1 i American Law Third Edition ii iii American Law An Introduction Third Edition Lawrence M. Friedman Grant M. Hayden 1 American Law: An Introduction. Third Edition. Lawrence M. Friedman and Grant M. Hayden. © Oxford University Press 2017. Published 2017 by Oxford University Press. iv 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2017 First Edition published in 1984 by W.W. Norton & Company Second Edition published in 1998 by W.W. Norton & Company All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging- in- Publication Data Names: Friedman, Lawrence M. (Lawrence Meir), 1930- author. | Hayden, Grant M., author. Title: American law : an introduction / Lawrence M. Friedman, Grant M. Hayden. Description: Third edition. | New York : Oxford University Press, [2017] | Includes bibliographical references and index. Identifiers: LCCN 2016025405 | ISBN 9780190460587 ((hardback) : alk. paper) | ISBN 9780190460594 ((pbk.) : alk. paper) Subjects: LCSH: Law—United States—Popular works. Classification: LCC KF387 .F74 2017 | DDC 349.73—dc23 LC record available at https://lccn.loc.gov/2016025405 9 8 7 6 5 4 3 2 1 Paperback printed by Sheridan Books, Inc., United States of America Hardback printed by Bridgeport National Bindery, Inc., United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com. v For Leah, Jane, Amy, Sarah, David, Lucy, and Irene —L .M.F. For Joanna, Luke, Ben, and Milo —G .M.H. vi vii Contents Preface ix Acknowledgments xiii 1. What Is a Legal System? 1 2. Law: Formal and Informal 19 3. The Background of American Law 35 4. The Structure of American Law: The Courts 55 5. The Structure of American Law: Statutes and Statute Makers 85 6. The Structure of American Law: Executing Policy 105 7. Federalism and American Legal Culture 123 8. Inside the Black Box: The Substance of Law 139 9. Crimes and Punishments 155 10. Constitutional Law and Civil Liberties 181 11. On Legal Behavior 203 12. Legal Culture: Legitimacy and Morality 223 13. The American Legal Profession 237 14. Law and Social Change 261 15. Epilogue: The Future of Law in the United States 291 Notes 303 Index 339 vii viii ix Preface This book is a general introduction to the law and the legal system of the United States. In a way, writing another book about American law would seem to be like bringing another coal to Newcastle. There is certainly no shortage of books about our legal system. The Harvard Law School library, which is just about the biggest in the country except for the Library of Congress, has more than two million volumes. Hundreds of thousands of these are books about American law. Every year, Harvard adds thousands more to its collection. Of the making of law books, there seems to be no end. Do we really need more? Perhaps we do. Almost all of those thousands and thousands of books are meant for the specialized eyes of the lawyers. Very few are written for the layman. True, in recent years, flocks of “how to do it” books have appeared: how to get your own divorce, how to avoid probate, how to deal with your landlord, how to resolve the legal problems of cohabiters, and the like. There are also some popular handbooks about people’s rights, how to “win big” in small- claims courts, and so on. Books of this kind are no novelty. In the nineteenth century, too, there were “how to do it” books, with names like Every Man His Own Lawyer. Some were extremely popular. One such book, published in 1867, claimed it would be valuable for just about everybody: the “city wholesale merchant,” the retailer, the country merchant, attorneys, justices of the peace, farmers, mechanics, even the “discharged soldier or sailor” of the Civil War, who would find “all the instructions and forms necessary” to get back pay or a pension, in language “so plain as to make the whole matter perfectly clear and simple.” ix