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Vol 23 No 3 March/April 2018

Book of the Month

Cover of Scamell and Gasztowicz on Land Covenants

Scamell and Gasztowicz on Land Covenants

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The Opening of American Law: Neoclassical Legal Thought, 1870-1970

ISBN13: 9780199331307
Published: November 2014
Publisher: Oxford University Press USA
Country of Publication: USA
Format: Hardback
Price: £40.49

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Two Victorian Era intellectual movements changed the course of American legal thought: Darwinian natural selection and marginalist economics. The two movements rested on fundamentally inconsistent premises. Darwinism emphasized instinct, random selection, and determinism.

Marginalism emphasized rational choice. Legal theory managed to accommodate both, although to different degrees in different disciplines. The two movements also developed mutually exclusive scientific methodologies. Darwinism emphasizing external indicators of welfare such as productivity, education or health, while marginalists emphasized market choice. Historians have generally exaggerated the role of Darwinism in American legal thought, while understating the role of marginalist economics.

This book explores these issues in several legal disciplines. One is Progressive Era movements for redistributive policies about taxation and public goods. Darwinian science also dominated the law of race relations, while criminal law reflected an inconsistent mixture of Darwinian and marginalist incentive-based theories.

The common law, including family law, contract, property, and tort, moved from emphasis on correction of past harms to management of ongoing risk and relationship. A chapter on Legal Realism emphasizes the Realists' indebtedness to institutional economics, a movement that powerfully influenced American legal theory long after it fell out of favor with economists. Five chapters on the corporation, innovation and competition policy show how marginalist economics transformed business policy. The ironic exception was patent law, which developed in relative insulation from economic concerns about innovation policy.

The book concludes with three chapters on public law, emphasizing the role of institutionalist economics in policy making during and after the New Deal. A lengthy epilogue then explores the variety of postwar attempts to reconstruct a defensible and more market-oriented rule of law after the decline of Legal Realism and the New Deal.

Legal History, Other Jurisdictions , USA

Part I Human Nature and the Sources of Law
1. Scarcity, Biology and the Rational Actor
2. Natural Selection, Deterrence and Mental Defect
3. The Science and Law of Race

Part II. Neoclassical Legal Thought
4. Economics and Law in the Progressive Era
5. Social Value, Taxation and Public Finance
6. From Institutionalism to Legal Realism
7. Recasting the Common Law: the Management of Risk and Relationship

Part III. The Neoclassical Firm and the Formation of Modern Business Policy
8. The Revolution in Corporate Finance
9. The Separation of Ownership and Control
10. The Twisted Path to Innovation Policy
11. Structuralism in Competition Policy
12. Distribution and Vertical Control

Part IV. Neoclassical Public Law
13. The Substantive Due Process Triumvirate: Health, Safety and Morals
14. The Waning of Classical Labor Policy
15. The Regulatory State and Federalism
Epilogue: The New Deal at Bay