Rethinking the New Deal Court: The Structure of a Constitutional Revolution / Edition 1

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This book challenges the prevailing account of the Supreme Court of the New Deal era, which holds that in the spring of 1937 the Court suddenly abandoned jurisprudential positions it had staked out in such areas as substantive due process and commerce clause doctrine. In the conventional view, the impetus for such a dramatic reversal was provided by external political pressures manifested in FDR's landslide victory in the 1936 election, and by the subsequent Court-packing crisis. Author Barry Cushman, by contrast, discounts the role that political pressure played in securing this "constitutional revolution." Instead, he reorients study of the New Deal Court by focusing attention on the internal dynamics of doctrinal development and the role of New Dealers in seizing opportunities presented by doctrinal change.

Recasting this central story in American constitutional development as a chapter in the history of ideas rather than simply an episode in the history of politics, Cushman offers a thoroughly researched and carefully argued study that recharacterizes the mechanics by which laissez-faire constitutionalism unraveled and finally collapsed during FDR's reign. Identifying previously unseen connections between several different lines of doctrine, Rethinking the New Deal Court charts the manner in which Nebbia v. New York's abandonment of the distinction between public and private enterprise hastened the demise of the doctrinal structure in which that distinction had played a central role. As intelligent as it is revisionist, this volume will greatly interest students of legal history, constitutional law, and political science.

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Editorial Reviews

From the Publisher
"A meticulous craftsman, Cushman builds a convincing case for his revisionist thesis. His book is a smooth blend of intellectual and political history; he is equally at home with the nuances of legal doctrine on the Court and the political battles going on outside it. He brings out of the large unruly mass of constitutional cases decided between 1870 and 1937 a strong, clear story, powerful in its simplicity and very persuasive. After this book no one will be able to talk about the 'Constitutional Revolution of the New Deal' in quite the same way again."—Robert W. Gordon, Yale Law School

"It is not often that a book comes along that provides a whole new way of thinking about a familiar subject. But Barry Cushman has written a convincing, revolutionary reinterpretation of the conventional wisdom about the so-called 'Constitutional Revolution of 1937' and its notorious 'switch in time'. In the process, Cushman provides us with a compelling and powerful counter-argument about the true origins and dimensions of constitutional and historical change in the New Deal period."—Alfred S. Konefsky, SUNY at Buffalo Law School

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Product Details

  • ISBN-13: 9780195120431
  • Publisher: Oxford University Press, USA
  • Publication date: 1/28/1998
  • Edition description: New Edition
  • Edition number: 1
  • Pages: 336
  • Product dimensions: 9.00 (w) x 6.10 (h) x 0.80 (d)

Meet the Author

University of Virginia
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Table of Contents

PART I: Rethinking the New Deal Court
1. Roosevelt's Shadow
2. Judging the Image of New Deal Court Judging
PART II: A New Trial for Justice Roberts
3. The Public/Private Distinction and the Minimum Wage Issue
4. From Adkins to Nebbia
5. The Minimum Wage Cases Revisited
PART III: The Trail of the Yellow Dog
6. The Liberal Dilemma
7. Associationalism Ascendant
8. Doctrinal Synergies
PART IV: The Levee Breaks
9. A Stream of Legal Consciousness
10. Catching the Current
11. The Persistence of Memory
12. The Struggle with Judicial Supremacy

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