Law and the Social Control of American Capitalism

This Essay is part of a larger, ongoing investigation of the role of law in the creation of a modern American state from 1877 to 1932. That project charts the decline of an early nineteenth-century world of local, common law self-government (what I called in a previous work a ¿well-regulated society¿) and the rise of a distinctly modern administrative regulatory state in the United States. This new legal-political regime was rooted in three interlinked developments: the centralization of public power; the individualization of private right; and the constitutionalization of the rule of law. Beginning soon after the Civil War, nineteenth-century common law understandings of the public obligations of associative communities in a confederated republic were increasingly replaced by a new emphasis on the constitutional rights of individual citizens in a nation-state¿a nation-state insistently expanding its general police and regulatory authority.