Taming Leviathan: Will the Centralizing Tide of the Twentieth Century Continue into the Twenty-first?

Abstract

This Centennial Celebration emboldens me to offer some sweeping observations about the path of American law and government over the past 100 years. We can expect that in 2100 the editors of the Southern California Law Review will publish yet another commemorative issue in conjunction with the Bicentennial Celebration of the University of Southern California Law School. The legal scholars who will contribute to Volume 174 of the Law Review are unlikely to have much use for the work of those of us whose works fill Volume 74. They will regard us as both unsophisticated in method and archaic in substantive focus. Nonetheless, legal historians active in the twenty-second century will be curious about how law professors of our era assessed the general direction of legal change during the twentieth century. Now that I am only a year or two away from eligibility for the price discounts that many business establishments offer to seniors, perhaps my contemporaries wrill forgive my offering some Olympian comments without the customary amount of supporting argumentation and footnoting. Two portentous trends of twentieth-century American law were the vast increase in governmental regulation and spending, and the increasingly dominant role assumed by the federal government. In this brief essay I seek to: (1) document this growth in government; (2) argue that—as a global proposition—American society presently suffers from too much law and government; (3) discuss the causes of this overgovernment; and (4) speculate on whether Leviathan is destined to become even plumper in the future. To add concreteness to what otherwise might be an overly general discussion, I invoke examples from two of my specialties: land use regulation and housing policy. (Because the issue of federalism presently receives ample scholarly attention, I say little about the national government's growing dominance during the twentieth century.)