Magna Carta in the Late Middle Ages: Over-Mighty Subjects, Under-Mighty Kings, and a Turn Away from Trial by Jury

What did English lawyers know about Magna Carta in the fourteenth and fifteenth centuries? How did they talk about it? Did they regard the king as above the law or subordinate to it? What did they make of the guarantees that we now think were most important in Magna Carta, the guarantee of judgment of peers or the law of the land, and of speedy justice? The evidence of the Year Books is that Magna Carta was treated as a minor statute, that the king was or ought to be above the law in many respects, and that trial by jury was a risk to be avoided, if possible, because juries could be so easily intimidated

The Reception of Canon Law and Civil Law in the Common Law Courts Before 1600

English common law practitioners and judges borrowed much of the conc structure for their body of legal knowledge from the legal culture of continen Europe over the centuries. Their surviving writings show a marked increa the use of Roman legal classifications in the century before 1600: public private, criminal and civil, real and personal, property and possession, con and delict, among other examples. Those who perpetuated the learning of English royal courts in the sixteenth century had begun fitting it in framework borrowed from the two great bodies of \u27learned law\u27 taught in universities of Europe: civil (Roman) law and canon law. Common lawyer expressed the need for an \u27institutes\u27 of English law, a written introductory w that would survey the whole of the common law in its main classificatio comparable to Justinian\u27s Institutes of Roman law (533 AD) and Giovanni P Lancelotti\u27s Institutes of canon law (1563). In the decades after 1600, such institutes of common law began to appear

Don’t Bring an Army to an Arbitration (England, 1411)

The name of our friend Derek Roebuck will always be linked to the long history of arbitration and mediation which he has chronicled so thoroughly in a dozen volumes by my count and many articles and chapters. On a spectrum of dispute resolution methods from formal courtroom litigation to savage brute force, arbitration stands at an interesting intermediate point. In tribute to Derek’s memory, I offer this glimpse of a curious episode at the intersection of due process of law, armed violence and principled arbitration. It reminds us that these three alternatives were not always as widely differentiated as we suppose

Holmes\u27s Path

The most important event in American legal history to have taken place at Boston University School of Law was the delivery, by Oliver Wendell Holmes, Jr., of a speech entitled The Path of the Law.\u27 He was an Associate Justice of the Massachusetts Supreme Judicial Court at the time. The occasion was the dedication of a new building for the School of Law, a building the school would occupy for sixty-seven years. Holmes delivered the speech on January 8, 1897, one hundred years ago

Trust and Fiduciary Duty in the Early Common Law

Trust is an expectation that others will act in one’s own interest. Trust also has a specialized meaning in Anglo-American law, denoting an arrangement by which land or other property is managed by one party, a trustee, on behalf of another party, a beneficiary.1 Fiduciary duties are duties enforced by law and imposed on persons in certain relationships requiring them to act entirely in the interest of another, a beneficiary, and not in their own interest.2 This Essay is about the role that trust and fiduciary duty played in our legal system five centuries ago and more

Bracton, the Year Books, and the \u27Transformation of Elementary Legal Ideas\u27 in the Early Common Law

The language of the common law has a life and a logic of its own, resilient through eight centuries of unceasing talk. Basic terms of the lawyer\u27s specialized vocabulary, elementary conceptual distinctions, and modes of argument, which all go to make “thinking like a lawyer” possible, have proved remarkably durable in the literature of the common law. Two fundamental distinctions—between “real” and “personal” actions and between “possessory” and “proprietary” remedies—can be traced back to their early use in treatises of the first generations of professional common law judges and in reports of courtroom dialogue from the first generations of professional advocates in common law courts. Together these distinctions give the clearest indications that the early common law professions borrowed the vocabulary and techniques of Roman and canon law. Moreover, they play an important role in the ongoing historical debate over English legal concepts of property ownership

Introduction

Have we come to bury Lochner, or to praise it? Lochner v. New York,\u27 decided 100 years ago, gave its name to an era in which judges struck down popular statutes that regulated hours, wages, and conditions of work, on grounds that such labor regulations violated a constitutional liberty of contract. After 1937, Lochnerism and Lochnerizing were more or less uniformly condemned by judges and law professors alike. Recently, some scholars have tried to resurrect the Lochner approach, presumably as a way to render much of the twentieth-century regulatory state unconstitutional

Review of The Year Books of Richard II: 1382-1383 by Samuel E. Thorne & George F. Deiser, eds.

Of the making of Year Books there is no end. Three scholarly enterprises - the Rolls Series, Selden Society, and Ames Foundation - have undertaken to provide modern editions and translations of medieval English Year Books, the law French reports of oral pleading and judicial dialogue in lawsuits heard in the Common Bench and other common law courts. The present volume fills a gap in the most recent of these efforts, that of the Ames Foundation of Harvard Law School to print the surviving manuscript Year Books of the reign of Richard 11 (1377-1399). This volume, the sixth year of Richard II, makes good use of all the improvements in Year Book editing pioneered by earlier generations of legal historians. In lieu of any general introduction to the political, social, or legal history of the period, the editors provide an exhaustive explication of the legal content of each reported case

English Judicial Recognition of a Right to Privacy

The average Englishman\u27s habits of reserve and regard for his own privacy are legendary. It is surprising, therefore, that English courts have, until very recently, shown great reluctance to recognize privacy as an interest worthy of legal protection in its own right. The experience of other common law countries has not been the same; privacy law has flourished in the United States\u27 and has gained a foothold in Australia and Canada. Moreover, a right to privacy has received international recognition in the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights. Yet in England, Parliament has refused on a number of occasions to enact broad privacy protections, and the courts have been slow to find a grounding for privacy in the common law and in constitutional principles as the American courts have done. Judicial pronouncements in the past few years, however, have come closer and closer to recognition of a general privacy interest protected at common law as one of the rights of every English subject. It is instructive to compare the state of American law on the verge of its acceptance of a right to privacy