William E. Nelson’s Two Forms of Conservatism: Judicial Reasoning in New York Courts, 1860–1920, is a concise but broad-ranging analysis of New York case law that offers a direct challenge to progressive historiography’s interpretation of Gilded Age and Progressive Era courts. New York courts emphatically did not consistently favor big business and the rich, this book argues. In fact, large capital-intensive industries achieved quite mixed results in litigation across a wide range of subject areas. Those judges were not conservative, at least in that sense. They were, however, conservative in another: their earnest efforts to avoid the influence of politics on the law led them to adhere to existing precedent whenever they could and, when they could not, to follow what they understood to be the foundational values of the republic.

To support these claims, the book deftly guides the reader through broad areas of legal doctrine, explaining with laudable clarity the legal rules the appellate courts put in place, the way the trial courts exercised their discretion, and the reasons they gave for their decisions. In just over 130 pages of text, the book clearly summarizes topics ranging from freedom of contract, eminent domain, and labor law, to tort, corporate, and property law, as well as civil procedure and morals legislation. Those summaries demonstrate that large business interests had a mixed record before the courts. Sometimes they won, but sometimes they lost. The same was true for the “little fellows,” including agricultural interests, existing property holders, small businesses, and injured individuals – and progressive reformers, as well.

This book argues that, because these judges did not systematically favor one social or economic class over another, the best way to explain their decisions is to take these judges at their word. These judges justified their decisions by emphasizing the importance of precedent. At a time of change as rapid as the one this book covers, precedent did not, of course, always offer easy answers. Technological, economic, and social changes presented new questions the courts had to answer, and existing law often left significant discretion in the hands of trial court judges. In resolving these ambiguities, judges sometimes let bias of one kind or another seep into their decisions. But, Nelson contends, there was no clear favoritism of one class or interest over another. Rather, when seen as a whole, the pattern of decisions demonstrates that judges followed precedent when they could. And when they could not, they gently guided the law toward what they saw as broadly shared social values. Christian morals were one of those social values, but the most important was the free-labor ideology of the antebellum North that emphasized individuality, independence, and equality. These judges may have been mistaken about how long-established those values were, and their approach may have provided some important victories to business interests. Yet their goal, the author asserts, was to leave politics and policy to others, while they followed the law.

The book’s greatest strength is its combination of concision, clarity, and breadth. It may thus be useful to readers looking for an overview of how the judiciary addressed itself to the period’s most important legal conflicts. Both doctrine and illustrative cases are well described, and the characterization of how judges exercised their discretion is just as important and just as clear. The focus on a single, important state permits a more holistic evaluation of the judiciary’s work. But the volume’s brevity also prevents it from clearly explaining its relationship to the complex and subtle arguments that have been swirling around these issues for decades. The claim that only “[r]ecently” have scholars begun to “indirectly and obliquely” question the “received wisdom that turn-of-the-century judges were on the side of big business and the rich” is mystifying (3). The revisionist challenge to progressive historiography took off in the 1970s, and many consider it dominant today. For interested readers, helpful guides to that literature, including the effort to reintegrate progressive and revisionist insights, are available in essays in Law and History Review by Stephen Siegel (2002) and Laura Kalman (2018).