by Kyle Scott. Lexington Books, 2007. 186 pp. Cloth $65.00. ISBN: 9780739123768. Paper. $24.95. ISBN: 9780739123775.
Reviewed by Kathleen S. Sullivan, Department of Political Science, Ohio University. Sullivak [at] ohio.edu.
DISMANTLING AMERICAN COMMON LAW suggests that political scientists have not paid enough attention to the common law and its development in the United States. Established topics in law and courts, such as the studies of juries or judicial behavior, encounter the common law but rarely address its presence or role in the American legal system. Because of this lack of attention, Kyle Scott determines, political scientists (and legal theorists and historians) have failed to weigh the consequences of change for democratic politics, the judicial system, the structure of government and, essentially, freedom.
Scott identifies the common law system through its use of juries, precedent, procedure, uncodified law, adaptability, reflection of community sentiment, and natural right foundation. Over the course of American history, this system has been dismantled, resulting in the overjudicialization of politics and a preference for national authority over state authority. Scott identifies the factors that led to the dismantling of the common law system. Following James Stoner and Paul Carrese, he is driven by concern for changes in the common law in the American political tradition and legal system. Departing from Stoner and Carrese, he derives a causal explanation using event history analysis. He tests for causes of four state reforms that introduced codified laws or procedures where there had once been common law rules. The first reform is the adoption of the Uniform Commercial Code (UCC) at the state level, measuring both initial and total adoption. Factors that influence the initial adoption of the UCC are involvement of the American Bar Association (ABA), competitive party system, growth in state government, size of the state Gross Domestic Product, high number of bills passed, and a full-time legislature. These factors are likewise used in measuring the second reform, legislation that replaces common law crimes, adding state population and particularistic content as factors. In measuring for adoption of a state sentencing commission, factors are involvement of the ABA, percentage of urban population, state GDP, a full-time legislature, number of judges, and the method of judicial selection. Factors measured in the decision to adopt rules of civil procedure are the same as those for measuring adoption of the UCC. He finds that in adopting the UCC, the Growth variable acted contrary to expectations, with increasing growth of state government leading to slower adoption. Scott attributes this phenomenon to resistance to change by bureaucracies. Other factors acted as anticipated. In rejecting common law crimes, state GDP and Growth variables reacted contrary to expectation. Again, the higher the growth of GDP, the longer until policy adoption. The variable that [*719] emerges as a significant factor is the involvement of the ABA, with lawyers acting as policy entrepreneurs.
Scott’s findings are somewhat counterintuitive. Active involvement of lawyers results in fundamental change to the legal system. Growth of bureaucracy would seem to be inimical to the community orientation of the common law, but its dynamics have held out, at least temporarily, against reform that is, in fact, dismantling of the common law system. Historical contests likewise turn the common law on its head. As Scott recounts, a long-running feud between Joseph Story and Andrew Jackson saw the opponent to national government having distrust of judges and promoting codification. Contained in such phenomena are, perhaps the contradictions of the common law. Unfortunately, Scott does not pursue them. One chapter of the book is devoted to the event history analysis and one to the decline of juries. Other chapters address the intellectual origins of common law change in the legacy of Alexander Hamilton, Sir William Blackstone and, fundamentally, Montesquieu. These chapters stand out from the quantitative chapters and threaten the coherence of the book. Nevertheless, there is quite a bit of promise in this book. Scott asks us to reconsider familiar areas of public law and see the role of the common law in them. If the common law system has declined, then we can at least ask if the features of the common law have likewise diminished. This perspective offers a new lens to ask questions about democracy, authority, and stability.
While the book may not accomplish these goals, it indicates that there is opportunity for a more thorough incorporation of the common law into law and courts scholarship. One way is to draw more from other disciplines. While Scott finds that historians have looked to the founding for the philosophy of the framers rather than for the presence of the common law, there is plenty of scholarship in law and legal history that tracks the development of the common law, from the classics of Morton Horwitz and Lawrence Friedman to more recent contributions by A.K. Sandoval-Strausz, Bernadette Meyler, and David Strauss. Rather than jump from Montesquieu, Blackstone, and Hamilton to the Uniform Commercial Code, political scientists can draw from the methodologies of legal historians who have traced the incremental change in specific areas of law. Scott can add to this pursuit an appreciation for quantitative methods, which is well regarded in social science history. By asking theoretical questions and testing for variables drawn from that inquiry, Scott is encouraging an expansion of methods in studies of legal development.
Carrese, Paul O. 2003. THE CLOAKING OF POWER: MONTESQUIEU, BLACKSTONE, AND THE RISE OF JUDICIAL POWER. Chicago: University of Chicago Press.
Friedman, Lawrence M. 1973. A HISTORY OF AMERICAN LAW. New York: Simon & Schuster.
Horwitz, Morton J. 1977. THE TRANSFORMATION OF AMERICAN LAW, 1780-1860. Cambridge: Harvard University Press, 1977. [*720]
Meyler, Bernadette. 2006. “Towards a Common Law Originalism.” 59 STANFORD LAW REVIEW 551-600.
Strauss, David. 1996. “Common Law Constitutional Interpretation,” 63 UNIVERSITY OF CHICAGO LAW REVIEW 877-935.
Sandoval-Strausz, A.K. 2007. HOTEL: AN AMERICAN HISTORY. New Haven: Yale University Press.
Stoner, James R., Jr. 1992. COMMON LAW AND LIBERAL THEORY: COKE, HOBBES, AND THE ORIGINS OF AMERICAN CONSTITUTIONALISM. Lawrence: University of Kansas Press.
© Copyright 2008 by the author, Kathleen S. Sullivan.