Failures of American Methods of Lawmaking in Historical and Comparative Perspectives

Challenges the myths of common law's superiority over statute law using newly available historical sources and a comparative law analysis.

James R. Maxeiner (Author)

9781107198159, Cambridge University Press

Hardback, published 8 March 2018

358 pages
23.5 x 15.7 x 2.5 cm, 0.62 kg

In this book, James R. Maxeiner takes on the challenge of demonstrating that historically American law makers did consider a statutory methodology as part of formulating laws. In the nineteenth century, when the people wanted laws they could understand, lawyers inflicted judge-made, statute-destroying, common law on them. Maxeiner offers the cure for common law, in the form of sensible statute law. Building on this historical evidence, Maxeiner shows how rule-making in civil law jurisdictions in other countries makes for a far more equitable legal system. Sensible statute laws fit together: one statute governs, as opposed to several laws that even lawyers have trouble disentangling. In a statute law system, lawmakers make laws for the common good in sensible procedures, and judges apply sensible laws and do not make them. This book shows how such a system works in Germany and how it would be a solution for the American legal system as well.

Part I. Introduction: 1. Introduction: of governments and laws
2. Common law is not an option
Part II. What Americans Sought: A Government of Laws, Not of Men: 3. America's exceptionalism in 1876: systematizing of laws
4. Founding a government of laws
5. Building a government of laws in the first century of the republic
Part III. What Americans Got: Deranged Laws: 6. A rule of lawyers: two centennials
7. From the gilded age to Google
8. Inviting comparison: a gift horse in two lands
Part IV. What Americans Can Do: Improve Legal Methods: 9. Systematizing and simplifying statutes
10. Making laws for a government of laws
11. Federalism and localism
12. Constitutional review
13. Applying laws
14. Appendix: place of foreign law in American legal scholarship
Suggestions for further reading
Index.

Subject Areas: Legal system: general [LNA], Jurisprudence & philosophy of law [LAB]