In most studies of the early twentieth-century emergence of a modern conception of law in America, the formation of the American Law Institute in 1923 is not highlighted. One might point to academic literature advocating a “sociological” approach to judicial decision making, or a behavioralist approach to the work of judges, or the reorganization of law school casebooks to include “functional” legal categories or social science materials. One might unpack the work of an early twentieth-century lawyer, or even a judge, and find a jurisprudential perspective that could be labeled modernist. Finally, one might note the appearance of litigation strategies—encapsulated in the term “Brandeis brief”—designed to incorporate into case decisions arguments that legal rules should reflect their social context. But one would not associate the arrival of modernist jurisprudence in America with the early history of an organization of elite lawyers and judges whose stated purpose was to commission “restatements” of black-letter common law rules.

Two of the most significant factors in the development of European nation states are the enforcement of the law and the political relationship between central government and the provinces. The establishment of powerful national institutions in the Middle Ages, the successful incorporation of its geographical fringes, and the involvement of local elites in implementing national law and policies have made England a challenging subject to test this interaction between the center and the localities. Although this relationship could never be free of tensions, reflection on the context of the English Civil War has suggested a new interpretation. Pursuing the inquiries initiated by the so-called “gentry controversy” in the 1950s and 1960s, a group of historians has studied individual counties and argued that, for local aristocrats and gentlemen, provincial values and issues took precedence over national policies. The Civil War, in their view, appeared to be a conflict between an increasingly interventionist and “nationalizing” central government and semiautonomous shires.

At the time of the Reformation in the 1560s Scotland and the Netherlands already had long-established commercial links. Scots soldiers fought in the wars that ravaged the Low Countries and much of northern Europe in the two centuries after Calvinism gained a foothold. Goods, people, and ideas were readily exchanged in the North Sea basin. With the foundation in 1575 of the avowedly Protestant University of Leiden, academic and intellectual intercourse were added to trading ties. By the mid-seventeenth century Leiden had an international reputation for legal and medical education. Expatriate Protestant churches were established in the early seventeenth century, notably the Scots kirk, Rotterdam. There were nineteen English and Scottish religious communities in the Dutch Republic by the end of the seventeenth century.

Ever since the official promulgation of the judicial reform statutes of 1864 in late imperial Russia, a scholarly commonplace has been the reform's contribution to the remarkable emergence of several generations of brilliant Russian trial lawyers and an internationally famous tradition of outstanding judicial oratory during the half-century preceding the Bolshevik revolution. This impressive display of judicial learning and courtroom artistry occurred in the context of Western-style trial by jury, the reform's most daring innovation. Introduced in 1866 after two years of energetic preparation, Russia's system of trial by jury bequeathed to scholars the most powerful emblem of the post-1864 Russian legal order: the courtroom confrontation between the defense attorney (zashchitnik) and the state's prosecutorial agent, the procurator (prokuror). In this judicial clash, the defense counsel has represented the eloquent, keen-witted, Western-educated champion of the individual and even the “defender of public interests.” The procuratorial representative has come to embody the interests of a regime whose relentless and often undisguised statism belied the reform statutes' open proclamation of the principles of legality and the “rule of law.”

In the wake of the demolition of the Berlin Wall and the erection of the Maastricht Treaty, intense debate rages over all factors contributing to both unity and diversity in Europe. While issues circulating around markets, currency, and national sovereignty receive greater play in the media, the discussion of parallel issues of European legal unity has been more longstanding. The case can be made that Europe (with the exception of England) has long had a great degree of legal unity. The Roman civil law and the canon law of the church, with some texts of feudal law, became a common learned law, the ius commune, developed and disseminated in the universities in the Middle Ages. This written legal heritage spread from Italian schools, beginning with Bologna, and was “received” in Germany, France, Spain, and even Scotland in the course of the sixteenth century. It was displaced finally with nineteenth-century codifications of national law, which strove to enshrine the legislatively enunciated genius and uniqueness of the nation.

Morton Horwitz once posed the question, “Law and Economics: Science or Politics?” highlighting what has been a contentious issue for legal historians and the general legal academic community. A common historical accounting for the emergence of the law and neoclassical economics movement is that it provided theoretical ammunition for right-of-center politics following the collapse of 1960s progressive politics. Simultaneously, it has been viewed as a continuation of the legal realist moment and a response to the need for a scientific foundation for private law. In short, the consensus seems to be that law and neoclassical economics is about either science or politics. Little thought has been given, however, to its political and scientific formation and, in particular, to how the two in fact intersect. This article attempts to remedy the situation.

Over the last decade special attention has been accorded to the development of the trial jury. Historians have examined, within the context of the administration of justice and across a broad chronological span, the shifting character of English juries. Thomas Green himself has contributed much to our understanding of medieval jury behavior by synthesizing his own and existing research to form a useful working hypothesis and by highlighting in particular the practice of jury nullification. Yet there are still areas, particularly in the medieval period, that lack adequate definition and would benefit from the close attention afforded by more specific studies ranging over a limited time frame.

I have been invited, and consider it a privilege, to comment briefly on James Hackney's article, Law and Neoclassical Economics. Perhaps it is unnecessary to remark that the article is both engaging and original. Not only does its quality speak for itself, but Hackney is not unforthcoming in speaking for himself. His in-depth and nuanced historical examination of law and neoclassical economics, he tells us, is the first to discuss the intellectual and political backdrop that facilitated law and neoclassical economics' rise to prominence and the first detailed exploration of how law and neoclassical economics as a field of study displaced pragmatic instrumentalist strands in legal theory. Hackney, clearly, could hardly be said to be unaware of the notion of product-differentiation.

I will summarize my reactions to Hackney's article, then elaborate on them. First, the paper mistakenly interprets an analytical categorization used by modern economists distinguishing efficiency and distribution issues as a politically biased convention. Second, it fails to appreciate a crucial distinction between prices or incentives as motivating devices and compensation to victims or aggrieved parties as a form of social redistribution. Finally, it misreads the intellectual history of the modern law and economics movement. Far from being a byproduct of an antistatist academic economics establishment, law and economics began as an eccentric subfield of economics, cut off from the discipline's postwar mainstream.

James Hackney's article provocatively points our attention to very important and underexplored issues concerning the interplay of science and politics in the dramatic evolution of law and neoclassical economics since the Second World War. At the heart of his article is his rejection of any reductionist interpretation of the leading developments in this area. Modern law and neoclassical economics, he argues, cannot be accurately viewed either as merely a faithful, nonpoliticized application of modern social science or, alternatively, as simply a convenient vehicle for the promotion of particular contentious political beliefs. Hackney insists that law and neoclassical economics, both in general and in the specific doctrinal area he emphasizes, is about both science and politics. His article seeks to demonstrate this duality and, more broadly, to clarify the general nature and evolution of modern law and economics. Hackney highlights key general characteristics of twentieth-century intellectual thought and examines the influence of those characteristics, as well as the interplay between science and politics, in a series of landmark works on law and economics that have great relevance to recent debates over appropriate products liability standards.