Legal history and intellectual history 47 emergence of a mass consumptive economy.The problems we face, by contrast, are “heightened international competition and capital mobility, chronic sluggishness in productivity growth, and the rollback of organized labor.”^^ Nevertheless, Barenberg argues that Wagner’s vision “sheds light on current economic and sociological theories of labor-management cooperation.”^^ “[Rjccast ... in the more explicitly theoretical terms of current economic sociology and anthropology,” Wagner’s outlook can be used (i) to enhance sensitivity to the power of labor law (and law in general) to shape rather than merely manage the preferences and interests of all affected parties and (ii) to reveal solutions better than seniority systems, deferred compensation, etc., for solving the problems identified by contemporary economists concerned with “internal labor markets.Inshort, Barenberg approaches Wagner in just the way LaCapra commends: “we awaken the dead in order to interrogate them about problems of interest to us.” In their effort to bridge the gap between presentismand historicism, the two articles by Peller and the one by Barenberg seem methodologically genuinely innovative. At least in Feller’s case, that innovation seems to flow naturally froma postmodern or textualist theory of history. In other respects, however, all three articles fail to exploit fully the methodological potential of Textualism. Most importantly, none adopts an openly perspectival stance when interpreting texts; on the contrary, all three exude confidence in the rightness, the truth of the interpretations they offer. In “Metaphysics of American Law,” that confidence seems to derive (despite Feller’s protestations to the contrary) froma Structuralist approach. In the other two articles, it derives fromsuccessful efforts to situate the texts in their discursive contexts. There is nothing necessarily wrong with inquiries of those sorts - but they are not recognizably textualist. Nor does one find in either of these articles much evidence of the third of the Textualists’ recommendations - that historians “brush history against the grain” by showing howcanonized documents can be interpreted so as to subvert the canon itself. Only one piece of legal history seems fairly to fit that description: Clare Dalton’s forthcoming book. Losing History7'^ In the 1868 case of Rylands v. Fletcher, the English House of Lords held that the builder of a reservoir was strictly liable (i.e., liable regardless of whether he was 7-* Ibid., 1388. 7!^ Ibid. 7^ Ibid., 1389. 77 Ibid. To bo sure, Wagner does not get off scot-free. Barenberg chastises himfor a number of blindnesses - the most important of which was underestimating “management’s awareness and fear of the potency of tlie verv process of cultural change [Wagner] extolled.” Ibid., 1495. And Barenberg frequently takes issue with Wagner on specific questions - such as whether joining a company union can properly be analogized to selling oneself into slavery. 7** Clare Dalton, Losing History (forthcoming, Oxford University Press). at “fault”)
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