Legal Change and Class Interests: A Review Essay on Morton Horwitz's the Transformation of American Law

Abstract

Legal history has traditionally been synonymous with the history of the Supreme Court and with the analysis of the great opinions of that tribunal. However, as Morton Horwitz points out in the introduction to his new book on the development of the American common law, The Transformation of American Law, 1780-1860: [C]onstitutional cases are . . . unrepresentative either as intellectual history or as examples of social control .... [J]udicial promulgation and enforcement of common law rules constituted an infinitely more typical pattern of the use of law throughout most of the nineteenth century. By thus focusing on private law we can study the more regular instances in which law, economy, and society interacted.' One of Professor Horwitz's primary objectives in this important and long-awaited work is, therefore, to make the technically difficult and sometimes obscure subject of private law accessible to professional historians2 and others interested in the American past. In this, Horwitz succeeds remarkably well. Trained in the law as well as in political science, he ranges with ease and familiarity over topics as diverse as the law of water rights, mercantile insurance, and negotiable instruments. He succeeds in making these relatively dense areas of the law understandable to the educated layman, at least to the layman who is not averse to reading a text patiently and perhaps more than once. This book is a prodigious work of scholarship3 that will likely have the