Two Forms of Conservatism
Judicial Reasoning in New York Courts, 1860-1920
Sales Date: June 28, 2024
176 Pages, 5.50 x 8.50 in
- Published: June 2024
- Published: June 2024
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 US 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.
“Nelson’s book represents the best tradition of legal scholarship: lucid in its prose, subtle in its findings, and relentless in its inquiry. One would expect nothing less from a master of the field working at the height of his powers.”—Andrew Porwancher, coauthor of The Prophet of Harvard Lawand John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law
“Nelson’s essay is clear, persuasive, and thorough. The choice of New York State’s appellate courts to make the argument about the bifurcated nature of conservative jurisprudence in the ‘classical age’ is a natural one. The state’s courts led in areas of commercial law, domestic relations law, and in the later years of the period Nelson considers, tort law. Masterful.”—Peter Hoffer, author of Uncivil Warriors: The Lawyers’ Civil War and Rutgers v. Waddington: Alexander Hamilton, the End of the War for Independence, and the Origins of Judicial Review, and coauthor of The Clamor of Lawyers: The American Revolution and the Crisis in the Legal Profession