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The Google Challenge to Common Law Myth James Maxeiner University of Baltimore School of Law, [email protected]

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The Google Challenge to Common Law Myth James Maxeiner University of Baltimore School of Law, Jmaxeiner@Ubalt.Edu University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship Spring 2015 A Government of Laws Not of Precedents 1776-1876: The Google Challenge to Common Law Myth James Maxeiner University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Common Law Commons, Computer Law Commons, Internet Law Commons, and the Legal History Commons Recommended Citation A Government of Laws Not of Precedents 1776-1876: The Google Challenge to Common Law Myth, 4 Brit. J. Am. Legal Stud. 137 (2015) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. A GOVERNMENT OF LAWS NOT OF PRECEDENTS 1776-1876: THE GOOGLE CHALLENGE TO COMMON LAW MYTH* James R. Maxeiner"" ABSTRACT The United States, it is said, is a common law country. The genius of American common law, according to American jurists, is its flexibility in adapting to change and in developing new causes of action. Courts make law even as they apply it. This permits them better to do justice and effectuate public policy in individual cases, say American jurists. Not all Americans are convinced of the virtues of this American common law method. Many in the public protest, we want judges that apply and do not make law. American jurists discount these protests as criticisms of naive laymen. They see calls for legal certainty through statutes as unwise and unattainable. But not all American jurists agree. Some American jurists believe that times have changed. The golden era of com­ mon law is past, they say. It passed in the early 20th century. Today Americans live in an "age of statutes"; courts apply statutory texts and not common law precedents. Some American jurists conclude that the United States needs a new common law for an age of statutes. Others believe that the United States should have a textual approach that deals with statutes. The near religious reverence that Americans have for their legal institutions in­ hibits reform. What most Americans do not know, however, is that the United States has always lived with statutes. Contemporary American common law methods, and not statutes, are the intruder of the 20th century. Statutes and statutory methods are the normal way that modern states govern their people * Common law myth in this article refers only to the United States and not to England or elsewhere. "Google" is a teaser for digitization generally. See I.C. infra. ** J.D., LL.M., Ph. D. in Law (Munich). Associate Professor of Law, University of Baltimore School of Law. Member, Editorial Board, British Journal ofAmerican Legal Studies. I would like to thank Philip K. Howard and the Common Good Institute for their continuing encouragement and support without which this article could not have come into being. A summer research stipend of the School of Law also supported this work. With this work I remember my "Doktorvater," Professor Dr. Wolfgang Fikentscher, born 17 May 1928, died March 12,2015. Apology: Although in this article I call attention to legal history, I do not intend it to be a work oflegal history. In working on a book tentatively titled Failures ofAmerican Lawmaking in International Perspective, I realized that even if I show that present American statutory methods do not work well and that foreign statutory methods do, some readers will respond by saying: so what? America is exceptional: America has always eschewed statutes and preferred judge-made law. The point of this article is to disestablish common law myth rather than to establish any particular competing history. It is an invitation to others to do legal history. Others have preceded me with works oflegal history that make the same challenge. 137 4 Br.]. Am. Leg. Studies (2015) and conduct their legal systems. For the first century of the Republic Americans expected to adopt modern methods. Until only a few years ago, the literature of earlier American ages of statutes was lost to view. The digitization of American legal history by Google and oth­ ers now makes that history available to all. It suggests a record that challenges the myth that contemporary common law methods have always dominated American legal history. CONTENTS I. INTRODUCTION ............................................................. 140 II. CELEBRATING PROGRESS IN LAW IN AMERICA 1776-1876 147 A. The Centennial of Written Law ...................................... 143 1. Celebrating Modern Statutes Displacing English Law .. 144 2. Celebrating American Progress: "written constitutions and codification" .................................................... 145 3. Taking the Centennial Writers Seriously ....................... 147 B. Contemporary American Common Law ......................... 148 III. FOUNDING A GOVERNMENT OF LAWS ............................ 153 A. The Founders' Vision: A Government of Laws for a New Nation ........................................................................... 154 1. Declaring Independence to Write Laws for the Public Good ...................................................................... 155 2. The Written Laws of the Founders: Adams, Jefferson & Madison ............................................................. 156 3. The Written Laws of the Constitution .......................... 158 4. Written Laws in the Federalist Papers 1787-1788 ......... 160 5. Written Laws and the First Supreme Court.. ................ 161 B. The Enigma of the Reception of English Law in America in the First Century of the Republic ............................... 163 1. English Law and the Colonies ...................................... 164 2. English Law in the First Century of the Republic .......... 167 IV. BUILDING A GOVERNMENT OF LAWS .............................. 171 A. A Century of Written Constitutions ............................... 171 B. A Century of Constitutional Conventions ....................... 174 C. A Century of Statutes ..................................................... 177 1. Necessity of Statutes ..................................................... 177 2. Progress with Statutes .................................................. 179 138 A Government of Laws Not of Precedents D. A Century of Common Schools ..................................... 182 1. Common Schools ......................................................... 182 2. Civics Texts for Common Schools ................................ 182 E. A Century of Civics for Citizens 190 1. Patriotic Celebrations and Commemorations ................ 190 2. Civics for Adults .......................................................... 192 3. Common Law and Literature ....................................... 194 F. A Century of Self-Governing .......................................... 194 V. PROGRESS IN SYSTEMATIZING LAWS FOR THE PEOPLE ....... 200 A. The Necessity of Systematizing ...................................... 201 B. A Century of Systematizing Laws ................................... 207 1. The Necessity of Systematizing ..................................... 207 2. The Ubiquity of Systematizing ...................................... 211 3. Summary of Systematizing in the First Century of the Republic ................................................................. 230 C. A Century of Systematizing in Legal Education 231 1. College Chairs ............................................................. 232 2. Proprietary Law Schools .............................................. 233 3. College Professional Schools ........................................ 234 D. The Centennial Moment ................................................ 235 VI. EPILOGUE ..................................................................... 238 A. The Campaigns of Albany and Saratoga Springs 238 1. Albany-23 Times ....................................................... 238 2. Saratoga and Other Battles Around the Country .......... 240 B. The Gilded Age and the American Legal System of Today ..................................................................................... 243 1. From State to National Law ......................................... 243 2. The Bench: From Applying Law to Making It............... 243 3. The Bar: from Legislation to Litigation ......................... 244 4. The Academy: From Systematizing to Synthesizing ....... 245 5. Case Reports: from Commentary to Commodity .......... 245 6. Legislation: from Codes to Collations .......................... 246 7. Legal Culture: From Cosmopolitanism to Nationalism. 247 VII. CONCLUSION ............................................................... 248 139 4 Br.]. Am. Leg. Studies (2015) I. INTRODUCTION In 1876, as part of the national celebration of the Centennial of the inde­ pendence of the United States of America, Americans commemorated a century of American law. They celebrated progress wrought through statutes, i.e., through written laws. In other words, they commemorated a government of laws. They saw what one would call today American exceptionalism in "written constitutions and codification." They feted freedom from the "atrocities" of common law. They looked forward to a world where legislation would improve society and bring law home to all Americans. How strange
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