Skip to content

Category: Lawrence M. Friedman

Rickety though it may be

“The president of the United States takes an oath to support the Constitution. His ‘king’ is a legal document, a symbol of law, rather than any human authority. In this country, ultimate power is supposed to rest with the people; more concretely, it lies in the legal structure of society, and in the laws themselves. We pledge allegiance to the flag, but true allegiance runs not to a piece of cloth, or even to the president, or to some sacred text in the National Archives. Rather, our commitment is to a way of governing, a process, a set of procedures, a way of making decisions—in other words, to law. There is a shared understanding that we obey and respect the rules of the game. These rules hold society together. They are essential nuts and bolts that keep the structure from falling apart.”  – Lawrence M. Friedman, American Law: An Introduction (emphasis in original)

Leave a Comment

King Ought and the Prince of Is

“Every society has an authority structure. Every society has high and low. No society comes even close to pure equality. There were and are many kinds of authority, many forms of hierarchy, in this country. Millions of Americans are deeply religious, and are faithful to the word of their churches. Learning, skill, and money all command respect. So does political power. There is also the authority of custom, and the authority of traditional morality. These form a kind of inner monarchy, whose commands are passed along by parents, teachers, and preachers. For many people, the old ways, or what they understand as the old ways, are a powerful source of control. Shifts in patterns of authority are relative, not absolute. Authority is hard to measure. Undoubtedly, some traditional institutions have been loosing or losing their grip, over time. There is considerable discussion, for example, of the fate of family authority. Father’s word may not be ‘law’ anymore, or mother’s, but most children do obey their parents, and they care what their parents think and say. They do their homework and they listen to teacher in school, even if they do not show old-fashioned respect or obey like little Prussians. There are millions of single-parent families and unorthodox families, but they are families nonetheless. The family changes in form, but it is still a great power. Most people, too, follow a definite code of behavior, and it is a fairly traditional one.” – Lawrence M. Friedman, American Law: An Introduction

Leave a Comment

United States is a plural term

“The central fact of American federalism is worth repeating: the United States is by and large an economic union, by and large a social union, but not a legal union, or at least not completely. State laws are, or can be, rather similar, but this is, first, because the states choose to harmonize their laws, and, second, because conditions in the states are fairly similar. A state is free to be different (if it wishes), within its zone. But since the 1860s, the central government has gotten stronger and stronger, and there has been a steady, marked change in relations between states and the federal government. It is obvious why this took place. Changes in technology and socioeconomic structure paved the way. In the age of e-mail, cyberspace, satellite communication, and jumbo jets, the country is a single entity to an extent undreamed of in 1787. When all is said and done, however, the states still maintain a substantial reservoir of power.” – Lawrence M. Friedman, American Law: An Introduction

Leave a Comment

The progression of change

“If you brought back to life a nineteenth-century judge, he would be dumbfounded to learn about that state of civil-rights law today. He would even be amazed at what has happened in tort law, how far the courts have gone in making companies pay for damages caused by badly designed products, such as defective cold cream, soup, medicine, and automobiles. The wheels of doctrine have turned many times, in response to changes in the world outside the courtroom. True, some judges today stand on the right side of the political spectrum, while others stand on the left. But the point around which they revolve, the point from which they deviate, right or left, is determined by social forces, by the national agenda.” – Lawrence M. Friedman, American Law: An Introduction

Leave a Comment

Does the legislature know about this?

“In the United States, social issues often dress themselves up in legal costume and muscle their way into court. There are few countries in the world where abortion policy is decided, in the first instance, by judges. In few countries would courts draw the boundary lines of school districts or demand wholesale reform in state mental-health facilities. Yet these things happen in the United States. A movement is going on which is bringing these issues into court, which expands the very idea of what should or can be dealt with through law and litigation, and which causes ‘law’ to seep into nooks and corners where it never penetrated before. Nobody has quite found the right name for this movement or trend. We can call aspects of it judicialization, legalization, constitutionalization, the due-process revolution, or something similar. Whatever its name, it is certainly a significant trend. Courtlike procedures and habits extend their tentacles throughout government, big institutions, and society in general. Courts themselves have become final arbiters of many social issues, not just individual disputes.” – Lawrence M. Friedman, American Law: An Introduction

Leave a Comment

Ghosts in the machines

“Technology is a great lawmaker and a great leveler. The railroad in many ways and in many fields practically rewrote the law books of the United States in the nineteenth century…. Accident law—the heart of the legal field we call torts—is basically the offspring of the nineteenth-century railroad; in the twentieth century, the automobile largely replaced the railroad as a source of accidents, and of accident law.” – Lawrence M. Friedman, American Law: An Introduction

Leave a Comment