Debating the Transformation of American Law: James Kent, Joseph Story, and the Legacy of the Revolution
Daniel J. Hulsebosch
New York University School of Law
The Transformation in American Legal History: Essays in the Honor of Morton J. Horwitz, 2008
NYU School of Law, Public Law Research Paper No. 08-44
Using a variety of sources, including recently discovered letters and notes in James Kent's law library, this essay will demonstrate that although Kent and Joseph Story agreed about the desirability of a strong Congress, an independent federal judiciary, and the need to control juries, they disagreed about the shape of each of these institutions. Together, these disagreements reveal not only the dynamism of American law in the early Republic - a conclusion consistent with Morton J. Horwitz's interpretation in his Transformation of American Law I - but also illuminate the indeterminacy of federal authority and the judicial power - findings that fit more comfortably with the premises and methods of Horwitz's Transformation of American Law II. In addition, their disagreements illustrate the quest for authoritative reasoning that defined post-revolutionary American legal culture and the intertextuality of its formative literature.
Number of Pages in PDF File: 28
Date posted: July 29, 2008 ; Last revised: July 22, 2015