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Tuesday, October 05, 2010

"Counter-Progressive" Legal Theory?

The George Washington Law Review recently published an interesting symposium with papers commenting on two books on judicial review, one of which was this reaction by G.E. White to Philip Hamburger's book, "Law and Judicial Duty."  In his comment, White characterizes the book as part of a "counter-Progressive" line of American legal history which, he claims, is "nearing the status of orthodoxy[.]"  Hamburger's own contribution to the symposium says almost nothing about this characterization, except to deny it forcefully in a footnote.

The disconnect may be the result of the different tasks that Hamburger and White set for themselves.  White is interested in tracing a historiographic phenomenon in legal scholarship and locating Hamburger within it.  Hamburger is instead interested in discussing his claims about the nature and origins of the idea of judicial review -- he resists White's attempt to position him within any larger "counter-Progressive" movement in the history of legal ideas.

Yet I think there may be something more going on here, something along the lines of what I recently thought about in this piece as reflecting the different tasks of legal scholarship, and the modes within which legal scholarship gets done.   White sees (and wants to see) American legal historical scholarship as a kind of contest between the forces of Progressivism and counter-Progressivism.  In effect, this characterization itself fits nicely into the very Progressive paradigm that he offers.  Hamburger rejects that quasi-dialectical academic contest between Progressive and counter-Progressive powers, at least as it applies to his book. 

After the jump, two questions: 1. What is the dispute between White and Hamburger really about?  Is it really about whether Hamburger's book fits within White's historiography, or is it instead about whether this particular division between "Progressive" and "counter-Progressive" is the sort of history of ideas that is worth pursuing at all?  (2) If one agrees with White's view of the ascendancy of "counter-Progressive" American legal history, is there a comparable line of "counter-Progressive" legal theory?  I tend to think that there is not.  But if there is, or could be, in what would it consist? 

Before getting to the questions, some definition of terms.  Here's White on the counter-Progressive tradition in American legal history: "Counter-Progressive work assumes that describing American society as a shifting clash of classes and interests is simplistic and potentially pejorative, imposing anachronistic post–New Deal categories on past epochs.  It assumes that judging is more than what the judge ate for breakfast or an imposition of the judge's instinctive and class biases on public policy.  It assumes that judges are importantly constrained by legal doctrine, so that the relationship between law and current political ideology is delicate and complex.  And it assumes that law, far from being simply a 'mirror for society,' is, at any moment in time, in a dialectical relationship with American culture at large, so that law is both constitutive and reflective of its cultural setting." (footnote omitted).  Everything that counter-Progressivism isn't, of course, Progressivism is.

Now to the first question.  When I saw this list, I wondered what exactly distinguished a counter-Progressive from any sensible observer of the operations of American law.  Assuming that law is "more than what the judge ate for breakfast" harkens to one of the standard and rather tired  formalist/realist tropes, and like many of those tropes, they die very hard among those who are looking to stain each new wave of legal scholarship with the pigments of "progress!!" and "regress!!"  But did anyone ever really think that judges' meals controlled the fates of claimants?  Did anyone -- anyone serious -- ever really think that law is merely -- only -- the imposition of class "bias" on policy?  Find me that mythic chimera in American legal history who believed that judges are only trivially constrained by legal doctrine, or that law simply trails like some sort of limp dead fish in the ship of state's wake.

Yet White insists not only that such thinkers existed, but that they represented the old and quite possibly still regnant (though now crumbling) orthodoxy.  He says that just these beliefs were only natural to those legal academics who lived from roughly the late '30s (Charles Beard types) through the '60s, eventually culminating in the work of Morton Horwitz -- whose Transformation volumes "cemented that orthodoxy because it recast Progressive assumptions from the mild liberal-centrist form that they had come to take in the late 1960s and early1970s to a harder-edged, more radical form."

White is an eminent scholar of law and history, and his learning in both areas greatly exceeds mine.  If there was really an era of "Progressive" legal historical scholarship, he will know much more about it than I do.  Still, it seems to me that a history of ideas that proceeds in this fashion -- envisioning new theories and histories as either comfortably ensconced within or on a mission to knock down the "Progressive" edifice -- has the danger of missing the history for the paradigm.  Hamburger's book has little to nothing to do with rehashing the historico-jurisprudential affair of formalism and realism, let alone with championing any sort of ideological siege on the Progressive citadel.  But from the point of view of the Progressive (or his descendent), how could Hamburger not be engaging with the old orthodoxy?  No, he must somehow be engaging with it.  Since he doesn't seem to subscribe to the set of views associated with Progressivism, he must be anti-Progressive.  And once we identify him as anti-Progressive, we can then (again, and again) talk about the epic struggle between the forces of progress and regress  rather than talk about what's in the book. 

To be fair to White, he (1) was trying to capture something very large in a very small space, and (2) does engage elegantly with Hamburger's work later in the comment.  And as I say, he may well be right that American legal history has predominantly characterized by Progressivism.  To the second question, then -- is there a comparable tradition and anti-tradition in legal theory?  The legal liberal tradition, whose roots were in Progressivism, has been documented in highly complimentary terms in Laura Kalman's work.  And there seems to be a very powerful resurgence of "Progressivism" in legal theory these days -- Jack Balkin's Constitution in 2020 project represents just such an effort at re-charging the Progressive battery.  Progressive legal theory seems to be alive and well -- and just as dominant as it ever was.

Is there also a line of counter-Progressive legal theory?  Some might say that originalism qualifies here, but I express some doubts in my little essay that originalism, even if it could once say this, can say it univocally today.  Another possibility is the renaissance of neo-formalism, but again, I am skeptical (see the essay for why).  In fact, assuming we accept White's thesis/anti-thesis formulation, I am doubtful that Progressive legal theory has as yet met its anti-Progressive counterpart.  It seems that legal history leads legal theory on this score (or the reverse, depending on your tastes).  Perhaps readers of this post will disagree; I welcome your speculations.


Posted by Marc DeGirolami on October 5, 2010 at 03:53 PM | Permalink


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