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Articles 31 - 43 of 43
Full-Text Articles in Legal History
Positivism In The Historiography Of The Common Law, David K. Millon
Positivism In The Historiography Of The Common Law, David K. Millon
Scholarly Articles
A great deal of important legal historical scholarship is doctrinal in focus, its objective being to chart the history of substantive common law rules. In this Article, Professor Millon suggests that doctrinal legal history is based implicitly on the modern positivist theory of law as a system of state-endorsed rules designed to resolve disputes in a consistent, predictable manner. He questions the validity of efforts to write the history of the premodern common law from this theoretical point of view.
Focusing on pre-seventeenth century civil cases, he finds that trial procedure seems to have allowed or even encouraged juries to …
Bracton, The Year Books, And The 'Transformation Of Elementary Legal Ideas' In The Early Common Law, David J. Seipp
Bracton, The Year Books, And The 'Transformation Of Elementary Legal Ideas' In The Early Common Law, David J. Seipp
Faculty Scholarship
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's 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 …
The Development Of The Nineteenth-Century Consensus Theory Of Contract, Philip A. Hamburger
The Development Of The Nineteenth-Century Consensus Theory Of Contract, Philip A. Hamburger
Faculty Scholarship
The consensus theory is well known. According to consensus theory, contract is the product of the consensus or "meeting of the minds" of contracting parties; if there is no consensus, there is no contract. Today, even after repeated challenges, consensus theory continues to be important and even essential in many approaches to contract.
The role of the parties' consensus was not always apparent in case law. Until well into the nineteenth century, the most important remedy for breach of contract in both England and America was the action for breach of promise known as "assumpsit." As a result, lawyers typically …
Farewell To The Sea Of Doubt: Jettisoning The Constitutional Sherman Act, Thomas C. Arthur
Farewell To The Sea Of Doubt: Jettisoning The Constitutional Sherman Act, Thomas C. Arthur
Faculty Articles
This Article proceeds as follows. Part I examines the legislative history of the Sherman Act to discover the policy choices actually made by the 1890 Congress. Part II sketches the development, operation and social costs of the conventional "constitutional" approach which now dominates section 1 adjudication. This Part demonstrates how the Supreme Court's failure to establish a workable methodology for resolving hard cases in the first Sherman Act decisions enabled it later to create the myth that the 1890 Congress made no hard policy choices. It then shows that the lack of a recognized statutory standard inevitably leads to doctrinal …
Crime Talk, Rights Talk, And Double-Talk: Thoughts On Reading Encyclopedia Of Crime And Justice (Review Essay), Michael E. Tigar
Crime Talk, Rights Talk, And Double-Talk: Thoughts On Reading Encyclopedia Of Crime And Justice (Review Essay), Michael E. Tigar
Faculty Scholarship
No abstract provided.
Federal And State Regulation Of Activities Affecting Water Quality, Julia B. Epley
Federal And State Regulation Of Activities Affecting Water Quality, Julia B. Epley
Western Water Law in Transition (Summer Conference, June 3-5)
54 pages.
English Common Law In Virgina, William Hamilton Bryson
English Common Law In Virgina, William Hamilton Bryson
Law Faculty Publications
By statute the common law of England is the basis of the common law of modern Virginia. This reception statute refers to the customary, unwritten law of the kingdom of England, but only that part which was general and common to all parts of England. That the English common law is the foundation of the law of Virginia is a matter not merely of a modern statute but also of history and reason.
The Future Of The Common Law Tradition, Alan Watson
The Future Of The Common Law Tradition, Alan Watson
Scholarly Works
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 …
Ecclesiastical Jurisdiction In Medieval England, David K. Millon
Ecclesiastical Jurisdiction In Medieval England, David K. Millon
Scholarly Articles
Not available.
The Abolition Of The Forms Of Action In Virginia, William Hamilton Bryson
The Abolition Of The Forms Of Action In Virginia, William Hamilton Bryson
Law Faculty Publications
The common law procedure for initiating actions at law in the English courts required a plaintiff to obtain a writ invoking the jurisdiction of the court and to file a declaration setting forth the facts that justified instigation of the suit and established the cause of the action. This clumsy and archaic system of litigation was abolished by a single chop of the legislative guillotine in New York in 1848. England followed suit in 1875, and the United States federal courts in 1938. Writs and declarations were replaced by simple forms which were copied from the practice of the equity …
Discovery Of Penalites, William Hamilton Bryson
Discovery Of Penalites, William Hamilton Bryson
Law Faculty Publications
The purpose of this essay is to discuss some aspects of the scope of the privilege against self-incrimination. It will consider first what can not be and then what can be discovered by the common law of England before 1776, when the first republican constitution of Virginia was promulgated. Finally, the developments in Virginia and federal practice will be dealt with.
Book Review. Transcending Covenant And Debt, Morris S. Arnold
Book Review. Transcending Covenant And Debt, Morris S. Arnold
Articles by Maurer Faculty
No abstract provided.
Book Review. The Assize Of Novel Disseisin By Donald W. Sutherland, Morris S. Arnold
Book Review. The Assize Of Novel Disseisin By Donald W. Sutherland, Morris S. Arnold
Articles by Maurer Faculty
No abstract provided.