This book details both the intellectual and social history of American legal rules, institutions, ideology, and culture that had a foreign component, either by import or after 1900 also by export from the United States to other legal systems. Combining legal history and comparative law, the volume proceeds chronologically through seven historical periods. These begin with the religious and cultural diversity that existed in the 13 British colonies and its relevance for legal development, especially involving Roman and natural law.
The legal foundation for the new republic established a golden age for comparative law, followed by the formative era for American law, characterized by a shift from public to private law, territorial expansion, resistance to English law, and interest in codification. German historical jurisprudence and learned law then took hold in the United States after the Civil War.
The twentieth century saw sustained scholarly comparative law. Motivated by idealistic as well as practical concerns, U.S. jurists began to export American legal ideas about law and government, an effort that re-emerged after World War II. Comparatists established a scholarly organization that considered a variety of issues ranging from private international law to comparative legal sociology. The 1990s, a decade of opportunities for comparative law, reflected accelerated globalization following the collapse of the Soviet Union. This, and the later return of nationalism, presented jurists with new challenges in understanding the place for rule of law and other legal transplants among the world's nations. Interest in legal cultures and interdisciplinary methodology aided the inquiry.
Author(s): David S. Clark
Publisher: Oxford University Press
Year: 2022
Language: English
Pages: 583
City: New York
Cover
American Comparative Law
Copyright
Dedication
Contents
Preface
Abbreviations
1. Legal History and Comparative Law
A. Introduction
1. Historical Comparative Law and Comparative Legal History
2. Methodological Issues
3. Scope of the Book
B. Historiography: 1771 to 1900
1. Establishing an American System of Legal Rules
2. The Codification Debate and Historical Jurisprudence
C. Historiography: 1900 to 1950
1. James Carter
2. Roscoe Pound
3. Max Radin
4. The Dominance of Intellectual Legal History
D. Historiography: 1950 to 2000
1. Perry Miller, Intellectual Legal History, and Its Decline
2. Willard Hurst and the Emergence of Social Legal History
3. Lawrence Friedman and a Comprehensive American Social History of Law
4. The Rise of American Legal History as a Distinct Discipline
E. Historiography: The Twenty-First Century
1. Eclecticism, Culture, and Thick Description: The Return of Intellectual Legal History
2. Legal History Meets Comparative Law
2. British Colonization in North America
A. Prelude: Comparative Law in England
1. Legal Education and Literature
2. Roman and Canon Law Influence in England
B. Roman and Civil Law in Colonial British America
1. Natural Law, the Law of Nations, and Moral Philosophy
2. Self-Study and Legal Apprenticeship
C. Social Factors Affecting Law
D. Lawyers and Courts
E. Religious and Cultural Variation
1. Religious Establishment and Attempts at Tolerance
2. Regional and Intraregional Religious Differences
3. The Anglicization Thesis
4. Eighteenth-Century Immigrants: The Germans and Scots
5. Regionalism and Legal Diversity
F. John Adams: An American Comparatist
1. Study of the Civil Law
2. Law and Politics in Writing and Practice
3. The Boston Declaration of 1772
4. The Novanglus Letters of 1775
5. The Advantage of a Comparative Perspective
3. Legal Foundation for the New Republic: 1776 to 1791
A. Inventing a New Nation: A Golden Age of Comparative Law
B. Learning Foreign Law and Political Theory: George Wythe
C. Thomas Jefferson, Natural Law, and Independence
D. A Republican Form of Government
1. The Roman Republic and Early Principate
2. Republican Images
3. The Debate about Republics and Democracies
4. Baron de Montesquieu
5. Diverse Influences
E. The Sacred Fire of Liberty
F. John Adams
G. James Wilson
H. Publius: The Federalist
1. James Madison
2. Alexander Hamilton
3. John Jay
I. The Bill of Rights
J. Classical Legal Models
4. The Formative Era: 1791–1865
A. The Shift from Public to Private Law
B. Territorial Expansion: Jefferson and the Louisiana Purchase
C. Resistance to English Law and the Beginning of American Legal Science
D. Legal Education and Law Books
1. Training American Lawyers
2. William Blackstone and the American Institutionalist Literature: St. George Tucker and James Kent
3. American Legal Treatises: Joseph Story
4. David Hoffman’s Plan for Legal Education
E. Other Legal Literature Depicting Roman and Civil Law
1. Periodicals with Legal Content
2. Other American Translations
3. Law Libraries
F. Other Legal Comparatists
1. Boston: Luther Cushing
2. New Orleans: Samuel Livermore and Gustavus Schmidt
3. Charleston and Columbia: Francis Lieber, Hugh Legaré, and James Walker
G. Penal Reform: Law and Punishment
H. Codification: Edward Livingston to David Dudley Field
I. Slavery
5. Historical Jurisprudence and Learned Law: 1865–1900
A. Science and Romanticism: German Historical Jurisprudence
B. German Legal Science
C. Making Legal Education Scientific: Harvard Law School
1. Americans Pursue Post-Secondary Education in Germany
2. Harvard Law School and the Development of Graduate Education: Charles Eliot and Christopher Langdell
3. The American Bar Association
4. Other Law Schools Adopt the Harvard Model
5. Refining Legal Science: Emulating Germany’s Law Curriculum
6. Law Libraries
D. Historical Jurisprudence against Codification: James Carter and David Dudley Field
E. Other Uses of Roman and Civil Law
1. Teaching Roman Law: A Substitute for Academic Comparative Law
2. Law Journal Literature on Comparative Law
3. William Hammond
4. William Wirt Howe
5. Sociological Jurisprudence in Germany
6. Oliver Wendell Holmes, Jr.
7. Christopher G. Tiedeman
F. Comparative Law Emerges as a Discipline
1. Germany and France
2. Social Science Associations and Comparative Law
3. The 1900 International Congress of Comparative Law
6. The Modern Development: 1900–1945
A. Transition into a New Century
1. Woodrow Wilson
2. Early Attempts to Transplant American Law Abroad
3. A Timeline through Two World Wars
B. The 1904 Universal Congress of Lawyers and Jurists
C. The Comparative Law Bureau
D. The Persistence of Roman Law Interest
E. American Comparatists Look Abroad and Institutionalize at Home
1. The International Academy of Comparative Law
2. The American Foreign Law Association
3. Social Science and the Johns Hopkins Institute of Law
4. The American Law Institute and Unification of Law
5. Tulane University College of Law
6. The Law Library of Congress and Other Law Libraries
F. Roscoe Pound and John Wigmore
1. Roscoe Pound
2. John Wigmore
G. Two Sides of German-American Relations: The Nazis, Anti-Semitism, and Natural Law
1. The Nazis and Anti-Semitism at American Universities
2. Émigré Legal Scholars and U.S. Law Schools
3. Natural Law
H. The 1930s and 1940s: Achievement during a Difficult Period
1. The ABA Section of International and Comparative Law
2. The 1932 and 1937 International Congress of Comparative Law
3. Domestic American Comparative Law Activities
7. Postwar Legal Transplants and Growth of the Academic Discipline: 1945–1990
A. Government Supervision of American Legal Exports
1. The Early Postwar Period
2. New Constitutions in Germany, Japan, and Korea
3. Other U.S. Government-Sponsored Legal Reforms in Germany, Japan, and Korea
4. Federalism and Antitrust Reform for Western Europe
B. Re-establishing Comparative Law as an Academic Discipline
1. The ABA Section of International and Comparative Law
2. UNESCO, the AFLA, and the AALS
C. The American Association for the Comparative Study of Law
1. Structure and Membership of the Organization
2. The American Journal of Comparative Law
3. Participation in International Congresses
D. Developments in American Law Schools
1. Comparative Law Courses and Institutes
2. General Comparative Law Coursebooks
3. Specialized Comparative Law Coursebooks
4. Comparative Law Journals and Projects
5. Degree Programs for Foreign Students
E. The Role of American Governmental and Nongovernmental Organizations in Legal Transplants
1. Origins and Progression up to 1960
2. The 1960s: Decade of Development
3. Assessment and the Emergence of Human Rights Law
F. Themes in Comparative Law Research
1. Comparative Law Libraries and Projects to Facilitate Research
2. Unification of Law
3. Private International Law
4. Comparative Legal Sociology and Law and Development
5. Other Landmark Comparative Law Books
8. Between Globalization and Nationalism: A History of the Future after 1990
A. The 1990s as a Decade of Opportunities
1. The Triumph of Globalization?
2. Initial Comparative Law Reaction to Accelerated Globalization
3. The Tenacity of Traditions, Cultures, and Legal Pluralism
B. The American Society of Comparative Law
C. Globalization of American Legal Institutions
1. Global Law Schools and Law Firms
2. Academic Law and Development Programs
3. Constitutional and Judicial Globalization
D. Rule of Law Programs: Governments, the ABA, and NGOs
1. Conceptualization and Timeline from 1990 to 2020
2. Specific Programs and Activities
3. The Emergence of Legal Indicators
E. Challenges in the Twenty-First Century
1. Reassessment of Globalization and the Return to Nationalism
2. Resistance from Islam
3. The Importance of China
F. An Interdisciplinary Empirical Comparative Law
Index
