Law Commons^™

Roman Law And English Law: Two Patterns Of Legal Development, Alan Watson

Scholarly Works

It is commonplace among scholars to link in thought the growth of Roman law and of English law. S.F.C. Milsom begins his distinguished Historical Foundations of the Common Law with the words: "It has happened twice only that the customs of European peoples were worked up into intellectual systems of law; and much of the world today is governed by laws derived from the one or the other." More strikingly, some scholars see an essential similarity in legal approaches in the two systems. Fritz Pringsheim entitled a well-known article The Inner Relationship Between English and Roman Law. W.W. Buckland and …

Falling Off The Vine: Legal Fictions And The Doctrine Of Substituted Judgment, Louise Harmon

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No abstract provided.

The Unimportance Of Precedence In The Law Of Federal Courts, Michael L. Wells

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Part I of this Article asserts that the Supreme Court pays little attention to precedent in federal courts law. My examples in support of this claim are taken from important areas of federal courts doctrine, where two major upheavals have taken place in the past thirty years. First, the Warren Court rewrote the law to expand access to federal court. then under Chief Justice Burger, the Court undid many of the changes wrought by its predecessor. The discussion in Part I of prominent departures from precedent is not offered as decisive proof that stare decisis is less important in federal …

Whose Nature? Practical Reason And Patriarchy, Lynne Henderson

Scholarly Works

No abstract provided.

A Lost Episode Of "Meeting Of The Minds": Posner, Kelman, Holmes, And Pascal, Paul J. Heald

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SCENE ONE: Mr. Allen enters first, carrying a sheaf of photocopied papers, and sits behind the desk. Next enter Mr. [Richard] Posner, Mr. [Blaise] Pascal, Mr. [Oliver Wendell] Holmes, and Mr. [Mark] Kelman all carrying similar papers. Holmes and Posner take seats to Allen's right; Kelman and Pascal seat themselves to Allen's left.

MR. ALLEN: Gentlemen, I would like to thank you for coming. I know that Mr. Pascal has had an especially difficult trip. I myself just flew in from the coast, and boy are my arms tired (polite chuckles from Posner and Kelman).

As you know, we are …

The Dialogue Of The Heart And Head, Lynne Henderson

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No abstract provided.

The Evolution Of Law: Continued, Alan Watson

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In my book The Evolution of Law I sought to give a general theory of legal evolution based on detailed legal examples from which generalizations could be drawn, offering as few examples as were consistent with my case in order to present as clear a picture as possible. I was well aware as I was writing that some critics would regard the examples as mere isolated aberrations and for them and for other readers who, whether convinced of the thesis or not, would like further evidence, I want here to bring forward a few extra significant examples.

Legality And Empathy, Lynne Henderson

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No abstract provided.

Why Professor Redish Is Wrong About Abstention, Michael Wells

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Most critics of the Supreme Court's abstention doctrines have attacked the substantive merits of rules that channel constitutional litigation away from federal courts and into state courts instead. In a recent article, Martin Redish raises an interesting objection to abstention from a different perspective. He addresses the institutional legitimacy of the rules and contends that whatever their merits, rules like these should be made only by Congress and not the Supreme Court, for they contravene Congress' intent to grant federal courts jurisdiction over constitutional claims against state actors. Part I of this article describes the context in which the choice …

Law In A Reign Of Terror, Alan Watson

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A few years ago I published a book, The Nature of Law, which was activated primarily by three long held beliefs. First, law is a means, not an end in itself; and legal rules, principles, decisions do not come into being without some purpose. The end envisaged for a legal rule or decision may be immediate -- to give financial compensation to a particular victim of negligence, for instance -- or more remote -- to promote general happiness or bolster the economic dominance of the ruling class, for example -- but that does not concern us here. What, in …

The Future Of The Common Law Tradition, Alan Watson

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What, then, can one say about the common law tradition as it will develop in the relatively near future? In terms of the future development of the common law systems, three facts seem certain and decisive. In the first place, there has been, as a matter of observable fact, a great shift in the balance of lawmaking in the common law world from judicial precedent to legislation, which together comprise the two main sources of law. In the second place, there is a deep awareness in the common law countries of a crisis in lawmaking, an awareness that is probably …

Freedom From Claims And Defenses: A Study In Judicial Activism Under The Uniform Commerical Code, Julian B. Mcdonnell

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The suggestion that we might today learn something about the judicial process in such a staid area of private law may seem surprising. After all, has not the Federal Trade Commission "repealed" the holder in due course rule thus tossing negotiable instruments into the dust bin? Have not the remaining technical questions been answered by the "detail and rigid precision" of the Uniform Commercial Code so lamented by Professor Gilmore? Surely, the attentive observer of the role of the courts might conclude that there is nothing left for the judicial policy maker in the field of bills and notes. The …

In Their Own Image: The Reframing Of The Due Process Clause By The United States Supreme Court, J. Ralph Beaird

Scholarly Works

A distinguished constitutional scholar recently pointed out that "many of the important decisions of the Supreme Court of the United States are not based on law in the popular sense of that term." It is true, he noted, that "the court endeavors to identify Constitutional clauses upon which to hang its pronouncements." "[S]ome key words and phrases in the Constitution," however, "are so highly indeterminate that they cannot really qualify as law in any usual sense." Rather, he said, "they are semantic blanks--verbal vacuums that may be filled readily with any one of many possible meanings." Thus, it is not …

The Prospects For Individual Freedom: Toward Greater Fairness For All, J. Ralph Beaird, C. Ronald Ellington

Scholarly Works

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means.

Imagine that on June 1, 2001, the latest issue of United States Law Week listed the following cases for oral argument at the next October term of the United States Supreme Court....