Law and the American State

Abstract

Although classical theories of the state and key texts of historical institutionalism and American political development (APD) defined the American state as a fundamentally legal entity, contemporary studies of the American state show a range of roles for law and courts, from no role at all, to a constraint or obstacle, to a positive force for state development. This review maps these varying roles, showing that law and courts are most absent or play negative roles in studies of the growth of the national administrative welfare state. It highlights new studies in this area that show the American state as a legal state and surveys growing numbers of historical institutionalist and APD studies of the state and economic and social regulation, where law and courts are more prominent. It points to the important but mostly neglected subjects of criminal and tort law as areas for future study that unite law and the state. Finally, it concludes by showing how concepts from the sociology of law—legal mobilization, law/court effectiveness, and legal consciousness—can inform state-centered political studies. Portraying the American state as a legal state yields a richer conception, reveals new and important subject matter and explanatory strategies, and can encourage dialogue between scholars of law and scholars of the state.

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