by words. The pervasive picturing invites us, as no previous SCOTUS cases have, to think about the relationships between images and text in judicial opinions. Justices Sotomayor and Kagan verbally frame our viewing in contrasting ways. Not surprisingly, the words they use to refer to and describe the pictures they show underscore their opposing narratives and arguments. More than that, their words conceive of looking at pictures differently. Justice Sotomayor implies that we should regard her pictures simply as visual support for and authentication of her verbal claims. Justice Kagan, in contrast, exhorts us to really look at the pictures, a more active engagement that may make us more responsive to what pictures, perhaps especially pictures like Warhol’s, can do. Relatedly, their opinions reflect different ideas about pictorial meaning in general. For Justice Sotomayor, pictures just are (or, in this case, who what) they depict. This is characteristic of a naïve realist stance toward pictures. For Justice Kagan, pictorial meaning is a more complicated matter, emerging not only from what can be seen in the picture but also from the picture’s contexts, including expert commentary and other pictures. This matters for two reasons. First, while the Justices’ contrasting stances on pictorial meaning may follow from their opposing interpretations of the first fair use factor, the converse may also be true: They may approach fair use as they do in part because they have different ideas about pictorial meaning. Second, and more broadly, as pictures of all kinds play an ever greater role in legal proof and legal argument, getting decisions right depends on getting pictures right. What judges think pictures mean, and when it should even be part of their job to figure out what they mean, become increasingly important. Andy Warhol Foundation tells us something about this.

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Bernick on Horrifying Jurisprudence @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, has published Horrifying Jurisprudence as a Northern Illinois University College of Law Legal Studies Research Paper. Here is the abstract.

This Essay uses the horror video game Alan Wake 2 as a jumping-off point to discuss and critique horrifying jurisprudence—accounts of law that evoke the emotion of horror. By centering on a horror writer whose storytelling shapes the real world, Alan Wake 2 invites analogies to legal interpretation. Legal interpretation often involves storytelling and produces real-life horrors. No legal philosopher captures the narrative and horrific elements of lawmaking as vividly as Robert Cover. Challenging Ronald Dworkin’s optimistic account of judges as chain-novelists who can creatively bend the arc of the law towards justice, Cover contends that judges are generally uncreative members of violence-dispensing organizations. They spend most of their time killing—physically and metaphysically, destroying bodies and entire worlds. More horrific still is the vision articulated by the most memorable character in Cormac McCarthy’s Blood Meridian, Judge Holden. The Judge embraces as inevitable the killing that Cover laments and denies a hope that Cover left open—that of messianic legal transformation from without the system. Although Alan Wake 2 isn’t about jurisprudence, it depicts transformative acts of democratic storytelling for which there are analogues in ongoing resistance to unjust legal systems. As horrific as legal systems can be, things are not so bad as Cover and McCarthy suggest. We can transform what might appear to be inescapable loops of domination into empowering spirals. We don’t have to create horrors.

Download the Essay from SSRN at the link.

Engstrom and Stone on Auto Clubs and the Lost Origins of the Access-to-Justice Crisis @StanfordLaw @YaleLJournal

Nora Freeman Engstrom and James Stone, both of Stanford Law School, are publishing Auto Clubs and the Lost Origins of the Access-to-Justice Crisis in the Yale Law Journal. Here is the abstract.

In the early 1900s, the country’s 1,100 automobile clubs did far more than provide the roadside assistance, maps, and towing services familiar to AAA members of today. Auto clubs also provided, free to their members, a wide range of legal services. Teams of auto club lawyers defended members charged with driving-related misdemeanors and even felonies. They filed suits that, mirroring contemporary impact litigation, were expressly designed to effect policy change. And they brought and defended tens of thousands of civil claims for vehicle-related harm. In the throes of the Great Depression, however, local bar associations abruptly turned on the clubs and filed scores of suits, accusing them of violating nascent legal ethics rules concerning the unauthorized practice of law (UPL). In state after state, the bar prevailed—and, within a few short years, auto clubs’ legal departments were kaput. Drawing on thousands of pages of archival material, this Article recovers the lost history of America’s automobile clubs, as well as their fateful collision with the bar. It then surveys the wreckage and shows that the collision’s impact continues to reverberate throughout the legal profession and law itself. For one, we show how the bar’s litigation campaign against auto clubs—as well as the era’s many other group legal service providers, including banks, unions, and homeowners’ associations—helped establish the so-called “inherent powers doctrine,” which cemented courts (not legislators) as the ultimate arbiters of legal practice regulation. The result was a profound power shift, with the authority to regulate legal services consequentially placed in politically insulated courts, not politically accountable legislators. More practically, the bar’s concerted campaign decimated a once-thriving system for the provision of group legal services to ordinary Americans, which, we argue, ultimately consigned millions of individuals with legal problems to face them alone, or not at all. Finally, in the rise and fall of America’s auto clubs, we find new, untapped evidence that contributes to a range of critical contemporary debates. In particular, our story uncovers fresh evidence to support the value of corporate practice, currently—but controversially—banned by Model Rule 5.4. In the bar’s relentless campaign to shutter auto clubs, not because they harmed members but, rather, because they threatened lawyers’ livelihoods, we unearth direct proof that today’s UPL bans, which continue to stymie the delivery of affordable legal services, have fundamentally rotten roots. And ultimately, we show that the present-day access-to-justice crisis—a crisis that dooms the vast majority of Americans to navigate complex legal processes without any expert assistance—isn’t a product of inattention or inertia. The crisis was, rather, constructed by the legal profession of which we are a part.

Download the article from SSRN at the link.

Literature and Laws: Online Symposium, April 13, 2024: Bournemouth University

News of an interesting online symposium:

From Julia Round, Associate Professor of English and Comics Studies, Head of the Narrative, Culture and Community Research Centre, Bournemouth University

'Literatures and Laws' Online Symposium on April 13th, 10 am to 5.15 pm. 

 

The registration link is here:

https://www.eventbrite.co.uk/e/literatures-and-laws-online-symposium-tickets-873226523037?aff=oddtdtcreator

 

The Zoom link for the event should be in the confirmation email.

 

and the programme is available here:

https://www.bournemouth.ac.uk/research/centres-institutes/narrative-culture-community-research-centre —we will keep attendees posted regarding any changes.​

Spaak on Legal Argumentation and the Nature of Law

Torben Spaak, Stockholm University, Faculty of Law, has published Legal Argumentation and the Nature of Law as Stockholm University Research Paper No. 133. Here is the abstract.

The primary task of judges is to decide cases and give reasons for their decisions, whereas the primary task of doctrinal legal scholars is to provide a thought-out picture of the law of the land, or some part thereof; and in order to perform these tasks judges interpret and apply the law, whereas legal scholars interpret the law without applying it (except in their imagination). However, thinking or theorizing about the nature of law, something legal philosophers tend to find quite interesting, is not something most judges or legal scholars engage in, or even consider interesting. The main reason this is so, I suspect, is that they think that such theorizing has no interesting implications for legal argumentation. But are they right? Could it not be that theories of law have interesting implications for legal argumentation? To answer such a general question would be easier said than done, however. In this chapter, I therefore wish to focus on a more limited question, one that is easier to handle, namely, the question of whether any of four carefully selected contemporary theories of law, namely, Michael Moore's, Joseph Raz's, Robert Alexy's, and Alf Ross's theories, have interesting implications for legal argumentation. While such a limited investigation cannot yield general results, it can tell us whether some theories of law have interesting implications for legal argumentation; and the result, whatever it may be, may suggest, though it will not prove, that the same may be true of other theories of law. Accordingly, having discussed these four theories, I argue (1) that Moore’s and Alexy’s theories of law have interesting implications for the interpretation and application of the law; (2) that Raz’s thesis has interesting implications both for the interpretation and application of the law and for legal argumentation more broadly conceived, namely, for the legitimacy of judicial decision-making; (3) that Ross’s theory, interesting though it is, lacks interesting implications for legal argumentation more broadly conceived and thus for the interpretation and application of the law, too; and (4) that claims (1)-(3) suggest, though they do not prove, that other theories of law, too, may have interesting implications for legal argumentation.

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ICYMI: Greenfield on Original Penumbras: Constitutional Interpretation in the First Year of Congress @Kentgreenfield1 @BCLAW @ConnLRev

ICYMI: Kent Greenfield, Boston College Law School, has published Original Penumbras: Constitutional Interpretation in the First Year of Congress at 26 Connecticut Law Reivew 79 (1993).

The records of the floor debates in the House of Representatives during 1789, the first year of Congress, are among the most revered historical sources for constitutional scholars. In 1789, the House was filled with men who had been instrumental in both the fight to gain independence from Britain and in the founding of the nation. Eight members of the House, including James Madison, had been delegates to the Constitutional Convention in Philadelphia two years earlier. The First Congress was charged with putting the new Constitution into effect. Its decisions on issues ranging from the creation of the executive departments to the establishment of the judiciary amounted to, in effect, the first institutionalized constitutional decision making of the new nation. The Supreme Court has used the records of the First Congress as the basis for numerous decisions on specific constitutional questions. Constitutional scholars have also looked to the First Congress for insight into substantive constitutional issues. Unfortunately, neither the Court nor scholars have looked to the records of the First Congress to guide or to inform the contentious debate over broad questions of constitutional interpretation. Taking advantage of the recent publication of a comprehensive record of the First Congress, this Article provides a review of the major debates that turned on constitutional issues and the interpretive methodologies Members used in reaching their conclusions. In addition, this Article sets out two important insights: (1) Members of the First Congress used an extraordinarily broad range of interpretive methodology to construe the Constitution, and (2) Members did not generally consider the intent of the Philadelphia Framers to be determinative. These insights have implications for how judges and scholars interpret the Constitution today. Part II of this Article describes in detail the six major debates in the House of Representatives in 1789 that turned on questions of constitutional interpretation. Part III demonstrates more fully the implications of these findings and suggests that the records of the First Congress should be used as a guide by judges and scholars as they grapple with modem constitutional interpretation.

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Syed on Morty's Two Testaments @BerkeleyLaw

Talha Syed, University of California, Berkeley, Law, has published Morty's Two Testaments. Here is the abstract.

Almost a half century after it was first launched, Morton Horwitz’s diptych on The Transformation of American Law remains a colossus on the landscape of American legal historiography. The reason lies not with any universal assent the books commanded, either then or now. Indeed, upon its publication, Book 1 was the target of more vociferous attacks than any work of American legal history since Charles Beard and today is often taken to have been decisively “refuted.” Book 2, meanwhile, although more respectfully received, has also had less of an impact, so muffled as to be muted. No, the reason for the Mt. Rushmore status of the two volumes lies in the virtuoso manner in which Horwitz combined in a single person two talents rarely brought together: the historian’s eye for deep context and the telling detail, and the theorist’s eye for large, even sweeping, themes. Yet three puzzles persist about the two volumes: First, has Book 1 really been refuted? Two, why has Book 2’s impact been so much more muted? Finally, can the two testaments be reconciled or must one choose between the Old and the New? The stakes of these questions are not limited to the reception and interpretation of Transformations. Rather, they go to some of the largest substantive and methodological issues in American legal history today: (1) the relation of legal doctrine to socioeconomic developments; (2) the relation of legal theory to social ideology; and (3) the relation of each to the other. The present Essay offers a revisionary account of Transformations that seeks to answer the three interpretive puzzles in a way shedding new light on the three substantive issues. It argues, first, that in contrast to commonly received wisdom, Book 1 was in fact less an exercise in Marxian than Beardian analysis, albeit one strongly inflected by Polanyi. So reconceived, its fundamental substantive and methodological lessons—regarding the relation of legal doctrine to socioeconomic transformations—still stand up quite well today, despite the dual onslaught of internalist legal scholars and externalists from law-and-economics. Second, and again in contrast to prevailing wisdom, Book 2 is in fact more, not less, Marxian than its predecessor, although here too with a Polanyian inflection. And so reconceived, its central substantive and methodological lessons—regarding the relation of legal thought to social ideology—now subject to the dual onslaught of critical legal scholars and those from law-and-society, also hold up well. Finally, not only can the central lessons of each book be integrated with the other, but such a synthesis is precisely what is needed to rejuvenate a critical legal historiography that, in the mode of law and political economy, seeks simultaneously to investigate law’s institutional with its ideological dimensions.

The article is not available for download from SSRN.