Abstract and Keywords
This chapter traces the transformation of American common law thinking between the nineteenth and twentieth centuries. In the early twentieth century, many viewed the common law as a kind of ‘unconscious’ lawmaking that had to be repudiated in favour of legislative and administrative ‘conscious’ lawmaking. This pointed to a massive change in the ways in which American legal thinkers would conceive of the place of the common law (indeed, law itself) in the American polity. But even after the common law underwent this change, it is by no means clear that lawmaking would become entirely ‘conscious’ or, in other words, that all elements of ‘unconsciousness’ in lawmaking would be eradicated.
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