ABSTRACT
John R. Commons's half-century-old classic, Legal Foundations of Capitalism, is a classic not only because it is difficult to read — you will recall, the notion that in order to be profound one must be obscure— but also because Commons did have considerable insight into the constitutional order and the role of the Supreme Court vis-d-vis the economy. The statutory corporate state, to be sure, is no newcomer to the American political economy. Something similar was tried in 1933 in the National Industrial Recovery Act, which permitted industry groups to establish codes of fair competition in return for the recognition of labor to organize. The emergence of two characteristic institutions of the modern era: a government that has undertaken affirmative obligations toward the economy or the Positive State; and, the supercorporations, the few hundred corporate giants that dominate the economy and set its tone and direction.
