^1. Holmes, Oliver Wendell Jr., The Common Law (Boston, 1881), 35–36.Google Scholar

^2. Lochner v. New York, 198 U.S. 45, 75 (1905).

^3. Horwitz, Morton J., “Progressive Legal Historiography,” Oregon Law Review 64: 4 (1984): 679–87.Google Scholar

^4. Hurst, James Willard, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison, 1956), 5–6.Google Scholar

^5. Sympathetic appraisals of Hurst's contribution to the “new legal history” include: Scheiber, Harry N., “At the Borderland of Law and Economic History: The Contributions of Willard Hurst,” American Historical Review 75 (February 1970): 744–56CrossRefGoogle Scholar; Scheiber, , “American Constitutional History and the New Legal History: Complementary Themes in Two Modes,” Journal of American History 68 (Summer 1981): 337–50CrossRefGoogle Scholar; and Soifer, Aviam, “Willard Hurst, Consensus History, and The Growth of American Law,” Reviews in American History 20 (March 1992): 124–44.CrossRefGoogle Scholar

^6. A handy summary of the relevant literature is to be found in Posner, Richard A., Economic Analysis of Law, 3d ed. (Boston, 1986)Google Scholar. The efficiency test is applied to tort law in Posner, “A Theory of Negligence,” Journal of Legal Studies 1 (January 1972): 29–96CrossRefGoogle Scholar, and, more fully, in Landes, William M. and Posner, Richard A., The Economic Structure of Tort Law (Cambridge, Mass., 1987).CrossRefGoogle Scholar

^7. Horwitz, Morton J., The Transformation of American Law, 1780–1860 (Cambrige, Mass., 1977), 253–54Google Scholar. For Horwitz's place in American legal historiography, see Presser, Stephen B., “‘Legal History’ or the History of Law: A Primer on Bringing the Law's Past into the Present,” Vanderbilt Law Review 35 (May 1982): 849–90Google Scholar, and Holt, Wythe, “Morton Horwitz and the Transformation of American Legal History,” William and Mary Law Review 23 (Summer 1982): 663–723.Google Scholar

^8. Ross, Dorothy, The Origins of American Social Science (Cambridge, 1991), 101–6.Google Scholar

^9. Ernst, Daniel R., “The Critical Tradition in the Writing of American Legal History,” Yale Law Journal 102 (January 1992): 1067–68Google Scholar, is suggestive on this point.

^10. Rosenburg, Norman L., “Gideon's Trumpet: Sounding the Retreat from Legal Realism,” in May, Lary, ed., Recasting America: Culture and Politics in the Age of the Cold War (Chicago, 1989), 115–17.Google Scholar

^11. Benedict, Michael Les, “Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,” Law and History Review 3 (Fall 1985): 298CrossRefGoogle Scholar; Benedict, “Victorian Moralism and Civil Liberty in the Nineteenth-Century United States,” in Nieman, Donald G., ed., The Constitution, Law, and American Life: Cultural Aspects of the Nineteenth-Century Experience (Athens, Ga., 1992), 110.Google Scholar

^12. E.g., Fine, Sidney, Laissez Faire and the General Welfare State: A Study of Conflict in American Thought, 1865–1901 (Ann Arbor, 1956), 136–68.Google Scholar

^13. Saker, Victoria A., “Between a Doctrine and a Hard Place,” Reviews in American History 21 (June 1993): 283.CrossRefGoogle Scholar

^14. Warren, Charles, “The Progressiveness of the United States Supreme Court,” Columbia Law Review 13 (April 1913): 294–313.CrossRefGoogle Scholar

^15. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). In upholding congressional statute prohibiting the shipment in interstate commerce of “filled milk” (skimmed milk mixed with fat or oil), Justice Harlan Fiske Stone laid down that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless … it is of such a character as to preclude the assumption that it rests upon some rational basis in the knowledge and experience of the legislators.” But he then added in footnote 4: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as the first ten amendments, … [or] restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, … [or is] directed at particular religious, … or national, … or racial minorities.”

^16. The distinction between “internal” and “external legal history” is Gordon, Robert W., “Introduction: J. Willard Hurst and The Common Law Tradition in American Legal Historiography,” Law and Society Review 10 (Fall 1975): 11Google Scholar: “The internal legal historian stays as much as possible within the box of distinctive-appearing legal things; his sources are legal and so are the basic matters he wants to describe or explain.… The external historian writes about the interaction between the boxful of legal things and the wider society of which they are a part, in particular to explore the social context of law and its social effect.”

^17. Freyer credits Alfred D. Chandler, Jr. for first suggesting a study of antitrust in comparative historical perspective at a seminar in 1975–76. Chandler did hold in The Visible Hand: The Managerial Revolution in American Business (Cambridge, Mass., 1977), 333–34Google Scholar, 375–76, that antitrust legislation had a “substantial impact” in fostering “centralized enterprise.” But he underlined that “what antitrust legislation did was to reinforce technological and market imperatives.” And his explanation of why Britain lagged behind the United States in the development of managerial capitalism in Scale and Scope: The Dynamics of Industrial Capitalism (Cambridge, Mass., 1990), 235–392Google Scholar, does not give significant weight—in fact, scacely mentions—the difference in antitrust law.

The explicit argument that the difference in antitrust laws was a major factor in the different patterns of corporate development in Britain and the United States was spelled out by Hannah, Leslie, “Mergers, Cartels, and Concentration: Legal Factors in the U.S. and European Experience,” in Horn, Norbert and Kocka, Jürgen, eds., Recht and Entwicklung der Grossunternehmen im 19. und frühen 20. Jahrhundert: Wirtschafts-, sozial-, and rechtshistorische Untersuchungen zur Industrialisierung in Deutschland, Frankreich, England und den USA (Law and the formation of the big enterprises in the nineteenth and early twentieth centuries: Studies in the history of industrialization in Germany, France, Great Britain and the United States (Göttingen, 1979), 306–16.Google Scholar

^18. Sklar, Martin J., “Sherman Antitrust Act Jurisprudence and Federal Policy-Making in the Formative Period, 1890–1914,” New York Law School Law Review 35:4 (1990): 791–826Google Scholar, presents his argument in summary form; its full elaboration is in Sklar, The Corporate Reconstruction of American Capitalism, 1890–1916: The Market, the Law, and Politics (Cambridge, 1988).Google Scholar

^19. Blackford, Mansel G., The Rise of Modern Business in Great Britain, the United States, and Japan (Chapel Hill, 1988), 64–77Google Scholar, shows the multiplicity of reasons why the “British were slower than the Americans to develop big businesses.”

^20. Kocka, Jürgen, “The Rise of Modern Industrial Enterprise in Germany,” in Chandler, Alfred D. Jr. and Daems, Herman, eds., Managerial Hierachies: Comparative Perspectives on the Rise of the Modern Industrial Enterprise (Cambridge, Mass., 1980), 99–110Google Scholar; Chandler, Scale and Scope, 393–592.

^21. Brief multifactor analyses of Britain's continuing economic laggardness from the late nineteenth century to the present are to be found in Rosecrance, Richard, “Why England Slipped,” and Paul Johnson, “The English Disease, 1945–79,” Wilson Quarterly 11 (Autumn 1987): 97–121.Google Scholar

^22. Hunt, Alan, The Sociological Movement in Law (Philadelphia, 1978), 144–45CrossRefGoogle Scholar; Hunt, , Explorations in Law and Society: Toward a Constitutive Theory of Law (New York, 1993), 36–39, 301–8.Google Scholar