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How the Law Reflects the World We Create

AMERICAN LAW IN THE 20th CENTURY, By Lawrence M. Friedman, Yale University Press: 722 pp., $35

September 15, 2002|EDWARD LAZARUS | Edward Lazarus is the author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court." He is a lawyer in private practice.

It took guts plain and simple for Lawrence M. Friedman to write "American Law in the 20th Century." This is a topic of monumental scope, encompassing revolutionary changes in every aspect of law, from the rules regulating marriage to the basic structure of the U.S. government. Fortunately for those who seek an enlightening guide to this country's modern legal history, Friedman, a professor at Stanford Law School, has erudition and style as well as guts. His achievement is stunning and definitive.

Friedman combines three talents, all essential to his enterprise of describing the transformation of American law from a relatively modest system for dispute resolution in the 19th century into the judicial leviathan we live with today. He has an astonishing breadth of knowledge, a gift for choosing historical exemplars and, most important, a keen sense of the relationship between changes in our legal culture and changes in society as a whole.

The landscape of American law covers a complex and varied topography. Any serious history of the subject must analyze federal and state law, statutes and court-made law, civil and criminal law, legal procedure and the laws themselves, law practice and its teaching and the effect of our laws both at home and abroad.

Given this challenge, Friedman could have been forgiven some inconsistency. Yet whether the issue is the derivation of the term "ambulance chaser" (plaintiff's lawyers had to be quick to the scene of accidents to prevent insurance adjusters from convincing victims to sign claims releases) or the inner workings of the U.S. Supreme Court (where each justice acts not collegially but as a "separate sovereignty"), Friedman seems equally at home.

Each of Friedman's chapters is jampacked with information and perspective. Say you're interested in the travails of US Airways or WorldCom and want to know about bankruptcy law. True, you won't come away from Friedman's five pages on the subject knowing how to file a bankruptcy petition. But you will get an overview of the system, including a history of Congress' loosening and tightening of the requirements for bankruptcy and a thumbnail on how modern corporations have filed for bankruptcy protection to get out of labor contracts (Continental Airlines) or avoid massive tort liability (Manville Corp., a main producer of asbestos). Most interesting, Friedman has explained the vital role of bankruptcy law in fostering a society of entrepreneurs by providing a legal safety net--in essence a second chance--for the risk-takers who fuel the engine of social innovation.

Other keys to Friedman's success are his abilities to identify the seminal case, the vital personae, the meaningful statistic, the watershed moment and to accompany these choices with a lively and insightful narrative description. Naturally, some selections are pre-ordained. Every analysis of law in wartime is going to discuss the Japanese internment cases, just as a section on product safety must feature Ralph Nader and his crusades.

Friedman's book, however, includes obscure surprises. Gabrielle Darley is hardly a household name, but this prostitute-turned-society wife pioneered the tort of invasion of privacy--a favorite legal claim of celebrities--after her colorful life became the subject of the 1925 movie, "The Red Kimono."

And outside of the legal academy, not many people know Karl Llewellyn, whom Friedman describes with a characteristic mix of fact and judgment as "a man of extraordinary breadth and intelligence, an amateur poet (and not half bad), a much-married man, a heavy drinker (perhaps an alcoholic), and a distinguished professor of law, mostly at Columbia, then in his later years at the University of Chicago." In the 1940s, Llewellyn drafted the Uniform Commercial Code--a set of rules that still governs the sale and delivery of goods between merchants--and was a pioneer of the still-influential legal realist movement, a loose collection of skeptics who exposed the political roots of judicial decision-making.

Admirably, Friedman never forgets that these characters and stories that color our legal history--the giants like Oliver Wendell Holmes, who dominated legal thinking for a generation, or a tragedy like the Birmingham church bombing, which shamed a nation--are part of a larger social context. Indeed, Friedman's greatest accomplishment may well be that, despite his obvious passion for the law, he repeatedly instructs (and illustrates) that the power of law to change society is dwarfed by the power of society to change the law.

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