B004E3WO62 EBOK

by Morton J. Horwitz

  66. 2 W. NEWHOUSE, CONSTITUTIONAL UNIFORMITY AND EQUALITY IN STATE TAXATION 1702-7 (2d. ed., William S. Hein 1984).

  67. Id. at 1709-11.

  68. T. COOLEY, supra note 63, at iv.

  69. Id. at 125.

  70. Id. at 127-28.

  71. Id. at 128.

  72. Id. at 2.

  73. Id. at iv.

  74. Id. at 20.

  75. Id. at 178 (quoting Lexington v. McQuillan's Heirs, 39 Ky. (9 Dana) 513, 516 (1839)) (emphasis retained).

  76. Corwin, The Basic Doctrine of American Constitutional Law, 12 MICH. L. REV. 247 (1914).

  77. T. COOLEY, supra note 63, at 178 (quoting Lexington v. McQuillan's Heirs, 39 Ky. (9 Dana) at 517).

  78. Washington Avenue, 69 Pa. 352, 363 (1871).

  79. Id. at 364.

  8o. For an elaborate discussion of the municipal bond cases, see C. FAIRMAN, supra note 15.

  81. See Loan Association v. Topeka, 87 U.S. (20 Wall.) 655 (1874) (Miller, J.); People v. Salem, 20 Mich. 452 (1870) (Cooley, N. See also M. KELLER, supra note 61, at 32930.

  82. See M. HORWITZ, supra note 2, at 259-61.

  83. 87 U.S. (2o Wall.) 655, 664 (1874).

  84. See L. HARTZ, ECONOMIC POLICY AND DEMOCRATIC THOUGHT: PENNSYLVANIA, 1776- 186o (Harvard Univ. Press 1948); Jones, Thomas M. Cooley and "Laissez-Faire Constitutionalism": A Reconsideration, 53 J. A. HIST. 751 (1967); McCurdy, Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863-1897, 61 J. AM. HIST. 970 (1975).

  85. 83 U.S. (16 Wall.) 36 (1873)•

  86. 198 U.S. 45 (1905).

  87. 87 U.S. (20 Wall.) 655 (1874). A diversity case is one in which the plaintiff and defendant come from different states; it may be brought in federal court.

  88. Id. at 664.

  89. Davidson v. New Orleans, 96 U.S. 97 (1877).

  90. Santa Clara v. Southern Pac. R.R. Co., 18 F. 385 (C.C.D. Cal. 1883), aff'd., 118 U.S. 394 (1886); Railroad Tax Cases, 13 F. 722 (C. C. D. Cal. 1882), writ dism'd sub nom. San Mateo County v. Southern Pac. R.R. Co., 116 U.S. 138 (1885).

  91. Railroad Tax Cases, 13 F. 722, 733 (C.C.D. Cal. 1882).

  92. Id. at 734.

  93. See supra note 9o.

  94. 157 U.S. 429 (1895)-

  95. See infra ch. 5.

  96. See, e.g., A. PAUL, CONSERVATIVE CRISIS AND THE RULE OF LAW: ATTITUDES OF BAR AND BENCH, 1887-1895, at 2, 219-20 (Cornell Univ. Press 1960); S. FINE, LAISSEZ FAIRE AND THE GENERAL-WELFARE STATE 126-64 (Univ. of Michigan Press 1956); C. JACOBS, LAW WRITERS AND THE COURTS 85-93 (Univ. of California Press 1954); B. Twiss, LAWYERS AND THE CONSTITUTION (Princeton Univ. Press 1942).

  97. Id. at 166-70.

  98. Dillon, Property-Its Rights and Duties in Our Legal and Social Systems, 29 AM. L. REV. 161, 162-63 (1895).

  99. Id. at 172.

  roo. Id.

  101. Id.

  102. Id. at 172-73.

  103. Id. at 173.

  104. Id.

  1o5. Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 532 (1895).

  1o6. Id. at 504 (emphasis retained).

  107. Id. at 586-6o8 (Field J., concurring).

  1o8. See J. SCHUMPETER, The Decline of Liberalism, in HISTORY OF ECONOMIC ANALYSIS 759-71 (Oxford Univ. Press 1954).

  109. 61 Mass. (7 Cush.) 53 (1851). See L. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW 247-54 (Harvard Univ. Press 1957).

  11o. See infra ch. 3.

  111. 3 W. BLACKSTONE, COMMENTARIES *219, cited in M. HORWITZ, supra note 2, at 76-77.

  112. A striking exception is the "reasonable use" doctrine that had triumphed in water law by 1850. See M. HORwITZ, supra note z, at 34-42.

  113. See Bone, Normative Theory and Legal Doctrine in American Nuisance Law: 1850 to 1920, 59 S. CAL. L. REV. 1101 (1986).

  114. See Bohlen, The Rule in Rylands Y. Fletcher, 59 U. PA. L. REV. 298 (1911).

  115. See Kurtz, supra note 53.

  116. 94 U.S. 113 (1876).

  1 17. See J. GUSFIELD, SYMBOLIC CRUSADE: STATUS POLITICS AND THE AMERICAN TEMPERANCE MOVEMENT (Univ. of Illinois Press 1963); 1. TYRRELL, SOBERING UP: FROM TEMPERANCE TO PROHIBITION IN ANTEBELLUM AMERICA, i8oo-i86o (Greenwood Press 1979).

  118. See M. KELLER, supra note 61, at 412-13.

  119. 123 U. S. 623 (1887).

  120. The famous Wynehamer case in New York does not contradict this view. Wynehamer v. People, 13 N.Y. 378 (1856). There the court refused to uphold a criminal conviction under a state prohibition statute for a sale of liquor prior to the passage of the statute while it freely conceded that the statute would apply to a subsequent sale.

  1z1. See Powell v. Pennsylvania, 127 U.S. 678 (1888).

  122. 83 U.S. (16 Wall.) 36 (1873)-

  123. T. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (Little, Brown 1868).

  124. Id. at 577.

  125. 198 U.S. 45 (1905)•

  126. Id. at 6o.

  127. Id. at 59.

  Chapter 2

  1. 198 U.S. 45 (1905)-

  2. See L. FRIEDMAN, CONTRACT LAW IN AMERICA 184-94 (Univ. of Wisconsin Press 1965).

  3. Pound, Liberty of Contract, 18 YALE L.J. 454 (1909).

  4. Actually, Pound begins with a statement by justice Harlan in Adair v. United States, 208 U.S. 161, 174-75 (1908):

  The right of a person to sell his labor upon such terms as he deems proper is, in its essence, the same as the right of the purchaser of labor to prescribe the conditions upon which he will accept such labor from the person offering to sell it. So the right of the employee to quit the service of the employer, for whatever reason, is the same as the right of the employer, for whatever reason, to dispense with the service of such employee. . . . In all such particulars the employer and the employee have equality of right, and any legislation that disturbs that equality is an arbitrary interference with the liberty of contract, which no government can legally justify in a free land.

  Quoted in Pound, supra note 3, at 454.

  5. Id.

  6. Id. at 455-

  7. Id.

  8. Id. at 454, 457.

  9. Id. at 464.

  lo. Id. at 460-61.

  i i. See M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 197zoi (Harvard Univ. Press 1977).

  12. Corbin, Offer and Acceptance, and Some of the Resulting Legal Relations, 26 YALE L.J. 16q, zo6 (1917).

  13. See R. WIEBE, THE SEARCH FOR ORDER (Hill & Wang 1967).

  14. See infra ch. 4.

  15. Holmes, Codes, and the Arrangement of the Law, 5 AM. L. REV. 1, 11 (1870).

  16. W. KEENER, A TREATISE ON THE LAW OF QUASI-CONTRACTS (Baker, Voorhis 1893).

  17. See id. at 3-25.

  18. See M. HORWITZ, supra note 11, at 184-85.

  19. O. W. HOLMES, THE COMMON LAW (1st ed., Little, Brown 1881).

  20. Id. at 302-3. This runs parallel to my assertion in chapter 4, infra, that objectiv ism in tort law was for a long time not regarded as in conflict with, but as a supplement to, the principle of negligence.

  21. M. HOWE, JUSTICE OLIVER WENDELL HOLMES: THE PROVING YEARS, 1870-1882, at 241 (Harvard Univ. Press 1963).

  22. Id. at 245•

  23. Id. at 242.

  24. Id. Another continuing source of ambiguity can be found in the frequent assertion of Holmes that only external behavior can provide evidence of internal mental states. It is thereby possible to reduce his claim to one about the "best evidence." For example, Professor Howe writes: "The second edition of Holland's influential Elements of Jurisprudence, published after its author had read The Common Law, repudiated the subjective or will theory of contract liability and urged that in the field of contracts, as elsewhere, the law looks, not at the will itself, but at the will as voluntarily manifested." Id. at 246. 1 do not regard this as a strong repudiation of the will theory. Compare Theophilus Parsons's stronger statement in his 1855 cont
racts treatise: "[T]he rules of law as well as the rules of language may interfere to prevent a construction in accordance with the intent of the parties." 2 T. PARSONS, THE LAW OF CONTRACTS 6-9 (1st ed., Little, Brown 1855).

  25. O. W. HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 181 (Harcourt, Brace & Howe 1920).

  26. 1 am uncertain, after all, whether, as Professor Howe asserts, Holmes had already completely recognized this point in The Common Law. In terms of the reception of his ideas, however, I am convinced that the statement in "The Path of the Law" marks the moment at which objectivism is generally understood to be incompatible with a will theory of contract.

  27. Ashley, Mutual Assent in Contract, 3 COLUM. L. REV. 71 (1903) [hereafter Ashley, Mutual Assent]; Ashley, Should There Be Freedom of Contract? 4 COLUM. L. REV. 423, 427 (1904) [hereafter Ashley, Freedom of Contract].

  28. Ashley, Freedom of Contract, supra note 27, at 424.

  29. Id.

  30. Ashley, Mutual Assent, supra note 27, at 78.

  31. Costigan, Constructive Contracts, 19 GREEN BAG 512, 513 (1907).

  32. Id.

  33. For another example, see id. at 512-13, criticizing confusion of categories in Cook, Agency by Estoppel, 5 COLUM. L. REV. 36 (1905).

  34. J. STORY, COMMENTARIES ON THE LAw OF AGENCY (1st ed., Little & Brown 1839).

  35. Indeed, Story used the terms interchangeably. The "principal" is liable for his "agent's" torts, Story wrote, "although the principal did not authorize, or justify, or participate in, or, indeed, know of such misconduct, or even if he forbade them, or disapproved of them." Id. 1452, at 465. The rule of respondeat superior "is founded upon public policy and convenience. . . . In every such case, the principal holds out his agent as competent, and fit to be trusted; and thereby, in effect, he warrants his fidelity and good conduct in all the matters of the agency." Id. S 452, at 465-66.

  36. "The whole doctrine rests on the maxim . . . qui facit per alium, facit per se; and it is a plain and obvious dictate of natural justice, that he, who is to receive the benefit, shall bear the burden; and that he, who has acquired, through his agent, certain fixed rights and remedies upon the contract against the other contracting party, shall be placed in a position of entire reciprocity in regard to the latter." Id. S 442, at 450-51.

  37. See Holmes, Agency (pts. 1 & 2), 4 HARV. L. REV. 345, 5 HARV. L. REV. 1 (1891).

  38. J. STORY, supra note 34, S 126, at 115.

  39. Id. S 131, at 121.

  40. A. CHANDLER, THE VISIBLE HAND: THE MANAGERIAL REVOLUTION IN AMERICAN BUSINESS 15 (Harvard Univ. Press 1977).

  41. Id. at zo.

  42. J. STORY, supra note 34, S 127, at 117 n. l.

  43. Id. S 443, at 451.

  44. Id.

  45. Id. S 133, at 123.

  46. A. CHANDLER, supra note 40, at 14.

  47. Id. at 15.

  48. See Wigmore, Responsibility for Tortious Acts: Its History (pt. 2), 7 HARV. L. REV. 383 (1894).

  49. See i W. CLARK & H. SKYLES, TREATISE ON THE LAW OF AGENCY 1085-89 (KeefeDavidson 1905); F. MECHEM, TREATISE ON THE LAW OF AGENCY S 740, at 577 (Callaghan 1889). Of the American cases cited by Mechem and Clark & Skyles, two were decided in the 1850s, five in the 186os, fifteen in the 1870s, eleven in the 188os, and seven in the 189os.

  Perhaps, however, the formerly subjective command requirement had itself only been objectivized as courts created the new category of "independent contractor" whose torts did not result in vicarious liability for his employer. The judicial justification of the distinction between servants and independent contractors thus tended to replicate the older emphasis on the extent of the master's command and control. In any event, once one was found to be a servant, the question of command entirely dropped out.

  50. Holmes, supra note 37.

  51. F. WHARTON, COMMENTARY ON THE LAW OF AGENCY AND AGENTS (Kay & Brother 1876).

  52. Mechanics' Bank v. New York & N.H.R.R., 13 N.Y. 599, 632 (1856) (Comstock, J.).

  53. 1 T. PARSONS, THE LAW OF CONTRACTS 44 (5th ed., Little, Brown 1864).

  54. Pole v. Leask, 33 L.J. 155, 162 (1863) Ch. (Lord Cranworth), quoted in F. WHARTON, supra note 51, S 459, at 299.

  55. F. WHARTON, supra note 51, S 19, at 15-16.

  56. W. ANSON, PRINCIPLES OF THE ENGLISH LAW OF CONTRACT Vii (6th ed., Oxford Univ. Press 1891).

  57. F. WHARTON, supra note 51, S 122, at 75, 77.

  58. See Farmers & Mechanics' Bank v. Butchers & Drovers' Bank, 16 N.Y. 125 (1857); Griswold v. Haven, 25 N.Y. 595 (1862).

  59. New York & N. H. R. R. v. Schuyler, 34 N.Y. 30, 69 (1865).

  6o. Griswold v. Haven, 25 N.Y. 595, 599 (1862).

  61. Mechanics' Bank v. New York & N.H.R.R., 13 N.Y. 599, 634 (1856).

  62. Id.

  63. See i T. PARSONS, THE LAW OF CONTRACTS 43 (3d ed., Little, Brown 1857); 1 T. PARSONS, THE LAW OF CONTRACTS 46 (6th ed., Little, Brown 1873).

  64. New York & N.H.R.R. v. Schuyler, 34 N.Y. 30, 70 (1865).

  65. Griswold v. Haven, 25 N.Y. 599, 6oo (1862).

  66. Corbin, Ratification in Agency Without Knowledge of Material Facts, 15 YALE L.J. 331 (1906).

  67. Ames, Undisclosed Principal-His Rights and Liabilities, YALE L.J. 443 (19o6).

  68. J. H. BEALE, A Summary of the Conflict of Laws, in 3 A SELECTION OF CASES ON THE CONFLICT OF LAWS S 92, at 542 (Harvard Law Review Publishing Association 1902).

  69. See S. GREENLEAF, TREATISE ON THE LAW OF EVIDENCE (3 vols., Little & Brown 1842-1853); W. STORY, TREATISE ON THE LAW OF CONTRACTS NOT UNDER SEAL (Little & Brown 1844). As early as the 1840s, both W. W. Story in his treatise on contracts and Simon Greenleaf in his treatise on evidence had maintained that all implied contracts were actually proven on the basis of inferences from the parties' behavior. Thus, there were no implied-in-law contracts; all contractual obligation was derived from the parties' wills. But the elaborate development of implied-in-law contracts beginning in the 185os eventually left no doubt that all implied contracts could not be grounded in the parties' wills. See M. HORWITZ, supra note 11, at 185.

  70. Cook, supra note 33, at 38.

  71. The major paths through which the doctrine of apparent authority developed were cases in which courts imputed authority from the course of business dealings. See Whitney, Agency Imputed from "Course of Business," 3 COLUM. L. REV. 395 (1903). Whitney protested this development, which he traced back to a dictum in Martin v. Webb, 11o U.S. 7 (1884). "'T'here is nothing contractual about it," he complained. Whitney, supra, at 400. The doctrine had originally developed in cases against banks that gave credit.

  72. Cook, supra note 33, at 40.

  73. Id.

  74. Costigan, supra note 31, at 513-15.

  75. See C. GILMORE, THE DEATH OF CONTRACT (Ohio State Univ. Press 1974); P. ATIYAH, THE RISE AND FALL OF FREEDOM OF CONTRACT (Oxford Univ. Press 1979).

  76. Ames, supra note 67, at 443; Lewis, The Liability of the Undisclosed Prinicpal in Contract, 9 COLUM. L. REV. 116 (1909).

  77. Lewis, supra note 76, at 135.

  78. O. W. HOI.MFS, supra note 25, at 181.

  79. Corbin's earliest writing was his alumni address at the University of Kansas, his alma mater, in 1906. "We should have no tendency to be overcome by the glamour of the Eastern universities or of the larger universities. A school is not to be judged by its size or by its age or by its money or by its geographical location or by its assumption of learning." Corbin, The Almnus and the Law, 32 U. KAN. L. REV, 763, 764 (1984). There was also an expression of the frontier's influence on the spirit of equality. "I am here to argue for democracy in education and for democracy in thought. Without blinding himself to the value of what he has, the alumnus must cease to be an intellectual aristocrat and become an intellectual democrat." Id. at 766. See also Jerry, Arthur L. Corbin: His Kansas Connection, 32 U. KAN. L. REV. 753 (1984); C. E. WHITE, EASTERN ESTABLISHMENT AND THE WESTERN EXPERIENCE (Yale Univ. Press 1968).

  8o. Dean Christopher Columbus Langdell of Harvard Law School
was one of the most prominent examples in law of what Peter Novick has called the "conservative evolutionism" of late-nineteenth-century American thought. P. NOVICK, THAT NOBLE DREAM: THE "OBJECTIVITY QUESTION" AND THE AMERICAN HISTORICAL PROFESSION 8o-8i, 87 (Cambridge Univ. Press 1988). See Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1 (1983). On the relationship between Turner and Eastern conservatism, see R. HOFSTADTER, THE PROGRESSIVE HISTORIANS 65-70 (Knopf 1968) and Horwitz, History and Theory, 96 YALE L.J. 1825, 1826 (1987).

  81. J. DEWEY, The Influence of Darwinism on Philosophy, in 4 THE MIDDLE WORKS, 1899-1924, at 14 (J. Boydston ed., Southern Illinois Univ. Press 1977), cited in J. KLOP- PENBERG, UNCERTAIN VICTORY: SOCIAL DEMOCRACY AND PROGRESSIVISM IN EUROPEAN AND AMERICAN THOUGHT, 1870-1920, at to (Oxford Univ. Press 1986).

  8z. Corbin, Quasi-Contractual Obligations, 21 YALE L.J. 533, 543 (1912).

  83. Id. at 552.

  84. Corbin, Discharge of Contracts, 22 YALE L.J. 513, 515 (1913).

  85. Corbin, supra note iz, at 206.

  86. Corbin, Contracts for the Benefit of Third Persons, 27 YALE L.J. ioo8 (1918). See also Corbin, Does a Pre-Existing Duty Defeat Consideration?-Recent Noteworthy Decisions, 27 YALE L.J. 362 (1918), in which he criticizes the consideration doctrines that supposedly followed from the will theory. He congratulated Judge Benjamin N. Cardozo for his recent decision in DeCicco v. Schweizer, 221 N.Y. 431, 117 N.E. 807 (1917), calling it "a righteous decision." Corbin, Does a Pre-Existing Duty Defeat Consideration?, supra, at 381.

  87. Seavey, The Rationale of Agency, 2.9 YALE L.J. 859 (1920).

  88. Id. at 868.

  89. Id. at 878.

  9o. Id.

  91. Id. at 868.

  92. Id. at 884.

  93. See Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law, 14 J. LEGAL STUD. 461 (1985).

  94. See Laski, The Basis of Vicarious Liability, 26 YALE L.J. 105 (1916); Douglas, Vicarious Liability and the Administration of Risk, 38 YALE L.J. 584 (1928).

  95. F. BACON, Maxims of the Law, in 7 WORKS 307, 327 (J. Spedding, R. Ellis & D. Heath eds., Longman 1879).

  96. See M. HOWE, supra note 21, at 151.

  97. [Green] Proximate and Remote Cause, 4 AM. L. REV. 201, 211 (1870), reprinted in N. GREEN, ESSAYS AND NOTES ON THE LAW OF TORT AND CRIMES (J. Frank ed., Banta 1933).