The role of law in the United States
Understanding US law is impossible without first understanding the role
law plays both in its political system and in the consciousness of its citizens.
Law is ubiquitous in general culture: literature, cinema, television (Raynaud
and Zoller, 2001). On first impression, its status appears paradoxical. On
the one hand, there is an almost mystical faith in the power of law to transcend all conflicts: the rule of law (as opposed to the rule of men) was the
American formula for a just society, in opposition to the absolutist
European government of the time. The US Constitution was the founding
document for the nation, and law has ever since had a defining character for
the country and its self-perception as a beacon of democracy and individual freedom. While there are struggles within the law, the rule of law and
the Constitution themselves seem beyond discussion: they provide an
almost unquestioned framework for debates (Levinson, 1988). On the other
hand, and for similar reasons, the distinction between law and politics is
much less clear than in European countries. It is acknowledged – sometimes
cynically, sometimes approvingly – that law incorporates and serves the
political ends of those who shape it.
The traditional American distrust of
government encompasses distrust of any claims of neutral, objective,
natural law. Public reactions to the US Supreme Court decision in Bush v.
Gore (2000) demonstrate both these aspects. When a majority of five
Republican-appointed Justices held for Republican presidential candidate
Bush, and four less conservative Justices held against him, there were widespread complaints about the politicized judiciary, and the court’s split along
partisan lines. Yet hardly anybody seriously questioned the binding nature
of the decision, which in effect determined the presidency.
The political character of law also explains why law, and in particular litigation, is often seen as a tool for proactive social change, not just for the
retrospective resolution of individual disputes. Supreme Court decisions
like Brown v. Board of Education (1954), which abolished school segregation and implemented civil rights, and Roe v. Wade (1973), which established a constitutional right to abortion, were not only mileposts in legal
development, they are also part of the country’s cultural identity, familiar
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See also: Accident compensation; Constitutional law; Statutory interpretation.
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to every schoolchild. The reason is that public regulation was relatively
weak for a long time; as a consequence the task of enforcing standards of
conduct was left to private parties who would act as private attorneys
general. This is true for areas as diverse as antitrust, civil rights, environmental regulation, products safety standards and many others. There are
one million lawyers in a country of roughly 300 million inhabitants not
only because Americans are more litigious than others, but also because litigation serves broader purposes than elsewhere.
A good example for regulation by private litigation is the law of damages
for accidents. Compensatory damages for tort victims are often substantially higher than elsewhere; in addition plaintiffs can often claim ‘punitive’
damages over and above their actual injury, meant to deter and punish
defendants. What looks to foreigners like an undue mixture of private and
criminal law and an inappropriate enrichment for plaintiffs must be understood with regard to three functions. First, the function of tort law, and
especially of punitive damages, is as much regulatory as compensatory.
Because damages are a cost of doing business, they must be high enough to
ensure that the regulated conduct becomes unattractive for defendants.
Giving these damages to plaintiffs is justified as an incentive for private
individuals to perform this ultimately public regulatory function. A second
reason for high damages under US law is often overlooked: US law usually
provides for one-time lump sum payments of damages, equitable remedies
like both specific performance and recurring payments are only exceptionally granted, because courts are unwilling to oversee complicated enforcements. Hence a one-time sum must not only cover attorneys’ fees but also
all future costs to the victim. These costs can be substantial, because the
social security and healthcare systems in the US are much weaker; costs of
accidents, which are borne, in European countries, by the state, must here
be provided through damages. This leads to a third and last point. In the
United States, accidents are seldom seen as a matter of fate that must be
borne either by the victim or by society at large; rather, injuries can and
should be compensated by the responsible person or corporation, provided
that defendant is rich enough (‘deep pocket theory’). Private law and litigation thus perform functions of regulation and of redistribution, which
are performed, in other countries, by public law.
While small claims can often not be brought because litigation is expensive and legal aid restricted, big private suits are attractive, to plaintiffs and
their lawyers, for several reasons.
Under a system of contingency fees, a
plaintiff need not pay her attorney unless she wins (winning fees can be considerable, and must be paid from the award). Class actions enable multiple
plaintiffs with similar grievances to pool their claims and bring suit
together. Far-reaching discovery enables plaintiffs to substantiate their
American law 67
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claims. Juries decide even in private law. In recent years, though, regulation
through litigation has come under attack; it remains to be seen whether this
development changes the role of law, and lawyers. Litigation (and lawyers)
are often criticized; litigation is often avoided through arbitration and alternative dispute regulation.
It is therefore inaccurate to say, as many do, that US law prioritizes the
individual over community more than other systems. Indeed, there is on the
one hand a strong emphasis on rights, especially civil rights (Glendon,
1991). Individuals bear the burden to defend their interests because the
state will not do this for them. Criminal defendants, e.g., will be sentenced,
sometimes to death, because they neglect to pursue procedural rights. On
the other hand, these individual rights and responsibilities are enforced
largely because they serve as incentives for welfare-maximing conduct; they
exist for the benefit of the community. It would me more accurate to say
that US law prioritizes overall social welfare over equality.
