Rebecca A. Rix
Popular Culture: Opportunities for an Intellectual History of Transactional Lawmaking
Opportunities for Law’s Intellectual History • October 10 & 11, 2014
Page 1 of 8
Nearly sixty years ago, James Willard Hurst argued that commercial
transactions reshaped the “whole structure of power” over the nineteenth
century. General incorporation laws, wartime state-corporate contracts, and lax
legal policy produced both a “release of energy” and also the accumulation of
“unprecedented power of decision in private hands.”1 Hurst qualified his vision
of just how commercial transactions contributed to this restructuring of power,
however. “On the present evidence,” it was “hard to reach a satisfying judgment
as to how much calculation and how much default of legal policy contributed to
the concentration of capital.” He found no evidence that “anyone foresaw or
intended the kind and extent of concentration of wealth that ensued.”23
While no one could have foreseen the resulting changes, transactional
lawyers surely recognized the opportunities and intended to realize it. Law firms
specializing in commercial transactions, financial and commercial trusts, and in
protecting private franchises employed some of the best legal talent of the late
nineteenth century. Yet transactional lawyers are absent from Hurst’s account.
1
James Willard Hurst, Law and the Conditions of Freedom, 15. On drift and default in legal policy, 78-80.
Hurst, 78-82, quoted at 82, 78.
3
Nonetheless, Hurst noted the peculiar mixture of positive and negative liberties in what was supposedly
“our most influential generation of laissez faire.” “The law provided an open field (assured broad markets),
legal instruments (the corporation and manifold tools of contract, especially the devices of corporate
finance), legal subsidies (grants of land and public credit, and currency inflation and deflation), and then
substantially stood aside.” Hurst, 82.
2
Rebecca A. Rix
Popular Culture: Opportunities for an Intellectual History of Transactional Lawmaking
Opportunities for Law’s Intellectual History • October 10 & 11, 2014
Page 2 of 8
This is unsurprising given Hurst’s focus on the dawning understandings of legal
policymakers: He was more interested in anti-trust regulation than in how the
trusts were formed. Nonetheless, to understand how “capital” used the
“conditions of freedom” to restructure power, we need a history of transactional
lawyering.
Intellectual history methods could inform such a history, framing it in
terms of discourses and their interpretation in providing solutions to practical
legal problems. Transactional law is not popular culture as we know it, but it is a
kind of popular constitutionalism that requires the sanction of popular culture.4
Lawyers create law and legal authority outside courts and legislatures; this is
certainly lawmaking by “the people, themselves.”56 Thinking in terms of
discourse and its different articulations allows us to historicize the notion that
private lawmaking concerned the “private transactions between individuals
vindicating their pre-political rights.”7 Who designated these transactions as
private? What kind of individuals – humans, men, corporations? Who defined
On his view of consensus, see Hendrik Hartog, “Snakes in Ireland: A Conversation with Willard Hurst,”
Law and History Review, Vol. 12, No. 2 (Autumn, 1994), pp. 370-390, 385-86.
4
5
Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford, 2004)
set off a flurry of scholarship that distinguishes various forms of popular constitutionalism.
7
Morton J. Horwitz, The Transformation of American Law 1870-1960: the Crisis of Legal Orthodoxy,
(Oxford and New York: Oxford University Press, 1992), 11. His view is more nuanced than the quote
suggests, but the questions about intellectual production remain open.
Rebecca A. Rix
Popular Culture: Opportunities for an Intellectual History of Transactional Lawmaking
Opportunities for Law’s Intellectual History • October 10 & 11, 2014
Page 3 of 8
these pre-political rights?8 9
To explore these questions, I focus on Louis D. Brandeis. Brandeis was
once a transactional lawyer and a defender of private corporate liberty - an antisuffragist, a deviser of corporate trusts, and co-author of “The Right to Privacy.”
Second, he switched sides and acted on what he wryly called a “duty to
publicity,” embracing more direct democracy, legislative interventions in labor
relations, and public franchises. Third, some of his transactional work was
publicized in Supreme Court confirmation hearings, as his opponents tried to
derail his appointment.10 In the following pages, I draw on Brandeis’s work to
Rubin and Sugarman call for a history of “facilitative” law in England– the kind that creates semiautonomous realms of the sort that Horwitz calls “private lawmaking.” G. R. Rubin and David Sugarman,
"Toward a New History of Law and Material Society,” Law, Economy and Society, 1750-1914: Essays in
the History of English Law (Oxford, 1984).
8
9
My interest in this topic comes from my research and from teaching the salience of gender and the family
in legitimating private, organic, corporate entities in nineteenth-century ideas, practices and institutions of
"self-government." In my current book, I study how Northeastern anti-suffragists energetically opposed not
only woman suffrage, but also the ballot initiative and direct election of senators (other forms of direct
democracy), the progressive income tax, and the incorporation of social welfare as a category of the
"general welfare" for which Congress could tax, spend, and create bureaucratic capacity, between 1880 and
1933. Anti-suffragists held similar views of power and property as those of conservative antebellum whigs,
several took part in the “Whig ascendency” of Reunion and Reaction, and many were notable transactional
lawyers, including Boston’s Louis D. Brandeis and New York’s Everett P. Wheeler. 9 The careers of these
men and their professional and social networks both reflected and constructed the legal forms and political
culture of private corporate liberty, yet I have yet to find a historical account of this phenomenon. In my
graduate history seminar on the constitution of family and individual liberty, we relied on William
Wiecek’s Lost World of Classical Legal Thought – a fine work of intellectual/history in its own right, but
not one that digs into the creative processes of facilitative law. 9
10
In particular, his construction of the United Shoe Machinery Manufacturing Trust appear in federal
investigations of the trust (an investigation he assisted in, during the period in which he was becoming the
“people’s lawyer”) and in a later pamphlet circulated to oppose his confirmation hearings by the trust’s
president, Louis A. Coolidge. The pamphlet, “The Changeable Mind of Louis D. Brandeis,” portrays him
as turncoat formerly of Boston’s legal elite, while testimony from Boston’s leading men suggested the
Rebecca A. Rix
Popular Culture: Opportunities for an Intellectual History of Transactional Lawmaking
Opportunities for Law’s Intellectual History • October 10 & 11, 2014
Page 4 of 8
show how textual explication and discourse analysis help conceptualize
questions and possible sources for transactional lawyering’s intellectual history.
#1: Close readings and explication, mindful of context and intertextuality: “The
Right to Privacy” begins with an ode to the “genius of the common law.” The
frontispiece quotes Millar v. Taylor, a 1769 English decision upholding a
perpetual common law copyright against a statute that would have released
copyrighted material into the public domain after a term.
It could only be done on principles of private justice, moral fitness, and
public convenience, which, when applied to a new subject, make common
law without a precedent; much more when received and approved by
usage.11
And then begins the article:
That the individual shall have full protection in person and property is a
principle as old as the common law; but it has been found necessary from
time to time to define anew the exact nature and extent of such protection.
Political, social and economic change entail the recognition of new rights,
and the common law, in its eternal youth, grows to meet the new
demands of society. … Gradually the scope of these legal rights
broadened; and now the right to life has come to mean the right to enjoy
life, -- the right to be let alone; the right to liberty secures the exercise of
extensive civil privileges; and the term "property" has grown to comprise
every form of possession -- intangible, as well as tangible.12
worst of his offenses was his breaching of the secrecy provided to transactional lawmaking methods by
explaining the rules of the game.
11
Willes, J., in Millar v. Taylor, 4 Burr. 2303, 2312, cited in Warren and Brandeis, “The Right to Privacy,”
Harvard Law Review Vol. IV, no. 5 (December 15, 1890), 19312
Warren and Brandeis, 193.
Rebecca A. Rix
Popular Culture: Opportunities for an Intellectual History of Transactional Lawmaking
Opportunities for Law’s Intellectual History • October 10 & 11, 2014
Page 5 of 8
Invoking Millar v. Taylor suggested the customary, principled legitimacy of
perpetual copyright, and its corollary - sharply limited rights of public domain
and publicity. This made sense; the right to privacy was to limit the intrusions
and unflattering revelations of an unprincipled press. But the two passages,
along with the next paragraphs also offered a guide to the “genius of the
common law” - its mixture of traditions, application of key principles to
contemporary problems, and its characteristic, “beautiful capacity for growth …
[which] enabled judges to afford the requisite protection, without the
interposition of the legislature.”13 The proposed right to privacy – “to be let
alone” - drew on ideas of liberty and property associated with a propertied male
head of household, as further passages articulate. The right protected family
privacy (“the sacred precincts of private and domestic life”), but also intangible
property (“works of literature and art, goodwill, trade secrets, and
trademarks.”).14 The “common law” protected the right to be let alone with one’s
property, whether a “man” was a household head, a copyright holder, or a
corporation.
#2: Analyzing discourses as they are articulated. Historian Gail Bederman
defines discourse as “a set of ideas and practices, which, taken together, organize
13
14
Ibid, 195.
Ibid, 194, 195.
Rebecca A. Rix
Popular Culture: Opportunities for an Intellectual History of Transactional Lawmaking
Opportunities for Law’s Intellectual History • October 10 & 11, 2014
Page 6 of 8
both the way a society defines certain truths about itself and the way it deploys
social power.” Discourse analysis involves studying how ideas, practices, and
institutions are connected, mutually constitutive and, given Warren’s and
Brandeis’s deft maneuvering we might add “path dependent” (moving
backward to conjure historical continuity and forward to predict the “evolution
of the common law”). A useful feature of this approach is that “any discourse
will be multiple, inconsistent, and contradictory” - yet the authority of the
discourse rests on cognitive limits on what can be imagined as true or
compelling. 15
Thinking of the “common law” as a discourse providing a legitimating
rationale for privacy and property rights, we can see how Brandeis drew on it in
very different contexts than “The Right to Privacy.” The right to be let alone,
based on principles of private justice, moral fitness, public convenience, the
beauty of judicial extensions of protection to meet the needs of modern society
and advances in technology, and the individual’s liberty and property, sound
familiar themes in classical legal thought. In one context, Brandeis defended the
“shoe machinery trust” he helped create and its coercive leasing practices of
patented, state-of-the-art technology, by appealing to property rights and private
15
Gail Bederman, Manliness and Civilization: A Cultural History of Gender and Race in the United States,
1880-1917 (Chicago: The University of Chicago Press, 1995), 24.
Rebecca A. Rix
Popular Culture: Opportunities for an Intellectual History of Transactional Lawmaking
Opportunities for Law’s Intellectual History • October 10 & 11, 2014
Page 7 of 8
justice (investors’ right to the profits generated by their property), and public
convenience (better, cheaper shoes for consumers; new opportunities for small
shoe manufacturers).
But what of Muller v. Oregon? Lochner’s justice rested on the assumption
that masters and men were alike, sui juris, in their liberty to contract and their
sovereignty over a private sphere; Muller nestled women within the logic of that
framework as potential mothers and wives. Private justice, moral fitness – check.
Public convenience? The state’s police power. The state of the art in the relevant
technology and the need for new protections? The famous tome of scientific
evidence and relevant statutes demonstrating best practices in governing
maternal health by limiting hours and regulating health hazards. Scientific
evidence was nothing new in patent law, after all.16
These are obviously brief sketches, but they are based in more research
and thinking about the history of transactional law. Brandeis was exceptional,
not least in the public documentation of his transactional lawyering. Hurst was
right; sources are scarce. But analyzing the structures transactional lawyers made
with a legal discourse of mutually constitutive institutions and ideas expands the
16
The 1916 case, Bunting v. Oregon (argued first by Brandeis in a bravura performance in 1914, and then
again by Frankfurter, after Brandeis reached the Supreme Court), took this all a step further by bringing
forth additional evidence of a scientific revelation: men also suffered health consequences from overwork
and thus, overtime penalties paid in time-and-a-half wages were constitutional.
Rebecca A. Rix
Popular Culture: Opportunities for an Intellectual History of Transactional Lawmaking
Opportunities for Law’s Intellectual History • October 10 & 11, 2014
Page 8 of 8
source base. One might include corporate histories, contemporary professional
directories, memberships of social and professional networks, financial records
and corporate ratings analyses, battles over public franchises, and so on.
Understanding transactional lawyers as skillful private intellectuals making use
of the “conditions of the freedom” to build the legal landscape could add a long
overdue chapter to legal historiography.