Failures of American Methods of Lawmaking in Historical and Comparative Perspectives

Abstract

America’s eighteenth-century founders expected that the people of the United States would establish a wise and happy government of written laws adopted with a single eye to reason and the good of those governed. Few Americans today would say that America’s lawmaking fulfills the founders’ expectations. Dysfunctional is the word that many Americans use to describe their methods of lawmaking. The legal professions tell the American people that they are doing the best the can. They tell a myth of common law. They say the people should rejoice, and not complain, when America’s judges make law, for such lawmaking makes America’s laws exceptional. It is how America has always made law, they say. Judges make better laws than legislatures, they claim.

The historical part of this book explodes the common law myth of dominance of judge-made law in American history. Using sources hardly accessible until 21st century digitization, it shows that statutes have had a much greater role in American law than the legal professions acknowledge.

The comparative part of this book dismantles the claim that judges make better law then legislatures. It shows how the methods of American legislative lawmaking, owing to neglect, have failed to keep up with their counterparts abroad, and have thus denied the people the government of laws that the founders expected.

This book shows how such a system works in Germany and would be a solution for the American legal system as well

Keywords: legal methods, legislation, legal history, comparative law, lawmaking