The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement

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Law and economics is the leading intellectual movement in law today. This book examines the first great law and economics movement in the early part of the twentieth century through the work of one of its most original thinkers, Robert Hale. Beginning in the 1890s and continuing through the 1930s, progressive academics in law and economics mounted parallel assaults on free-market economic principles. They showed first that "private," unregulated economic relations were in fact determined by a state-imposed regime of property and contract rights. Second, they showed that the particular regime of rights that existed at that time was hard to square with any common-sense notions of social justice.

Today, Hale is best known among contemporary legal academics and philosophers for his groundbreaking writings on coercion and consent in market relations. The bulk of his writing, however, consisted of a critique of natural property rights. Taken together, these writings on coercion and property rights offer one of the most profound and elaborated critiques of libertarianism, far outshining the better-known efforts of Richard Ely and John R. Commons. In his writings on public utility regulation, Hale also made important contributions to a theory of just, market-based distribution.

This first, full-length study of Hale's work should be of interest to legal, economic, and intellectual historians.

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What People Are Saying

Cass R. Sunstein
By far the best work on the legal realist movement's attack on 'laissez-faire,' and one of the best demolitions, in law or political theory, of that contested concept. Not only an important contribution to the history of legal thought, this book stands on its own as a critique of the basic distinction between 'government' and 'market.'
Cass R. Sunstein, Law School, University of Chicago
Robert W. Gordon
Early in this century, orthodox statesmen and judges believed that government policies such as progressive taxation and regulation of labor contracts were coercive interferences with natural, and thus also Constitutional, rights of property and liberty. A small band of progressive lawyers and economists arose to challenge that orthodoxy. One of its leaders was Robert Lee Hale, who developed an especially piercing and sophisticated critique of libertarian ideas. In this path-breaking book--rigorous, clear-eyed, marvelously revealing--Barbara Fried unearths for a modern readership the legal-economic thought not only of Hale but of an entire generation of his progressive contemporaries, along with its roots in classical and institutional political economy. She dusts off and makes freshly available a critique of laissez-faire that is in many ways still as powerful--and, lamentably, as necessary--today as it was sixty to seventy years ago. Here are meticulous scholarship, complete mastery of both the underlying structure and the details of legal-economic thought, and above all a gift for explaining complicated ideas and bringing obscure historical figures into brilliant present focus. The Progressive Assault on Laissez-Faire is both an intellectual treasure and a real public service.
Robert W. Gordon, Yale Law School

By far the best work on the legal realist movement's attack on 'laissez-faire,' and one of the best demolitions, in law or political theory, of that contested concept. Not only an important contribution to the history of legal thought, this book stands on its own as a critique of the basic distinction between 'government' and 'market.'
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Product Details

  • ISBN-13: 9780674775275
  • Publisher: Harvard University Press
  • Publication date: 4/28/1998
  • Pages: 352
  • Product dimensions: 6.66 (w) x 9.54 (h) x 0.93 (d)

Meet the Author

Barbara H. Fried is Professor of Law at Stanford University Law School.

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Table of Contents



The Empty Idea of Liberty

The Empty Idea of Property Rights

A Rent-Theory World

Property Theory in Practice: Rate Regulation of Public Utilities




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