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Home > Journals > Michigan Law Review > MLR > Volume 97 > Issue 6 (1999)

 

Abstract

Robert Lee Hale has long been an intellectual thorn in the side of the defenders of laissez faire, among whom I am quite happy to count myself. As Barbara Fried notes in her meticulous study of Hale's work, his name is hardly a household word. But both directly and indirectly, his influence continues to be great. His best known work is perhaps Coercion and Distribution in a Supposedly Non-Coercive State, published in 1923 as a review of Thomas Nixon Carver's Principles of National Economy, itself a defense of the classical principles of laissez faire, remembered today only for the drubbing that it took at Hale's hands. Hale also wrote one of the early influential treatments of the problem of "unconstitutional conditions," which addressed the still-perplexing question of the implicit coercion in the government's power to attach unpalatable conditions to its own contracts or grants. He wrote a number of influential attacks on the principle of freedom of contract. He took an active role (pp. 186-89) in overthrowing the dominance of Smyth v. Ames, which for the better part of two generations fixed the "fair value" limitation as a restraint on the state power to regulate railroads and other public utilities. Although his work is not as well known in general intellectual circles today as that of T.H. Green or Leonard Hobhouse, (who both receive much attention from Fried), Hale has a low-key durability that ranks him as one of the most formidable and persistent foes of laissez faire in the first half of this century. To be sure, a steady stream of distinguished authors has taken note of his positions and has sought, generally, to build upon them.9 But Fried is the first writer to devote a long-overdue, full-length monograph to his work. Hers is, without question, a careful and sympathetic portrait of Hale. Her mission is to persuade the reader that his insights are lasting and his continued influence fully deserved. Fried has had access to Hale's private papers and is thoroughly conversant in nineteenth century intellectual forces in both Great Britain and the United States. At every point she gives due credit to the many earlier writers who helped to shape Hale's views. Indeed, her copious footnotes are a treasure trove of information for anyone who wants to study further the intellectual origins of the progressive tradition.

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