The political foundations of legal theory: Political realignment and the legal marketplace of ideas

Models of legal change identifying electoral politics, specifically realignments of the political system that replace one political-electoral regime with another, as a key to understanding the evolution of legal thought have been widely accepted. However, the precise causal order of the chain of events linking political and legal change is less clear given the autonomy of the legal profession. This study addresses this question by examining the dynamics of change in the legal marketplace of ideas during three periods of political realignment (the 1980s, the 1930s, and the 1890s). The timing and magnitude of the changes in legal orthodoxy that occurred during each of these periods are measured primarily through analysis of patterns in legal scholarship in elite law reviews that measures the extent to which changes in the amount of scholarship embracing (as well as attacking) legal ideologies associated with new regimes correspond to critical events signaling support for those ideologies by prominent political actors affiliated with those regimes. The results suggest that the relationship between realignments of the political system and change in the legal marketplace of ideas has not been constant over time but rather has been contingent upon the comprehensiveness of the realignment and upon how deeply entrenched the outgoing regime's legal ideology is in the legal marketplace of ideas. In particular, legal ideologies that are affiliated with a regime that is the product of a partial and protracted realignment and which confront a legal marketplace of ideas that remains thoroughly permeated by the outgoing regime's legal ideology are likely to be highly reliant upon overt political support for legitimacy. Conversely, legal ideologies that are affiliated with a regime that is the product of a complete and rapid realignment and which confront a legal marketplace of ideas that is less thoroughly permeated by the outgoing regime's legal ideology are likely to be less reliant upon overt political support for legitimacy.