Monday, February 3, 2014

Orth, "'The Release of Energy': Reflections on a Legal History Trope"

Via Al Brophy at the Faculty Lounge, we have word of a recently published essay by John V. Orth (University of North Carolina). "'The Release of Energy': Reflections on a Legal History Trope" appears in Volume 34 of the Adelaide Law Review (2013). Here's the abstract:
Historians of American law, particularly of American law in the nineteenth century, often summarise its development with the phrase ‘the release of energy’. This paper traces the prevalence of that trope and compares it with AV Dicey’s influential periodisation of English legal history. In Dicey’s uncomplicated view, Tory repression yielded to the logic of Liberal Benthamism, which swept away statutory ‘restraints on individual liberty’, until at last Socialism subordinated the individual to the state. If energy could be released in nineteenth century England by the repeal of statutes, in contemporary America, its release required an ill-assorted pairing of laissez-faire judicial doctrines with legislation that subsidised desired behavior. The story was further complicated in America by federalism, which contributed to competition among states for the most attractive (from one point of view or another) set of legal rules, derogatively known as ‘the race to the bottom’. Of course, ‘the release energy’ can equally describe legislative programs less likely to appeal to Victorian values, as illustrated by the permissive culture of modern-day Las Vegas, the product of the repeal of restrictive social legislation.