Jay Feinman


This article describes the possibility of a classical revival in the common law and situates the revival in its historical context. Part I sets the stage by briefly summarizing a century and a half of common-law development. At the end of the Nineteenth Century, classical legal thought envisioned a highly systematic body of law through which courts could mechanically apply abstract legal concepts to reach determinate results, producing limited liability in contract and tort law and expansive property rights. Critics beginning with Holmes and notably including Progressives and legal realists attacked classical law as incomplete and incoherent. Their critique was absorbed into the mainstream of the law, and by the 1970s a new body of neoclassical law was dominant. Part II describes the changes already adopted and currently proposed in contract, tort, and property law-the un-making of neoclassical law-and the distinctive structure and method of the classical revival. In contract law, the classical revival aims to reinstate the principle that courts should simply enforce the contracts people make, through formalistic rules of formation and interpretation, and should not impose terms or evaluate the fairness of bargains. In tort, the revival seeks to restore corrective justice based on fault as the prime objective by rolling back the generalization of liability for negligence, narrowing products liability, and reducing the scope of compensatory and punitive damages. In property, the revival focuses on expanding the law of takings to limit the ability of the government to regulate property owners in pursuit of the common good. All the individual changes fit within a broader structure in which the boundaries among contract, tort, and property are sharply defined, the market-focused subjects (contract and property) are primary, and a revived formalist method is prescribed for judicial decision. The conclusion synthesizes the ideology of law, market, and society that animates the classical revival, and situates the common-law changes in their contemporary political context. The classical revival represents an attempt to resuscitate the long-discredited ideas of classical legal thought. This remarkable fact is best understood in this context: The unmaking of the common law is part of the effort by conservatives and business interests to elevate the market and diminish the government.

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