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Abstract:
At the end of the nineteenth century, the American legal community engaged in an impassioned debate about whether the substantive common law should be codified. The American codifiers, like their civil law counterparts in Europe, sought to make the law largely judge proof by reducing the function of courts to the nondiscretionary application of clearly stated statutory principles and rules. By contrast, codification opponents, led by James Coolidge Carter, fought to preserve the centrality of courts in the American legal system. In light of the influential scholarship portraying Gilded Age law as dominated by Langdellian classical legal thought, one might think that these defenders of the common law valued judges' ability to construct a conceptually ordered legal structure and logically deduce the answers to cases from general principles. In fact, however, the leading codification opponents did not portray common law judging as a formal, mechanical, and amoral process, for these were the very characteristics of codification that they condemned. Instead, these practitioner-jurists praised the common law as a system that, unlike codification, permitted judges to decide each case fairly according to its particular facts. The anticodifiers' portrait of common law decision making thus bore little resemblance to the soulless deductive reasoning often thought to characterize the era. Anticodification literature depicted judging primarily as an exercise in ethics. Moreover, it stressed the indeterminacy of rules and the fact-specificity of justice in a way that anticipated legal realism. The article explores the heretofore unexamined similarity between late nineteenth-century anticodification jurisprudence and twentieth-century legal realist jurisprudence, and, finally, suggests that both reflected a practice-oriented ethos.

Codification, Carter, Field, Langdell

Abstract:
An entry in the forthcoming Oxford Encylopedia of Legal History (Stanley Katz ed.).

Codification, Codes

Abstract:
This article explores the development and interaction of the legal and cultural categories food and drug from the late nineteenth century to the present. It is based not only on legal and historical research, but also on theories of category formation from the fields of linguistics and psychology.

The scope of the Food and Drug Administration's power is defined primarily by the list of product categories over which it has jurisdiction. The statutory definitions of these categories (food, drug, cosmetic, device, and human biological product) thus delineate the outer boundaries of the arena within which the agency operates. The definitions are also important because the FDA has different degrees of power over different categories of products. The category to which the FDA assigns a product thus largely controls the shape of the regulatory regime the agency will impose on it.

The statutory definitions of these product categories are, for the most part, ambiguous and plastic, providing the agency with great regulatory flexibility. But while Congress and the courts have granted the FDA wide discretion, it does not follow that the agency is free to interpret the definitions however it chooses. The effective power of lawmakers to establish legal categories is significantly constrained by preexisting cultural understandings of these categories. Food and drug, the categories whose development and interaction I explore in this article, are not only the oldest defined product classes in federal food and drug law, but also fundamental cultural concepts. I demonstrate that FDA, as well as Congress and the courts, have operated within a constraining cultural matrix that has limited their freedom to impose their preferred understandings of these categories on American society.

Nonetheless, my research also provides ample evidence that lawmakers have had substantial power to mold the legal categories of food and drug so as to advance their desired policies. One explanation for this regulatory flexibility in the face of deep-seated cultural conceptions is the indeterminate nature of extralegal notions of food and drug. The terms, as commonly understood, embrace nebulous, overlapping, and constantly evolving realms. Moreover, the relationship between culture and law has not been a one-way street with respect to these categories. Although the regulatory apparatus has always had to take into account the extralegal understandings of food and drug, the law in turn has exerted significant influence over their meaning in broader culture.

Food, Drug, FDA, Categories

Abstract:
James Coolidge Carter (1828-1905) was perhaps the most respected appellate advocate in the country at the end of the nineteenth century. He argued approximately three dozen matters before the Supreme Court, including some of the most significant cases of the Gilded Age. This essay, prepared for a forthcoming festschrift in honor of Morton Horwitz to be published by Harvard University Press, focuses on Carter's advocacy in three Supreme Court cases: U.S. v. Trans-Missouri Freight Association (1897) and U.S. v. Joint Traffic Association (1898), a pair of important early interpretations of the Sherman Antitrust Act, and Smyth v. Ames (1898), the decision that established substantive due process limits on legislative rate-setting. As a lawyer for the railroads in these matters, Carter voiced seemingly inconsistent views regarding the beneficence of the free market. One the one hand, his arguments in the antitrust cases were premised on the assertion that rate wars destructive to railroads inevitably arose in the absence of regulation. On the other hand, in Smyth, he maintained that a freely competitive system invariably resulted in railroad rates that were fair to shippers. While Carter obviously shaped his arguments to serve the particular needs of his clients, this tension also reflected an authentic ambivalence about the benefits of competition shared by many elite Gilded Age thinkers. Carter's briefs were representative of a political economy that emphasized both classical free market principles and the limits on those principles necessitated by late-nineteenth-century developments.

James Coolidge Carter, Trans-Missouri, Joint Traffic, Smyth v. Ames, Sherman Act, Antitrust, Substantive Due Process

Abstract:
This chapter, new in the third edition, concerns how Congress, the Food and Drug Administration, and the courts have treated the definitions of "food," "drug," "cosmetic," "device," and "human biological product." The scope of FDA's power is delineated almost entirely by the list of product categories over which it has jurisdiction. As the materials in this chapter show, the product definitions are strikingly broad and thus confer jurisdiction over a vast range of goods. Furthermore, the definitions are remarkably plastic, providing FDA with great flexibility to decide whether and how to regulate products. Sometimes FDA has interpreted the definitions expansively, so as to expand its power. On other occasions, the agency has construed the definitions narrowly, so as to avoid taking responsibility for products it does not want to regulate or to minimize the burdensomeness of the requirements it does impose.

Food, Drug, Cosmetic, Device, Tobacco, Categories, Definitions, FDA

Abstract:
In Roscoe Pound's scathing 1909 review of Law: Its Origin, Growth and Function, American jurist James Coolidge Carter's magnum opus, Pound asserted that Carter's conception of law "comes from Savigny through Sir Henry Maine." Frederich Karl von Savigny and Sir Henry Maine were the most prominent representatives of the German and English historical schools of jurisprudence, respectively. For his part, Carter was the leading representative of historical jurisprudence in the United States.

Other scholars, following Pound, have similarly linked Carter to Savigny and Maine, especially to the former. Moreover, various authors have noted the great effect these European jurists had on American legal thought in general in the late nineteenth century. However, few studies have closely analyzed the impact Savigny and Maine had on Carter or other particular American legal thinkers. Because Carter's perceived debt to these giants of jurisprudence has significantly influenced how others have viewed him, and American historical jurisprudence generally, it is important to examine the precise extent and nature of this debt.

This working paper argues that Carter did not simply borrow his jurisprudence from Savigny and Maine, but rather conceived it largely on his own. The paper then explores how Pound's mistaken assumption that Carter's thought was essentially equivalent to Savigny's led him to paint an influential but flawed portrait of Carter as a rigidly logical jurist in the natural law tradition. By pigeonholing Carter as a Savigny-inspired "metaphysical historical jurist," Pound blinded himself to various ways in which Carter's thought was actually compatible with his own "sociological" approach.

James Coolidge Carter, Savigny, Henry Maine, historical jurisprudence

Abstract:
This essay explores why California, almost alone among states, embraced codification of the substantive common law in the late nineteenth century.

California, codification, Pomeroy

Abstract:
An entry in the forthcoming Yale Biographical Dictionary of American Law (Roger K. Newman ed.).

Pomeroy

Abstract:
This article examines the thought of James Coolidge Carter, a leading legal theorist, practicing attorney, and political reformer of the Gilded Age, most famous for his resistance to codification. Carter, like many elite legal figures in the late nineteenth century, belonged to the genteel urban political culture known as the Mugwumps. I show how Carter's suspicion of legislators, his faith in courts, his equation of the common law with custom, and his condemnation of legislation inconsistent with custom, reflected his Mugwump world view. I also explore how Carter, like other Mugwumps, struggled to accommodate traditional modes of thought to the challenges of modernity. This struggle explains the precarious synthesis of apparently inconsistent elements in his jurisprudence. For example, Carter clung to a core of beliefs he inherited from the antebellum Whigs even as developments in the decades after the Civil War led him to embrace positions characteristic of the Jacksonians. He merged a traditional faith in timeless, objective moral principles with a more modern vision of evolving customary norms. I conclude by discussing an additional tension in Carter's thought; despite the antilegislative crux of his jurisprudence, he increasingly acknowledged the need for positive government in an urban and industrial society.

Mugwump, James Coolidge Carter, James C. Carter, Carter, codification, custom, "historical jurisprudence"

Abstract:
Following the United States' acquisition of California under the 1848 Treaty of Guadalupe-Hidalgo, Congress passed "An Act to ascertain and settle the private Land Claims in the State of California." This statute established a commission to determine the status of the approximately 750 land grants that Spanish and Mexican authorities had made to private individuals before 1848. Congress provided that the commission and courts should evaluate the validity of the grants by, among other criteria, "the laws, usages, and customs of the government from which the claim is derived, the principles of equity, and the decisions of the Supreme Court of the United States." The act thus generated a critical tension between the American and Mexican approaches to the law of land grants. American law in this area was precise and meticulous, demanding strict compliance with written requirements. By contrast, Spanish and Mexican officials generally did not treat written law with the same degree of sanctity as their American counterparts, instead relying heavily on customary law. The conflict between law and custom in the determination of ownership of the California land grants was further complicated by the fact that Mexican customs, developed over years of slow growth and minimal pressure on resources, seemed anachronistic after the discovery of gold in California in 1848 and the consequent rise in population and land values. This article explores how these cultural and temporal tensions played out in the important dispute concerning the ownership of a grant claimed by John C. Fremont--a dispute ultimately resolved in Fremont's favor by the United States Supreme Court in 1854.

Mexico, land grant, Fremont, California,