2 Characteristics of US law
2.1 Sources of law
Law schools are professional schools. Students attend them after graduating from college, and learn how to argue as attorneys. This is crucial in
shaping US lawyers’ understanding of their own legal system’s identity.
Students are taught the law as a line of cases, and as a forum for constant
struggles between arguments and counterarguments rather than as a substantive whole (except for bar exams). Statutory interpretation is often only
taught in the course of cases. This is why the US legal system is perceived,
by insiders and outsiders alike, as a system mostly shaped by case law: not
a fully accurate picture.
The most important and distinctive legal source in US law is the US
Constitution of 1787.
It is brief and incomplete, often unclear, and antiquated (Dahl, 2002): It has only seen 27 amendments since its drafting, ten
of which – the Bill of Rights – by 1791. Despite, or perhaps because of, all
this, the US Constitution is still the founding document of national and
legal identity to the same degree as the French Civil Code in France, a testament to the respective importance of public and constitutional law in the
United States, compared to that of private law in Continental Europe. The
Constitution is comparable to the Code in another sense: it provides a superior normative framework for legal development.
Large areas of US law are still based on case law, developed by the courts
through the system of precedent. Courts, in deciding a case, will look at previously decided cases as authority and guidance. The binding force of
precedent (‘stare decisis’) is not absolute: courts are not strictly bound by
their own earlier decisions, and they are more willing than their English
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counterparts to develop the law in accordance with social reality, a reflection of the higher relevance of extralegal considerations for the law
(Llewellyn, 1960).
At the same time, however, the number and importance of statutes in the
United States is, in all likelihood, rather higher than lower compared to
civil law countries, the density of regulation in some is considerable and the
readiness of US courts to deviate from a statute’s meaning is lower than in
Europe (Calabresi, 1982). Contrary to the perception of both insiders and
outsiders, the role of legislation vis-à-vis the judiciary is comparable to that
in Europe.
The important difference is the relative lack of codification. US law has
never been codified to the same degree as European legal systems (Herman,
1995/1996; Weiss, 2000). Proposals to codify the private law of individual
states in the 19th century either failed (e.g. in New York) or became irrelevant (e.g. in California, where the code was soon ignored by the judiciary).
Louisiana is an exception; it has a civil code that is applied. A codification
was not necessary as a national or even a state symbol (the constitutions
played this role), and a general American distrust in government meant that,
unlike the situation in France, democratic values were expected more from
judges, less from parliament. However, the lack of a codification should not
be overestimated in its importance. First, several areas of the law are codified, especially on the state level; this is true e.g. for civil and criminal procedure. Often they are modelled on national model codes, the most prominent
example being the Uniform Commercial Code which codifies (and unifies)
wide areas of commercial law.
Second, the American Law Institute has,
since the beginning of the 20th century, compiled ‘Restatements of the Law’
with the goal of restating, ordering and (to some extent) unifying the law.
These Restatements, though not binding, are often cited in court decisions
and fulfil, partly, the systematizing function fulfilled by codes in Europe.
Finally, much common law doctrine has become so refined by now that large
areas of the law are as clear and systematic as in codified systems.
2.2 Federal system and plurality of law
In an important sense there is not one US American law but many: the laws
of the 50 states, the District of Columbia, and the territories, plus federal
law
. The individual states not only have their own legislatures and executives, as in other federal systems; they also have their own judiciaries. There
are therefore two parallel strands of judiciaries from first instance courts to
Supreme Courts: state courts and federal courts. The scope of federal law
is limited: Congress has only limited competence to legislate and, since the
1990s, the Supreme Court has enforced these limitations more strictly.
Furthermore, federal courts are restricted in their ability to generate federal
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common law (Erie Railroad v. Tompkins, 1938). Similarly limited is the
jurisdiction of federal courts: They have exclusive subject-matter jurisdiction only in some areas, especially admiralty law and federal antitrust law.
Their jurisdiction is concurrent with that of state courts in two important
areas: most federal law questions – matters of federal law – and diversity
jurisdiction, when plaintiff and defendant come from different states (to
avoid bias of state courts). Otherwise, jurisdiction lies exclusively with state
courts. The federal system is built on an idea of competition, rather than
coordination, as in European systems (Halberstam, 2004).
This plurality of laws is otherwise not unlike the one in the European
Union, where EU law has a limited scope, and competences remain largely
with the member states. But there is an important difference: the different
laws in the United States, including Louisiana, share the same methodology and inductive legal style, while there are often significant differences in
substance. In fact, federalism is often praised as providing a laboratory for
policy experiments. The states are seen to be in regulatory competition,
most notably in areas like environmental law, but also in corporate law. In
Europe, on the other hand, comparative law has recently revealed remarkable similarities in substance (especially, but not only, in private law) as a
consequence of a less instrumental understanding of law, while differences
in style and methodology between legal systems are still significant.
