The Historical Argument in American Legal Culture 193 cal-libcral legal regime, in private lawas well as public law: tort law(delict) restored to the regime of minmal liability for harms caused by business enterprises; contract law restored to the principle of strict formal enforcement limited only by the most narrowly defined defenses of force and fraud; labor law restored to the unrestricted cmploymcnt-at-will doctrine (that is, the doctrine that employees may be fired at any time for any reason or no reason); the corporation conceived as nothing more than an aggregation of individual contracts. In public law: a well-policed public-private boundary, strictly limiting the government’s capacity to invade or regulate property without compensation, but removing all limits to the capacity of private owners to regulate those on their property; in the criminal law, an increased unwillingness of judges to supervise the police, or to regulate searches, arrests, detentions, interrogations, and conditions of confinement. In general: the restoration of the nineteenth century belief in the superior efficiency of judge-declared common lawto legislation as a mode of law-making. With these and many similar doctrines much of the classical edifice has been rebuilt brick by brick by legal intellectuals-- - and in much of the legislation proposed by the current Congress and in decisions by the emerging New Right majority of the current Supreme Court, many of these ideas are once again becoming law. The most astonishing of the revivals - the more so because it is a completely unconscious imitation of its nineteenth century predecessors, the historical jurists — has been the revival among Chicago law-and-economics scholars of a customarvevolutionary theorv of the common law: the Hayekian theory that judge-made law, unlike legislation, evolves by a process of natural selection or “spontaneous order” toward “efficient” legal rules.Once naturalized in this way, common lawpropertv, tort and contract rules could again function as the default legal constitution of the “private” market, any major changes in which by legislation would appear as excrescences, superimpositions, “artificial” acts of “intervention”. While conservative lawyers were renaturalizing something like the classical common law, they were also devastating the statutory and administrative legacies — the regulatory welfare state — left by its Progressive critics. In this they were aided by real history: a series of historical case-studies showing that regulation has usually been sought by regulated interests for their own ends: economic regulation was thinly disguised cartel enforcement; spending programs were mostly handouts to special business or middle-class beneficiaries. The leading figure in the elassical reconstruction is Professor Richard Epstein of the Universitv of Chicago. See, e.g., Epstein, Takings (Cambridge, Mass: Harvard Univ. Press, 1985); Fo)- bidden Grounds: The Case Against Employment Dismmination Lan' (Cambridge, Mass: Harvard Univ. Press, 1995). See George L. Priest, “The Common Law and the Efficient Selection of Legal Rules,” Journal of Legal Studies 6 (1977): 65; Paul H. Rubin, “Why is the Common Law Efficient?” journal of Legal Studies 6 (1977): 51.
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