The ius commune in England: Four Studies

Book Description

This study addresses the ius commune's relation to and influence on English law. Helmholz aims to fill in some of the gaps in scholarship on the common legal past of Western law, the history of the Roman and canon laws, the history of the ecclesiastical courts, parallels between the ius commune and English common law, and English church history.

A Law of Blood: The Primitive Law of the Cherokee Nation

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A Law of Blood: The Primitive Law of the Cherokee Nation
John Phillip Reid
Manufacturer: Northern Illinois University Press
ProductGroup: Book
Binding: Paperback

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Brabbling Women: Disorderly Speech and the Law in Early Virginia

ASIN: 0875806082

Book Description

John Phillip Reid is widely known for his groundbreaking work in American legal history. A Law of Blood, first published in the early 1970s, led the way in an additional newly emerging academic field: American Indian history. As the field has flourished, this book has remained an authoritative text. Indeed, Gordon Morris Bakken writes in the foreword to this edition that Reid's original study "shaped scholarship and inquiry for decades."

Book Description

Conservatives are engaged in a campaign to turn back the clock on the common law-the law of contract, property, and personal injury-to increase the rights of big business. Some significant inroads have already protected gun manufacturers from lawsuits and hampered the government's protection of the environment, for example; more rollbacks are on the horizon. Insurance companies and HMOs are anticipating a huge bonus if the rights of patients are severely curtailed by Congress.

Customer Reviews:

Author is not into the spirit of liberty.......2006-06-22

This is an eye-opening book because it well shows where the opponents of tort reform are coming from. In particular, the author does not possess "the spirit of liberty" as Judge Learned Hand defined it: "the spirit which is not too sure it is right." Although the rich and powerful certainly would like to do anything they want without having to worry about liability, the system is clearly broken when:

1) municipalities have to close swimming pools and other facilities because of the threat of lawsuits

2) the MAJORITY of doctors are sued at least once

3) yes, a lady can recover damages from injuries suffered when she spilled coffee on herself - that was served at the recommended temperature - and even though it happened because she was balancing the said coffee on herself in a car

4) no company will undertake to come up with things that could help problems that pregnant women have (and Bendectin - which was never shown to cause any birth defects - was withdrawn by the manufacturer because the costs of fending off meritless lawsuits was too expensive)

And so on and so on.

But, as I said, this book is a good example of the kind of anti-business mentality that sees all economic activity not conducted by the government (which can't be sued) as fundamentally evil or at least morally suspect. It shows what ordinary people who simply want to solve the *obvious* problems with the tort system what they're up against.

Sore loser whines about getting slapped with the truth.......2005-04-03

Feinman is the classic leftist infecting American higher education today who is now worried that the game may be up. This book is probably the best example of elitist arrogance whining about how they can't deal with judicial law-making when it goes against their view of the world. "The common law" as leftist elitists like Feinman define it is the law written by fellow judicial activists who write laws that would never pass muster by a majority of the people, or their elected representatives. They invent unwritten rights with their decisions, and transform American society into something that could never happen if it weren't for activists like Feinman and his leftist ilk. Now that the conservatives are doing exactly what Feinman's fellow travelers have done over the last few generations, it is somehow "rolling back" the "Common Law".
this book is a great instruction on how the judiciary has become the nightmare of some of our founding fathers who worried that this "least important" of the three branches of government has arrogated to itself powers never envisioned by them. I recommend reading this book as one of the best examples of liberal arrogance that can be found.

Distortions of legal philosophy.......2005-03-31

Keeping an eye on all the fronts of the conservative attempts to destroy liberal America is not always easy, and this excellent account of the 'un-making' of law is a warning, and a reminder that changes are occurring beyond the threshold level of awareness of non-specialists. Here the issues of contract, property, and personal injury law and the rightwing effort to rewrite a century of legal writ are given a detailed look, and the result, in this very readably scholarly study, is especially insightful in the context of legal history: once again the story begins in the Gilded Age with its highly biased versions of common law, which a century of lawyers were able to critique. Now the conservatives are genuinely 'reactionary' and wish to erase all of the gains. Useful and important book for anyone who is not a legal specialist, but is concerned or confused by the current propaganda, e.g. about the issue of tort lae, about which alarmist scenarios are flushed through the media. So if you fell for the story about the lady winning a case for spilling coffee at MacDonald's (she suffered third degree burns...) this is the book to start with.

Good positive case, overbroad characterization of opposition.......2004-10-06

This is an excellent book on its positive side. I'm deducting a star because Jay Feinman paints his 'opposition' with such a broad brush. (In this respect he's a breath of fresh air next to, say, Michael Moore or Al Franken. Nevertheless that leaves considerable room for improvement.)

Feinman, also the author of the excellent _Law 101_ and a very clear expositor of legal issues, sets out here to defend a century's worth of development in American common law against those who would prefer to turn the legal clock back to 1900 (or before). Among his stated targets: classical liberals, libertarians, conservatives, neoconservatives, and pretty much everybody other than 'progressives'.

As a libertarian myself, I might not be expected to find this sort of thing congenial. But on a few subjects my libertarianism dresses to the left, and at any rate -- more to come on this point -- Feinman's arguments aren't quite as dependent on political ideology as he thinks they are.

The meat of his case is set out in the book's middle six chapters -- two each on tort law, contract law, and property law. In each of these areas, he contends, developments of the last century or so have rendered the common law more protective of the interests of the less wealthy and powerful, and it's important to preserve those advances.

I'm not an easy reader to please on this subject, and Feinman does about as well as it's possible to do: I agree with about two-thirds of what he writes, respect his arguments in most of the rest, and only once or twice feel like hurling the book against the wall. That may not sound like much, but it compares favorably with a lot of other legal commentators.

On tort law, I agree with so much of what he writes that the differences aren't worth discussing. He's right; the common law of torts is working just fine (i.e., as well as law ever does), and it would be mind-bendingly stupid to 'reform' it. (This subject is pretty ideology-independent. For example, my own favored reading of the Second Amendment is somewhere to the right of the NRA's, but I still think making it impossible to sue gun manufacturers is just plain dumb.)

In contract law, the heart of his claim is that twentieth-century liberalizations in interpretation and enforceability have provided protections to consumers who might otherwise (and previously did) find themselves stuck with vastly unfavorable contract terms that in many cases they might not even have read before 'agreeing' to them. Recent developments, he says, have undone those protections, to the detriment of consumers.

Here, too, I agree (he's especially good on the hazards posed by arbitration clauses) but with one misgiving. Feinman likes to pick on Judge Alex Kozinski and quotes him here as a proponent of the idea that 'loose' contract interpretation by the courts could make it hard for parties to a contract to tell with precision just what they were agreeing to.

Well, I don't think Judge Kozinski walks on water or anything, but he's much more sensible than Feinman gives him credit for. And in this case he's raising an entirely valid point -- and one that wouldn't tell one bit against Feinman's own case, if he handled it right. At the very least, I'd have liked to see an acknowledgement of the legitimacy of Kozinski's concern and an argument that modern contract law can address it (which I think it can, and Feinman seems to think so too). At any rate, there seems to be nothing wrong with admitting that there are sound arguments on _both_ sides of the issue, and that this is one of the things that make contract law so difficult.

With property law, we enter more dangerous waters. Feinman starts, wisely, with Wesley Hohfeld's seminal analysis of legal rights and duties, and contends mightily against an 'absolutist' view of property rights. Fine so far, and he racks up lots of points both in his positive discussion and in his counterarguments (e.g. on the subject of John Locke, whose theory of property rights contains an important proviso not generally discussed in the libertarian literature).

But Feinman seems unaware that many of his 'opponents' -- Richard Epstein, for example (whose view of 'takings' Feinman rightly notes is, to put it mildly, not what the framers meant) -- _also_ reject an 'absolutist' understanding of property rights. (Epstein, much to the embarrassment of some of his libertarian fellow travellers, is a utilitarian. Feinman uses 'absolute' to mean several different things, and Epstein would agree that property rights are not 'absolute' according to most of those meanings.) And he seems to find the (crucial) economic role of property rights not worth discussing -- a bit ironically, since he is so keenly aware of the role of economic incentives in getting tort claims litigated.

(Nor is it obvious why Epstein's departure from the framers' understanding of 'takings' is such a disaster, since Feinman himself allows closely analogous departures elsewhere. Our post-_Katz_ understanding of 'searches' is not, for example, limited to strictly physical property, but I don't see Feinman objecting to our extended Fourth Amendment protection.)

I could pick nits about this subject all day, so I'll just say that Feinman's positive arguments are good but would have benefitted from a more nuanced exposition of the views of his opponents. In the absence of such an exposition, I'm not at all sure that his shots are hitting their intended targets.

I think this is true in general of the entire book. Feinman's 'frame story' is that a bunch of conservatives are conspiring to repeal the twentieth century, and there's surely something to this story (whether good or bad). But in the process of telling it, he lumps together people who might be surprised to be found in one another's company.

(The metaphor 'repeal the twentieth century' isn't very apt here. You don't 'repeal' common law; you 'repeal' statutes. And it's true that lots of libertarians and conservatives -- including me -- would gladly repeal a large number of twentieth-century _statutes_. But Feinman's book isn't about statutory law; it's about the common law, with regard to which I don't believe there's any such consensus.)

A more unified approach to political theory would have helped. Feinman buries some of his points about the structure of federalism, and the relative roles of federal and state government, in the later portion of the book, but they'd have been handy in his discussion of torts too (where they're lurking implicitly but not stated clearly).

Also helpful would have been a clear statement that the market and the law go together in human society roughly as words and grammar go together in human language. Feinman doesn't want 'conservatives' to turn the clock back a century, but his own occasional bursts of anti-'market' rhetoric sound as though _they_ hail from around 1900.

On the whole, though, the strength of Feinman's arguments and examples carries the day. The heart of the book _is_ his positive case, and he makes it very well.

Highly recommended, then, despite my deduction of one star. Half the job in public discourse is to get the arguments and counterarguments clearly articulated, and you'll find Feinman helpful in that regard even if you disagree with everything he has to say. But you shouldn't; he's right a lot, and -- despite his anti-'conservative' presentation -- it's possible to agree with pretty much anything he says without changing your political alliances.

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Uncommon spirit

The Spirit of the Common Law
Roscoe Pound
Manufacturer: Transaction Publishers
ProductGroup: Book
Binding: Paperback

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An Introduction to the Philosophy of Law (Storrs Lecture)
The Common Law
Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence
The Nature of the Judicial Process
A History of American Law: Third Edition

ASIN: 156000942X

Customer Reviews:

Uncommon spirit.......2005-09-15

Roscoe Pound was Carter Professor of Jurisprudence at Harvard University in the first half of the twentieth century. This text, derived from a series of lectures given in the 1910s, has held up over time (its initial publication was in 1921, and has been reissued periodically ever since) as a touchstone of historical and theoretical explorations of what common law is and how it operates, both in the British and American contexts.

Unlike constitutional law and other kinds of codified law from legislative bodies, the common law is more of a development from the masses, at least insofar as it connects with the judicial aspects of government which in turn recognises certain things as legal or illegal. Indeed, Pound sees the triumph of the idea of the supremacy of law over authority to be a victory of the spirit of the common law (specifically, he refers to the supremacy of the law over the Stuart monarchs in Britain, but also that common law practice has survived Renaissance, Reformation and the institution of Roman law).

Pound looks at the common law in different phases - feudal underpinnings, Puritan influences, relationship between judiciary and the Crown/executive authority, philosophers such as Locke, and growing judicial practice in the trans-Atlantic context during the nineteenth and early twentieth centuries.

Pound does have a distaste of law for law's sake, and warns against attitudes that are 'a natural result of measuring the law solely by standards drawn from the law itself.' He is strongly concerned with the idea that the law be accessible to all, regardless of background, education, or ability to pay - there should not be one law for the rich and another for the poor.

Law is for the betterment of society, and the spirit of the common law has this at heart, according to Pound. This text of Pound's, an enduring favourite, is a good exposition of how and why the law is important for a well-regulated society, and how the spirit of the common law needs to be cherished, preserved and strengthened by the legal profession for the sake of whole community.

The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge Studies in Early Modern British History)

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The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge Studies in Early Modern British History)
Cynthia B. Herrup
Manufacturer: Cambridge University Press
ProductGroup: Book
Binding: Paperback

General | Criminal Law | Law | Subjects | Books

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Women, Crime, and the Courts in Early Modern England

ASIN: 0521375878

Book Description

The Common Peace traces the attitudes behind the enforcement of the criminal law in early modern England. Focusing on five stages in prosecution (arrest, bail, indictment, conviction and sentencing), the book uses a variety of types of sources - court records, biographical information, state papers, legal commentaries, popular and didactic literature - to reconstruct who actually enforced the criminal law and what values they brought to its enforcement. A close study of the courts in eastern Sussex between 1592 and 1640 allows Dr Herrup to show that an amorphous collection of modest property holders participated actively in the legal process. These yeomen and husbandmen who appeared as victims, constables, witnesses and jurors were as important to the credibility of the law as were the justices and judges. The uses of the law embodied the ideas of these middling men about not only law and order but also religion and good government. By arguing that legal administration was part of the routine agenda of obligation for middling property holders, Dr Herrup shows how the expectations produced by legal activities are important for understanding the decades immediately before the outbreak of the English Civil War. As the first book to use early seventeenth-century legal records outside of Essex, The Common Peace adopts an explicitly comparative framework, attempting to trace the ways that social conditions influenced legal process as well as law enforcement in various counties. By blending social history, legal history and political history, this volume offers a complement to more conventional studies of legal records and of local government.

The Bondsman's Burden: An Economic Analysis of the Common Law of Southern Slavery (Cambridge Historical Studies in American Law and Society)

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The Bondsman's Burden: An Economic Analysis of the Common Law of Southern Slavery (Cambridge Historical Studies in American Law and Society)
Jenny Bourne Wahl
Manufacturer: Cambridge University Press
ProductGroup: Book
Binding: Hardcover

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Southern Slavery and the Law, 1619-1860 (Studies in Legal History)

ASIN: 0521521386

Book Description

Were slaves property or human beings under the law? Antebellum Southern judges designed efficient laws that protected property rights and helped slavery remain economically viable, laws that sheltered the persons embodied by that propertySH-the slaves themselves. Unintentionally, these judges generated rules applicable to ordinary Americans. Wahl provides a rigorous, compelling economic analysis of the common law of Southern slavery, inspecting thousands of legal disputes.

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Changing Properties of Property

Manufacturer: berghahn Books
ProductGroup: Book
Binding: Hardcover

Theory | Economics | Business & Investing | Subjects | Books

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ASIN: 1845451392

Book Description

As an important contribution to debates on property theory and the role of law in creating, disputing, defining and refining property rights, this volume provides new theoretical material on property systems, as well as new empirically grounded case studies of the dynamics of property transformations. The property claimants discussed in these papers represent a diverse range of actors, including post-socialist states and their citizens, those receiving restitution for past property losses in Africa, Southeast Asia and in eastern Europe, collectives, corporate, and individual actors. The volume thus provides a comprehensive anthropological analysis not only of property structures and ideologies, but also of property (and its politics) in action. Franz von Benda-Beckmann is head of the project group "Legal Pluralism" at the Max Planck Institute for Social Anthropology at Halle, Germany. He is professor for law in developing countries at Wageningen University, the Netherlands and honorary professor at the University of Leipzig. His research in Malawi and Indonesia focuses property and inheritance, social security, decentralization and legal anthropological theory. Keebet von Benda-Beckmann is head of the project group "Legal Pluralism" at the Max Planck Institute for Social Anthropology at Halle, Germany. She is a professor of Anthropology of Law at Erasmus University Rotterdam and honorary professor at the University of Leipzig. Her research focuses on disputing, decentralisation, social security, and natural resources in Indonesia and the Netherlands. Melanie Wiber is Professor of Anthropology at the University of New Brunswick, Fredericton, New Brunswick, Canada. Her research focuses on new forms of property, economic and legal anthropology, natural resource management and especially agriculture and fishery.

A History of the Anglo-American Common Law of Contract: (Contributions in Legal Studies)

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A History of the Anglo-American Common Law of Contract: (Contributions in Legal Studies)
Kevin M. Teeven
Manufacturer: Greenwood Press
ProductGroup: Book
Binding: Hardcover

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ASIN: 0313261512

Book Description

This is the first booklength survey of the Anglo-American common law contract over its 800-year history, from genesis in 12th-century England to the present form in contemporary America. The volume presents a technically accurate yet readable analysis that focuses on how the form assumed by contract law was tempered by the reasoning of lawyers and judges, and procedural, economic, intellectual and social considerations throughout the period. Of perennial interest to lawyers is the changing nature of law and how a sophisticated legal system allows that change. Teeven suggests that contract law is an ideal focus for studying the evolution of common law because it is a microcosm of the process of the development of common law. Early chapters study how the Plantagenet royal courts rationalized the use of a trespassory action to fill a void in the actions available to plaintiffs for contract enforcement and analyze how the law of proof influenced contract law's evolution. Teeven assesses the influence of law merchant on contract law as reflected in the decisions of Lord Mansfield and the case law of Colonial America, and he surveys the reception of English contract law by the American colonies. Later chapters consider the American form of contract law of the 19th century and discuss the influence on contract law of the burgeoning merchant class. The last two chapters analyze 20th-century modernization of contract law in the context of an urban, industrialized society; reviews public policy, consumerism, and codification; and poses questions about the future direction of contract law. Containing essential source material within the arguments of lawyers for plaintiffs and defendants and the logic of common law judges, A History of the Anglo-American Common Law of Contract is an important resource for legal historians and other researchers, and for practicing lawyers and law students, both English and American.

Studies in the History of the Common Law

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Studies in the History of the Common Law
S.F.C. Milsom
Manufacturer: Hambledon & London
ProductGroup: Book
Binding: Hardcover

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A Natural History of the Common Law

ASIN: 0907628613

The Common Legal Past of Europe: 1000-1800 (Studies in Medieval and Early Modern Canon Law)

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A Legal Culture of Europe
A Legal Culture of Europe

The Common Legal Past of Europe: 1000-1800 (Studies in Medieval and Early Modern Canon Law)
Manlio Bellomo
Manufacturer: Catholic University of America Press
ProductGroup: Book
Binding: Paperback

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Roman Law in European History
The Digest of Roman Law: Theft, Rapine, Damage, and Insult (Penguin Classics)
An Historical Introduction to Private Law
The Laws of the Salian Franks (The Middle Ages Series)
European Legal History: Sources and Institutions

ASIN: 0813208149

Customer Reviews:

A Legal Culture of Europe.......2000-06-23

Manlio Bellomo's book, The Common Legal Past of Europe, 1000-1800, is a valuable work of historical scholarship. The author's exploration of law and its codification in European society gives the reader an appreciation of how central justice and legal learning and organization were in European society since the Middle Ages. The book's approach provokes one to consider the common traditions connected to learning, law and justice that many Europeans shared, regardless of ethnic or national boundaries.

A Legal Culture of Europe.......2000-06-23

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