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A LEGAL BOOK THAT TOUCHES ON POLITICS, ECONOMICS, AND SOCIAL POLICY AS WELL:
A Review of Lawrence Friedman's American Law in the 20th Century


By ELAINE CASSEL


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Friday, Jul. 12, 2002

Lawrence M. Friedman, American Law in the 20th Century (Yale University Press, 2002)

With American Law in the 20th Century, Stanford University Law Professor Lawrence Friedman has written yet another indispensable treatise on American law. (Friedman's earlier works include his ever-popular A History of American Law, and Crime and Punishment in American History.)

Friedman believes that the law is far more than a reflection of a society's legislative and judicial systems. Rather, law must be seen in its cultural, social, economic and political contexts as well. "Perhaps law has a life of its own," he says, "but if so it is a very limited life." Every case has a context and a background that defined the legal issue and helped influence the legal result.

Thus, American Law in the 20th Century is a review not only of law, but also of American industries and institutions, and of cycles of peace and war, plenty and want, social justice and injustice. Lay readers and lawyers will find much to like about Friedman's accessible and engaging pursuit of scholarly historical writing and insightful legal analysis. It would be a useful ancillary to The Oxford Companion to American Law, reviewed by G. J. Russello on this site.

A Book that Does Not Discuss, But Does Inform Our Understanding Of, More Current Events

The first and last chapters - "The Way We Were, The Way We Were Going to Be" and "Taking Stock: The Way We Live Now" - are the "bookends" that unite this ambitious tome. Between them, Friedman presents the cycles of "chaos and incident, drama and development, stasis and change" that shaped the law as we know it today. These cycles are broken down into three chronological sections: "The Old Order," "The New Deal and Its Successors," and "The Way We Live Now: The Reagan and Post-Reagan Years."

Some readers, like this reviewer, may be disappointed to find no mention of Bush v. Gore, in which the Supreme Court declared the winner of the 2000 presidential election. Unfortunately, the book went to press before the case was decided. Similarly, we will have to wait for some future work to see how Friedman's trenchant vision of politics in the law applies to the current "war" on terrorism.

A Breadth of Knowledge, And An Account That Will Appeals to Historians and Laypersons Alike

One of the delights of Friedman's work is its sheer breadth. He is equally at ease discussing personal injury law and the twists and turns in the death penalty (which also has take a few twists and turns since the book was published). He details the morphing of the American legal profession as easily as the changes in the American family.

The breadth of Friedman's knowledge is evident, as well, in his sweeping review of property, criminal, and civil rights law. Other topics include the growth of federal regulation of industry, race relations, and the exporting of American concepts of law and governance to developing countries. Well-documented end-of-chapter notes and a lengthy bibliographic essay aid the reader who is seeking more depth and detail about the vast number of topics addressed.

Thus, whether a reader chooses to traverse the 20th century with Friedman chronologically, or randomly pick chapters of interest, the experience won't be dull or pedantic. Friedman's writing reflects a thoughtful vision of American law--and life.

Back To The Future: How Friedman's History of Agencies Sheds Light on Corporate Scandals

The law, like other human endeavors, only rarely progresses in a linear fashion. New developments and markers of progress come by fits and starts. Accordingly, Friedman's discussion of the rise of regulatory agencies rings alarmingly true in July 2002. Shocking revelations of corporate and financial crimes at Enron, Arthur Anderson, Tyco, WorldCom and others, remind us that not much has changed in the less than 100 years of agency law.

Friedman describes how federal regulatory agencies quickly and ironically descended from bodies designed to represent the public, to havens for the very special interests from which the public needed protection. "Special interests usually get their way," Friedman comments, "sometimes by sinister means, more often because they have the loudest voices and the most to offer politicians--campaign contributions, among other things."

Again, as with Bush v. Gore and the war on terrorism, Friedman's book is prescient on even those news topics that postdated its writing.

A Nation Divided: Have We Ever Really Been a "United" People?

Virtually every conceivable ethnic, racial, and religious identity group, he comments, has an agenda that focuses on that group's being "special" or more deserving of political attention, legislative action, or government funding. Noting that all Americans, except the native tribes, are descended from people who came from somewhere else (some voluntary, some not), he wonders why we are not more united as a country.

When the Ninth Circuit Court of Appeals recently ruled that the "under God" language in The Pledge of Allegiance rendered the pledge unconstitutional, some commentators suggested that the emphasis should be on the "one nation, indivisible," not the "under God." After all, they pointed out, the "under God" was only added when it was approved by President Eisenhower to set "us" apart from the "godless" Communists.

Friedman suggests that we have never been a "united" people - so the "indivisible" language is, at most, aspirational. White, male, Protestant virtues and ideas are still often the only game in town, he notes - although individual members of diverse races, ethnicities, and sexual orientations are "mainstreamed" in a way unimaginable at the beginning of the 20th century.

The Heart of Friedman: Social History and Social Justice

Friedman's acknowledgement in the preface that his family life is "a haven in a heartless world" is a clue to what a reader soon will learn: Social history and social justice and injustice are topics that hold a special place in Friedman's world view.

Friedman's critical review of the criminal justice system, the penal system, three-strikes laws, and the death penalty suggests that the law is regressing, rather than developing, in these domains.

Friedman castigates the Rehnquist Court as being particularly "severe" in dealing with issues of criminal justice (or injustice). The solid majority of Rehnquist, Thomas, Scalia, O'Connor, and Kennedy are "bloodthirsty," he says, when it comes to the death penalty - a view that has been borne out in post-2000 death penalty cases.

Friedman also critically discusses so-called welfare "reform," which has as its poster child a lazy, shiftless, drug-addicted, promiscuous mother who "pop[s] out babies helter-skelter" to get a check. In particular, he criticizes a policy that forces woman into the workplace at minimum wage jobs, while, at the same time, budget cuts deny them necessary aids to getting out of the welfare hole, such as child care and educational and employment opportunities.

Singling Out Scalia As Especially Harsh In Criminal and Civil Rights Cases

For instance, when the 5-4 majority struck down school prayer at a school graduation in Lee v. Weisman, Scalia argued that the "inspiring" prayers of Rabbi Gutterman were in line with "the historic practices of our people." But Friedman points out, by way of rejoinder, that no 19th century public school administrator would have allowed any prayers save those of a Protestant clergyman.

Indeed, as Friedman points out, the sectarian nature of public schools is what, in part, led to the establishment of Catholic schools. (Such schools recently benefited from a different 5-4 majority in the case of Zelman v. Simmons-Harris, which sanctioned school vouchers, and which Marci Hamilton discussed in a recent column for this site.)

Historical footnotes like these appear frequently throughout the book. They serve as Friedman's not-so-gentle reminders that judges and politicians play fast and loose with history when its suits their purposes. They get away with it because few citizens have the knowledge required to mount a challenge - until they read Friedman, that is.

Will The Center Hold? Can the Constitution Survive the Pressures of the 21st Century?

Post-2000 events in American law have challenged our constitutional system of governance and law. Most Americans felt, after Bush v. Gore, that the system "worked" inasmuch as there was no proverbial "blood in the streets." But the "war on terror" is testing the boundaries of the Bill of Rights.

Today, the government can conduct surveillance on citizens in public places or in their computer systems; it can charge them with crimes of "terror" and hold them incommunicado without access to counsel or the ability to confront witnesses against them, despite the Sixth Amendment's guarantees of these rights.

Meanwhile, significant constitutional issues are now being raised in government prosecutions of "American Taliban" John Walker Lindh, "Twentieth Hijacker" Zacarias Moussaoui, "Dirty Bomb conspirator" Jose Padilla, and others unknown. With huge pressure for the courts to rule against the suspects, these cases may lead us to wonder if our Constitution will be as resilient in the 21st century as it proved to be in the 20th - and to fear it may not.

Friedman resists the opportunity to predict what the 21st century has in store for American law. It is, he says, "a truly unknown country--a great void, a black hole, a vacuum," a "mysterious, remote, inaccessible" terrain. Nothing in Friedman's view of the law - and of the law in the context, and with the background, of history - indicates that he is basically cynical or fearful. But somehow, in July of 2002, his tone seems ominous.

We may wonder, as did Irish poet William Butler Yeats in his famous poem "The Second Coming," whether the center will hold. Will constitutional guarantees of speech, association, counsel, impartial jury trials, and the like hold firm, or will they be sacrificed to expediency and fear?

In writing about the era of criminal law and procedural reforms given to us by the Warren court, Friedman cautions against placing too much credit--or blame--with the Supreme Court. There were then (and, presumably, still are) scores of people like Ernesto Miranda and Clarence Gideon. Yet only a few individuals--and their lawyers--demanded the rights that the Warren Court sanctioned. The case of Gideon v. Wainwright was, Friedman believes, as much about Clarence Gideon's insisting on his right to counsel and his having a good lawyer, Abe Fortas, to represent him before the Supreme Court as it was about the makeup of the court that ruled in his favor.

The decisions of the Court's 2001-2002 term do not leave much room for hope that, anytime soon, we will have a Supreme Court that cares much for individual rights--except, perhaps, some freedom of speech--as did the Warren court. The upcoming term will no doubt see the justices' dealing with post-September 11 laws, particularly the USA Patriot Act, and their implementation. In public comments, the ever important "swing vote" Justice Sandra Day O'Connor has suggested that Americans may have to tolerate less freedom than they have gotten used to, an ominous precursor of decisions to come.

Yet slim chances of victory do not justify sitting idly by and watching our legal and judicial heritage, as comprehensively outlined in this book, slip away. Abuses and inequities abound in political, financial, and social systems, profoundly affecting victims from all walks of life. But the battles to right these wrongs are joined in our courts of law.

Friedman reminds us that the law is not some mandate imposed from black-robed judges or suited legislators. We, the people, are the law. If we fail to protest and defend against laws that attack our core freedoms, and do not participate in making law and making it better, then we have little right to complain when the law becomes our oppressor.


Elaine Cassel practices law in Virginia and teaches law and psychology. Her textbook, Criminal Behavior (Allyn & Bacon, 2001), explores crime and violence from a developmental perspective. She writes and lectures for continuing legal education courses in Internet law, privacy, genetics, and health law. She is the incoming -Chair of the Behavioral Science Committee of the ABA Science and Technology Law Section and a member of the Section's Privacy and Computer Crime Committees.

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