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3 Bimonthly Rev. L. Books 1 (1992)

handle is hein.journals/bimrvlab3 and id is 1 raw text is: BIMONTHLY REVIEW OF LAW BOOKS Volume 3 Number 1 January-February 1992 LEGAL HISTORY, LEGAL ECONOMICS, AND THE BILL OF RIGHTS Enterprise and American Law, 1836-1937. Herbert Hovenkamp. Cambridge: Harvard University Press, 1991. 443p. ISBN 0-674-25748-0 $39.95. Reviewed by Ballard C. Campbell Herbert Hovenkamp has produced a brilliant discourse on the interaction between the law and economics in American legal development. Un- comfortable with the tendency of legal historians to accentuate political conflict, Hovenkamp contends that economic theory played an influential role in shaping public policy and jurisprudence in the United States. He argues this proposition by tracing the rise and fall of the classical model of political economy in Americanjurisprudence between 1836 and 1937. This web of ideas about business, the economy, and the law comprised a common intellectualwellspring for elite lawyers after 1836 and reigned as the dominant judicial theory during the last half of the nineteenth century (p. 28). Classicism's roots can be traced to Adam Smith, the Scottish Realists, and early American political economists such as Francis Wayland and Henry Carey. The essence of their outlook was that the private market could be trusted to nurture national wealth. Recoiling from mercantilist policies whereby government granted monopolies to entrepreneurs, classicists condemned public interference with the private market because it blocked equal access. A key legal derivative of this theory was the corpora- tion, which gained protection from its creditors through limited liability, control by its managers rather than its owners, and substantial absolution from meddlesome quo warranto proceedings. Classicists saw the trend toward monopoly later in the century as the logical outcome of corporate efforts to survive competition by achieving efficien- cies of scale. Classical notions permeated most aspects ofjurisprudence concerning enterprise-including substantive due process and prevalent attitudes to- ward labor-during the latter decades of the nine- teenth century, when the theory's hold on jurists reached its apogee. Some of Hovenkamp's creative analysis focuses on empirical inconsistencies in the premises of classicism. The section on Regulated Industry in- cludes marvelous reviews of the railroads' dilem- ma over rate-making and the confluence of epide- miology, political economy, and the law in the Slaughterhouse cases. Faithful judicial adherence to classical political economy led to a double standard (continued on next page) FEATURES IN THIS ISSUE Legal History, Legal Economics, and the Bill of Rights 1 International Law, Human Rights, and Development 8 Fiction, Legal Style, and Biography 12 International Legal Materials 14 Debtors, Creditors, Lenders, and Securitization 16 Punitive Damages: A State-by-State Guide 20 Environmental Law Anthology 22 Books Received 22 Bimonthly Review of Law Books / January-February 1992

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