Dismantling American common law: Its political implications and philosophical origins.

摘要

The importance of American common law has been largely ignored by the political science community. Its importance has seemingly gone unnoticed, and questions about its development have inspired no rigorous studies. Only recently has political science recognized the importance of common law at the time of the nation's founding. These studies fail to show the full impact of liberalism on the American understanding of common law, and they do not explore the political ramifications of America's application and understanding of the common law tradition. This study provides new insights into the political implications and philosophical origins of the American common law tradition.; In order to reach an understanding of the political implications associated with the American common law system I employ empirical methods in Chapters 3--5. I use the American states as the basis for a comparative analysis in order to discern what political and social factors influence the development of certain common law characteristics. These characteristics include: commerce, the definition of crime, sentencing, methods of pleading, the jury, and the divide between law and equity. In Chapter 3 I use an event history analysis to study state adoption patterns of reforms associated with commerce, crime, sentencing, and methods pleading. In order to study juries at the state level I use a time series approach in Chapter 4 to show what factors influence the percentage of jury trials in a state. Chapter 5 deals with the divide between courts of law and equity at the state and national level by providing a critical review of federal court decisions. Chapter 5 shows that courts have made decisions which have distorted the divide between law and equity, a divide which is essential for the common law to function properly.; The final chapter deals with the philosophical origins of the American common law tradition in an effort to show that the dismantling of the American common law is the result of a philosophical tradition, not random events. Chapter 6 deals primarily with Montesquieu, Blackstone, and Hamilton; and shows that the common law system was compromised when it became integrated with liberalism.