WilliamW. Fisher III 40 Gabel, he insisted that the original conception of the “fundamental contradiction” had outlived its usefulness - that it had become a “lifeless slogan” and (more seriously) that it had been seized upon by liberal and conservative scholars to justify their own programs for either incremental social change or defense of the status quod^ Partly as a result, in the late 1980s the production of scholarship in this vein diminished sharply. A few legal historians still make explicit use of Structuralism, but typically only as a component of or prelude to a Poststructuralist methodology.’^^ B. The impact upon legal history of Contextualism has been less overt but more pervasive and apparently more durable. Very few legal historians cite or appear aware of the methodological writings of Quentin Skinner or J. G. A. Pocock,"*^ but a large and rapidly growing body of work in legal history incorporates many features of the mode of analysis they pioneered. A prominent example is Herbert Hovencamp’s much heralded recent book. Enterprise andAmerican Law. In its opening sentence, Hovencamp insists that It “should be read as intellectual history and not as political, social, or economic history.His central thesis is that the dramatic developments in American constitutional law, labor law, and antitrust law between 1836 and 1937 are best understood, not (as has traditionally been thought) as the outgrowths of battles among selfish interest groups, but rather as precipitates of a general “way of thinking about policy problems,” which in turn was derived, not fromlegal theorists, but fromeconomic discourse. More specifically. Hovencamp contends that the leaders of the legal establishment during the mid and late nineteenth century were steeped in classical political economy, the central tenets of which were: the market, left to itself, works well; the state should not play favorites; good laws are laws that increase the size of the social •*'’ L^uncan Kennedy and Peter Gabel, “Roll Over Beethoven,” Stanford Latt' Revietv 36 (1984): 15-17. See Peller, “The Metaphysics of American Law,” California Lair Revietv 73 (1985): 1151. A possible exception is RudolphJ. Peritz, “Frontiers of Legal Thought I: A Counter Histors' of Antitrust Law,” Duke LazvJournal (1990): 268 (reiving on Foucault and Flavden White in offering “a structured analysis of antitrust discourse, which [he calls] a ‘genealogy’ or a ‘counter-history.’”) William Novak is a rare counter example. He opens his excellent dissertation on the history of the concept of the police power by expressly casting his lot “with a generation of ‘new’ intellectual historians who have convincingly argued that language is not epiphenomenal; it is an important, inseparable part of social structure” (citing Skinner, John Dunn, Pocock, and Gordon Wood). “Salus Populi: The Roots of Regulation in America, 1787-1873” (Ph.D. diss., Brandeis University, 1991), 28. A portion of the dissertation has been published as “Intellectual Origins of the State Police Power: The Common Law Vision of a Well-Regulated Societv,” Institute fcir Legal Studies, Working Papers. 3d ser. (June 1989), where the quoted passage appears on p. 17. '*** Herbert Hovencamp, Enterprise and American Lan', 1836-1937 (Cambridge, Mass., Harvard Univ. Press, 1991), ix.
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