Document Type

Article

Publication Date

Spring 2015

Abstract

The United States, it is said, is a common law country. The genius of American common law, according to American jurists, is its flexibility in adapting to change and in developing new causes of action. Courts make law even as they apply it. This permits them better to do justice and effectuate public policy in individual cases, say American jurists.

Not all Americans are convinced of the virtues of this American common law method. Many in the public protest, we want judges that apply and do not make law. American jurists discount these protests as criticisms of naive laymen. They see calls for legal certainty through statutes as unwise and unattainable. But not all American jurists agree.

Some American jurists believe that times have changed. The golden era of common law is past, they say. It passed in the early 20th century. Today Americans live in an "age of statutes"; courts apply statutory texts and not common law precedents. Some American jurists conclude that the United States needs a new common law for an age of statutes. Others believe that the United States should have a textual approach that deals with statutes.

The near religious reverence that Americans have for their legal institutions inhibits reform. What most Americans do not know, however, is that the United States has always lived with statutes. Contemporary American common law methods, and not statutes, are the intruder of the 20th century. Statutes and statutory methods are the normal way that modern states govern their people and conduct their legal systems. For the first century of the Republic Americans expected to adopt modern methods.

Until only a few years ago, the literature of earlier American ages of statutes was lost to view. The digitization of American legal history by Google and others now makes that history available to all. It suggests a record that challenges the myth that contemporary common law methods have always dominated American legal history.

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