ABSTRACT
In a textbook by Markesinis and Deakin, Tort Law (1999), p 203 et seq, Professor DW Robertson, a guest writer, points out that there are at least three major differences between the legal cultures of England and that of America. First, the USA has no unified law of negligence, but has at least 52 discrete (that is, separate and distinct) and autonomous systems, and each of the 50 States has its own tort law. Apart from the system in each State, federal maritime law is another distinct 51st system and the 52nd system is a federal common law of torts that supplements national legislation on matters such as anti-trust. Some commentators even count a 53rd system in the ‘conglomerate of statutory and common law dealing with the tort liability of the federal government’ (see Shapo, Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Tort Law: Report to the American Bar Association (1984)). Further, the legislature and highest court in each State both have the power to determine the private law in that State. The federal court decisions, including the US Supreme Court, are not binding on private State law, but are merely persuasive (as stated in State v Perry (1992) 610 So 2d 746 (Louisiana), where the court said that it is the ‘final arbiter’ of the meaning of the State constitution and laws). Hence, even a US Supreme Court decision is not representative of the American law of negligence any more than a New York law by that State’s highest court. However, although independent of each other, these States ‘share common policy goals’, declares Robertson, and ‘strive for common outcomes’. Thus, these courts routinely cite one another’s authorities. Robertson, therefore, calls the American law of negligence ‘international comparative law’. However, Americans appear to be reconciled to the divergences between the States.
