Why Lawsuits Are Good for America: Disciplined Democracy, Big Business, and the Common Law

By Carl T. Bogus | Go to book overview

3
The Third Branch of Government

Beginnings

When, in the early seventeenth century, small bands of Europeans set out on dangerous voyages across the Atlantic to establish tiny settlements on the shores of North America, they could not know that the forces propelling them across the ocean would combine with the circumstances awaiting them in such a way as to produce concepts of law and government radically different from any the world had ever known. A new idea was to be born: the separation of religious and secular spheres of authority. This concept of differentiated spheres of authority would lead to a parallel idea of dividing powers within the government itself, that is, to the principle of separation of powers among governmental departments. And this idea, in turn, would give rise to an independent judiciary existing as a coequal branch of government, with profound implications for both law and governance.

For our purposes, it may be best to begin with the observation that many of the early settlers were dissidents fleeing compulsion to conform to orthodoxy. The Puritans who settled the Massachusetts Bay Colony wanted to worship as they pleased. They had not, however, generalized the idea of freedom in religion or speech. Within five years of establishing the Massachusetts Bay Colony, the Puritans decided they could no longer tolerate Roger Williams, the pastor of the congregation in Salem, Massachusetts, who refused to conform to the Puritans' own orthodoxy.1 Williams had come to the New World to bring Christianity to the Indians and was displeased that the Puritans were more intent on taking Indian land than on giving Indians religion. Worse, Williams preached religious heresy. He believed that God made His covenant not with congregations, through ordained ministers, but directly, with each individual. This was dangerous. It meant a layperson's claim to know truth was as authoritative as that of church officials.

A friend tipped off Williams that he was about to be arrested and de-

-42-

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Why Lawsuits Are Good for America: Disciplined Democracy, Big Business, and the Common Law
Table of contents

Table of contents

  • Title Page v
  • Contents ix
  • Acknowledgments xi
  • Introduction 1
  • 1: Why Tell Tales? 6
  • 2: War on the Common Law 22
  • 3: The Third Branch of Government 42
  • 4: Disciplined Democracy and the American Jury 66
  • 5: The American Common Law System 102
  • 6: Who Regulates Auto Safety? 138
  • 7: The Three Revolutions in Products Liability 173
  • 8: The Common Law and the Future 197
  • Notes 221
  • Index 259
  • About the Author 265
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