Development of Comparative Law in the United States (2024)

I. Introduction

Comparative law is as old as the American republic. That was the view of Roscoe Pound (1870–1964),1 one of America's great comparatists in the first half of the twentieth century. Pound, the founder of sociological jurisprudence in the United States, spoke from a position of influence as a professor (1910–47) and dean (1916–36) at Harvard Law School. He supported a cyclical view of comparative law's importance, arguing that it went into decline after 1850. Michael Hoeflich, the leading US scholar today on the significance of Roman and civil law in nineteenth-century America, confirms Pound's view on the civil law's early role, but argues that it continued in importance, although in different ways, later in that century.2

After a brief review of a highly visible discussion of the role for comparative law in America's highest oracle of the law—the United States Supreme Court—we will visit the origins of comparative law activities during the formative era of the United States. Natural law thinking predominated during this intense period of debate after 1776 about the ideal in law and legal institutions. Comparison acted as a filter for the importation of rules and structures meant to serve an emerging nation in the new world. This process continued during the post-Civil War period after 1865, but under the influence of historical and analytical jurisprudence. Instead of looking at the utility of codifying areas of the law or adopting specific foreign rules, comparatists favoured the prestige of modifying civilian university legal education and its legal science for American circ*mstances or using ideas from European legal philosophy to develop a comparative jurisprudence.

In the twentieth century, sustained scholarly comparative law activity, together with organized networks of communication, began along with the successful effort to establish scientific teaching and research mostly at university law schools. Interested law teachers and practitioners founded the Comparative Law Bureau, part of the American Bar Association, in 1907. The Bureau published an Annual Bulletin for many years and supported a series of books reflecting and supporting comparative law activities. In the 1920s, comparative law figures were closely involved with the establishment of the American Law Institute in 1923 and Bureau members decided in 1925 also to organize a new entity in New York City, the American Foreign Law Association, to further their comparative law interests through publications and meetings. United States jurists through the 1930s, furthermore, were active in the Bureau's successor entity, the Section of International and Comparative Law, and in international comparative law organizations and conferences.

After World War II, leading comparatists incorporated the American Association for the Comparative Study of Law (today the American Society of Comparative Law), which in 1952 began publishing the American Journal of Comparative Law. Several of these founders were immigrants who had fled Nazi Europe in the 1930s, which helped initially to set the scholarly agenda. These professors created the organizational framework that would permit comparative law securely to establish itself in American legal education. The Journal today has the largest worldwide circulation of any comparative law publication and American comparatist representation in international conferences is strong if not dominant. Exportation of legal rules and structures is a major activity that occupies scholars, lawyers, and government officials.

One should not forget that comparative law has been especially strong in the two jurisdictions within the United States that are mixed civil law and common law systems: Louisiana and Puerto Rico. Chapter 14 in the Handbook treats their interesting history.3

II. Comparative Law in the US Supreme Court

At the beginning of the twenty-first century, the nine justices on the United States Supreme Court are engaged in a controversial debate, both on and off the Court, about the role of comparative law in their judicial decision-making. The two sides reflect grander philosophical perspectives that have supported the ebb and flow of interest in foreign law (and public international law) in American legal history.

For example, in Roper v Simmons,4 Justice Anthony Kennedy delivered the Court's majority five–four opinion that the Eighth and Fourteenth Amendments of the US Constitution prohibit execution of individuals who were under 18 years of age at the time of their capital crimes. Kennedy wrote:

Justice Antonin Scalia, with two others joining, dissented. He wrote:

Justice Sandra OʼConnor, dissenting since she did not find a sufficient American state consensus on the issue, nevertheless had this to say on the comparative law issue:

Whatever view one takes on the place for foreign law in providing support for particular meaning to the US Constitution's language, it is clear that for over 200 years the Court has influenced foreign legal systems and in turn has been influenced by legal opinion abroad. There are many different perspectives on comparative law, admirably described in later chapters of this Handbook. Leaving aside the concern, expressed by some comparatists, that the study or use of foreign law is not comparative law, we can point to the Supreme Court's 1803 decision in Marbury v Madison.8 It implied a model of judicial review of legislative and executive acts that was transplanted in the 1820s and 1830s to newly independent nations in Latin America and later influenced constitutional review and constitutional courts in Europe and East Asia. The transplant metaphor also helps to explain the spread of the Court's doctrine on freedom of expression and association, and some concepts from criminal procedure, to many parts of the world during the twentieth century.

This transmission of legal ideas in the United States has been a two-way street, where importation is facilitated by lawyers who are familiar with more than one legal system. In general, when transmission is voluntary, and not coerced through colonization or war, the superior prestige of the exporting system, such as Roman law, or the obvious usefulness of the legal rule, such as comparative negligence, or of the institution, such as the ombudsman, motivates jurists. The more lawyers knowledgeable in multiple legal systems, that is, comparatists, the more sophisticated this transmission may be.

In nineteenth-century US Supreme Court reports, there are many instances of Roman law and civil law citations, in addition to the expected references to English common law doctrine and institutions. The two most famous Supreme Court justices of that century to favour Roman and civil law references were Joseph Story (1779–1845) and Oliver Wendell Holmes (1841–1935). The flow of foreign legal citation for constitutional interpretation was variable in the twentieth century, but has returned to some attention in the twenty-first century in Lawrence v Texas.9 Here Justice Kennedy cited foreign examples, including several decisions from the European Court of Human Rights, in holding that a Texas criminal sodomy law violated the constitutional right to privacy for same-sex consenting adults. Rather than an example of transplantation, one may better understand this as an example of legal convergence resulting from similar social and cultural developments in Europe and America.

Even those justices who believe that foreign law has no place in interpreting the United States Constitution admit that it may well be relevant in interpreting a treaty that the United States has ratified—such as the Warsaw Convention regulating international air carrier liability (with French as its authentic language)—or multilingual treaties in which interpretive uniformity is expressed as a goal. Foreign law might also influence domestic law reform. Furthermore, foreign law has today become a common issue in transnational litigation before both federal and state courts throughout the American judicial system.

III. Comparative Law in the Formative Era (1776–1865)

1. The American Revolution and Natural Law

American interest in foreign and comparative law has waxed and waned over the more than 200 years that the United States has been a republic. To some extent, this paralleled the nation's cultural and intellectual fashion, economic wealth and institutional development, increased racial, ethnic, and religious diversity as a land of immigrants, and self-perceived place in the world. Initial optimism and utopian natural law views defined the early years of the nation. The Declaration of Independence (1776), the United States Constitution (1787), and its first ten amendments, the Bill of Rights (1791), early stated the ideal in law and government. Many of the Founding Fathers were not only trained in English common law, but read European political philosophy and considered Roman law an important element in the Roman republic's success.

Another natural lawyer was Thomas Jefferson (1743–1826), trained in law by George Wythe (1726–1806), who knew civil law and in 1779 became the first law professor in the United States at the College of William and Mary. Jefferson drafted the Declaration of Independence, which defined legitimate government as one that supports the inherent individual natural rights of life, liberty, and the pursuit of happiness. He served as minister to France from 1785 to October 1789, where he witnessed the early French Revolution and advised the Marquis de Lafayette on the French Constitution. As United States president, Jefferson was careful to try to limit presidential power, ironically concluding the Louisiana Purchase in 1803 that more than doubled the size of the United States.

2. Resistance to English Law

Pound pointed to five factors that impeded an easy American reception of English law after the war of independence.10 First, English law seemed to embrace medieval scholasticism. Its presentation was often alphabetical, abridged, and disorganized. This contrasted to the order and system of continental treatises, which influenced Story and others. Second, American social and economic conditions, emphasizing individualism in a pioneer society, were very different from those in England, which was in the process of industrialization and urbanization. American lawyers felt they had to work out their own rules favouring the exploitation of abundant natural resources. Third, Puritans, reacting against their hostile treatment in England, tended to distrust lawyers and disfavour lawyers' law. Fourth, many Americans were bitter at the English after the war. Since some states had lay judges even in their high courts, they expressed this sentiment by preferring French or natural law. Fifth, an economic depression followed the war. Lawyers, active in collecting debts, enforcing the British subjects' treaty rights, and invoking English criminal law against persons involved in disturbances, provoked some politicians to resist using English law.

In the formative era of the United States legal system, comparative law was not an organized force, certainly not a discipline, simply because lawyers learned law itself through reading and apprenticeship rather than formal schooling. Few law books were available. Law schools that developed in the nineteenth century were nothing more than law training offices, and this was true even at Harvard until Story provided a more scholarly flavour. Comparative law in this social and economic context could only be a method; as such, it was a method for borrowing Roman or civil law (as natural law), comparing it with positive common law, or providing prestige to a decision that local sources could otherwise reach.

3. Use of Roman and Civil Law

In addition, R. H. Helmholz has shown that American lawyers and judges made much more use of Roman and civilian sources than previously believed. He surveyed the cases reported in fourteen states and the federal system between 1790 and 1825. In each jurisdiction, there were multiple references of considerable variety in source material and subject-matter. Usually American judges and lawyers commented favourably on Roman law as ratio scripta or civil law with its extensive development, but others regarded it as overly elaborate in its distinctions or associated with tyrannical governments. The subject areas of greatest use were maritime disputes and commercial law. Jurists generally used Roman and civil law to cure deficiencies in English common law, support public natural law principles, or reinforce the common law rule.12

4. Livermore, Lieber, Story, and Kent

An early comparatist who facilitated the work of later jurists was Samuel Livermore (1786–1833). He spent half his career as a lawyer in Boston and Baltimore and the other half in New Orleans, where he moved in 1819. He wrote the first comparative law study on agency published anywhere in the world and the first American treatise on conflict of laws using a comparative methodology. He devised his huge 400 volume collection of European law books, printed from the invention of the press until 1800, to Harvard University. Joseph Story relied on this collection in writing his Commentaries.

Story was an ally of Chief Justice Marshall, both of whom supported federal (over state) rulemaking power implied from clauses in the Constitution and strong federal judicial power. In Swift v Tyson,13 Story wrote for a unanimous Court to create a general federal common law for civil obligations (contracts and torts) and commercial law for business litigants. They could either sue in federal court, or as defendants remove their cases from state court, if their domicile was different from that of their opponent. This restricted local, less favourable, state precedent from interfering with what federal judges, who could rely on Story's treatises, considered the reasonable expectations of the parties in interstate commercial affairs.

Story's volumes came into general use along with those by Kent. Together, they helped to ensure the reception of English common law in the United States during the first half of the nineteenth century. Considering Story's treatises on commercial law, the irony of English ‘reception’ is that the Scotsman William Murray (Lord Mansfield, chief of the English King's Bench from 1756 to 1788) had liberally used Roman and civilian sources in developing English commercial law. Much of the usefulness of the earlier European lex mercatoria thus infused American commercial law either through Mansfield or through Story, since the latter cited French commentators in his treatise. Kent, as chancellor in New York, did the same, which served overall to liberalize American commercial law. Pound found that this tendency to rely on Roman and civilian sources spread to private law generally. He concluded:

English equity rules were absorbed into American law in much the same way, although there was particular resentment in some states against equity jurisdiction with its technicalities and many formalistic rules. For instance, Pennsylvania did not have equity jurisdiction until 1836 and Massachusetts maintained only partial acceptance until after the Civil War. Story's treatise on equity again made a difference and brought many Roman law ideas into play as universal statements of natural law.

5. Lieber, Legaré, Walker, Hoffman, and Cushing

6. David Field and his Codes

To this list of influential comparatists, I add David Dudley Field (1805–94). Most jurists know Field, a successful New York lawyer, as a law reformer who advocated codification of both procedural and substantive law to replace the chaotic common law. Field's greatest success came as the pivotal member of the New York commission that submitted its draft Code of Civil Procedure to the legislature in 1848. Enacted in 1849, more than half the other American states and territories adopted the Code in one of its versions by 1873. It was revolutionary since it abolished the English feudal writ and bill system of pleading and replaced it with a single civil action guided by ‘code’ pleading. It also merged law and equity, a distinction that had caused great confusion and delay.

The major source of Field's ideas about codification and the content of his civil procedure rules came from the 1825 Louisiana Code of Procedure. Edward Livingston (1764–1836), a New Yorker who moved to Louisiana in 1804, was trained in the civil law of France and Spain, which influenced his successful Louisiana Practice Act of 1805. He, Louis Lislet (1762–1832), and Pierre Derbigny (1767–1829) drafted the Louisiana Code's projet, drawing from French, Spanish, and Roman law sources, common law tradition, and Livingston's 1805 Act. The cumulative impact of the civilian idea of codification, the numerous similarities in form and substance between the New York Code and the Louisiana Code or the French Code of Civil Procedure (1806), make it likely that Field directly or indirectly borrowed significant elements from civil law sources. Much of the French influence probably made its way to New York via Louisiana, making Louisiana the cultural intermediary between civil law Europe and common law America.

IV. Comparative Law and Historical Jurisprudence (1865–1904)

1. Historical Jurisprudence

After the Civil War (1861–65), natural law ceased to be a creative theory that could work hand in hand with comparative law by borrowing from civil law jurisdictions. In both Europe and the United States, jurists looked inward and revelled in the particular over the universal. Italy in 1861 and Germany in 1871 became modern nation states. Jurists, along with others, emphasized the uniqueness and virtue of their national culture, language, and law. The primary jurisprudential theories that replaced natural law were historical, searching for law in a people's spirit, or analytical, organizing legal rules and discovering principles in a scientific manner. Neither of these approaches seemingly left much room for valuing how other societies solved legal problems. Pound saw this period as a nadir in American comparative law activities.

More recently, Hoeflich and others have demonstrated that comparative law did not so much go into decline, rather its focus shifted. Instead of looking at the utility of adopting specific foreign rules or the codification form, post-bellum comparatists considered the prestige of modifying civilian university legal education and its legal science for American circ*mstances or using ideas from European and especially German legal philosophy to develop a comparative jurisprudence. Hoeflich considers Savigny the most influential civilian during this period, especially his ideas on historical jurisprudence.

2. Making Legal Education Scientific

This period saw the complete transformation of American legal education from a modified English apprenticeship approach, even at Harvard Law School, where instruction relied primarily on lectures, memorization, and recitation. The new system embraced university law schools that adopted major elements related to the goals, method, structure, and ceremony of German legal education, the leading European model. Harvard was the centre of this transformation under the presidency of Charles Eliot (1834–1926) and the Law School's first dean, Christopher Langdell (1826–1906), who served from 1870 until 1895. Eliot, who had travelled for two years in Europe in the 1860s studying educational systems, was the more important. He actively initiated and supported reform throughout the university and presided over most Law School faculty meetings. He hired law professors who lacked a background of professional practice but could be full-time teachers and scholars.

Langdell, with the help of Eliot's leadership, from 1870 to 1885 institutionalized five important changes: (1) an entrance examination; (2) a progressive three-year curriculum, leading to an undergraduate bachelor of laws degree (LLB); (3) requisite annual examinations before students could proceed to the next year's subjects; (4) support for a research function similar to that existing at German universities; and (5) an instructional method utilizing Socratic dialogue to discuss appellate court cases, justified as a scientific process to elaborate general, organic principles of the common law. Langdell contended that he was trying to put American law faculties on a level with universities in continental Europe. Professors and students should together work through questions and answers to discover common law principles, aided by classroom research manuals called casebooks. Langdell's theory of legal science and organic development was similar to that of Savigny.

As dean, Langdell recruited James Barr Ames (1846–1910) as an assistant professor in 1873. Ames was the new breed of academic lawyer, with limited practical experience, that met Eliot's goal for teaching and scholarship. Ames had studied for over a year at German universities. He became a popular instructor, using Langdell's Socratic method, and produced many casebooks that were widely used in American law schools. Legal science promised a complete and orderly system of norms; it brought prestige to law as a science. The American Bar Association Committee on Legal Education and Admissions to the Bar accepted this model in 1879. Harvard Law School's influence on the rest of American legal education up through the twentieth century is unequivocal. Jurists could build the discipline of comparative law upon this foundation.

3. The First Academic Comparatists

Perhaps the institution that best supported comparative law at the end of the nineteenth century and beginning of the twentieth century was Yale College and Law School. James Hadley (1821–72) taught Roman law at Yale College for many years. His lectures, first published after his death in 1873, were so popular that there were several reprints well into the twentieth century. The crucial figure, however, was Simeon Baldwin (1840–1927). John Langbein describes this Yale Law School professor, appointed in 1869, sometime treasurer and major benefactor, as the person who carried the law school into the twentieth century.16 Although Baldwin wrote about public international law and taught private international law using civilian sources, he was not a comparatist in the scholarly sense. His principal contribution was to lend his prestige as one of America's leading jurists to the development of comparative law and its institutionalization as director of the Comparative Law Bureau from 1907 to 1919.

Professors taught Roman, canon, and civil law at Yale Law School from the 1870s. Albert Wheeler's Roman law class from 1876 until his death in 1905 was required for all doctor of civil law (DCL) candidates. One of those doctoral students, Charles Sherman (1874–1960), who also studied in Rome and Paris, replaced Wheeler at Yale from 1905 until 1917. He taught three courses on Roman law and one on canon law. He used a comparative and historical approach that emphasized the relevance of Roman law not only for civil law countries, but also for Anglo-American law. Other professors lectured on the French codes and Savigny's views on obligations.

By the end of the nineteenth century, scholars taught Roman law in several law schools over a wide area of the United States. Munroe Smith (1854–1926), a comparatist at Columbia University, expressed a common view at that time about the role of Roman law in instructing future lawyers. Roman law was no longer of practical use, since courts had stopped citing it (with the exception of cases involving private international law). Furthermore, it was not necessary in teaching the process of legal reform, since a course on English or American legal history could do just as well. However, Roman law was central to teaching law as a science, which required a method, and that method should be the one used by comparative law.

To judge the type of articles written about Roman and civil law during this period, Hoeflich surveyed the leading law journal, the Harvard Law Review, which began publication in 1887. Most of the articles up to 1904 were historical in treating their subjects, and their authors were academics interested in gaining a comparative perspective on modern common law issues. Prominent young comparatists who wrote during this seventeen-year period included Samuel Williston (1861–1963), who authored three articles on contracts, Ernst Freund (1864–1932), who described the new German civil code, and John Wigmore (1863–1943), who published a comprehensive comparative survey on the pledge in three articles. In 1894, William Howe (1833–1909), a Louisiana Supreme Court justice, delivered the Storrs Lectures at Yale and wrote about the development of civil law in America.

In summing up the role served by Roman and civil law in American legal thought during the nineteenth century, Hoeflich found that they gave common lawyers a comparative benchmark by which to analyse their own solutions to problems affecting law and legal institutions. Teachers like Hammond saw the comparative method as a tool for teaching jurisprudence and training law students to be problem solvers. More particularly, they provided models of systematic legal structure, such as codification or those found in treatises, by which jurists could organize common law rules. Scientific university legal education was another example. Furthermore, Roman and civil law, in contrast to the medieval flavour of the common law, appeared to have conceptual and linguistic precision. Scholars such as Lieber attempted to redefine civilian terms and introduce them into the common law. In Latin, they seemed appropriate for university law study and superior to the casuistic nature of law office training. Finally, Roman and civil law, requiring some knowledge of a foreign language, bestowed intellectual prestige on common lawyers.

V. Organized Comparative Law: The First Effort (1904–1950)

1. A Timeline

Sustained scholarly comparative law activity in the United States, together with organized networks of communication, commenced early in the twentieth century, which one can conveniently date from 1904. Largely associated with the successful effort to establish scientific teaching and research at mostly university law schools, twenty-five of which in 1900 created the Association of American Law Schools (AALS), this new field of juristic inquiry emerged from both idealistic as well as practical concerns. Moreover, it was as successful in the United States as the much better-known contemporary national developments in Belgium, France, Germany, and Great Britain.

Organized American comparative law began with the 1904 St Louis Universal Congress of Lawyers and Jurists, the first international congress of comparative law in the United States, held only four years after the justly celebrated 1900 Paris Congrés international de droit comparé. The timeline that follows shows how the discipline of comparative law first developed. I emphasize five stages in this evolution that take us to 1950, when academic comparative law achieves a firmer footing.

First, organizational efforts to establish the Comparative Law Bureau began in 1905, which led the American Bar Association (ABA), the leading national organization of lawyers and judges, to create that entity as a section in 1907. Bureau members met annually at the ABA's summer meeting and published a 200 or so page Annual Bulletin from 1908 until 1914, when World War I disrupted cross-Atlantic connections. This was the first comparative law journal in the United States.

Second, the ABA, although organized in 1878, only started publishing a Journal in 1915. Established as a quarterly, the Bureau's editorial staff controlled the second issue each year, which was devoted primarily to the subjects previously handled in the Bureau's Annual Bulletin. Bureau members continued to meet annually, while the publishing arrangement with the ABA continued through 1929. After that date there were no more special Bureau issues of the ABA Journal, but comparative and foreign law articles still appeared with regularity, about five to ten per volume. In 1931, the Bureau made the Tulane Law Review its official journal, where it published meeting reports and some papers in a special section.

Third, since interest in foreign and comparative law was especially strong in New York City during the 1920s, Bureau members decided to organize a new entity in lieu of simply creating a New York branch of the Bureau in the manner that the International Law Association (London) created branches. Therefore, they established the American Foreign Law Association (AFLA) in 1925, which until 2000 was a sponsor member of the American Society of Comparative Law with a special subscription relationship to the American Journal of Comparative Law.

Fourth, due to the Great Depression, the Bureau fell into financial difficulty in the 1930s. It published one more Annual Bulletin in 1933, 215 pages long, but neither it nor the Bureau could survive. John Wigmore, on the Bureau's council, urged the ABA executive committee to sponsor an amendment to the ABA's constitution, which successfully merged the Comparative Law Bureau with the International Law Section. From 1933, Wigmore served as the first chair of the Section of International and Comparative Law. The Section provided useful publications in its official journal, the Tulane Law Review, and its annual meetings had sessions for academic comparatists, especially the Comparative Jurisprudence Committee and the Teaching of International and Comparative Law Committee. It levied Section dues beginning in 1942 and by the end of World War II the Section had over 1,000 members.

Finally, in 1950, members of the American Foreign Law Association and the ABA Section decided to make a sustained effort to support a more scientific comparative law and its teaching and research in American law schools. The American Foreign Law Association had issued proceedings from its periodic meetings since 1926 (some of its articles also appearing in law journals) and it published bibliographies. Also in 1950, the American Foreign Law Association began publishing a Bulletin, edited by Harvard professor Kurt Nadelmann (1900–84), which according to the American Foreign Law Association president, Phanor Eder (1880–1971), served as an example for the new American Journal of Comparative Law in 1952. In May 1951, the American Foreign Law Association voted to establish the American Association for the Comparative Study of Law, which its directors incorporated in New York in June. In 1992, the Association was renamed the American Society of Comparative Law.

2. The 1904 Universal Congress of Lawyers and Jurists

The St Louis Universal Congress of Lawyers and Jurists was the first international congress of comparative law in the United States. It resulted from a proposal that the ‘Louisiana Purchase Exposition Company’ made to the ABA. After reciting the fact that President Thomas Jefferson purchased the Louisiana Territory for $15 million from France in 1803, the Company proposed to hold a centennial in St Louis in 1903. The proposal noted: ‘The wilderness of 1803 has developed into fourteen States and Territories’ and stated that the city of St Louis, with the help of $5 million from the US Congress and $1 million from the state of Missouri, was willing to devote more than the purchase price (ie $16 million) to a celebration of its centennial. The Centennial Exposition contemplated a ‘World's Fair greater and more wonderful than any ever held’, and ‘to gather together the learned men of the world in the several departments of arts and sciences, including the science of jurisprudence’.

The ABA accepted the proposal, which it postponed until 1904 to further coordinate preparations, and which would now celebrate the centennial of the official transfer of sovereignty from Spain to France to the United States. The World's Fair was a great success, attracting 20 million visitors. St Louis also hosted the third modern Olympics that same year. In 1903, the ABA president had appointed Simeon Baldwin of Yale to the ABA's Executive Committee to implement the Congress, which occurred from 28–30 September 1904, immediately after the ABA's annual meeting.17 Baldwin was one of the ABA's founders (drafting its constitution), a former ABA president (1890–1), and AALS president (1902), Yale law professor until his death, and member of the Institut de droit comparé in Brussels. He would later be chief justice of the Connecticut Supreme Court, Governor of Connecticut, and director of the Comparative Law Bureau from 1907 to 1919.

Unlike the 1900 international comparative law congress in Paris, lawyers and judges organized and ran this one, with a smaller representation from academia. The Congress president was Associate Justice David Brewer (1837–1910) of the US Supreme Court, who was also an international law professor at George Washington University. Brewer was born in Smyrna, Asia Minor (now Turkey), where his father worked as a missionary. His mother was Emilia Field, sister of Supreme Court Justice Stephen Field and the New York codifier, David Field. His experience in Asia came through in strong dissents in cases limiting the rights of Chinese and Japanese immigrants. His 1893 dissent in Fong Yue Ting v United States18 illustrates the view that made him a natural favourite later to preside at a congress of comparative lawyers. In Fong, the Court determined that Congress's power to deport aliens was plenary and inherent in federal sovereignty. Brewer responded: ‘In view of this enactment of the highest legislative body of the foremost Christian nation, may not the thoughtful Chinese disciple of Confucius ask, Why do they send missionaries here?’ Brewer was an anti-imperialist who believed that the United States should give the Philippines its independence and then guarantee its neutrality.

Of the fourteen Congress vice presidents, one from each of the Congress nations, most were judges or lawyers, but four were professors. These persons formed a Committee of Nations and voted on Congress propositions. The majority of the voting members were European: from Austria, Belgium, the British Empire, France, Germany, Italy, the Netherlands, Sweden, and Switzerland. The remaining Congress countries were Argentina, Brazil, China, Mexico, and the United States.

Delegates could present reports and discuss in any language, but Congress staff provided translations into English. Comparative law panels included: (1) the preferable method of regulating the trial of civil actions with respect to pleading and evidence; (2) a review of the four Hague Conferences on private international law; and (3) the extent to which local courts should recognize the judicial action of foreign country courts.

There were 481 registered delegates at the Congress, which was a huge number for such an event, even though most were from the United States. Forty American law professors attended from almost 30 law schools, including deans from leading law schools such as Chicago (Joseph Beale, 1861–1943), Harvard (James Barr Ames), Northwestern (John Wigmore), Pennsylvania (William Draper Lewis, 1867–1949), and Stanford (Nathan Abbott, 1854–1941). Some, in addition to Beale, Lewis, and Wigmore, would publish comparative law research or contribute to comparative law activities, such as Eugene Gilmore (1871–1953, Wisconsin), Charles Huberich (1877–1945, Texas), William Mikell (1868–1945, Pennsylvania), James Brown Scott (1866–1943, Columbia), Munroe Smith (Columbia), and William Walz (b. i860, Maine). The most famous foreign law professors in attendance were Georges Blondel (1856–1948, Paris), Josephus Jitta (1854–1925, Amsterdam), and Friedrich Meili (1848–1914, Zurich).

3. The Comparative Law Bureau

Soon after the 1904 Congress, the question of creating a comparative law society received its first organized recognition by the Pennsylvania State Bar Association in 1905. At the Association's annual meeting, the president appointed a committee to discuss such a project. The committee's report considered the initiative too large for any one state and recommended bringing the matter before the ABA. The ABA created a committee to investigate and recommend the best method to accomplish the goals of comparative law. At its 1907 annual meeting, the ABA authorized the organization of the Comparative Law Bureau, which published its first Annual Bulletin surveying foreign legislation and legal literature in July 1908.

It is likely that the French Société de législation comparée, founded in 1869, which organized the 1900 Paris Congress, served as the model for the American Bureau. In 1896, Professor Henri Lévy-Ullmann (1870–1947, Montpellier, also avocat at the Paris Cour dʼappel), wrote a report describing the French Society in the Harvard Law Review. Lévy-Ullmann served as the general reporter to section 4Close (civil law) at the Paris Congress, which had five United States delegates, including Professor John Burgess (1844–1931) of Columbia University, a specialist on comparative constitutional law.

Lévy-Ullmann described several elements of the French Society that later came to parallel aspects of the American Bureau. First, the Society's members were lawyers and judges as well as scholars. Second, its principal tasks were to translate and publish interesting foreign laws and to stimulate comparative law studies that could aid legislatures in law reform or simply provide useful information (such as a series of essays on bar organizations in diverse countries). Third, it published a periodic Bulletin, which included translated legislation and comparative law studies. Fourth, it published translations of foreign codes, constitutions, and statutes (by 1896, from England, Germany, Hungary, Italy, Montenegro, Netherlands, Portugal, Russia, Scandinavia, United States, and Zurich) and a few comparative studies, for instance, on the treatment of aliens or notarial law. He concluded: ‘Its main object is, by putting the knowledge of the laws of all countries within the reach of everybody, gradually to bring about uniformity in legislation through the development of the science of law; this is pre-eminently a work of civilization and of progress.’19

The Bureau's officers included Simeon Baldwin (Yale and Connecticut Supreme Court) as director and William Smithers (1864–1947) as secretary. Smithers was from Philadelphia, where the International Printing Company published the Bulletin, and he also served as the chairman of the Bulletin's editorial staff. The Bureau s managers included James Barr Ames, dean at Harvard, George Kirchwey (1855–1942), dean at Columbia, William Draper Lewis, dean at Pennsylvania and later the first director of the American Law Institute, and John Wigmore, dean at Northwestern. In 1911, Roscoe Pound, then Story professor at Harvard, became a manager. In the Bulletin's first issue, the Bureau presented its aims.20

The Bulletin was circulated to all ABA members, numbering over 2,000, and to other subscribers. The editorial staff in 1908 included: Baldwin for general jurisprudence; Robert Shick (b. 1869) for Austria-Hungary; Arthur Kuhn (1876–1954) for Belgium; Smithers for Egypt, France, and Turkey; Ernest Lorenzen (1876–1951, George Washington) and Roscoe Pound (then at Northwestern) for Germany; Charles Wetherill for China and Great Britain; Masuji Miyakawa (d. 1916, first Japanese admitted to a state bar) for Japan; Leo Rowe (1871–1946, Pennsylvania) for Latin America; William Hastings (1853–1937, dean at Nebraska from 1909) for Russia; Samuel Scott (1846–1929) for Spain; and Gordon Sherman (1854–1925) for Switzerland.21 In 1910, Smithers added Charles Huberich (Stanford) to the Bulletin's editorial staff for the British Colonies and Edwin Borchard (1884–1951) and Samuel Williston (Harvard) for Germany. In 1911, he added Charles Lobingier (1866–1956) as editor for the Philippine Islands, where he was a judge (1904–14) and law professor at the University of the Philippines (1911–21). Borchard became law librarian at the Library of Congress in 1911 and then librarian and professor at Yale Law School in 1917. In 1910, the Bureau had five law libraries and seventeen law schools as institutional members. By 1914, that number had grown to fourteen law libraries and twenty law school institutional members.

4. The Bureau's Support for Publications

In addition, Boston Book (and its successor, Macmillan Company) published twelve volumes in the Modern Legal Philosophy Series between 1911 and 1925, which an Association of American Law Schools (AALS) committee, chaired by John Wigmore and dominated by comparatists, edited.22 The volumes primarily consisted of civilian legal science books, articles, and excerpts translated into English. Besides making continental legal theory accessible in English, the editors (who sometimes also translated) and others wrote useful introductions and editorial prefaces.

5. The 1920s and 1930s: American Comparatists Look Abroad

The 1920s and 1930s were decades during which American comparatists became actively involved in European legal research and European legal conferences, although also with substantial interest in Asia and Latin America. ABA Journal special sections devoted to comparative law reflected this as did American submissions to foreign legal publications. The 1925 Journal reported that foreign law had become increasingly important in the United States, both for the goals of comparative law as well as private international law. The Journal went to all ABA members, numbering around 4,000 in 1920, but increasing to 30,000 in 1936. In 1930, fourteen law schools reported offering a comparative law course, usually to graduate students.

6. The American Foreign Law Association and the American Law Institute

In 1924, the Comparative Law Bureau adopted a resolution to create a New York section of the Bureau. That same year, during a visit of hundreds of American lawyers to the ABA annual meeting held in London, the Société de legislation comparée entertained a group of the lawyers who had travelled to Paris. At that meeting, some suggested that the Americans form a Société branch in the United States. There followed a meeting between the president of the New York City Bar Association, the chair of its special committee on private international law and conflicts of law, and the Bureau's chairman and vice chairman. They decided to form an organizational committee that led to the 1925 founding of the American Foreign Law Association (AFLA).24

American Foreign Law Association dues were set at $10 annually. The first elected president was William Smithers. The General Council included Manley Hudson (1886–1960, Harvard), Judge Otto Schoenrich (b. 1876, New York City), Judge Charles Lobingier (United States Court for China and professor, Comparative Law School of China, 1914–24), Phanor Eder (New York City), and Arthur Kuhn (New York City). In 1925, the American Foreign Law Association had forty-two American members and nine foreign members.

It is also worth noting the significant relationship between comparative law and the founding of the American Law Institute (ALI) in 1923. William Draper Lewis, one of the Comparative Law Bureau's managers since 1907, became the first director of the ALI. Among the forty person committee organizing the ALI were four individuals with experience in foreign law: Ernst Freund, Roscoe Pound, John Wigmore, and Samuel Williston. Williston was the reporter for the ALI's first restatement, on contracts, which appeared in 1932. Mitchell Franklin (1902–86), a Romanist at Tulane, chided the ALI for its unwillingness to admit (what Williston had recognized) that its restatement represented the first step toward codification.25

7. Tulane College of Law

After 1929, when the ABA discontinued publishing the Bureau's reports, three young Harvard law professors, Walther Hug (1898–1980), Gordon Ireland (1880–1950), and James Thayer (1899–1976), together with Mitchell Franklin, a recent Harvard JSD graduate, convinced the Tulane Law Review to provide the Bureau with a section in the Review devoted to comparative law. Franklin had begun teaching at Tulane University College of Law in 1930, and the Bureau selected the Review to be its official periodical in 1931. The College had developed a special relationship with the Bureau dating from 1916, when the College began publishing the Southern Law Quarterly. John Wigmore wrote its lead article, ‘Louisiana: The Story of its Legal System’, and Charles Lobingier wrote two articles.

In 1931, Ernst Feilchenfeld (1898–1956), assistant professor at Harvard (1926–32), joined the original Harvard group and they all were listed on the Review masthead as ‘Comparative Law Editors’. Hug and Feilchenfeld earned their doctorate of law degrees in Zurich and Berlin, respectively. After the Bureau merged with the ABA International Law Section in 1933, the new Section of International and Comparative Law, with Wigmore its first chair, chose the Tulane Law Review to be its ‘official organ’. Section reports included articles by American and foreign comparatists, which continued until World War II no longer made it feasible. Besides Section reports, the Review organized a group of comparatists to contribute to a new part of the journal that digested interesting articles appearing in foreign legal periodicals.

In 1932, the Tulane Law Review further expanded its comparative law mission. The faculty editor announced that if the Review was to ‘fulfil its place as a comparative law journal its organization must be on a broader and more comprehensive basis; it must not only reflect the developments and achievements of comparative law in the United States, but in the rest of the civilized world as well’.26 To re reflect this new role, the Review announced that it was the official ‘American medium of expression of the International Congress of Comparative Law’, held at The Hague in 1932, and that it would publish the official American report of the proceedings and several general reports from that Congress. The Review continued this role for reports from the Second International Congress of Comparative Law, held in 1937 in The Hague.

In 1949, the dean at Tulane announced the establishment of the Tulane Institute of Comparative Law, led by Ferdinand Stone (1908–89), based on the school's early support for comparative law and Louisiana's French and Spanish legal heritage and relationship with Latin American jurists. Stone, who earned a civil law degree at Oxford as a Rhodes Scholar and a JSD at Yale, reported on the 1950 London International Congress of Comparative Law in the Tulane Law Review, where he also published the national report he presented in London. In 1956, the Ford Foundation provided the Institute with $275,000 to strengthen the Tulane civil and comparative law programme and in 1957, the Rockefeller Foundation added $114,000 to establish a programme in Latin American legal studies.

8. Roscoe Pound

America's leading comparatist during the first half of the twentieth century was Roscoe Pound. After attending Harvard Law School, Pound began his academic career at the University of Nebraska in 1895, where he taught Roman law in the Latin department. In 1899, he continued that course even after his appointment as professor in the law department, where he became dean in 1903. In 1907, he joined the law faculty at Northwestern University and later the University of Chicago, after which he accepted the Story professorship at Harvard Law School in 1910. There he served as dean from 1916 until 1936. Pound continued to lecture and publish at Harvard until 1947 and elsewhere nearly until his death in 1964.

9. John Wigmore

Another major American comparatist with a worldwide reputation during this period was John Wigmore. He began his comparative law career when Harvard's president, Charles Eliot, selected him in 1889 to be the first professor of Anglo-American law at Keio University in Tokyo. Japan at the time was intensely interested in transplanting the best features of Western law. Wigmore became an expert in Tokugawa law and corresponded with scholars such as Josef Kohler (1849–1919, Berlin), who was a German delegate at the 1900 Paris Congress.

In 1893, Wigmore joined the Northwestern University Law School faculty, serving as dean from 1901 to 1929. He attended the 1904 St Louis Congress and was on the founding board of managers of the Comparative Law Bureau in 1907, remaining until its merger in 1933. Wigmore chaired the AALS editorial committee (all typically Bureau members), created in 1909, that oversaw the publication of the extremely useful ten-volume Continental Legal History Series. The other committee members were usually the same persons who organized and edited the Modern Legal Philosophy Series. The history volumes provided translated excerpts from books and articles and some original material on important aspects of European legal history and jurists. There were separate volumes on French, German, and Italian law as well as on civil procedure and criminal law and procedure. Wigmore was actively involved—editing, translating, and writing prefatory and introductory material.

Between 1915 and 1918, Wigmore and Albert Kocourek compiled and edited the three-volume Evolution of Law, bringing into one place English language excerpts and translated foreign writing about ancient and primitive legal systems, the rules themselves, and the physical, biological, and social factors influencing legal development. The authors intended the first volume, carrying the specific title Sources of Ancient and Primitive Law to be used as a book of materials to accompany the case method of teaching originally developed at Harvard. Consequently, Sources, published in 1915, is the world's first published comparative law ‘casebook’. Although it is commonplace to think of comparative law as the study of similarities and differences in the laws of distinct systems, Wigmore and Kocourek were concerned primarily with similarities. Like other comparatists of their era, they saw unification of law as an important task (or at least insight) for the discipline. As with other comparatists in America and Europe, they also viewed the discipline broadly to include history, jurisprudence, and ethnology.

Wigmore wanted comparatists to have as much contact with the living law of a foreign system as possible, preferably learning the foreign language and residing in the country. Since he knew that this was often not possible, and if so, only for one or two countries, he advised scholars, in preparing their comparative studies, to adopt three perspectives. First, learn about the ethical, economic, and social background of their subject legal system. Second, review legal materials used in everyday social life, such as deeds and contracts as well as travellers' accounts of legal places and events such as courthouses and trials. Finally, use pictures so that a reader could visualize the legal reality.

Wigmore argued for this methodology, which he applied in his Panorama. There he surveyed sixteen principal legal systems, past and present: Egyptian, Mesopotamian, Hebrew, Chinese, Hindu, Greek, Roman, Japanese, Mohammedan, ‘Keltic’, Slavic, Germanic, maritime, papal, Romanesque, and Anglican. To bring his subject to life he incorporated 500 illustrations. He followed this in 1941 with A Kaleidoscope of Justice: Containing Authentic Accounts of Trial Scenes from All Times and Climes. The book's subtitle suggests the author's intent, which is to ‘tell us of Justice as it is done, not of Justice as by the books’. Predating television broadcasting, Wigmore relied on the ‘records of travel and adventure by eye-witnesses of the scenes described’ to provide ‘informational entertainment’ and a ‘collection of pen-pictures’. Nevertheless, Wigmore the scholar, could not restrain the temptation to ‘draw inferences from these scattered instances to some general truths, truths of evolution and principles of policy’, which he did in his twenty-four-page epilogue.

10. The 1930s: Achievement during a Difficult Period

In 1932, Wigmore wrote an article in the ABA Journal entitled ‘An American Lawyer's Pilgrimage on the Continent’. His purpose was to interest lawyers in attending the upcoming international congress of comparative law at The Hague. In the notice following this article, he explained: ‘This is the first Congress of this kind to be held since the International Congress of Lawyers at the Louisiana Purchase Exposition in 1904 in St Louis. It is organized by the International Academy of Comparative Law, of which the American members are Edwin Borchard, John Bassett Moore, Roscoe Pound, James Brown Scott, and Justice Harlan F. Stone.’28 In 1930, Wigmore had translated and published Edouard Lambert's report calling for such a congress. Wigmore mentioned that forty countries had formed national committees. Those would designate national reporters for the topics in which they cared to participate. Although the United States attorney general headed the American committee, and forty state, county, and city bar associations appointed delegates, Wigmore was the driving force in soliciting attendance.

At the end of 1932, Wigmore dutifully reported in the ABA Journal about the Hague Congress and its major American presence. Delegates represented thirty-one countries. Of the 305 delegates registered in attendance, seventy-two came from the United States. Of these, at least twenty-eight were professors who represented sixteen law schools or university faculties. The second largest contingent of fifty-two participants came from France. Shortly thereafter, the ABA merged the Comparative Law Bureau in 1933 with the International Law Section, whose first chair was Wigmore.

Near the end of his deanship, Pound gave the address at the 1935 annual meeting of the newly constituted ABA Section of International and Comparative Law. In magisterial form, he surveyed the history of comparative law since the twelfth century, described its importance for development of law in the nineteenth-century United States, and argued that current comparative law was one of five universalizing elements helping to break the cult of local law. He also supported comparison beyond mere legal rules to embrace legal systems, and described the utility of the functional method of comparison.

Although the Great Depression, and later World War II, made serious comparative law research difficult, there was a surprising amount of important activity in the United States, partly supported by the wave of émigré legal scholars from Germany and Austria. Scholars examined this fascinating process of legal transplantation through the stories of individual scholars, which fully blossomed in the post-war period, at a conference held in Bonn in 1991. Refugee jurists had a very difficult time finding positions in American law schools, often only after a period of ‘re-education’ in American law. Even then, since fewer than ten law schools offered a course in comparative or Roman law, most refugees had to settle for a research position, at least during the 1930s and early 1940s.

In 1934, Francis Deák (1898–1972) prepared and used at Columbia School of Law one of the earliest American-style casebooks for his comparative law class. Although focusing only on torts, it examined selected statute or code articles, legislative debates, projets, and motifs, American restatements, and judicial decisions of England, France, Germany, and the United States. Its innovative synthesis of the civilian emphasis on legislation (but without the scholarly overlay) and common law reliance on cases was only part of its distinctiveness. It also included briefs, references to other materials, hypothetical cases, and questions for the students.

The International Academy of Comparative Law called for a second international congress at The Hague in 1937. Wigmore was the chair of the United States committee and again actively encouraged attendance. The United States had the largest national contingent of delegates among the thirty-five nations represented, forty-seven out of 240 jurists in attendance. It also had the largest number of universities represented, eleven compared to the next highest national group, which was Germany with professors from seven universities. Americans wrote general reports for twelve of the topics. Among those who attended were Harriet Daggett (1891–1966, Louisiana State), America's first female comparatist.29

Most of the work for organized comparative law in the late 1930s and 1940s fell to the American Foreign Law Association and the ABA Section on International and Comparative Law. The ABA Section, reorganized in 1937, elected Eder as vice chair and Vance as secretary. Wigmore was on the Council and its Advisory Committee included Frederic Coudert (1898–1972), a partner in the eponymous Coudert Brothers law firm in New York (then America's leading firm for foreign law issues), Edwin Dickinson (1887–1961, University of California, Berkeley, who attended the 1932 Hague congress while at Michigan), and Pound.

VI. Firmly Establishing Comparative Law (1950–2005)

1. The Post-War Period

At the beginning of the twentieth century, the United States was already a powerful nation with an overseas empire and an even greater reach for economic hegemony. After finishing on the winning side of two world wars, America emerged as the world's leading economic power, which after the collapse of Soviet communism in 1989 confirmed that it was the superpower. During the last fifty years of the twentieth century, consistent with this new status, American comparatists—both scholars and practising lawyers—engaged more actively in the exportation of American law and legal institutions in contrast to the net importation that occurred in the nineteenth century.

Some of this influence stemmed from American military occupation, such as that in the late 1940s and 1950s in Germany, Japan, and South Korea. One can see the impact in public law, especially constitutional law, and in institutions such as judicial review. During the cold war contest with communism in the 1960s and 1970s, the US Government and some American foundations with law and development programmes supported the battle in developing nations, many newly independent as part of the United Nations' effort toward decolonization. These programmes sought to implant certain American legal features such as active teaching in law schools, or social engineering for lawyers and judges, as a spur to economic and political development. In the 1990s, the American Bar Association's Central European and Eurasian Law Institute programme, ‘promoting the rule of law’, provided thousands of advisers to help write constitutions and laws in Russia, its former republics, and a few other developing nations.

2. UNESCO, American Foreign Law Association, and the AALS

From 1949 to 1951, American and European comparatists made concerted efforts to place comparative law studies on a firmer institutional basis. In 1949, UNESCO sponsored a conference of experts in Paris, which recommended the creation of the International Committee for Comparative Law. This was part of a UNESCO programme to develop international institutes of social science. Among comparatists resident in the United States, the 1949 conference included John Hazard (1909–95), Arthur von Mehren (1922–2006), and Ernst Rabel. UNESCO in 1950 created and funded the Committee, whose members were limited to national comparative law committees, while international organizations such as the Rome Institute for the Unification of Private Law were eligible as associate members. The Committee (which became the executive committee of the new International Association of Legal Science in 1956) would admit a national committee if it was satisfied that the national committee was representative of those entities or persons engaged in comparative law in that state.

By 1952, the Committee had accepted twenty members, including the United States. A Council and Bureau conducted the Committee's business. Each national committee had one delegate to the Council, which elected the rotating members of the seven-member Bureau. The Bureau took on an organizational element from the United Nations' Security Council: it had three permanent members—France, the United States, and the United Kingdom. The American delegate was Alexis Coudert (1914–80); the Bureau's first secretary-general was René David (1906–90).

The American Foreign Law Association undertook the task in 1950 of becoming the United States ‘national’ committee to the International Committee, whose agenda was primarily scholarly and involved sponsoring conferences and book publication. Since the American Foreign Law Association was largely a body of practising lawyers from the northeast, it needed to broaden its membership (about 170 in 1950) to include both more law professors and more residents from beyond the eastern seaboard. In 1951, it organized chapters in Chicago and Miami, and by 1952, it listed 38 law professors out of a total membership of 253. Both Germany and the United Kingdom in 1950 also created national committees for comparative law.

Comparative law also moved forward on other fronts. In 1950, probably due to the effort of John Hazard, the Association of American Law Schools created the Committee on Comparative Law, which was now independent of its International Law Committee. Arthur von Mehren chaired the Comparative Law Committee's annual programme from 1952 to 1953 and Hazard chaired in 1954. In addition, the Comparative Law Division within the ABA Section of International and Comparative Law remained active with seven committees, some of which took a scholarly perspective or interest in comparative law teaching.

3. The American Association for the Comparative Study of Law

Many of the law school affiliated members of the American Foreign Law Association believed that comparative law needed an organization, principally of law school sponsors, that could support a quality journal dedicated to the subject, similar to those existing in France, Germany, Great Britain, and Italy. Since the United States did not have a funded institute or centre of comparative law like that in Berlin or Paris, Americans would need to invent the functional equivalent. That entity would be the American Association for the Comparative Study of Law (AACSL), whose directors filed its certificate of incorporation with the New York Department of State in June 1951.30 The founders believed that comparative law was too vast a field for a single institution to pre-empt it, and, even if possible, it would be undesirable in a nation as diverse as the United States. This attitude precluded tying the Association or its journal financially with the Parker School of Foreign and Comparative Law31 at Columbia University or the new Tulane Institute of Comparative Law and the Tulane Law Review. Although the Parker School was a founding member of the American Association for the Comparative Study of Law, Tulane only joined in 1956.

The American Association for the Comparative Study of Law held its first meeting in July 1951 during the ABA annual meeting. Representatives of twenty law schools met at New York University (NYU) Law School to discuss joining the Association, which changed its name in 1992 to the American Society of Comparative Law. That first year, ten schools plus the American Foreign Law Association joined as sponsor members, each with one director.32 These directors elected Phanor Eder president, Hessel Yntema vice president, Alexis Coudert secretary, and David Cavers treasurer. This election continued the pattern of mixing scholarly and practice-oriented interests that had characterized American comparative law since its beginning. Both Eder and Coudert were prestigious New York City attorneys involved in foreign practice, although all the remaining directors were full-time law professors. Coudert was a law professor at Columbia and acting director of its Parker School from 1949 to 1955, when he succeeded Eder as president of the American Association for the Comparative Study of Law.

4. The American Journal of Comparative Law

Plans for the American Journal of Comparative Law began even before the Association's creation. The first meeting occurred at the Parker School in April 1950, followed a year later by a similar meeting at Harvard. The initial meeting of the Journal's board of editors took place at the University of Michigan in November 1951. By the first issue in 1952, two more sponsor members (Cornell and the University of California, Berkeley) had joined—that is, paid their $500 annual dues to—the Association, each of which had the right to select one editor for the board (who could also be its Association director).33 Although all were full-time law professors, Hessel Yntema, the editor-in-chief, emphasized both the practical and scientific objectives of the Journal.34

Roscoe Pound wrote the lead article in the Journal. Reminiscent of the earlier Comparative Law Bureau's Bulletin and its continuation in the Tulane Law Review during the 1930s, the Journal had sections on documents, foreign law case digests, book reviews, book notices, and foreign law periodicals. The American Foreign Law Association printed its ‘Bulletin’, which it began in 1950, in the Journal. Most of the Journal, however, had a distinctly scholarly tone dedicated to articles, notes, and comments.

5. Growth and Maturity: The American Society of Comparative Law

The Association grew slowly through the 1950s and 1960s. In 1963, the International Association of Legal Science named the American Association for the Comparative Study of Law its American member and national committee. The American Association for the Comparative Study of Law had only thirty sponsor members by 1970. However, the Journal found its place as the centre for the discussion in the United States of important issues related to comparative law and private international law. Many foreign comparatists also published their work in the Journal. When the ABA Section of International and Comparative Law, with Edward Re as chair, established The International Lawyer as a quarterly in 1966, it relieved any remaining pressure to achieve a balance between practical and scholarly concerns either in the Association or with the Journal. Both more clearly reflected, from the 1970s on, an academic flavour.

The Association rotated its annual meeting among sponsor schools. In the 1980s, the Association began to hold a one-day scholarly programme in addition to its dinner and half day business meeting for the Association and the Journal. In 1990, the Association broke from the tradition of maintaining a president who did not hold a full-time position at one of the sponsor member law schools. Edward Re, chief judge of what later became the United States Court of International Trade, was the last such president (1971–90). Phanor Eder (1951–5) and Alexis Coudert (1955–60 and 1965–71) were his predecessors. The only exception was the presidency (1960–5) of Miguel de Capriles, director of the NYU Inter-American Law Institute (1947–57) and dean of its School of Law (1964–7). Also in 1990, the members modified the Association by-laws so that they elected all officers for two-year terms, with four years of maximum service as president or vice president. In 1992, the Society changed its name to the American Society of Comparative Law.

After the collapse of the Soviet Union, there was an accelerated globalization in economic, social, and cultural life in the 1990s. These forces affected law primarily through improvements in information dissemination and via the spread of American-style law firms worldwide. American lawyers are at the front of this expansion in transnational legal services, earning billions of dollars. American law schools, even after the 2001 terrorist attack on the World Trade Centre in New York City, train about 2,000 foreign lawyers annually, most of whom earn the one-year LL M degree. More than a thousand of these foreign graduates then go on to pass the New York state bar examination each year. This globalization of law, or what some call Americanization, occurs in English and cannot help but provide a much larger base on which to build a multi-faceted comparative law.

Comparative law in the United States today is more vibrant than ever before. The willingness of American comparatists to subject their discipline to serious critique illustrates its health.35 Virtually all of the 184 fully accredited law schools offer one or more comparative law courses. A majority of these schools offer summer or semester programmes abroad for their students. In addition, over thirty of these schools offer international and comparative LL M graduate programmes for specialized study in this area and more than forty offer an LL M programme for foreign-trained lawyers to study for a year in the United States. The ABA Section of International Law and Practice, which includes comparative law as well as business transactions and disputes as two of its five divisions, has 13,000 members worldwide.

Finally, the American Society of Comparative Law now has over 100 law school and institute sponsor members (most with multiple representatives). These even include members from Canada, France, Italy, Germany, Singapore, and Switzerland and there are, in addition, over twenty foreign corresponding institutional members. Besides its annual scholarly meeting, the Society is co-sponsoring more academic conferences than ever before, both in the United States and abroad. Its Journal has the largest worldwide circulation of any comparative law publication. Moreover, Society members have been active in establishing student-run comparative and international law journals at their home institutions. These journals number more than seventy-five, which provide a written outlet for Americans and others to express their every thought related to foreign and comparative law.

6. Scepticism and Assessment

At the same time as there seem to be many indicators of success, there are sceptics of American comparative law's position in legal education or more generally its influence in American legal life. Measured from the 1930s, there appears little doubt that there has been important progress in the acceptance of foreign and comparative law teachers and journals in United States law schools. American lawyers and judges deal with foreign law issues every day. The globalized law firm is a fact of modern legal practice.

What is the case for scepticism? No law school makes comparative law a core discipline or puts comparatists at the centre of scholarly debate. This is true even of New York University School of Law, which claims to be the country's pre-eminent global law school. In the United States, the centre of most attention at most schools is constitutional law, its various subdisciplines, and the United States Supreme Court. Faculty hiring decisions and budget allocations reflect this situation, which is simply a reality of American legal history and culture. Another complaint is that domestic American law students are generally ill prepared to take on serious comparative law study, since they lack a rigorous background in history, philosophy, or languages. This has some merit, but may be changing as law faculties are hiring more professors with doctoral degrees outside law and creating more post-JD degree programmes, and as students come to appreciate the demands of global legal practice. US law schools are also willing to hire a few foreign-trained professors, which add to the school's global perspective.

A more pessimistic critique appeared in 1997 and 1998 in two symposium law journal issues on comparative law.36 Several essays from the Michigan-Hastings conferences decried a stagnating discipline's lack of methodological reflection and theoretical foundation and comparatists' failure to re-examine goals and methods in light of new realities. Since most comparatists believe that the history of American comparative law began with the émigré group in the late 1930s and 1940s, it is easy to conclude that the discipline is really a mostly German import that never really fitted American circ*mstances and is thus today badly out of date.

Part of this critique, nevertheless, contains the seeds for improving the importance of comparative law in legal academia. As a ‘subversive’ discipline, it can promote cultural criticism, which allows us better to understand our basic assumptions about law and perhaps to stimulate us to consider change. Critics call for comparative jurisprudence, or efforts to conduct research with scholars from outside law in interdisciplinary projects, or movement away from norm-centred research toward system dynamics.37 Some of this critique seems to ignore the best work accomplished, particularly in the latter half of the twentieth century, toward these very ends. Of course, more would be desirable, but it is hardly easy, and some of the proposals might simply be impossible to achieve.

The Utah conference drew a mixed group of participants. Some older comparatists pointed out that many of the papers used approaches that were hardly new, but rather solid examples that drew from the toolbox already available for comparative research. Others borrowed heavily from the jargon of critical legal studies, identity politics, literary theory, or feminism to criticize what most comparatists do. From much of that, it would be hard to map a path forward.

Another approach to assess the importance of American comparative law would not line it up against other American legal or allied disciplines, or contrast it with some mythical scholarly universe, but rather use its own methodology to measure its activity relative to the strength of comparative law in foreign countries. Here, I present two examples. First, in this Handbook itself, one of the two co-editors holds his academic position in the United States and sixteen authors for forty-three chapters affiliate with American universities. Germany, the next most represented country, has eight authors. Second, consider the most ambitious comparative law project of all time, the International Encyclopedia of Comparative Law. As described by its executive secretary and current responsible editor, Ulrich Drobnig, the existing comparative law treatises in 1965 did ‘not satisfy the current demand for a compendium containing a comparison of all legal systems on an international scale and covering broad segments of the law’.38 To call this project ambitious would be an understatement, although it was limited to private civil and commercial law. Originally conceived to cover 17,000 pages and to cost $3 million, the publisher released the first instalment of chapters in 1971. The first (and only) full ‘volume’, in two books, appeared in 1983. As of 2004, for the anticipated seventeen volumes, United States comparatists were chief editors of five volumes; Germany provided the next greatest number of chief editors, four.

Perhaps surprisingly, with historical perspective, there is a sense in which American comparative law today is less significant in legal academia than it was in the first quarter of the twentieth century. This approach would consider the national leadership of United States law schools, persons with whom all law teachers would be familiar, and ask whether those leaders were active in organized comparative law. In recent decades, the answer in general would be no. Looking at the first quarter of the twentieth century, however, seven of the first twenty-five presidents of the AALS were active in comparative law activities. These were Simeon Baldwin (Yale, 1902, the Comparative Law Bureau's director), George Kirchwey (Columbia, 1907, Bureau manager), Roscoe Pound (1911, Harvard, Bureau manager and original member of the International Academy of Comparative Law), Joseph Beale (1913, Harvard), Harlan Stone (1916–19, Columbia, original member of the International Academy), Eugene Gilmore (1920, Wisconsin), and William Draper Lewis (1924, Pennsylvania, Bureau manager).

VII. Conclusion

The first 125 years of United States history saw some exportation of American laws and legal institutions, primarily to the newly independent Latin American nations in the 1820s. These included concepts from the Constitution of 1789, the 1791 Bill of Rights, and public law structures such as federalism, a presidential executive, and judicial review of legislative and executive action. American comparatists did not pay much attention to this process of outbound law, but concerned themselves with comparison as a filter for the importation of rules and structures meant to serve an emerging nation in the new world.

By the twentieth century, American comparative law began to form as an organized activity, with its own journal and annual meetings. This process was uneven, but steady. When the Comparative Law Bureau folded into a more comprehensive ABA section, the American Foreign Law Association kept the flame alive. Comparatists dealt with more complex methods and issues, some debated in international meetings. They developed the first American comparative law ‘casebooks’ to educate students in the discipline.

However, the full flowering of American comparative law bloomed only after World War II, with a healthy push by émigré scholars from Europe. This process accelerated with the economic and cultural dimensions of globalization after 1990, which involve most aspects of law from business to the family as well as the larger issues of legal institution building. Just as the justices of the United States Supreme Court debate the utility and meaning of these forces for the American legal system, other Handbook chapters that treat comparative law approaches and subject areas illustrate the rich American contribution to the field during the contemporary era.

Bibliography