The doctrine of judicial review, first au thoritatively set forth by Chief Justice Marshall in Marbury v. Madison (1803), was expounded and amplified by Thomas M. Cooley in his (Constitutional Limitation) (1868). This work had an almost unrivaled influence upon bench and bar. The courts, at least until the close of the 19th century, were generally under the domination of the doctrines of natural rights and laissez-faire. With the increasing sphere of legislative activity in Congress and in the State legislatures, based upon newer concep tions of social justice, there frequently ap peared decisions by the courts, Federal and State, which many regarded as reactionary, and even as usurpations of power. Justice Holmes in several dissenting opinions of the United States Supreme Court has strikingly emphasized the true function of the judiciary. It would seem that in recent years courts have been more conservative than formerly in de claring statutes unconstitutional.
Increasing attention has been paid during the present century to improvement in the form of the statute law. Many States, realiz ing that legislative activity is still on the in crease, have sought to remedy the traditional crudities of expression and to improve the technical quality of the statutory law by the establishment of legislative reference and law drafting bureaus. It is too early, however, properly to appraise the influence of these agencies.
Earlier diversities of law among the various States produced great confusion, particularly in the field of commercial law. As a result of the efforts of the Commission on Uniformity of Legislation, an instrumentality working with and encouraged by the American Bar Associa tion (established in 1878), a uniform Negotiable Instruments Act has been adopted by all the States and Territories except Georgia and Texas. Uniform warehouse receipts, stock transfer, bills of lading, sales and partnership acts, prepared and advocated by this commis sion, have been adopted by many States. This body of uniform State laws is increasing yearly and its influence may well be to develop a new common law, wherein identical statutes will give rise to uniform interpretation.
The noteworthy tendencies in American law at the present ume are, (1) the constantly widening sphere of government, State and Federal, away from laissez-faire and toward collectivism and State interference, motivated by a new sense of social justice and not by in dividualistic natural rights, and effected by the statutory enlargement of the police power by the States, and by what is in effect a Federal police power exercised under the guise of power over interstate commerce; (2) the in creasing adoption of uniform legislation in mat ters affecting business; (3) the progressively increasing area of statutory law, Federal and State, by legislative assemblies and by popular initiative and referendum; (4) the confusion between purely constitutional and properly statutory matters; (5) the modified concep tion of the judicial function, and (6) simplifi cation and settlement of judicial procedure.
For nearly two centuries and a half after the English colonies were planted in America, American jurisprudence changed gradually, keeping in harmony with the political and social conditions of the colonies and States. Then with a great wave of immigration and far reaching industrial changes and the occupation of a continent from ocean to ocean, American, jurisprudence set itself to meet the needs of a modern and complex society. The result has been an enormous product of legislation and a much bulkier output of decisions from the Fed eral and State courts. A system of law, to be sound, must have an orderly development; it must be progressive and not revolutionary. Many of the changes which have taken place in America have likewise been adopted in England and for the same reason as in this country. Since 1875 the English procedure has been sim ilar to the American. Both the English and American systems of jurisprudence are, there fore, parts of one great system, based upon the common law of England and built to satisfy the requirements of a modern commercial and in dustrial society, wherein personal freedom has the greatesj possible play. Its idea of personal right is its heritage from the common law. See also various articles under LAW.
Centuries' Growth of American Law' ; Kent, 'Commentaries' ; Story, `Commentaries on the Constitution' ; Minor, 'Institutes of Common and Statute Cooley, 'Constitutional Law and Cooley, (Constitutional Limitations); Robinson, (Elements of Holmes, Common Pomeroy, Jurispudence) and (Remedies' • Fisher, (Evolution of the Consti tution of the United States' and tion of Equity through Common Law Reinsch, (English Common Law in the Early American Colonies' • Hilkey, Develop ment in Colonial Statutes in • Field, Reform in the United States); Wilson, of Chancery in American Bar Association, 'Annual Reports' ; Conference of Commissioners on Uniform State Laws, 'Annual Proceedings' ; Roscoe Pound, various articles in the Harvard Law Review and else where; Freund, 'Standards of American Legislation' i Baldwin, 'American Warren, 'History of the American Bar.' JEssa S. REEVES, Professor Political Science, University of Michigan.