(Washington Monument Pix © Larry Catá Backer 2016)
I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System
(ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).
The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system. The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.
All contents posted on line may be accessed here:
Summary book organization and Chapter 3 Summary follows.
The work is divided into three parts and a historical preface. The Preface traces the origins of the materials and its objectives. It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study of law and legal subjects. Part I: What is Law? An Introduction, is divided into two chapters. Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems, then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems. The first includes law articulated by the courts--common law and equity. The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy. The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute.
The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system. The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.
All contents posted on line may be accessed here:
Summary book organization and Chapter 3 Summary follows.
The work is divided into three parts and a historical preface. The Preface traces the origins of the materials and its objectives. It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study of law and legal subjects. Part I: What is Law? An Introduction, is divided into two chapters. Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems, then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems. The first includes law articulated by the courts--common law and equity. The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structu8res of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy. The last of the chapters then considers the binding nat8re of judicial opinion, especially the legal effect of judicial decisions interpreting statute.
Chapter 3
Law Articulated by Courts: The Common Law
A. Introduction
B. Context
--Problem 3C. Law Articulated by Courts: The Common Law
--Sindle v. New York City Transit Authority
--Broughton v. State
--Akande v. City of New York
--Notes and Questions
--Arthur R. Hogue, Origins of the Common LawD. Learning Objectives
--Notes and Questions
--Joseph Story, On Common Law and Constitutional Origins of the State Constitution
--Oliver Wendell Holmes, Jr., The Common Law
--Notes and Questions
A. Introduction
Chapter 1 posed the question what is law? The answer ought to have proven more elusive than a student might first consider. In addition, the student ought to have begun to understand that the question subsumed another question, far more important to the everyday lives of lawyers in the United States: how do the forms adopted for law affect its character? The substance and form of law adopted is important, because these prove the borders of the lawyer’s field. By substance, we will mean its substantive elements and its procedural mechanics. By form, we will mean the institutions through which law can be authoritatively made. These definitions suggest those areas of effort where the work of the lawyer is authoritative and draws a line between that and other fields where the lawyer does not speak with authority. It also suggests what sorts of commands that can compel obedience and the institutions that can serve as the compelling force. In its simplest form, these definitions and border-drawing exercises determine to what extent the law determines the borders of the sorts of undertakings in which a lawyer will be asked to provide services for clients. Lawyers (courts and legislators as well, for that matter), for example, do not give theological advice and ought not to give authoritative pronouncements on economics or aesthetics.
This chapter is the first of several that introduce students to the most common forms of law in the United States. But in the United States, the substance of law, and its character, is never far removed from the institutions through which it is articulated and realized. Each chapter will then also consider the institutions that produces each and the remedial mechanisms available through invocation of each. In other words, every distinct form of law in the United States is connected to a specific set of governmental institutions through which it is authenticated, and applied. For Common Law and equity, the principal governmental institution through which it is developed and applied are the courts. These are thus understood as judicially administered law. In contrast, statutes are connected intimately with the political authorities of the state—its legislature (that enacts them) and the executive (who enforces them). The courts apply the statutes. Administrative regulations, in contrast, are principally connected to administrative agencies that enact regulations, the legislatures that enact law delegating rule making authority to administrative agencies and the courts that oversee the administrative enterprise.
This chapter and the one that follows consider law articulated and imposed by courts in the context of dispute resolutions among litigants. This chapter considers its most important substantive form—corresponding roughly to what remains of the common law. Chapter 4 then treats the important contributions of equity to the law administered by courts. Chapter 5 will introduce students to the law articulated by the legislature, what most people outside the United States have commonly come to understand as the only authoritative source of “law.” Chapter 6 will then introduce students to the law articulated by regulatory agencies, the increasingly important set of “rules” promulgated by agencies on the basis of power delegated to them by the legislature through statutory “law.” Finally, Chapter 7 moves away from the state and its formal structures of governance through law to introduce students to new and quite dynamic areas of governance produced by non-state actors, and the ways in which public and private actors can manage behaviors without resorting to the traditional forms of law. Each of these forms of law has its own distinctive character, form, and properties. Each is produced in different ways and is applied differently by different organs of government.
The study of the Common Law in the United States involves the understanding of three quite distinct concepts that are embedded in the term. The student will become familiar with each and learn to understand the importance and differences among them. First, Common Law is understood as the historical development of a very precise set of judicially administered rules with origins in England that were brought over to the United States during colonization. The historical forms and substance of Common Law remains important and influential in shaping its U.S. variant. Second, Common Law is understood as a specific set of substantive fields of law that are administered by courts. The most well-known of these fields of law include contracts and torts. Third, Common Law is understood as a methodology, as a system for the interpretation and application of the law in disputes. It is, in that sense, a reference to the character of the judicial power itself, its organization and its working methods—its “rules of decision.” This last is critically important as a bridge. As the student will learn in the chapters that follow, while statutory law and administrative regulation has displaced much of traditional common law, the common law methodology of common law, has become an important methodological element in the application and interpretation of Constitution, statutes, and administrative regulation. In other words, the legal ideology of common law has become the principal means for working through legal issues in the United States.
We start with a problem that provides context for the discussion of the central question of U.S. law and especially of its legal ideology: what is common law and how is it expressed in the U.S. context? As you work through the problem consider the extent to which it reflects the three distinct meanings of common law, and how that may overlap in real world problems. The problem revolves on the issue of false arrest and the student is asked to provide advice on whether the particular victim may recover for false arrest after reviewing the following materials: Sindle v. New York City Transit Authority, Broughton v. State, and Akande v. City of New York. These materials are followed by notes and questions meant to further provide the student with information necessary to understand the lawyer’s role in the common law system.
Sections C attempts to help the student understand the fundamental character of U.S. modern common law by exploring in its origins the premises and structures that help define how one approaches this source of law. The readings for this chapter and the discussions which follow them, are meant to introduce the student to the reasons why the common law has its current character and the basic approaches courts use to interpret and apply common law. The first reading, Arthur R. Hogue’s Origins of the Common Law, and the discussion which follows, provide the systemic qualities of common law. Next, Judge Story’s On Common Law And Constitutional Origins Of The United States Constitution, and the discussion which follows, suggest the ways in which the common law was preserved and Americanized. Finally, Judge Holmes’ The Common Law, provides an example of his view of the common law as a living system, and the discussion that follows provides the student with additional information designed to unpack Holmes’ major points and objectives. The chapter ends with the chapter’s main learning objectives for the student.
Learning Objectives:
(1) To introduce the student to the foundational form of law in the U.S., focusing mainly on what remains of the common law and its ideology.
(2) To introduce the student the question of what is the common law, and how it is expressed in the U.S. context. The student is to distinguish among the three distinct characteristics of common law: (1) as a historical system; (2) as a set of judge administered fields of substantive law; and (3) as a methodology for decision making.
(3) To consider lawyers’ role as an actor in the U.S. common law system.
(4) To provide through applied learning a sense of the substance and methodology of common law; the exam`ple used is that of the common law cause of action for false imprisonment.
(5) To provide students with some practice in the art of identifying law when there is no statute or authoritative command, i.e. using the common law reasoning.
(6) To explore the modern foundations for the legal system in the U.S.
(7) To expose the student to the historical foundations of the common law and the importance of its premises as applied in the United States with a specific focus on the thought of influential thinkers and jurists of the 19th and 20th century.
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