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eBook
Two Forms of Conservatism
2024
Overview
The period between 1860 and 1920-inclusive of the Gilded Age and
much of the Lochner era in legal history-is typically
regarded as the heyday of conservative jurisprudence. According to
this received wisdom, conservative judges and much of the legal
profession were on the side of big business and the rich. Judges in
this period subscribed to \"classical\" legal thought, and it was
only when this was supplanted by \"progressive\" legal thought that
courts reached decisions critical of business.
Renowned legal historian William E. Nelson seeks to correct this
narrative by examining in close detail the work of judges in the
single jurisdiction of New York as well as the rulings of U.S.
Supreme Court justices. What he finds is another type of
conservatism besides the one that favors the rich. Instead, the
judges in this period often reached decisions that were critical of
business. Many of their accomplishments were forward-looking and
progressive in character but conservative for another reason: they
rigidly followed precedent, with only occasional exceptions. While
some legal realists see the emphasis on precedent as a veneer to
hide the judges' policy preferences, Nelson shows that this
explanation does not fit the evidence. The judges had no consistent
policy preferences, and their decisions favored a wide array of
policies.
Two Forms of Conservatism is the work of an expert
historian with an eye for detail and a deep understanding of legal
thought. He shows that these New York judges, who were quite
conservative regarding the law, nevertheless laid the foundation
for the liberalism of later political leaders.
Publisher
University Press of Kansas
Subject
ISBN
9780700636648, 0700636641, 070063665X, 9780700636655
