American Law in a Global Context.

Vol. 15 No.7 (July 2005), pp.617-620

AMERICAN LAW IN A GLOBAL CONTEXT, by George P. Fletcher and Steve Sheppard. New York: Oxford University Press, 2005. 696 pp. Hardback. $74.00/£33.50. ISBN: 0-19-516722-8. Paper. $35.00/£21.50. ISBN 0-19-516723-6.

Reviewed by Kirk A. Randazzo, Department of Political Science, University of Kentucky. Email: Kirk.Randazzo@uky.edu

As scholars of the law increasingly turn their attention to countries beyond the United States, they readily discover significant differences across a myriad of legal issues, including the development of legal doctrine, the application of precedent, and the evolution of the contemporary legal environment. Yet, we often take for granted that individuals will be familiar with the principles of U.S. common law. Thankfully, George Fletcher and Steve Sheppard do not make this assumption. Rather, their book AMERICAN LAW IN A GLOBAL CONTEXT, examines the foundations and evolution of common law in the United States, with an explicit focus on an audience not familiar with these aspects. As they state early on, “these materials grew out of three years’ experience teaching cases to the incoming class of LLM students at Columbia University” (p.ix). Though this is not a research oriented text per se, it should be on the reading lists of those individuals contemplating law school, especially individuals with a limited knowledge of American law.

The organization of the book is straightforward, beginning with a general discussion comparing common law to civil law. Then, the authors move into a section on the development of legal authority, which includes chapters on the notion of equality and freedom, due process and federalism. The third section explores the evolution of common law in non-criminal areas, such as property, equity, contract, and tort. Finally, the authors explore common law as it relates to criminal issues. In each chapter, Fletcher and Sheppard begin by providing definitions of various concepts and discussing how they compare to their civil law counterparts. After these discussions, the authors provide actual cases to illustrate the concepts as they are applied in legal decisions. It is obvious that the authors spent a good deal of time identifying appropriate cases for inclusion, as each serves as a good example of the specific concept in question. Additionally, the authors provide numerous open-ended discussion questions after the case illustration to help readers identify key relationships and work through unresolved issues.

For example, in the first chapter on comparing common law to civil law, Fletcher and Sheppard begin with an examination of the writings of Sir Edward Coke and Sir William Blackstone, both considered founders of the English Common Law. To help illustrate the foundations of common law, the authors make reference to the case SCOTT v. SHEPHERD (1773), which involved “trespass and assault for throwing, casting, and tossing a lighted squib at and against the plaintiff, and striking him therewith on the face, and [*618] so burning one of his eyes, that he lost the sight of it” (p.21). After reproducing the case, the authors list a series of questions and comments designed to draw particular attention to important issues. One question asks readers to summarize the legal position of one of the attorneys; another comments on the differences between common law, civil (Roman) law and canon (church) law. These questions and comments are listed in addition to questions pertaining to the disposition of the case. In sum, the use of actual cases and thoughtful questions/comments in this combination helps the reader explore the various nuances of English common law. Consequently, this serves as a suitable introductory chapter. The remaining chapters of the first section explore specific aspects of the civil legal tradition: the prominence of statutes, the use of case law, and the incorporation of scholarly authority; interpretation of various legal concepts, including due process, policy, fairness, reasonableness, deference, and discretion; and finally, an examination of legal reasoning within common law that focuses on deduction and analogy, stare decisis and precedent versus dicta, and statutory interpretation.

The second section, labeled “Constitutional Identity,” compares aspects of American common law to their closest match in the European civil law traditions. For example, the authors liken the U.S. Constitution to the “American national code” (p.109) as a way to create a frame of reference for unfamiliar readers. After reproducing the Constitutional text and the Bill of Rights, Fletcher and Sheppard set up a number of pointed questions, such as “the German Basic Law (constitution) begins by claiming that it binds alle stalliche Gewalt (‘all state power’). Does this document bind all state power in the United States?” or, “how is the Supreme Court different from a constitutional court on the European continent?” (p.129). These questions compel a reader to think seriously about the interbranch relationships established by the U.S. Constitution, and provide a good comparison to civil law traditions and foundations of authority.

In Chapter Eight, the authors provide an interesting argument on the origins of American common law. They preface the argument by stating that “on many questions of American law, there are two or more answers: the dominant view of the case law of scholarly opinion and many dissenting views” (p.173). They offer this preface to help describe the notion of an “alternative constitution” that began as a dissenting view and evolved into a dominating position. In supporting this argument, the authors note that the Constitution is the third document in a series that established the United States; the first two documents are the Declaration of Independence and the Articles of Confederation. Though the Constitution explicitly replaced the Articles of Confederation as the primary source of law, neither nullified the Declaration of Independence. As such, the authors inquire, “what is the relationship between the Declaration and the Constitution?” (p.173). This question implies that certain ideas exist in a broader legal sense that may not have been explicitly included in the Constitution. While the authors hint an answer through various discussion questions and inclusion of language from the Gettysburg Address, the Reconstruction Amendments, and cases like STRAUDER v. WEST VIRGINIA [*619] (1879) and the CIVIL RIGHTS CASES (1883), they do not explicitly nor extensively discuss the notion of an “alternative constitution.” Thus, the reader is left alone to determine the credibility of this argument. Given the potentially serious implications of this contention, I would have preferred a more unambiguous discussion from the authors with their conclusions about the development of the “alternative constitution.” And, since the text is oriented toward individuals not familiar with American common law, a more specific discussion of this notion is essential to their understanding of the evolution and development of law in the United States.

The third section explores the evolution of American common law in the non-criminal sense. Twelve chapters are devoted to concepts such as property, contract, tort, and the American civil trial. The chapters in this section succinctly explain the various concepts and provide numerous details and specific cases to fully illustrate particular ideas. Yet, one chapter seems out of place: in Chapter Twenty-Three, the authors explore briefly the law and economics field. However, while the other chapters present relatively objective information, this chapter contains an overt bias against economic models of law. For example, Fletcher and Sheppard state that “economic theorists of law are lumpers rather than splitters. They see similarities but downplay conceptual differences. They blur the meaning of causation, of property, and of liability. . . Arguments of lumping generate a temporary sense of understanding. . . [Yet,] the price of this understanding is a widespread debasing of the language. Without precise language, careful thought and argument come to an end” (p.470).

I do not wish to engage in a debate over the law and economics field, nor point out the numerous contributions these analyses provide (which the authors neglect to discuss in great detail). I mention this chapter simply because its tone is significantly different from the remaining portions of the book. Throughout the text, the authors present information in an unbiased manner. Even the questions at the end of each chapter challenge the reader to formulate an opinion independent of the authors’ perspective. Yet, Chapter Twenty-Three deviates from this pattern, instead offering a normative argument against economic legal theories. In a volume that claims to help readers “seek an understanding of the legal system of the United States” (p.3), the overtly biased discussion presented in this chapter seems misplaced.

Finally, to help explain the development of criminal law in the United States, Fletcher and Sheppard rely on the 1987 New York state case, PEOPLE v. BERNHARD GOETZ. This notable incident (at least according to the U.S. news media) involved the shooting of four black youths by Goetz (a white male) on a New York subway. The authors provide an initial description of the facts surrounding this incident, to set the stage for a discussion of several questions, such as “What crimes do you charge against Goetz?” and “How do you defend Goetz against these charges?” In the course of this discussion (which continues across three chapters), the authors focus on a myriad of issues. First, they address the nature of the adversarial system in the United States [*620] and compare it to the historical European inquisitorial system and the more contemporary accusatorial system. Next they discuss various rules of evidence, the jury system, and separation of conviction from sentencing. The authors then conclude this section with a discussion of rules and norms related to self-defense, comparing the evolution of domestic regulations in the United States to the development of international law.

In conclusion, I believe this is a well-written volume that accomplishes its stated goal—to help familiarize readers with the American common law. It is a text that I will strongly encourage my students to read, if they wish to pursue a legal education.

CASE REFERENCES:

CIVIL RIGHTS CASES, 109 U.S. 3 (1883).

PEOPLE v. BERNHARD GOETZ, 68 N.Y.2d 96 (1987).

SCOTT v. SHEPHERD, 2 Blackstone’s Reports 892 (1773).

STRAUDER v. WEST VIRGINIA, 100 U.S. 303 (1879).

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