Vol. 15 No.6 (June 2005), pp.507-509

LAW IN AMERICA: A SHORT HISTORY, by Lawrence M. Friedman.  New York: The Modern Library, 2004.  224pp.  Paper. $12.95.  ISBN: 0-8129-7285-6.  Hardcover.  $19.95.  ISBN: 0-375-50635-7.

Reviewed by Bradley C. Canon, Department of Political Science, University of Kentucky.  POL140@uky.edu .

Lawrence Friedman has written a delightful little book (only 184 pages of text).  Informally written and sparse on legal jargon, it seems aimed at a lay audience that is somewhat curious about the development of our law and legal institutions but is not in the mood for an extended historical or philosophical treatment.  It starts with the Puritans and carries through to the modern federal Leviathan.  LAW IN AMERICA is not a must read for the professional who is fairly familiar with American legal history, but it is a nice refresher. We even learn a few interesting bits of trivia – e.g., Friedman debunks the myth that a common law marriage required seven years of open cohabitation (a couple holding themselves out as husband and wife was sufficient) – and he offers us a few surprising facts – e.g., it was illegal to sell cigarettes in Arkansas during the first two decades of the 20th century.

LAW IN AMERICA is loosely organized as it proceeds partly chronologically and partly topically.  It begins with an introduction to the necessity of law in societies and then to the nature of the common law.  Chapter Two focuses on colonial law, explaining how English law was partly preserved and yet also transformed in light of frontier, non-aristocratic conditions, along with the easy availability of land and the heavy dependence on slavery.  Chapter Three moves into the 19th century, focusing on the law as an instrument of economic development.  Classic cases, such as DARTMOUTH COLLEGE (1819), CHARLES RIVER BRIDGE (1837) and FARWELL v. BOSTON AND WORCESTER RR. (1842), illustrate the theme.  A short fourth chapter covers family law, describing colonial and 19th century husband and wife relationships and the development of divorce law.  It then moves into the 20th century, covering the use of formal adoption procedures, the spread of married women’s property statutes and the more recent invention and rapid diffusion of no-fault divorce.

Chapter Five, the longest and fullest, is about crime and punishment.  It is rich in short discussions about philosophical changes – e.g., the shift from shame to incarceration as a means of crime control, and the decline of sin as a criminal offense (except for drug use which was not a classical sin).  It also focuses on practical changes, such as the modern prevalence of plea bargaining and probation and our cyclical views about judicial discretion in sentencing and the use of parole.  In Chapter Six, Friedman explains the rise of the “administrative-welfare state” as a function of the 20th century’s urban, industrial and continental economy.  There are some side excursions here into the civil rights movement and major Warren Court decisions such as [*508] GRISWOLD (1965) and BAKER v. CARR (1962)  The last chapter discusses the considerable increase in the nature, numbers and functional importance of the legal profession.

Of course, a 184 page history cannot be comprehensive about nearly 400 years of legal development, so some important areas receive little attention.  While Friedman recognizes that the American economy “floats on a sea of lawyers” (p.168), there is no coverage of the massive growth of corporation, finance or marketing law in the 20th century, and only slight forays into matters like anti-trust and labor relations.  While tort law is tied to 19th century economic development and 20th century manufacturers’ responsibility – e.g., the demise of privity beginning with MACPHERSON v. BUICK MOTOR CO. (1916) – many other aspects of tort, such as the demise of municipal and charitable immunity from liability, changes in libel law, and the rise of the invasion of privacy tort, do not make the cut.  Nor do 19th century contract law or late 20th century class action consumer remedies.  Friedman wonderfully explains the difference between entailed property in England and the rise of fee simple in colonial America (without having to resort to these legal terms), but there is little mention of the increasing, indeed dominating, importance of intangible property in America.

There are some recurring themes found in LAW IN AMERICA.  One is the shameful treatment of minorities – not just blacks, but Hispanics and American Indians, and going beyond minorities, the poor, disabled, elderly, and – this is a history – indentured servants.  Several pages cover the law of slavery and Jim Crow arrangements.  Another theme, more to be teased out than highlighted, is the cyclical nature of legal change, especially in criminal law, such as the rise and fall and then rise again of indeterminate sentencing and the shifting public attitudes about judges’ discretion in sentencing.

At the end, Friedman makes a few perhaps obvious predictions about the future of the law.   One, classic federalism is dead, despite Rehnquist Court decisions, like LOPEZ v. U.S. (1995) and U.S. v. MORRISON (2000).  Such decisions, he tells us, are “essentially pinpricks rather than stabs” (p.173) at the inevitable federalization of American law.  Two, the staying power of the “imperial presidency” is another inevitable fact of life.  The president is the focus of national media attention.  Single-handedly, he makes foreign and military policy and sets the major domestic issues agenda.  Well, not single-handedly.  It is president and company; his White House (or palace) advisors are more powerful than cabinet secretaries and majority leaders.  This is what makes the presidency imperial. Three, group consciousness about rights will increase (e.g. race, gender, gays, handicapped), but our legal system will not adopt the concept of group rights.  Four, the “liability explosion” will continue.  “Suing the bastards” is now part of the American consumer ethos for those who get the run-around from their HMOs and even for those whose coffee from McWhatever is too hot.

I urge those who teach an introduction to law or a similar course to consider adopting LAW IN AMERICA.  It will give you many opportunities to illustrate how cultural developments and [*509] technological innovations mold the law – and with subject matter that ought to generate discussable student questions.

CASE REFERENCES:

BAKER v. CARR, 369 U.S. 186 (1962).

CHARLES RIVER BRIDGE v. WARREN BRIDGE, 11 Pet. 420 (1837).

DARTMOUTH COLLEGE v. WOODWARD, 4 Wheat. 518 (1819).

FARWELL v. BOSTON AND WORCESTER RR., 4 Mass. 49 (1842).

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

LOPEZ v. U.S., 514 U.S. 549 (1995).

MACPHERSON v. BUICK MOTOR CO., 111 N.E. 1050 (N.Y., 1916).

U.S. v. MORRISON, 529 U.S. 598 (2000).

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© Copyright 2005 by the author, Bradley C. Canon.