Un-Making Law: The Classical Revival in the Common Law

59 Pages Posted: 31 Aug 2004


The common law - the law of contracts, torts, and property - is in the throes of a potentially remarkable transformation. The transformation is pervasive; many changes already have been adopted, and more are in process and proposed. If they all come to pass, the law will have experienced a once-in-a-century remaking. More precisely, we may be observing the un-making of law, as the principal common law developments of the twentieth century are rolled back. In this sense, the changes are both radical and regressive, representing a classical revival, instituting in the twenty-first century common law a barely updated version of the classical law which reigned in the Gilded Age at the end of the nineteenth century. Even more broadly, the changes in the law and the vision that animates them are part of a more general transformation of American government and society.

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, beginning with the rise of classical legal thought and culminating in the 1960s and 1970s with the maturation of neoclassical law in response to the critique of classicism. Part II describes the changes already adopted and currently proposed in contract, tort, and property law, and the distinctive structure and method of the classical revival. 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.

Keywords: Contract law, tort law, property law, conservatism, legal history, common law, private law

JEL Classification: K10, K11, K12, K13

Suggested Citation

Feinman, Jay M., Un-Making Law: The Classical Revival in the Common Law. Available at SSRN: https://ssrn.com/abstract=583303

Jay M. Feinman (Contact Author)

Rutgers Law School ( email )

Newark, NJ
United States
856-225-6367 (Phone)

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