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Subject Area: Political Theory
Topic: Progress

Law and the American Economy - Leonard P. Liggio, Literature of Liberty, Winter 1981, vol. 4, No. 4 [1981]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Law and the American Economy

Harry N. Scheiber

  • Professor of American History at the University of California, San Diego, La Jolla and Professor of Law at the University of California, Berkeley

“Regulation, Property Rights, and the Definition of ‘The Market’: Law and the American Economy.” The Journal of Economic History 41(March 1981): 103–110.

Professor Scheiber identifies four problems in the recent interdisciplinary studies of property rights, law, and economic development in the nineteenth-century United States.

First, recent studies stress too exclusively the positive functions of law in either the “release of entrepreneurial energy” or the exploitative allocation of advantages (by courts and legislatures) to the business interests leading industrialization.

Second, the dichotomy between alleged “instrumentalism” as the prevailing judicial style before 1860 and ‘formalism” after 1865 has been exaggerated.

Third, generalizations have been based too much on the eastern states and Wisconsin.

Fourth, there has been a failure to identify accurately the winners and losers in the struggle over regulation and the definition of property rights.

Thus, although rediscovery of the importance of institutions by economists and the renaissance of legal history among historians and legal scholars constitute welcome and converging developments in recent scholarship, much more research is needed on these main themes and literature.

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